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Achieving-Justice

Stay off the phone!

I’m not a perfect physical specimen.

If you know me, you are likely rolling your eyes and muttering: “Really? You don’t say!”

Not a perfect psychological specimen either.

“No sh** Sherlock!”

I’m functioning really well, though.

After over 20 years in the legal profession, I’m trying to cut back on office hours, but can still put in a 14-hour day.

And over 30 years since learning to drink in the Canadian military, I’m trying to cut that back as well, but for the most part, I live my life without hangovers.

If assessed by a medical specialist, her opinion would be along the lines of Newton’s first law of motion:

“…An object in motion stays in motion with the same speed and in the same direction unless acted upon by an unbalanced force.”

In other words, I’m likely to continue functioning well unless something significant occurs.

Tomorrow, I am sitting at a complete stop at a red light. A driver is chatting away on a cell phone, using perfectly legal (though perfectly dangerous) hands-free technology. 

Distracted, he crashes into the back of my car.

I’m fine, at the scene. No broken bones. It takes time for the sprained/strained tissues in my neck and back to become inflamed and painful.

The next morning, I can hardly get out of bed.

I participate fully in whatever care is recommended, but never fully recover. I am left with chronic lower-back and neck symptoms. 

I self-medicate with alcohol to the point that I’m waking with a hangover more often than not. And I have become depressed.

An ICBC appointed medical specialist conducts an “independent” medical examination. 

The specialist reports, accurately, that had I been in better physical shape, it is unlikely that I would have developed chronic pain. 

Had I been in better psychological shape, I would not have become a dysfunctional user of alcohol, nor would I have become depressed.

Had I been a perfectly well adjusted 19-yea-old gymnast who had never touched a drop of alcohol, I likely would have made a complete recovery. 

ICBC blames my relatively deconditioned 47-year-old body and psychologically imperfections for the chronic pain and depression.

Because absent those attributes, I would have enjoyed a complete recovery.

Is that fair? 

Absent the crash, I wouldn’t have been injured in the first place. 

Absent the crash, my 47-year-old, psychologically imperfect self would have “…stayed in motion with the same speed and in the same direction….”

How does the law wrestle with this situation?

This is the simplest, but worst understood principle of personal injury law.

The legal principle is that “You take your victim as you find him."

Crash into the back of a car occupied by a 19-year-old, psychologically perfect gymnast whose injuries 100 per cent completely resolve, then lucky you. 

Your liability insurance company, ICBC, will have to pay only a small amount of financial compensation on your behalf for the small amount of damage you caused.

Crash into the back of a 47-year-old, physically and psychologically imperfect lawyer who ends up developing chronic pain and depression, the law makes you 100 per cent responsible for all those consequences.

While a common negotiating tactic, “blaming the victim” doesn’t hold water in our legal system, at least not on this point.

And please, please remember that very few road users are perfectly adjusted, 19-year-old gymnasts.

Pay your full attention to the road ahead of you and stay off your damned phone.

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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



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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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