“Perhaps the regulations would benefit from a review.”

I couldn’t agree more with Mr. Justice Brown who made that comment in his decision dismissing the appeals of Mr. Raymond Rei.  Mr. Rei had been ticketed for operating a vehicle without insurance and without a driver’s license.  He disputed the tickets and argued his case at the Provincial Court level.  He lost.  He appealed to the Supreme Court of British Columbia where he came before Mr. Justice Brown.

The subject matter of the appeal was whether or not the two wheeled “device” Mr. Rei had been riding required insurance or required the driver/rider to have a driver’s license.

According to the laws of the Province of British Columbia, a “motor assisted cycle” is treated like a bicycle.  You can ride it without a driver’s license and without insurance.

Consider the debate about what kind of two wheeled critter ought to require a driver’s license and insurance and what ought not to.

I expect most of us would agree that a bicycle should not.

What about a bicycle that you add a small electric or gasoline engine to, to assist in getting up some of our Okanagan hills?

If we’re going to allow bicycles with engine add-ons, what about scooters that are manufactured with both pedals and small electric or gasoline motors?  They go no faster than a strong cyclist could pedal, in fact in many cases they can’t go as fast.  They are far more environmentally friendly than a car and you get as much exercise as you choose with the pedals.

A line has to be drawn somewhere.  It is the definition of that line that Mr. Justice Brown was referring to when he said “Perhaps the regulations would benefit from a review”.

A “motor assisted cycle” is a defined term in the Motor Vehicle Act.  In order to fit within the definition, the two-wheeled beast must be one “to which pedals or hand cranks are attached that will allow for the cycle to be propelled by human power”.

Of course, nobody actually reads the Motor Vehicle Act.  It is even less likely that anyone would read the Regulations to the Motor Vehicle Act, which is a completely separate document.  The Regulations add to the definition, containing such additional restrictions as an engine shut-off requirement: the motor must “disengage if the operator stops pedaling”.

Incidentally, if you were to actually read the definition of “motor assisted cycle” in the Motor Vehicle Act, you would not see anything alerting you that the definition is incomplete, i.e. that you have to look somewhere else for the rest of the rules.

Even ICBC, the government agency responsible for this stuff, has difficulty explaining it.  They have a table on their web site with a list of requirements to qualify as a motor assisted cycle.  The list doesn’t include the engine shut-off requirement.  To be safe, they have a link to the Regulations so you can read them yourself, but the link currently goes nowhere.  I hopefully expect that the link will be repaired as soon as this column is published as I have been told that my column is required reading for some unfortunate folks at ICBC.

Mr. Rei’s “device” was in the greyest of the grey areas.  His “device” did have pedals, but they were removable.  He could clip them on and off as he wished.  He found that the pedals made his device unsafe because they hit the pavement when the “device” naturally leaned over while rounding a corner.  For safety’s sake, he removed the pedals.

It is not apparent from the court decision whether, had the pedals been clipped on, some sort of engine shut-off mechanism might have been engaged.  On the basis of the pedals alone, he was properly riding without a license and without insurance if the pedals were clicked on, but his “device” became illegal when he took the supposed safety measure of unclicking the pedals.

Mr. Rei had to pay a couple tickets.  No big deal.  Insurance implications can make it a big deal, though.  I am directly aware of a fellow who had been riding a similar “device” and was run off the road by a negligent driver.  For the same safety reason, he had removed the pedals.  He hasn’t been able to work since the crash and ICBC is denying him the significant benefits he would have been entitled to had he not unclipped the pedals.

Is the “device” that you or someone you care about is riding “legal” without a driver’s license and insurance?  Would you be denied benefits if a motorist ran you off the road?  With incomprehensible rules that even ICBC can’t get right, how could you even find out?

Posted June 13, 2013 on Kelowna Capital News Online

Posted June 14, 2013 on Welcome to Kelowna

http://www.cbc.ca/news/technology/story/2013/06/12/dangerous-voice-commands.html

Many of my columns contain advice that is not expected from the popular culture generated sleazy image of a personal injury lawyer.  Being honest and forthright, for example, is the direct opposite of what many would expect a personal injury lawyer to recommend.

I’m going to hit you with another one:  Do whatever you can, within reason, to make your claim as small as possible.

I can hear the sarcastic commentary now: “Oh, ok.  I’m going to go to THAT lawyer.  I’m going to hire the lawyer who is going to help me figure out not how to maximize my claim, but rather to minimize it!”.

A personal injury claim is, essentially, a legal right to compensation.  What are you being compensated for?  Your losses.

The bigger your losses, the bigger your claim.  Conversely, the smaller your losses, the smaller your claim.

There is no “bonus”.  There is only recovery of loss.  When you factor in the one-third fees you are going to pay your lawyer, you in fact end up significantly “in the red”.  Your best hope is to recover compensation for two-thirds of your losses.

The bigger your losses, the further you end up in the red, because more and more is taken by your lawyer in fees.  For a very small claim, with losses of only $9,000.00, you end up “in the red” about $3,000.00 ($9,000.00 minus lawyer fees).  For a larger claim, with losses of $90,000.00, you end up “in the red” about $30,000.00.  Who benefits from maximizing your losses?  Your lawyer.  Who loses?  You.

That’s the dollars and cents argument for keeping your losses as small as possible.  It just so happens that there is also a legal duty to do so.  It’s called a “duty to mitigate”.  A very recent decision of the Supreme Court of British Columbia quotes the following authoritative statement of the law:

“Mitigation goes to limit recovery based on an unreasonable failure of the injured party to take reasonable steps to limit his or her loss. A plaintiff in a personal injury action has a positive duty to mitigate but if a defendant’s position is that a plaintiff could reasonably have avoided some part of the loss, the defendant bears the onus of proof on that issue. …”

Turning that into English, you have an actual legal obligation to take reasonable steps to end up as little “in the red” as possible.  If you fail to do so, ICBC won’t have to reimburse you for the losses that you could have made smaller had you acted reasonably.

For example, if your injury disables you from returning to your very heavy work as a drywall installer, but you would be able to handle less physically heavy work, such as working at a desk or working as a salesperson, you have a legal duty to try to get those other jobs.

If you sit back and do nothing, and ICBC is able to prove that you would have been successful finding alternate work and earning at least a portion of the income you would have earned as a drywaller, the Court will not reimburse you for that portion.  You will end up with zero compensation for that portion of your losses.

People who are laid off and qualify for Employment Insurance are required to look for work.  The same thing goes for people claiming compensation for injury losses.  The difference is that the Employment Insurance system is not going to hire a lawyer to cross examine you on how hard you tried to find another job.

This “duty to mitigate” is nothing to worry about.  It’s not some “dark magic” that ICBC will be able to use to kill your claim.  It’s all about acting reasonably.  If you are the least bit unsure, get advice early on about what steps you could be taking to mitigate your losses and eliminate the possibility that ICBC can successfully “blame the victim” on this point.

Posted June 6, 2013 on Kelowna Capital News Online

Posted June 7, 2013 on Welcome to Kelowna

With our ever growing (in girth) population, it seems to me that the main topic of discussion for “bike to work week” should be how to motivate us all to choose the healthier commuting option.

Instead, the main topic of discussion is about cyclists and motorists, and cyclists and pedestrians, sharing the available space from point A to point B.

It seems we don’t share well, particularly in comparison to some other countries, with much denser populations, where masses of cyclist and pedestrians manage to co-exist with motorists.

The main discussion feature seems to be motorists bellyaching about cyclists.  Cyclists are “vehicles” under traffic laws and many of those darned cyclists appear to ignore those laws.

Road safety is raised, when you listen to the points raised by motorists and their tone when raising those points, road safety takes the back burner.

I don’t hear motorists expressing genuine concern for the safety of cyclists.  If safety was the genuine concern, instead of bellyaching I would hear suggestions and strategies about how to protect cyclists.

I would hear things like: “It is dangerous for cyclists to ride at the very edge of a road, as sometimes there is an edge where the asphalt ends and loose gravel begins that can cause a cyclist to lose control, so give cyclist lots of room when passing them”.

Maybe, someone would call into a radio show and say: “I felt horrible when a young person on a bicycle pulled out directly in front of my car and I almost hit her.  I have learned an important lesson that when coming up behind a child on a bicycle I need to expect the unexpected, slow right down, give a little honk to make sure the child knows I’m there, and then carefully pass.”

Instead, I hear impatient and irritated complaints about those annoying cyclists.

Perhaps we want to deflect attention from the motivation problem.  It’s much easier for us motorists to bellyache about cyclists than to seriously consider why we aren’t joining them.

Perhaps we’re just jealous.  There we are, sitting on our butts in our polluting vehicles that we pay to insure, maintain and fill with gas, our mid-sections continuing to grow, while those cyclists are burning a bunch of calories, getting fresh air, while doing the same commute that we do.

It’s understandable, I suppose, that we get irritated when cyclists get in our way.  That’s really what it’s about, isn’t it.  They get in our way.

Why are we so damned selfish and self-centred?

Bike to Work Week marks an anniversary.  One of my (regretfully former) staff took it upon herself to motivate the office to get on our bicycles for Back to Work Week a few years ago.  She was a very experienced cyclist.  She always wore her helmet.  On her way home, on her bicycle, within two blocks of my office, an impatient motorist crowded her off the asphalt edge, causing her to lose control and suffer a serious brain injury that she is continuing to suffer from today.

I invite you to read Deb’s story on OneCrashisTooMany.com

How ironic.  How tragic.  How pathetic.

Posted May 30, 2013 on Kelowna Capital News Online

Posted May 31, 2013 on Welcome to Kelowna

A judgment released May 10, 2013, following an eight day Supreme Court of British Columbia personal injury trial, reminds me of the saying: “A man who is his own lawyer has a fool for a client”.  The decision reads like a train wreck.

Marko Jurisevic was claiming compensation for injuries he sustained in three separate car/bicycle collisions.  He had commenced three separate lawsuits, which is entirely appropriate, and they were all scheduled to be heard at the same time, which is also a common practice.

The “train wreck” was that the judge, Madam Justice Kloegman, didn’t get to the part where she would assess the significance of Mr. Jurisevic’s injuries and losses and require financial compensation.  She dismissed Mr. Jurisevic’s claims in all three lawsuits.  In two, she found Mr. Jurisevic to be the one at fault, not the motorists he sued.  The third was dismissed on Mr. Jurisevic’s technical failure to properly name the driver he was blaming for causing that collision.

Instead of being compensated for his injuries, Mr. Jurisevic is going to be facing a costs bill of 10s of thousands of dollars, payable to ICBC.

Self-representation in our court system is a problem, and the saying I quoted at the beginning of this column is rarely applicable.  Most people facing the courts without representation do so not because of any foolishness, but because they cannot afford the horrendous expense of hiring a lawyer.  That lack of legal representation results in horrendous inefficiencies in our justice system as well as unjust results.

The “fool” label applies in the situation of a lawyer, financially able to afford legal representation, who represents himself in his own lawsuit.  I have not made my comments gender neutral because of course a woman lawyer would not be so foolish.

When reading about the disastrous result of an unrepresented injury victim going up against the full power of the Insurance Corporation of British Columbia, my mind would typically go to the assumption that it could not have been a fair fight, and the result could not have been a fair one.

I am thankful to Madam Justice Kloegman for being so clear in her reasoning, which relieved me of my concern about unfairness.  By the way, I encourage anyone who is shocked or appalled by a media description of a court decision to read the judge’s actual reasons for judgment.  You will learn something.

The reasons for judgment include a section where the judge assessed Mr. Jurisevic’s credibility, and found it lacking.  It had to do with video surveillance footage which, for honest and forthright victims, always helps prove rather than hurts their claims.  Mr. Jurisevic was clearly not an honest and forthright victim.  Madam Justice Kloegman’s words:

“I found the use of a walker by the plaintiff as he entered the office of Dr. Pyper for an independent medical examination requested by the defendants to be particularly revealing. The surveillance tape shows him striding from his house to his truck, carrying a walker, lifting it above his head with ease and smoothly swinging it into the truck, jogging across the road back to his house, returning to the truck and climbing into it. Yet when he arrived in the truck at the appointed location, he purported to need it to walk up the path to the doctor’s office.”

In the end, the “fool” label does apply in this case.  With or without a lawyer, your personal injury case is going to be a train wreck if you are not honest and forthright to all involved.  And good luck finding a lawyer willing to take on a claim that has become a train wreck because of your own dishonesty.

Go to the Supreme Court of British Columbia website, choose the button “Judgments” and search using “Jurisevic” and you can access the decision yourself.

Posted May 23, 2013 on Kelowna Capital News Online

Posted May 24, 2013 on Welcome to Kelowna