DriveSafeBC: Is It Safe to Open Your Door?

Open Car DoorImagine the surprise of the motorist at a collision I once investigated. He parked at the side of the road, opened his door, and a passing car tried to tear it off! It’s a good thing he didn’t step out while he opened the door.

What went wrong here? The motorist didn’t look first, or didn’t see what was overtaking him. He probably felt safe in the fact that he had stopped close to the curb and was out of harm’s way.

In the case of a driver or front seat passenger, there is a mirror present to help see if anything is overtaking the vehicle before you open the door. A quick shoulder check is also a good preventative measure to turn into a habit.

For back seat passengers the rear roof pillar and lack of a mirror can make this task almost impossible.

The Dutch Reach is the best solution for all vehicle occupants use. Open the door with the hand that is on the opposite side of your body from it. This forces your body to rotate toward the door and allows you to look backward through the gap before the door opens very far. If something is there, hopefully there is enough room to avoid a crash.

Today’s highways are no longer designed so that traffic is always on the left side of a parked vehicle. Be cautious of cycle lanes that may be on the right side of parking areas.

Failing to look or see when you open your door poses a significant threat to cyclists often referred to as dooring or being doored. They must use the right hand edge of the roadway and are difficult to see because of their size. The cyclist that slams into an opening car door can be seriously injured.

Cycle lanes designed without a buffer do not eliminate the hazard.

Opening a door from the outside can be a problem as well. It is not uncommon to see a driver walk up to their vehicle and open the door to enter without giving any thought to overtaking traffic. Passing vehicles may be forced to move to the left or stop in order to avoid a collision.

Section 203 of the Motor Vehicle Act forbids opening the door of a motor vehicle on the side available to moving traffic unless and until it is reasonably safe to do so. Once a door on that side is open, it must not be left open for longer than is required to load or unload passengers.

Planning a holiday party? Here are some simple tips to protect yourself from liability this season

Planning a holiday party? Here are some simple tips to protect yourself from liability this season

Guelph Today

Whether you’re entertaining guests at home or at an off-site venue, make sure safety is part of your planning process.

The holiday season is synonymous with socializing and celebrations. If you’re hosting a party of any size, taking the right steps to ensure your safety and the safety of your guests is an important step in the planning process.

Here are some simple tips to protect yourself from liability at your next holiday party.

Prevent slip and falls

When you throw a party at your home, you’re responsible for the safety and well-being of your guests. This means providing a standard of care in keeping your property free from hazards.

During your event, ensure that all sidewalks, walkways and steps are clear of ice and snow and that there is adequate lighting to allow guests to safely enter and exit your home. Indoors, keep hard floor surfaces free from any moisture that could potentially cause a slip and fall.

Think of the children

Family-friendly parties or events present a set of hazards for children that can often be overlooked. As a host, eliminate any child-specific dangers like choking hazards, access to medications or toxic cleaning products, and sources of open flames like fireplaces or candles.

Keep the drinking in check

Many of us enjoy a holiday cocktail or two, but safety and moderation are key. As host, you are responsible for making sure your guests enjoy responsibly. If someone leaves your party, drives drunk and causes injury or death, you could be found liable. Limiting guest’s alcohol consumption, providing a place to stay, and actively preventing drinking and driving are all good practices as host.

The Insurance Bureau of Canada offers several tips for managing liquor liability risks including hiring professionals who are trained in the proper service of alcohol, making sure there are food options and a variety of non-alcoholic beverages available, and having cash or vouchers on hand for cabs.

Understand your existing insurance policy

Before hosting an event, make sure to contact your insurance provider and ask them to review your homeowner’s insurance policy with you. will be able to confirm what you’re currently covered for, such as slip and fall, and advise you on what other extra, short-term policies you may want to add for your holiday event.

Hosting a party at an off-site venue? Consider this.

Anytime you rent a venue, you are responsible for the premises being left undamaged. This is especially important for business owners as they are responsible for their employees’ safety and actions during their event. While there is always a risk of some damage occurring, especially when there are a large number of guests and alcohol is present, there are things you can do to ensure you do not incur the liability.

A smart option is to bring your rental contract to your insurance provider and figure out what additional short-term policies you need that will offer the best protection. They may ask you to consider event insurance, holiday party liability insurance or injury liability insurance. You need to be clear on what coverage you have and what you need ahead of time to prevent being involved in a potential lawsuit.

Certain liabilities can be avoided with the right preparation. To speak to someone about the best ways to protect yourself and your guests at your next holiday party, click here.

What happens if my son borrows a friend’s car and crashes it?

When you drive someone else’s car, you borrow their insurance in most parts of Canada. And if you crash it, their insurance rates will take a hit. There are some provinces, and some situations, however, where the driver could be at least partly liable.

“As long as they give you permission and you’re qualified to drive, the car is insured in most cases,” says Pete Karageorgos, director of consumer and industry relations for the Insurance Bureau of Canada (IBC). “If you’re involved in an at-fault crash, that goes on their insurance record as an at-fault loss.”

If you crash someone else’s car and you’re at fault, the owner’s rates would go up for the next six years, just as if they had caused the crash. The crash would stay off your insurance record.

If the owner could prove that you’d driven the car without permission, their insurance company wouldn’t cover the crash and would remove it from the owner’s insurance record. But to do that, the owner would have to report the car as stolen to the police.

It works differently in Saskatchewan and Manitoba, which have government-run insurance. In those provinces, the at-fault crash would go on the borrower’s record and not the owner’s record.

In British Columbia, which also has government-run insurance, it’s a little more complicated. There, the crash would go on the borrower’s record. But if the owner hadn’t opted for extra coverage for occasional drivers, then the owner would pay a one-time penalty, says a spokesman for the Insurance Corporation of British Columbia.

NOT ENOUGH COVERAGE?

What if you crash someone else’s car and they don’t have enough insurance?

First, a quick review of the three types of car insurance coverage: liability, collision and comprehensive.

To oversimplify, liability insurance covers damage and injuries that a driver causes to other people, vehicles or property. Collision insurance covers damage to the owner’s vehicle in a crash. Comprehensive insurance covers almost anything else that isn’t a collision, including theft and vandalism.

Liability coverage is mandatory, while the other two are optional. Each province requires you to have a minimum amount of liability coverage. It’s $200,000 in most provinces, but there are exceptions. In Nova Scotia, for instance, it’s $500,000 while in Quebec it’s only $50,000.

So let’s say you’re driving someone else’s car, drive through the side of a building and you cause $2-million in damages. If the owner only has $200,000 in liability coverage, “both the driver and vehicle owner could be personally liable if the claim exceeds the coverage,” Joe Daly, spokesman for Desjardins General Insurance Group, writes in an e-mail.

Before you borrow a car, it’s a good idea to find out what coverage the owner actually has.

EXTRA COVERAGE FOR BORROWERS?

You probably won’t be able to buy standalone liability insurance that would cover you when you’re borrowing a vehicle.

“Since liability coverage on a vehicle extends from the vehicle owner’s auto insurance policy, if you don’t own a vehicle, obtaining a non-owner car insurance policy is unlikely,” Anne-Marie Thomas, senior manager of partner relationships for rate-comparison site Insurance Hotline, writes in an e-mail. “I don’t know of any insurer who offers one.”

If you have home insurance, you may also be able to get an umbrella policy that would give you added liability coverage to protect yourself from lawsuits.

An umbrella policy could cost “a few hundred dollars a year,” IBC’s Karageorgos says. But typically, insurance companies will sell you one only if you have both home and car insurance with them.

A 21-year-old without insurance probably wouldn’t be able to buy it.

“Insurance companies typically don’t sell umbrella policies to just anyone,” Karageorgos says.

Glaring Fog Lamps

glaring fog lampsOne of the most common complaints I hear that is not about a moving violation concerns the use or misuse of lights on vehicles. Here is one of them: “What is really starting to annoy myself and many others is people driving with their fog lights on during clear nights or even during the day. Is this not an infraction? These lamps are often unreasonably bright.”

I agree with this reader, I also find many fog lamps unreasonably bright, even during the daytime. What’s to be done about it? The following information may help you to use these lights effectively and avoid causing problems for others.

First, let’s be sure we are all on the same page. Fog lamps are identified by the SAE F marking on the lens, or a B above the circle with the E in it on European lamps. In B.C. you are allowed two fog lamps that emit either white or amber light. They must be mounted on the front of the vehicle, below the headlamps, but not more than 30 cm below. When you switch them on, the parking lamps, tail lamps, licence plate lamp and, if required, clearance lamps must also illuminate.

Fog lamps may be used in place of headlamps if atmospheric conditions make the use of headlamps disadvantageous. Otherwise, fog lamps may be used at any time of the day or night and in fact are used as the daytime running lamps on some vehicles.

Vehicle lighting at the time of a vehicle’s manufacture is regulated by Transport Canada. Specifically, Technical Standards Document 108, which details construction, performance and location of lamps and reflectors.

Here in British Columbia, lighting use and maintenance is regulated in Division 4 of the Motor Vehicle Act Regulations. Essentially, it requires that the lights and reflectors that a vehicle was manufactured with must still be there and function as originally intended. Dimming of headlights and the times that vehicle lights must be used are also set out here.

I suspect that the unreasonable brightness comes from improper aim. Fog lamps must be adjusted and aimed so that, at a distance of 8 m from the lamp, the centre of the beam is at least 10 cm below the height of the fog lamp. Oddly enough, there is no tolerance specified as too low but anything higher than horizontal is too high.

There are other reasons that could contribute to problems. The use of LED replacement bulbs in housings designed for filament bulbs is one of them, along with using higher wattage filament bulbs than is intended. The Ministry of Transportation and Infrastructure publishes an inspection and approval protocol for vehicle lighting to help inspection facilities decide what to pass.

It is a good guide to follow if you are considering making modifications to your vehicle’s lighting system.

Scott Marshall from Young Drivers of Canada has some good tips on using your vehicle’s lights and fog lights when the weather is bad in this video:

BC Court of Appeal Upholds Special Costs Award Against Disability Insurer Despite No Litigation Misconduct

Reasons for judgment were published today by the BC Court of Appeal finding that trial judges do have authority to award special costs against litigants even in circumstances where no litigation misconduct occurred.

In today’s case (Tanious v. The Empire Life Insurance Company) the Plaintiff was insured with the Defendant.  She became disabled and sought long term disability benefits but the Defendant ‘rejected her claim’.  The Plaintiff successfully sued and was awarded damages along with an order of special costs.

The Defendant appealed arguing the judge was wrong in awarding special costs absent litigation misconduct.  The BC Court of Appeal disagreed and found that in “exceptional cases” such awards could be justified.  In upholding the award the court provided the following reasons:

[69]         To summarize, in British Columbia the general rule is that party and party costs are awarded to a successful litigant in the absence of litigation misconduct.  In ordinary litigation, this partial indemnity strikes a fair and proper balance of the costs burden to be borne by the winning and losing parties and enhances the policy objectives of predictability and consistency.  However, in exceptional cases special costs may be awarded for non-punitive purposes in the interests of justice to provide a higher degree of indemnification to the successful party.  When deciding whether to award special costs, a judge should exercise his or her discretion based on established principles and consider the nature and conduct of the litigation, bearing in mind the purposes and objectives of the costs regime, any salient policy considerations and the relevant facts as established by the evidence…

[77]         I am not persuaded that the judge erred in law or principle in exercising his discretion to award special costs in the circumstances of this case.  Nor, in my view, is the award so clearly wrong as to amount to an injustice.  The judge concluded that disability insurance claims are a uniquely challenging, complex and costly type of contractual dispute litigation and that Ms. Tanious experienced the challenges, complexities and costs inherent in such claims to an extent that special costs were warranted in the interests of justice.  There was an evidentiary basis for his conclusion, which, in my view, was not unreasonable.  Bearing in mind the privileged position he occupied and the high degree of appellate deference that applies, I would not interfere with the judge’s principled determination.  

[78]         I do not accept Empire Life’s submission that the judge compensated Ms. Tanious twice for the emotional harm its conduct caused by making both an award for mental distress damages and a special costs award.  The special costs award responded to the impact of the unique characteristics of the disability insurance contract in the litigation, not the emotional consequences of its breach.  Nor do I accept Empire Life’s submission that the judge erred by holding, in substance, that a disability insurance policy confers a contractual right to full indemnity costs.  On the contrary, he repeatedly stated that it did not. 

[79]         I am satisfied that, despite some ambiguity, when the reasons are read as a whole it is reasonably apparent that the judge exercised his discretion to award special costs based on his assessment of the interests of justice in all the circumstances of the case, not based on a contractual obligation.  His references to “contractual obligations” and the need to realize the “full benefit of the contract” must be read within the context of the entire decision. Had the judge relied on a contractual analysis in making the special costs award, I would agree with Empire Life that he erred in principle.  However, it seems to me that the “driving consideration” for the judge was the injustice he saw in permitting the unique challenges, complexities and costs inherent in disability insurance litigation to render an impoverished and disabled litigant’s pursuit of subsistence-level insurance benefits wholly impractical. 

[80]         In other words, while he did not express it in precisely these terms, at bottom, the judge’s concern with fulfilling the “intention of the insurance coverage” was the need he perceived to provide meaningful access to justice to Ms. Tanious in the unusual circumstances in which she found herself.  Importantly, that need arose in the context of a unique and distinct category of contractual dispute litigation, namely, a claim for subsistence-level disability insurance benefits, and not in the context of an “ordinary” insurance or personal harm claim.

[81]         As I have noted, the Supreme Court of Canada recently emphasized the importance of ensuring access to justice as a policy objective.  Long embedded within the law of costs, our understanding of the consequences of failing to achieve this objective has grown significantly in the last two decades, as the Report highlights.  In seeking to achieve justice in this case, the judge considered the merits of the case, weighed the consequences of a special costs award for both parties and decided it would be contrary to the interests of justice to ask Ms. Tanious (or her “low bono” counsel, Ms. Hayman) to bear the financial burden associated with pursuit of her claim: see Carter.  I see no error in his overall approach, which, in my view, was based on principle, not sympathy, and, given its narrow parameters, did not amount to judicial overreach.

[82]         As discussed, where reasons of principle and policy do not apply the law may evolve without resiling from a general rule by recognising policy-based exceptions: see Fidler; Hollander.  In my view, the law of costs has evolved to the point that a judge may consider a litigant’s challenging personal and financial circumstances, including the availability and nature of counsel’s services, in a disability insurance claim of this sort where there is an evidentiary basis for doing so and, if the interests of justice warrant it, may depart from ordinary costs rules and award special costs in the absence of reprehensible conduct.  The factors in question are linked to the exceptional nature of such a claim and, therefore, the usual costs principle favouring partial indemnity in ordinary litigation may not be applicable.  On the other hand, consideration of these factors in such cases enhances the policy objective of ensuring access to justice for disadvantaged litigants by, for example, encouraging more lawyers to act on deserving but otherwise unremunerative disability insurance claims.

[83]         Moreover, in my view, the policy objectives of predictability and consistency are not compromised by this incremental development in the law of costs, at least not significantly.  Given the unique nature of the particular contractual relationship in question and the related dispute, unlike many opposing litigants, disability insurers are likely to be familiar with an insured’s circumstances and the associated implications of denying benefits and to consider them when assessing their costs exposure.  Further, the prospect of facing a special costs award if a denial of benefits turns out to be unjustified may well encourage disability insurers to scrutinize claims extremely carefully at every stage of litigation, which, in turn, may encourage settlement and avoid the sort of cursory response seen here that falls short of bad faith but negatively impacts access to justice for a disadvantaged litigant.  On the other hand, if, on close and continuous examination, a defence appears strong and meritorious, the possible price of losing seems unlikely to keep a well-resourced disability insurer from the courtroom door: see Sidorksky.

[84]         In the final analysis, in my view, in balancing the parties’ interests in this unique litigation the judge did not err by concluding that it was just for the unsuccessful institutional defendant to indemnify the impoverished and disabled claimant fully for the reasonable costs of pursuing her claim for subsistence-level disability insurance benefits and, therefore, awarding special costs.

bc injury law, LTD, special costs, Tanious v. The Empire Life Insurance Company

Speeding is Best Predictor of Crash Risk

speed demonThe University of Waterloo has identified speed as the best predictor of crashes after analyzing data from onboard devices in vehicles. The research examined four aggressive driving behaviours, speeding, hard braking, hard acceleration and hard cornering for possible links and the likelihood of crashes. Of the four, only speed was statistically significant as a strong predictor of crashes.

From the article’s abstract:

Usage-based insurance schemes provide new opportunities for insurers to accurately price and manage risk. These schemes have the potential to better identify risky drivers which not only allows insurance compa- nies to better price their products but it allows drivers to modify their behaviour to make roads safer and driving more efficient. However, for Usage-based insurance products, we need to better understand how driver behaviours influence the risk of a crash or an insurance claim. In this ar- ticle, we present our analysis of automotive telematics data from over 28 million trips. We use a case control methodology to study the rela- tionship between crash drivers and crash-free drivers and introduce an innovative method for determining control (crash-free) drivers. We fit a logistic regression model to our data and found that speeding was the most important driver behaviour linking driver behaviour to crash risk.

Link:

Cst. Tim Schewe (Ret.) runs DriveSmartBC, a community web site about traffic safety in British Columbia. For 25 years he was an officer with the Royal Canadian Mounted Police, including five years on general duty, 20 in traffic and 10 as a collision analyst responsible of conducting technical investigations of collisions. He retired from policing in 2006 but continues to be active in traffic safety through the DriveSmartBC web site, teaching seminars and contributing content to newspapers and web sites.

www.drivesmartbc.ca

 

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