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Achieving-Justice

Adjusting to a new normal

You have already learned to live with a chronic neck and back condition. Then, an absent-minded driver makes it worse.

Do you have a claim?

Of course, you do. But it’s the toughest of claims.

Why do I say “of course?” 

Because this is a most basic of legal rights we have as British Columbians. If someone causes you harm, they are accountable to fairly compensate you for that harm.

It’s as basic as a loan transaction. If you lend money, the borrower is accountable to pay it back.

But in a motor vehicle collision, you don’t choose to lend the money. Harms and losses are imposed on you.

And, unlike a loan transaction, where the amount of the claim is crystal clear, the onus is on you to prove your harms and losses from a crash injury.

Those with a pre-existing neck or back condition face extra hurdles. The offending driver (through their liability insurance company ICBC) will say:

“You had neck pain before the crash. You have neck pain now. Where is the loss?”

Fortunately, the law doesn’t work that way. But if you don’t understand how the law works, you’re likely to be taken advantage of.

Think about the moment of vehicle impact as being the start of two time lines.

One time line pretends the absent-minded driver wasn’t motoring around with their head up their, well, you get the idea. It pretends they noticed your completely stopped vehicle, applied the brakes and came to a stop behind you. Let’s call that your “should have.”

The other is your new reality.

If your new reality is the same as your “should have,” then do a happy dance because that means you weren’t injured!  Absent an injury, there’s no injury related harms and losses and therefore no claim.

But if your chronic neck and back pain starts worsening that evening, and you wake up the next morning in a jacked-up world of hurt, brace yourself for a challenge.

The most important challenge is figuring out how to recover as quickly and fully as possible. Your best case scenario, after doing all that rehabilitation, is a return to whatever level of chronic neck and back pain you had gotten used to before the collision.

You’re likely to ignore the other challenge: proving the difference between your new reality and that “should have” time line.

A year and a half later, after undergoing all sorts of care and reaching a new plateau, you’re asked how you’re feeling. No big surprise: you have chronic neck and back pain.

But is it different from what it would have been had the collision not occurred?

You’ve gotten used to a new normal. You know that your new normal is worse than it had been before. But how much worse?

You’re getting weekly headaches. How often were you getting headaches before the collision?

You wake up with pain and stiffness every morning at a 7 out of 10. What was the level before?

You knew to keep a journal of your symptoms, and diligently did that. You can look back at that journal to refresh your memory about how things had been after the collision.

But that’s not enough. You must also compare that new normal with how things had been before.

It’s even more important to journal your pre-collision condition. That journalling must be done as immediately as possible, while your memory of that pre-collision condition is as clear as it will ever be.

The more you wait, the more you get used to your new normal and forget how things had been before.

If you cannot describe the differences between your new normal and that pre-collision condition in a very detailed, clear and credible way, your chance at fair compensation for your harms and losses will swirl down the toilet bowl.

Please do keep a journal to help refresh your memory of the onset and progression of post-collision symptoms. But please also sit down as soon as possible to prepare a very detailed journal of how things had been in the lead up to the collision.

Early in the New Year, I plan to pick up from here to explain how medical specialists, and the courts, gaze into the crystal ball to establish your “should have” time line.

You will see that it’s more complicated than just looking at your status immediately before the collision.





Watch how you fall

When should you get legal advice about a slip and fall injury? 

Before it happens.

Because the next day, or even an hour after the fall, is too late.

A starting point: merely showing that you slipped and fell is not enough to establish a legal claim.

Not even if you prove that you were sober, wearing reasonable footwear and walking in a reasonable manner.

And that the surface you fell on was incredibly slippery.

The law does not require property owners to keep walking surfaces 100 per cent safe, 100 per cent of the time. It requires only that “reasonably care” be taken to keep premises “reasonably safe” (I’ll refer to that as the “legal duty of care”).

Dangerously slippery surfaces can, and do, arise even with reasonable care taken to prevent them.

And complicating matters is the fact that people sometimes slip, trip and fall on reasonably safe surfaces.

An example of where the law was applied is a case called Hanes v. Loblaws Inc., 2017 BCSC 102. The injured Plaintiff had slipped and fallen in a Superstore. She had returned a box of oranges to the customer service desk. She slipped and fell when she turned to get a replacement box.

A number of Superstore employees were called as witnesses. They described impressive (to me) efforts to keep the slushy wetness of the mid-December day from getting into the store, including periodic mopping and wet-vacuuming the matting as it became saturated.

The judge found that the efforts to keep the floor as clean and dry as possible in the circumstances were reasonable.

Regardless of those efforts, the Plaintiff had not even proven that the area of the floor where she fell had been wet.

The only evidence of that was the Plaintiff’s assumption that moisture she felt on the back of her jacket (which was not long enough to cover her buttocks) was caused by water on the floor.

That evidence was not corroborated.

Noting he was speculating, because the exact cause of her fall had not been proven, the judge inferred that the Plaintiff’s leather soled shoes with approximately two inch heels had likely been wet when she entered the store, and it would have been easy to skid a little, causing her to fall, given that wet footwear alone.

The case was dismissed.

Perhaps the Plaintiff had been careful to dry the bottoms of her shoes on the available matting as she entered the store. Perhaps the employees were careless, and failed to notice a small pool of water in the area where the Plaintiff had fallen.

Perhaps the moisture on the back of her jacket was, indeed, caused by that small pool of water.

How might things have been different had the Plaintiff known the law before that day?

One, she might not have assumed that the floor would be dry, and that drying her shoe bottoms as she entered the store would be enough care for her own safety.

If so, she might have taken a higher level of care for her own safety, assuming with every step that it might be in a pool of water. That might have prevented the fall from occurring in the first place. I’ve often shared my view that “the best claim is no claim at all”.

Two, she might have had the presence of mind (as she lay there on the floor) to look around herself and see why she fell. If there had been a small pool of water, she could have made note of it, called over a witness to verify it, and used her phone to take photos and short video snippet of it, thereby “preserving the evidence.”

Three, she might have taken a look at the bottom of her shoes and preserved the evidence of their status. Perhaps one sole (the one that slipped) was wet and the other was dry, proving that she slipped because of a wet floor and not wet shoes.

Four, she might have looked around for other wet areas, and “preserved the evidence” of those as well, which would have supported an argument that the impressive sounding safety procedures had not been followed or not been sufficient to keep the area reasonably safe.

It is absolutely critical to “preserve the evidence” of the scene of a slip and fall, and of what occurred. Bunches of photographs, as well as video, should be taken at the scene as immediately as possible. Witness names and numbers should be taken.

And you should “journal,” as soon as possible, absolutely everything you can remember with as much detail as possible (because memories inevitably fade over time).

And the first business day after the fall, get legal advice particular to your situation. It might well not be a pursuable claim, but if it is, there might be more steps that can be taken to help achieve justice.



Keep 'brains on the road'

Is passing school buses with flashing lights a special P.E.I. problem, or can we learn from their struggles?

They already have the heftiest fines in the country: $1,000 minimum and $5,000 maximum.

The fine in British Columbia is a “whopping” $368. Before it increased in 2016 it was $167.

On top of the fine, P.E.I. drivers are hit with eight demerit points. Getting to 12 demerit points in P.E.I. comes with the consequences of licence suspension for three months and the requirement to take a “driver improvement” or “defensive driving” course.

British Columbia drivers are hit with only three demerit points. And I just had a gander on-line where an “Intervention Chart” indicates that nine to 14 penalty points attracts a “whopping” warning letter.

Do we care about children safety in British Columbia? 

The good folks in P.E.I. are actively talking about and wrestling with the problem, and they’re 10 steps ahead of us with penalties.

But even with consequences that blow ours out of the water, P.E.I. has not been achieving results.

Within the last month, a standing committee held meetings to sort out this ongoing problem. 

And it’s a true puzzle.

Because fines and penalty points shouldn’t even be necessary. What animal would choose to endanger children’s lives by passing a school bus with activated flashing lights? 

But children’s safety is clearly an insufficient motivator, so we impose fines and penalties.

Why aren’t the heftiest of fines and penalties working? How wealthy must you be to risk a minimum $1,000 fine and getting two-thirds of the way to losing your licence for three months?

And it’s a very high risk. There’s an irate witness sitting there in the driver’s seat of the school bus.

 The committee indicated willingness to consider any options, including strobe lights on the school buses. One member suggested putting a crossing guard on each bus in hot spot areas.

They went with increasing demerits. As of Dec. 8, even drivers with a clean driving record will face the strict consequences because demerits are increasing from eight to the 12 necessary to result in license suspension.

Have they finally got it right? Will P.E.I.’s heftiest of penalty mixes finally correct driver behaviour?

I fear that it will not.

What driver is going to come up behind a stopped school bus, with flashing lights, and think: “Hmmm, if it was only a $1,000 fine and eight demerit points, I’d risk child safety and pass, but with the extra four points I’m going to choose to stop?”

Those suggesting strobe lights and crossing guards are closer to the answer.

Why do I say that? 

Graham Miner, director of the Highway Safety Division, pointed to the answer.

He reportedly provided crash statistics noting that “…society is facing a new enemy – cellphones and distracted driving. And it’s impacting school buses.” (Dave Stewart, The Guardian).

This might sound crazy, but for the most part I believe that drivers are not making the conscious choice to endanger child safety and risk hefty penalties. They are zoned out. They see, but do not cognitively process the red flashing lights. 

Crazy as it may sound, I bet there’s not one flag person who would doubt me. They are continually shaking their signs up and down trying to get drivers’ attention.

And they’re standing out on the road with bright colours holding a sign 

It’s just like the offending drivers in 50 per cent of the crash claims I handle (rear-enders), who are so zoned out they fail to notice that traffic ahead of them has come to a stop. 

Strobe lights and crossing guards would help. But they would be a Band-aid, and a dangerous one at that.

They would do nothing to fix the overall problem of zoned out motorists. And the danger is setting up yet another safety net, leading motorists to feel even more comfortable directing their attention elsewhere.

How do we fix the real problem of zoned out motorists?

Send the strong message that we must zone in!

A message that we have completely failed in sending. And it’s a continuing failure. 

Our road safety focus has been “eyes on the road,” when the true challenge is keeping our “brains on the road.”

We have the scientific studies that show that we can be looking out our windshield, eyes on the road, but fail to cognitively process approximately fifty percent of that visual information when our brains our elsewhere (using electronic communication devices).

Sound crazy? Here is a link to British Columbia’s 2009 Discussion Paper reviewing the science (Discussion Paper: Addressing the Problem of Distracted Driving and its Impacts to Road Safety).

The important road safety message to keep our “brains on the road” is completely lost when we tell the driving public that it’s perfectly legal and safe to engage in cell phone communications and texting as long as it’s hands free.

It’s not, of course. It’s identically cognitively distracting to chat while physically holding a cellphone as it is hands free.

 In P.E.I., in British Columbia, in all of Canada we need to take the bold step of banning all cell phone use while driving. Increasing penalties is bound to continue failing unless we get drivers’ brains firmly on the road.

A cell phone ban would send the message that “brain on the road” is what really matters.

 We need to send the message that attention behind the wheel is of utmost road safety importance. Send the message that “brain on road” is the key issue.



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House buyers beware

Is a seller accountable for problems you discover about a house you’ve purchased?

It’s been years since I’ve handled a case like that, so I had to do a little research to find the answer for a friend.

It didn’t take long to find a recent case on point, Nixon v. MacIver, 2016 BCCA 8. Legal decisions can be difficult to understand, even for lawyers, so please do not rely on anything you think you understand from that case without consulting a lawyer.

A house purchase is the biggest investment most of us will ever make. And we tend to stretch our financial limits when doing so. Expensive problems discovered after taking possession can be financially devastating.

Holding the seller accountable, if it is even possible, is a disaster in itself when you consider the legal expense and time required to do so.

You might have the seller dead to rights on misrepresenting the age of the roof. An excellent legal case. One that is very likely to succeed. But unlike cash that you can put toward a new roof, legal cases take time and legal expense to pursue.

And all you get at the end of a successful legal case is a judgment directing the seller to pay you money in compensation. It’s an unsecured “account receivable” that might never be paid.

So that leads to my key advice on this point: Don’t let it happen in the first place.

Don’t you dare purchase a home without first having it inspected by a qualified, thorough and insured home inspector.

And please don’t hire an inspector based on price. Doing so is about as sensible as shopping around for the cheapest babysitter for your children. An inspection is only as good as the inspector.

And you also don’t want to end up with a lawsuit against an inspector who misses something.

Is an inspection necessary with a brand new construction? 

Absolutely. Perhaps even more so.

There are other steps you can take to research a property before finalizing a deal that I don’t have off the top of my head. Consult with a real estate lawyer to learn more.

Taking these reasonable steps to independently learn about potential problems with a property fits exactly with the legal principle of “caveat emptor,” which in the words of the judge in the case I referred to: “…remains very much alive in the context of real estate transactions in B.C.” (paragraph 47 of the case).

Those Latin words translate to “buyer beware.”

The court specifically referred to property condition disclosure statements that purchasers so often rely on. A vendor must be honest when completing those statements, but the statements require only information within the vendor’s actual knowledge. And that knowledge does not have to be correct.

While those statements appear to be comprehensive, covering any possible problem you could encounter with a home. They are not.

Using the roofing example, the statement asks, “Are you aware of any roof leakage or unrepaired roof damage?”

A vendor could honestly answer “no” to that question even with full knowledge that the roof is on its last legs.

In the case I cited, the vendor’s disclosure that the home was only approximately six years old, even though it had been a cobbled together construction that included a much older cabin, was not sufficient to make the vendor accountable for problems that surfaced related to the age of the cabin.

Yes, a seller must be honest when answering the specific questions a property condition disclosure statement, but honest answers might well be wrong and the statement is far from comprehensive.

Apart from that, the seller of a home has no obligation to alert you to problems except in the very narrow circumstance where the seller knows about a defect that could not have been identified by a property inspector, and which would render the home dangerous or uninhabitable.

End up with a lemon house? Consult with a lawyer for advice specifically related to your situation. You might well have a pursuable claim.

But as is always is the case, the best lawsuit is no lawsuit at all.

Take the words “buyer beware” seriously and don’t rely on anything you are told by a seller or the realtors involved.



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
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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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