When is a Highway Not a Highway?

A hit-and-run car accident poses unique legal challenges for the injured parties. After all, who do you sue if you never saw the driver who hit you? Fortunately, B.C. law provides an answer in most cases–namely, that ICBC is responsible for covering injuries from any hit-and-run arising from the “use or operation of a vehicle on a highway in British Columbia.” Under the 2021 switch to no-fault insurance in B.C., ICBC remains responsible for covering recovery benefits for injured parties through its “Enhanced Care” program. In addition, ICBC covers non-vehicle property damage, such as to a fence or bicycle, through its hit-and-run program. (ICBC will pay to repair vehicle damage if you have either collision or hit-and-run insurance. If not, you must pay to repair your vehicle yourself.)

What qualifies as a “highway”? The B.C. Court of Appeal recently confronted this issue in its December 2018 decision on Adam vs. Insurance Corporation of British Columbia. This case involved a hit-and-run accident that occurred in Chilliwack in 2010. The plaintiff was camped out in a vehicle parked along the “Peg Leg Sandbar,” which is a “sandbar close to the eastern shore of the Fraser River in the Chilliwack area,” according to court records. The sandbar itself is only above water at certain times, and it is not directly accessible via public roads. In fact, the nearest road “ends some undocumented distance before the shore of the east bank of the Fraser River,” which requires motorists to leave the road and “drive on a strip of land” to enter or exit the sandbar when the water levels are sufficiently low.

With that background in mind, here is what happened to the plaintiff. Early one morning while camping on the sandbar, the plaintiff awoke to find “an unidentified white Jeep occupied by young males” parked next to his camper. The plaintiff said the unidentified men were attempting to steal his cooler. The plaintiff chased the men away, but they returned a short time later and again tried to steal the cooler, as well as the plaintiff’s generator. As the plaintiff moved to scare the men off a second time, the Jeep “suddenly drove away” and struck the plaintiff. As a result, the plaintiff sustained a serious knee injury that required surgery.

As the plaintiff could never identify the Jeep or its occupants, he filed a personal injury claim against ICBC. Before B.C. Supreme Court, ICBC maintained the sandbar was not a “highway,” and therefore it was not liable for the plaintiff’s injuries under the B.C. Insurance (Vehicle) Act (IVA). The trial judge disagreed and ruled in favour of the plaintiff following a summary trial.

Court of Appeal: Sandbar is a Destination, Not a Route or Connection

But the Court of Appeal allowed ICBC’s appeal and entered an order dismissing the plaintiff’s personal injury claim. The underlying legal question was straightforward: Is a sandbar a “highway” under the IVA? This, in turn, required looking at the statutory definition of “highway” under the B.C. Motor Vehicle Act (MVA), as the IVA refers to that definition when establishing ICBC’s liability for hit-and-run accidents.

The MVA states a highway “includes” all of the following:

• Every highway within the meaning of the B.C. Transportation Act.
• Any “road, street, lane or right of way designed or intended for or used by the general public for the passage of vehicles.”
• Any “private place or passageway to which the public, for the purpose of the parking or servicing of vehicles, has access or is invited.”

The first category–i.e., highways under the Transportation Act–is further defined as any “public street, road, trail, lane, bridge, trestle, tunnel, ferry landing, ferry approach, any other public way or any other land or improvement” that becomes a highway through any one of several enumerated methods. Of relevance here, the plaintiff argued that a sandbar is a highway under the Transportation Act as it is a “a common law dedication made by the government or any other person.” Additionally, the plaintiff maintained that the methods specified in the Transportation Act are nonexclusive–in other words, the use of “any other land or improvement” means that no positive steps are necessary to classify the sandbar as a highway.

The Court of Appeal disagreed. By the plaintiff’s reasoning, the court said, every public road would already be a highway. That was not the legislature’s intent. Rather, it was to require “that a public highway must be established as a highway according to specified methods.”

As for the plaintiff’s argument that the sandbar was properly established as a highway under the Transportation Act by “common law dedication,” that was not supported by the evidence presented to the trial judge. Among other issues, there was no evidence “as to who owns the sandbar” in the first place, much less whether the owner “dedicated” it for use as a highway. Indeed, it was possible the owner of the sandbar has no idea that private vehicles are using it all.

Even assuming there was such a dedication, the Court of Appeal said the sandbar would still not qualify as a highway under the Transportation Act–and thus under the MVA and IVA–because it is not a “way.” A public way refers to “ route or passage from one place to another, used as of right by the general public as a route or connection.” But the court observed that the sandbar was a “destination in itself.” That is to say, when the sandbar emerges from the water, people travel to it in order to engage in fishing, camping, or other forms of recreation. Nobody is using the sandbar as a means to get from one place to another. The mere fact vehicles “traverse” the sandbar does not, in and of itself, make it a public way or highway.

Finally, the Court of Appeal agreed with the B.C. attorney general, who intervened in the case, that accepting the plaintiff’s definition of the sandbar as a highway would “result in uncertainty as to the dimensions and location of a highway.” Given the sandbar’s above-water presence is “intermittent and seasonal,” it would be “impossible to know at any time where the ‘highway’ is actually located on the ground.”

Need Help Dealing with ICBC? Call Preszler Injury Lawyers Today

Although this case presented an unusual scenario, it did not alter the general scope of ICBC’s liability for hit-and-run accidents. If you have been injured in any kind of car accident and need assistance from a qualified Vancouver ICBC claims lawyer, contact the Preszler Injury Lawyers today to schedule a free consultation.

Source:

CanLII