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ICBC Hit & Run Claim Dismissed at Trial due to Failure of Injured Claimant to Question Hells Angel

If you are injured in a hit and run accident, it is not enough for you to simply call the police and report the motor vehicle accident to ICBC.  The law in British Columbia requires you to take certain steps to identify the driver who fled the scene.  If these steps are not taken, then ICBC can lawfully reject your claim and you will not be entitled to any compensation even if your injuries are serious and life changing.

ICBC is furthermore under no legal obligation to advise injured claimants of the steps that must be taken.  ICBC is permitted to stay silent and they are not required to provided you with any direction.  If you do not take the proper steps, then ICBC can deny your claim at any time even years after the motor vehicle accident.

See this video where Renn Holness, the founding partner of Holness and Small Law Group, explains the steps that must be taken in a hit and run claim.

The recent case of Gorst v. British Columbia (Public Safety and Solicitor General) 2020 BCSC 813 involves a hit and run claim gone wrong where the claim was dismissed at trial because the injured claimant did not take the necessary steps to identify the unknown driver who fled the scene in a hit and run accident.

In this case, the injured claimant was a motorcyclist who was passed by a group of motorcycles traveling in the opposite direction.  The motor vehicle accident occurred when one of these motorcyclists crossed the centre line causing him to take evasive action and lose control of his motorcycle causing him injuries.  Unfortunately, this motorcyclist fled the scene of the accident and remained unidentified.

At trial, the trial judge determined that the unidentified motorcyclist was partly at fault for the motor vehicle accident.  The claim was dismissed, however, because the trial judge found that the injured claimant failed to take the necessary steps to identify this driver.  The main issue concerned the injured claimant’s failure to follow up with a witness who stopped to see if he was okay after the accident.  This person was known to him, but not well.  What he did know of this person was that he was close to, if not a full patch member, of the Hells Angels.  Following the collision, he followed up with this witness who told him he did not see what happened.  When the Independent Investigations Office of British Columbia became involved to investigate the accident, the injured claimant provided them with this witness’ name and contact information and left the matter to them to investigate.  He took no further steps to identify the biker who crossed the centre line and he explained that he did not do this because he feared retribution by the Hells Angels.

The trial judge, after reviewing the steps taken by the injured claimant, determined that he failed to “make all reasonable efforts to ascertain the identities of the owner and driver of the motorbike that crossed the centre lane” and he dismissed the claim:

[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.

To read the article in the Vancouver Sun on this case, see this link.

If you have been involved in a hit & run accident, contact us for legal advice.  The requirements to identify the unknown driver are time sensitive, so time is of the essence.

Tags: Hit and Run, ICBC Claims

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"Jacqueline A. Small is a personal injury lawyer with over 15 years of experience and a partner with Holness Law Group."

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