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Achieving-Justice

Don't roll the dice

Most of the time we can get away following traffic signs and signals and what we see out of our windshield and mirrors.

The more we get away with it, the less value we see in doing anything more.

The baby’s death at the drive-in theatre on Montreal’s South Shore last month was an extremely low likelihood, tragic event. But that’s the nature of probabilities.

Low likelihood events do occur.

Readily available statistics from the United States indicate that approximately 18,000 people are injured every year in what they refer to as “backover” collisions, 3,000 of whom suffer incapacitating injuries. About 300 people are killed. (Fatalities and Injuries in Motor Vehicle Backing Crashes, November, 2008) 

In most circumstances, you can get away with relying only on mirrors to reverse because there’s nothing in the mirror blind spots. But every time you do, you are rolling the dice.

It feels like a pain in the butt to walk to the back of your vehicle to look in those mirror blind spots. And even if you have back-up cameras, to look at what might be coming from the sides. 

But these are important driver behaviours that will become second nature over time if you work at it. 

There are other driver behaviours that must become second nature if you want to stop rolling the dice when you drive. 

One is stopping before the sidewalk when coming out of an alley or driveway.

Most of the time you will get away with rolling through, stopping only as necessary to look for vehicle traffic on the street. But you’re rolling the dice on the unlikely event of a pedestrian, jogger, roller blader, cyclist or yes, a baby stroller, coming out from behind a hedge just as you roll through. 

Not that good driving habits require a law, but this driving behaviour is actually mandated in section 176(1) of the Motor Vehicle Act.

If you work at making it a standard, “every time” practice, this important driving behaviour will become second nature as well.

Another important one has to do with turning left at intersections with traffic lights. You feel anxious to complete the turn as soon as the light turns yellow. And even more so after it turns red.

But oncoming drivers blow through yellow lights all the time. And they blow through reds often enough that there are “red light cameras” to catch those extra dangerous drivers.

You are rolling the dice if you don’t wait until you are absolutely certain that vehicles in all lanes of oncoming traffic are going to stop.

Again, not like it matters but this defensive driving behaviour is also mandated. Section 174 of the Motor Vehicle Act  requires a left turning driver to yield to oncoming traffic that is “so close as to constitute an immediate hazard.”

That section isn’t qualified by “unless they should have stopped or should be stopping for a red light.”

If you make this an “every time” practice, you will likely have to suffer through the blaring horns of impatient drivers behind you, but you will avoid falling victim to one of the most common types of very serious crashes I see.

Off the top of my head, here are a few more driving behaviours that must become “every time” behaviour patterns if you want to stop rolling the dice:

  • Left mirror and shoulder checking before making a left turn other than at an intersection. You would be surprised how many crashes occur when a passing vehicle crashes into a left turner;
  • Right mirror and shoulder checking every time you are moving right, something often forgotten when passing through bicycle lanes and non-laned bicycle areas;
  • Rear mirror checking before hammering the brakes to avoid hitting a small animal; and
  • Regularly traction testing the roadway in winter road conditions.

How about help me make a more comprehensive list? 

Please post or e-mail me with your ideas of safe driving behaviours that you can get away without doing most of the time, but must become second nature “every time” behaviours if we want to stop rolling the dice.





Learning from tragedy

I believe that something good can come from the deepest of tragedies.

Prepare your heart if you choose to read further. Though the greater the shock to your heart, the more likely it will trigger the “something good” I am talking about.

And, please, don’t villainize those directly involved in the tragedy I am about to share.

There is a tendency to do that. Like we villainized the truck driver in the Humboldt Broncos crash.

I believe that tendency to be something of a defence mechanism. The more we focus on the bus driver as being the villain, the less we have to face the painful realization that we could cause a similar tragedy.

That each of us sometimes allows our minds to wander behind the wheel. That each of us sometimes fails to notice what’s right there to be seen. That if circumstances line up horribly perfectly, each of us could fail to notice a stop sign.

It is by looking in the mirror and facing that painful realization that something good can flow.

  • We might choose to increase our level of attention behind the wheel.
  • We might realize that this is something that does not come naturally, and takes work.
  • And we might make the choice not to do things that actively remove our brains from the task at hand.

And that would be a beautiful legacy left by all of those whose lives were lost or forever altered.

Late Wednesday night, July 31, while everyone was packing up and leaving a drive-in theater on Montreal’s South Shore, a vehicle backed over a small tent where a four-month old baby was sleeping.

According to the news report I read, "Police believe it was an accident and do not expect charges to be laid."

Well, of course, it was an "accident" in the sense that it was unintentional. As was the Humboldt Broncos crash.

The driver did not intend to drive over a sleeping baby. The driver reasonably expected that everyone was up and about, putting lawn chairs away and getting into their cars.

Anyone behind their vehicle would be visible through the rear-view and side mirrors, lit up by the reverse lights.

Who would have expected there to be someone below the field of view, let alone a small tent with an infant?

Could it have been you?

Or do you take the steps necessary, every time, to ensure you do not hurt someone when you put your vehicle into reverse?

If you don’t have a back-up camera, it is imperative to put eyes on the area behind your vehicle before you get in. Not just to see what’s there, but also to see if someone nearby might get there before you start reversing.

And a back-up camera won’t help you see down the sidewalks and street if you are backing out of a driveway with a blocked view.

By taking just a bit of extra time, you can achieve certainty about what is behind you before you reverse. If you don’t, you risk circumstances lining up horribly perfectly like they did for the driver who killed that baby.

If your heart has been shocked into taking those steps from now on, remembering that baby every time you put your car in reverse, something good will have come from that horrible event.

There are other driving behaviours that would best become standard, “every time” things. If not, you might go your entire lives without facing horrible consequences.

But you will be continually putting yourself and others at risk of circumstances lining up like they did for the driver who killed that baby.

I will go over some of those other driving behaviours in my next column.



E-scooters can be dangerous

This week, I discuss legal implications of injuries caused by e-scooter use.

Studies I shared last week indicate that serious injuries are sustained in approximately one of every 5,000 e-scooter uses. And about one in every 22 are pedestrians hit by an e-scooter.

I was not intending to be alarmist. It’s straight forward math to calculate the huge number of e-scooter uses per pedestrian casualty. But it’s a certainty that over time serious injuries will occur.

The statistics were not based on skinned knees. They were based on attendances at hospitals where 19 per cent had fractures over multiple areas of their bodies and 15 per cent had evidence suggestive of a traumatic brain injury. 

I understand from news reports that e-scooter use is restricted to designated pathways in Kelowna. But that’s not what I’m seeing. 

During a short trip through downtown Kelowna on the weekend, I saw several e-scooters on streets and sidewalks, including two scootering against traffic along Bernard and then zipping onto the sidewalk at Water Street.

Does the value of e-scooters outweigh the public safety risk? 

I don’t know. Regardless of that debate, people are going to get hurt. Including innocent pedestrians.

Those casually picking up an e-scooter do not have the benefit of all the warnings you find in owner’s manuals. Nor do they benefit from the statistic that approximately one-third of those suffering serious injuries on e-scooters are first-time users. 

And they are unlikely to put their minds to legal implications if their e-scooter use causes someone else to be seriously hurt. 

Any time I’ve rented a car, a sales pitch is made for increased liability insurance because the rental agreement comes with only the minimum amount for the jurisdiction. 

Liability insurance is not raised at all when you rent an OGO Scooters e-scooter.

But, of course, you must click on a button that affirms you have read and agree to an “Acknowledgement of Risk and Release of Liability.”
Those familiar with my column know how much I despise unfair releases. 

It makes sense that you should not be able to make a claim if you are hurt because of your own carelessness.

But the release goes beyond that to things only within the control of OGO Scooters and the manufacture.

It includes:

“….without limitation, claims for injury or death resulting from an alleged defect in the design, manufacture, marketing, sale, distribution and/or maintenance of the eScooter.” 

Of interest, the “How to Ride” instructions on the OGO App contain incorrect instructions about how to stop the thing.

It says to “Press down throttle with right thumb to accelerate” in the “How to Start” window, and “Press down throttle with right thumb to slow down…” in the “How to Stop” section. 

But you agree not to claim against them if you hurt yourself following those instructions. Or a throttle sticks. Or whatever else might go wrong because of defects in design, manufacture or maintenance. 

And there is no insurance coverage if you collide with and injure a pedestrian.

Or get in the way of a car whose driver swerves to save you but hits someone else. 

I hope we would all agree that if you collide with and injure an innocent pedestrian, you should be responsible to compensate the victim for their injuries, harms and losses. Not made up ones. Real ones. Like the expense of care. And time away from work. And feeling pain and discomfort.

If you do that driving a car, your ICBC liability insurance kicks in. Your victim doesn’t have to chase you down for compensation. Instead, they deal with ICBC.

Home and rental insurance policies often include liability coverage.

I’ve looked at my own home insurance. My policy covers me and my family for operation of an electric bicycle (as long as it is incapable of exceeding 32 km per hour). And “electric vehicles for children not capable of exceeding a maximum speed of 10 km per hour.” 

But coverage does not appear to be included for the use of the adult e-scooters that have hit Kelowna streets.  And not everyone has house or rental insurance policies.

In my view, e-scooter rentals should be mandated to include liability insurance for the rider so that a victim has an insurance company to turn to for compensation of losses.

And their release should not be permitted to include a bar from claiming against the e-scooter provider for their own negligence in design, maintenance and instruction.





E-scooter 'storm' coming?

My wife, watching two young girls scoot around the Dolphin fountain in Kelowna, texts me:

“Column topic – those e-scooters look dangerous as hell. Going faster than a bike – no helmet and way more potential of falling.”

Another text: “Next column topic – if they run into and injure someone – how do they recover compensation.”

OGO Scooters launched Western Canada’s first rideshare scooter program in Kelowna within the last few weeks. Is there anything to be concerned about?

While new to Western Canada, we can look to the experiences of our neighbours to the south for an idea of what to expect.

An April 17, 2019, report of the National Association of City Transportation Officials estimates that 38.5 million trips were taken on shared e-scooters in the United States in 2018.

And their safety has been studied by reviewing data collected from hospitals. That data understates injury statistics because only the most serious of injuries would result in a trip to a hospital.

One study was conducted in Austin, Texas, where e-scooters first appeared in early April, 2018.

The study identified 190 e-scooter related casualties over an almost three month period from Sept. 5 and Nov.30, 2018.

More than one-third had sustained a fracture. Of those:

  • 19% had fractures over multiple areas of their bodies
  • 15% of all those injured had evidence suggestive of a mild traumatic brain injury
  • Three per cent had fractures involving the head.

E-scooters had taken Austin by storm, though.There had been close to a million e-scooter trips over that same time period. The authors of the study estimated an injury rate of approximately one casualty for every 5,000 trips.

Perhaps not unexpectedly, approximately one-third of those injured had been on their first e-scooter ride.

There’s an important caution for those, like me, who might feel capable of hopping on even though I’ve never even been on a manual or “kick” scooter before.

What about pedestrian safety?

Another study, published Jan. 25, helps identify pedestrian risk. Approximately four and one-half per cent of e-scooter casualties were pedestrians hit by an e-scooter.

That’s one in every 22 e-scooter casualties.

In this news report, OGO co-owner, Chris Szydloski, was quoted as saying “Our key focus is safety…”.

With regard to speed, the report notes that “While they have top speeds of up to 45 k/hr they will be regulated by geographic area so will go very slowly in congested areas and up to about 25 km/hr in less congested areas.”

I don’t know if my wife’s observations support that assertion. And 25 k/hr is quite a clip.

There might be good reasons why several large cities, including New York City and St. Louis, have banned e-scooters, as indicated by this report Does the risk of injury to users and innocent pedestrians outweigh the value of e-scooters? 

As fun as they might be, I don’t see the kinds of transportation and environmental benefits flowing from e-scooters like I do from their larger and safer cousin, the e-bike.

Next week, I will answer my wife’s second query: who do you turn to for compensation if you are injured by an e-scooter rider?



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/
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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