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Achieving-Justice

Don't go to la la land

Inattention is criminal.

Or is it? You be the judge.

R. v. Dunford, 2015 SKQB 386

Keith Dunford was driving through a highway construction zone with signs cautioning to be prepared to stop, prohibiting passing and requiring a speed reduction to 60 km/h when passing highway workers.

Quoting from the case: “Mr. Dunford, however, was not fully aware of his surroundings as he had not observed any of the signs located along the 13.1 kilometres of highway. His focus was, admittedly, elsewhere.”

His vehicle struck and killed Ashley Richards while she stood at her flagging station, which was located on a straight and flat area in Saskatchewan.

Just prior to the collision, wind through an open window caught documents on Mr. Dunford’s front seat and displaced them. He returned the documents to their folder and realized too late that he was fast approaching Ms Richards.

Mr. Dunford was found guilty of dangerous operation of a motor vehicle causing death, contrary to section 249 of the Criminal Code. He was sentenced to two years less one day in prison and prohibited from driving for three years following his release.

R. v. Mbachu, 2016 ABCA 402

Highway 567, north of Calgary, intersects with Highway 772.

In the 525 metres leading up to that intersection, travellers on highway 567 face signs saying “Important Intersection Ahead,” then “Stop Ahead,” five sets of “rumble strips,” and finally two stop signs with red flashing lights.

Mr. Mbachu drove past all those warnings. He crashed into a vehicle on Highway 772, killing the driver.

Mr. Mbachu could not remember the moments before impact and believed he might have fallen asleep.

He was found guilty of dangerous driving causing death and sentenced to two years less one day in prison.

Normand Lavoie

Normand Lavoie was sentenced on Sept. 11, 2017, to three years in prison after pleading guilty to dangerous driving causing death. I learned of the circumstances of the case through this news report: 3 Teens in Construction Zone.

Truck driver Normand Lavoie “…told police that he didn’t fall asleep at the wheel, but that he was in “la la land, basically – I’m there behind the wheel, but I’m not.”

He told police “…that he didn’t recall entering the construction zone or seeing six construction zone signs, including an electronic billboard, advising him that workers were present and to slow down.”

Mr. Lavoie had, himself, been the victim of inattentive driving. When he was a teenager, a professional truck driver fell asleep at the wheel killing his mother and grandmother and seriously injuring his brother.

His own inattention resulted in tragedy when his transport truck rear-ended, at 84 km/h, a small car that had been stopped by a flag person. The crash killed the three teenage occupants and resulted in serious injuries to a flag person.

Police Officer Killed Sept. 12, 2017

According to this recent news report, an RCMP officer in Nova Scotia had stopped to help change a tire when a van rear-ended the police car and other vehicle, killing the 35-year-old officer.

The offending driver was obviously, like Mr. Dunford, “in la la land,” zoned out. How else could he have failed to mentally process the clearly apparent, stopped vehicles?

Will there be a criminal charge, or was the period of inattention not long enough to reach a level of criminal culpability?

I don’t know.

What level of inattention should be prosecuted as a criminal offence?

Should it be a criminal offence to be driving with such a low level of attention that you can absent-mindedly blow through a stop sign or red light?

Or only if the offender failed to notice a long lead up of warning signs and rumble bumps?

What about having so little care and attention that an offender crashes into the back of stopped traffic?

Or only if it’s in a construction zone with warning signs that traffic might have to stop?

Don’t we know, getting behind the wheel of a vehicle, that traffic sometimes stops? And that some intersections have stop signs?

Should it make a difference if someone is killed in the crash? What if there are “only” permanent, life altering injuries?

In these cases, the drivers were not texting, talking on cell phones, eating, doing their make-up, or impaired by alcohol. 

They had simply “zoned out.”

Is it, perhaps, even more criminally culpable if you make the conscious choice to distract yourself from the road ahead of you by chatting away (hands free or not) on a cellphone?



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Common attitude wrong

"Accidents happen. That’s what insurance is for" is an overwhelmingly common attitude.

Just typing those words made my skin crawl.

Is insurance “for accidents?” Or does insurance actually cause crashes by removing driver accountability?

Consider the impact of the “you break it, you buy it” sign in a store displaying expensive, fragile merchandise.

You become super conscious about not bumping into a display. A loose jacket or handbag is pulled in close to ensure nothing is knocked over.

Your nine-year-old son waits at the door. Or at the very least you are holding his hand, keeping him very close to you.

What if you had to purchase breakage insurance to enter the store? If you or your son breaks something, the insurance company pays the store for the broken item.

You would no longer be “super conscious.”

Your mind would be free to wander as you browse, perhaps thinking about what to make for dinner. Your 9 year old would be free to roam, picking up and playing with whatever fragile items he comes across.

You might pull out your cell phone to have a telephone discussion, or check your text messages.

What will happen to the frequency of broken merchandise?

It’s OK, though. The store’s losses are compensated by the insurance company. The insurance company collects enough premiums to pay that compensation. 

But you have to pay the premium.

And that premium will increase as the level of carelessness and number of broken items increases.

It’s not hard to make it through the store without breaking anything. Heck, it’s easy. You just maintain your focused attention on what you are doing. 

Take away that focused attention, though, and “accidents happen.”

Breakage insurance removes your accountability. It results in a lower level of care. More items break. It’s not a stretch to say that the breakage insurance  actually causes breakages.

It’s not hard to make it from A to B on our roadways without crashing your car, either. Heck, it’s easy. You just maintain your focused attention on what you are doing.

Similarly, liability insurance removes accountability and causes crashes.

Liability insurance also protects your victims if you don’t have enough assets to pay fair compensation for the damage you cause.

How do we maintain victim protection while increasing accountability?

A steep deductible and/or other consequences that are stiff enough that we go into the cautious “you break it, you buy it” mode.

What if an absent-minded driver who crashes into the back of a stopped vehicle had to reach into their pocket and pay the first $5,000 of their victim’s losses?

And spend a weekend attending a road safety awareness program.

I say that’s a sure-fire, guaranteed way to reduce crashes. I’d bet my house on it.

Reduced crashes means reduced insurance premiums to pay for those crashes. Our ICBC premiums will go down instead of up.

Are you willing to become accountable for your driving behaviour?

Given the option, would you choose:

  • to pay the increased ICBC premium in the range of $130.00 annually, or
  • pay a reduced premium but take on personal accountability?


Shoo away debt vultures

If you lose your financial footing, how do you stop the circling vultures from peck, peck, pecking away at you?

It would be an understatement to say that we are “encouraged” to go deeper and deeper in debt. Debt is almost rammed down our throats.

Credit cards are routinely peddled at check outs. Unsolicited credit card offers come in the mail. With ultra low interest rates, financing the purchase of bigger ticket household items and vehicles has become the norm.

According to Statistics Canada, the ratio of household debt to personal disposable income increased from 66 per cent in 1980 to over 150 per cent by 2011, and is continuing to rise.

Why are we encouraged to borrow more and more money?

Credit is big business, and they get us coming and going.

Credit-card companies are particularly bad. They push their high reward cards to you and me, and then stores are dinged 1.5-3 per cent of every purchase.

They are cashing in before the interest clock even starts to run. No wonder it’s so easy to get a credit card.

And defaulting borrowers are a cost of doing business. That’s true for any business that extends credit.

Is a layoff or other unforeseen event making it impossible to keep up with your debts?

Please don’t let feelings of shame creep in there. Your default is a statistical expectation. They planned for it.

But like a dog with a bone, they’re not going to let go of collecting on that debt.

It’s not them as much as the debt-collection company that gets paid a percentage of whatever they’re able to squeeze out of you.

Those are the circling vultures I was referring to, peck, peck, pecking at you.

Because they are paid based on success, they are highly motivated. That high motivation can lead to harassment.

There are laws to protect you from harassment in debt collection. In British Columbia, we have the Business Practices and Consumer Protection Act. 

Here is a link to section 116 of that act, within Part 7, Debt Collection.

The descriptive heading for section 116 is Communication with Debtor.

Highlights from that section:

  • There are very strict restrictions about contacting you at your place of employment. They are prohibited from doing so at all if they can contact you through your home address, telephone number or electronic mail address;
  • You can stop telephone calls dead by giving them a mailing address and saying: “Communicate with me only in writing. Don’t ever call me or anyone else about this debt again!”; and
  • If you tell them the debt is in dispute and that you’d like them to take the matter to court, they are prohibited from communicating with you at all, except through the court process.

Are they likely to use the “court process?" It depends. Debt collection is a business. 

It costs very little to make harassing phone calls. It costs a whole lot more in time and expense to commence and prosecute a legal action. Use option three and you might well find that you never hear from them again.

Will the debt haunt you for the rest of your life if you don’t pay it? Unlikely. Most debts disappear in a puff of smoke within two years unless a “court process” has been commenced to enforce the debt (See the Limitation Act). 

That is, unless you make a payment or do something else to, in the words of section 24 of the Limitation Act, “acknowledge liability," which can result in the two-year clock starting all over again.

Stopping the pecking provides only temporary relief. Debt stress can be very harmful to your physical and mental health.

Reach out for help, both to treat as well as to take concrete steps to eliminate the stress.

I very strongly encourage anyone facing unmanageable debt to have a free initial consultation with a Trustee in Bankruptcy or other trusted consultant to learn about all sorts of options that might be available to you, ranging from eliminating debt and starting over through bankruptcy to a simple consolidation.

There are all sorts of creative options that can help you regain your financial footing.





Adjust whiplash protector

Improper headrest adjustment is one of many standard allegations ICBC makes against victims of negligent driving.

The allegation is almost always made in a formal document called a Response to Civil Claim.

A recent example: “The Plaintiff … failed to properly adjust the headrest devices installed in the motor vehicle in which the Plaintiff was riding.”

It’s almost comical when our lawyers ask offending drivers about the allegation during an Examination for Discovery. How could they have noticed headrest positioning if their level of awareness was so poor they crashed into the back of the victim’s vehicle?

ICBC lawyers usually try to prove the allegation through the injured victim. Unless it is your diligent practice to always adjust the headrest, how could you say for sure what your headrest positioning was two or more years after a crash?

Why does it matter?

The law places a legal duty on us to reasonably look out for our own safety. If we fail to, and our injuries would likely have been reduced had we done so, our entitlement to fair compensation for those injuries can be reduced.

It’s called “contributory negligence.”

The same goes for failing to wear your seatbelt.

But, you may ask, isn’t headrest adjustment different from wearing a seatbelt? There is no law requiring headrest adjustment.

There is also no law prohibiting texting and walking, but if you trip over a sidewalk hazard, an injury claim will be met with an allegation of contributory negligence.

Do you diligently ensure that your headrest is properly adjusted? Do you even know what it means to properly adjust your headrest?

I strongly suspect that you don’t.

My suspicion comes from the fact that almost nobody I observe riding as a passenger in my vehicle pays any attention to headrest positioning. Children and adults alike.

People don’t understand the importance of a headrest. Perhaps it’s because of the name: “headrest.”

They didn’t become mandatory safety mechanisms in vehicles sold in the United States in 1969 (later, I assume, in Canada) because we need a place to rest our heads. What a ridiculous name!

How about calling them “whiplash protectors.”

They became mandatory because of what happens to the head and neck during a collision, particularly a rear-ender.

Your stopped vehicle is abruptly propelled forward. Without a “whiplash protector,” your entire body except your head is pushed violently forward by the seat. Your rag-doll head stays put, but, in effect, flips back over the top of the seat, harmfully extending your neck.

See for yourself. Here is a link to a YouTube video that shows in slow motion what happens in a rear-end collision. Consider what would happen if the “whiplash protector” was not in place.

So what does “properly adjusted” mean?

Here is a link to ICBC’s advice on the matter. Quoting from ICBC:

  • Make sure the top of the head restraint is at least level with the top of your head; and
  • Position the head restraint so it's as close to the back of your head as possible. You may need to adjust the back of the seat.

I was prompted to write about this topic when going truck shopping this past weekend. I’m not a “truck guy,” whatever that might mean, but my wife has become a “travel trailer girl,” so what choice did I have?

I might be the only guy, ever, who has made a truck purchase decision based on headrests; not on brands that truck companies spend so much money advertising.

All three back seats in the one I chose have headrests, which was more than could be said for at least one competing brand.

I don’t move my vehicle until everyone has properly adjusted their “whiplash protectors.”

Please do the same favour for your passengers. Remember to adjust yours when riding in or driving an unfamiliar vehicle.



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



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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