Court Says Plaintiff Should Have Questioned Hells Angels in Unidentified Motorist Claim

Reasons for judgement were published this week dismissing a Plaintiff’s unidentified motorist ICBC claim finding he failed to take reasonable efforts to follow up on the identify of the unknown motorist with the Hells Angels.

In the recent case (Gorst v. ICBC) the Plaintiff was riding a motorcycle and was passed by a group of bikers travelling in the opposite direction.  One of the biker’s entered the plaintiff’s lane causing him to take evasive action leading to his collision and injuries.  The biker carried on and remained unidentified.

The Plaintiff sued ICBC under the unidentified motorist provisions.  The Court found the unidentified biker was indeed partly liable for the crash but dismissed the claim finding the Plaintiff could have made further inquiries with the bikers as to the identity of the offending motorist.  The Plaintiff claimed he was fearful to do so as they were believed to be Hell’s Angels.  The Court found that was not a satisfactory excuse and in dismissing this aspect of the claim Mr. Justice Hori provided the following reasons:

[141]     In this case, the plaintiff suffered injuries in the accident and the oncoming motorist who caused the accident did not stop. Because of the plaintiff’s condition at the scene of the accident and the circumstances in which the accident occurred, it is not reasonable to expect the plaintiff to have taken steps to ascertain the identity of the motorist at the scene. However, the obligation to ascertain the identity of the unidentified motorist continues beyond the accident scene and its immediate aftermath (Slezak v. ICBC, 2003 BCSC 1679 at para. 42).

[142]     The plaintiff testified that following the accident, the IIO asked him to track down Ady Golic so they could determine whether he had any information about the accident. The plaintiff eventually tracked Mr. Golic down. The plaintiff asked Mr. Golic if he had seen the accident, to which Mr. Golic replied “no”. The plaintiff did not make any further inquiries of Mr. Golic but passed Mr. Golic’s contact information to the IIO.

[143]     The plaintiff knew that Mr. Golic was close to, if not a member of, the Hells Angels. Therefore, he was careful in how he approached Mr. Golic because he feared retaliation from the Hells Angels. The plaintiff felt that it was best to let the IIO handle any further communications with Mr. Golic.

[144]     After the accident, the plaintiff also learned that friends of his brother-in-law may have witnessed the accident. Therefore, the plaintiff took steps, through his brother-in-law, to contact those potential witnesses. Unfortunately, these potential witnesses had observed a different accident.

[145]     It is the plaintiff’s evidence that if the Hells Angels had not been involved, he would have done more to investigate the identity of the biker that crossed the centre line. He chose not to do so and allowed the IIO and the RCMP to conduct the investigation in order to keep himself and his family safe from retaliation by the Hells Angels.

[146]     The plaintiff testified that the IIO told him that they were going to collect information from everybody and investigate what happened. On cross-examination by ICBC, the plaintiff agreed that the IIO told him they would be looking to see if the police officer had committed any criminal act. However, the plaintiff testified that he does not recall the IIO advising him that they would seek out the identity of the bikers in the poker run. The plaintiff hoped that the IIO would identify the biker who crossed the centre line.

[147]     The plaintiff took no further steps to identify the biker who crossed the centre line. He did not follow up with the IIO to determine the status of their investigation. He did not take any steps to follow up with witnesses identified in the IIO investigation material when he eventually received it. The plaintiff did not contact the police officers involved in surveillance of the poker run to determine whether they had information to identify the biker nor did he make inquires of the establishments that the poker run visited that day to determine whether any of the bikers could be identified.

[148]     I have concluded that, on these facts, the plaintiff failed to make all reasonable efforts to ascertain the identity of the owner and driver of the motorbike following the accident. Simply relying upon the police to perform his obligations under s. 24(5) of the Insurance (Vehicle) Act was not reasonable in this case for the following reasons:

(a)  The plaintiff received no information from the IIO that they were seeking out the identity of the riders in the poker run. The advice received by the plaintiff from the IIO was that they were looking to see if the police officer had committed any criminal act. Therefore, it would not be reasonable for the plaintiff to rely on the IIO to identify the biker;

(b)  As in Becker and unlike Ingram and Hough, the plaintiff did not follow up with the IIO on their investigation. If the plaintiff was relying on the IIO to identify the biker, he should have been following up with them to determine the status of the investigation and, if necessary, to make his own efforts; and

(c)   As in Becker and Tessier, a number of individuals may have had information leading to the identification of the biker who crossed the centre line. Those individuals included the participants in the poker run, the police officers involved in surveillance, and the proprietors of the establishments that the poker run visited.

[149]     The plaintiff claims that he did not take any further steps to identify the biker because he feared retribution from the Hells Angels if he did so. However, I do not find this excuse compelling. There is no evidence that making inquiries of the Hells Angels about one of their members being involved in a motor vehicle accident would be the type of inquiry that would lead to retribution. Further, in order to operate a motorbike on the highway, it must be licenced and insured. There is no evidence that an injury claim against one of their members would cause the Hells Angels any difficulties.

[150]     More importantly, the plaintiff took no steps to follow up with the IIO, to contact the police officers on surveillance that day, or to contact the proprietors of the establishments that the poker run visited. Even if the plaintiff felt uncomfortable contacting the Hells Angels himself, I do not see how contacting these individuals, particularly the police and the IIO, would lead to retribution from the Hells Angels. At a minimum, contacting these individuals are reasonable efforts that the plaintiff ought to have made in the circumstances.

[151]     For all of these reasons, I find that the plaintiff has failed to make all reasonable efforts to ascertain the identities of the owner and driver of the motorbike that crossed the centre line. Therefore, the plaintiff’s action against ICBC is dismissed.