Hasty political expedience may negate sound reason for increase

ICBC proposes an overhaul to its rate structure, saying that they have been listening to motorists who say safe drivers should not have to pay the same rates as those with speeding tickets or those who’ve caused a couple of collisions.

The proposal is stopped in its tracks.  The opposition throws out rhetoric: “Stop the highway robbery.  End it before it starts”.  It’s a political hot potato.  The end result?  ICBC has been sent, in the words of the Minister of Public Safety and Solicitor General Shirley Bond, back to the drawing board.

The admonished ICBC president withdrew the proposal, apologizing for ICBC’s failure to do a good enough job of communicating with the public and with government about the changes they were considering.  The plan from here is to undertake a province wide consultation and rethink the proposal.

It all makes me want to throw up.

Politics has gotten in the way.  Again.

I don’t know the details of the proposed rate overhaul.  I do know, with absolute certainty, that it was politics and not the merits of the proposal that has sent it back to the drawing board.

The BC Liberals have learned their political lesson.  Their failure to properly market the HST has cost them dearly.  Requiring ICBC to undertake a province wide consultation is politically astute.

Politically astute?  Yes.  Good for British Columbians?  Hell no.

Don’t we elect our political leaders to govern?  Doesn’t that mean doing the hard work of making decisions on our behalf to make British Columbia a better place to live?

Should they have to mess around with public advertising campaigns for every step they take?

I don’t give a flying fig about what British Columbians think about ICBC’s proposed rate structure overhaul.  Is that anti-democratic?  I, like other British Columbians, am ignorant about the full details of existing rate structures and the proposal to change them.  I am confident that our democratically elected political leaders will make informed decisions on my behalf.

Why do I care?  Do I have a squeaky clean driving record such that I stand to benefit from a new rate structure that “rewards” that?  I’ve written before the importance of looking at self-interest when considering a person’s opinion.  Where is Paul Hergott coming from, here?

I care because rate structures are not about fairness.  Rate structures are not about rewarding good drivers and punishing bad drivers, notwithstanding ICBC’s public comments to the contrary.

Rate structures are about reducing crashes.

The steady stream of crash injury victims coming through my door points to the reality that the risk of causing injury is not sufficient to motivate British Columbians to change our driving habits.

The brilliant new hefty impaired driving penalties are bringing about success in the battle against impaired driving.  Logically, heftier financial penalties for bad driving will do the same in the battle against bad driving generally.

ICBC comes up with a new rate structure that will help motivate British Columbians to drive safer, and I want it implemented.  I want it in place right now, not after extensive public consultation.  I want our leaders to lead.

Even one crash is too many.  Anything that will cause us to pay the heck more attention when we are behind the wheel will reduce crashes.  Hitting us in the pocket book seems to be the only reliable way to do that.  Hit us.  Hit us hard.

Published May 22, 2011 in the Kelowna Capital News

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Truth is always the golden rule

Be accurate and be honest. Those are my “golden rules” that I give my clients when preparing them for the standard step in a lawsuit called examination for discovery.

An examination for discovery is similar to what American television shows refer to as a deposition. Simply put, you are required to answer questions posed by a lawyer hired by the insurance company.

Everything that is said is recorded, word for word, by a court reporter. Many of my clients fear that there is a whole lot more to it than those golden rules. Yes, I warn them about standard tactics played by insurance defence lawyers, but the bottom line when defending against those tactics is those golden rules.

No tactic will succeed as long as what comes out of your mouth is accurate and honest. Yes, the insurance company lawyer may try to get you to agree to things that are not true. Yes, he or she may do so in a convincing manner.

As long as you listen to the question being posed, and answer it accurately and honestly, those attempts will fail.

My golden rules of accuracy and honesty need to be followed all the time, not just during an examination for discovery. It is important to follow them when dealing with your doctor, your physiotherapist, your employer, and yes, even Canada Revenue Agency, when reporting your income.

When asked about your previous medical history, do you tell your physiotherapist that your whiplash injury isn’t the first time you had symptoms in your neck? Do you disclose that you had been in another collision three years ago that caused exactly the same symptoms?

Why disclose that information when it might hurt your case? There are no exceptions. Accuracy and honesty aren’t just bronze or silver rules, they are golden rules.

This isn’t a game. For the vast majority of injuries sustained in car crashes, there are no broken bones or other obvious physical evidence of injury.

Yes, there might be muscle spasms and other evidence of the sprain and strain of tissues that occurs in a whiplash type injury, but all of that often disappears early on. If you end up being left with chronic neck or back pain, and the muscle spasms and other evidence of injury have resolved, the only reason anyone knows you still have pain is because you tell us.

Credibility is everything.

If you are not believed when you describe your ongoing pain, you won’t get fair compensation for it because there is no other way to prove that the pain is there. Failure to disclose that previous whiplash injury will hurt your credibility. Instead of helping your case, you will be chopping your own legs out from under you.

Ironically, totally aside from the golden rules, disclosure of that previous whiplash injury will actually help your case.

The fact that you suffered a previous injury to those same tissues will help to medically explain why you end up developing chronic pain in those tissues from a new whiplash injury.

Please be clear that as much as truth and justice are important to me, I am not on a moral crusade. Being accurate and honest in a personal injury claim is simply excellent legal advice.

You might find that it’s excellent life advice as well, but that’s another matter.

Published May 15, 2011 in the Kelowna Capital News

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Raising awareness of brain injuries is important objective

As I write this column, I am attending a three-day brain injury conference in Naramata.

The Okanagan branch of BrainTrust Canada has been bringing in fabulous presenters for this conference over the last 19 years it’s been held.

For those of you unfamiliar with this non profit society, BrainTrust does excellent work not only in support of those living with brain injuries, but also in public awareness to prevent brain injuries from occurring.

So far, the conference has been absolutely fantastic. The first presentation was by Dr. Andrew Miki, a registered clinical psychologist who uses cognitive behavioural therapy to assist those living with a brain injury, and others.

Unfortunately, he is not available to treat Okanagan patients because his practice is in Vancouver, but I’ve had a look at his website (www.mentalfitness.ca) and highly recommend the link to his blog.

Dr. Miki gave us the cold truth that over the course of his three-hour presentation there would be (statistically) five British Columbians who would suffer a brain injury. Of those, three would be classified as mild, one as moderate and the other as severe.

The focus of Dr. Miki’s presentation was the most prevalent mild traumatic brain injury (mTBI). Most mild traumatic brain injuries occur in car crashes and slips and falls. The good news we learned from Dr. Miki is that the vast majority of those suffering mTBI achieve a close to full recovery within about a week, and a full recovery within about three months.

The sad reality, though, is that we don’t all get to be in that vast majority. However vast a majority, there is a minority.

Studies show that 15 per cent of those sustaining a mild traumatic brain injury do not recover. According to Dr. Miki, one of the challenges with treating mTBI is it’s difficult to diagnose. A mild traumatic brain injury can be sustained without any loss of consciousness.

Less obvious symptoms such as dizziness, anxiety, “fuzziness,” and disorientation might not even be reported to the ambulance crew or at the hospital if the injured person is more concerned about physical injuries.

The injured person, and others, may believe that those symptoms are just part of being in shock. Complicating matters, the brain can be injured even if there is no apparent blow to the head.

The brain is suspended within the skull by a fluid. If the skull is whipped forward and back, such as in a whiplash scenario, the brain can be damaged as it slams against the front and back of the skull.

Crack your head on the sidewalk and the immediate concern is brain injury. Walk away from a rear-ender car crash and brain injury is not even on the radar.

Further, the symptoms are subtle and can be dismissed as being caused by other things. If chronic pain is involved, due to other injuries sustained in a crash, symptoms of depression, lack of concentration, and subtle personality changes can be blamed on the chronic pain.

Braintrust Canada, through conferences like the one I am attending along with many other initiatives, tries to raise awareness about brain injury. Hopefully, that awareness will cause us all to be more careful with our noggins, and also to be more sensitive to the signs and symptoms of mild traumatic brain injury so that those suffering from it can get the help they need.

This column is my contribution to their efforts.

Published May 8, 2011 in the Kelowna Capital News

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Judge says existing disability no out for insurance payout

If you are left with chronic neck pain as a result of a crash injury, should your compensation be impacted at all by having suffered chronic back pain before the crash?

If you are left with some new level of physical disability as a result of a crash injury, should your compensation be impacted at all by having had some level of physical disability before the crash?

The insurance company would say yes.  You were already damaged.  You were already suffering some level of pain.  You should get less.

What’s another bit of disability if you already suffer some level of disability?  For a perfectly healthy person with no disabilities, a loss is much greater and should result in more compensation.

Is that fair?

Not so much?

The insurance company argument really falls flat when you consider whether your compensation for losing an eye should be any different if you were already blind in the other one.

There is an often cited case of our Supreme Court back in 1995 when that insurance company argument was tried and failed.  The injured victim, already partially paralyzed, was injured when a car ran into the electric wheelchair she had been operating.

The insurance company lawyer had argued as follows:  “In reality, the only real change in her functional abilities arising from that accident…is that she is no longer able to walk about her apartment using a quadcane or the furniture and walls for balance. Now she must use a wheelchair or walker.”

The Judge saw the glaring error in the defense lawyer’s argument.  The Judge said:  “I think the defendant mischaracterizes and underestimates the impact of the plaintiff’s injuries caused by the 1992 accident. To use defense counsel’s phrasing, the “only real change” in the plaintiff is one of very great significance: essentially, Ms. Bracey can no longer walk, even with assistance.”

The Judge went on as follows:  “The consequences of this particular “only real change” have been and continue to be extremely difficult. Not only is there an objective and significant decrease in her physical capabilities, but the psychological and subjective impact on the plaintiff is also great and ongoing.”

The Judge concluded with the following insightful comments:  “She has, by reason of the defendant’s negligence, been substantially deprived of many of the limited pleasures and comforts life still held for her. To rob a disabled person of what little she has left is a monstrous injury, for that little she has is, for her, the whole of her life. Not only is it an enormous physical injury but the emotional damage is, to most people, well nigh incomprehensible.”

The Judge compensated the injured victim accordingly.

I love justice.  It has such a sweetness about it.

Are you facing a similar argument from an insurance adjuster?  E-mail me and I’ll send you a copy of this case.

Published April 24, 2011 in the Kelowna Capital News

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Court system tries to ferret out the liars

Everybody hates a liar and a cheat.

The chronic ones are very good at it.  You won’t know what hit you until it’s too late.

You try to learn from the experience.  You think about how you could have been alerted to the fact that the person you had trusted was conning or cheating you.

I had the benefit of hearing RCMP Supt. Bill McKinnon speak at a business meeting this week.  One of the topics he talked about was civilian oversight of the RCMP.  One of the challenges he raised is the fact that it takes years of experience; years of investigative interrogations to develop the skills necessary to determine when a suspect is telling the truth.  You don’t find that level of expertise in the civilian community.

Our court system does its best to root out liars.  Witnesses are sworn to tell the truth, but of course that’s not even a speed bump for chronic liars.  There is also a form of interrogation called cross-examination.  The judge watches and listens closely for clues to assist in finding the truth.

Body language is definitely a part of it.  More important, particularly for chronic liars who can mask their body language, is the consistency of the witness’s story.  It is easy to tell a lie.  It is much more difficult to be consistent about it.  A lie is exposed when it doesn’t quite fit.  It might fit in one way, or another, but the rough edges hopefully give it away.

Imperfect memories and differing perceptions and perspectives often result in innocent inconsistencies between what two witnesses might say.  Those are innocent inconsistencies.  The witnesses are doing their very best to give accurate evidence.  Judges struggle to find the common ground and figure out what scenario is the most likely, and justice prevails.

A bold faced liar is less common.  A bold faced liar, if clever enough, can turn justice on its ear.  Judges have a lot of experience assessing credibility, but most do not have the expertise of a seasoned RCMP investigator.

Making things more problematic is the fact that there are many elements of our justice system that do not have the benefit of a lawyer driven interrogation in a courtroom.

One example is the Residential Tenancy Branch (RTB).  Rather than tie up our court system with hundreds and thousands of rental disputes, typically involving dollar amounts under $5,000.00, rental disputes are handled by the RTB.

The “trials” are extremely scaled back hearings that do not require strict adherence to courtroom evidence rules.  The “judge” is a Dispute Resolution Officer (DRO) who may or may not have much legal training.  The hearings are held by telephone where body language cannot be assessed.  There is no cross-examination.

How the heck is a DRO supposed to handle a situation where a landlord and a tenant say such completely different things that one of the must be a bold faced liar?  I have just had tickets to the show in exactly that situation.

Friends of mine, Mitch and Darla Brown, were first time landlords.  They had moved out of their home, careful to leave it immaculate, with every nail hole filled and fresh paint on the walls.  They rented the place to a young couple, Travis and Ashley Laycock, who they had described to me as the nicest folks you could ever meet.

Nice turned to nasty.  The resulting dispute ended up in front of a Dispute Resolution Officer.

One of the issues had to do with the expense of repainting one of the bedrooms.  My friends had brought a series of photographs to show the “hatchet job” the tenants had done when painting the room a hideous shade of green.

After the hearing, my friends told me about how aghast they were as they heard the lies coming out of the tenants’ mouths.  They weren’t innocent inconsistencies.  One of the lies the tenants told was that the landlords, not the tenants, had done the hatchet job, that it had already been painted that way before the tenants moved in.

My friends’ faith in the prospect of a just result was shaken.  How was the Dispute Resolution Officer to figure out that the tenants were lying to her?

Their faith was restored when they received the written decision.  Not having access to all the tools available in a supreme court trial, and not possessing the expertise of a seasoned RCMP investigator, the DRO carefully reviewed the tenants’ evidence and found the “rough edge” inconsistencies that led her to find the true facts.  I have difficulty expressing adequately how relieved I was, as a cog in the wheel of our justice system, that my friends’ faith in the system was restored.

What are the consequences of lying under oath?  Well, the tenants “lost”, and justice was done.  There ought to be more consequences, though, shouldn’t there?  Lying under oath should come with the criminal consequences provided for in the Criminal Code.  Unfortunately, there are much bigger fish to fry for our over-extended RCMP.

If anyone would like to see a copy of the decision in Brown v. Laycock, fire me an e-mail and I’ll send it to you.

Published April 17, 2011 in the Kelowna Capital News

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  • PAUL HERGOTT

  • PAUL HERGOTT

  • British Columbia Personal Injury Lawyer