B.C. hit-and-run case highlights importance of credibility: personal injury lawyer

Provincial legislation requires reasonable efforts to identify driver and vehicle owner

B.C. hit-and-run case highlights importance of credibility: personal injury lawyer
Jaqueline Small is partner at Holness and Small Law Group.

Credibility is a key factor in B.C. hit-and-run claims because provincial legislation requires the plaintiff to make all reasonable efforts to identify the driver and vehicle owner, Jaqueline Small, partner at Holness and Small Law Group, has said.

The plaintiff’s lack of credibility may call into question the evidence presented, such as whether the accident occurred as submitted by the plaintiff, whether the plaintiff took the necessary steps to ascertain the driver’s identity and whether the nature and extent of the injuries are as the plaintiff has claimed, said Small, who wrote a blog post about a B.C. case in which the court concluded that the plaintiff in an alleged hit-and-run incident was not credible.

“In my view, his lack of credibility and inconsistent evidence played a direct role in the trial judge’s dismissal of the claim for failing to satisfy the hit and run statutory requirement to make all reasonable efforts to identify the hit and fault driver and vehicle owner and for failing to establish that his alleged injuries were causally related to the collision,” Small told Canadian Lawyer.

In D.H. v Doe, 2021 BCSC 112, the Supreme Court of British Columbia tried two motor vehicle negligence actions together by consent. The first accident in February 2015 took place in the drive-through of a fast-food restaurant. A vehicle rolled into the plaintiff’s car from behind. The court found that the impact, which did not move the plaintiff’s car at all or shift its contents, was miniscule.

Two employees of the Insurance Corporation of British Columbia, which was the nominal defendant in relation to the first accident, took the plaintiff’s calls and received information regarding the vehicle description and licence plate number of the other driver involved. This information produced no match within the ICBC’s database. The plaintiff reported that he spoke to the driver of the other vehicle, who asked him if he was okay, to which the plaintiff responded that he was fine, the ICBC employees said.

The second accident in May 2016 took place near an intersection where traffic was very slow due to construction work in the area. The first private defendant, who was driving the vehicle owned by the second private defendant, bumped into the plaintiff’s car from behind. The impact was so slight that the second private defendant, who was on the passenger seat, did not even notice it. The first private defendant parked and got out of the vehicle to speak to the plaintiff through the car window, but the plaintiff did not respond to her and continued speaking into a mobile phone. A police report later stated that no one was harmed and no vehicle was damaged during this incident.

The B.C. Supreme Court considered the two private defendants reasonable, reliable and honest witnesses, but had doubts regarding the credibility of the plaintiff’s claims, including his submission that he suffered soft tissue injuries during these accidents, which resulted in chronic pain that negatively interacted with his pre-existing conditions of anxiety and depression, as well as certain cognitive deficits or limitations.

The court dismissed both actions and awarded costs to the defendants because the plaintiff failed to establish by clear, convincing and cogent evidence that he suffered from deficits or limitations caused by either or both of the accidents. The first action also failed because the plaintiff did not comply with his obligations under s. 24(5) of the Insurance (Vehicle) Act, RSBC 1996, c 231.

The court, which considered the plaintiff’s credibility as the crux of the matter, rejected the plaintiff’s evidence about the nature of his injuries, the extent and degree of his present-day troubles and his claims regarding his cognitive issues, which were contradicted by the evidence of witnesses called by the plaintiff himself. While the plaintiff claimed at different points that he felt a bit foggy, that he had difficulties finding words and that he forgot his training as an esthetician, the witnesses only described the plaintiff as depressed and distracted after the second accident and made no reference to the plaintiff’s submissions of cognitive issues, memory loss or drastic impacts on intellectual capacity.

The court also found that the plaintiff had failed to make all reasonable efforts to identify the other driver as required by the Insurance (Vehicle) Act despite having ample opportunity to do so. The court said that the actions of the paralegal of the plaintiff’s counsel, who sought information about the other driver by posting advertisements, did not cure the plaintiff’s dereliction of statutory duty.

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