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Achieving-Justice

Pedestrians must be careful

It’s downtown Vancouver. Eastbound lanes of traffic are at a complete stop for a red light. The driver of an eastbound pick-up truck illegally veers into the westbound lanes to skip ahead to a left-turn lane.

His licence is suspended. He has three previous convictions for driving while prohibited. He had no business being on the road in the first place, let alone his illegal manoeuvre.

Pedestrians commonly cross mid-block on that street. Twenty-two-year old Veronica Howell is doing just that. She walks through the stopped eastbound lanes.

When Veronica gets to the centre line, she slows or stops and looks to her right for westbound traffic. Traffic is clear so she starts across the westbound lanes.

Clear except for the pick-up truck coming from the wrong direction, driven by the prohibited driver.

Veronica is thrown up onto the hood before landing on the ground unconscious and bleeding. She has life threatening injuries including a fractured skull.

The prohibited driver doesn’t stop.

For a play by play of the incredible police work performed by the Vancouver Police Department to identify the hit and run driver, read the court decision of Madam Justice MacNaughton (Howell v. Machi, 2017 BCSC 1806). [

Who do you think is at fault in this horrible hit-and-run collision?

Just like motorists have a legal obligation to keep a lookout for drunk pedestrians wandering around a highway on a dark night (see my previous column, Assigning fault in pedestrian death), pedestrians have a legal obligation to look out for prohibited and illegal drivers.

Veronica had a few strikes against her:

  • She was not crossing in a crosswalk, or at an intersection, in busy rush-hour traffic;
  • She was wearing a burgundy jacket and grey tuque, making her less visible;
  • She did not recall hearing the pickup truck coming, even though a witness had heard it from further away across the street;
  • Despite not being a driver herself, she should have been aware of the possibility that a driver might illegally pull around to access the left turn lane ahead; 
  • She didn’t look to her left.

Madam Justice MacNaughton concluded that Veronica was 25 per cent at fault.

Veronica, who was left with permanent, disabling injuries, will recovery only 75 per cent of the value of her lifetime of income losses, pain and suffering, future care and other harms and losses that were assessed by the court.

The law imposes an obligation on all road users to take reasonable care for our own safety, as well as the safety of those around us. That obligation is maintained regardless of how illegal, careless or outrageous the conduct of other road users.

Who has the higher moral obligation to be cautious, though, as between motorists and pedestrians? 

Instead of being angry with jaywalking pedestrians who you come close to mowing down, how about be angry with yourself for not driving with a level of care that would have you calmly anticipating and prepared to react to such conduct.

Pedestrians, you cannot count on drivers to follow the law any more than they can count on you. Please keep this case in mind as you make your way on our roadways.



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Law of slip and falls

With another winter season upon us,  I am going to share a little bit about the law of slip and falls.

The law isn’t written in some law book, by the way.  

It evolves sort of like the rules of chess played by my son with my father. A rule might fit most situations, but if it gets in the way of my son’s progress, he changes it. 

My son manages to win most of the time.

The evolution of the law is different in that it doesn’t favour one litigant over another. It favours justice.

To learn the law about slip and falls, or any other subject matter, you need to read the very carefully considered and explained decisions of judges who have decided the outcomes of lawsuits.

Don’t call me a forked-tongued, slippery snake of a lawyer for not giving you clear, straight answers about slip and falls. The best I can do is to share about general legal principles.

Please consult with a lawyer for guidance regarding any particular fact pattern.

Legal principle: an owner or occupier has a legal obligation to take reasonable care in the circumstances to make premises safe.

A justice of the Supreme Court of Canada noted in one case:

“Ice is a natural hazard of Canadian winters. It can form quickly and unexpectedly. Although it is an expected hazard it is one that can never be completely prevented. Any attempt to do so would be prohibitively expensive.” (Mr. Justice Cory in Brown v. British Columbia (Ministry of Transportation and Highways), [1994] 1 S.C.R. 420).

The law has evolved to recognize the practical impossibility of maintaining walking surfaces that are 100 per cent clear of ice and snow 100 per cent of the time. Owners and occupiers are required only to exercise “reasonable care.”

Do you exercise a reasonable level of care to avoid those visiting your home from facing dangerously slippery surfaces? You are an owner, or an occupier, of that driveway; the sidewalk leading up to your front steps; those front steps.

Are you actively looking after the safety of couriers, delivery drivers, guests, young folks selling cookies? Your duty of reasonable care also extends to unwelcome door to door solicitors.

Do you take precautions, like the application of sand or ice, to prevent icy conditions from developing? Do you monitor those walking surfaces so that you can take action to remove ice and snow as it develops?

What about the sidewalk bordering your home? 

No, you don’t own it, but there are bylaws in both Kelowna and West Kelowna requiring you to clear snow and ice from those sidewalks within 24 hours of accumulation.

Another legal principle:  a pedestrian has a legal obligation to take reasonable care for their own safety.

You have to expect slippery walking surfaces during a Canadian winter. If you don’t, you’ve become spoiled.

That’s a danger created by those owners and occupiers who have been struggling to keep you safe. The higher the levels of protection to keep you safe, the less care you are likely to take for your own safety.

The law expects you to remain diligently careful about your own safety.

Wear footwear appropriate to a Canadian winter. You can bring your indoor footwear in a bag.

Keep a diligent lookout for slippery conditions. Keep in mind the words of Mr. Justice Cory that ice can never be completely prevented.

My translation: Assume the possibility of ice every step you take.

Take extra care when walking on sloped surfaces, stairs and in freeze-thaw temperature conditions.

Encounter a dangerously slippery surface?

  • Stay off it!
  • If you have to, tromp through snow to go around it.

What if there is a fall

If all property owners and occupiers took reasonable care for the safety of those coming on their premises and all pedestrians took reasonable care for their own safety, we would virtually eliminate slip and falls.

But that might be a bit much to expect in our world, so slip and falls will continue to occur.

For most slip-falls, the most significant consequence is a blow to our pride and perhaps a bruise. Some result in fractures. Most fractures resolve completely within a few weeks.

Other slip-and-fall injuries can be life changing. It is those that most warrant the involvement of a lawyer to assist in assessing legal liability.

It can be unclear, at the time of a slip and fall, how significant and impactful the injury might be. As a precaution, I recommend the following:

Preserve the evidence of at the scene as immediately as possible. Hopefully, you or someone you are with will have the presence of mind to take photos as well as snippets of video of the scene to avoid a dispute as to what the conditions were. 

Maybe there are security cameras? Talk to nearby homes / businesses to have any potential footage preserved;

Preserve your memory of what occurred, as well as the memories of any witnesses while memories are still fresh. Journal, with as much detail as you remember, everything about the incident. 

When I say “as much detail as you remember," I mean that. What did you notice or not notice about the conditions as you approached the point where you fell? Which foot lost traction? How exactly did you go down? What did you notice about the walking surface while you were on the ground?

Preserve your footwear. A common recommendation is to keep them off to the side and not wear them. The more you wear them, the more their tread will be worn. You want to be able to show as robust a footwear as possible.

Have a consultation with a personal injury lawyer with expertise in slip-and-fall cases as immediately as possible. You might have difficulty finding a lawyer to assist you, because these cases are notoriously difficult to prosecute. 

Keep calling. Follow whatever further recommendations you are given.

I wish all of you a safe winter season. As I’ve written a number of times over the years, the very best claim is no claim at all.



Secret to avoiding accidents

An oncoming driver turns directly across your path.

You don’t have a chance. There’s only a split second between forward movement of the turning vehicle and impact.

You’re at full roadway speed. Add the acceleration of the turning vehicle and the impact is a dramatic one.

Life -ong consequences can flow from far less dramatic collisions. These crashes are life changers, if not enders.

If ever there was a preventable crash, it would be this one.

No special skill is required.

Open your eyes. Look for oncoming vehicles. If there is one: wait.

I’m not talking about scenarios where the straight through driver is pushing a yellow or blowing through a red light. Those scenarios have shades of grey. I’m talking about bright green lights and uncontrolled intersections where the left turner must simply wait for oncoming traffic to clear.

What should we do with those people?

With enough years of crash-free driving their insurance premiums won’t even go up. On what planet does that make sense?

But everyone’s premiums must increase to pay the hundreds of thousands, if not millions, of dollars required to fairly compensate that one driver’s innocent victims.

Do you feel pissed off about compensating the innocent victim? Walk a few minutes in their shoes and you’ll realized that no amount of money could fairly compensate such a life impact.

We need to get pissed off about the driver who was paying so little attention that he or she pulled out directly in the path of an oncoming vehicle.

But that offending driver just “had an accident.” That’s what insurance is for, no?

I believe in insurance covering you for accidents, if the word “accident” means a crash that could not be avoided by the exercise of the most minimal level of care and attention.

Cause a crash as a result of a gross level of inattention behind the wheel and I believe that you should suffer some very real consequences.

The “turn directly in the path of an oncoming vehicle” crash is only one example of a ridiculously avoidable crash.

Another is the rear-ender. Rear-enders are completely asinine. Open yours eyes and monitor what is occurring in front of you and a rear-ender will never occur.

But those rear-enders occur all the time, representing approximately 50 per cent of all of the compensation cases I prosecute.

What is our solution?

Driver skills training is clearly not the answer. It takes the most minimal level of skill to avoid these types of crashes.

Is it consequences? Might drivers pay more attention if they faced actual, impactful consequences for such gross inattention?

What about a new criminal offence of inattentive driving?

At the very least, these drivers should face the same consequences as those caught with alcohol in their system.

How about public awareness about the very severe consequences faced by the victims? Might that help increase our level of attentiveness behind the wheel?

I invite you to attend the sixth annual Kelowna commemoration of a day of remembrance for road traffic incidents. Yes, those losing their lives are remembered. But also those who are left with often life-long injuries.

By standing shoulder to shoulder with those left behind, and those living the lifetime of consequences, we might become motivated to deliver that modicum of care and attention behind the wheel that would prevent these crashes from occurring.

And we might become motivated to push others in that direction as well.

Nov.19,  at the Kelowna Waterfront Park, by the Dolphins, from noon to 2 p.m. Free hotdogs, face painting and other activities will help engage the next generation of drivers.

I look forward to seeing you there.





Death on the highway

A pedestrian is wandering, perhaps stumbling, within the vehicle lanes of the highway going through West Kelowna. 

There was no natural light at 4:30 a.m. on that Oct. 21, 2017, morning.

He is struck and killed.

A news report commends the quick actions of the driver and passenger of the striking vehicle, leaping into action to perform CPR.

How horrific.

I spoke to a motorist who had come down that same stretch of highway just minutes before. He was driving in the left of the two northbound lanes. The pedestrian’s existence in the middle of the road came as a shock to him when the pedestrian’s arm struck the car.

Our hearts immediately feel for the motorists who became victims of that drug and/or alcohol impaired pedestrian. Not only were they physically injured in the crash, the traumatic experience will stay with them forever.

It could just as easily have been any one of us.

Yes, it could. But what does that say about our driving attitudes?

I conducted a disturbing examination for discovery recently. The defendant I examined was clearly of the view that if he was “in the right,” he had no obligation to adjust his driving if another motorist is “in the wrong.”

You’re driving down a highway at 4:30 a.m. You have the right of way.

But we have decided, as a society, that motorists should take care not to run over jaywalkers. 

Check out this specific legal duty contained within the Motor Vehicle Act to “…exercise due care to avoid colliding with a pedestrian who is on the highway.” (See Section 181). 

And the law has long established that regardless of who has the right of way, both parties have a duty to exercise due care (see Wong-Lai v. Ong, 2011 BCSC 1260, paragraph 55). 

We have a much higher legal duty, as drivers, than keeping our vehicles “between the lines,” stopping for stop signs and red lights, and keeping within the speed limit.

Might that also be a moral duty? Laws be damned, might it be reasonable that we keep a look out to prevent running over pedestrians? Even those wandering around drunk and/or stoned at 4:30 a.m.?

But it was dark.

Without a reflector vest or otherwise highly reflective clothing, a pedestrian will blend into the darkness just like — just like a deer or a moose.

But unlike a deer or moose, pedestrians don’t typically leap out from behind bushes or out of ditches.

If you are keeping a careful look-out to see what’s going on ahead of you, would you notice a pedestrian before the moment that you strike them?

If not, are you over-driving your headlights?

Let’s say you did happen to notice a pedestrian walking along a highway at 4:30 a.m. Would you automatically slow down and move into the left lane as a precaution?

It’s a legal requirement if there is an emergency vehicle, tow truck, etc., with flashing lights sitting on the shoulder (see section 47.02 of the Motor Vehicle Act Regulations).  

Might a pedestrian at that hour command a similar, cautious response? That way, if the pedestrian is drunk and/or stoned (perhaps a likelihood at 4:30 a.m.), stepping into your lane will not kill them.

Of course, if you noticed the pedestrian in your lane, you would slam on the brakes and swerve to miss them.

Step one noticing. Noticing requires keeping a careful look-out and not overdriving your headlights.

Is that too much to ask of each and every one of us?  At all times?

Please note: I was not there. I did not investigate the incident. I have not spoken to anyone other than the witness I referred to. I don’t know if the pedestrian was drunk, stoned or sober. 

My heart goes to all involved. I am hopeful that this tragedy might help us adjust our driving attitudes and behaviours to help prevent road traffic tragedies.



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:   paul@hlaw.ca
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



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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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