140064
140002
Achieving-Justice

Fleecing motorists?

Lipstick on a pig. That analogy, for reintroducing photo radar without using the words photo radar, makes me smile.

I grew up on a mixed farm in Saskatchewan and pigs were a part of our small operation. They were free range, able to root around in pasture areas. Oh, my goodness, they’re sweet animals. And not just the brand new piglets.

Beauty is very much in the eye of the beholder, but I think they’re beautiful as they are. No need for lipstick. But it would be hilarious seeing someone try to apply it.

The analogy was used by Ian Tootill who, according to the SENSE BC website, co-founded a grass roots organization called SENSE (Safety by Education Not Speed Enforcement) in April, 1995.

The organization was formed in response to an NDP/ICBC campaign promoting the planned introduction of photo radar in 1996.

According to their website, they fought the campaign “…by spreading the truth about a program that had little to do with safety, and in our opinion everything to do with fleecing motorists.”

They failed to block the NDP’s introduction of photo radar in 1996. But, by the next election, they had churned up enough public dissatisfaction that the BC Liberal party were able to leverage it into a winning campaign by promising to dismantle the program, which they did in 2001.

The program indeed fleeced motorists. According to a Globe and Mail article published in June, 2001, revenues from the previous year’s tickets, generated from 30 photo radar vans were expected to raise revenues of nearly $12 million.

If we’re worried about fleecing motorists, this go-around is dressing up a pig in a dress, pearls and high heels.

There are 140 red light cameras that have been automatically issuing tickets when drivers blow red lights. They are also equipped to monitor speed.

According to a Vancouver Sun article, an average of 10,500 vehicles per year blow through each of the 140 intersections at 30 or more km/h above the posted speed limit.

The fine for going 30 km/h over the posted limit is $196.

The plan is to configure cameras at 35 of the intersections with the highest collision rates to automatically issue speeding tickets. If driving behaviours don’t change, that’s an average of $72 million per year of additional speeding ticket revenue.

Cha-Ching!

Is the government motivation a road safety one, to reduce speeds at these high risk intersections? Or is it to fleece motorists?

Unlike the previous photo radar piggy, with sneakily placed unmarked vans, this dressed up one will come with warnings. They will be putting up warning signs so speeders can temporarily become safe, law abiding citizens until passing through these intersections.

They will make money on only the most absent minded of lead footed drivers — those whose driving inattentiveness extends beyond failing to pay attention to their speed, to also failing to notice the warning signs.

And if those are the drivers who will be filling government coffers, I don’t really care about the government motivation. Perhaps a few tickets in the mail will increase their pathetic level of attentiveness.

In fact, I say they should convert the cameras at all 140 intersections.

Next week, I’ll explain why they should also do away with the warning signs.



143093


That's just not ducky

How heartless would you have to be not to avoid driving over a duck waddling across a road?

The headline, “Stunned by heartless driver,” drew me in to read a recent news article. A couple of ducks (one male and one female) were reportedly crossing a street in downtown Vernon.

Two cars drove around them. But the driver of a truck didn’t. He drove over the male duck, killing it.

My mind immediately jumped to the young lady, Emma Czornobaj, whose kindness to ducks led to convictions for dangerous driving causing death and criminal negligence causing death.

Ms. Czornobaj had stopped to save seven ducklings that were resting in a cluster on the left shoulder of a highway in Candiac, Que., in June, 2010.

She had come to a stop in the left passing lane, closest to the ducklings. And then got out of her vehicle to fetch them.

Ms. Czornobaj was concerned about the ducks. She didn’t foresee the horrific scenario that played out moments later.

Andre Roy, his 16-year-old daughter, Jessie, as a passenger, was riding his motorcycle in the passing lane, coming up behind Ms. Czornobaj’s parked car.

He was following another vehicle that blocked his vision of the hazard ahead. When that vehicle swerved to avoid crashing into the parked car, Mr. Roy had almost no time to react.

He and his daughter were killed.

The full story is told in the sentencing decision, R. c. Czornobaj, 2014 QCCS 6709.

Yes, a completely different duck scenario. But it illustrates an important road safety principle. It is negligent, and in that case criminal, to put the well being of human beings at risk to save an animal.

The Plaintiff in the case of Molson v. Squamish Transfer Ltd., 1969 CarswellBC 146, saw a small animal (she thought a dog or a cat) on the road as she entered an intersection.

Fearing she would run over it, she came to a sudden, sharp stop. A transport truck was following too close to be able to stop, resulting in a collision and injury to the Plaintiff.

The driver of the transport truck was found to be at fault, but Ms. Molson was assessed equally so.  

The judge noted:

“The desire to save an animal's life is natural and admirable but, of course, it cannot excuse all acts done in pursuance of it. If the choice is between an animal and human safety then, I should think, there is no real choice and the animal must suffer.”

That principle was affirmed by our Court of Appeal in Birk v. Dhaliwal, 1995 CarswellBC 956.

The driver in that case had swerved to avoid hitting a medium-sized dog, resulting in a crash with a utility pole. A passenger had been injured. The driver was exonerated at trial and that decision was appealed.

The Court of Appeal found the driver was negligent. Quoting from the decision:

“He failed in his duty to the appellant and the other passenger in his car to take reasonable steps to ensure their safety. That he did not want to hurt the dog was both decent and understandable but, as a matter of law, he did not owe a duty to the dog - he owed a duty to his passengers. In the circumstances, his instinctive reaction of veering off the roadway to avoid striking the dog was negligent.”

According to the news story I referred to at the beginning of this column, the lady interviewed didn’t believe the duck was run over by accident.

If the truck driver indeed ran over the duck on purpose, that’s really horrible. But maybe he didn’t notice the duck until there was insufficient time to evaluate if swerving or abruptly stopping might risk the safety of other road users.

If so, driving over the duck was the right thing to do.



The pain of soldiering on

A very recent court decision confirms that you are not to be penalized for soldiering through your pain.

The case is Stapleton v. Andrew, 2019 BCSC 678, and the decision was released May 1, 2019.

Ms. Stapleton was an active, 24-year-old chef when, on May 28, 2015, her car was rear-ended while at a complete stop. 

By the next morning, she had become extremely stiff and sore. Over a few days, her pain concentrated in her right neck and two areas of her back. She continued having symptoms in those areas through to the trial four years later. 

The only time she missed from work was the first three days, when her symptoms were at the worst. She did not feel ready, but felt pressure to return to the small kitchen where she worked at the time. 

She continued working in restaurant kitchens, but, for the most part, managed to work in more supervisory or administrative roles that were less impacted by her ongoing symptoms. 

A co-worker came to the trial and testified having observed Ms. Stapleton struggling with some of the physical aspects of her work, that she was obviously in pain, but carried on nonetheless.

She described a “kitchen culture” of workers being reluctant to show weakness or ask for help.

Ms. Stapleton’s past income loss totalled only $350, for the three initial missed shifts. And with increasing experience and responsibilities, her earnings actually increased year after year after the collision.

She managed to work around her symptoms in the four years leading up to the trial. Did that mean she was not entitled to compensation for possible future losses? 

In order to achieve compensation, an injured victim must establish “a real and substantial possibility” that her earning capacity has been impaired.

Evidence at the trial included the results of objective physical testing called a Functional Capacity Evaluation, as well as the expert opinions of two specialist doctors. 

The judge came to the following conclusion as a result of all the evidence:

“I am satisfied that the plaintiff’s injuries impede her ability to work in her chosen profession as a chef. In particular, she cannot perform sustained activities that involve bending or stooping, such as chopping, kneading and whisking, all of which are common food preparation activities. She is also limited in her ability to lift heavy objects, again something that is common to kitchen work.” 

The evidence was that less physically demanding kitchen management positions that Ms. Stapleton had managed to find were difficult to obtain, particularly with someone with limitations on their ability to do the cooking work.

The evidence led the judge to conclude:

“I am satisfied that she has been rendered less capable of earning income from all types of employment, is less marketable or attractive as a potential employee, has lost the ability to take advantage of all job opportunities that might otherwise have been open and is less valuable to herself as a person capable of earning income in a competitive labour market.” 

Ms. Stapleton was awarded $80,000 of compensation for her loss of earning capacity.

How did the judge come up with that number? 

Judges do not have crystal balls to gaze into the future and accurately assess how injuries will impact on a person’s lifetime earnings.

One approach has been to award an amount approximating one or more years of the person’s salary, depending on age, the level of impairment and other factors. 

In this case, the $80,000 was roughly equal to two years of Ms. Stapleton’s current earnings. 

The total judgment, including $75,000 to compensate Ms. Stapleton for being left with a lifetime of chronic symptoms and limitations, was $161,191.64.

Do you feel that Ms. Stapleton has been over-compensated? 

Then, I have failed to adequately nutshell the case. Please take the time to read about how this young woman’s life has been permanently altered. 

According to American statistics (because British Columbia statistics are not available), approximately 32% of collisions resulting in injuries are rear-enders like the one that injured Ms. Stapleton (Facts + Statistics: Highway safety).

All it takes to avoid driving into the back of a stopped vehicle is to remain attentive to the road ahead of us.

Each of us can do our part by doing the work necessary to maintain our own attentiveness, avoiding any activity (such as cellphone use whether hand held or hands free) that actively distracts our attention, and insisting on the same from others when we are passengers. 

Please re-assure those you know who are struggling to work through crash injury related symptoms.

The law entitles them to compensation for future losses if there is a real and substantial possibility that their earning capacity is impaired, even if their past income loss is extremely minimal.



138349


Calculating the money

Losses from an injury can extend many years into the future.

It is always a challenge to gaze into the crystal ball and predict what those losses will be.

Another challenge, the subject of this column, is calculating them. 

You cannot just add them up. Because of inflation, a dollar paid today is worth something more than a dollar paid in the future.

Paying $1,000 today would overcompensate you for a $1,000 loss anticipated to occur 20 years from now.

Future losses must be discounted to account for inflation.

  • But at what interest rate? 
  • And how do you calculate it?

I’m a bit of a math lover, so this kind of thing warms my soul. Before we get to the fun calculations, I will share the law.

There is a piece of legislation called the Law and Equity Act, R.S.B.C. 1996, chapter 253. Section 56 requires the application of prescribed discount (interest) rates when calculating the present value of future losses in a lawsuit.

The prescribed rates are set out in the Law and Equity Regulation, BC Reg 352/81.

Future income losses (and loss of dependency in a wrongful death claim) must be discounted at 1.5% a year. All other future losses must be discounted at two per year.

Those rates must be compounded annually, complicating the calculation.

Courts often have the benefit of economists to perform the calculations. But a recent court decision, MacGregor v. Bergen, 2019 BCSC 315 has reaffirmed previous decisions holding that an economist is not required. 

The judge in that case used a table of calculations provided within a copyright protected publication called Civil Jury Instructions. 

The table itself is copyright protected. But the calculations are not. 

I am going to walk you through the simplest calculation: the present value of a loss anticipated to occur one year from now. 

Let’s assume it is income loss in the amount of $1,000.

Future income loss requires application of the 1.5% discount rate.

What number, when you add the required annual rate of 1.5 per cent, will give you $1,000 at the end of the year?

Algebra states that question as follows: $NUMBER x (1 + 1.5%) = $1,000. The result is $985.22.

In other words, payment of $985.22 today would compensate you for an income loss of $1,000, one year from now, applying the required 1.5% discount rate. 

Did that make your brain hurt?

What if that same loss of $1,000 was to continue, year after year, for 20 years? That requires 20 calculations, each with a slightly different formula.

If you crunch the numbers, correctly, you will finally arrive at $17,168.64. 

The table in the Civil Jury Instructions publication allows you to come to these same answers without any Algebra. It has a table with “multipliers” to calculate the present value of a consistent, annual, loss.

You can pick a multiplier for one, two, three, four, all the way up to 50 years. You simply multiply your annual loss by the applicable multiplier.

But the table works only for consistent, annual losses. It does not accommodate increasing income losses that might occur as you become less and less able to tolerate your symptoms. 

Nor does it accommodate fluctuating future care needs.

And, of course, using the table at all requires getting your hands on the publication. 

The same basic table can be generated with the magic of an Excel spreadsheet. And if you’re a geek like me, you can create a much more robust tool, programmed to automatically calculate the present value of any scenario of future losses. 

But if math doesn’t warm your heart like it does mine and you would like access to the spreadsheet too.

I have created to calculate the present value of your future losses, just give me a call.



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



139508
The views expressed are strictly those of the author and not necessarily those of Castanet. Castanet does not warrant the contents.

Previous Stories



136613


142368