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Achieving-Justice

Play if safe: do the 10 and 2

The driver was not looking down, dialing the phone or texting. Witnesses say she was looking straight ahead out the windshield, talking on her cell phone. 

She continued on at highway speed past four cars and a school bus that had come to a stop in the next lane, for the red light that she also faced.

A 12-year-old passenger in a vehicle she T-boned was killed.

How, looking straight ahead through the windshield, could she have failed to notice the red light? 

Road safety researchers call this a classic case of “inattention blindness.”

Each of us has experienced it.

How many times have you missed a turn-off?

You blew by that turn-off just like the lady blew through the red light. The only difference was that your inattention blindness didn’t kill anyone.

Did you shrug it off? No big deal, you just missed a turn-off?

Don’t fool yourself. That missed turn-off was the “tip of the iceberg” of things you failed to process in the roadway environment.

Had you not missed the turn-off, requiring you to turn around to get back on track, you would not have even clued in about your lack of road awareness.

As one study put it, your self awareness of how much of the roadway environment you were failing to process was “similar to the fictional cartoon character Mr. Magoo, who was blithely unaware of his driving impairments.”

(Let me know if you want a copy of the “Magoo study.”  I was unable to provide a hyperlink).

There are all sorts of things that might occupy your conscious thoughts while you are driving, leading to varying levels of inattention blindness.

It takes actual effort to maintain constant, direct attention to the roadway ahead of you. If you don’t, your mind will wander. 

As it wanders, you will miss processing things even though you are looking straight through the windshield.

I came up with a mechanism to keep my own mind from wandering while driving. I call it “doing the 10 and 2.” I use my hand positioning as an attentiveness alarm.

Current wisdom says that other positions are safer because of air bags — i.e. “8 and 4” or “9 and 3" — but it doesn’t matter what you choose.

If your hands wander to more comfortable places like resting at the bottom of the steering wheel or one elbow on an arm rest, that’s the attentiveness alarm going:

  • “Your mind is wandering!”

Since implementing “the 10 and 2” for myself, I don’t have the “close calls” that I used to have.

Cell phone use while driving is a special kind of cause of inattentive blindness. That’s not dialing or texting. 

It’s simply talking on the phone, with your eyes looking out your windshield. It is estimated that drivers using cell phones look, but fail to see up to 50 per cent of the information in their driving environment April, 2012 “White Paper” published by the National Safety Council (United States).

Most people, like Magoo, are blithely unaware of the 50 per cent they are failing to process. They don’t have a clue about how dangerous they are being. 

They think: “I’m capable of multi-tasking. I’m looking out the windshield. I’ve never caused a crash. I’m safe.”

Everyone thinks that texting is the problem. Texting is definitely a problem, but quoting from the 2012 White Paper: 

  • "…in 2010, an estimated minimum of 160,000 crashes involved texting or emailing, versus 1.1 million crashes involving talking on cell phones.”

Why? 

Everyone knows that it’s dangerous to take your eyes off the road. That awareness leads to less texting and in less dangerous road conditions.

Those chatting away on their hands free cell phones are blithely unaware of the danger. They think that they’re looking through the windshield so it must be safe. This leads to much more frequent use of cell phones while driving and no precautions taken to limit the risk.

Please don’t be like Mr. Magoo. 

Stop talking on your cell phone while driving, hand held or hands free (there’s no difference in the level of distraction). And how about joining me in taking an active step forward in attentiveness by “doing the 10 and 2”?



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ICBC is not your godmother

Cinderella's fairy godmother gave fair warning. Don’t expect the same from ICBC.

"At midnight, the coach will turn back into a pumpkin, the horses into mice, the driver into a rat. You must not be late!"

Legal rights expire just as abruptly.

Almost all legal rights will disappear if a lawsuit is not commenced to enforce those rights within a certain time. That period of time is known in legal circles as a “limitation period."

What does it take to commence a lawsuit? Filing the right paperwork at a court registry.

Please give a lawyer some lead time to get the paperwork together. I was contacted by one client on the last day of her two-year limitation period. It was a coincidence; she didn’t know about the deadline.

My team managed to get the information we needed and file the paperwork before the 4 p.m. court registry closing time, but it was a mad rush I’d prefer not to have to repeat.

Had she waited one more day, her claim for fair, financial compensation for her injuries and losses would likely have disappeared.

I say “likely." because sometimes the insurance company slips up and says or does something that causes a limitation deadline to be extended. 

Don’t count on it, though.

For examples of lawsuits where ICBC successfully had claims dismissed because injured victims missed limitation periods, I invite you to read these 2012 cases: Field v. Harvey, 2012 BCSC 456 and Tolentino v. Gill, 2012 BCSC 1383, and this 2016 case of DeWolfe v. Jones, 2016 BCSC 2008.

It feels horribly unfair to me for an insurance adjuster to discourage you from hiring a lawyer and enter into settlement negotiations without warning you that the stroke of a clock can cause your claim to disappear.

Not all insurance adjusters are like that. I know from many of my clients who received a warning that there are many “fairy godmother” adjusters within ICBC who will warn you about upcoming limitation deadlines.

Perhaps ICBC as a corporation could turn over a new leaf and make it a matter of enforced policy that their adjusters deal and negotiate fairly with injured victims.

If they did, I would be out of a job. Why hire a lawyer to enforce rights that are being fairly negotiated without a lawyer?

In the meantime, please consult with a lawyer to learn what limitation periods and other important deadlines apply to your particular claim. 

There are notice and limitation deadlines that can be very short (much, much shorter than two years), including for personal injury claims. 

Further, don’t listen to anyone who says that a child’s legal claim can wait until they reach the age of majority. There are much shorter limitation periods that pertain to children’s claims as well.



Dumb question of the year?

Does driver education and training produce safer drivers and reduce crashes?

Might that qualify for the dumb-question-of-the-year award?

Certainly, a lot of British Columbians must be buying in to the notion. ICBC lists 54 driving school businesses offering approved driver education courses at 221 locations. 

The courses run at approximately $1,000 per student. 

Before you dismiss the question, consider that the effectiveness of driver education and training has been researched and the results are far from overwhelming. 

Here are links to reviews of scientific studies from 2011 and 2013.

Why? One conclusion pointed to skill as being a primary focus of driver education. The final paragraph of the 2011 article notes:

  • “…yet skill as measured by on-the-road tests has never been shown to be correlated with driver crash rates.” 

No surprise there. Inattention and distraction cause most crashes. Precious little skill is required to keep a vehicle between the lines. Perhaps even less is required to bring your vehicle to a stop when the traffic ahead of you comes to a stop.  

Have I mentioned, recently, that 50 per cent of the personal injury claims I prosecute arise from rear-enders?

In fact, teaching young people how to skillfully manage emergency driving situations might cause more harm than good. Here is a very interesting article on that point

Again, no surprise when you put your mind to it. Is a teenager’s level of care likely to go up or down as a result of developing skills for managing a skid!?

I hate to say I told you so, but what I’ve been preaching for years remains true: driver safety is all about driver attitudes. 

Quoting from the same concluding paragraph of the 2011 article:

  • “…there have been numerous studies documenting the highly significant role of attitudinal and lifestyle factors in the high crash rate of young drivers…”

So I looked at ICBC requirements for an approved driver education course

An ICBC approved driver education course must include at least:

  • 16 classroom hours 
  • 12 practical hours
  • four discretionary hours. 

The curriculum requirements list four broad goals, each of which with clearly listed learning objectives.

My heart was warmed seeing that the majority of learning objectives focus squarely on driving attitudes.

Well done, ICBC!

Are those learning objective being effectively taught by 54 independently run driving schools?

The most basic of crash data collection should allow ICBC to provide statistics of the numbers of crashes caused by those with and without the approved driver education course. 

Care to provide those statistics, ICBC?

Let’s assume that a driving attitude-focused education course produces safer drivers and reduces crashes.

If so, why is it not mandatory?

Is it our goal for only the most affluent of drivers (those who can afford the $1,000 price tag) to have good driving attitudes?

What percentage of new drivers fork over the $1,000 for the course? 

Care to provide that statistic, ICBC?

British Columbia’s graduated licensing program requires almost nothing of driver education and training. New drivers must simply:

  • pass a written test;
  • allow time to pass while holding an “L” licence (requiring adult supervision along with other restrictions)
  • pass a road test, qualifying them for an “N” licence
  • allow some more time to pass while holding the “N” licence (passenger and other restrictions).

Unlike some other jurisdictions, there is not even a requirement for any actual driving to occur during the “passage of time.”

If you can afford the ICBC approved driver education course, you shave six months off the time requirement.

Road safety in British Columbia has never reached the priority it should have. Perhaps soaring ICBC rates will cause British Columbians to demand an effective road safety strategy.

Will our new government step up to the plate?





Looking for the silver lining

I like to find a silver lining behind every cloud. This very dark one is rimmed with platinum and gold.

Road safety has finally come into the spotlight for British Columbians.

Money talks.

Crashes and collisions have been increasing by 20,000 per year since 2014.

Nobody cared until we realized that those statistics have a real impact on our pocket books.

Crashes cost money! More crashes and collisions mean more money.

The beautiful thing is that the reverse is also true. Fewer crashes and collisions mean less money.

Had we woken up to that obvious connection between the number of crashes and ICBC insurance premiums, we would have made road safety a higher priority long ago.

By the way, ICBC insurance premiums pay for some, but certainly not all, of the dollar cost of crashes and collisions.

Can you get your head around how much of our emergency services and health care budgets go to dealing with the aftermaths of 300,000 crashes per year?

It costs money for police, fire and ambulance services to go out to crashes. It costs money for hospitals and medical clinics to treat the injured. Those and untold other direct and indirect expenses are simply worked into our income taxes.  

An August, 2007, Transport Canada report estimated that expense, for British Columbia at $8.8 billion. In 2017 dollars, that’s $10.25 billion.

That’s almost double the entire British Columbia education budget and more than half of our entire health budget.

That report should have, but didn’t catch our attention. 

The taxes we pay to cover those billions of dollars every year didn’t catch our attention either. They would have if the government told us every year how much of our taxes went to pay for crash and collision related expense.  

Shall we require that of government in the future so that we can grasp the full financial impact of carnage on our roads?

It’s only now, when ICBC premiums start getting uncomfortable, that road safety becomes as a priority.

If that’s what it takes, I welcome it.  

If we buckle down and take concrete steps to improve road safety, those premiums will naturally go down. Not just to what they were a few years ago, but much further than that.

And our taxes will go down as well.

And then the most important benefit of road safety will come about: fewer injured and killed British Columbians.

Are you motivated to reduce crashes? Be prepared for inconvenient solutions.

According to statistics in the Ernst & Young report, increased enforcement of our speed and distracted driving laws will reduce crashes.

Those who fail to make safe driving a priority suffer under increased enforcement. Are those the vocal ones who managed to get photo radar off our roads?

What better mechanism could there be to ensure maximum enforcement of speed laws than photo radar?

Is it a pain in the behind to get a speeding ticket in the mail because you slipped over the speed limit?

Yes it is. But all you have to do to avoid that is to pay direct attention to the task at hand. If your mind wanders enough to “slip over the speed limit,” then it has wandered enough to hurt or kill another road user.

I am brimming with ideas for how to improve on road safety, and disappointed that the Ernst & Young report failed to identify the most obvious. 

With overwhelming scientific proof that talking on a cell phone while driving is dangerous, and that doing so hands free is no less so, when are we going to finally ban all cell phone use while 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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