Halifax Personal Injury Lawyer Blog

The Supreme Court of Nova Scotia recently released the decision of the Estate of Theresa Anne Jollimore v. The Personal Insurance Company of Canada. The decision of Justice Coady involves a case where a minor (Jollimore) suffered a serious brain injury when the car in which she was a passenger was involved in a car accident.

Father Acts as Litigation Guardian

Because she was a minor, Ms. Jollimore’s father was appointed by the court as her litigation guardian to act on her behalf to bring forward her compensation claim.

Claim Settled

The defendant’s insurance company, The Personal Insurance Company of Canada appointed counsel and the parties engaged in mediation where they settled Ms. Jollimore’s claim for $235,000.00

Claimant Dies Before Payment

However, after the parties negotiated the settlement and signed a settlement agreement, Ms. Jollimore passed away from a drug overdose.

Insurance Company Tries to Back Out of Settlement

The insurance company took the position that because Ms. Jollimore died before they issued a cheque, the settlement was not binding. The insurance company also argued that since Ms. Jollimore had reached the age of majority (19 years) she was no longer a minor and therefore her father no longer had the authority to act as her litigation guardian to negotiate the settlement.

Insurer Knew Claimant Was Brain Injured

Justice Coady reviewed the evidence which clearly indicated that all of the parties were aware that Ms. Jollimore was not a minor at the time the settlement was negotiated. The parties were also clearly aware that Ms. Jollimore’s serious brain injuries rendered her incompetent and that she was not capable of managing her own affairs.

Insurer "Taking Advantage" of Claimant's Death

Justice Coady stated, at paragraph 26 of his decision:

“I have a great deal of difficultly with the respondent’s (insurance company) position. It is clear that the settlement was arrived at in good faith after the respondent was provided with all relevant information. The respondent was fully apprised of the risks associated with Ms. Jollimore’s lifestyle and health. The settlement figure reflected these factors. The respondent’s unwillingness to honor the agreement is predicated on taking advantage of Ms. Jollimore’s unfortunate demise.”

Protecting the Rights of People Who Cannot Protect Themselves

Justice Coady went on to point out the importance of trying to protect the interest of persons who have been injured and are no longer able to look after their own affairs. Justice Coady stated:

“It should not be forgotten that at the time of the settlement Ms. Jollimore was incompetent … I conclude that the settlement is binding on the parties.”

Moral Obligation May Not be a Legal Obligation

This decision reinforces the importance of insuring that, at every step of the litigation process all of the proper requirements under the court rules and appropriate provincial laws have been complied with. While most people understand that “a deal is a deal” this type of moral obligation means nothing to an insurance company like The Personal which tried to take advantage of a technicality under Nova Scotia rules of court in order to renege on their obligations to a grieving family.

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I am often asked by my personal injury clients why they have to provide so much personal information to the defendant’s lawyers that appears to have little or no relevance to the injuries they suffered in their accident.

Income Records

When you file a claim for compensation for personal injuries, your entire life essentially becomes an open book. If you are looking for compensation for income loss that you say you suffered as a result of your injury, the defendant is entitled to details of all of your income records up to the time you were injured and since you were injured.

Past Medical History

If you are looking for compensation for pain and suffering as a result of your physical injury, the defendant is entitled to information about your medical history to see if there are any pre-existing illnesses or injuries that might impact on the injuries you claim to have suffered in your accident.

Pre-Existing Medical Conditions?

Your personal injury lawyer will want to know whether you have had any similar injuries in the past and so will the defendant’s lawyers. Any embarrassing medical conditions that you have can be handled in a respectful and professional manner. However, it is absolutely imperative that you are honest with your lawyer. You must let your lawyer know of any potential problems that you have had with medical issues in the past. That way, your lawyer can help develop a strategy to address the medical issues and ensure that you receive appropriate compensation.

How to Ruin Your Claim

There is nothing more damaging to a personal injury claim than for the defendant’s lawyers to find out that the plaintiff has lied about or concealed previous injuries or illnesses that have an impact on their compensation claim. Your right to receive full and fair compensation depends a great deal on your credibility. Anything that you do to damage your credibility also damages your ability to receive fair compensation for your injuries.

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It’s summer time here in Nova Scotia (although you couldn’t tell from the weather we’ve been having lately). Thousands of children across Nova Scotia are attending summer camp for the first time. The experience can be perhaps a little nerve racking. Then Mom and Dad get the call they have been dreading:

“Your daughter fell off the swings and broke her leg…”.

“Your son was hit in the head with a baseball and is unconscious…”

“Your child fell out of the boat during sailing lessons and almost drowned…”

What do you do? Who do you call?

Here is a list of the things you need to do right away:

1. Find out exactly where your child is now: You need to make sure that your child is receiving appropriate emergency medical care. Do not yell or get angry with any of the camp counselors who may have been responsible for supervising your child. This isn’t the time for threats or accusations just make sure your child is getting proper medical attention.

2. Find out what exactly happened from an adult who is in charge of supervising the camp. Make notes of all the details of the conversation, who you spoke to and the date and time that the conversation took place.

3. Tell the camp supervisor that you require that the accident be investigated immediately and that an incident report and witness statements be obtained right away.

4. If the camp is out of town, find out where your child is and if they have been admitted to the hospital. Make arrangements to get to the hospital as soon as possible.

5. Ask for the name of the doctor who is treating your child and call the hospital to confirm the information. Sometimes children may be transferred by ambulance to a rural hospital but, if their injuries are serious or life threatening, they may be transferred to a larger hospital or one theat specializes in children. You don’t want to be driving around on a wild goose chase trying to find your child at a time like this.

6. Once your child’s health has stabilized you can find out why the accident happened. Were the camp counselors properly supervising the children? In other words, could the accident have been prevented and if so how?

7. As parents we all know that accidents happen. However, sometimes accidents shouldn’t happen if the children were properly supervised or if a dangerous situation had been rectified. When an accident happens, you need to ask a lot of questions then you need to speak to a lawyer with experience in handling serious personal injury claims in order to protect your child’s rights.

Have a great, and safe, summer!

Microscopic Injuries

Mild traumatic brain injury is an injury to the tissues of the brain that happens at the microscopic level. Typically the axons of the brain are sheared or damaged so that they can no longer properly transmit impulses throughout the brain.

Common Diagnostic Tools

The most common diagnostic tool used to detect injury or damage to the soft tissues of the body is the CT scan. A CT scan, sometimes called a CAT scan, is a non-invasive scan that combines special x-ray equipment with computer technology to produce images of the inside of the body. The CT scan produces “slices” or cross sectional images of the area that is being scanned which can then be examined or interpreted on a computer monitor.

A magnetic resonance imaging (MRI) scan is a more sensitive test to detect damage or injury to the soft tissues of the body.

Detects Macroscopic Injuries

Unfortunately, both CT and MRI scans can only detect macroscopic injuries. In other words, injuries that can be seen by the naked eye.

What that means, is that the two most common diagnostic tools used by doctors to detect brain injury are not sensitive enough to actually detect the microscopic effects of mild traumatic brain injury!

In the textbook Neuropsychiatry of Traumatic Brain Injury, the authors state:

“Many patients with a history of “minor” brain injury will not have abnormalities on their MRI, yet can manifest clear evidence of functional impairment on neuropsychological measures.”

The authors of this textbook point to the old medical saying:

“Absence of proof is not proof of absence”.

In other words, just because you can’t see any evidence of brain injury on a CT scan or MRI scan, does not mean that the injury isn’t there.

I have had many clients whose mild traumatic brain injury were missed by emergency room personnel or their family doctors because a proper medical history wasn't taken or because they simply didn’t pay close enough attention to the symptoms of brain injury that their patient was exhibiting or complaining of during their examination.

In my view, the only way to conclusively rule out the possibility of a mild traumatic brain injury is through a comprehensive neuropsychological examination in order to determine whether or not the person is exhibiting any cognitive deficits which may have been caused by a traumatic brain injury.

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