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Achieving-Justice

Shovelling shirkers

A pedestrian slips and falls on ice on the sidewalk in front of your home. Are you liable?

You don’t own the property. It’s owned by the municipality.

But they have passed a bylaw shifting the responsibility to you. Here is the Kelowna bylaw:

“2.5.1 Sidewalks. Owners or occupiers of real property shall remove snow, ice, or rubbish
from the sidewalk and walkways bordering (whether directly adjacent to, or
separated by a boulevard, landscaping, or other portion of either the property or the
road) on the real property owned or occupied by them within 24 hours of the
accumulation of such snow, ice or rubbish.”

Is that fair? Is it right?

If we want our sidewalks cleared, someone needs to do it.

And if home owners prefer not to have the responsibility, they could pay higher taxes and the service would be done for them.

But should home owners have that choice? The “home owners do it themselves” method is failing to keep our sidewalks cleared.

Some folks seem able to remove each flake of snow as it falls. Others shirk their bylaw imposed responsibility, seeming not to own a shovel.

The result is a hodgepodge of snow and ice clearing, making for dangerous and impassable sections of sidewalk for pedestrians, particularly the most vulnerable with mobility restrictions and challenges.

It is important, in my view, for sidewalks to be reasonably clear of snow and ice. Perhaps that goal can be reached through enforcement of the bylaw. If not, I say we should jack up property taxes as necessary to pay contractors to do it.

But what about the question I posed:

  • If a pedestrian is hurt because a home owner shirks their bylaw obligations, is the home owner liable?

Unfortunately, no.

I was wrong in previous columns when I said otherwise. I have now done the research and set myself straight.  The question was posed and answered succinctly in this paragraph of the decision of Cullinane v. City of Prince George et al., 2000 BCSC 1089:

"[53] The issue with respect to Northland's liability is this:
"Does a municipal bylaw requiring an owner of property to keep a sidewalk adjacent to the property free of ice and snow, translate into civil liability to a third party using the sidewalk, for failure to comply with the bylaw when an injury occurs due to ice and snow on that sidewalk?"

Case authority in British Columbia, in Ontario and in Nova Scotia has held that it does not.

I say “unfortunately” for two reasons.

  • One is that the risk of civil liability might motivate those shirkers to go out and buy a shovel.
  • The other is that injured pedestrians are unlikely to be compensated for their losses.

It’s pedestrians who can least shoulder losses from a serious fall injury. They are likely to be less affluent and more likely to rely on their physical walking capability for transportation.

Can’t they recover their losses from the municipality that owns the property?

These types of claims against municipalities are very difficult because they are not held to the same standard a home owner would be held to.

I have said many times that the best claim is no claim at all, and that certainly applies to slips and falls. We should take whatever steps are necessary to achieve the goal of safe sidewalks. I suspect that this will require increased taxes to fund organized snow and ice removal.

In the meantime, can we ask for higher municipal enforcement? And how about encouraging the shirkers around you to pick up a shovel?



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Are you paying attention?

Pissed off by my last column? I’m just getting started.

I took aim at news media for headlines such as “Icy roads cause crashes,” but, of course, my primary target was driver attitudes. 

Blaming icy roads sidesteps the uncomfortable truth: the vast majority of ice related crashes would be eliminated if we simply drove the conditions.

It’s normal and natural to blame anything and everything before looking squarely at ourselves. 

Doing so in the media is a powerful reinforcement of that accountability avoidance. Rather than mirroring and reinforcing bad driving attitudes, my hope is for the incredible power of the news media to help change them.

We’ve all heard that the first step in the right direction is admitting we have a problem. Quoting from a random internet source, “Denial is a large part of addiction, and breaking through self-deception can be very difficult.”

Is that a ridiculous analogy? Driving attitudes to drug and alcohol addiction?

We are certainly in denial about our driving! And our self-deception must be broken through if we are going to make any headway.

It goes way beyond blaming icy roads. 

How do the regular, every day crashes get reported in the media?

The basic facts of what occurs are reported. Not the true cause.

A vehicle crossed the centre line into oncoming traffic; a stop sign was blown; a rear-ender.

We think to ourselves that we would never do those things. We know the rules of the road. We’re safe drivers.

But we’re not.

2013, 2014 and 2015 crash statistics were 260,000, 280,000 and 300,000 per year in British Columbia. That’s approximately 35 crashes per hour.

For every hour of every day.

Of those 300,000 crashes annually, as many as 90,000 are rear-enders.

I’m relying on data analysis performed by safety expert Steve Casner who analyzed U.S. data and concluded 23-30 per cent of all crashes are rear-enders.

I’d like to quote British Columbian statistics but I cannot because they seem not to exist.

With a total of 300,000, that’s a range of 69,000-90,000 rear-enders per year in British Columbia.

Did any of those rear-ending drivers consciously decide to drive into the back of the other vehicle? Were any of them confused about the rules of the road?

Of course not.

Just like the vast majority of those who crossed the centre line and blew stop signs, they were simply not paying sufficient attention to the important task at hand.

They were in denial that their level of driving awareness was safe and sufficient to avoid causing a crash.

In denial that as long as they kept their eyes on the road, they could juggle a cell phone discussion along with processing all the important information coming through their windshields.

In denial that they could plan their day, daydream about their love interest or otherwise engage their conscious thoughts and attention while safely navigating their vehicle.

And most of you reading this are in denial as well.

I know, I know. You’re a safe driver. You’ve never caused a crash.

That logic is about as failed as: “I can safely shoot up. I’ve never died of an overdose.”

Inattentive driving works most of the time. Continually reinforcing your self-confident sense of denial.

You’ve just been lucky. Eventually, that luck will run out.

What if the news media chose to go beyond the basic facts and report on the true cause of crashes when reporting about them?

Consider these kinds of headlines:

  • “Inattention behind the wheel strikes again. When will drivers learn?”
  • “Another rear-ender. Small wonder our ICBC rates are going up”
  • “Traffic backed up due to driver inattention”

It would still be factual reporting. It would just go a step further than the driving infraction itself, to the cause of the infraction.

By continually hearing about the true cause of crashes we might finally break through denial and recognize our collective problem.

I recognize that I’m asking a lot. It would be a dramatic shift in collision reporting.

Pretty please? With sugar? We have an opportunity to start 2018 on a strong road safety note.



Ice doesn't cause accidents

My Boxing Day Special gift to you is to “call out” the news media for fake news.

I cringe every time I see these fake-news headlines that all news media seem to be guilty of:

  • “Dangerously icy roads lead to crashes” (CBC – Nov. 15, 2017)
  • “Icy conditions causing havoc on Kelowna area roads” (Capital News – Dec. 3, 2017); 
  • “Icy road leads to crash” (Castanet – Nov. 4, 2017)

Do you ever see these analogous headlines:

  • “Deep water leads to drowning”
  • “Watery depths cause havoc on the beach”
  • “Sunny weather leads to drowning death”

Don’t they sound nonsensical!

The public needs to know that most drownings occur because of factors that are entirely within our control, i.e. alcohol or drug impaired swimming, lack of supervision of children who don’t know how to swim, adults over-swimming their abilities, walking/driving on thin ice, boaters failing to use life jackets, etc.

Those true causes of drownings are reported by the news media. That’s important. It helps the public recognize and protect against risky behaviours that can lead to drowning.

It also leads to an attitude of accountability and consequences. Blaming bodies of water and warm weather would lead to an attitude of “accidents happen.”

Icy roads are no more a cause of crashes than deep water is a cause of drownings.

We live in an area of the world that has winter. The season hits us year after year without fail.

Ice and snow, the natural consequences of winter, are just as predictable as the depth of water in a lake or pool.

If we blame snowy and icy roads for crashes, we cause a powerless attitude of “accidents happen.” 

Why don’t we lay the blame where it belongs, creating an attitude of accountability and consequences?

Consider these alternate headlines:

  • “Icy conditions take clueless drivers by surprise”
  • “Too many crashes caused by overdriving winter road conditions”
  • “Drivers fail to slow down in slippery conditions; no wonder ICBC rates are going up

We need to grumble and complain about drivers who fail to use good winter tires and who overdrive the conditions. Not about the naturally occurring ice and snow.

Here’s a bit of common sense that I pulled from a case decided back in 1941, quoted by the British Columbia Court of Appeal in Savinkoff v. Seggweiss, a judgment released June 17, 1996.

“If roads are in such a condition that a motor car cannot safely proceed at all, it is the duty of the driver to stop. If the roads are in such a condition that it is not safe to go at more than a foot pace, his duty is to proceed at a foot pace.”

Messaging in the news media is powerful stuff. There is a reason why mass advertising is expensive: It works. 

If the news media were to get together and resolve to report about crashes in a way that brings about a sense of accountability and consequences, there would be a natural improvement in driving attitudes.

An improvement in driving attitudes will reduce crashes and put a stop to rising ICBC rates.

Let’s get rid of the fake news and make our roads safer.



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What if you go too far?

What if the rugby player had gone too far?

Jake Taylor, 21, steps up. His actions stop an attacker’s stream of obscenities that elevated to trying to grab the 18-year-old woman’s head and shove it into his crotch, and slapping her face.

His heroism highlights the starkly contrasted inaction of those who sat there doing absolutely nothing.

A bystander who does nothing might be viewed as complicit, a point made by American law professor Amos Guiora in his book The Crime of Complicity: The Bystander in the Holocaust.

I wrote last week about a law he proposes, one that would impose a legal obligation on bystanders to at least do the very minimum of alerting authorities about a crime.

Such a law would have obligated all those on the Sky Train to use the electronic devices already in their hands, or the readily available yellow alert strip, to alert the police.

From responses I’ve had to my column, and other public discussion, it seems that few would expect anything more of bystanders. Let alone physical intervention, anything that might draw the attention of the attacker and therefore put you at personal risk seems too much to expect.

There are, indeed, cases where intervening bystanders have been seriously hurt or killed.

I think there should be more discussion about that issue. My view is that a bit of personal risk is warranted to come to the support of the most vulnerable in our society who are being bullied, verbally abused or physically attacked.

But what if the bystander goes too far?

The rugby player’s intervention was to push the attacker away and stand between him and the victim.

What if he had decided to “teach him a lesson,” tackled him to the floor and beaten him to a pulp? What if the attacker was left brain injured with teeth knocked out, a broken nose and jaw?

Some of you might think: “Serves him right!”

This columnist, though, would be writing about the complicit bystanders who should have stepped in to save the attacker.

The law protects a bystander from civil as well as criminal prosecution arising from a physical intervention, but only if the intervention is necessary and reasonable.

Cachay v. Nemeth, a Saskatchewan case from the early 1970s, is a “serves him right” example that explains the law.

The two fellows involved in a very one-sided altercation were at a house-warming party with their wives. Each had been drinking, but not to the point of intoxication. Party-goers were dancing.

One fellow was playfully waltzing around the dance floor, at times causing annoyance by getting between dance partners, one of whom had told him to “get lost.”

The judge described: “On the evidence, I am satisfied that in the course of his peregrinations about the dance floor, he threw a scarf or neckerchief around the neck of the defendant’s wife and pulled her head back to try to kiss her; also that the intended kiss was merely a brush on the cheek….”

The judge found that the fellow’s actions “… were without doubt in the spirit of celebration and without realizing he was irritating some people….”

But the martial arts trained husband, without any warning, struck the fellow a violent blow to the side of his head.

As you might expect, the judge found that the husband’s use of violence was “…out of proportion to the apparent urgency or requirement of the situation,” noting his belief that “…a word of warning to desist…” would have prevented any further flirtation with the fellow’s wife.

The end result was a judgment against the husband. There is no indication of injuries and the modest award of damages suggests to me that the lawsuit was more about bruised ego than physical injury.

Please email me if you would like to read the reasons for judgment, which review this very interesting area of law.

The bottom line is that a bystander’s physical intervention must be both necessary as well as reasonable. 

The kind of vigilantism that can arise with a “teach a lesson” attitude can open the intervening bystander to civil and also criminal prosecution.



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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