Plaintiff's efforts to identify the driver were impacted by her emotional state after the accident
The British Columbia Supreme Court ruled that an employee of Hertz Canada Ltd. can pursue an insurance claim with Insurance Corporation of British Columbia (ICBC) despite not identifying the driver who rear-ended her.
Kimberly Bui was driving a Hertz rental vehicle when a pick-up truck rear-ended her near Hastings Street and Willingdon Avenue in Burnaby, BC. This incident occurred during her first month of employment with Hertz. She was accompanied by her assistant manager, who instructed her to remain in the vehicle while he spoke with the pick-up truck driver. Despite this interaction, the driver’s contact information was not recorded.
The court focused on whether Bui satisfied the requirement to make all reasonable efforts to identify the other driver. The quantum of damages had already been agreed upon by the parties involved. Bui’s claim against ICBC, as a nominal defendant, required the court to determine her compliance with the obligations under s. 24(5) of the Insurance (Vehicle) Act.
Bui testified that immediately following the accident, she experienced shock and confusion, which impaired her ability to think clearly. She relied on her assistant manager’s instructions, trusting he would handle the situation. The manager’s failure to obtain the necessary contact information left Bui vulnerable.
Despite her frazzled state, Bui attempted to record the pick-up truck's licence plate number by calling her partner and repeating the number. However, she was unsure if she accurately captured the information. Subsequent investigations revealed that the recorded licence plate numbers did not match existing vehicle records. Bui took additional steps, including visiting nearby Starbucks locations, talking to bus drivers, and posting notices seeking witnesses.
The court acknowledged that Bui’s efforts to identify the driver were impacted by her emotional state and the instructions from her assistant manager. As emphasized in previous cases, the subjective nature of the “all reasonable efforts” test considers the plaintiff’s condition and circumstances at the time of the accident.
The Supreme Court concluded that Bui had made all reasonable efforts under the circumstances. Her immediate attempt to record the licence plate and subsequent efforts to locate witnesses demonstrated her commitment to identifying the driver. The court found that her emotional state and reliance on her assistant manager’s directives reasonably explained her actions at the scene. Ultimately, the court ruled that Bui is entitled to pursue a claim against ICBC as a nominal defendant.
