Halifax Personal Injury Lawyer Blog

Brogan Not Guilty of Impaired Driving Causing Death

Last week Patrick Brogan was found not guilty of criminal negligence and impaired driving causing the death of 6 year old Joshua Penny. Judge Anne Derrick acquitted Mr. Brogan of the criminal charges even though he had already pleaded guilty to impaired driving and the uncontested facts were that Brogan was driving the car that hit and killed Josh Penny.

How Could This Happen?

The decision has caused a great deal of anger and frustration amongst community members in Cape Breton, much of it unfairly directed at Judge Derrick. I have had a number of people ask me basically the same questions about this case:

“Brogan pleaded guilty to impaired driving. Brogan was driving that car that killed Josh Penny. How could he be found not guilty?”

The Burden of Proof

This tragic case is a sad illustration of the differences in the burden of proof required in a criminal prosecution as opposed to a civil lawsuit for compensation for wrongful death.

Accident was "Unavoidable"

In the Brogan case, both the Crown Prosecutor and the defence hired accident reconstruction experts to determine how, exactly, the accident happened. The Crown’s own expert witness testified at Brogan’s trial that Josh Penny veered out in front of Brogan’s vehicle so quickly that it would have been impossible for a sober driver to have reacted fast enough to stop their car in time to avoid hitting the little boy.

In her decision, Judge Derrick states:

“There was a sudden and unpredictable collision with Joshua Penny. An accident reconstruction expert, making responsible and supportable assumptions, arrived at the conclusion that the tragic accident was unavoidable. That opinion, and the other evidence I have reviewed, raises a reasonable doubt that Mr. Brogan’s impairment cause the accident that killed Joshua.”

Read the whole decision here.

I have a great deal of respect for Judge Derrick. She is a woman with an unequalled sense of fairness and respect for the law. It would have been easier (and far more popular) for Judge Derrick to have ruled differently in the Brogan case. Unfortunately, the facts of the case, and the law, dictated that Mr. Brogan be found not guilty.

Burden of Proof in Criminal Cases

In a criminal proceeding the Crown lawyer bears the burden of proving its case beyond reasonable doubt. The easiest way to understand this concept about the burden of proof is to think of a pair of scales. In a criminal case, all of the evidence against the accused is placed on the “guilty” side of the scale.

In order to prove the charges beyond reasonable doubt the Crown lawyer has the burden of tipping the scales all most all the way over to the guilty side.

Burden of Proof in Civil Lawsuits

On the other hand, in a civil claim the plaintiff has the burden of proving his or her claim “on the balance of probabilities”. If you think of the scales again, in a civil claim all of the evidence for the plaintiff is placed on one side of the scale. All of the evidence against the plaintiff (in favour of the defendant) is placed on the other side of the scale.

As long as the scales tip even a little bit, to the side in favour of the plaintiff, then the plaintiff has met the burden of proof on the balance of probabilities.

A Famous Example

That explains why in some circumstances a person may be found not guilty of criminal charges but later found liable, based on the same facts, in a civil suit. The most famous example of this difference in the burden of proof is, of course, O.J. Simpson.

As everyone in the world knows, at his criminal trial O.J. Simpson was found not guilty. In other words, the prosecutors were not able to convince the jury beyond reasonable doubt that O.J. Simpson had murdered his wife, Nicole Simpson and Ron Goldman.

On the other hand, when the Goldman family and Nicole Simpson’s family sued O.J. Simpson, he was found liable for causing their death. In other words, the plaintiffs were able to prove on the balance of probabilities that O.J. Simpson had caused the deaths of Nicole Simpson and Ron Goldman.

Brogan Decision Based on the Law not Emotions

I have had some very vigourous debates over the last week about the Brogan case. When a child dies and the driver admits to being impaired, it just does not seem fair when the driver is found not-guilty of causing the child's death. But based on the evidence, and based on the law (rather than emotions), it appears that based on the facts the law required a finding of not guilty.

If Josh's family sues Brogan the results will almost certainly be different.

What do you think?

Continue reading " Impaired Driver who Killed 6 Year Old Found Not Guilty of Causing Boys Death. " »

"Minor Injury" claims from Nova Scotia Car Accidents

I get the calls all the time: The client had a car accident in Nova Scotia. It wasn't their fault. They have been injured. They have not been able to work for months. But the other driver's insurance company says they have a "Minor Injury". The insurance company says the client is only entitled to $2500.00 for their pain and suffering.

So they call me and ask: "That can't be right, is it? That's just not fair!"

The honest answer is: Yes it isn't fair, but their claim for pain and suffering may be capped at $2500.00.

BUT the insurance company may not have properly assessed the claim, or told the injured victim everything they are entitled to know.

"Minor Injury" Cap on Compensation

In 2003 Nova Scotia passed a law to protect the profits of the insurance industry at the expense of innocent accident victims.

The law caps the amount of compensation that an innocent accident victim can receive for what is typically referred to as compensation for pain and suffering (what lawyers call non-pecuniary damages), for "minor injuries" at a maximum of $2500.00!

In other words, if you have a "minor injury", as defined in the Insurance Act, the most you can receive for your pain and suffering is $2500.00. In many cases the insurance company will offer you less than $2500.00!

Why you may have a "Minor Injury: Reason # 3

Your injury may be considered to be "Minor" if there is no serious impairment as a result of the injury.

No Serious Impairment = Minor Injury

According to the "Minor Injury" legislation, an injury is considered to be "Minor" if it does NOT cause:

"serious impairment of an important bodily function"

What's a Serious Impairment?

It is not the injury that is important, it is the impairment! The insurance company doesn't care how much pain you are in, or how bad your injuries were at the time of the accident. What the insurance company will consider (or perhaps I should say, what the insurance company should consider) is the effect of your injury and how your injury impairs your ability to function in your work or your normal daily activities.

A person can be significantly injured but be left with limited impairment.

For example, most Canadians know of Rick Hansen. Rick sustained a spinal cord injury in a car accident and would never walk again. He was paralyzed from the waist down.

But Rick became a medal winning paralympic athlete and continues to have a far-reaching impact on the world of sport. He chaired the Commission for the Inclusion of Athletes with Disabilities, successful in creating full medal status for Commonwealth Games athletes and was named “Athlete of the Century,” by British Columbia Wheelchair Sports. He was named Canada’s Disabled Athlete of the Year in 1979, 1980 and 1982; and in1983, shared the Lou Marsh Award with Wayne Gretzky, as Canada’s Outstanding Athlete of the Year. Rick has been inducted into Canada’s Sports Hall of Fame, the BC Sports Hall of Fame and the University of British Columbia Athletic Hall of Fame.

In other words, it does not appear that Rick's injury has, at least for him, resulted in a significant impairment of his ability to function and puruse his goals.

On the other hand, a relatively insignificant injury may give rise to a significant impairment of function. A concert violinist who loses the tip of their pinky finger in an accident may not have a serious injury, but it would result in a serious impairment of their ability to function as a violinist.

"So How Can I Tell if I Have A Serious Impairment?"

In assessing whether there has been a serious impairment, the Courts have focused on the effect of the injury on the injured person's usual daily activities or their ability to continue their employment or career path.

If it Affects Your Ability to Work, it may be a Serious Impairment

Any impairment that affects the injured person’s earning capacity or frustrates their career path is usually considered to be serious.

But the impairment does not have to result in an income loss to be considered serious. A court in Ontario, looking at similar legislation to the Nova Scotia law decided that:

…we are of the opinion that the frustration of an injured person’s chosen career path generally should be considered to be a serious matter. One can contemplate a permanent impairment of an important bodily function which might force an injured person into a career path, different from the chosen one, but which turns out to be economically more advantageous. It might not however, give the same personal satisfaction.

So a change in career path that leads to an increase in income may still be considered to be a serious impairment. For example, in one case Newall v. Flora a mom suffered a knee injury which prevented her from being able to be a stay-at-home mother and care for her children. She hired a nanny, which forced her to work full-time to pay for the nanny. Her impairment of bodily function was found to be serious (even though her salary increased from $36,000.00 to $100,000.00 over several years).

"How Do I Prove I Have a Serious Impairment?"

In order to prove that you have a serious impairment you must provide proof that your injury continues to cause "substantial interference" with your "usual daily activities" or your "regular employment".

How do you do that? By having your doctor and occupational therapist carefully document the nature and extent of the ongoing effects of your injuries so that he or she can write a report confirming that you have a "serious impairment" that is "physical in nature" and continues to cause "substantial interference" with your "usual daily activities" or your "regular employment".

I will cover all of these other requirements in future posts. The most important thing to remember is that just because the insurance company says you have a minor injury does mean that they are correct.

The minor injury cap law is complicated and confusing, even to some lawyers. If you or a family member have been injured in a car accident, make sure you get advice from an experienced Nova Scotia car accident claims lawyer.

Related posts:

Why the Insurance Company Says you have a "Minor Injury": Reason #1

Why the Insurance Company says you have a "Minor Injury": Reason #2

Continue reading " Why you may have a "Minor Injury" from your Nova Scotia Car Accident: Reason #3 " »