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Achieving-Justice

Standing up for others

“This man got up and started to swear at me calling me a whore and a slut telling me he will kill me and all Muslims in a mix of Arabic and some other language I wasn’t understanding.

"He raised his hand and began saying he was going to kill me. He was using horrific words as he was aggressively making actions when he tried to grab my head and shove it to his crotch."

This horrific scene played out on a Vancouver Skytrain on Dec. 4, 2017. The victim: an 18-year-old Muslim woman wearing a hijab. She shared these events on Facebook.

“I watched as others watched the man verbally assault me when out of nowhere, he strikes me across the face. And everyone watched as he did so. Everyone stayed seated and did not utter a word…”

Then, 21-year-old Jake Taylor, a Nelson-raised rugby player, stepped up. He pushed the guy away and stayed in front of her until the man got off the train.

A 46-year-old man “of no fixed address” was later arrested.

Toward whom do you feel more anger?

The attacker? Not making excuses here, but at least his homelessness and conduct point to mental health challenges.

Or those who did nothing while watching the scene unfold? No one tapped the yellow alert strip, called or texted authorities, or even opened their mouths in objection.

Our laws do not require bystanders to intervene. It is only our moral code that might compel us into action.

But our moral code obviously isn’t enough. It isn’t enough to stop bullies on the playground any more than on public transit and elsewhere.

Perhaps our laws should change. American law professor Amos Guiora, a child of Holocaust survivors, thinks so. He wrote a book arguing that bystander inaction should be considered a crime.

But his proposed law would not require bystanders to put themselves in physical danger. Simply to alert authorities.

He makes a compelling point that such a law is an urgent necessity, particularly in cases of sexual assault, where even minimal intervention can make such a huge difference but so many make the horrible choice of “looking away”.

We can improve on our laws. All it takes is the political will to do so. 

If you think that Canada should join dozens of other countries including France, Germany, Greece, Italy and Brazil, make your voice known to your local member of Parliament.

Next week, I intend to write about how the civil law handles situations where physical bystander intervention results in injury. The rugby player in this case intervened in a very sensible, measured way that did not cause injury to the abuser.

But what if things had been different? Does a bystander who physically intervenes face the risk of an injury lawsuit?





A-G promoting fake news?

Reported discussions about “capping” injury claims reveal a misunderstanding about how ICBC claims work.

Attorney-General David Eby is quoted to have said:

“We’re looking at caps on minor pain and suffering awards because there’s been an explosion in the size of awards people receive for minor whiplash and minor injuries.”

Who has been feeding him that “fake news”?  Clearly, someone without a clue about how ICBC claims work.  Or perhaps an ICBC representative with an agenda?

I will explain with a scenario that faces far too many British Columbians, and which you could face on your daily commute.

A distracted driver crashes into the back of your vehicle. It is ridiculous, and maddening, how often that type of crash occurs.

You walk away from the collision without a hint of injury. That’s the way whiplash usually works. It’s not until a couple of hours or so later that the damaged tissues become inflamed and symptoms come on.  

Waking up the next morning is your “crash course” in what whiplash is all about. You have a pounding headache and can barely move your neck.

The current law in British Columbia is that if someone hurts you, you have a legal claim against them for fair, financial compensation for that injury.

But when the injury occurs in a car crash, liability insurance removes the bad driver’s accountability and passes it on to ICBC.

That’s why it’s called an ICBC claim.

What is the value of your ICBC claim in this scenario? 

If you’re lucky, you will miss no time from work and be back to normal, as if the collision had never occurred, within a couple weeks without the need for any care.

Now, that’s a minor whiplash. If ICBC is choosing to pay more than $1,000 of compensation for that kind of claim, they are horribly mismanaged.

Why? Because a very minor claim requires very minor compensation. And the amount of that compensation can be determined by looking at the very consistent results of personal injury claims that have proceeded to trial. 

Our civil justice system is based on strict adherence to legal precedents. There could no more be an “explosion in the size of awards people receive for minor whiplash and minor injuries” than there could be a dramatic shift in any other court decisions. It’s simply not possible.

On the other hand, you could be unlucky.

Nobody, not even a medical specialist, can predict:

  • how long your headache and neck pain will last
  • how much care will be required
  • what impact your symptoms will have on your income and day-to-day activities.

The exact same collision dynamics that leave one victim with two weeks of pain can cause another to never, ever return to a pain free life.

Everyone is different. No two necks or backs will respond in exactly the same way.

What compensation is fair for someone saddled with a lifetime of chronic neck symptoms and headaches?  Again, one simply needs to look at the very well established legal precedents. 

The starting point for “pain and suffering” compensation for a permanent injury is in the range of $35,000-$40,000.

Plus income loss and other actual proven losses.

Now, ICBC is talking about “capping” pain and suffering compensation for “minor injuries” at a level of $4,000-$6,000.

That whiplash scenario I gave you is what other jurisdictions imposing caps refer to as a “minor injury”.  There’s no hospital visit. No broken bones. Just pain.

A lifetime of pain.

Yes, capping compensation rights for injured victims would save ICBC money. They would get away with compensating you 10-15 per cent of the starting point of what our court system has firmly established is fair for your lifetime of pain.

But should you be the one paying for that bad driver’s behaviour? By being under compensated for your pain and suffering? 

Oddly, “caps” pass accountability for bad driving from the bad driver right back to the victim.

How about we fix the real problem and bring about accountability for bad drivers?

As it stands, the RCMP don’t show up to most of these rear-end collisions, and the distracted driver doesn’t get as much as a traffic ticket. With enough crash-free years under his or her belt, their insurance premiums won’t even go up at all.

Rather than the bad drivers being held accountable, us good drivers are hit in the pocket book with increased insurance premiums. 

How’s that for a horrendous failure of teaching good behaviour?

We raise our children to understand that bad behaviour comes with consequences. This is a foundational principle of how our society works. Where along the line did we lose sight of this basic principle with auto insurance?

Other types of insurance, where we don’t have any control over adverse consequences, are different. We are paying a premium to protect us against unforeseeable losses, not our own bad behaviour.

It is only negligence that gives rise to an ICBC claim. We have complete control over whether or not we are negligent behind the wheel.

If you choose to pay so little attention behind the wheel that you would drive into the back of another vehicle, you should face consequences. In my view, those consequences should be at least as significant as those imposed when you choose to drive after consuming alcohol.

A 90-day driving prohibition, 30-day vehicle impoundment, and a remedial safe driving course would immediately adjust driving attitudes just like it did for impaired driving.

Another idea is to require the bad driver to retain at least some financial accountability. Imagine the increase of driver attentiveness if we make distracted drivers pay the first $5,000 of fair compensation for the injuries they cause.

Oh, and ban cell phone use while driving. How can we be talking road safety and “fixing ICBC” with a straight face while hands-free texting and talking on a cell phone remains legal?



Future is speeding toward us

Driverless technology gets me excited.

The alternative way to prevent crashes, changing driving attitudes, is horribly tough going. 

Take, for example, the decades-long, drunk-driving campaign that hasn’t come close to eradicating that dangerous and criminal behaviour.

And those alluring cell phones have made things harder instead of easier. Especially since we’ve misled drivers to believe that hands-free use is safe. 

How ridiculous that we ban only hand-held use in the face of overwhelming and acknowledged science that hands free is no safer. Have you signed my petition yet? 

Driverless technology, on the other hand, is immediately effective.

The most basic “driverless technology” is automatic braking. That alone will eliminate approximately one-quarter of all crashes. Why? Because approximately one-quarter of crashes are rear-enders.

I am relying on American statistics because British Columbian statistics on that point are oddly unavailable.

In early 2015, within two months of Google unveiling its prototype of a fully autonomous car, I had written a column calling on our political leaders to mandate autonomous driving technologies. 

I feared that automobile manufacturers would offer them only as expensive options, unavailable to those unable to afford them. And that those who could afford them would decline.

I still think that there should be government interference in the marketplace (financial incentives or mandatory use) to speed things along, but I was encouraged to learn that automatic braking is already coming standard in some vehicles.  

And driverless vehicle advances are being made in leaps and bounds. A recent CBC news story noted that earlier this month, several automated vehicles (without a driver ready to take over) were set loose on the public roads of Phoenix

The tidal wave of technology is coming, thank goodness.

Thank goodness for the countless victims of road traffic incidents.

But there is a dark side that a Facebook friend has highlighted for me.

Car crashes are a huge industry.

I see it as a small price to pay for road safety that personal injury lawyers like me will have to re-tool into other areas of law.

But there are far more dramatic impacts afoot.

Consider the massive autobody industry? Fixing cars is big business. It includes the many businesses and workers actually doing the autobody work as well as parts suppliers and others down the line.

And driverless cars promise to dramatically impact other industries as well, most notably those related to the road transportation of people and products.

A Facebook friend helped me recognize that such dramatic changes are likely to come with horribly negative social consequences.

He pointed out that industries related to the automobile have developed over three-quarters of a century. Slow and steady developments bring about stability.

We are not facing slow and steady change with driverless technology. We are facing comparatively very abrupt upheaval. “Almost overnight.”

We are grossly unprepared for that upheaval. 

Our political leadership must recognize and act now to mitigate against the massive loss of economic activity and employment.

And we need to take responsibility for ourselves. All of us in these industries must take notice and make plans for our dramatically changing future.



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Pedestrians must be careful

It’s downtown Vancouver. Eastbound lanes of traffic are at a complete stop for a red light. The driver of an eastbound pick-up truck illegally veers into the westbound lanes to skip ahead to a left-turn lane.

His licence is suspended. He has three previous convictions for driving while prohibited. He had no business being on the road in the first place, let alone his illegal manoeuvre.

Pedestrians commonly cross mid-block on that street. Twenty-two-year old Veronica Howell is doing just that. She walks through the stopped eastbound lanes.

When Veronica gets to the centre line, she slows or stops and looks to her right for westbound traffic. Traffic is clear so she starts across the westbound lanes.

Clear except for the pick-up truck coming from the wrong direction, driven by the prohibited driver.

Veronica is thrown up onto the hood before landing on the ground unconscious and bleeding. She has life threatening injuries including a fractured skull.

The prohibited driver doesn’t stop.

For a play by play of the incredible police work performed by the Vancouver Police Department to identify the hit and run driver, read the court decision of Madam Justice MacNaughton (Howell v. Machi, 2017 BCSC 1806). [

Who do you think is at fault in this horrible hit-and-run collision?

Just like motorists have a legal obligation to keep a lookout for drunk pedestrians wandering around a highway on a dark night (see my previous column, Assigning fault in pedestrian death), pedestrians have a legal obligation to look out for prohibited and illegal drivers.

Veronica had a few strikes against her:

  • She was not crossing in a crosswalk, or at an intersection, in busy rush-hour traffic;
  • She was wearing a burgundy jacket and grey tuque, making her less visible;
  • She did not recall hearing the pickup truck coming, even though a witness had heard it from further away across the street;
  • Despite not being a driver herself, she should have been aware of the possibility that a driver might illegally pull around to access the left turn lane ahead; 
  • She didn’t look to her left.

Madam Justice MacNaughton concluded that Veronica was 25 per cent at fault.

Veronica, who was left with permanent, disabling injuries, will recovery only 75 per cent of the value of her lifetime of income losses, pain and suffering, future care and other harms and losses that were assessed by the court.

The law imposes an obligation on all road users to take reasonable care for our own safety, as well as the safety of those around us. That obligation is maintained regardless of how illegal, careless or outrageous the conduct of other road users.

Who has the higher moral obligation to be cautious, though, as between motorists and pedestrians? 

Instead of being angry with jaywalking pedestrians who you come close to mowing down, how about be angry with yourself for not driving with a level of care that would have you calmly anticipating and prepared to react to such conduct.

Pedestrians, you cannot count on drivers to follow the law any more than they can count on you. Please keep this case in mind as you make your way on our roadways.



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



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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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