Distracted Driving in BC

Mike Weightman from ICBC’s Road Safety Department was nice enough to accept my invitation to present at the Chilliwack Mt. Cheam Rotary Club on the hazards of distracted driving.

Distracted driving is replacing drunk driving as the largest cause of death and injury on our roads.

In the past not everyone would drink and drive now almost everyone has a cell phone (or some other distraction), and most of us have been guilty of using it while driving.

The evidence is clear, this has to stop.  

Make a pact with yourself and with your family not to drive while distracted.

Distracted Driving in BC: Tickets, Point Penalties, Prohibitions and Other Penalties

Depending on how you look at it, technology can be a boon or a bane. It makes our lives so much easier and better in many ways, but it also has its downsides.

One of those negative aspects is that technology has become so portable, coming with us into our vehicles and distracting us from the very important task of staying focused when we’re behind the wheel.

There’s no two ways about it; distracted driving is dangerous, and in fact, it is the second leading cause of car crash fatalities in BC. (In Ontario, it has surpassed drunk driving as the #1 cause of fatal car crashes.)

Given that the fines and demerits for distracted driving violations have recently increased (as of June 1st, 2016), we thought it would be helpful to review the consequences that BC has in place to discourage and penalize distracted driving.

Violation Tickets

A distracted driving violation ticket has more than doubled from $167 to $368.

Violation Penalty Points

Penalty points applied to a driver’s record have increased from 3 to 4 points

Effect on ICBC Driver Premiums

Additional driver premiums also apply; for a first infraction, the driver will have to pay $175 on top of the ticket, and the premiums increase for subsequent violations.

Driving Prohibitions & Other Interventions

Distracted driving violations are considered high risk driving infractions, and two or more infractions within a year will trigger a early intervention by the Driver Improvement Program (DIP).

Under the DIP, a driver may be subject to warning letters, monitoring, and potentially face a driving prohibition of 3-12 months.

Additional Consequences for Learner and Novice Drivers

Graduated Licensing Program drivers (L and N drivers) will also be reviewed by the Driver Improvement Program and may be subject to longer prohibitions. If an N driver receives a driving prohibition, his or her 24-month Novice driving period will start over after the prohibition ends.

These consequences are a good start to deterring and punishing drivers who drive dangerously. But we must never forget that the consequences of distracted driving go far beyond the financial cost. The value of a human life cannot be overstated.

ICBC produced an excellent, heart-stopping series of short ads about distracted driving, which you can see below:

Sharing the Road: The (Often Overlooked) Cyclist Right of Way

“Share the road” is a common admonition but unfortunately those behind the wheel of a vehicle are often guilty of not following this safety principle — and legal requirement.

In fact, a recent cycling safety study commissioned by the City of Vancouver analyzed collision statistics and found that in “93% of collisions where fault could be determined, cyclists actually had the right of way.”

How can you tell if your rights as a cyclist have been disregarded?

In general, cyclists and drivers have the same duties and rights, governed by the Motor Vehicle Act. For a condensed version of what applies to cyclists check out the Bike Sense Manual.  I would also encourage you to look at The British Columbia Cycling Coalition for more information.

Here are three common situations where the cyclist’s right of way is often overlooked or ignored, usually to the detriment of the cyclist’s safety.

Bike Lanes and “Right hooks”

Bike lanes demarcated by solid white lines vs broken line.  When a bike lane is marked with a solid white line, if a driver wants to make a right turn across a bike lane, he must stay in the vehicle lane until the intersection to avoid a collision when turning right, also known as a “Right Hook”, which, according to Vancouver’s cycling safety study, accounts for 12.6% of reported cycling collisions.

On the other hand, if the bike lane is marked with a broken (dotted) white line, the bike lane may be used by the vehicle as it approaches an intersection. However, it is still the driver’s responsibility to yield to any cyclists, and wait for a safe opportunity to enter the lane.

Doorings

You’ve heard of this one right? A vehicle door is opened just as a cyclist passes, resulting in an inevitable collision.  Ouch!!  “Dooring” is the most common type of cycling collision  According to s. 203 of the Motor Vehicle Act, a motorist has a duty to check that it is safe to open the door of his vehicle.  As the below video from October 2015 points out, it’s not just the driver doors that can be an issue.

Passing

Because cyclists are slower, drivers can pass them in situations that would not be possible if they were a vehicle. If it is safe to do so, a car may cross a single solid yellow line when passing a cyclist, but should not crowd the cyclist. Presently there are no legislated minimum passing distances in BC, but ICBC recommends leaving at least one meter between their vehicle and the cyclist.
Have you encountered situations such as these? If you are a regular cyclist, like me, you probably have had a close call or know someone who has been injured in a collision with a motor vehicle.

If you’ve been injured as a cyclist we encourage you to contact us for a consultation.

11 signs you may have a brain injury

As a personal injury lawyer I work with many people who have suffered from head trauma. As a result, I spend a great portion of my time reading through medical records and talking to my clients about their symptoms. I’ve learned that no two brain injuries are the same, and can be caused by a blow to the head, or even the whiplash movement in a motor vehicle collision.

June is Brain Injury Awareness month, and while I am by no means a medical professional, I believe it’s important to discuss the various signs of a brain injury and what to do if you are experiencing symptoms.

The following is a list of common signs that indicate a possible brain injury, found in Fraser Health’s Booklet Concussions: A Guide to Understanding Symptoms and Recovery. It is important to contact a doctor if you suspect that you or someone you know may be experiencing any of these impairments:

1. Headaches that persist or get worse over time
2. Drowsiness or lack of responsiveness
3. Repeat or forceful vomiting
4. Seizures (i.e. convulsions, stiffness or fixed stares)
5. Numbness or weakness in arms or legs
6. Unsteadiness or clumsiness
7. Blurred vision or unequal pupil size
8. Blood or clear liquid coming from nose or ears
9. Slurred speech
10. Confusion or loss of memory
11. Abnormal behavior or emotional responses

For more information about these symptoms and other potential impairments I encourage you to check out the Fraser Valley Brain Injury Association or HealthLinkBC.

It is very important that you report ALL injuries and symptoms to your doctor, not only for your health and safety, but also for your insurance claim. Proper documentation is CRITICAL to your motor vehicle claim! If your medical records don’t show that you reported symptoms after a motor vehicle collision, ICBC will argue that your injury could have been caused by an unrelated event, which will impact the amount of compensation that ICBC offers you.

It’s better to be safe and report all of your symptoms. If you are suffering from injuries as a result of a motor vehicle collision or slip and fall accident and have questions about causation, contact a lawyer who can explain the ins and outs of the legal process.

Car vs. Pedestrian: is the driver always at fault?

It’s often said that when it’s car vs. person, the car always wins. So does it follow that a driver who injures a pedestrian is automatically at fault?  You might think so, but that’s not always the case.

We know that the safest place for pedestrians to cross is at a crosswalk. But in reality, people cross outside of designated crosswalks (jaywalk) all the time. Maybe the nearest crosswalk is too far, maybe they’re in a hurry, maybe traffic seems light and crossing between intersections looks safe. It doesn’t always work out though.

In British Columbia, driver’s and pedestrian’s rights and obligations are legislated according to the Motor Vehicle Act, RSBC 1996 c. 318

Crossing the street

The law says that when crossing the street at a place other than a crosswalk, the pedestrian must yield the way to the driver (s. 180). But even at a crosswalk, pedestrians must behave with common sense and caution.

Section 179 says that “a pedestrian must not leave a curb or other place of safety and walk or run into the path of a vehicle that is so close it is impracticable for the driver to yield the right of way”.

In a nutshell, a pedestrian stepping out in the path of a close or fast-moving vehicle can’t reasonably expect the car to stop in time to avoid a collision — even if he or she is at a crosswalk, with or without a walk light activated.

Just as pedestrians are expected to act with care, regardless of location, drivers have a duty to “exercise due care to avoid colliding with a pedestrian who is on the highway”, use the horn as a warning when necessary, and pay special attention to a child or an apparently confused or incapacitated person (s. 181).

The case law supports the legislation as well. Although drivers are most often found at fault, sometimes judges assign some responsibility to a jaywalking pedestrian. Meaning that as a pedestrian who has been injured in a collision with a motor vehicle, you might see your award reduced if you are found to have been at fault.

One example is Whelan v. BC Transit. In this case, the judge found the pedestrian 60% liable, and noted that “as a pedestrian he was extremely vulnerable to the oncoming bus and there were no safe circumstances under which he could have stepped on the road with it still moving forward in that curb lane. It was in essence a gamble on things playing out as he assumed they would, with a large downside, fortunately only a small part of which materialized here, to being wrong.”

In another case, Sandhu v. John Doe, the judge found the pedestrian “was negligent in attempting to cross the street where there was no crosswalk, marked or unmarked, and, more significantly, by walking into the lane in which [a defendant] was travelling, without looking to determine if a vehicle was approaching before entering that lane.” The pedestrian was assigned 75% of the liability.

Ultimately these pedestrians were awarded compensation for their injuries, however the award for damages was reduced by the percentage of their own contribution of liability.

Conclusion

ICBC will fight as hard as it can to ensure the driver isn’t found at fault. If you’ve been injured as a pedestrian, it makes sense to talk to a lawyer who can make sure you get the best representation and all the compensation you’re entitled to. A member of our team would be happy to meet with you for a free initial consultation.

Social Media: a false reality can damage your claim

Most of us are using social media in one way or another. Facebook, Twitter, Instagram and other forms of social media allow us to communicate with others and share details about our lives with just a click of a mouse or a tap of the finger.  We have a strong tendency to post only happy photos and positive life events, sharing exciting news that we want our friends and family to know about. We rarely post about the tough moments, the struggles, or the mundane details.  And therein lies the problem.

When we post only the positive, we create an illusion that we have it all together, and that our life is only happiness and joy.  Great, right?  Not so when you consider that insurers like ICBC routinely conduct cyber searches on claimants. The illusion of happiness and success can raise questions about the legitimacy of a claim, and the insurer could argue that photos and/or posts are documented proof that your life has not been significantly impacted by the injuries you’ve sustained!

Take for example, a recent client of mine who was involved in a motor vehicle accident. She sustained multiple injuries and suffered from chronic pain, depression, anxiety and post-traumatic stress disorder. As part of her “behavior activation therapy,” a psychologist recommended that she take active steps to pursue her interests. Being a gifted writer and photographer, the client started a blog. She took the blog very seriously, she wrote about events in her community and local interests that might appeal to her readers. She posted about taking her children to these events and having an amazing time.

The image my client portrayed online was a busy, active mom who was successful and socially engaged in her community. Of course, she appreciated from the outset that nobody would read anything from a “Debbie Downer” so she made every effort to keep her blog posts upbeat and positive. The reality, however, was that she often didn’t fully engage in these events, or she would leave early because the pain from her injuries, fatigue, and feelings of being overwhelming. It was a struggle for her to leave the house on certain days, but she didn’t write about these pain symptoms, and her readers never knew. With one click of her iPhone she had a photograph, and given her writing talent she had a compelling story.

At trial, ICBC argued that my client’s blog posts were evidence that she continued to be happy, social and active. They argued that any injuries she sustained in the motor vehicle accident had little effect on her lifestyle, that she was doing just great, and as a result any compensation ought to be very modest.

During the trial I explained to the judge that my client’s blog, Instagram, Twitter and Facebook posts were an “illusion.” My client was promoting a fun, active lifestyle to attract her readers, but she still profoundly suffered from her injuries.

In another case, during the 2012 trial of a young woman who had suffered neck and back injuries in a motor vehicle accident, ICBC argued that photos she posted on her Facebook page were evidence that her injuries did not limit her social activities. The photographs showed the young woman enjoying a weekend trip to Las Vegas with her friends. Although the judge didn’t give much weight to these particular photos, they were still taken at face value, as evidence of what the young woman could participate in.

It is important to recognize that anything you post online, including blog posts, comments and photographs, is potential evidence if the information is relevant to your injuries or to the issues at trial.

When considering the content you post online, particularly if you have an insurance claim against ICBC or a disability insurer such as BC Life, we recommend that you adopt a “less-is-more” attitude about social media (i.e. say less!!).  If you do decide use social media, recognize that your posts will be taken at face value, so it is important that you remain authentic and stick as close to reality as possible. Don’t embellish or take creative license with the information you share. Further, resist the temptation to post complaints about your injuries and pain symptoms, which could be interpreted most unfavorably by a judge, making you appear focused on litigation and trying to advance your claim.

If you have questions about how social media evidence can be used in court, speak to your lawyer. You can also read our previous posts on the subject here: Your Facebook Profile as Evidence Against You (Part 1) and (Part 2).

ICBC’s Accusation of Fraud Backfires

Last month the British Columbia Supreme Court ordered ICBC to pay $350,000 in punitive damages to a woman that the insurance company wrongly accused of fraud – an amount that will ultimately come out of the pockets of ICBC’s policy holders.

The woman had fallen to the ground when a vehicle struck her husband in a crosswalk, nearly hitting her as well. The insurance company investigated her claim and accused her of submitting a false statement. They had the woman criminally charged with fraud, and attempted to interfere with the couple’s immigration application.

The woman’s charges were dropped on the first day of her criminal trial, but the damage was done.  ICBC had attacked her credibility and her integrity, shaming her for making what turned out to be a valid insurance claim.

The timing of this court decision is unfortunate for ICBC. The insurance company recently launched an anti-fraud campaign, funded by its policy holders, and making bold allegations that up to 20% of all claims are fraudulent or exaggerated. In January, the insurance company released its top 6 fraud cases of 2015, what it calls “ICBC’s Hall of Shame.”

There is no denying that fraud is a problem in the insurance industry, but is it a problem big enough for an expensive media campaign? In an interview with Global News, a representative of ICBC admits that the vast majority of its customers do make honest claims. In fact, of the 900,000 claims that ICBC receives annually, only 100 or so actually lead to fraud convictions.

I’m now wondering why ICBC is using our monthly premiums to advertise its self-titled “Hall of Shame.” Only a small fraction of insurance claims are proven to be fraudulent, and as we’ve now seen, ICBC can easily get it wrong. Broadcasting these fraud cases will no doubt cast suspicion on otherwise innocent accident victims – people who don’t look injured, but may be suffering from soft tissue pain.

ICBC has a right and a duty to investigate fraudulent claims, but it must do so fairly and within reason, because ultimately it’s the policy holders who will pay the price.

One of ICBC’s key purposes and reasons for existence is to serve the residents of British Columbia, by providing compensation when someone is injured in a motor vehicle accident. The corporation does not serve the residents of this province when it uses tactics of intimidation to discourage civil claims.
– Justice Susan Griffin

I’m the Victim of a “Hit and Run” – What Should I Do?

Being in a car accident is overwhelming at the best of times, but what if the guy who crashed into you takes off and you have no idea who he is. What are you supposed to do then?

Our Insurance (Vehicle) Act provides compensation for individuals injured in a hit and run situation, but there are specific things you must do in order to protect your opportunity to make that claim.

Most important of all, you must make all “reasonable efforts” to find the identity of the unknown driver and owner of the vehicle he was driving.  Reasonable efforts include:

• talking to all witnesses at the scene (this includes people in the neighborhood or in stores/coffee shops located close to the scene who may have seen something);
• returning to the scene to post signs with your contact information to locate witnesses;
• running an advertisement in the local newspapers looking for the name of the driver;
• providing written notice of the hit and run to ICBC as soon as possible, including details of why that person is at fault for the collision; and
• reporting the collision to the police.

The circumstances of each hit and run are different, so what is considered as “all reasonable efforts” depends on the situation.  We know that if you had a chance to record the license plate number but never did, you unfortunately have probably not made reasonable efforts and that will be fatal to your claim.  The same is true if you did get the plate number but lost it.

ICBC has no duty to explain any of this to you.

A member of our Personal Injury Team will work with you to make sure you have made reasonable efforts to find the unknown driver. Contact us today for a free consultation.

My Child has been Injured in a Car Accident – What Should I Do?

It can be terrifying when your child has been injured in a collision.  Your first concerns, obviously, are for his or her well-being.  You may also be unsure of how to deal with ICBC because, as you might suspect, special rules apply to anyone under the age of 19 (a “minor”).

Although ICBC must be notified of the accident promptly, there is no obligation for your child to have a face-to-face meeting with ICBC.  There is a duty to provide ICBC with a brief written statement, but that can be prepared and sent to them, assuming the child is old enough to provide one.

The usual 2 year time limit for starting a lawsuit does not begin until the child’s 19^th birthday.  It is important to note, however, that not all limitation periods are postponed because of age.  It is important to obtain legal advice soon after the collision to determine what applies in your child’s particular situation.  Sometimes you have as little as 30 days to take the first legal step.

In order to start a lawsuit on behalf of a minor, an adult must be appointed as Litigation Guardian.  This adult is responsible for instructing the lawyer and making decision on behalf of the child.  The Litigation Guardian is often a parent, but cannot be someone named as a defendant in the lawsuit.  For example, if the child’s parent was driving and is being blamed for the accident, that parent would be named as a defendant in the lawsuit, and therefore unable to act as the Litigation Guardian.  In that case, another family member or friend would need to be appointed to the role.

As you can see, there are certainly special considerations when it comes to minors.  A member of our personal injury group will be able to advise of your (and your child’s) rights and responsibilities. Contact us to arrange for a free consultation.

I’ve Been Injured in a Car Accident – What Compensation Am I Entitled To?

If you have been injured in a collision through no fault of your own, you may be entitled to financial compensation.  It is helpful for you to know what that type of compensation might include, as your ICBC adjuster’s motivation is to close your file quickly and for as little as possible, not to educate you.

The common categories of financial compensation for injuries include:

Pain and Suffering

This refers to compensation for the loss of enjoyment of life caused by the accident.  If you aren’t able to perform and participate in the activities that you used to, that will be taken into account.

The dollar figures for pain and suffering range dramatically from case to case, and are based on the duration and severity of your suffering.

If your expectations are based on U.S. TV shows, you will probably be sorely disappointed.  In Canada we have a cap on how much a person can be awarded for pain and suffering, which is just over $300,000, and it is very rare to reach those limits.

Wage Loss

If you have missed days at work because of your injuries, or your ability to work in the future has been affected, you are entitled to be reimbursed for that loss of income.

Special Damages

You should be reimbursed for your out-of-pocket expenses such as medication, therapy or other expenses that you would not have incurred if you had not been injured.

Cost of Future Care

If you can prove that it is required, monies to cover the costs of future care including ongoing medications, treatments or other accident-related expenses.

This list is overly simplistic and is in no way exhaustive. You must have medical evidence to back up your claim and have one or more doctor confirming your injuries.

A member of our personal injury team can advise you on your entitlement based on your specific situation.  Contact us to arrange for a free consultation and assessment of your case.