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Achieving-Justice

Epitaph for Humboldt?

“Please help us raise money for the players and families affected. Money will go directly to families to help with any expenses incurred.”

As of Monday morning, this GoFundMe campaign had amassed $11.7 million of their $4-million goal.

The aftermath of the horrific crash has pulled, hard, at our heart strings. So many lives lost in one instant, most of them young people full of promise. And we are just starting to learn about the life-long injuries sustained by the survivors.

We ache for a way to express our feelings and to show our support. The GoFundMe campaign allows us to put our money where our hearts are.

I suspect those directly impacted by this tragedy feel each and every donation, big or small, like an embrace.

And the growing total might offer solace as a monumental demonstration of love and support. Those of us contributing to that total might feel that we are making a concrete difference in a situation where so much is broken that is impossible to fix.

It’s a beautiful thing. Very beautiful.

I wonder, though. By shining the full weight of our attention, love and financial support on this tragedy and those directly impacted by it, might we be missing out on a broader opportunity?

We were in varying degrees of shock as we heard the initial news headlines of a crash resulting in 15 (now 16) dead and an aftermath suggestive that the rest of the 29 bus occupants had suffered dramatic injuries.

The same feelings do not arise from news reports of the one or two killed here and there on Canada’s roads. Perhaps because we hear about the one-off casualties so often?

But if we put our minds to it, the magnitude of losses from those drip, drip, drip fatalities are much more shocking.

Transport Canada statistics show 1,858 fatalities in 2015 (the most current year easily available online). Averaging that number over 365 days is an average of five deaths per day.

I am submitting this column on Monday, April 16, 10 days after the bus crash. Running the average, likely 50 Canadians have been killed in road traffic incidents over that time period.

British Columbia averages would have a likelihood of eight to nine British Columbians dead over that 10 days. With another eight to nine to come in the next 10 days.

And the next after that.

I doubt that the much larger numbers of other families who have lost loved ones on our roads and have been left with life altering injuries since April 6, begrudge the love and support we are showing to the victims of that disaster.

Nor that those who will continue to be affected by the ongoing, drip, drip, drip of crashes and collisions will either.

But imagine a campaign that would give us an opportunity to collectively show our love and support to every family losing a loved one, and everyone suffering life altering injuries on our roadways.

One that allows us to put our money where our hearts are. Not to reimburse the expenses of the victims and victims’ families that will largely be reimbursed by insurance companies. Rather, to go toward stopping the incessant drips.

It is common for the families of those lost to various medical conditions and diseases to ask for donations to particular research organizations in lieu of flowers at funerals.

There are also mass, annual events like the “Run for the Cure” and other fund raising activities and campaigns where those affected can put our money where our hearts are.

Why don’t we have the same for the shocking, continuing and entirely preventable tragedies on our roadways?

I imagine a national road safety society. The goals of that society might be to:

  • Ensure that we continue to feel the ongoing senselessness of road tragedies, not just the time to time when a tragedy the magnitude of what occurred on April 6, hits the news. Those losing loved ones and those left with life altering injuries would be encouraged to share their stories which the society would circulate through social media and other platforms;
  • Identify concrete steps that can be taken to fix what’s broken with our driving attitudes and the laws that not only fail to address them but perpetuate them (such as the ongoing ridiculously inconsistent laws that prohibit hand held but not hands free cell phone use while driving, in the face of clear science that both are similarly distracting);
  • Lobby the governments of each of our provinces and territories to effect changes and also to make road safety a much higher priority in terms of resources; and
  • Conceive of and implement road safety campaigns on a national level.

Are there those among us who might choose to put our bruised hearts in a direction that might prevent these ongoing, daily tragedies and work to create such a society?

The society would have legs beyond the news event of this tragedy that will inevitably pass from our collective consciousness like every other news event. It will give all of us impacted by injuries and deaths on our roadways a way to make a real difference in prevention.

Could there be a better memorial of those killed and so profoundly impacted by this tragedy than such a society?



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Do we learn from tragedy?

The Humboldt Broncos tragedy: What can we learn from it?

The RCMP are not speculating about the cause of the horrific crash before gathering and analyzing all the evidence. Nor should they.

But I will.

I think it’s important, particularly while the horror of the crash is still fresh and dominating headlines. And while we are continuing to feel shock and to shed tears for the families of the 15 dead and the many more left with life altering injuries.

A crowd funding effort reached $4.9 million in two days. Flags are flying at half mast.

But that all will pass. It always does.

As it did for the six members of the Fiddler family whose simple white crosses continue to adorn the same intersection, known locally as Armley Corner, approximately 30 kilometres north of Tisdale, Sask.

And as it does for every other of the approximately 1,800 men, women and children who die every year on Canada’s roads, approximately 315 of whom lose their lives in British Columbia.

I feel that if the horrible and consistent consequences of inattentive driving are felt strongly enough, our driving attitudes might change. We might choose not to engage in cell phone discussions, or text, not because of a potential fine but because we are actively increasing the chance of causing those consequences.

But cause and effect needs to be drawn between inattentive driving and those horrible consequences.

Otherwise, it’s just a horrible “accident." What do we say about accidents?

  • We say accidents happen
  • Accidents are unavoidable
  • They could happen to anyone.

But wait. Might it have been the intersection’s fault? There have now been two horrific crashes at Armley Corner.

That mentality led to the addition of flashing lights to supplement the stop signs facing eastbound and westbound traffic following the June, 1997, tragedy to the Fiddler family.

The Fiddler vehicle reportedly failed to stop at one of those stop signs, crashed into a grain truck and burst into flames.

I come from Saskatchewan. I fondly remember the navigational ease of highways extending due north/south, intersecting with highways extending due east/west. And I continue to be frustrated by the twisty-turny roadways in British Columbia, weaving as they must around lakes, rivers and mountain ranges.

I would say that those twisty-turny roadways keep us on our toes, but quite obviously that’s not the case with the prevalence of rear-ender and the vast majority of other crashes that would have been avoided with a higher degree of driver attention.

Armley Corner is one of those typical Saskatchewan intersections. Straight as an arrow in both intersecting directions.

And this is not one of those mountain pass situations with a rock face on one side and sheer cliff on the other. The surrounding terrain is flat as a pancake.

There is a stand of trees on the southeast corner. As you can see, if you check Google maps, they are not crowding the intersection.

It was 5 p.m., at a time when the tractor-trailer driver was facing a setting sun, but that setting sun was not in the direction of the approaching bus.

I am going to stick my neck out to predict that this crash would have been either avoided, or the horrific results significantly mitigated, had both drivers been paying focused attention to the task at hand.

  • Was it the one driver who was inattentive?
  • Was it the other?
  • Was it both?

It doesn’t matter, in my view. Absolutely nothing will be gained by vilifying whoever it is at whom the finger(s) will inevitably be pointed.

No more than if one of the drivers had been alcohol impaired.

What must be vilified is the inattention itself. Just like alcohol impaired driving must be vilified.

Absolutely nothing, in my view, is gained from vilifying those for whom the increased risk has resulted in a crash.

Please, let this horrific tragedy lead to each of us channelling our raw emotions of shock and sadness toward taking a much higher level of personal responsibility and attention behind the wheel. And developing a much higher expectation of the same from others.

We continue, in this province and country, to allow drivers to actively disengage direct attention to the roadway and engage in hands free cell phone discussions. We do so in the face of overwhelming scientific evidence that hands free cell phone use is just as dangerous as hand held.

If we fail to make such overt distractions illegal, what are we saying to each other and ourselves about the level of priority we should be putting on attention behind the wheel?

I am not intending to hint or suggest that cell phone use or texting had anything to do with this crash. As dangerous as they are, they are not the boogie men. Our attitudes toward them are a symptom of overall attitudes about driving.

When the flags go back up and the headlines fade, please let the six white crosses be a reminder that what occurred this past Friday was nothing new, and is ongoing at a horribly shocking pace of approximately five road traffic fatalities every day in Canada.



Bad drivers should pay

“The crash occurred because I was texting, not because I was drunk. Now pay me the money!”

That’s my blunt paraphrasing of a small claims lawsuit against ICBC. And it makes me feel sick to my stomach.

The lawsuit arose out of a single-vehicle crash that occurred on Feb. 14, 2016. The driver had collision insurance on her 2013 Hyundai Santa Fe.

Collision insurance entitles you to ICBC reimbursement for damage you cause to your own vehicle.

It’s a fair and reasonable insurance product, particularly if you buy into the “everyone makes mistakes” notion. That’s what insurance is for.

Fire insurance kicks in if you inadvertently leave a pot of oil cooking on the stove and burn your house down. Similarly, collision insurance is for when you do an “oopsy-woopsy” behind the wheel and your own vehicle is damaged or destroyed.

Remember the news story about the Ferrari that was run into a utility pole? According to the story, ICBC had already paid close to $800,000 for the damage to the car, and proceedings were ongoing for even more. That’s collision insurance.

Thank goodness for those of us concerned about ICBC insurance premiums, Santa Fes are worth a whole lot less than Ferraris. The claim in this lawsuit is “only” $25,000.

ICBC is defending the claim with the allegation that the driver breached the terms of her policy by driving while intoxicated to the extent that she was incapable of controlling the vehicle.

Did you know that by driving drunk you not only put innocent lives in danger, but you might not have any insurance protection?

There is a “Prohibited Use” section of our legislated insurance policy (Section 3 of Schedule 10 of the Insurance (Vehicle) Regulation, B.C. Reg 447/83. In sub-paragraph 1 it says that ICBC “…is not liable to an insured who breaches this condition”.

Down in sub-paragraph 9, it says that “It is a breach of this condition if an insured is operating a vehicle while under the influence of intoxicating liquor or a drug or other intoxicating substance to such an extent that the insured is incapable of proper control of the vehicle”.

An interim court decision exposes the distasteful dialogue at the beginning of this column. The decision can be found here: Seeley v. ICBC, 2018 BCPC 59 (CCanLII). In the second paragraph the judge says this:

[2] At issue is a single vehicle accident in which Ms. Seeley was the driver and sole occupant. At the time, she evidently gave two different versions of what happened leading to the accident. The one she stands by is that she was texting. The Defence theory is that Ms. Seeley was impaired at the time of the accident and was incapable of driving her vehicle in a safe manner. The Defendant also alleges that the Claimant made false statements to the Insurance Corporation of British Columbia, including that she had nothing to drink before the accident.

While illegal, it is not a breach of your insurance policy to text and drive. It’s worth $25,000 to Ms. Seeley to establish that it was texting that caused her to lose control and crash her vehicle instead of alcohol impairment.

Actually, it’s worth a bit more than that. ICBC is counterclaiming against her for the $6,388.77 that ICBC paid to replace the power pole that was sheared in half as a result of the crash.

Choosing to text while driving is not an “oopsy-woopsy”. Neither is talking on a cell phone while driving. In my view, making the conscious choice to participate in such behaviours that distract you from the very important task at hand should void your insurance coverage just like driving drunk.

If bad drivers took financial responsibility for their bad choices, the rest of us wouldn’t be facing increasing insurance premiums.



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Honesty is not enough

I wrote last week about credibility being “everything” in a personal injury claim. And that being scrupulously honest is critical.

But even scrupulous honesty is not enough. Imperfect memories can result in scrupulously honest people getting things wrong.

And getting things wrong, even when completely innocent, can destroy credibility almost as harshly as dishonesty.

Because it inevitably raises the question: If you remembered that part wrong, how reliable is anything else coming out of your mouth?

But there was a crash. You were taken to the hospital. You’ve been seeing a doctor and therapists. Why does your memory even enter into the picture? Don’t the facts speak for themselves?

Yes, they do — for the first weeks or months after a crash. Not so much during the most critical time frame of a personal injury claim: after fractures have healed and connective tissue injuries have transitioned from acute to chronic.

It’s that final plateau. Whatever symptoms and functional limitations you are left with after you’ve done everything you can to get better.

The constant headache has gradually dialed back to once or twice a week, for example.

Your neck flares up only when holding a constant position for too long, like with prolonged computer work, so you have to pace your work day.

Otherwise, it’s just a nagging ache.

You look fine to your co-workers and friends; no different from how they remember you before the crash that occurred three and a half years ago.

This is when personal injury claims become challenging and credibility becomes so very critical.

You participate in a standard litigation process called an Examination for Discovery. It’s an event where an ICBC defence lawyer asks you all sorts of questions. You are under oath and everything is recorded.

You are asked about how you were 3 1/2 years ago, before the crash. That’s a long time ago.

“Did you have headaches before the crash?”

With no recollection of anything of a headache problem, you respond: “No. No different than anyone else would have headaches.” 

What does that mean?  How often does “anyone else” have headaches? I am lucky, by the way. I get a headache only a couple of times a year, after overdoing alcohol the night before.

You don’t remember. Your lawyer cautioned you never to guess, but the defence lawyer is suggesting that your ongoing headaches might be no different than they were before the crash. You know with absolute certainty that’s not the case.

You are specifically asked if you got headaches more than once every couple months. And if you ever had headaches lasting more than one day. You very honestly deny both propositions.

But then the defence lawyer pulls out a big, black binder containing your medical records. They include the notations of a massage therapist you had started seeing because you had benefits through work.

You are pointed to a notation dated six months before the crash: “H/A x 3 days.” And one two months later: “2 H/As since last wk’s tx.”

The first was a bad flu. The second was an incredibly stressful time at work. Whatever your “excuses” (ICBC characterization), you got it wrong.

Had you taken the time to review your medical records before the examination for discovery, you would have seen those notations and refreshed your memory. You could then have confidently described your pre-crash headache pattern, getting it right and maintaining your credibility.

Instead, you have lost your ability to credibly describe the difference between your ongoing headache pattern and the pattern leading up to the crash. That has seriously compromised the chance of achieving fair compensation for that difference.

Do you have to remember every little date; every little detail? No.

But for a hope at fair, financial compensation for consistent, regular headaches for the rest of your life you better get your pre-crash headache pattern right.



More Achieving Justice articles

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About the Author

Paul Hergott began practicing law in 1995, in a general litigation practice. Of the various areas of litigation, he became most drawn to, and passionate about, pursuing fair compensation for injured victims. This gradually became his exclusive area of practice.

In 2007, Paul opened Hergott Law, a boutique personal injury law firm in the Central Interior, serving personal injury clients from all over British Columbia. Paul’s practice is restricted to acting only for the injured victim, never for ICBC or for other insurance companies.

Paul became a weekly newspaper columnist in January of 2007, when his first column entitled “It’s not about screwing the Insurance Company” was published. 

Please feel free to email or call Paul (1.855.437.4688) with legal issues you might like him to write about in his column, or to offer your feedback about something he has written.

Email:   [email protected]
Firm website:  www.hlaw.ca
Achieving Justice Legal Blog:  http://www.hlaw.ca/category/all-columns/
One Crash is Too Many Road Safety Campaign: www.onecrashistoomany.com
Google Plus:  https://plus.google.com/+HlawCanada/posts
Facebook:  www.facebook.com/personalinjurylawfirm
Twitter:   twitter.com/Hergott_Law



The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet does not warrant the contents.

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