Can passion go too far?

I attended a TEDxYouth event on May 17. Twelve incredible youth, aged 11-17, presented their ideas.

One of them was my 12-year-old son, Caden. What a stinker to have such an opportunity!

I walked out of there more than a proud papa. I had been touched by the incredible youth and the ideas they presented. And inspired by their calls to action. One spoke about setting incredibly grand goals, and going after them.

A particular passion of mine about road safety was rekindled: that piece I write about from time to time about hand-held versus hands free cellphone use.

I shared my passion with Caden in the spirit of that TEDx evening. He had taken it as a given that talking on a cellphone while driving is a bad thing, but I explained the science of it to him anyway.

That drivers talking on cellphones see (their eyes open, looking out the windshield) but fail to “process” up to 50 per cent of what’s right in front of them.

It has something to do with how our brains work, I explained.

We confidently think we can multi-task. But neuroscientists say that our brains can focus on only one thing at a time.

Rather than two, parallel focuses, our brains are really flipping back and forth between the two tasks.

And the flipping away from the driving task leads to “missing” things even though our eyes are wide open, looking out the windshield.

We don’t realize it’s occurring. We travel thousands of kilometres, chatting on the phone here and there, with nothing bad happening. From time to time, we will miss a turn off or arrive at a destination not remembering how we got there, but we chalk that up to being forgetful.

Our confidence builds. As does our dependence on that cellphone.

It’s Russian roulette with a thousand chamber revolver. Sooner or later the 1 in 1,000 odds will add to rising car crash statistics.

I told Caden he was only three years old when the first cellphone law in British Columbia was enacted on Jan. 1, 2010. A law that made things worse instead of better.

Our government knew the science, I told him. They can’t hide from their own, internal Discussion Paper published in 2009 that includes this passage summarizing the science:

In both simulated and real driving environments, the use of electronic devices has been shown to result in crashes and near misses. Drivers fail to process approximately 50 percent of the visual information in their driving environment when they are using electronic communication devices. Evidence also concludes that there is no difference between the cognitive diversion associated with hands-free and hand-held cell phone use.

And they knew what might happen if they did something so moronic as a partial ban, directed only at hand-held use:

Legislation that bans only hand-held cell conversations conflicts with the research that has consistently found no difference in the degree of distraction between hand-held and hands-free cell conversations. As a result, these laws may not provide the expected benefits and may even generate harmful indirect impacts such as a false sense of security for those who talk on hands-free devices while driving.

Caden immediately understood that concept, that banning only hand-held use would automatically send the loud and clear message that hands free was safe.

Safety conscious drivers, who up until 2010 had been leaving their phones alone, were led to believe they could safely use a cellphone while driving if they simply spent the money on hands-free technology.

The predictable result was more, instead of less, cellphone use behind the wheel.

Sure enough, I told Caden, a downward trend in car crash numbers coincidentally ended in 2010. Then a plateau. And after 2013, a steady increase.

I told Caden that I’m jumping out of my skin to share this story with British Columbians.

  • Maybe if I recorded a compelling video, like a TED talk.
  • Maybe if I did a stunt like walk to Vancouver and back until that video got a million views.
  • Maybe then British Columbians would demand a change in the law to ban all cell phone use while driving.

My son’s a bright one. “How long does it take to walk to Vancouver?” he asked.

“That doesn’t really matter, Caden. I would walk back and forth until I reached my goal.”

By the end of the evening he was in tears. “If Daddy spends his time walking to and from Vancouver,” he worried, “who’s going to pay the mortgage?”

How’s that for dashing my TEDx inspiration!

Perhaps my unbridled passion can go too far. Or should I follow through with the faint hope that the government will listen and fix what they broke in the first place?


Fight's not with ICBC

A recent small claims decision highlights a common misunderstanding about our rights. And that ICBC doesn’t jump to clear up the confusion.

I feel for the claimant, Frank. He went step by step through the process outlined by ICBC to deal with a fault assessment he didn’t agree with. And when he thought he was at the end of the process, he was set back almost to the beginning.

The small claims decision, Kristen v. ICBC, 2018 BCPC 106, doesn’t tell the story about what happened in the collision. Who knows, maybe the ICBC claims adjuster got it right.

Some of you might assume that ICBC always gets it right when assigning fault. Please don’t. They regularly get it wrong.

It’s not their fault when they get it wrong. How can they assess who to believe when they are hearing different stories from the drivers and witnesses? And they are not lawyers, so they are not equipped to handle nuances in the law.

Their web site gives instructions for what to do if you think the adjuster got it wrong.

Step one is to talk to your adjuster’s manager. I have no idea how effective that might be.

Step two is to ask for a Claims Assessment Review. The web site explains the process. A written application must be received by ICBC within 60 days of ICBC’s fault assessment letter. A decision is apparently made by an independent decision maker based on your written submissions and the ICBC file material.

No surprise if justice doesn’t flow from that process either. You are unable to tell your story and present your case, except in writing, and there is no mechanism for examining and cross examining the drivers and witnesses. And what about the legal nuances?

So then there’s Step two. These are the instructions on the web site:

“Dispute your claim in court

If after a Claims Assessment Review you’re still not satisfied, you can dispute the fault assessment in small claims court. If a judge makes a decision in your favour and changes a fault decision, we will adjust your fault assessment to match the ruling.”

Frank went through those steps. On Oct. 20, 2017, he commenced a Small Claims Court lawsuit by filing a Notice of Claim. He named ICBC as the Defendant and sought a finding that the other driver, not him, was 100 per cent at fault.

ICBC filed a reply and the matter was set for a trial to occur on April 13, 2018. Frank came ready to present his case. No one appeared for ICBC.

It should have been an easy trial, with only Frank’s version of events before the court. Can you imagine Frank’s disappointment when he learned that he wasn’t going to be able to tell his story that day because of a technicality?

The technicality is that Frank’s claim is not really against ICBC for making a bad decision, it is a claim against the other driver for causing the crash.

This is the same as every personal injury claim. The claim is not against ICBC, it is against the offending driver.

ICBC steps in to defend every case on behalf of the other driver because they are that driver’s liability insurance company. So yes, you will be fighting ICBC either way, but the only way to get justice is by going through the other driver.

Why doesn’t ICBC explain this on their web page?

Why didn’t ICBC alert Frank to the technicality at the get-go?

Perhaps they might like to comment.

The judge kindly chose not to dismiss Frank’s claim, but gave him permission to amend the Notice of Claim to name the other driver. That saves Frank from having to pay another filing fee, but it still leaves him back at the very beginning of the Small Claims process.

Are you facing an ICBC fault finding that you disagree with? It can be worth it to take them to task. Make sure you name the other driver, as was properly done inTough v. I.C.B.C. and Gannon, 2010 BCPC 307, a “David and Goliath” story I’ve written about previously where a 100 per cent fault finding against young Mr. Tough was reversed by the Court.

I also recommend that you consult with a lawyer along the way. Small Claims Court exists to allow unrepresented parties to achieve justice without having to pay the incredibly high cost of legal services, but, of course, you will be up against an ICBC lawyer at the trial, and you clearly cannot count on ICBC help you out.

There are inexpensive ways to get help here and there and one is through a service offered through The Canadian Bar Association called the Lawyer Referral Service. For $25 plus taxes, you can have an up to 30 minute consultation with a lawyer.

Forget ICBC, enjoy life

ICBC has a video snippet of you frolicking on a Cancun beach with a margarita in your hand.

It felt like they had rummaged through your underwear drawer, accessing and viewing private moments with family and friends. 

Read my column from last week for ways to avoid that.

But juicy bits like this often get into ICBC’s hands, regardless of privacy protection. I say “juicy” because of how I imagine insurance adjusters salivating at the prospect of using them to destroy your case.

They have you dead to rights. You’re dancing in the waves, laughing and drinking alcohol. Who would believe that you suffer from chronic neck pain that you ease with hot and cold packs every evening after work? 

How could the gleeful person in the video regularly deal with pounding headaches, with weekends spent resting so as to be able to make it through the next work week?

Aren’t those with chronic pain sad all the time? Don’t they move slowly, quick movements giving jolts of pain? They certainly don’t go on holidays and frolic on the beach!

If you don’t suffer from chronic pain, you might actually believe that.

It can, yes, be emotionally difficult to live with chronic pain. Many victims go on to develop depression and other mood disorders.

But particularly with therapies and/or medication, most have the capacity to experience joy. Especially when on a hot beach in Mexico with a margarita in your hand.

And if you deeply love such a person and have been struggling to bring them happiness, are you likely to capture some video of those special moments when they are finding joy?

And yes, pain can restrict movement. For most crash victims, though, full movement is regained, leaving a base line of aching discomfort that becomes “background noise." 

That background noise becomes a focus of attention when activities like maintaining static postures (like sitting at a computer during your work day) cause the discomfort to become a bothersome pain.

And as the work week progresses, that pain flares up earlier and earlier and gets worse and worse. Thank goodness for weekends that allow symptoms to calm down so you can face the next work week.

Is it the least bit inconsistent for a victim of chronic pain, aggravated by static postures, to find joy frolicking on a hot beach with a margarita in your hand? Absolutely not.

But what happens when that kind of “evidence” hits a courtroom? Do judges “get it”?

They do. Here are quotes from the reasons for judgment in several court cases:

  • K.T. v. A.S., 2009 BCSC 1653 – at paragraph 246: “The defence also produced vast amounts of photographic evidence showing the plaintiff juggling a soccer ball, holding a bowling ball, sitting on a swing or teeter-totter at various points in time. The plaintiff does not claim that she is disabled from doing those things….The plaintiff's very nature is to challenge her limitations at the extremes of her reduced post-accident abilities. I accept that although she was physically able to engage in a wide variety of physical activities, even demanding ones, after the accident, she was largely motivated to do so as a feature of her eating disorder and frequently paid the price by aggravating her symptoms and enduring pain.”
  • Guthrie v. Narayan, 2012 BCSC 734 – at paragraph 30: “In making these findings, I have not overlooked the pictures posted on Ms. Guthrie’s Facebook page concerning her trip to Las Vegas. Those pictures are of limited usefulness. Ms. Guthrie is seeking compensation for what she has lost, not what she can still do. The fact that she can spend a weekend with her friends in Las Vegas does not gainsay her evidence that she continues to suffer from the aftermath of the accident. She should not be punished for trying to get on with her life and enjoying it the best she can regardless of the limitations imposed on her as result of the accident.”
  • Nair v. Cindric, 2013 BCSC 2128 – at paragraph 44: “In the end, the viewing and re-viewing of the video recording occupied more than one full day of trial. The treatment of the recording serves to illustrate the potential limitations of this type of evidence. Essentially, what I took from the recording is that Ms. Nair was able to participate in the dance performance with no apparent difficulty, at least to a casual observer unschooled in the technical requirements of Indian classical dance. However, the recording tells the Court nothing of what measures Ms. Nair took to prepare for the performance to accommodate her back, how she felt during the performance, what she did during breaks in the performance to alleviate any back problems, and how she felt after the performance. In other words, the video recording provides essentially a snapshot of Ms. Nair's functional capacity at a particular point in time but is of limited utility in evaluating her overall claim.”
  • Dakin v. Roth, 2013 BCSC 8 – at paragraphs 55 and 56: “The defendants have entered into evidence photos posted on the plaintiff's Facebook between 2007 and 2009, which the defendants say are inconsistent with her physical limitations. I do not place much weight on those photographs. They are staged, at a party, and taken on holidays. As stated by Mr. Justice Goepel…in respect to Facebook photos: "Those pictures are of limited usefulness. [The plaintiff] is seeking compensation for what she has lost, not what she can still do." I agree.”
  • Carlisle v. Vanthof, 2015 BCSC 2427 - at paragraphs 115 through 118: “The plaintiff is prolific with posting photos on her social media accounts. I infer from the sheer volume that her habit is to create a pictorial history of enjoyable activities with friends, travel, dinners and wines tours when they occur….This case is not about what the plaintiff can do, it is about what the plaintiff cannot do and how her injuries have and will affect her….The evidence from those that know her leads me to conclude that although functional, the plaintiff is performing in a reduced capacity than she would otherwise be performing if uninjured.”

My emphatic advice to crash victims is to live and enjoy their lives as fully as they possibly can, overcoming their crash injury limitations to the fullest extent. 

If you don’t do so, worried that a video snippet might surface of you laughing, smiling and enjoying yourself, you will be victimized yet again.

You can expect that “what you can do” will be used to challenge your very real limitations, but I have confidence that justice will prevail.


Electronic dumpster diving

In the old days it was the family photo album. And if ICBC wanted video footage, they had to send a creepy “investigator” with a video camera.

Now, there are smart phones, Facebook, Instagram and whatever else that captures and shares photographs and videos. 

And all sorts of ways to post comments and exchange written comments.

Privacy settings can prevent snoopers from accessing that material. But our civil justice system is built on a principle of full disclosure enabling ICBC to ask the court to force access.

Is that such a bad thing? Why should you care if you’ve got nothing to hide?

You might have nothing to hide as you go through a security checkpoint, but would it not still feel invasive as all heck to be strip-and-cavity searched?!

Imagine handing over the passwords to your computer, smart phone and social media accounts!

Fortunately, our civil justice system has checks and balances. The push by insurance companies like ICBC for greater and greater invasions of privacy is pushed back by lawyers representing injured victims.

In one medical malpractice case (Dosanjh v. Leblanc and St. Paul’s Hospital, 2011 BCSC 1660), the defence sought disclosure of the injured victim’s complete Facebook and Twitter accounts, as well as the hard drives of her personal computer and iPhone.

The claim related to a stroke during surgery. While the injured victim had been able to return to school and maintain employment, it was with some difficulty because of some level of cognitive impairment.

In paragraph 23, the judge referred to legal pronouncements of our highest court, the Supreme Court of Canada, pertaining to our right to privacy and the balance that must be struck:

“…the common law must develop in a way that reflects emerging Charter values…one such value is the interest affirmed by s. 8 of the Charter of each person in privacy…”; and

“…I accept that a litigant must accept such intrusions upon her privacy as are necessary to enable the judge or jury to get to the truth and render a just verdict. But I do not accept that by claiming such damages as the law allows, a litigant grants her opponent a licence to delve into private aspects of her life which need not be probed for the proper disposition of the litigation.”

The judge concluded that what the defence was seeking was “entirely too broad,” noting: “In fact, I am more inclined to call this application a classic fishing expedition, but without the appropriate bait.”

The only way to guarantee a protection of privacy when it comes to photographs, videos and communications is to eliminate the generation and circulation of that material. But social media has become such a prevalent part of our lives that doing so would be a significant further victimization.

I have some suggestions for injured victims for whom social media interactions are important, but who want to protect their privacy:

Review and implement privacy settings:

I can almost guarantee that anything left unprotected will be rifled through and a lack of privacy protections is like leaving your underwear drawer on the street for the rifling; And if a court application is made to force access, your demonstrated wish to protect your privacy and the privacy of others will be taken into account.

Be very careful to ensure complete “literal” honesty and forthrightness about your symptoms and how they impact on you. At one end of the spectrum are those who are mortified about being viewed as a “complainer."

At the other are those who can be overly dramatic when describing impacts on their lives. Neither is intending dishonesty.

Those at the dramatic end of the spectrum, however, can be prone to exaggeration, which can put their words in conflict with images and videos on social media, giving ICBC a foundation to force disclosure; and
Refrain from commenting/communicating to others in writing specifically about your injuries and their impact on you.

You might be surprised to learn that ICBC gets to pick and choose bits and pieces that cast a negative light on your claim, for example: “I’m feeling really good today.” while you are not permitted to use anything helpful as evidence, for example: “I’ve got a really bad headache today."

Next week, I will write about what happens when ICBC gets their hands on happy, smiling pictures, holiday pictures and videos of activities and try to use them against injured victims in a trial.

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
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.

Previous Stories