The Small Claims Court judge found ICBC liable as a nominal defendant after an unidentified assailant damaged the Claimant’s vehicle with a baseball bat while both their vehicles were stopped at an intersection

Garnier v. Kilkenny, [2006] B.C.J. No. 1787, British Columbia Provincial Court

The Claimant, Mr. Garnier, sought damages from the Defendant, Mr. Kilkenny, alleging that he damaged Mr. Garnier’s vehicle during an assault with a baseball bat. ICBC was also named as a nominal Defendant pursuant to s. 24 of the Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c.231 (the “Act”).

The Claimant’s vehicle was damaged while stopped at an intersection by an assailant wielding a baseball bat. Following the attack, the assailant returned to his truck and left. The truck the assailant had been driving was that owned by the Defendant; however, the identity of the assailant was unknown. The Court found that there was no evidence identifying the Defendant Mr. Kilkenny as the perpetrator of the assault or the person responsible for the damage and dismissed the claim against him. The Court then considered whether ICBC should be liable pursuant to s. 24 of the Act.

The relevant portions of s. 24 of the Act state that if damage to property arises out of the use or operation of a motor vehicle and the name of the driver is not ascertainable and the owner is not liable, any person who has a cause of action against the owner or the driver, may bring an action against ICBC as nominal Defendant.

ICBC argued that, under s. 24, the Claimant must prove that someone is liable to the Claimant for negligent use or operation of a motor vehicle before compensation is available. Accordingly, the actions of the unidentified motorist in the case at bar would be intentional torts or criminal acts, but would not fall within the ambit of automobile liability coverage.

The Court relied on Chan v. Insurance Corporation of British Columbia, 16 B.C.L.R. (3d) 96 and found that the facts underlying the case at bar satisfied the “purpose test”. It was not possible to isolate the assault with a bat from the use or operation of the assailant’s vehicle. With respect to the “causation test”, the question is whether there is a sufficient nexus between the assailant’s use or operation of his vehicle and the damage to the Claimant’s vehicle. The Court found that the fact that the unknown assailant exited his vehicle, inflicted the damage and then returned to his vehicle, did not distinguish the nexus between the use or operation of his vehicle and the damage he caused to the Claimant’s vehicle.

In the result, the Court found ICBC liable as a nominal Defendant pursuant to s. 24 of the Act.

To stay current with the new case law and emerging legal issues in this area, subscribe here.