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Achieving-Justice

Don't kill the kids

School zone speed restrictions are back. But they shouldn’t be necessary.

And they fail to communicate an important safety message.

They shouldn’t be necessary because other laws require us to slow to a safe speed when children are likely to be around.

The important safety message I am referring to is that those laws extend to all of our roadways, not just the areas around schools. 

Notions of who has the right of way go out the window, to a certain extent, when we are sharing roadways with children. 

I found this statement of the law from the highest court in Ontario, in Saumur v. Antoniak, 2016 ONCA 851:

“That children lack the judgment of adults and that they are notoriously forgetful when they are distracted or confused, and therefore do not follow instructions on the basis of which ‘they should know better,’ are concepts that are generally accepted and that have been recognized by the courts as factors distinguishing the conduct of children from that of adults in the negligence liability context.” 

We can reasonably expect that adult pedestrians and cyclists will follow the rules of the road. But when it comes to children, we must expect the unexpected.

Here is a common sense statement of the law quoted from a 1995 decision of the highest court of British Columbia, Williams (Guardian ad litem of) v. Yacub (1995) 14 B.C.L.R. (3d) 291 (C.A.) 

“Knowing that the actions of children are unpredictable a driver has a duty to take reasonable precautions for the safety of a child on or near the highway.”

Any time you see the word “highway” in our laws and court judgments, it has an expanded meaning to include streets, laneways and almost everywhere vehicles travel.

A more detailed statement of the law can be found in a 1990 decision of the same court, Chohan v. Wayenberg, 1990 CarswellBC 863 (C.A.):

“There is, of course, a need for constant vigilance for children on the roads, especially in suburban areas, for the very reason that they can not be expected always to act with the same care that is expected of adults. Once observed in a dangerous situation, children must be given special attention, so that any precautionary or evasive action indicated will be taken in time.”

That’s the key. The onus is on us as drivers to be able to take evasive action in time. 

How do we ensure we can do that? 

We must be continually watchful for the presence of children on or near the roadway. Not just in school zones. 

Once we identify their presence, we must keep our eyes peeled, carefully watching for any clues that they might put themselves in danger. 

And drive at a speed that allows us sufficient reaction time to take evasive action.

Is that speed 30 km/h? 

It depends. 

If children are milling around, that might well be too fast.

On the other hand, if children are far enough away from your lane of travel, it might not be necessary to slow down at all.

Section 144(1)(c) of the Motor Vehicle gives this flexible speed limit: 

“A person must not drive a motor vehicle on a highway at a speed that is excessive relative to the road, traffic, visibility or weather conditions.”

Of course, slow down at least to 30 km/hr in school zones, even if you’re driving through a wide, empty street with all children safely in their classes. Tickets aren’t nice.

But go even slower as might be necessary to absolutely ensure that you will have time to take evasive action if a child does something stupid.

Regardless of whether or not you are in a school zone.

Please help keep our children safe.



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Doing the ICBC dance

I will now provide you with a roadmap to minimize ICBC’s ability to have a hit-and-run claim dismissed on a technicality.

I call it a technicality because most people have no idea that their claim could be dismissed if they don’t play detective to find the perpetrator.

ICBC’s website has very minimal information. And the information they give is misleading.

Under “Steps to making a hit and run claim”, they have as a heading for step one: “Try to identify the other vehicle and the person responsible.”

But the only instruction they have under that heading is “Call the police immediately if you notice the hit-and-run motorist leaving the scene, and provide the description of the vehicle and the driver, the plate number, and the direction the vehicle is travelling, if you can.”

I wonder if they will update their web page to include a link to this column?  I don’t really wonder.

Or include a link to the case of Springer v. Kee, 2012 BCSC 1210,  where an innocent victim’s claim was dismissed even though the police were called to the scene.

Mr. Springer’s vehicle was rear-ended by that of Ms. Kee. On getting out of his vehicle to talk to Ms. Kee, he learned that another vehicle had been involved.

Ms. Kee said that an unidentified other vehicle had pushed her vehicle forward into that of Mr. Springer. 

Mr. Springer called 911 and a police officer attended. 

At the trial, ICBC argued that Mr. Springer should have done more, by approaching other motorists at the scene who might have observed the licence plate number of the offending vehicle. 

The ICBC adjuster hadn’t said anything about that when Mr. Springer reported the claim to ICBC.

The judge noted that the adjuster did not provide any information or guidance indicating his obligations to take actions to identify the unidentified driver. 

But at the trial, they argued that Mr. Springer should have taken steps to follow up with the police, advertise in local newspapers or to post signs in and about the location of the collision in an effort to find witnesses.

The judge, bound by the law, had to dismiss the claim as requested by ICBC. He clearly saw the injustice, though, noting as follows:

“ICBC was, in my view, remiss in their duty to inform the injured party about the steps necessary to perfect his claim, particularly in light of the conversations with the adjuster indicating that his claim had been accepted by the corporation. It seems to me that ICBC’s communications with an injured person ought to include a warning about the prerequisites of the claim against an unidentified motorist.” 

What follows is a roadmap to avoid the injustice experienced by Mr. Springer. 

Call the police immediately, from the scene, to report the hit-and-run offender.

When doing so, ask them for anything you might do to help them with their investigation. Follow up with them a week later and continue to follow up so long as the investigation continues, continuing to ask for ways you might be able to assist. 

While at the scene, approach anyone who might possibly have witnessed the collision, to ask if they can provide anything of a description of the offending vehicle, the offending driver or the license plate.

This would include other motorists, pedestrians, folks at nearby businesses, etc.

This might feel really dumb, because anyone witnessing a hit-and-run is likely to run over to help you out, but go through the motions. 

At the scene, or the next day if they are closed at that time, go to nearby businesses to ask if they have any security video cameras that might have captured the incident.

If so, ensure footage is reviewed and preserved, with any information given to the police.

Create and post notices on street light poles, power poles, and anything else you can secure a notice to, asking for help identifying the offending vehicle and driver.

Take photographs of those postings. 

Post a request for help to identify the offending vehicle and driver on whatever social media platforms you participate in, asking your contacts to “share” your posting.

Take screen shots of those postings.

Post an advertisement in the local newspaper with the most broad circulation, and on online news platforms. 

Keep a journal of all these steps you take, and where applicable keep screen shots, newspaper clippings and photographs as proof. 

When reporting the claim to ICBC, ask the adjuster for their help in identifying the offending driver, by monitoring vehicle damage claims from around the time of the crash.

Tell the adjuster all the steps you have taken to try to identify the offending driver and pointedly ask if there are any other steps you should take. Audio record this discussion.

Finally, get in to see a personal injury lawyer as soon as possible to carefully review this issue with you and ensure that you are on the right track. 

If you were unable to note down the offending plate number, are any of these steps likely to lead to identification of the offending driver? 

Of course not.

But if you fail to take those steps, you risk ICBC weaseling out of compensating you for your losses.



Know ICBC's tricks

ICBC tried to have an innocent victim’s claim dismissed, arguing he didn’t do enough to try to identify a hit-and-run driver.

This time they failed.

But in other cases, they have succeeded, stripping injured victims of fair compensation for their injuries and losses.

Learning about steps you must take to protect your rights as a hit and run victim can help avoid that happening to you or someone you care about.

The court decision is Ghuman v. ICBC, 2019 BCSC 3 

ICBC’s liability insurance monopoly in British Columbia contributes to uncertainty about hit and run claims.

All British Columbia owned vehicles must carry a base amount of liability insurance with ICBC.

Liability insurance transfers the responsibility for compensating a victim from the offending driver to their insurance company.

Unless an out-of-province vehicle is involved, your right to fair compensation for injuries and losses is transferred to one and only insurance company, ICBC.

That has led to the general public referring to compensation rights as being “ICBC claims,” blurring the technical reality that the root of the claim is against the offending driver. And that unless you identify that offending driver, there can be no claim.

No claim except for a particular legislative provision, section 24 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231.

That provision is what allows you to pursue a claim directly against ICBC even if you cannot identify the offending driver.

But that right comes with a proviso in subsection five, which requires that “all reasonable efforts have been made by the parties to ascertain the identity” of the offending driver and vehicle owner.

The Ghuman case is an example of how ICBC will second guess whatever steps you have taken, hoping to convince the court that you haven’t taken “all reasonable efforts.” 

Mr. Ghuman had been the third vehicle in a stopped line of traffic waiting for a light to turn green. 

It was dark, within a large commercial area with little traffic, large surrounding parking lots and far distances to surrounding street corners and businesses.

When the light changed, he heard a noise that sounded like tires screeching and the vehicle directly in front of his quickly reversed colliding with the front of his vehicle.

The offending driver then sped off. 

It happened quickly and unexpectedly. Mr. Ghuman was unable to memorize or record the licence plate before the vehicle took off.

And he was able to provide only a general description of the offending vehicle. 

The lead vehicle in line left the scene.

Mr. Ghuman looked around but did not see any potential witnesses to approach and no one approached him.

He didn’t call the police right away, because he had no licence plate, no specific details of the offending vehicle and nothing of potential witnesses.

He thought it unlikely that the police would have taken any steps to investigate this low impact hit and run collision. Instead, he called the police the next day as he thought was required in a hit-and-run collision. 

That was one of the things ICBC second guessed in the case.

They also said Mr. Ghuman should have done more to canvass for witnesses at the scene.

But their primary argument was that he should have called the police at the scene, though they allowed that it would also have been reasonable to call the police when he got home that evening.

Within a week after the collision, Mr. Ghuman posted flyers seeking witnesses around the intersection where the collision occurred.

After he retained a lawyer, an advertisement seeking witnesses was placed in the local newspaper.

Mr. Ghuman notified ICBC about the hit-and-run collision the day after the collision.

They could have given him a list of steps they wanted him to take at that time. But they waited until later to argue that he should have done more.

ICBC said he should have followed up with the police. And that he should have gone around to the businesses in the commercial complex looking for potential video recordings or notes of witnesses who might have come forward to those businesses. 

Given the distances of the surrounding businesses from the scene of the collision and the layout of the area, the judge accepted there would have been little benefit in contacting businesses for video surveillance and/or records of people who may have come forward to those businesses, noting that such efforts would be highly unlikely to produce any results. 

The judge deciding the case cited case law for the proposition that “the Act does not demand that a plaintiff make every conceivable effort to show it was not possible to ascertain the identity of the unknown driver or owner. Rather, what is required is that a ‘plaintiff act reasonably in light of surrounding circumstances, including the information known to him or her at the material time.’”

Thankfully, justice was served with a rejection of ICBC’s application to dismiss Mr. Ghuman’s claim. 

How can you best protect yourself in a hit-and-run claim? 

Next week, I will provide a roadmap of steps that should be taken at the scene, and in the days and weeks following, to do just that.



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Don't cause a tragedy

Two readers added to the list of safe driving behaviours I had offered last week.

These are behaviours, like looking at mirror blind spots behind your vehicle before reversing, that you can get away without doing most of the time. But then you’re rolling the dice on causing another tragedy like the death of the baby at the drive in on Montreal’s South Shore last month.

To stop rolling the road-safety dice, they must become second nature “every time” behaviours.

The important driving behaviour Andrew contributed comes up if you are waiting for a red light to change to green. Don’t treat the light change “…as if it’s some kind of ‘green go’ for the Grand Prix,” but instead take a moment to ensure it is safe to proceed before hitting the gas.

He specifically mentioned the possibility of a crossing vehicle blowing their red light or a late starting pedestrian who hasn’t made it fully across. There are all sorts of circumstances, including emergency services vehicles that can pop up any time, that can result in tragedy if you don’t take that moment.

Most of the time you can drive as if in a zombie trance following traffic lights and signals. And many drivers do. If you blindly expect that the intersection will be clear for you when the light turns green you are rolling the road safety dice.

Please follow Andrew’s lead, while heeding his warning: “Of course always be prepared for the dim wit behind who slams their hand on the horn because you have not raced away on the green.”

Michael’s contribution has to do with signaling for a right turn.

I share Michael’s pet peeve about drivers who fail to signal their intention to turn.

If you are going to turn off the roadway, out of the way of traffic that is waiting for you so they can proceed, failing to signal your intention (or waiting until the very last moment before you start your turn) is not only unlawful and potentially dangerous, it is discourteous.

It is discourteous because your laziness or sloppiness, however you categorize it, makes others wait.

But Michael’s road safety contribution is the opposite problem. Says Michael: “…but even worse are the drivers who signal a right turn, then proceed to drive straight through.” His road safety behaviour: “I always wait until I see the vehicle commit to a turn before I start to drive forward.”

Most of the time you can absent mindedly assume that other road users will follow through with their signaled intentions. But doing so is rolling the road-safety dice.

By waiting a couple extra moments to see clues like the vehicle slowing or shifting position in the lane, you can assess whether the signal is intentional or has been absent-mindedly left on. And being on high alert will decrease your reaction time if the signalling driver changes their mind at the last moment.

Some of us learned these behaviours when beginning to drive, from our parents or in driving courses. Some were learned “the hard way,” through the experience of close calls or actual collisions.

Our roadways would be safer if the road safety behaviours listed in the last two columns became second nature for everyone. If you have any ideas about how to raise awareness and reinforce the adoption of these behaviours, or have more to add to the list, please e-mail me.



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



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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