A recent Vancouver road rage incident caught on camera serves as a reminder that road rage doesn't pay - at least for the perpetrator. Within 2 minutes of appearing to punch a driver, the 26 year old road rage suspect was in handcuffs and may be facing assault charges. There are no reports yet of whether the driver sustained any injuries from the apparent punch. However, this incident raises an interesting question: Can a BC road rage victim claim against ICBC for personal injury or property damages resulting from the incident?
The Supreme Court of Canada and the BC Court of Appeal looked at this question carefully in the cases of Amos v. Insurance Corporation of British Columbia 3 S.C.R. 405 and Chan v. Insurance Corporation of British Columbia 16 B.C.L.R. (3d) 96 (C.A.).
In Amos, the plaintiff driver was shot when a gang attempted to hijack his car. The gang fled the scene and were never identified. The driver then sought no-fault accident benefits under Part 7 of the BC Insurance (Motor Vehicle) Act . The BC Supreme Court and Court of Appeal denied the driver's claim, however, the Supreme Court of Canada held that the shooting arose out of the driver's ownership, use and operation of his vehicle and he was therefore entitled to insurance coverage.
In Chan, the passenger of a vehicle suffered personal injuries after being hit by a brick thrown from an oncoming vehicle. The assailant fled the scene and was never identified. The passenger sued ICBC as a nominal defendant for damages resulting from the injuries she sustained.
Relying on Amos, the BC Court of Appeal held that the vehicle itself does not need to be the immediate cause of the injury as long as the use or operation of the vehicle contributes to or adds to the injury in some manner or if a connection is found between the use and operation of the vehicle and the injury. Therefore, because the operation of the unidentified vehicle had put the assailant in a position to throw a brick at an oncoming vehicle and escape, the court found that the passenger's injuries had arisen out of the use or operation of the unidentified vehicle and were subject to insurance coverage.
This principle equally applies to circumstances where the damage is to the vehicle and not the person. In ICBC v. Garnier, 2007 BCSC 265, the BC Supreme Court held that the plaintiff driver, Mr. Garnier, was entitled to insurance coverage after a frustrated driver exited his vehicle and smashed Mr. Garnier's vehicle several times with a baseball bat causing significant damage. The perpetrator was never identified. The BC Supreme Court held that ICBC was responsible for the property damage as a nominal defendant pursuant to s. 24 of the Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c. 231 because the assailant's road rage developed while he was using and operating his truck.
These cases deal with unidentified assailants. However, as long as either the assailant or the victim are insured by ICBC, the principle should apply equally to situations where the assailant is known.
Every case is dependent on its facts and the extent of available insurance coverage may vary depending on the circumstances. However, if you are a BC road rage victim and sustained personal injuries or property damage, chances are that ICBC will have to pay. If you are in this situation, give us a call for a free consultation.
See video of road-rage incident here.