Brains fill in the gaps

An ATV and dirt bike collide at a blind corner on a winding dirt road. Mr. Bye, the biker, suffers injuries and losses assessed at over $3 million. 

The stakes are high in the assessment of “who’s at fault?”

And the cards are stacked against Mr. Bye.

It’s his word against the testimony of the ATV rider, Mr. Newman. But Mr. Newman has the support of a buddy and two co-workers who testified about the positioning of the ATV, dirt bike and Mr. Bye in the immediate aftermath of the crash.

That positioning is critical to figuring out who was on what side of the road at the time they came around that blind corner.

Thankfully, Mr. Bye had a guardian angel. This acquaintance went to the scene six days after the collision and took photographs. 

Had those photographs not been taken, there would have been no evidence to support Mr. Bye’s version of events. The photographs showed two critical pieces of evidence:

  • the blood stain marking Mr. Bye’s resting place
  • the location of a skid mark

After very carefully reviewing the evidence, Madam Justice Choi found in favour of Mr. Bye. She found that Mr. Newman, who had been rounding the blind corner to his left, had cut the corner, coming over onto Mr. Bye’s side of the road.

She found that Mr. Bye attempted to avoid the collision by turning to his right, but he turned too sharply and his attempt failed.

The judge did not call the buddy and co-workers of Mr. Newman liars.

When referring to the buddy’s evidence, she said:

“While I believe Mr. Whyte did his best to be a credible witness, I cannot accept that he is a reliable one….” She noted that he had spoken to Mr. Newman a number of times about the incident and concluded:

“I find it likely that Mr. Whyte’s attention, when he arrived at the accident scene, was focused on helping Mr. Bye and contacting emergency services. Since then, he has inadvertently filled in the gaps in his memory through supposition and conversations with Mr. Newman. I am, therefore, hesitant to place much, if any, weight on his testimony, except where it accords with other reliable evidence.”

She had similar comments about the evidence of the two co-workers.

This case highlights the lack of reliability of eye witnesses. Our brains naturally, and not on purpose, “fill in the gaps.” As we become aware of inconsistencies in our own memories, we puzzle and re-think and our memories adjust to reconcile those inconsistencies. 

Over time, it becomes very difficult to differentiate between our true memories, and the “gap fillers” and adjustments. 

This is why it is so critical to “preserve evidence” with such things as photographs and journaling.

But what about Mr. Bye’s failed attempt to avoid the collision? Had he reacted differently, perhaps his very serious injuries could have been avoided.

It was argued by Mr. Newman’s lawyer that if Mr. Newman was found to have been negligent, Mr. Bye had contributed to the collision and liability should be apportioned between them.

Madam Justice Choi reviewed the law on this point. She noted that:

“The law does not expect perfection from a person put in danger by another’s negligence. Where a person must respond immediately to a dangerous situation, the court will not require them to take the safest possible course in order to avoid liability.”

She concluded as follows:

“I find that, to the extent that Mr. Bye’s decision to turn contributed to his injuries, he acted in the ‘agony of the moment’; Mr. Bye had little time to address the risk Mr. Newman’s negligence had created, and it is not reasonable to use the considered perfection of hindsight as a measure of his response.”

The result was that Mr. Newman was found 100 per cent at fault for the collision.

If you are interested, click on this link to read the judgment: Bye v. Newman, 2017 BCSC 1718.

This party could save a life

A distraught mother is brought into the emergency room to hold her son’s hand while the trauma team does their very best to keep him alive.

She pleads, though tears and sobs, for reassurance that absolutely everything is done to save her son.

A group of high-school students and I were right there in the room while the young man was being intubated, a chest tube inserted, and a paramedic was performing chest compressions.

We know, in our heads, that risk taking behaviours can end badly. Seeing it happen right there in front of us helped us feel it in our hearts.

I had no awareness of the P.A.R.T.Y. (Prevent Alcohol and Risk-Related Trauma in Youth) program until my stepdaughter, Nicole, suggested that I sponsor it. 

There were two cycles of the program, one on Oct. 2 and the other on Oct. 3, 2017.

A firefighter, paramedic and police officer took turns sharing their perspectives in the parking lot, standing in front of a smashed up car that had been brought in for the occasion.

We cycled through the very realistic trauma scene that I described, and then down we went to the morgue.

Yes, the morgue! How poignant, to be standing there surrounded by the stark reality of death as the coroner describes what it’s like to have family members identify a loved one’s body.

A visit to the rehabilitation unit, where we saw a display of prosthetic devices, helped us also “feel” the long term impacts of injuries.

This program would not be offered in Kelowna if not for the initiative of RCMP officer Const. Sherri Lund. When she became a school liaison officer several years ago, she looked for meaningful ways she could make a difference in our community, and found the P.A.R.T.Y. program.

She expressed her gratitude for the incredible efforts of so many people who have contributed to making the program a reality in Kelowna.

We all owe a debt of gratitude to Cst. Lund and the entire team of people who are helping our young people really feel the potential consequences of risk taking behaviours. 

Thank you!

Unfortunately, though, only a small portion of our high-school population benefits from this program.

If you have a child in, or approaching high school, I encourage you to look into ensuring that your son or daughter is one of them. If demand for the program exceeds supply, pressure will hopefully be put to expanding it.

My sponsorship of the program fits within my One Crash is Too Many road safety campaign. Sponsorship also afforded me the opportunity to give my own presentation at the end of the day.

It is doubtful that many high-school students read opinions pieces on online news sites. It felt meaningful to me to share my road safety messages directly to these budding new drivers.

I told them that I don’t think their attitudes needed adjusting. Rather, they are our best hope for taking a leadership role in adjusting the poor driving attitudes of those they are about to share the responsibility of driving with.

I offered them a tool for taking that leadership role, by entering this year’s One Crash is Too Many video contest.

If you or someone else in your life is interested in vying for cash prizes while crafting road safety messages, please pass on the link to the contest: One Crash is Too Many Video Contest

Waivers unfair, dangerous

Another injured victim goes uncompensated because of a waiver, despite clear negligence.

This time, an adult snowboarder at Big White, boarding from one of the easiest runs, Highway 33, down a known path to a parking lot.

Access down the path was permitted by a wide gap in a rope line that is erected and maintained by Big White along ski runs to warn of hazards.

Big White was also responsible for snow removal in the parking lot at the bottom of the path. One morning, while Gary Fillingham and his family were enjoying the mountain, the removal of snow along the bottom part of that path created a sudden, 10-foot drop-off.

The contractor doing that snow removal failed to close the gap in the rope line to warn of the hazard that had been created.

Mr. Fillingham suffered serious injuries when he encountered that sudden drop-off and fell to the parking lot below.

Madam Justice Adair, in her Sept. 26, 2017, decision of Fillingham v. Big White Ski Resort Limited, 2017 BCSC 1702, found that the snow removal contractor had been negligent.

But she dismissed Mr. Fillingham’s lawsuit because of the waiver.

This is a timely reminder of the unfairness of waivers as we gear up for another ski season in the Okanagan.

It is fair and reasonable that a ski resort be protected from frivolous lawsuits. Skiing and boarding are higher risk activities. We shouldn’t be able to sue for injuries arising from commonly known and understood risks of the activities we choose to participate in.

But it’s a completely different story when the ski resort, itself, causes a dangerous hazard.

Should we be upset with Madam Justice Adair for upholding the waiver in this case? No. She was applying the law.

A change of the law was recommended 23 years ago in an October, 1994 report of the Law Reform Commission of British Columbia. Here is a link to the Executive Summary and Recommendations.

The executive summary notes a lack of public understanding of how powerful waivers are:

“The scope that comprehensive waivers can have is little understood by the public. A belief persists that waivers 'are not worth the paper they're written on' or that they 'don't hold up in court.' Even though this fallacy has been repeatedly contradicted in recent, fairly well-publicized cases in British Columbia, the Commission still received comments in this vein.”

This lack of public understanding continues today. I know that because of feedback to my previous columns on the topic of waivers.

The executive summary points to a serious public safety concern about waivers:

“The concern about public safety arises because comprehensive waivers protect operators not only against frivolous claims, but also from legal responsibility for their own negligence and that of their employees.

"With potential liability greatly reduced or eliminated, an operator may be slower to correct a dangerous situation or make needed safety improvements, particularly if it involves significant cost.”

Absence of legal accountability and consequences leads inevitably to a reduced level of care. It’s just common sense.

Not only are these powerful waivers unfair, but they are dangerous.

Why have the recommendations of the Law Reform Commission not been implemented?

Because we, the public, have not demanded it. Continuing, widespread ignorance about the powerful impact of waivers is getting in the way of what’s right.

Please stand up for a change in the law. 

Talk to your MLA. 

Encourage others to read this column and do the same.

Surviving ICBC scrutiny

I didn’t cause the crash. Why does it feel like I am the one on trial?

Just because you are making an ICBC claim, that feeling is very much the reality.

A trial isn’t needed to prove the fault of the absent-minded driver who crashed into the back of your stopped vehicle.

For most ICBC claims, fault is a given.

What needs to be figured out is the value of your losses arising from the crash, and this can feel invasive.

Except in claims involving the most minimal of injuries, it’s not as easy as tallying the bit of time you were away from work and adding up receipts.

For more significant injuries, with correspondingly significant losses, there is a legal obligation that puts injured victims on the defensive.

It’s called mitigation.

An injured victim has a legal obligation to take all reasonable measures to keep their losses to a minimum.

Why would that put you on the defensive?

At some point, perhaps three years after the crash, an ICBC defence lawyer will be sitting across from you at an examination for discovery.

An examination for discovery is a standard step in a personal injury lawsuit where an ICBC defence lawyer asks you questions. It is the most “on trial” you are likely ever to be because most personal injury claims resolve by settlement without requiring an actual trial.

It’s nothing to be afraid of. You simply respond honestly to the questions posed.

But the ICBC defence lawyer will go over the steps taken and decisions made over that three-year period, armed with the benefit of 20/20 hindsight.

There are the steps taken and decisions made in your struggle to get better:

  • Why did you wait so long to see your doctor? 
  • Why did you stop attending this or that therapy? 
  • Why did it take so long to return to your doctor for more treatment options? 
  • Why didn’t you attend that care more often?

And in your struggle to minimize your income losses:

  • Why didn’t you try to return to work earlier? 
  • Did you ask your employer to accommodate you? 
  • Did you get a doctor’s approval to reduce your work hours?
  • Why didn’t you try, sooner, to find alternate work or to upgrade your education to get into another line of work?

And the impact on your life: 

  • Why didn’t you try to return to this or that activity? 
  • Did your doctor tell you to hold back with this or that?

You have taken countless steps and made countless decisions in your struggle over the last three years to recover and to maintain financial stability. You have been doing your very best to get better and to lose as little income as possible.

Now, with the benefit of 20/20 hindsight and a clear, analytical mind unencumbered by financial stress and chronic pain, all of those steps and decisions are being questioned. 

Sometimes those questions are asked with an unpleasant, even sarcastic, tone.

No wonder you feel like you’re the one on trial! No wonder you feel defensive.

What can you do to protect yourself against being second guessed?

Be mindful of this issue, right from the beginning.

Any time you face a decision, however small, be aware that it might be second-guessed down the road with the benefit of 20/20 hindsight.

Involve your medical team (doctor, therapists, chiropractor) in your decisions. Don’t use them as decision “rubber-stampers,” though. 

Put their clear, analytical minds to work to decide your ongoing course of therapy and (if absolutely necessary) to put limits on your work and activity function.

Ensure you follow up regularly to ensure your ongoing course of therapy is optimum.

Involve other advisers as might be applicable. A business owner will face decisions about how best to “mitigate” business losses arising from their injuries. 

Those decisions might have huge impacts on business losses. Consult with your accountant and/or a business consultant.

Take the time to make journal notes when making significant decisions, so that you can use them, perhaps years later, to refresh your memory about the factors you considered.

I have good news for you. 

Unfairly poking holes in decisions you make along the way is not going to get ICBC very far. You are not held to a standard of perfection, just reasonableness.

In the words of Madam Justice W.J. Harris in Ellis v. Duong, 2017 BCSC 459: “The plaintiff is not generally held to a high standard of conduct in mitigation. The law is satisfied if the plaintiff takes steps that a reasonable person would take in the circumstances to reduce the loss.”

And the court is unlikely to find that decisions made in “good faith” are unreasonable. 

This excerpt comes from paragraph 233 of the decision of  Carver v. Or, 2017 BCSC 1496: 

"The court is slow to determine that good faith decisions are unreasonable. As set out in Paniccia Estate v. Toal, 2012 ABCA 397 at para. 86:

… the court only lightly reviews the decision of the person injured to try to mitigate his loss. Courts are extremely slow to criticize good-faith decisions by victims of torts about both whether to take steps in mitigation, or which steps, or how much expense or risk to incur in doing so.…"

Don’t let those words make you complacent, though. A failure to mitigate losses is always alleged by ICBC and the time will come when you are asked those probing questions.

And many injured victims do end up facing the consequences of five per cent, 10 per cent, and sometimes higher percentages of reduction in their compensation when ICBC lawyers are able to prove a failure to mitigate losses.

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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