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Achieving-Justice

You take care of dead deer

Do you know your responsibilities if you strike and kill a deer or other animal large enough to be a hazard to approaching vehicles?

Before we get there, consider that an ounce of prevention is worth a pound of cure. In this case, perhaps hundreds of pounds.

Simply staying alert, with focused attention on the road ahead, would prevent most crashes.

Avoiding collisions with animals requires an even higher level of vigilance.

My mother drilled into me to constantly watch for the reflective eyes of animals at night. We stand a better chance during the day, but only if we continually scan the bushes and ditches on the sides of the roads.

And please remember that it is your safety and that of other road users that matters, not the safety of the animal. 

If swerving sharply or slamming on your brakes is your automatic reaction to a small, furry creature darting in front of your car, please work on changing that.

All it takes is a quick glance in your rear-view mirror to ensure that your evasive move won’t interfere with another road user. The sick feeling in your heart from killing a small animal is nothing compared to how you will feel about causing a crash and hurting yourself and others.                                                                                                                  

It’s different with a larger animal like a deer, moose or cow. An impact with a larger animal can cause serious or even fatal injuries, particularly if the animal comes through the windshield.

There might not be anything you can do to avoid an impact. The most vigilant driver is no match for a deer leaping out from behind foliage.

The impact is shocking, but thankfully you are alright.

You are feeling horrible about the dead or dying animal. You are also concerned about damage to your vehicle.

Just like the icy road situation, I wrote about last week, though, your primary concern should be approaching traffic.

Your stopped vehicle is a hazard, particularly in low visibility situations like around a blind corner or at night.  It’s easy enough to pull off to the side or simply carry on your way.

What about the carcass?

It is a hazard as well, of course, but do you have a legal obligation to do anything about it?

The reasons for judgment in the court case of Ziemer v. Wheeler, 2014 BCSC 2049, set out the law that yes, you do. 

Mr. Wheeler, driving an F350 pick-up truck, hit a moose. In circumstances of driving below the posted speed limit at night, on a familiar road that was not known for moose crossings, with no artificial light illuminating the moose’s dark pelt, he was assessed not at fault for this collision.

Mr. Wheeler left the scene, doing nothing about the large moose that remained on the highway.

Nine minutes later, two vehicles approach the scene from opposite directions. 

One vehicle hits the moose carcass, sending the vehicle into the oncoming lane, resulting in a head-on crash.

Neither driver is found at fault for this crash. With dimmed headlights, the dark mass of the moose carcass against the dark asphalt was not noticeable until too late. The oncoming driver had no time to react when the vehicle that hit the moose deflected into the oncoming lane.

Madam Justice Watchuk then considered the responsibility of Mr. Wheeler.

She reviewed the law, noting that:

“A driver who has collided with an animal must take reasonable steps to preclude the possibility of another motorist colliding with that wildlife.”

Mr. Wheeler had what was described as an “extremely well-lit truck.” He also had flares. Madam Justice Watchuk noted various steps that Mr. Wheeler could have taken to warn approaching motorists, including flashing his headlights at them.

Even though Mr. Wheeler was a victim of unfortunate circumstances, colliding with a moose.  He became the cause of a serious crash by failing to take reasonable steps to warn approaching motorists.

Common sense should have directed his behaviour at the scene. As noted in this case, there is a legal duty that corresponds with common sense. 



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It's safer inside your car

Do we all struggle to find “something good” coming out of even the most horrible of circumstances? 

I do.

And in the case of road traffic fatalities, there is always a lesson that can and should be learned by the motoring public.

If the lesson is learned, the loss of life might be viewed as a sacrifice that helps keep the rest of us safe.

There was a sudden change in weather and road conditions on the Coquihalla on Sunday, April 2, 2017. A multi-vehicle crash occurred as unprepared motorists encountered that sudden change. One woman was killed.

A lesson reminder from the RCMP is that even though it’s April, sudden weather and road surface changes can still occur on our mountain passes. We should continue using good winter tires through those passes this time of year and be vigilant about adjusting our speed as we encounter changes.

We shouldn’t need reminding, but we do.

There is another critical road safety lesson to be learned. If you are involved in a crash on an icy road, you are safer inside your car than out.

The fatality would not have occurred had the deceased stayed within her vehicle.

I found a helpful web site [icyroadsafety.com] with important advice of what to do if you are in a crash on an icy road.

If your vehicle is still driveable, keep moving until you arrive at a safe place to pull well off the road. An icy road is inherently dangerous. A stopped vehicle blocking traffic multiplies that danger not only for you, but for approaching traffic.

If your vehicle is disabled, stay put if traffic is approaching. Your vehicle can absorb a vehicle impact much better than your body can.

Once you are certain that no traffic is approaching, get out of your vehicle and immediately get out of the way of danger. You are safer on the other side of a guard rail or up an embankment than sitting in your disabled vehicle in the path of approaching traffic.

Of course, if you’re on a mountain pass with a rock face on one side and a cliff on the other, with no way to get out of the way of danger, stay in your disabled vehicle.

Please share this lesson with everyone you care about.

A more likely crash related road hazard we might encounter in coming months is a wildlife carcass. 

Do you know what responsibilities you have as a motorist if, through no fault of your own, you strike and kill a deer or other animal large enough to be a hazard to approaching vehicles?

I will review the law on that point next week.



Make a will!

Only 51 per cent have a current and legal will.

It seems I put the cart way, way before the horse with my last column, warning about wills being challenged in court!

I had no idea that so many haven’t gotten to first base in looking after their affairs.

Death is a certainty, but unpredictable. Don’t expect a two-week warning tap on the shoulder to get affairs in order

I learned of the 51 per cent statistic when doing a bit of research about Make a Will Week. My last column prompted a Lower Mainland radio station to invite me to call in as a “will expert” during that week.

I had never heard of this week set aside to increase awareness of the benefits of having a will. April 9-15 has been proclaimed Make a Will Week by the government of British Columbia.

I am far from being a “will expert,” by the way. My legal career has been built on litigation, not making wills. Understanding what leads to lawsuits, though, and the outcome of those lawsuits, gives excellent insight on how to avoid problems from occurring in the first place.

It’s no fun thinking about death. 

I got to know a funeral pre-arranger a few years ago. Imagine picking your own casket, the music, perhaps even writing your own obituary! All that, and paying for it in advance.

No fun, but what a beautiful gift for those who would otherwise be left to agonize about those decisions in their time of grief.

Making your will is a whole lot easier. Cheaper too, particularly during Make a Will Week.

On the government Make a Will Week website, there is a long list of links to free or very inexpensive resources. 

There’s a link to do it yourself “will kits” costing under $20. Another link takes you to the Canadian Bar Association, which offers inexpensive ($25 for one-half hour, by toll free telephone) consultations with lawyers.

You stand the best chance of your assets and estate being handled according to your wishes, and as inexpensively as possible, by having a full consultation and your will prepared and executed with a lawyer or notary, and I strongly advise everyone to do that.

But until you have the motivation, time or money for that full service, there’s really no excuse for anyone not to have a will by the end of the week.

There are many good reasons to get your affairs in order with a will. 

Without a will, a legislated formula determines who gets what. You should decide how to allocate your estate, between those you love and care about and/or perhaps a charity. 

Don’t forget to leave something special for your favourite columnist.

You don’t want children in your care left in limbo about who will look after them and their affairs.

You also want to minimize the expense of dealing with your estate so that as much as possible can go to your beneficiaries.

Please help get the word out about the importance of having a will, and resources available to make it happen, during Make a Will Week.





Avoid lawsuit from grave

Review your will or risk lawsuit from the grave

You can’t take it with you. How much say do you have about who gets your inheritance?

Isn’t a will iron clad?

They are not as iron clad as you may think. There are laws that allow the iron cladding of many legal transactions to be ripped away, including wills.

I am thankful for those laws, because iron cladding can result in horrible injustices.

Consider a parent making a will after their snotty attitude 13-year-old took the family car for a joyride, leaving nothing for that child and everything to a sibling.

Five years later, the now 18-year-old has “grown up,” and has a wonderful relationship with the parent, while the sibling has become an estranged drug addict.

It doesn’t occur to the parent to change her will, and a distracted driver takes her life in a tragic crash. It would be horribly unjust for the responsible child, perhaps in need of financial support to pursue an education, to end up with nothing while the estranged drug addict gets the entire estate.

Circumstances like that scream out for the iron cladding on a will to be ripped away, allowing for justice to be done. Laws allow the child left out of the will to bring a lawsuit asking the court to re-allocate the inheritance.

Don’t count on it, though.

Many injustices cannot be fixed. The iron cladding of a will, however unjust, might be strong enough to withstand a legal challenge.

You also don’t want to leave your family with an extremely expensive and relationship destructive court battle.

It’s wise to carefully review your will on a regular basis to ensure that it continues to follow your wishes. 

It is also wise to get legal advice to learn about how the “injustice fixing” laws work. You might have very good reasons for the allocations you make in your will, and want to protect your wishes from legal meddling after you die.

Additional iron cladding can often help ensure your sense of justice prevails.

In Brown v. Terins, 2016 BCSC 42, an expensive court fight led to legal meddling in the affairs of a 74-year-old. 

Terins and his common law spouse had entered into their relationship while already in their 60s. Each of them had similar levels of assets and each had children.

They intended to keep their assets separate, and to be able to leave their respective estates to their children, not to each other. They signed a cohabitation agreement that had those terms.

The common-law spouse, who had been left out of his will as intended in the cohabitation agreement, challenged the will in the lawsuit resulting in her receiving over $500,000 of his estate that otherwise would have gone to his children.

A significant change in circumstances over their 14-year relationship, i.e. the rise of Vancouver real estate values to “vertiginous heights,” resulted in a gross disparity in the values of their assets that they could not have foreseen fourteen years previously.

That, and other factors, resulted in the successful lawsuit for the common law spouse.

I assume that Terins had not regularly reviewed and sought legal advice about his estate because steps could have been taken to better protect his wishes and avoid the expensive lawsuit.

The judge in the Brown v. Terins decision provided a very detailed analysis of his decision. The analysis includes discussion of other legal cases.



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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