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Achieving-Justice

Be aware; be very aware

If you choose to participate, eyes wide open about inherent risks, you have nobody but yourself to blame if you’re hurt.

But if someone else’s negligence causes you injury, they should be held accountable.

That’s the way our legal system works. Unless you sign a contract saying otherwise.

Those contracts are commonly known as “waivers."

Waivers often include "eyes wide open” warnings. Those warnings are important. If unfamiliar with an activity, you might not be aware of some risks that are inherent in the activity. A list of inherent risks and dangers allows you to make an informed decision whether or not to participate

You can also take special care to guard against those risks and dangers.

It is fair and reasonable to agree not to bring a lawsuit if you are hurt because of the inherent risks and dangers of an activity you are “eyes wide open” about.

The problem comes when the language of waivers goes further, requiring your agreement not to pursue your legal rights if someone else’s negligence causes you injury.

Are those types of waivers even legal?  Are they worth the paper they’re printed on?

Yes. Just last year a lawsuit against Big White Ski Resort Limited was dismissed because of such a waiver, even though negligence had been proven.

You’re an adult who can make your own choice about whether or not to sign a waiver. Nobody has a gun to your head. But if you don’t agree with the terms of the waiver, you can say goodbye to ever alpine skiing again.

Or participating in any other physical activities hosted by businesses.

But what about children?  Are these clauses effective to prevent them from pursuing their rights as well?

This was squarely at issue in the case of Wong v. Lok’s Martial Arts Centre Inc., 2009 BCSC 1385.

The Defendant had applied to the court for dismissal of the injured young person’s negligence claims. They relied on a document signed by his mother which, in the words of the court, “…clearly states that the club shall not be liable for injuries, damages, actions or causes of actions whatsoever, including without limitation those resulting from acts of negligence on the part of the Hapkido school.”

Fortunately for justice, British Columbia has a piece of legislation that specifically protects young people’s legal rights. It is called the Infants Act

There are all sorts of nuances, but the punch line is that contracts entered into by an “infant” (a person under the age of 19) is not enforceable except in particular circumstances.

And a parent or guardian cannot bind a young person by signing on their behalf. In the words of Mr. Justice Willcock: “The Act does not permit a parent or guardian to bind an infant to an agreement waiving the infant’s right to bring an action in damages in tort.”

But that’s not the end of the matter. Some waivers try to do an end run around the Infants Act.

Some waivers require the parent to agree that if their child pursues their valid legal rights against a business, the parent has to “indemnify” the business (pay back whatever the business has to pay).

Imagine that. Your child is injured as a result of negligence. But whatever compensation they recover must be paid by their parent!

The enforceability of this kind of clause has not been tested in British Columbia. An analogous case out of Ontario (Stevens v. Howitt, 1969 CanLii322) gives me hope, though, that a British Columbia court would not enforce such a clause.

That case involved the settlement of a lawsuit, which included the type of indemnity agreement I referred to. The judge’s conclusion in that case was as follows:

“I would also refuse to give effect to the agreement on general principles. If the document is allowed to stand then it could be argued that an infant's potential cause of action has effectively been destroyed. In most cases the parent is the next friend.

"There is always the possibility that facing the threat of indemnification the parent will not initiate the action, thereby precluding the infant from securing recovery for his injuries. Settlements of this type are, in my opinion, so contrary to the procedures set up in our Courts for the protection of infants that the document should be held to be unenforceable”

In my view, the law needs to change in British Columbia to make negligence waivers unenforceable, period, whether against an adult or a child. And to clarify that indemnity clauses like the one I referred to are unenforceable as well.

It is fair and reasonable that businesses be held accountable for negligence. And it makes for a safer society because a lack of accountability leads to a lack of care.

This is complex stuff!  Some waivers are, indeed, iron clad. Others are not worth the paper they are printed on. Ensure you seek legal advice if you face a circumstance where a waiver might impact on your ability to pursue justice.



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Be vulnerable, and safe

I did my best, in a 12-minute time slot, to instil a sense of vulnerability in high school students this past week.

It was my third opportunity to participate in A different kind of P.A.R.T.Y., the acronym for Prevent Alcohol and Risk-Related Trauma in Youth.

Bus loads of high school students are brought for a “shock and awe” experience that begins in the parking lot, standing around the mangled wreck of a vehicle and listening to first responders.

Back in the hospital, a real trauma team puts on a compelling show of trying to save an injured victim. It is not uncommon for student observers to faint.

Presentations in the Rehab ward, including exposure to various prostheses, help emphasize the long term consequences of serious crashes.

And there is a tour of the morgue.

But car crashes of a scale that require prostheses and send victims to the morgue are few. Much less dramatic collisions can result in life long consequences. And those occur on a day-to-day basis in our communities.

My agenda was to instil a sense of vulnerability in these budding, new drivers that would extend to their regular, every day commute. Not just with the high risk behaviours that are the primary focus of the P.A.R.T.Y. program.

Why? 

The higher your sense of vulnerability, the more care you will take behind the wheel. And the more demanding of careful driving you will be as a passenger.

I showed video footage of three regular, every day, collisions. The forces involved made them shocking to watch. I hope I achieved my goal, leading to a higher sense of care on our roadways.

If the shock of watching a collision can make you feel vulnerable, how might actually experiencing one make you feel?

A healthy sense of vulnerability can make our roads safer. An unhealthy level of anxiety can adversely impact a victim’s life, and can ironically make our roads more dangerous.

It’s commonly known as Driving Anxiety. More technically, a phobia, which I’ve seen defined as “an intense and irrational fear of a specified object or situation."

I’ve known it to be so severe that counselling assistance is required to help with simply getting into a parked vehicle sitting in a victim’s driveway.

But most are able to get right back into their vehicles and resume their day-to-day commutes. To those around them they seem perfectly fine.

But many are not. They are burdened with anxiety every minute of their commute, with an increased sense of panic in particular driving situations.

Just like physical pain will lead to avoiding activities that aggravate that pain, driving anxiety can lead to taking much longer travel routes to avoid certain driving environments. And can lead to avoiding all but absolutely necessary driving outings.

The regular experience of anxiety is psychologically harmful. And the behaviour modification can lead to social isolation.

These are invisible impacts. And there is a stigma around reaching out for help with mental health issues. Victims struggle silently, pretending everything is ok, when it’s not.

Help is out there. But it’s expensive.

Counselling sessions are approximately $120 (Registered Clinical Counsellor) and approximately $200 (Psychologist).

ICBC will pay a portion of that expense up front ($100 and $145 respectively).

Just like with any other injury, it is important to pursue your recovery from psychological injuries.

Please reach out to your doctor and follow whatever recommendations are given. Do you know someone who might be suffering in silence?  Please encourage them to reach out for help.

If you fail to do so, not only will you compromise your recovery but you will most surely face arguments by ICBC that your ongoing psychological difficulties are your own fault.



White-knuckle driving time

Winter tire season has arrived. They’re required on most British Columbia highways from the beginning of October until the end of March.

A reader prompted the topic, asking:

“I live in Kelowna and do not have the proper winter tires, just all seasons. If I drive to West Kelowna after Oct. 1, with no snow or ice on the road, is my ICBC insurance covered if I get into an accident with all season tires?”

I love questions. Please, send them my way!

The short answer is yes, but I’m incapable of giving a short answer.

It would still be yes even if the road was covered in ice and snow.

Except in very narrow circumstances, such as impaired driving, breaking driving laws doesn’t invalidate your ICBC insurance.

You can blow through red lights and stop signs, speed through school zones, drive in the winter on bald summer tires, have your nose in your phone texting, or be taking and sending nudie selfies.

Or you can have such a gross lack of awareness of the road ahead of you that you crash into the back of a stopped vehicle, which represents fully 50 per cent of my personal injury case load.

Unless amounting to a criminal offence, none of that would invalidate your ICBC insurance.

That might be part of the problem.

The risk of hurting someone else or ourselves, and an increase of insurance premiums, are clearly insufficient to have a real impact on driving behaviour.

But that’s not entirely fair.

For the most part, those who cause crashes are clueless about their dangerous driving behaviour.

Keeping between the lines, stopping for red lights and keeping track of speed limits is just too easy. The activity of driving has become the “background noise” of a commute, freeing our consciousness to wander.

And unless something unexpected occurs at a moment when our minds are elsewhere, we get away with it. That lulls us into the fantasy that we can drive safely without being constantly attentive to driving.

Winter tires contribute to the fantasy.

With good winter tires, we can drive in most winter driving conditions almost as if we are on bare roads.

Winter road conditions blend into the background noise, rather than being constantly on our minds. And we get away with it. Until something unexpected happens.

I grew up on a farm near Melville, Sask. We didn’t have winter tires.

I remember learning to drive on those winter highways, white knuckled. I was taught never to trust the road surface and to continually test traction.

I was a safer driver, on those “all seasons," than all those winter-tire equipped 4x4 drivers bombing around without a care in the world.

Most highways in B.C. require winter tires from Oct. 1 through the end of March. Please obey the law.

But please don’t let those tires lull you into a false sense of security.

And please be exquisitely aware that winter road conditions do not neatly begin on Oct. 1 and end on March 31.

If you come out to this year’s Kelowna commemoration of the National Day of Remembrance for Road Traffic Victims, you can meet a grieving father who lost his daughter due to overdriven winter conditions in April, 2017.



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Letter to a politician

Kelowna West MLA Ben Stewart was stuck sitting beside me at an event Thursday night.

It was open seating. My wife and I had “claimed” our seats with a purse and tilted chair. As luck would have it, Ben had later done the same with the seat directly beside mine.

There’s no bad blood between us. It’s just that he’s a politician.

And I hate politics!

Democracy would work well if we were a fully informed public, voting altruistically for what’s best for our society as a whole.

But we’re horribly uninformed, look out for our own self-interests and are susceptible to influence by special interest groups.

Government policy is determined not on the basis of “what’s right,” but on the basis of what will get the most (or lose the least) of those uninformed, self-interested and influenced votes!

That doesn’t mean that I hate politicians.

I suspect politicians hate politics just as much as I do.  Ben Stewart and others who have stepped up in political leadership are trying their best to make a positive difference.

But their hands are tied. They cannot do anything that might risk votes.

Ben got a frustrated ear-full from me about British Columbia’s disaster of road safety policies.

I told him about the research the British Columbia government had done in 2009 before passing our “distracted driving” legislation effective Jan. 1, 2010.

The research identified driver distraction as a serious problem:

And singled out “

  • …activities such as talking on a cellphone and manipulating electronic devices…” as being “…on the end of a continuum of distractions that require significant amounts of attention being diverted away from driving tasks.” (Executive Summary, paragraph 3).

The research noted that “Talking to a passenger in the vehicle versus talking to someone through electronic means and who is not in the vehicle does not cause the same level of distraction.” (Executive Summary, paragraph 6).

And noted:

  • “At the other end of the spectrum there is no evidence that listening to the radio or a book on tape degrades driving performance. This finding underscores that not all distractions are alike and that there is clearly a continuum of distractions.” (Executive Summary, paragraph 7).

And this key point:

  • “Evidence also concludes that there is no difference between the cognitive diversion associated with hands-free and hand-held cell phone use.” (Executive Summary, paragraph 4).

The danger of passing laws banning one (hand held) and not the other (hands free) was specifically noted: 

  • “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.” (page 18, 3rd paragraph).

Yet, what did the British Columbia government do as of Jan. 1, 2010?  In the face of their own research that there is no difference between the cognitive diversion associated with each, we banned only the hand held version and not the hands free version of electronic device use.

Why? 

It must have been seen to be too politically dangerous to force British Columbia voters to leave their phones completely alone when behind the wheel.

Why else would we have told the driving public this dangerous lie:

  • “Go out and spend money on hands-free devices. That’s safe. It’s just hand-held use that’s dangerous.”

And we’ve compounded that lie by upping the penalties for hand-held device usage while leaving the equally dangerous hands free version perfectly legal.

No wonder a downward trend in crash statistics was stopped in its tracks in 2010, and has reversed since then.

Ben asked me to send him the government paper I was referring to. I figured I’d do so through this column.

We will achieve “the right thing” only if public opinion backs it up and this column is my best hope at swaying public opinion.

Will you lend your voice to the cause of a complete ban on cell phone use while driving? 

Please electronically sign my petition: Ban all cell phone use while driving.



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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