Fight ICBC by journalling

How would things have been different had the crash not occurred?

This is a sequel. Last month I recommended that crash victims journal something nobody ever thinks of journaling: how you were before the crash. I promised to pick up from there.

A reminder of why we journal: Because our memories fade.

From time to time during a personal injury lawsuit, perhaps two to three or more years after a crash, you will be asked how you had been before.

And your answers, drawing from a faded memory, are likely to be vague and unreliable.

But if you journal that pre-crash condition when your memory is still crisp, you can look back at that journal and refresh your memory.

That picture of your pre-crash condition is critical when answering the key question in every personal injury case: How would things have been different had the crash not occurred?

Because it is that difference that you are compensated for 

Let’s say your physical and mental wellbeing (your “condition”) after having followed through with all prescribed care, and allowed “time heals” to run its full course, is assessed as 500 units.

We don’t assess condition with units, by the way. This is just an illustration.

And let’s say that had you done the journalling I recommend, you could have refreshed your memory and crisply described your condition immediately before the collision as 600 units. Arguably, your ongoing loss would be assessed at 100 units.

But what was the trend of your condition?

Had your condition been a constant, stable one or had it been changing?

If a constant, stable one, i.e. you had been sitting at 600 units for years leading up to the crash, it is likely that you would have held at that level for the long haul had the crash not occurred.

But if your condition had gradually been getting worse, the pace of that deterioration is a critical factor when predicting how things would have transpired.

And what if your condition had been gradually getting better? A mid-life crisis led to a transition to healthy living. For three years, you had been gradually losing pounds and becoming more and more physically fit.

Your pace of improvement would likewise be a critical factor when predicting what your future would have been had the crash not occurred.

So it is important to journal not only your condition immediately before a crash, but also the trend of your condition leading up to that point.

Our legal system relies on those with medical and psychological expertise to gaze into the crystal ball to predict how you would have been had the crash not occurred.

Their ability to do that is greatly enhanced by a clear and credible description of your condition, and trends in your condition, leading up to the crash.

Without your description, they are left to piece things together based on clinical materials, i.e. the notes and documentation that get added to the files of your doctors and therapists when you consult with them.

I’ve written before about how incomplete and misleading those materials can be, standing on their own.

Please ensure that those you care about learn about and follow this important advice if they are injured in a crash.

Thank you for another year

My youngest wasn’t yet walking when my first weekly column was published on Jan. 7, 2007. He’s about to enter his teenage years as I pass my 12th anniversary as a writer.

Ever have trouble sleeping? I’ve maintained a complete archive of my over 620 columns, which can be found here.

The Kelowna Capital News first gave me a platform: the first 10 years in print and then online as of the beginning of 2017. This is my fifth anniversary with Castanet, which started carrying my column in January, 2014.

Thank you to those media organizations for the ongoing opportunity to pursue three writing passions.

One has been to shed a bright light on what is often perceived as the cloak and dagger world of ICBC and other personal injury claims.

My very first column, “It’s not about screwing the insurance company,” started down that path.

An ICBC claim is not about trying to pull the wool over ICBC’s eyes. Rather, the pursuit of justice is compromised by anything other than being honest and forthright. In reality, it’s avoiding getting taken advantage of by the insurance company that’s the true challenge.

Another has been road safety. Years (now two decades) of investigating the causes of crashes, and their very long term aftermaths, has given me a unique perspective about road safety.

I feel strongly that if I were able to effectively share that perspective with the driving public, driving attitudes would change and crashes would decline.

It often feels like I’m preaching in an empty cathedral. Or based on online comments, to a handful of the ignorant, rude and close minded.

But from time to time I am encouraged along this path by people who have taken the time to share that my words have had an impact on their driving attitudes and behaviours.

My third writing passion comes up from time to time in an attempt to correct public misunderstandings about areas of the law that come up from time to time.

The law is a curious beast when you don’t understand it!  A classic example is blaming particular judges for sentencing outcomes, when they are simply applying the laws we have tasked them to apply, to facts that came out in a courtroom and cannot possibly be dealt with effectively in the media.

I am particularly satisfied when I come across topics like the new alcohol screening powers that cover more than one of my writing passions, in that case road safety as well as helping understand how the law works.

You might think after having written hundreds of columns that I’d get more efficient over time. That’s not the case! I continue to take about three hours conceiving of and writing about each column topic.

Thank you to my wife, Terri, and my children who have tolerated those hours that exceed 150 per year. Over my 12 year writing history, the cumulated hours I’ve spent would take 90 per cent of a full time (40 hours per week) year of writing.

I have a small editorial panel that generously gives their time to read and comment on my drafts. My father Al, age 83, has been catching my grammatical errors since the beginning.

Along with Al and my wife, Terri, are two good friends: Jess and Sara-Jane. Thank you.

And I am grateful to you, for taking an interest in what I have to say. Without interested readers, my column wouldn’t be published.

I wonder if you might consider sending me an e-mail, from time to time, with topics you would like me to write about? And I am always interested in feedback. I would absolutely love to hear from you.

Wishing everyone the very best that 2019 has to offer.

Bias is road safety

Are our rights being stripped away by the new police breath demand powers? 

Are we on a slippery slope to a police state?

I wrote enthusiastically in favour of the new police powers last week. I promised to follow up addressing the many concerns raised about our rights.

But first, what is my agenda?  Some have suggested that I’m biased. I am, but not in the ways suggested.

I am not a former Crown counsel. My only experience with criminal law was early in my career, doing a smattering of criminal defence work.

Is this political? 

I did credit “Santa Trudeau” for the road safety Christmas gift, but my opinions are not political. I hate politics. The whims of under-informed voters seem to get in the way of politicians doing what’s right, while allowing them to get away (at times) with what’s very wrong.

And I’m not poised to cash in on the legal work that will inevitably flow from more offenders facing consequences for driving over legal alcohol limits, and from Charter attacks against this new law.

My bias is road safety.

But not at any cost. Our individual rights, protected by the Charter of Rights and Freedoms, are important to me.

Like most things in life, it’s a matter of balance.

We did not decide, as a society, to make our individual rights absolute. The Charter does not enshrine an absolute right to be free from search and seizure by the police.

The wording of that section (section 8) specifically contemplates balance: “Everyone has the right to be secure against unreasonable search or seizure.”

It is not all police search or seizure that we are free from. It is “unreasonable” search or seizure.

And all of our rights are subject to an overall reasonableness standard. The very first section of the Charter says this:

“The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

Putting it all together, the government can enact laws that infringe on our rights, including subjecting us to “unreasonable search or seizure” so long as the limits on our rights are justifiable in the context of a free and democratic society.

Can we trust the government to strike that balance for us? 

Hell, no! 

We hope that they will, but we certainly cannot trust them to. As I alluded to earlier, the laws they pass so often compromise what’s right, following the whims of under-informed voters.

We rely on our legal system to ensure the right balance is struck.

We rely on citizens, whose rights are impacted by laws, to challenge those laws in the courts.

And on the government to put their best foot forward to defend the laws as having reasonable and justifiable limits on our rights.

We rely on the courts to carefully consider both sides, review the incredible depth of legal precedent that has developed since the 1982 Charter enactment, and make decisions that strike the right balance pursuant to the rule of law.

Does the system work? 

Are our rights protected?

In the 36 years since the Charter enactment in 1982, I don’t see us sliding down the slope into a police state.

For an excellent example of the system working, read the decision of the Supreme Court of Canada that I cited in my last column, where the courts struck down the first version of British Columbia’s legislation imposing immediate roadside prohibitions.

British Columbia law makers were forced to make changes in the law to accommodate the court’s findings.

The result? 

New and improved IRP laws that strike the right balance between road safety and our Charter rights.

Does the new law, allowing police to automatically screen drivers for blood alcohol content, run afoul of the Charter? We’ll see if the right balance has been struck.

As a road safety advocate, I hope it has been.

Santa Trudeau delivers

Thank you, Santa Trudeau, for the road safety Christmas gift.

Police can finally do the work we’ve been asking them to do: pulling those over the legal alcohol limit off the road!

Though it’s the hard-working elves we should probably thank. Particularly those who fought to maintain the controversial and dramatic change that means so much for road safety.

I am a bit of a news junkie, with a particular interest in road safety. I’m embarrassed to say that I had not clued in to the change until seeing a news report on Dec. 11, of its imminent implementation on Dec.18. 

The law had been passed in June, 2018, along with cannabis legalization.

I posted the news report on Facebook with the comment:

“This is beyond incredible. How could it have taken this long!? Nice!!!!!”

My enthusiasm wasn’t widely shared. Responding comments included:

  • “Just burn the Charter”
  • “RIP freedom, hello police state.”
  • “This is so against our Charter of Rights it’s pathetic! One step closer to losing more of our rights! Here comes the Nazi regime.” 

I promised to address those concerns in my Christmas column.

Bill C-46 includes a wide swath of changes. The one I am excited about pertains to when police can make a roadside breath demand.

In hindsight, we had been expecting police to enforce our impaired driving laws while blindfolded.

Before Dec. 18, when conducting a CounterAttack roadblock, police were handcuffed from making a roadside breath demand unless they had reasonable grounds to suspect that you had alcohol in your body.

We expected them to conduct a roadside investigation based on the smell of your breath, what you chose to disclose about your alcohol consumption and gross indicators of intoxication (fumbling with your licence and registration, slurring words, glassy eyes, etc.).

British Columbia law prohibits driving with a blood alcohol level over 0.05 per cent. An adult man can reach that level with as little as two alcoholic drinks in one hour. 

Who slurs their words, has glassy eyes or smells of alcohol after two drinks?

Chronic alcoholics can hide their use from co-workers, friends and even spouses. What ridiculous expectations we had of our police!

One news report, noted: “Research also shows that up to 50 per cent of drivers who would blow over the legal limit aren’t caught during roadside check stops.”

Though I’d like to see the research because I would have expected a much wider hole in the net.

That hole has been sewn up. Police blindfolds have been removed. They are finally able to investigate drivers for exceeding legal blood alcohol levels in an effective way, using a roadside screening device.

No more pussy-footing around, blindfolded. They can require every driver to blow.

Now, about that Charter, which can be found at this link.

Section 8 says: “Everyone has the right to be secure against unreasonable search or seizure.”

Is a breath screening during an otherwise lawful roadside stop an “unreasonable search or seizure,” marching down a Nazi path toward a police state? 

I am already at 500 words, which is the rule of thumb my editors give me. I apologize, but I must once again (second week in a row) make this one “to be continued.”

Those of you vibrating in your seats, keen as heck to understand the interplay between this change in the law and the Charter of Rights and Freedoms, I invite you to read the section on “Searches or Seizures (section 8)” within this link where the Federal Government explains Charter implications of Bill C-46: Charter Implications.

 But for a front row seat to how the courts actually apply the Charter, give a shot at reading this case from the Supreme Court of Canada, the top of the judicial food chain for when British Columbia’s new automatic roadside prohibition laws were initially challenged: Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46.

Wishing all of you a safe and happy holiday season and New Year.

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.

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