What is the “essence” of the test for determining whether a claimant had pursued the driver as resolutely and resourcefully as they would have done if the claimant intended to pursue any right of action arising out of the accident?
British Columbia, Canada
The following excerpt is from Nicholls v. Insurance Corporation of British Columbia, 2011 BCCA 422 (CanLII):
Taylor J.A. went on to identify the “essence” of the test, which he traced back to Hinkson L.J.S.C. (as he then was) in King v. British Columbia (Attorney General) (1969), 1968 CanLII 595 (BC SC), 66 W.W.R. 223, 1 D.L.R. (3d) 57 (B.C.S.C.), following Rossiter v. Chiasson, [1950] O.W.N. 265 (Ont. H.C.), noting (at para. 13): In the King case, which was decided under [similar language in the predecessor to s. 24(5)], the judge (at p. 266) [W.W.R.] held the appropriate test to be whether the claimants had “pursued the investigation to identify the vehicle and its owner and driver as resolutely and resourcefully as they would have done in like circumstances” had there been no such provision. To those words, Taylor J.A. would have added the words “if the claimant intended to pursue any right of action which he or she might have arising out of the accident.”
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