Hergott: You take your victim as you find him

Lawyer Paul Hergott discusses victim blaming in his latest column.

I’m not a “perfect physical specimen.”

If you know me, you are likely rolling your eyes and muttering: “Really? You don’t say!”

Not a perfect psychological specimen either.

“No sh** Sherlock!”

I’m functioning really well, though.

After over 20 years in the legal profession I’m trying to cut back on office hours, but can still put in a 14 hour day.

And over 30 years since learning to drink in the Canadian Military, I’m trying to cut that back as well, but for the most part I live my life without hangovers.

If assessed by a medical specialist, her opinion would be along the lines of Newton’s first law of motion, i.e. “…An object in motion stays in motion with the same speed and in the same direction unless acted upon by an unbalanced force.”

In other words, I’m likely to continue functioning well unless something significant occurs.

Tomorrow I am sitting at a complete stop at a red light. A driver is chatting away by cell phone, using perfectly legal (though perfectly dangerous) hands free technology. Distracted, he crashes into the back of my car.

I’m fine, at the scene. No broken bones. It takes time for the sprained/strained tissues in my neck and back to become inflamed and painful.

The next morning I can hardly get out of bed.

I participate fully in whatever care is recommended, but never fully recover. I am left with chronic lower back and neck symptoms.

I “self-medicate” with alcohol to the point that I’m waking with a hangover more often than not. And I have become depressed.

An ICBC appointed medical specialist conducts an “independent” medical examination.

The specialist reports, accurately, that had I been in better physical shape it is unlikely that I would have developed chronic pain. If better psychological shape, I would not have become a dysfunctional user of alcohol, nor would I have become depressed.

Had I been a perfectly well adjusted 19-year-old gymnast who had never touched a drop of alcohol, I likely would have made a complete recovery.

ICBC blames my relatively deconditioned 47-year-old body and psychologically imperfections for the chronic pain and depression.

Because absent those attributes, I would have enjoyed a complete recovery.

Is that fair?

Absent the crash, I wouldn’t have been injured in the first place!

Absent the crash, my 47-year-old, psychologically imperfect self would have “…stayed in motion with the same speed and in the same direction…”

How does the law wrestle with this situation?

This is the simplest, but worst understood principle of personal injury law.

The legal principle is that “You take your victim as you find him.”

Crash into the back of a car occupied by a 19-year-old, psychologically perfect gymnast whose injuries 100 per cent completely resolve, then lucky you. Your liability insurance company, ICBC, will have to pay only a small amount of financial compensation on your behalf for the small amount of damage you caused.

Crash into the back of a 47-year-old, physically and psychologically imperfect lawyer who ends up developing chronic pain and depression, the law makes you 100 per cent responsible for all of those consequences.

While a common negotiating tactic, “blaming the victim” doesn’t hold water in our legal system, at least not on this point.

And please, please remember that very few road users are perfectly adjusted, 19-year-old gymnasts. Pay your full attention to the road ahead of you and stay off your damned phone.

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