Keep your brain on the road

How is it any different from talking to a passenger?

Predictable as a ticking clock, I face that question every time I share the science that hands free and hand held cell phone are identically dangerous driving activities.

So of course that question came up in response to last week’s column where I shared that science.

It’s an excellent question.

If talking to a passenger is safe. And there’s no difference between talking to a passenger and talking hands-free on a phone. Then talking hands-free on a phone is safe too. Right?

Let’s break it down.

Does it go without saying that it’s safe to chat with your passengers?

Have you ever seen a sign on a bus saying not to talk to the bus driver?

There is a children’s book called Don’t Chat with the Bus Driver.

A young pig, crocodile, rabbit, fox, hen, cow and frog are each told not to chat with the bus driver. In turn, each young rider promises not to, and then breaks their promise resulting in all sorts of consequences like the bus driver missing a stop, driving into a tree and going the wrong way.

An online search revealed this stipulation within the Public Transportation Procedures Manual for BC’s School District 7, Kootenay Lake: “Students are to refrain from talking to or distracting the driver while the bus is in motion."

I haven’t seen the science about talking to bus drivers. And a children’s book doesn’t prove anything. Nor do selective bus passenger codes of conduct.

But please don’t jump to the conclusion that chatting with your passenger isn’t dangerous.

The science I’ve shared is comparing hand-held to hands-free cell phone use. Scientific studies have concluded that each is cognitively distracting, and the level of distraction is identical.

It’s not about touching or holding a device. It’s not about having your eyes off the road. It’s about having your brain off the road.

Your eyes are open. You are looking out of the windshield. But you miss up to 50% of what is going on out of that windshield because your brain is engaged in a discussion.

If it’s about having your brain off the road, engaging in a discussion with your passenger is likely distracting as well.

But there are differences. Don’t give me any credit for identifying these differences, by the way. I learned about them from Understanding the Distracted Brain, a white paper published by the National Safety Council (United States).

Your passenger (if an aware adult sitting in the front seat) is a second set of eyes. Both of you are cognitively distracted by your discussion, each of you missing up to 50% of what’s going on out of that windshield, but hazards you miss can be caught by your passenger.

We have all had experiences when our passenger has alerted us roadway hazards we have missed.

And what happens to your conversation with a passenger when traffic conditions become congested or complicated? 

Does the pace of discussion slow, and at times actually stop, each of you conscious about the increasing demands of your driving attention?

The person you are chatting with on your cell phone is not a second set of eyes. And has no awareness of changing driving conditions.

If talking to a passenger is cognitively distracting, should we ban it?

I don’t think so.

We need to enlighten drivers that any time we are engaging our brains in a discussion, whether it is with a passenger or on a cell phone, we are cognitively distracted. We are looking at, but not processing, up to 50% of what’s going on around us.

We need to ban all cell phone use while driving, giving drivers the true message that it’s “brain off the road” not “eyes off the road” that’s the primary problem.

Awareness that chatting with a passenger is distracting will hopefully lead both drivers and passengers to be cautious about becoming wrapped up in a discussion, and to compensate by each of them paying extra attention to the roadway while choosing to chat.

Awareness, and compensation, are key. And friends, that will be the topic of my next column. The most dangerous drivers are those, like Mr. Magoo, who are blithely unaware of their lack of awareness.

Who is Mr. Magoo?  Check out this video: Mr. Magoo 

Hands free is dangerous

Seventy-one-year old Randi Kramer made headlines last week after being ticketed for distracted driving.

The unlawful conduct?  Her plugged-in cell phone was sitting in a cup holder in the centre console of her vehicle.

She wasn’t looking at nor touching it. 

Her son said that she had gone out of her way to obey the law, noting:

“She bought her car wanting one that had CarPlay, voice controls and Bluetooth.” 

If you go out of your way to obey the law, you should be rewarded, not penalized on a technicality. 

And let’s be consistent in our laws. If it’s perfectly legal to have your cell phone mounted in front of your face, how can it be reasonable to fine someone for having their phone down in a cup holder? 

But there’s a far more offensive injustice. 

I don’t know Randi Kramer, but I suspect that with 50 years of ticket-free driving, she is safety conscious. I would wager that she not only cares about obeying the law, but also about being a safe driver. 

The two seem to go hand in hand. Traffic laws are passed to make our roads safer. Aren’t they? 

Believing that hands-free cell phone technology must be safe, because it’s legal, she purchased a car with CarPlay, voice controls and Bluetooth. Those features cost something.

She paid something extra so that she could follow the law and drive safely. 

But she was misled.

We all were.

When our government passed distracted driving legislation that came into effect Jan. 1, 2010, they held something back from us. 

They held back the results of their own research into the scientific evidence. 

Evidence that 

“Drivers fail to process approximately 50% of the visual information in their driving environment when they are using electronic communication devices.” 

But the most critically important piece of scientifically proven information they failed to share:

“Evidence also concludes that there is no difference between the cognitive diversion associated with hands-free and hand-held cell phone use”.

Sorry, Randi Kramer. You and most other British Columbians have been lulled into a false sense of security that hands free cell phone use is safe.

Before Jan. 1, 2010, the driving public had been coming to the realization that cell phone use and driving didn’t mix well. We were coming to terms with the prospect that safe driving meant leaving your phone alone. 

Some drivers were putting their phones in the glove compartment or trunk of their car. 

Those choosing to use their phones while driving were at least alert to the danger, and likely tried extra hard to pay attention to the road to compensate.

Then the government threw out all that progress by banning only hand held and not hands free cell phone use while driving. The necessary implication? Cell phone use while driving must be safe as long as it’s hands free. 

Safety-conscious, law-abiding drivers paid money for hands-free technology. An entire industry segment made a lot of money. 

And our roads became more dangerous instead of less. Doubly so in fact. Not only has the overall use of cell phones behind the wheel increased, but users are clueless about the danger. 

Adding insult to injury, our government anticipated that result:

“Legislation that bans only hand-held cell conversations conflicts with the research that has consistently found no difference in the degree of distraction between hand-held and hands-free cell conversations.

“As a result, these laws may not provide the expected benefits and may even generate harmful indirect impacts such as a false sense of security for those who talk on hands-free devices while driving”

I have been quoting from a Discussion Paper: Addressing the Problem of Distracted Driving and its Impacts to Road Safety published by British Columbia’s Ministry of Public Safety and Solicitor General in 2009, a paper clearly intended to inform government policy. 

But the results were ignored.

 And British Columbians are paying for it. You might not know that crash statistics were actually improving (fewer crashes) in the lead up to 2010.

That positive trend ended, and reversed. Is that a coincidence, or a direct, predictable (and predicted) result of the idiotic law banning hand held cell phone use while driving?

ICBC will talk to your boss

Witness interviews is the form of ICBC investigation that is most, in the words of the court, “fraught with risk.”

This is the last of a three-part series reviewing the first court decision to put ICBC’s forms of investigation on trial: Williams v. Sekhon, 2019 BCSC 1511            

Mr. Williams, who had been subjected to investigations by 17 different investigators from four investigation firms, alleged that ICBC had grossly exceeded their legitimate interests to conduct an investigation, causing him psychological harm.

He sought a penalty against ICBC in the form of special costs.

Mr. Justice Voith reviewed the three forms of investigation undertaken by investigators. I reviewed the first two, open source investigation, and surveillance, in my last column.

This week, I am discussing the third: witness interviewing. Not witnesses to the crash itself. Rather, witnesses to ways injuries sustained in a crash impact on the victim’s life such as employers, co-workers, friends, family, members of a sports team.

Depending on your activities, it might include members of a church and other organizations you are part of.

The court noted that it will normally be appropriate to speak to an employer and a few past or present co-workers to learn about the loss of earnings aspect of a plaintiff’s claim.

It is also appropriate to speak to those with knowledge of how recreational and social activities are impacted by crash related injuries.

But the court also noted the problem with investigators going too far: “Excessive investigation will inevitably get back to a plaintiff and will be, at a minimum, embarrassing. If it continues, it becomes intimidating.

It also has the prospect of casting a plaintiff in a poor light with others, as someone who is not honest or who is malingering.”

How far is too far when it comes to witness interviewing?

In my first column of this series, I outlined two areas where the investigators went too far.

One was using a “shotgun approach” to contacting 17 people on the Plaintiff’s hockey team within the space of a few days. Another was showing up, unannounced at the home of a witness rather than attempting to contact them by telephone.

In the end analysis, the court did not penalize ICBC, noting that none of the investigation was done with the purpose of causing the Plaintiff distress. And that up until the court judgment, there has not been anything of an explicit direction from the court about what’s reasonable when conducting an ICBC investigation.

I have a suggestion that might reduce the embarrassment and character aspersion that can come from ICBC retained investigators prowling around to interview your employers, co-workers, friends and acquaintances.

Consider turning the negative into a positive by enlisting their help to achieve a fair result from ICBC.

Tell them that, of course, you have been totally up front with ICBC. You’ve told them that you have been able to return to most of your activities, and have returned to the work force, but with some difficulty and not as fully as you had hoped.

Your ongoing limitations are likely to be more subtle than obvious. You are actively trying to hide them, presenting a stiff upper lip. The last thing you want is pity, or to be viewed as a whiner, or as putting on an act.

Those around you might or might not be noticing the subtleties.

Be vulnerable. Share with those around you how your life is different. They might have an a-ha moment, recognizing the subtleties. Or at least start paying attention.

Let them know that an ICBC investigator or your own lawyer might contact them at some point to find out what they might have noticed of changes in you.

And if it’s an ICBC investigator, that it would be inappropriate for them to just show up at their door; that they have every right to send them away and invite them to communicate by telephone.

And if they choose to talk to an ICBC investigator, that they please require that they arrange for your lawyer to be able to listen in on the interview to avoid unfairness and miscommunications.

Perhaps start by handing them a copy of this column.

Please note that your lawyer might not agree with my suggestion. I recommend always that you follow the advice of your trusted legal adviser.

Watch for ICBC's snoops

Achieving balance is important for most things in life. ICBC investigations are no different.

Some level of investigation is important to independently test assertions made by an injured victim about how their injuries are impacting on their lives.

But if ICBC hired investigators go too far, the process

“has the potential to be intrusive, upsetting, and intimidating.”

I pulled that quote from the court decision of Mr. Justice Voith. His decision released Sept. 9, Williams v. Sekhon, 2019 BCSC 1511 is the first in British Columbia history where the appropriateness of ICBC investigation techniques was front and centre.

Last week, I provided examples where ICBC retained investigators had gone too far. This week I will outline two of the three kinds of investigations discussed in the case.

ICBC publishes a set of written standards for private investigators they retain that are available online: Performance Standards for Private Investigators.

Those standards include some excellent points, including:

“ICBC requires that the degree of investigation undertaken on a claim file be proportionate to the complexity and risk associated with the claim.”

The more significant your injuries and losses, the more likely ICBC will engage the services of a private investigation firm and the higher the degree of investigation.

And: “All investigations must be carried out in the least obtrusive way possible.”

The first type of investigation reviewed by the court was described as Open Source Investigation, which includes searching publicly accessible internet and social media sites to learn about a plaintiff’s activities and level of function.

Regarding social media, the court noted that

“All information is either posted by a plaintiff or by others with full knowledge that that information, including pictures, will be available to the public at large to view if they so desire.”

The court approved this type of investigation, which would include not only social media sites maintained by a plaintiff, but also by their immediate family and friends.

The court noted that

“All such information is public and has the legitimate prospect of providing information about a plaintiff’s activities and level of functionality.”

The court also approved the ICBC investigator’s search of publicly accessible information in the Land Title Office to learn about ownership of a home where the Plaintiff had stayed.

And also an internal ICBC search to determine vehicle ownership,

“to the extent those resources are used in a limited and fact-specific way.”

Should you restrict access to your social media postings to those you know and trust? Should you stop posting on social media for fear of an investigator seeing your posts? 

Different lawyers have different approaches and offer different advice. Consult with your own lawyer to get advice from the person you have put your trust in to handle your claim.

My advice, for most things, is to “live your life” to the fullest, allowing your claim for fair compensation to impact that goal as little as possible.

If you are honest and forthright about how your injuries are impacting on you in the claim process, social media posts will naturally not contradict that and not be harmful.

But taking reasonable steps to protect your personal and private information is important in our digital age, something you should be concerned about regardless of a claim.

The second form of investigation discussed was actual surveillance.

It can be downright upsetting and creepy to think that someone might be watching and video recording your every move!  One investigator had spent 83 hours over 25 days trying to obtain video surveillance in that case.

But it is a necessary evil, the reasonable purpose being

“to ascertain whether a plaintiff’s actual or observed level of function and activity aligns with what the plaintiff asserts he or she is capable of doing.”

The court noted, though, that surveillance should stop if the subject becomes aware that it is occurring:

“To the extent, however, that investigators become aware that their presence is known to a plaintiff, such surveillance is obviously ineffective. If such surveillance persists, its purpose necessarily changes and it is difficult to see how ongoing surveillance could be justified.”

So if you get that creepy feeling that someone might be following you around, go up to the dark windowed vehicle you suspect and ask the driver for identification.

ICBC’s written standards require investigators to provide their name and that they are retained by ICBC.

And demand through your lawyer that the surveillance stop.

Next week, I will conclude this series with a discussion of the third investigative tool: witness interviews. Not witnesses of the crash itself, but of how injuries might or might not be impacting on function, activities and work.

The court noted that this form of investigation is “most fraught with risk,” something I endorse from my own experience.

More Achieving Justice articles

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/
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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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