MARC GAETAN MORIN CLAIMANT AND: INSURANCE CORPORATION OF BRITISH COLUMBIA, JULIA BERRY, ROBERT CLARK DEFENDANTS REASONS FOR JUDGMENT OF HIS WORSHIP G. URQUHART Counsel for the Claimant: Katherine M. Wellburn Counsel for the Defendants: Michael C. Woodward Place of Hearing: Vancouver , B.C., 2011 BCPC 290

Citation: Morin v. ICBC, Clark & Berry Date: 20111026 2011 BCPC 0290 File No: 1032396 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: MARC GAETAN MORIN CLAIMANT AND: INSURANCE CORPORATION OF BRITISH COLUMBIA, JULIA BERRY, ROBERT CLARK DEFENDANTS REASONS FOR JUDGMENT OF HIS WORSHIP G. URQUHART Counsel for the Claimant: Katherine M. Wellburn Counsel for the Defendants: Michael C. Woodward Place of Hearing: Vancouver , B.C. Date of Hearing: September 7, 2011 Date of Judgment: October 26, 2011 [ 1 ] The Claimant’s vehicle was damaged in a motor vehicle accident.

He claimed the cost of repairing his vehicle from Insurance Corporation of British Columbia (ICBC). ICBC paid for the repairs, and charged the Claimant a $500 deductible, which the Claimant paid. The Claimant claims reimbursement of the deductible. FACTS [ 2 ] The Defendants and the Claimant have provided the following facts, which I accept:

a) On October 4, 2008, the Claimant was the driver of a blue Mercedes SL500 (the “Mercedes”), travelling on the eastbound

section of Highway 1, near Willingdon Avenue in Vancouver, British Columbia.

b) At around 4:30 p.m. on the date in questions, the Claimant’s vehicle was struck on the right side by a 2003 Audi (the “Audi”),

operated by the Defendant Robert Clark (“Clark”) and the Defendant Julia Berry (“Berry”) (the “Accident”).

c) As a result of the Accident, the Mercedes suffered damages which cost$5520.20 to fix. ICBC paid to fix the damage, less the $500 deductible paid by the Claimant. [ 3 ] Clark says that an unidentified white vehicle swerved into his lane, causing him to take evasive action which resulted in the Accident. His evidence is that, while he was travelling in the left hand lane, he saw a white car to his right, but did not notice any problems. He looked down at the road, and his wife yelled “look out”.

Clark says he then looked up, and noticed that the white car was slightly ahead of the Audi and merging into his lane in front of him. He then pulled the steering wheel hard to the left, changed into the HOV lane, and struck the Mercedes with the Audi. [ 4 ] Berry corroborates Clark’s story. No other evidence with respect to the unidentified white car is before the Court. ISSUES [ 5 ] The Claimant argues that Clark’s actions were negligent.

If Clark’s negligence caused the Accident, the Claimant’s insurance claim to ICBC does not fall under his own property policy or the “hit and run” provisions of the Insurance (Vehicle) Act , R.S.B.C. 1996, c. 231 (the “Act” ), but is recoverable through Clark’s liability policy, and the Claimant is entitled to be fully indemnified for his property damage. [ 6 ] ICBC argues that the accident is a “hit and run” accident pursuant to s.24 of the Act , and was caused by the negligence of the driver of the unidentified white car.

ICBC further argues that Clark was not negligent, and that his actions were justifiable in the “agony of collision”. If the accident is a “hit and run”, ICBC is entitled to charge Clark a deductible. [ 7 ] The issues before me are as follows:

a) Is the Accident a “hit and run” accident pursuant to s.24 of the Act ?

b) If the Accident is a not a “hit and run”, did negligence on the part of Clark cause the Accident? WAS THE ACCIDENT A “HIT AND RUN”? [ 8 ] ICBC argues that the Accident was caused by the actions of the driver of the white car, and is therefore a “hit and run” pursuant to s.24 of the Act . [ 9 ]

Section 24 of the Act states that if damage to property arises “out of the use or operation of a vehicle on a highway in British Columbia,” where the names of both the owner and the driver of the vehicle are not ascertainable, recovery for property damage is limited to the amount by which the damages exceed the prescribed amount. Pursuant to s.105 of the Insurance (Vehicle) Regulation , B.C. Reg. 447/83 and s. 9(2) of

Schedule 3 to the Insurance (Vehicle) Regulation , the prescribed amount is $750. The terms of the Claimant’s optional collision coverage with ICBC reduce the deductible for a “hit and run” to $500. [ 10 ] Even if I accept Clark’s evidence and find that the Accident was caused by the actions of the driver of the white car, the Accident is not a “hit and run”. The property damage the Claimant suffered did not arise of the use or operation of a vehicle operated by an unascertainable driver, but rather out of the use or operation of the vehicle operated by Clark.

The “hit” occurred between the Mercedes and the Audi, not the Mercedes and the unidentified white vehicle. [ 11 ] Moreover, I find that the evidence does not support a finding that the driver of the unidentified white car was negligent or caused the Accident. Clark and Berry’s evidence merely suggests that a white car was merging into the Clark’s lane ahead of the Audi. I reject Clark’s evidence on the degree of danger posed by the white car’s actions. There is no corroborating evidence to support the Defendant’s contention that the white car was at fault for the Accident.

I find that the white car was merging in heavy traffic, and a combination Clark’s inattentiveness, inexperience, and panic caused him to overreact, swerve into the Mercedes, and cause the Accident. [ 12 ] The Claimant’s property damage did not arise out of the use and operation of a vehicle of which both the driver and the owner is unascertainable, and therefore his insurance claim is not subject to the deductible under s. 24 of the Act . The deductible was wrongfully charged by ICBC.

WAS CLARK NEGLIGENT? [ 13 ] The Claimant argues that Clark’s actions were in contravention of s. 151 of the Motor Vehicle Act , R.S.B.C. 1996, ch. 318, which provides as follows: Driving on laned roadway 151 A driver who is driving a vehicle on a laned roadway (

a) must not drive it from one lane to another when a broken line only exists between the lanes, unless the driver has ascertained that movement can be made with safety and will in no way affect the travel of another vehicle, […] (

c) must not drive it from one lane to another without first signalling his or her intention to do so by hand and arm or approved mechanical device in the manner prescribed by sections 171 and 172 […]

[ 14 ] It is incontrovertible that Clark’s actions were in contravention of s.151 of the Motor Vehicle Act . While ICBC rightly argues that breach of a statute is not proof of negligence, I find this argument unhelpful. I do not rest my analysis of Clark’s negligence on his breach of the Motor Vehicle Act . [ 15 ] ICBC argues that Clark’s actions were justifiable on the basis that he was in the “agony of collision”. The “agony of collision” principle holds that, in an emergency, the standard of care for a driver is lowered. Less than perfect action is excusable. In Manhas v. Froese , [1980] B.C.J.

No. 1701 (QL) at para. 11 , Justice Gould quoted from Horsely and Fosters Manual of Motor Vehicle Law , 2 nd ed, at p. 464, explaining the “agony of collision” principle” Where an emergency arises, it is not necessary far a driver to possess extraordinary skill, presence of mind, poise or self-control, and his failure to act as an ordinary person in an emergency is not held to be negligence.

He is not necessarily required to adopt the most prudent course and is entitled to a reasonable time, depending on the circumstances, to exercise his judgment as to what steps should be taken to avoid a collision […] [ 16 ] I have already rejected the Defendants’ theory that the actions of the driver of the white car were negligent or caused the Accident. On the same basis, I find that there was no “emergency” that would lower Clark’s standard of care in the circumstances.

While Clark may have perceived the actions of the white car as causing an emergency, I find that he should not have, and his reaction was not justified. Panicking during a normal driving event does not engage the “agony of collision” principle. Clark did not take steps to avoid a collision, but rather acted negligently and caused a collision by changing lanes and colliding with the Claimant. [ 17 ] Moreover, even if the white car did swerve dangerously into Clark’s lane, which I find that it did not, his actions were nevertheless negligent.

An emergency excuses some behaviour, and a driver in an emergency is not required to take the “most prudent course”, but I find that he is required to take a prudent course. Even under the lowered standard of care in the context of the “agony of collision”, Clark’s actions were not, on any standard, prudent. Clark should not have swerved into the HOV lane without first checking that it was safe. If it was not safe, (which it was not in under this circumstance), he should have stayed in his lane.

His actions are not those of a reasonably prudent driver in any context, imminent collision or no, and were in breach of his duty of care. [ 18 ] Therefore, ICBC is obligated to indemnify the Claimant on the basis that the Claimant has a claim in negligence against Clark. [ 19 ] The Accident is not a “hit and run”. It was directly caused by the negligence of the Defendant Clark, and therefore the Claimant is entitled to recover from ICBC the entire amount of his damages.

I order that ICBC reimburse Clark $500, which is the amount of the deductible paid by Clark to ICBC. [ 20 ] Pursuant to Small Claims Rule 20(2), I further order that ICBC pay the Claimant his filing fees, set at $100, service fees, set at $80, and prejudgment interest to September 2010, set at $8. The total payable by ICBC to the Claimant is $688. _______________________________ Glenn A. Urquhart, Q.C., Adjudicator