Executive Summary: Key Legal and Evidentiary Issues

• ICBC applied for summary dismissal under Rule 9-7 of the Supreme Court Civil Rules.

• The plaintiff claimed injuries from hitting a truck tire on the highway, alleging negligence by an unknown driver.

• Liability was pursued under section 24 of the Insurance (Vehicle) Act, which requires “all reasonable efforts” to identify the unknown party.

• The plaintiff failed to take investigatory steps after the incident, including contacting RCMP or revisiting the scene.

• Classified ads placed by plaintiff’s counsel were found insufficient as the sole investigative measure.

• The court dismissed the claim, finding the plaintiff did not meet the statutory threshold under section 24(5).

Facts and outcome of the case

The case arose from a single-vehicle collision that occurred on October 28, 2018, south of Ladysmith, British Columbia. The plaintiff, Thea Analise Eberhardt, was driving southbound on the Trans-Canada Highway when she struck a large truck tire lying on the road. It was dark and raining at the time. She was unable to avoid the tire and hit it directly, resulting in damage to her vehicle. Her young child was in the back seat during the incident.

She later alleged that her injuries resulted from the negligence of an unknown vehicle operator or owner who had left the tire on the highway. She sought damages under section 24 of the Insurance (Vehicle) Act, which allows a claimant to sue ICBC as a nominal defendant in cases involving unidentified drivers or vehicles. To succeed, however, section 24(5) of the Act requires the plaintiff to prove that all reasonable efforts were made to identify the unknown parties.

The plaintiff reported the incident to ICBC the next morning but did not indicate at that time that she had suffered personal injury or would be pursuing an unidentified driver claim. She did not contact police, revisit the scene, or collect evidence such as photos or details about the tire. Months later, her legal counsel placed newspaper ads seeking witnesses, but no further investigatory efforts were made. The plaintiff claimed that her failure to act was due to personal circumstances, including parenting responsibilities, work obligations, and an abusive relationship.

Justice Saunders acknowledged these personal difficulties but concluded that reasonable investigatory steps were still available to the plaintiff and had not been taken. These included contacting police or the Ministry of Transportation, canvassing the area, or using social media. The court found that the plaintiff had not acted as resolutely or resourcefully as required under section 24 and failed to meet the statutory burden of proving that the identity of the driver or owner was not ascertainable.

As a result, the court granted ICBC’s application for summary dismissal. No damages were awarded, and although the decision did not specify costs, they would typically follow the result in favour of ICBC.