E-scooter 'storm' coming?

My wife, watching two young girls scoot around the Dolphin fountain in Kelowna, texts me:

“Column topic – those e-scooters look dangerous as hell. Going faster than a bike – no helmet and way more potential of falling.”

Another text: “Next column topic – if they run into and injure someone – how do they recover compensation.”

OGO Scooters launched Western Canada’s first rideshare scooter program in Kelowna within the last few weeks. Is there anything to be concerned about?

While new to Western Canada, we can look to the experiences of our neighbours to the south for an idea of what to expect.

An April 17, 2019, report of the National Association of City Transportation Officials estimates that 38.5 million trips were taken on shared e-scooters in the United States in 2018.

And their safety has been studied by reviewing data collected from hospitals. That data understates injury statistics because only the most serious of injuries would result in a trip to a hospital.

One study was conducted in Austin, Texas, where e-scooters first appeared in early April, 2018.

The study identified 190 e-scooter related casualties over an almost three month period from Sept. 5 and Nov.30, 2018.

More than one-third had sustained a fracture. Of those:

  • 19% had fractures over multiple areas of their bodies
  • 15% of all those injured had evidence suggestive of a mild traumatic brain injury
  • Three per cent had fractures involving the head.

E-scooters had taken Austin by storm, though.There had been close to a million e-scooter trips over that same time period. The authors of the study estimated an injury rate of approximately one casualty for every 5,000 trips.

Perhaps not unexpectedly, approximately one-third of those injured had been on their first e-scooter ride.

There’s an important caution for those, like me, who might feel capable of hopping on even though I’ve never even been on a manual or “kick” scooter before.

What about pedestrian safety?

Another study, published Jan. 25, helps identify pedestrian risk. Approximately four and one-half per cent of e-scooter casualties were pedestrians hit by an e-scooter.

That’s one in every 22 e-scooter casualties.

In this news report, OGO co-owner, Chris Szydloski, was quoted as saying “Our key focus is safety…”.

With regard to speed, the report notes that “While they have top speeds of up to 45 k/hr they will be regulated by geographic area so will go very slowly in congested areas and up to about 25 km/hr in less congested areas.”

I don’t know if my wife’s observations support that assertion. And 25 k/hr is quite a clip.

There might be good reasons why several large cities, including New York City and St. Louis, have banned e-scooters, as indicated by this report Does the risk of injury to users and innocent pedestrians outweigh the value of e-scooters? 

As fun as they might be, I don’t see the kinds of transportation and environmental benefits flowing from e-scooters like I do from their larger and safer cousin, the e-bike.

Next week, I will answer my wife’s second query: who do you turn to for compensation if you are injured by an e-scooter rider?


Cost of needing cannabis

Many crash victims are left with some level of chronic symptoms after running the gamut of therapies.

Chronic symptoms can include discomfort and pain, sleep disorders and psychological impacts.

Many get relief from the chemical compounds in cannabis.

Cannabis isn’t cheap.

In one case, Carrilo v Deschutter, 2018 BCSC 2134. a medical specialist had prescribed a medical cannabis program consisting of a topical cream, tincture oil and oral capsule estimated to cost a total of approximately $4,500.

At some point, ICBC might start reimbursing the expense of cannabis just like they do for prescription medications. But until they do, injured victims will either go without important pain relief or be significantly out of pocket. 

Crash victims who were not at fault in a crash can include the expense for medical cannabis in their claim for fair compensation against the at fault driver, which is usually a claim against their insurance company ICBC. 

But a review of court decisions shows that it is not enough to say that it helps and show your receipts.

In the decision of Culver v. Skrypnyk, 2019 BCSC 807, released May 22, 2019, the judge noted that a doctor had suggested the use of CBD oil to treat pain and sleeplessness, and Mr. Culver was finding it beneficial, preferring it to other medications.

A vial of CBD oil, which lasted approximately one week, was costing Mr. Culver $125. That’s an annual expense of $6,500.

The judge declined to require compensation for that future expense noting that the doctor who suggested it said there was a lack of evidence of the future benefits of the oil to Mr. Culver.

The judge concluded:

“Although I have Mr. Culver’s evidence that he prefers the use of CBD oil to other analgesics I do not have the benefit of a medical opinion on the benefits of that use. This is a medical issue which is likely to receive much attention in the coming years and medical evidence may in future establish a sufficient evidentiary base capable of supporting an award of the type now sought by Mr. Culver.”

But two months later, on July 10, 2019, the decision of Erickson v. Saifi, 2019 BCSC 1120 was released.

Cannabis had been recommended to Ms. Erickson by Dr. Montaner, who had not testified at the trial. Her neurologist who did testify said that she personally was not convinced it was helpful.

But the judge awarded compensation for Ms. Erickson’s future cannabis expense.

The judge noted that cannabis no longer requires a prescription in Canada, and made the common sense finding that:

“The use of cannabis for pain treatment is now more akin to self medication with over the counter pain killers.”

But he did not award the amount of compensation sought by Ms. Erickson, which was $200 a month for 20 years. He found that she had not clearly established the amount she required, nor how long she would require the treatment.

The $20,000 he awarded, though would go a long way to covering that expense.

I have some recommendations to maximize the likelihood that your future cannabis expense will be compensated in a lawsuit.

These recommendations apply to most future care expenses:

  • Explore other, less expensive and more “conventional” ways to manage your symptoms;
  • Use trial and error to determine the minimum amount you require on an ongoing basis, and journal the results of that experimentation so that you can credibly articulate how your life is different with and without levels of mediation;
  • Explore the least expensive way to obtain the care. With cannabis, you might explore producing the product yourself;
  • Seek and follow your doctor’s recommendations, ensuring your doctor is kept fully informed.

Injuries can change a person

Long-term effects of injuries can change a person. Those changes can cause an end to a family relationship and reduce the likelihood of entering into another.

Those consequences are not only emotionally, but also financially difficult, as illustrated by the recent Saskatchewan Court of Appeal decision in University of Regina v. Biletski, 2019 SKCA 44 (CanLII) 

The defence described Miranda Biletski as a “bright, funny, attractive, accomplished young woman with an active social life and a circle of friends.”

They also pointed to one live-in romantic relationship in the 12 years between being rendered a quadriplegic at age 16 and the trial.

It was a high-stakes argument, that Miranda’s ability to enter into a family relationship had not been reduced.

They argued that her personal circumstances and attributes would buck the statistics that fewer disabled people enter into such relationships.

If successful, they wouldn’t have to compensate Miranda for the dollars and cents loss arising from that reduction.

High stakes because number crunchers (economists) hired by each party provided incredibly high assessments of the “interdependency benefits” of cohabitation relationships.

The numbers might surprise you.

At the low end was the defence assessment of approximately $470,000. The plaintiff economist’s assessment was approximately $1,500,000.

But when you consider the very real dollars and cents benefits of being in a permanent, financially interdependent relationship, the numbers start making sense.

Mr. Justice Cole in the British Columbia case of Grewal v. Brar et al, 2004 BCSC 1157 listed three aspects of loss:

  • loss of the benefit of increased income (especially for female plaintiffs who typically earn less than male partners);
  • loss of the benefit of shared expenses 
  • loss of the benefit of shared homemaking.

​Consider, by itself, the cost savings of a shared living space. Splitting a $2,000 per month rent saves you $1,000 per month. Crunch the numbers on that for a young person’s lifetime.

Then, there’s shared furnishings, utilities, vehicles, savings from shared cooking, etc., etc., etc.

And all sorts of other very real, financial benefits that don’t come to mind. You can see why it would take an economist to fairly assess the full extent of these benefits.

In order to be compensated at all for a loss of these benefits, it must be proven that there is a “real and substantial possibility” that the ability to enter into a permanent, interdependent relationship has been impaired.

If that hurdle is met, the amount of compensation is determined by applying the likelihood the losses will be suffered to the assessed value of those benefits.

The defence argument did not succeed.

The jury found that Miranda had suffered a loss of ability to enter into a permanent interdependent relationship and assessed her losses related to this aspect of her claim at $879,000.

And that assessment was upheld on appeal.

Relationships can be strengthened, rather than torn apart, by the adversity that comes from chronic pain and other long term impacts of injuries.

And learning to live with those long term impacts might better prepare people for the ups and downs that naturally occur in relationships yet to be formed.

This loss does not automatically flow from permanent injuries. It is very much the exception and depends on the particular facts of each case.


Bullet-proofing your will

The judge’s comment about the deceased — that “Anyone who defied her suffered her wrath” — played itself out in the courtroom when two of her four daughters attacked her will.

The strong-willed, domineering woman who died at age 88 was not here to defend her wishes, but they were largely upheld. And the small variation came at a significant cost to all concerned.

The judge noted that it was unfortunate the parties were unable to resolve their issues without the lawsuit, that:

“a great deal of unhappiness could have been avoided had a modicum of common sense and reason been brought to bear.”

Without the lawsuit, though, we would not have the benefit of the resulting legal analysis, set out in the decision of Mr. Justice G.C. Weatherill in Trudeau v. Turpin Estate 2019 BCSC 150.

The legal analysis helps clarify the law about what it takes to successfully attack a will. Knowing the factors the court considers in an attack can help us set up our own estates as bullet proof as possible. 

The judge listed six factors the court considers when considering a parent’s moral duty to independent children when making their will. 

I discussed the first three in my previous two columns (Contribution and expectation, misconduct/poor character and estrangement/neglect).

The fourth factor is gifts and benefits given while a parent is alive, or passing outside the framework of the will.

Your will deals only with assets that remain in your hands after you die. And it is important to consider that there are various ways assets still within your control at the time of death can sidestep the will process.

For example, a residence co-owned in “joint tenancy” automatically passes to the surviving owner(s) if one of them dies. The surviving owner simply files the death certificate at the land titles registry and the deceased’s name comes off the title.

Another example is where you specify a beneficiary for your RRSPs. 

Assets and benefits passing to a child before you die, or outside the will, can reduce or eliminate you moral obligation to include that child in your will.

Conversely, your moral obligation to a child can increase with assets and benefits passing to others outside your will. 

In this case, the daughter given the greatest share of the estate had already received approximately $43,000 of funds that had been held in joint names in bank and investment accounts.

The fifth factor is whether or not children have been treated equally. 

This simply recognizes society’s sense that it’s generally fair to treat our children equally.

It was clear to the judge in this case that it had been the mother’s intention and choice to treat her children unequally, which she had by allocating 60 per cent to one daughter, and only five per cent each to the two daughters

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]
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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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