Stay off the phone!

I’m not a perfect physical specimen.

If you know me, you are likely rolling your eyes and muttering: “Really? You don’t say!”

Not a perfect psychological specimen either.

“No sh** Sherlock!”

I’m functioning really well, though.

After over 20 years in the legal profession, I’m trying to cut back on office hours, but can still put in a 14-hour day.

And over 30 years since learning to drink in the Canadian military, I’m trying to cut that back as well, but for the most part, I live my life without hangovers.

If assessed by a medical specialist, her opinion would be along the lines of Newton’s first law of motion:

“…An object in motion stays in motion with the same speed and in the same direction unless acted upon by an unbalanced force.”

In other words, I’m likely to continue functioning well unless something significant occurs.

Tomorrow, I am sitting at a complete stop at a red light. A driver is chatting away on a cell phone, using perfectly legal (though perfectly dangerous) hands-free technology. 

Distracted, he crashes into the back of my car.

I’m fine, at the scene. No broken bones. It takes time for the sprained/strained tissues in my neck and back to become inflamed and painful.

The next morning, I can hardly get out of bed.

I participate fully in whatever care is recommended, but never fully recover. I am left with chronic lower-back and neck symptoms. 

I self-medicate with alcohol to the point that I’m waking with a hangover more often than not. And I have become depressed.

An ICBC appointed medical specialist conducts an “independent” medical examination. 

The specialist reports, accurately, that had I been in better physical shape, it is unlikely that I would have developed chronic pain. 

Had I been in better psychological shape, I would not have become a dysfunctional user of alcohol, nor would I have become depressed.

Had I been a perfectly well adjusted 19-yea-old gymnast who had never touched a drop of alcohol, I likely would have made a complete recovery. 

ICBC blames my relatively deconditioned 47-year-old body and psychologically imperfections for the chronic pain and depression.

Because absent those attributes, I would have enjoyed a complete recovery.

Is that fair? 

Absent the crash, I wouldn’t have been injured in the first place. 

Absent the crash, my 47-year-old, psychologically imperfect self would have “…stayed in motion with the same speed and in the same direction….”

How does the law wrestle with this situation?

This is the simplest, but worst understood principle of personal injury law.

The legal principle is that “You take your victim as you find him."

Crash into the back of a car occupied by a 19-year-old, psychologically perfect gymnast whose injuries 100 per cent completely resolve, then lucky you. 

Your liability insurance company, ICBC, will have to pay only a small amount of financial compensation on your behalf for the small amount of damage you caused.

Crash into the back of a 47-year-old, physically and psychologically imperfect lawyer who ends up developing chronic pain and depression, the law makes you 100 per cent responsible for all those consequences.

While a common negotiating tactic, “blaming the victim” doesn’t hold water in our legal system, at least not on this point.

And please, please remember that very few road users are perfectly adjusted, 19-year-old gymnasts.

Pay your full attention to the road ahead of you and stay off your damned phone.


Stay safe: tick someone off

A Kelowna “N” driver veered out of his lane last week.

The high-school student was about to turn into the Rutland Senior Secondary school parking lot.

One of my staff, in the next lane, swerved to get out of the way, but there was still minor contact between the vehicles.

The student’s explanation? He had been texting.

My staff member was able to brush off the paint that had rubbed off from the teenager’s vehicle, leaving no lasting damage. And she was not injured.

Contrast that with the 19-year-old in Gatineau, Que., who on June 8, veered out of her lane killing an oncoming motorcyclist. 

And the 20-year-old that same evening, near Clinton, who veered into the oncoming lane of a semi-truck causing both drivers to lose their lives.

We don’t know what, exactly, distracted those two drivers, but it doesn’t matter.

It’s even less technically difficult to keep a vehicle between the lines than it is to do so with a crayon and a colouring book.

It’s never a matter of technical skill that causes these crashes, it is a lack of attention. 

Whether it’s a text message, cell-phone discussion or daydreaming that distracts you from that critically important task, it’s all distracted driving.

But as I’ve illustrated, consequences can be dramatically different.

And there’s the true problem.

There are zero consequences of distracted driving 99 per cent of the time. Perhaps it’s more like 99.9 per cent of the time.

You catch yourself veering out of your lane from time to time, miss the odd turn-off, and have those “heart in throat” close calls every once in a while. But, thankfully, no crash.

It is only that one in 100, or one in 1,000 circumstance when lack of attention will lead to a crash.

The thing is, the more kilometres of crash-free inattentive driving:

  • the more complacent you become about your own inattention behind the wheel, and the more the odds stack up against you that the 1 in 1,000 circumstance will arise.

It’s the same for impaired driving. 

When we hear about the kinds of horrific crashes that occurred last week, we tend to think: “that’s never going to happen to me.”

Because it hasn’t.


Please make a personal commitment to pay direct attention to the road, 100 per cent of the time. 

And please demand that of others around you as well. 

How about take the simple, but important step of refusing to engage in a telephone discussion with someone who is driving?

If you get the reaction: “It’s OK, I’m talking hands-free,” please educate them that it’s most certainly not OK, because talking hands-free is just as distracting as having one hand up to your ear.

Want ammunition for the proposition to avoid talking on hands-free while driving? Send them these links:

You’ll piss off some people, but you’ll make our roads safer.

Surprise: daughter's 16

Sweet 16 and, “surprise!” my daughter is behind the wheel.

OK, more like a frog slowly heating up in a pot, but still a surprise to my heart.

I so clearly remember the 15-minute naps on the living room floor while Cassidy toddled back and forth from her bedroom, one stuffy at a time clutched in her hands, until I was buried.

Those memories stand in stark contrast to seeing her hands on a steering wheel.

What happened to all that time in between?

She was excited to go out the evening she got her L.

I planned to oblige.

When I got home, my wife passed on a caution, by the ICBC representative who processed the L licence, to ensure our vehicle insurance would cover her driving.

That had not occurred to me.

Sure enough, the “Vehicle Use” section of my insurance papers, a section that should jump out because it’s in capital letters, said that members of my household driving the vehicle “…MUST HAVE HELD VALID DR LIC FOR 10 YRS.”

I’m guessing that restriction has been on my insurance since I purchased my vehicle in 2004.

I don’t remember clearly, but our plan must have been for my stepdaughter, who was 16 at the time, to learn to drive on the older family vehicle.

I’ve not been reminded of that restriction because at renewal time, I am too impatient to let the insurance agent go over things with me and insist that we “move on” to sign the papers.

I got an immediate cold chill, thinking about how close I had come to having an uninsured vehicle on the road.

I had a valid, up-to-date insurance policy. But the restriction on my insurance meant that with Cassidy behind the wheel, it was as if the policy did not exist.

And could anyone be more aware of the risk of driving without insurance than a personal-injury lawyer?

The risks are immense.

Our civil justice system makes those who cause injuries and damage to others personally responsible to financially compensate their victims for those losses.

Damage to a vehicle can range from a few hundred dollars to over $100,000, depending on the cost to repair and the type of vehicle.

More importantly, damage to vehicle occupants can result in losses costing millions of dollars to fairly compensate.

If you have a valid insurance policy that insures the particular use of the vehicle when a crash occurs, your liability insurance company, ICBC, steps in to pay that compensation for you. 

If not, it’s coming out of your pocket. You might lose your car, house, life savings and face bankruptcy.

I “walk the talk” of my road safety campaigning and pay attention when I drive. It doesn’t take much more than that, by the way, to avoid causing a crash. 

The risk of me causing a crash is very, very low.

I can’t be certain about the level of care of others driving my car, though, particularly a brand new driver.

Did you know that you are personally responsible for the negligent driving of others who drive your vehicle?

Section 86(1)(b) of the Motor Vehicle Act has the effect of making me (the vehicle owner) personally responsible for the negligent driving of anyone I allow behind the wheel.

That means that if my brand-new driving daughter had caused a crash, I would have been the one paying compensation to the victims out of my own pocket.

I am very, very thankful for the helpful ICBC representative who raised the issue with my wife when Cassidy got her L. We paid the extra few bucks to remove the restriction, and Cassidy is already well on her way to becoming a safe driver.

What I’d like for you to take away from this column:

  • Read your insurance policy. Every time you renew it. You will be reminded of its terms and can re-evaluate if they continue to apply to your situation;
  • It’s not enough to have a current sticker on your licence plate. You are still driving without insurance if the particular driver or vehicle use is not covered by the policy;
  • Just because you are insured when you are behind the wheel doesn’t mean others are. If not you will face paying compensation to their crash victims out of your own pocket; and
  • Embrace every moment you have with your children. They grow up too fast.

And please give driving your undivided attention. The need for, and cost of, liability insurance would take a nose dive if all drivers would simply do that. 

Take a stand for road safety and sign this petition to encourage our new political leaders to bad all cell phone use while driving.


In the dark about ICBC

This common Internet search: “Average ICBC settlement for rear ender,” tells me how “in the dark” people are about ICBC claims.

Because the question makes no sense.

The size of a claim has nothing to do with the type of crash. Nor with vehicle damage.

Can rear-ender crashes cause injuries resulting in pain and other symptoms that last the rest of a victim’s life?

Unfortunately, yes.

And it’s not a “once in a long, long while” thing, either. Rear-ender crashes, resulting in chronic, life long injuries, represent approximately 50 per cent of my practice.

In fact, one of the largest ICBC claims in history arose from a rear-ender. And there was very little visible damage to the vehicle. The victim, an emergency room physician, will never fully recover.

And knowing an “average” personal injury claim is about as helpful as knowing the average number of leaves that fall in British Columbia yards. A yard with no trees will have no leaves. Depending on the number and size of trees, there could be millions.

The true determining factor for the size of a claim is the size of the victim’s loss.

Until we come up with some other method of compensation, all we’ve got to work with to compensate innocent victims is dollars and cents.

The greater the victim’s losses, the greater the number of dollars required for fair compensation.

Just like there are many yards with no leaves, many crashes occur without the occupants suffering any injuries at all. The most recent crash statistics published by ICBC are for 2015. Injuries were reported in only 57,000 of the 300,000 total crashes.

Being the occupant of a vehicle involved in a rear-ender or any other crash does not automatically result in an ICBC claim. If you were not injured (physically or psychologically), your claim (aside from property damage) is zero.

Zero loss requires zero compensation.

Of those injured, many will enjoy a 100 per cent complete recovery. Within a few days, weeks, perhaps a few months, they will feel as if the crash had never occurred. 

I consider those lucky ones who enjoy a complete recovery to have suffered the most minor of injuries. The injuries won’t feel “the most minor,” though, particularly during the first few days when they are so seized up they can barely move.

Those “most minor” of injuries might or might not force you to miss work, but if they do the lost income is temporary. The need for care is also temporary. Fair compensation for these most minor of car crash injuries is often something less than $10,000.

Don’t you dare rely on this column to give you the value of your claim, though. 

The value of a claim always depends on your particular circumstances. 

Take advantage of a free consultation with a personal injury lawyer before making any decisions about your claim.

Then, there are the truly unlucky ones: those who will never fully recover from their injuries. The starting point for fair compensation for a permanent injury (or permanent worsening of a pre-existing condition) is in the several tens of thousands of dollars. 

Add income loss, loss of income earning capacity and what might be a lifetime of therapy, and these losses regularly exceed $100,000.

Do you have dollar signs in your eyes? Give your head a shake. A large claim is not a good thing. It means that so much has been taken away from you. 

The very best that our civil justice system can do is to try to give back what has been taken away. There is no “bonus.” When you take off legal fees, the best you can hope for is recovering compensation for perhaps two thirds of your losses. 

It is those unlucky ones who most need to be advised about how to protect their rights. So often, important evidence is lost and rights compromised because injured victims are reluctant to get early advice. 

It is impossible to accurately predict, during those first few days or weeks after a crash, whether or not you are going to be lucky and enjoy a complete recovery. 

Getting informed about your claim does not mean you have to hire the lawyer who advises you. I actually discourage retaining a lawyer during the first weeks to several months immediately following a crash. 

But get advised, please, as immediately as possible after a crash.

Were you shocked about the 300,000 crashes that occur annually in British Columbia? This growing number represents one crash every approximately one and three quarter minutes. The vast majority of those crashes were entirely preventable with the most minimal of care.

You don’t have to be a highly skilled driver to keep your vehicle between the lines and avoid crashing into things. All you need to do is pay the hell attention.

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
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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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