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Achieving-Justice

When pet becomes threat

We love our furry friends. But they can cause harm.

We try to keep our children safe by cautioning them not to approach dogs they are not familiar with, but from time to time bad things happen.

A recent example is the news story reported with the headline: “Teen girl attacked by dog.”

According to the news story, an unleashed and unprovoked dog attacked a 14-year-old girl who had been walking through a parking lot in Rutland. Thankfully, her reported injuries were limited to scratches and puncture wounds.

But what a terrifying experience. I suspect that the physical consequences of the attack will pale in comparison to the psychological.

Many victims of car crashes experience anxiety and panic attacks because their sense of safety and security on our roadways has been turned upside down. Psychological care is often needed to help heal from that aftermath.

Likewise, the 14-year-old girl’s sense of safety and security simply being outside has been turned upside down. Unleashed dogs are everywhere. I hope that she has access to the psychological care she might very well need to be able to once again enjoy a care free walk outside.

Should that 14 year old, and her family, bear the full burden of the physical and psychological harms caused by the dog attack?  Or should some of that burden be shouldered by the dog owner?

Psychological care is expensive. And she might need to be driven around until her comfort level with getting place to place on foot is restored, which would cost something.

Financial compensation in addition to reimbursement of expenses will do nothing to reverse what occurred, but it is the only mechanism we have if it makes sense to shift the non-financial harms and losses from the 14 year old to the dog owner.

Should it matter that the dog was described as a “pit bull type”?  Or should the owner of any breed of dog be held accountable for the harms and losses caused by their pet?

Should it matter whether or not the dog had ever exhibited that type of behaviour before?  Perhaps this dog’s behaviour was completely out of character and the owner had no way to predict that an attack would occur.

How should we allocate the burden of harms and losses as between a completely innocent dog owner and a completely innocent victim?

What if it was a different scenario, where the victim had done something that somehow triggered the dog’s attack?  What if a child, ignoring their parents' cautions, approached and tried to pet a dog that was unfamiliar to them?

Should it matter whether the dog is familiar to them?

Should we hold those choosing to own a pet accountable for the consequences of pet ownership?

Consider how accountability impacts behaviour. Do you take just a little bit more care when you see: “You break it, you buy it”?

Simply put, greater accountability leads to greater care. The more we hold dog owners accountable, the more care we (I am a dog owner) are likely to take to reduce the risk of adverse consequences.

We are likely to choose a less, rather than more, vicious breed of dog.

We are likely to put time and energy into learning about dog behaviour and training our dog.

If we choose to put our dog in situations where a child might come up and try to pet it, we are likely to closely supervise the dog to ensure that does not occur.

We would be more likely to keep our dog leashed, and perhaps muzzled.

Please consider these questions and issues and offer your feedback.

Next week, I will tell you how our civil justice system currently deals with these matters. And I will contrast that with a different approach taken in Ontario.

If, faced with those different approaches, you think that our laws should change, I will encourage you to ask our political leaders to change them.



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He got what he deserved?

“He was asking for it." “Got what he deserved."

Comments like those were made in response to the news story about a “semi-streaker” (wearing only underwear and a jersey) who was flattened on the field of a B.C. Lions football game on June 16, 2018.

Play was stopped. Players and officials were just standing around when the fellow started jogging up the field. As he was making his way toward centre field, a defensive back dashed out to intercept his progress and flattened him with a leading right shoulder.

I cringed at a news headline that he had “lawyered up," anticipating that the majority of public sentiment would be that he shouldn’t be entitled to compensation and personal injury lawyers are running amuck.

According to his lawyers he had “…suffered serious injuries, including a mild traumatic brain injury…."

The seriousness of injuries, in my view, is measured not by a diagnosis such as “mild traumatic brain injury” (commonly known as a concussion), but rather by the level of symptoms, how they impact on your life and how long those symptoms last.

It will be best for all concerned (except the lawyers), if he enjoys a 100 per cent complete resolution of his injuries and symptoms within a short period of time. 

If so, this fellow’s primary concern might well be waiting out the one year ban from B.C. Place rather than engaging in a lawsuit to recover the correspondingly small amount of financial compensation that flows from a temporary injury.

But what about his legal rights? Does the defensive back, and perhaps others, bear legal responsibility to compensate this fellow for his injuries and losses?

Curve ball: How would you feel about those comments at the start of this column if the “he” was replaced with “she”?

Does it cause the hair at the back of your neck to bristle, as it does mine?

Our civil justice system calls what the defensive back did a “battery," defined as “…the intentional application of force constituting a harmful or offensive contact with another, without the other’s consent.” (see paragraph 18 of Rycroft v. Rego, 2017 BCSC 373).

On proving that a battery occurred (not hard here with the video coverage!), the inquiry turns to whether the applier of force has a lawful excuse or defence. 

If the defensive back had been defending himself or someone else, or defending his property, he would have had a lawful excuse for his non-consensual application of force, but only if the level of force applied was reasonable.

He loses on all those counts. The fellow clearly wasn’t a danger to the defensive back or anyone else. And goodness, if he was, the level of force was wholly out of proportion to that threat.

What about provocation? Maybe the defensive back felt provoked. Is it civilly permissible to flatten someone if you are provoked?

No, and I’m going to give you an extreme example.

Let’s say the fellow had run up to that defensive back and unleashed a barrage of expletive insults about the football player’s sister, mother, wife and size of his manhood that would make a trucker blush (sorry, truckers). 

Would that have given him a lawful excuse to flatten him?

No, it wouldn’t have. But it would likely have resulted in some of the legal responsibility for the attack to be shifted to the victim.

One judge described the principle as follows:

“…if a plaintiff deliberately embarks upon a course of conduct which provokes another by words or gestures and an assault results, it cannot be said that the plaintiff is without blame. He has contributed to his injuries and must accept a share of the responsibility and resulting loss. It would be unfair in these circumstances to award that person full compensation for his losses if he has contributed to those losses.” (Robinson v. Bud’s Bar Inc., 2015 BCSC 1767, paragraph 136).

How much of a share of the responsibility? I have not conducted anywhere close to a full review of the case law, but in the cases I have reviewed, a successful provocation defence has resulted in the injured victim recovering only 70-75 per cent of fair, financial compensation for their injuries and losses.

My personal view aligns with some other jurisdictions, like Ontario, where a victim’s right to fair compensation is not reduced on the basis of provocation. 

Giving an attacker anything of an excuse on the basis of a victim “asking for it” feels problematic to me.



The root of evil: pain

Pain serves us well when alerting us to a burning hot surface. Not so much after a car crash.

We naturally avoid unpleasant things. We recoil from burning pain. And take extra care to avoid the sharp pains we’ve experienced when:

  • striking a thumb with a hammer
  • stubbing a toe,
  • banging our head on a low surface
  • slicing a finger.

And pain alerts us to injuries and illnesses, so we can take steps to have them diagnosed and progress with healing. Ongoing pain, with movement, can also be good if that movement would cause additional damage.

But for most car crash injuries, healing is optimized by remaining as mobile and active as possible. Pain that restricts or causes us to avoid movement can get in the way of healing and actually cause damage.

Waking up the morning after a crash with a splitting headache and spasming muscles, our instinct is to stay in bed.

You drag yourself into a doctor’s office to get a note to be away from work.

With increased pain trying to do housework and yard care duties, the instinct is to stop. And there’s no way a return to recreational activities will be attempted.

You end up at home. Doing very little. Getting out only a couple times a week for some sort of therapy.

Damaged muscles, with disuse, become even weaker. Overall lack of activity causes general deconditioning, with weakened muscles and lower cardiovascular health.

And weight gain.

There’s another unhelpful side effect of pain: sleep disruption. Pain and discomfort hold you back from falling asleep and wake you up at night.

Reduced income and increased expense inevitably lead to financial stress.

Put it all together and you’ve got a perfect storm for lowered mood.

A couple or so therapy sessions per week haven’t got a hope against ongoing deconditioning, stress, sleep dysfunction and depressed mood, all of which get in the way of recovery.

And the root of all that evil: pain!

Before you are lulled into the notion that I might have a clue about what I’m talking about, please understand that I have no medical training. The closest might have been grade 12 biology. Oh, and first aid.

This is a legal column and I’m about to give you some very important legal advice.

I have a sneaking suspicion that it might also be good medical advice because I’ve spent over two decades consulting with experts in physical medicine and rehabilitation.

It’s hard. It’s really hard. But my advice is to do, do, do and try, try, try.

This applies to all aspects of your life: work, household and yard chores, recreational activities and social activities.

If you are ever the least bit concerned that “doing” will cause damage, consult your doctor and others on your medical team.

But consult in a way that shows your motivation to remain as active as possible.

Instead of: “I’ve just been in a crash and I can barely move, please give me a note to be away from work, 

try: “I’ve just been in a crash and I can barely move, will I damage myself if I try to get through my work day?”

Let your medical team, not pain, do the job of holding you back to the extent necessary to optimize your recovery. Of course, that includes following instructions that might be given at times to let pain be a guide.

But how does this help your legal claim?

The law actually requires you to take reasonable steps to make your losses as small as reasonably possible.

By always erring on the side of trying, you avoid insidious insurance company arguments that you failed to do so;
Your injuries are invisible. But your very genuine struggles to get through your work day and return to “life” generally are not.

That gives me witnesses I can call to help prove your case. Ever consider how hard it is to prove a negative? How can you prove you cannot work or participate in other aspects of your life if you don’t try?

And keeping your income and other losses as low as possible helps your bottom line.

If you end up having to retain a lawyer to achieve fair compensation from ICBC, the lawyer’s fee will be a percentage of that compensation.

Whatever level of percentage fees you pay leaves you with that much taken away from the fair amount required to compensate you for your losses.



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Idiot-proofing is killing us

My previous three columns might suggest otherwise, but cellphones are not the boogeyman.

One of my “fans” posted an online comment accusing me of being “…on a one man crusade to eradicate cell phone use…”. I would have taken that as a compliment if not followed by: “His constant diatribe is really getting boring if not annoying….”

While the eradication of cellphone use while driving is a battle I’m waging, it is not the war.

I’ll pause a moment to openly recognize that I might be about as effective in this battle as the Black Knight in Monty Python and the Holy Grail!  Please do yourself the favour of searching “Monty Python Black Knight” and watch the short scene.

The true boogeyman was around long before cellphones, and has been building and building into the fire-breathing monster it has become.

In my lifetime, I’ve seen the near eradication of the standard transmission and the addition of such conveniences as cruise control and automatic dual zoned climate control. Automobiles have evolved to require less and less “work” to operate. And, correspondingly, less and less direct cognitive attention.

Road safety resources have been put into making our roads safer. Put another way, our roads have become more and more idiot proof.

Take notice of the idiot proofing next time you’re out on the road.

Speed signs are not enough; we’ve added warning signs that the speed is about to change. Yellow lights are not enough; we’ve added advance flashing yellow lights.

Many intersections have been made much safer with the addition of advance left turn signals. Were they installed to protect against attentive drivers? 

No, to protect against the “idiot” inattentive ones.

You will notice example after example. The more we idiot proof the roadways, the less direct and constant attention we need to navigate them.

Then, there’s all the safety mechanisms, both in automobiles as well as on roadways. Seatbelts, air bags and crumple zones, coupled with guard rails and centre-road dividers, lull drivers into the perception that it is as if we are in an amusement park bumper car ride.

The lower the perceived consequences of a crash, the less white knuckled (attentive) we become. 

In a column a year and a half ago, I suggested that seatbelts have been one of the biggest failures in road-safety history. To illustrate my point, imagine how a law banning seatbelts might impact your level of attention behind the wheel.

All of that has contributed to the reality that fully 50 per cent of the injury cases I handle are caused by rear-ender crashes where one vehicle comes to a complete stop and the following vehicle simply drives into the back of that stopped vehicle.

Inattention is the boogeyman. And looking back, we created the “perfect storm” of factors to bring it about.

We could choose to put road safety resources into hunting the boogeyman down and slaying it. Like we’ve worked hard to do with impaired driving.

We could implement a well-funded campaign educating drivers that constant attention is required behind the wheel: 

  • That it’s not enough to stay within the lines, within the speed limit, and unimpaired by alcohol and drugs. 
  • That it’s not enough to keep your eyes on the road ahead of you.

The science is clear that looking out of the windshield, if your brain is elsewhere, will result in you “missing” up to 50 per cent of what is there to be seen. 

That’s what causes all those entirely preventable rear-enders.

But we’re not. We’re doing the opposite. We are implementing more road “safety” policies that feed and nurture the boogieman. The worst being our law banning hand held cell phone use.

It’s bad enough to target “eyes off the road” and “hands off the wheel” while leaving the boogeyman alone.

But this law serves up a big, juicy steak to the boogeyman by saying:

“It’s safe to engage in the distracting behaviour of a cell phone discussion or voice to text as long as you don’t use your hands.”

Crash statistics, that were on a decline, have increased since that idiotic law. We would have been better without it. But even better would be sending the loud and clear message that the only activity you should be doing when behind the wheel is driving.



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



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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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