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Achieving-Justice

Another Remembrance Day

A different kind of Remembrance Day for dead and injured, and the multitude of others impacted, is almost upon us.

The deaths and injuries can be brutal, and more Canadian lives have been taken than in both world wars combined.

The goal is not to prevent another mass slaughter. The carnage is an ongoing and increasing one. Our best hope is to start stemming the tide.

A World Day of Remembrance for Road Traffic Victims was initiated by an organization called RoadPeace in 1993.

Initiators conceived of a lofty goal: A day of respect by and toward all road users; a day on which exceptional care is taken by motorists; a day of courtesy at the wheel and a day when all road laws are respected so that a world day without any crashes resulting in injury or death will become a reality.

The World Health Organization added its support in 2003. And in 2005, the United Nations provided international endorsement, encouraging governments around the world to commemorate the day.

Canada stepped up in 2008, designating a National Day of Remembrance for Road Crash Victims.

In Kelowna, a Day of Remembrance for Road Crash Victims has been proclaimed annually since 2012. The seventh annual commemorative event will be held Wednesday, Nov.21, from 5:30 p.m. to 6:30 p.m. in the Orchard Park mall parking lot, corner of Highway 97 and Dilworth Avenue.

It will be cold and dark, but unless an emergency takes them away, we will have Kelowna firefighters providing the flood light support of Engine No. 1.

And we will do our best to keep you warm with a shelter, propane fire, hot chocolate, coffee and Timbits.

I have been arranging the annual event as part of my One Crash is Too Many road safety campaign. I agree that there is value in taking the time to reflect and remember the horrible personal toll that continues to be taken on our roadways.

If we grasp the magnitude of the ongoing carnage, our minds will inevitably turn to how we might make things better.

Because not one of us is immune. Each and every one of us, and those close to us, are in the line of fire every time we occupy our roadways.

And that is not melodramatic. An average of 960 crashes occurred every single day in British Columbia in 2017. And the numbers are increasing.

The more vulnerable we feel, the more motivated we will become to push our political leadership into action.

Not politically expedient action that makes things worse instead of better, but bold steps to attack the root of our road safety disaster: 

  • Inattention.

Crash numbers would plummet if drivers simply paid focused attention on the task at hand. But our political leaders are completely missing the boat on implementing obvious solutions.

And when the road safety epidemic finally became a political issue, with soaring ICBC insurance premiums, the politically expedient answer was to strip away, instead of bolster, driver accountability by reducing the expense of crashes through stripping away the rights of crash victims.

Many of us have been touched, some much harder than others, by a permanent crash injury or the loss of a loved one.

Hideki Mimura is travelling from his home in Japan again this year to attend in memory of his daughter.

Please consider joining us for the brief event on Wednesday evening.

Please follow the link below to see our promotional video for this commemorative event.  https://www.youtube.com/watch?v=mrrj77lPGZw&feature=share



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Saying sorry means a lot

Consider apologizing if you are the cause of a life altering injury.

Though you won’t know about the life-altering injury if you don’t bother to inquire.

My personal injury practice is restricted to those unlikely ever to fully recover. And I’ve been at this for a long time.

I don’t recall a case where the offending driver bothered to check up on their victim to see how badly they were hurt. Let alone apologize for the damage they caused.

Is it because injuries are rarely apparent at the scene of a crash and you don’t realize the extent of the harm you might have caused?

That would be understandable. It is impossible to tell at the scene of most crashes whether or not vehicle occupants were even injured, because it takes time for the damaged tissues to become inflamed, stiff and painful.

And it takes months and years of struggles to get better before optimism for a full recovery is lost.

But it takes such little effort to reach out and ask. A simple phone call the next day to ask how things are going, and to offer your heart-felt apology, would go a long way.

ICBC seems to understand the importance of an apology. At the beginning of most mediations, ICBC’s representatives apologize on behalf of the offending driver.

But it’s an empty apology. The offending driver is clueless.

At some point in the lawsuit, I often examine the offending driver under oath. I ask them about the standard denials made on their behalf by ICBC, that my client was not injured in the collision.

Of course, they have no clue about my client’s injuries. I look them in the eyes and ask if they ever inquired. I never get an affirmative answer.

Is there a worry that, by apologizing, you might somehow become more legally accountable for the damage you caused?

The Apology Act did away with that concern when it was passed in 2006.

The piece of legislation removes all risk of legal accountability flowing from an apology.

I suspect that the government’s motivation for passing it was to allow for their ability to publicly deliver apologies for various historical wrong doings without compromising their ability to fight against actual accountability.

But it extends to all of us.

Even if you acknowledge fault in an apology, it does not have any affect on your insurance coverage and must not be taken into account in any determination of fault or liability.

An apology cannot even be admitted in court as evidence of fault.

You can say “I am really very sorry for causing that crash and hurting you,” and ICBC can still mount a full defence on your behalf, denying liability as they regularly do in even the clearest of liability cases.

The act defines the word “apology” very broadly, as:

“…an expression of sympathy or regret, a statement that one is sorry or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit or imply an admission of fault in connection with the matter to which the words or actions relate.”

I have gotten to know a grieving father from Japan who lost his daughter in a crash on the Coquihalla last spring, 2017.

His daughter had been attending university in British Columbia. In an e-mail to me shortly after that crash, he asked:

“Do you think it's possible to have a letter of apology from the Jeep driver? We haven't heard from anybody of his side since the accident. Is it normal in Canada?”

I guess it is. Let’s change that, shall we?

Please jack up your level of attentiveness behind the wheel to avoid causing a crash in the first place. But if you do cause a crash, please give your victim a call the next day, ask how they’re doing, and apologize.



The bad and the ugly

I can trust in your honesty, but not believe you.

Take flat-Earthers. They might be honest as the Earth is long. But they’re wrong.

And my wife. She picks up after me and the “other kids” all the time.

Of course, she doesn’t remember every little thing she puts away. When I ask her where she put this or that of mine and she denies touching it, she’s being honest.

But how else could it be missing? I couldn’t have misplaced it. At least that is my honestly held belief.

Argue the point and there’s trouble.

Being honest does not necessarily mean that what you say is true.

My wife and I are both telling the truth, in the sense that neither of us is lying. But one of us is mistaken.

In the context of a trial, one judge put it like this: “The credibility of a witness is not the same as the reliability of a witness. Credibility has to do with a person’s veracity or truthfulness, whereas reliability deals with the accuracy of the witness’s testimony.” (Edwards v. Stroink, 2015 BCSC 1318.

The credibility side of the equation becomes difficult when the things you say, if believed, will benefit you.

We seem to be built with an ingrained scepticism.

A roofer knocks on the door, says you need a new roof, and hands you a quote. You are less likely to accept that assessment as fact than if a friend or family member, not a roofer looking for business, tells you the same thing.

Or a personal injury lawyer telling you that you need a lawyer to help you with your ICBC claim.

One of the most important parts of my job as a personal injury lawyer has to do with maximizing the likelihood that what my clients say will be believed.

It’s not because I work for a bunch of liars and cheats. Quite the opposite, in fact. I won’t take on a case I don’t truly believe in.

But they start off on the wrong foot because of that ingrained scepticism.

The best tool to counter that is to readily provide information that hurts your case.

It can be a difficult notion to get your head around!  Why hand over information that’s going to be used against you?

Our civil justice system is built on a principle of full disclosure.

Every stitch of relevant medical records will be obtained and handed over to ICBC. As will relevant employment records.

Those who knew you before the collision, and since the collision, will be identified and might be interviewed. You will undergo something called an “examination for discovery” where you will be required to answer all sorts of questions under oath.

The bad and the ugly are going to come out.

If you are up front about sharing the bad and the ugly, it dramatically enhances your credibility.

Another critical tool is to ensure that you are working with accurate facts.

However much your honesty is enhanced by giving balanced information, your reliability will be destroyed if you’re working from a faulty memory.

This is critical stuff. For example, you won’t be asked about your physical symptoms and functionality in the lead up to the collision until a couple years, or more, after the collision. Good luck giving accurate answers without first reviewing your medical records.

That goal can be achieved by proactively obtaining all relevant medical, employment and other materials, putting it into a format that can be digested, and ensuring you review it to refresh your memory.

In a personal injury claim, and in any other context, your credibility and reliability will be maximized if you give the good, bad and the ugly, after ensuring that you are working with accurate facts.



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It's not an accident

Why should “accident” (referring to road traffic incidents) go the way of other words like negro, midget and retarded?

Because it carries heavy baggage of unaccountability.

History lesson: In the early 1900s, when companies were looking to protect themselves from the costs of caring for workers injured on the job, “Relentless safety campaigns started calling these events ‘accidents,’ which excused the employer of responsibility”. (Matt Richtel, New York Times, May 22, 2016, quoting history professor Dr. Peter Norton.)

Matt goes on sharing Dr. Norton’s history lesson: “When traffic deaths spiked in the 1920s, a consortium of auto-industry interests, including insurers, borrowed the word to shift the focus away from the cars themselves.”

The word stuck, it’s connotation of unaccountable inevitability getting in the way of taking important steps to fix an ongoing, and growing, road safety disaster.

Overly dramatic? There is an average of over 175 collisions resulting in casualties every day in British Columbia. And crashes resulting in at least one fatality occur an average of every one and one-third days (2016 statistics). The numbers are growing.

Road safety advocates have been campaigning against the “A” word for years. Here are some quotes I’ve found online:

“When you use the word ‘accident’, it’s like ‘God made it happen” (Mark Rosekind, head of the National Highway Traffic Safety Administration);

“The word wrongly implies that human decisions and actions have nothing to do with it” (Jeff Larason, former Boston traffic reporter, now director of highway safety for Massachusetts);

“The phrase ‘it was just an accident’ serves both as a claim of innocence and as an exoneration.” (RoadPeace);

“When we say ‘accident,’ we are basically throwing up our hands and saying that the deaths of children like Allison are inevitable, something no one is responsible for, like bad weather…” (His-Pei Liao).

There is a web site dedicated to this issue: Drop the ‘A’ Word, which has a compelling introduction:

“Not all crashes are ‘accidents’. Crimes are not ‘accidents’. It's not an ‘accident’ when a person makes a decision to drive drunk, distracted, or in a negligent manner. Stop giving criminals a pass by calling it an ‘accident’.”

A national (United States) campaign to eliminate the “A” word was kicked off June 8, 1997. I cannot possibly articulate the issue better than the road safety giants who carefully crafted the proclamation:

PROCLAMATION

  • Whereas, changing the way we think about events and the words we use will affect the way we behave. Our goal is to eliminate the word "accident" from the realm of unintentional injury, on the highway and across the nation;
  • Whereas, motor vehicle crashes and injuries are predictable, preventable events. Continued use of the word "accident" promotes the concept that these events are outside of human influence or control. In fact, they are predictable results of specific actions;
  • Whereas, we can identify their causes and take action to avoid them. These are not "acts of God", but predictable results of the laws of physics;
  • Whereas, use of the word "accident" works against bringing the appropriate resources to bear on this enormous problem. It allows the idea that the resulting injuries are an unexpected part of life;
  • Now, therefore, we the undersigned, in recognition of this life saving and injury preventing opportunity, do hereby proclaim a national campaign:"Crashes Aren't Accidents"
  • To eliminate the word "accident" from the realm of unintentional injury, on the highway and across the nation, with our partners, with the media, and in all public contexts.

A researched paper by Canada’s Traffic Injury Research Foundation, dated December, 2017, gives a supportive Canadian perspective.

My column last week included a teaser, that I would share the results of an on camera debate about this issue with local journalist, Kent Molgat.

He was very kind and would have granted me the win regardless of my performance. Unfortunately, you won’t be able to see the debate because an example I used for how the “A” word would not fit all unintentional occurrences (a sniper target shooting on a crowded beach, “accidentally” blowing off a child’s head) failed to meet publication standards.

How about we come on board to eliminate the “A” word when referring to motor vehicle collisions, crashes, and incidents in Kelowna? 

Will the local news media sign on?

Will you?



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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