Halifax Personal Injury Lawyer Blog

This week the province of Nova Scotia announced the annual increase to Nova Scotia's new “minor injury” cap on non-pecuniary damages in auto accidents.

In 2010 the province of Nova Scotia changed the legislation governing automobile accidents in Nova Scotia. The cap on payments for non-pecuniary damages (“pain and suffering”) for injuries that were deemed to be “minor” was increased from $2,500.00 to $7,500.00.

The new legislation required that the cap increase every year to account for the cost of living.

According to calculations released by the Department of Finance this week, the cap for compensation for non-pecuniary damages for “minor injuries” for 2012 is now $7,956.00.

That's Not All

It is important for Nova Scotia car accident victims to understand that the cap is not all the compensation that they are entitled to receive. I get many calls from people who have been injured in car crashes who are left with the impression after talking to insurance adjusters that the only thing they are entitled to receive is a maximum of $7,500.00 in compensation for their injuries.

As I have indicxated above, if the claim is capped, the maximum compensation is now $7,956.00 not $7,500.00.

Not All Claims Capped

There is a real question as to whether an accident victims claim will be capped at all. The new minor injury definition has a lower threshold for accoident victims to meet. In other words, an experienced Nova Scotia Car Accident Lawyer may be able to prove, based on the available medical evidence, that your claim for pain and suffering is NOT a minor injuriy and your compensation is NOT capped by the legislation.

Income Loss Not Capped

Another thing many Nova Scotia accident victims don't know and aren't told is that income loss claims are not capped by the minor injury legislation. So if you have suffered any loss of income, you are entitled to full recovery for that loss. That includes any income loss you may suffer in the future as a result of your injuries from the accident.

Expenses Not Capped

Out of pocket expenses incurred as a result of your injuries is another claim that you are entitled to be reimbursed for, in full. So if you have had expenses for housekeeping because you can't clean your house, babysitting while you attend medical appointments and so on, you are entitled to make a claim for those expenses. Advice from an experienced car accident lawyer in Nova Scotia will help you understand which expenses are recoverable and which are not.

Want More Information About Car Accident Claims in Nova Scotia?

I have been representing victims of serious personal injuries for more than 20 years. I wrote Crash Course:The Consumers Guide to Car Accident Claims in Nova Scotia to help educate car accident victims and their familes so they can have a better chance of receiving full and fair compensation.

The book is for sale on Amazon.com. All sale proceeds are donated to charity.

But if you live in Atlantic Canada you can get a copy of my book, at no charge, by contacting me through this blog (put "Crash Course" in the subject line) or call me toll free at 1-877-423-2050.

Today Graham Steele, the Minister responsible for Nova Scotia's Insurance Act announced new legislation to improve automobile insurance coverage in Nova Scotia. The Fair Automobile Insurance (2011) Act, will be introduced in the legislature today.

I was part of the Review Committe that provided advice to the province regarding what improvements needed to be made to Nova Scotia's Insurance system: McKiggan Appointed to Provincial Insurance Review Committee

Highlights of Changes

Overall the changes improve the insurance coverage avaialable to consumers in Nova Scotia.

Repair Claims Will Be Covered By Drivers Own Policy

Persons involved in a collision caused by another party can deal with their own insurance company to get repairs done or get compensation for property damage. This was change was implemented in order to simplify and speed up the process that car owners have to go through so that they can get their car back on the road as fast as possible.

No Claim - No Premium Increase

It has become commonplace for parties involved in an accident to pay for claims themselves rather than being hit with massive premium increases after an accident. Even if the accident wasn't there fault. The changes to the Insurance Act prevent auto insurers from increasing premiums for collisions where no claim was made and the driver paid for the damage, even if the driver was at fault.

Speed Access to Treatment

The legislation proposes to introduce treatment protocals that are designed to help injured victims get proper treatment faster.

Increase Medical Benefits

The legislation increases the minimum mandatory Section B Accident Benefits for things like medical and rehabilitation expenses, funeral costs, death benefits and income loss covereage for injured drives and passengers.

The changes increase the level of "no-fault" benefits to the same level as New Brunswick.

Optional "Full Tort" Coverage

The proposed legislation will allow drivers to buy optional (additional) insurance coverage that will give consumers the right to receive full compensation over and above Nova Scotia's New "Minor Injury" Cap (2010 to date)

Regular Review

Finally the legislation commits the province to conducting a review of automobile insurance laws in Nova Scotia every seven years.

Defective Products and Negligence

If a defective product is recalled does that prove that the product was negligently manufactured? That was one of the issues that Justice Murphy of the Nova Scotia Supreme Court had to decide in the recent case of Johansson et al v. General Motors of Canada Limited.

Driver Injured in Car Accident

The Plaintiff driver was seriously injured in a single vehicle accident when her car went off the road while she was trying to negotiate a left hand turn.

Several years after the accident the car she was driving, a Chevrolet Lumina, was recalled because of a defect in the pinion bearing in the power steering.

The case was set down for a trial before a jury. After the Plaintiff finished leading their evidence, the Defendants made a motion for non-suit. Essentially, the Defendants claimed that there was no evidence on which the jury could find that the Plaintiff’s Claim could succeed.

Defect Caused Crash

Justice Murphy found that the evidence of the product recall was prima facie evidence that the vehicle was defective. Justice Murphy also found that there was evidence that the defect had caused the accident.

Crash Caused Injuries

Finally, Justice Murphy concluded that the Plaintiff’s injuries were caused by the accident. Had the Plaintiff filed a claim in contract alleging that the Defendants had sold her a defective product then it appears that her claim would have been successful.

However, Justice Murphy noted that the Claim was pleaded in negligence.

In a negligence case the Plaintiff must prove that the Defendants breached the relevant standard of care. In other words, did the Defendant do something a reasonable person (or in this case a reasonable company) would not have done? Or did the company fail to do something a reasonable company would have done. In any negligence claim, the plaintiff bears the burden of proof.

Failed to Prove Standard

Justice Murphy found that a product recall does not, by itself, establish the applicable standard of care or that the standard was breached.

In commenting on the standard of proof for product liability claims, Justice Murphy stated:

“In the context of product liability, it is clear that the trial judge is responsible for informing the trier of fact that the applicable legal standard of care on the defendant was "to use reasonable care in the circumstances and nothing more" (Phillips at para. 49). In my view, it is irrelevant whether the translation or application of that standard to the facts is characterized during trial as a question of mixed fact and law or as a question of fact, because in either case, the responsibility for this translation falls on the trier of fact. The trial judge may instruct the trier of fact on the appropriate factors that may be considered—for example, the defendant's expertise, the riskiness of the product, the defendant's knowledge of that risk, industry standards, et cetera—but it is ultimately for the trier of fact to apply the standard of care in the circumstances and determine whether the defendant's conduct breached that standard. … In this case, the plaintiff presented no evidence addressing the standard industry practice of an automobile manufacturer, assembler or distributor with respect to parts supplied by other parties. Such evidence might include answers to the following questions: Is it industry practice for a manufacturer, assembler or distributor to test such parts? If so, what kind of testing is normally performed? Does the testing depend on the type of part and the level of risk posed by a failure of the part? Would a standard manufacturer, assembler or distributor be expected to discover an improperly crimped lower pinion bearing, such as the alleged defect in this case?”

What does it mean?

The plaintiff always has the burden of proving their claim at trial. So it goes without saying that the plaintiff (or their lawyer) must know exactly what facts they will need to prove to establish prove each element of the pleaded causes of action.

When filing a lawsuit involving a claim that a product is defective, it is important to examine all the facts to determine whether there are different types of claims that can be pleaded (for example breach of contract as well as negligence).

Just because a product has been recalled for safety reasons does not automatically mean that a person who has been injured by the product is entitled to compensation. Consumers should consult with a lawyer to learn what their rights are, whether they may be entitled to compensation, and what they need to prove in order to establish their right to be compensated.

Since 2003 Nova Scotia has had some form of a cap on the amount of compensation innocent accident victims are entitled to receive for their non-pecunaiary damages (what most people refer to as "pain and suffering"). For more information you can read:

Nova Scotia's Cap on Compensation for 'Minor Injuries' in Car Crashes (2003 - 2010)

Although the cap has been in place now for eight years there are few reported decisions where the courts have interpreted what the definitions in the legislation actually mean. As a result, there is still debate between lawyers and insurance adjusters and defence lawyers about what injuries are "capped".

Case in point. Today I received an email from Tom Stanley, a physiotherapist who has treated, and helped, a great many of my clients over the years. He was reading some of the information on my website that we provide to help educate the public about personal injury claims. He was reading our page about the latest changes to the minor injury compensation cap: Nova Scotia's New "Minor Injury" Cap (2010 - 2011)

I had indicated that some of the signs of a WAD 3 injury included tingling or numbness. Tom pointed out that, strictly speaking, tingling and numbness is actually a symptom, rather than a sign.

I have included Tom's helpful explantion of the difference between signs and symptoms below:

What is the difference between a sign and a symptom?

Essentially, a symptom is what the patient tells you that he or she is feeling. For example, back pain is symptom that a patient reports. Nobody can independently verify the presence of this pain, thus we look at this as a reported symptom.

A sign is an actual physical manifestation of an illness. For example, a high temperature, a lost reflex, an irregular heart rate, are all physical signs of potential illness. An examiner can assess and find these signs of illness.

Neurological symptoms include:

Reported feelings of numbness
Reported feelings of pins and needles (paraesthesia)
Reports of pain radiation, associated with paraesthesia

Neurological signs include:

Lost or reduced reflexes
Lost or reduced sensation feeling in a region (sensory impairment)
Lost or reduced movement (motor impairment)

I have corrected the information on our website. Thanks Tom!

Baby Dragged By Car

The Ottawa Citizen reported that a 6 month old boy suffered head injuries after being dragged 12 meters by the family car when it rolled backwards down their driveway after being knocked into gear by his 3 year old sister.

The infant's 14 year old sister was helping her mom get the family ready for a trip. The baby had been buckled into a car seat and the car seat was placed on the driveway beside the family car. The family’s 3 year old daughter was playing in the front seat of the car and managed to knock the car into gear. The car started rolling backwards and dragged the infant in his car seat for almost 12 meters. Media reports list the baby as being in stable but serious condition.

Unattended Children in Cars = Danger

This incident highlights all the many dangers that KidsandCars.org Canada have been trying to prevent. Leaving children unattended in a vehicle, even for a short period of time, can have unintended, and often tragic consequences.

And that’s why I have agreed to chair KidsandCars.org Canada! To help educate the public about the dangers automobiles can pose to our children and to lobby for better safety features in automotive vehicles.

Could it Happen to You?

Do you know if your car has the safety features that will prevent it from shifting into gear by mistake?

Here's how you can check to see if your vehicle can be shifted into gear accidentally. You want to make sure your vehicle has a “brake transmission shift interlock” (BTSI) that works in all shift positions.

6 Simple Steps:

1. Make sure your vehicle is parked on a flat surface;

2. Get in your car and put the emergency brake on;

3. Make sure no one is in front of or behind your vehicle;

4. Put the keys in the ignition in the off position;

5. Turn the key one click forward ;

6. Try to shift your vehicle into gear without putting your foot on the brake.

What Happened?

If your vehicle shifts into gear, then you do not have brake transmission shift interlock in that position. You should be aware that your vehicle can roll if it is accidently shifted into gear.

Try the same test in all key positions. If your vehicle shifts into gear without putting your foot on the brake, then your vehicle does not have BTSI at all!

Most vehicles manufactured today have BTSI in some positions but not all. The old saying goes, “an ounce of prevention is worth a pound of cure”. Simply knowing that your vehicle can accidently roll should make you more aware of the potential dangers to you and your children.

More Information

Formal Agreement Reached on Brake Transmission System Interlock

Automatic transmission cars can kill your child

"What Caused My Injury?"

A defendant is only responsible for compensating a plaintiff for injuries caused by the defendant’s negligent conduct. Proving what injuries were, or were not, caused by the defendant’s conduct is often the biggest battle in many personal injury trials. See for example, Causation in Personal Injury Claims.

There has been some legal debate as to how the Supreme Court of Canada’s decisions in Athey v Leonati and the more recent decision of Resurfice Corp v. Hanke relate to one another.

Clarification

Last week the British Columbia Court of Appeal released a decision that helps clarify the application of these two landmark decisions on the law of causation.

In Farrant v. Laktin the plaintiff was injured in a car collision in 2004. Mr. Farrant had pre-existing issues with spinal degeneration which were symptomatic at the time of the car crash. After the collision his symptoms deteriorated.

At trial, the court rejected the plaintiff’s arguments that his ongoing pain was due to the car crash. However, the British Columbia Court of Appeal found that the trial judge did not apply the proper legal test for causation and ordered a new trial.

The Court of Appeal provided the following summary of the law of causation which is helpful reading for any personal injury lawyer (or plaintiff with a pre-existing condition or injury):

[8] To justify compensation for his disabling pain, the plaintiff must establish a causal connection between the defendant’s negligence and that pain.

[9] The general test for causation, established in Athey v. Leonati, [1996] 3 S.C.R. 458 at paras. 13-17, is the “but for” test: “but for” the accident, would the plaintiff have suffered the disabling pain? In Athey, the Court also stated that a plaintiff need not establish that the defendant’s negligence was the sole cause of the injury. If there are other potential non-tortious causes, such as the plaintiff’s spinal degeneration in this case, the defendant will still be found liable if the plaintiff can prove the accident caused or materially contributed to the disabling pain, beyond the de minimus range.

[10] In Resurfice Corp. v. Hanke, 2007 SCC 7, 1 S.C.R. 333, the Supreme Court affirmed the “but for” test remains the basic test for determining causation, but developed the concept of “material contribution” in a different manner than that used in Athey, formulating a “material contribution” test as an exception to the “but for” test, a matter that is not relevant to this appeal. The Court replaced the Athey definition of “material contribution” to the plaintiff’s injury with the concept of “a substantial connection” between the injury and the defendant’s conduct. These developments were usefully summarized by Mr. Justice Smith, writing for the majority, in Sam v. Wilson, 2007 BCCA 622 at para. 109:

“Material contribution”, as that phrase was used in Athey v. Leonati, is synonymous with “substantial connection”, as that phrase was used by McLachlin C.J.C. above in Resurfice Corp. v. Hanke. This causal yardstick should not be confused with the “material contribution test”. As McLachlin C.J.C. explained in Resurfice Corp. v. Hanke, at paras. 24 - 29, the “material contribution test” applies as an exception to the “but for” test of causation when it is impossible for the plaintiff to prove that the defendant’s negligent conduct caused the plaintiff’s injury using the “but for” test, where it is clear that the defendant breached a duty of care owed the plaintiff thereby exposing the plaintiff to an unreasonable risk of injury, and where the plaintiff’s injury falls within the ambit of the risk. …

[11] Thus, in applying the “but for” test, the trial judge was required to consider not just whether the defendant’s conduct was the sole cause of the plaintiff’s disabling pain, but also whether the plaintiff had established a substantial connection between the accident and that pain, beyond the de minimus level.

Want More Information?

I have been representing victims of serious personal injuries for more than 20 years. I wrote Crash Course:The Consumers Guide to Car Accident Claims in Nova Scotia to help educate car accident victims and their familes so they have a better chance of receiving full and fair compensation.

The book is for sale on Amazon.

But if you live in Atlantic Canada you can get a copy of my book, at no charge, by contacting me through this blog (put "Crash Course" in the subject line) or by calling me toll free at 1-877-423-2050.

"Are Whiplash Claims Capped?"

Recent changes to Nova Scotia's so-called "minor injury" compensation cap rate the injury using what is known as the Whiplash Associated Disorder (WAD) Scale. Compensation for non-pecuniary damages for WAD 0, WAD 1 and WAD 2 injuries are "capped" at $7,500.00.

But compensation for more severe forms of whiplash WAD 3 and WAD 4 injuries are not subject to the "minor injury" cap.

Recently I was doing some research regarding the injuries suffered by one of my clients and I found an article that I though was worth passing on.

I prefer to use the more accurate term aceleration-decelaration injury when talking about the type of neck injuries people commonly suffer in accidents. But since the minor injury cap legislation uses the term whiplash, I will use it in this article.

Risk Factors for Whiplash

For years personal injury lawyers have known that there are certain factors that increase the risk of injury after a rear end car crash. For example, studies have shown that women are more likely to be injured than men, and poorly adjusted head rests can also contribute to neck injury.

Significant Risk

But the one factor that I see time and time again that appears to increase the risk of injury is when the injured person has their head turned to one side; for example to look for traffic or to talk to a passenger.

See for example King v. Horth where the injured driver suffered a whiplash injury.

The judge in that case commented on the evidence of Mr. King's chiropractor:

Dr. Parenteau also concluded that Mr. King’s injuries were complicated by the fact that he had his head turned to the right when he was struck. The doctor also says that the accident contributed to the occurrence of Mr. King’s complaints of numbness in both hands.

New Evidence of Causation in Whiplash Cases

A study published in The Spine Journal the journal of the North American Spine Society confirms the anecdotal evidence that I have seen over the years.

According to the study, people with head turned during a rear-end collision are significantly more likely to develop chronic symptoms:

…a study of 80 patients with whiplash showed that rotated head posture caused significantly higher neck pain intensity, reduced function in daily activities, prolonged incapacity, and reduced neck mobility, as compared with those facing forward.

The researchers used six cadaver spines in their tests. Each spinal column was twisted to the left, the same way it would be if a driver's head was turned to look for traffic. Each spinal column was then subjected to forces designed to simulate low speed collisions of 3.5, 5, 6.5 and 8 gees.

The study found that the rotated position of the head caused a dramatic increase in the risk of injury to the ligaments ion the neck.

At 3.5 gees the risk of injury increased by 50%. At 5 gees the risk of injury was almost 100% and at 6.5 gees the risk of injury was almost 125%. In other words an injury to the neck was certain.

The authors discussed the clinical significance of their findings:

“Thus, these data indicate that occupants involved in rear impacts are at increased risk for severe injury, primarily at C5–C6, when the head is turned as compared to head-forward at the time of impact. The extension injuries due to head-forward rear impact suggest the onset of sub failure injury to the anterior longitudinal ligament and anterior annular fibers, and associated facet joint impingement, while the flexion loading during frontal impact may injure supraspinous and interspinous ligaments and ligamentum flavum. In contrast, head-turned rear impact may cause lateral annular fiber and capsular ligament injuries, in addition to the head-forward rear impact injuries. The present finding may provide valuable information to the clinician for diagnosing whiplash-type injuries based on the specific impact configuration.”

Mechanism of Injury Critical

This study demionstartes why it is critical for personal injury lawyers and medical professionals to take a detailed history of how the accident happened and exactly how the injured person's body was postioned in the car at the time of impact.

As this study clearly demonstrates; just turning your head can make the difference between no injuries and chronic long term pain.

More Information

Spinal Cord Injury Claims

How Neck Ligaments Are Injured In A Car Crash

Continue reading "Turning Your Head Increases Risk of Whiplash Injury" »

I noticed this report today and I thought I would pass it along.

New Brunswick's Insurance Board is holding hearings investigating whether Pembridge Insurance - owned by All State Insurance, has overcharged consumers.

Paula Elliot, an actuary hired by the province to review rates charged by the insurance company, suggested Pembridge made enormous profits in New Brunswick between 2004 and 2008 and would make too much again last year unless its rates are reduced by at least 3.6 per cent and a rebate offered on the difference.

Michael Hines, a lawyer with the Department of the Attorney General, argued that Pembridge overcharged New Brunswick consumers last year by overstating expenses and understating income in filings with the board.

It is no surprise that Pembridge executives deny that they have done anything wrong.

What do you think? Are consumers in N.B. (or anywhere else) being overcharged by insurance companies?

More Information:

2nd auto insurance company accused of overcharging

Public Hearings on New Brunswick's Minor Injury Cap

New Brunswick Consumers For Insurance Fairness

The Department of Transportation has announced plans to introduce legislation this fall to reduce speed limits in school zones from 50 km/h to 30 km/h.

The goal of the new limits is to protect students and make roads safer.

Bill Estabrooks, Minister of Transportation and Infrastructure Renewal stated:

"As a former teacher and principal, I know first hand that road safety is not always at the top of a student's mind...This reduction in speed could give a driver the extra split second needed to save a life."

Alberta, British Columbia, and New Brunswick already have a 30 km/h limit in school zones as do many U.S. states.

Three years ago I posted Slow Down and Save a Childs Life! where I called for a reduction in the speed limit in school zones. As a personal injury lawyer I have represented many injured children who have suffered serious injuries as a result of car - pedestrian accidents. I congratulate the government on this move to help improve child safety in our province.

"Speed matters," said Pamela Fuselli, executive director at Safe Kids Canada. "It's estimated that a pedestrian struck by a car travelling at 50 kilometres an hour is eight times more likely to be killed than someone hit at 30 kilometres an hour."

A press relase from the Department of Transportation indicates the legislation is expected to be ready this fall.

I was driving to work this morning and some lady talking on her cell phone almost sideswiped me when she swerved into my lane of traffic. She wasn't holding the cell phone. She was using a headset. But she didn't have a clue about the rush hour traffic that was surrounding her.

Hand Held Cell Phone Ban
It has now been three years since Nova Scotia introduced its law requiring drivers to use hands free cell phones.

However, recent research suggests that the use of hands free cell phones does not reduce the risk associated with cell phones and traffic safety.

The debate about cell phone use while driving basically boils down into two groups. Those who support a partial ban which prohibits the use of hand held cell phones while driving (the Nova Scotia solution) and those jurisdictions that require a total ban on the use of hand held and hands free cell phones while driving.

Cognitive Distraction

The debate revolves around a principle known and “cognitive distraction”. In 2006 psychologists at the University of Utah published a study showing that drivers talking on hand held or hands free cell phones showed the same level of impairment as drunk drivers.

The National Highway Traffic Safety Administration has published studies indicating that whether a driver uses a hand held or hands free phone the level of cognitive distraction is enough to significantly impair a driver’s performance.

The National Safety Council has published a report entitled “Understanding the Distracted Brain…Why Driving While Using Hands Free Cell Phones is Risky Behavior”. According to the report drivers using hands free cell phones have a tendency to “look at” but not “see” objects. The report estimates that drivers using hands free cell phones fail to see up to 50% of the information in their driving environment.

It's pretty clear that the lady that almost crashed into me today didn't "see" the 1627 kilograms of metal that was driving beside her. I think my car's horn interrupted her conversation because she gave me a nasty look.

Drive safe everyone.

Further Resources

Experimental Studies of Driver Cognitive Distraction Caused by Cell Phone Use

Driven to Distraction : FAQ

Understanding Cognitive Distraction - Distracted Driving FAQ: Video

Continue reading "Nova Scotia Car Accident Claims - Hands Free Cell Phones Don’t Reduce Traffic Risks " »

Defendants are becoming more and more aggressive about trying to get information from social media sites like Facebook.

In what has to be one of the most egregious invasions of privacy that I have ever seen, an insurance company in New Brunswick made an ex parte (secret) application to court requesting a judge to order a plaintiff to turn over copies of all the information contained on her social networking sites like Facebook, LinkedIn, Twitter and My Space.

The most unbelievable part of the decision is that the plaintiff’s lawyer was ordered by the judge to take part in the deception.

Trust

One of the foundations of our entire legal system is the relationship of trust and full disclosure that must exist between a client and his or her solicitor (lawyer).

Lawyers and clients have to be able to communicate truthfully and openly. Clients must be able to rely upon the lawyers advice

Consider the damage that would be caused to the solicitor-client relationship if courts are able to order plaintiff’s lawyers to deceive or mislead their clients.

But that is just what happened in Sparks v. Dubé. The court considered the trust relationship that exists between solicitors and their clients. However, ultimately the court decided that the defendant’s right to full disclosure outweighed the trust relationship between solicitor and client.

Plaintiff Appealed

Counsel for the plaintiff appealed the judge's decision. Unfortunately, the insurance company settled the plaintiff's case shortly before the appeal was scheduled to be heard by the New Brunswick Court of Appeal. Perhaps the insurance company was worried about what the Court of Appeal might have to say about the insurers interference in the plaintiff's solicitor client relationship?

Facebookers Beware

I have said it before and I will say it again. Anything that you post to the Internet can, and possibly will, be used against you in future litigation.

If you are engaged in litigation or considering filing any kind of compensation claim, you would be well advised to consider what information is floating around the Internet that might damage your claim.

What Do You Think?

If you post information to a social media site should defendants have access to the information? Is anything you post to Facebook "fair ball" in litigation or are there some things that should just be kept "between friends"?

The $2,500.00 cap on so called “minor injuries” that was introduced in Nova Scotia in 2003 is still having ramifications to innocent victims 7 years later.

The recent decision of Awalt v. Blanchard is a case in point.

Linda Awalt is a 52 year old personal care worker who was injured in a car accident in September 2004.

Mr. Awalt claimed that, as a result of her injuries from the accident, she suffered a tear to the rotator cuff in her left shoulder. She required surgery to repair the injury which prevented her from being able to work for 9 months after her shoulder surgery.

The defendants claimed that the impact of the collision was insignificant and not severe enough to have caused the rotator cuff injury to Ms. Awalt’s shoulder.

In his reasons, Justice Coady stated at paragraph 68:

"I have carefully reviewed all the evidence of the 2004 accident and the events that followed. When Mr. Blanchards truck entered the intersection Ms. Awalt followed and stopped. He turned left and she started to follow him. He suddenly stopped and backed up into her vehicle. The evidence clearly establishes that Ms. Awalt was moving slowly (10km) when contact occurred. While the speed of the truck is not in evidence, I have concluded that its speed was relatively slow. The damage to Ms. Awalt’s vehicle was minimal. The truck had only limited space to pick up speed. Ms. Awalt’s vehicle was pushed back one car length. At no time was Ms. Awalt subjected to a forceful or jarring impact with the interior of her vehicle. In making these remarks I am well aware that serious injuries can result from low speed collisions."

Justice Coady went on to determine that Ms. Awalt did indeed suffer "whiplash" injuries in the car acident. But the injuries were not serious enough to get over the "minor injury" threshold.

Justice Coady concluded that:

“Ms. Awalt’s whiplash injury is caught by the minor injury regulations which were enforced on September 20, 2004.”

As a result, Justice Coady concluded that the plaintiff’s injuries caused by the accident were minor and that her award for compensation for non-pecuniary damages (pain and suffering) should be capped at $2,500.00.

MIST Defence

What Ms. Awalt ran up against is what is commonly referred to as the “Minor Injury Soft Tissue” (MIST) defence.

Essentially the defence argues that the impact of the motor vehicle collision was so insignificant that the forces involved could not have possibly caused the injuries suffered by the plaintiff. Some jurisdictions also refer to this as the “no crash, no cash” defence.

How to Prove MIST Claims

In light of Justice Coady’s decision I think it might be useful to provide some comments on how to deal with MIST cases:

Know the scientific and medical literature: Insurance companies will argue that the force of the impact was not sufficient to have caused the type of injury that the plaintiff suffered. We need to be familiar with the medical literature and scientific literature that has conclusively established that even comparatively insignificant collisions can cause serious lasting and significant injuries.

Inspect the Vehicles: An insurance company’s estimate of the physical damages may not be an accurate estimate of the true force involved in the collision because of “hidden damage”. (In other words, damages to the vehicle that cannot be seen without the car being pulled apart, the bumper being taken off etc.)

Sometimes insurance estimates are low because the plaintiff was driving an older car that is a total loss. Make sure the client gets an independent estimate from a body shop to confirm that you have an accurate picture of the full extent of the damages to the vehicle.

Talk to the Family Doctor: In MIST cases the treating physician, usually the family doctor, is going to be the most important witness. The doctor needs to know what type of defence the insurance company is going to raise and the types of arguments that are going to be made to limit the injured victim's compensation.

Family doctors are all extremely busy but it is worth while paying the doctor for an appointment to discuss the client’s claim and to specifically educate the doctor about the minor injury legislation and the threshold that the plaintiff is going to need to meet in order to receive full and fair compensation.

Further Resources:
Common errors in determining impact speed and occupant injury propensity.

Settling and Trying MIST Cases

Continue reading "Accident Victim’s Claim Capped by Nova Scotia's “Minor Injury” Law - Awalt v. Blanchard" »

Expert evidence forms the core of any personal injury claim. In almost every personal injury case the plaintiff must provide scientific evidence, usually if the form of testimony from teatingg doctors and other health care providers about issues surrounding causation of the plaintiff’s injuries.

Personal injury claims often boil don to a so-called "battle of the experts" and the judge or jury is forced to decide which evidence they feel is more reliable or reasonable.

Interpreting Scientific Evidence Challenging

Recently Justice Thomas Cromwell of the Supreme Court of Canada delivered the Macfadyen Lecture on “The Challenges of Scientific Evidence”.

One of the topics Justice Cromwell discussed was the role of the trial judge as a “gate keeper” to ensure the accuracy of the expert evidence presented to the court.

Justice Cromwell specifically expressed concern about the lack of expert impartiality.

“One area of concern has been the lack of objectivity and independence of experts. For example, the Goudge Report noted that Dr. Smith failed to understand his duty of impartiality. He testified that he has received no training or instruction in this regard. Indeed he thought his role was to advocate for the Crown and to “make a case look good”.”

Defence Medical Exams: Hired Guns?

Justice Cromwell’s concerns are well founded. Our court rules allows for so-called "Independent Medical Examinations". Any time a plaintiff puts his or her physical well being at issue, the defendant is entitled to require the plaintiff to be examined by a medical expert (or experts) of the defendant’s choice.

I prefer to call these exams Defence Medical Examinations. While these defence experts are supposed to be impartial, it is clear that some defence experts see it as their job to minimize a plaintiff’s claim.

Case in point is the recent decision of Leslie v. S & B Apartment Holding Limited.

In that case, the plaintiffs suffered serious burns after a fire in their apartment building. They claimed the landlord was negligent in not having appropriate smoke detection and alarm systems in place in the building. The plaintiffs claimed to have suffered from post traumatic stress as a result of their injuries.

The defendant hired a psychiatrist by the name of Dr. Ruben who disputed that the plaintiffs suffered from post traumatic stress disorder as a result of the fire.

The plaintiffs’ treating psychiatrist used criteria established by the American Psychiatric Association documented in the Diagnostic and Statistical Manual of Mental Disorders (DSM).

Defence Expert Makes Up His Own Tests

On the other hand, the defendant’s expert, Dr. Ruben, testified that he did not use the DSM criteria. He testified that he made up his own tests to determine Global Assessment of Functioning when diagnosing patients.

Justice Scaravelli pointed out his concerns with the defence expert’s approach when he stated at paragraph 91 of his decision:

“I find that Ms. Leslie’s preexisting psychological condition was exacerbated by the accident and that she subsequently developed PTSD. As treating psychiatrist, I accept Dr. Fraser’s evidence that Ms. Leslie’s condition was improving prior to the fire. This was the result of prescribed medications and lifestyle changes on her part. In diagnosing PTSD, Dr. Fraser’s GAF score was based on DSM criteria adopted by the American Psychiatric Association. In doing so Dr. Fraser identified symptoms that arose post fire. On the other hand there is no evidence that Dr. Ruben’s own method of determining GAF has been tested or accepted in the field of psychiatry.”

It is reassuring to see the court protecting the interest of plaintiffs and rejecting the evidence of defence experts who simply make up their own tests in order to justify an opinion that is clearly not impartial.

Free Report

I have prepared a report that I provide to all my clients who have to undergo a Defence medical Exam to help them prepare. It's called "Ten Tips to Surviving Your Defence Medical Exam". If you would like a copy, contact me and I will email it to you free of charge.

Car accidents are the leading cause of death for children age 4 and up. Child car seats have been shown to lower the chances of death in a car accident by 28 per cent compared with seatbelts. They have also been found to reduce the severity of car crash injuries.

Most child car seat manufactures recommend that children stay in rear facing seats until they are 1 year old or 9 kilos as a guideline, before being placed in forward facing seats.

Rear Facing Seats Safer
But after reviewing data from injuries due to car crashes over several years that shows that children in rear-facing car seats are more likely to surivive, the American Academy of Pediatrics and U.S. traffic safety officials have teamed up to release new guidelines that recommend toddlers should sit in rear-facing car seats until age two. If a child under the age of two outgrows the weight limits for their infant car seat, they should be moved to a rear-facing convertible car seat and kept in that position until age two.

The U.S. National Highway Traffic Safety Administration has issued similar recommendations.

Canadian Guidelines Not Clear

In Canada the Canadian Paediatric Society's Injury Prevention Committee Guidelines recommend that parents should only move their children into the next phase of car seat when a car seat's weight or height limits have been exceeded.

"Parents should be encouraged to continue to use a rear-facing seat as long as the height and weight limitations allow..."

Unfortunately this "encouragement" doesn't really provide parents with clear directions as to the safest choice for their child's safety.

Dr. Claude Cyr a member of the CPS committee told CTV News that the re-wording of the AAP guidelines could compel a review of the Canadian guidelines to see if they could be made clearer.

Further Reading:

Car Seat Recall a Reminder to Parents About Possible Dangers to Children

Nova Scotia has had a mandatory helmet law for motorcycles (and bicycles) for many years. But there are some jurisdictions in the United States (Florida and Texas for example) where motorcycle helmets are not required.

There are "mountains" of studies that prove that helmets reduce the risk of death and brain injury after a motorcycle accident. But opponents to mandatory helmet laws have claimed for some time that helmets increase the risk of spinal injury because of the torsion laced on the neck by a heavy helmet.

But a recent research study published in the Journal of the American College of Surgeons, shows that helmeted riders were 22 percent less likely to suffer cervical spine injury than those without helmets. The study reviewed and mined the National Trauma Databank, looking through information on more than 40,000 motorcycle collisions between 2002 and 2006.

Hopefully this study will finally put this silly argument to rest. There is no legitimate reason not to wear a motorcycle helmet.

The "wind in my hair" advocates claim they are the only ones at risk if they chose not to wear a helmet. But every single one of us has to bear the medical and healthcare costs that serious brain injuries and spinal cord injuries place on our already overburdened health care system.

What do you think?

Pre-Existing Injuries

It is rare that a person injured in a car accident, medical malpractice claim, or some other accident doesn't have some pre-existing health problems or conditions that may - or may not - play a part in the injuries that are the subject of litigation.

What Caused the Injuries?

A defendant will not be found liable (responsible) for a plaintiff's injuries unless the plaintiff can prove that the defendant actually caused an injury to the plaintiff.

So defendant lawyers spend a great deal of time investigating whether the plaintiff ever had any pre-existing injuries or health problems that may be the cause of the plaintiff's injuries.

"But For" Rule

The Supreme Court of Canada, in a case called Resurfice Corp. V. Hanke ruled that the appropriate test for the court to use when determining causation is the "but for" test. In other words, "but for" the defendants actions, would the plaintiff have been injured.

Like many rules, a number of exceptions have developed as various courts have considered the myriad different circumstances that can arise in complicated personal injury claims.

Justice Coady of the Supreme Court of Nova Scotia recently provided some clarity in his reasoning in Kremer v. Walker.

In his decision Justice Coady stated:

CAUSATION:

[22] The issue of causation in this action is complicated by a number of factors. Those factors include (1) various ongoing health problems, (2) pre-existing injuries from the 1990 truck accident, (3) the effects of long term obesity on Mr. Kremer’s body, (4) the second motor vehicle accident in 2007 and (5) the lack of professional medical evidence and (6) Mr. Kremer’s credibility.

[23] It is well established that a plaintiff bears the burden of establishing causation. In this case Mr. Kremer must satisfy the court that the July 21, 2007-accident caused injury. He must do so on a balance of probabilities.

[24] In Resurfice Corp. V. Hanke, 2007 SCC 7 (CanLII), 2007 SCC 7 the Supreme Court of Canada ruled that the “but for” test is the appropriate test for causation. McLaughlin, J. stated at paragraphs 20 through 25:

20 Much judicial and academic ink has been spilled over the proper test for causation in cases of negligence. It is neither necessary nor helpful to catalogue the various debates. It suffices at this juncture to simply assert the general principles that emerge from the cases.

21 First, the basic test for determining causation remains the “but for” test. This applies to multi-cause injuries. The plaintiff bears the burden of showing that “but for” the negligent act or omission of each defendant, the injury would not have occurred. Having done this, contributory negligence may be apportioned, as permitted by statute.

22 This fundamental rule has never been displaced and remains the primary test for causation in negligence actions. As stated in Athey v. Leonati, at para.14, per Major J., “[t]he general, but not conclusive, test for causation is the ‘but for’ test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant.” Similarly, as I noted in Blackwater v. Plint, at para.78, “[t]he rules of causation consider generally whether ‘but for’ the defendant’s acts, the plaintiff’s damages would have been incurred on a balance of probabilities.”

23 The “but for” test recognizes that compensation for negligent conduct should only be made “where a substantial connection between the injury and the defendant’s conduct” is present. It ensures that a defendant will not be held liable for the plaintiff’s injuries where they “may very well be due to factors unconnected to the defendant and not the fault of anyone”: Snell v. Farrell, at p.327, per Sopinka J.

24 However, in special circumstances, the law has recognized exceptions to the basic “but for” test, and applied a “material contribution” test. Broadly speaking, the cases in which the “material contribution” test is properly applied involve two requirements.

25 First, it must be impossible for the plaintiff to prove that the defendant’s negligence caused the plaintiff’s injury using the “but for” test. The impossibility must be due to factors that are outside of the plaintiff’s control; for example, current limits of scientific knowledge. Second, it must be clear that the defendant breached a duty of care owed to the plaintiff, thereby exposing the plaintiff to unreasonable risk of injury, and the plaintiff must have suffered that form of injury. In other words, the plaintiff’s injury must fall within the ambit of the risk created by the defendant’s breach. In those exceptional cases where these two requirements are satisfied, liability may be imposed, even though the “but for” test is not satisfied, because it would offend basic notions of fairness and justice to deny liability by applying a “but for” approach.

I agree with the Court of Appeal that the trial judge applied the wrong legal test for causation. When he wrote his reasons in 2004, the trial judge did not have the advantage of this court’s judgment in Resurfice Corp. v. Hanke, 2007 SCC 7 (CanLII), 2007 SCC 7. That decision clarified the law of causation, holding that absent special circumstances, the plaintiff must establish on the balance of probabilities that the injury would not have occurred but for the negligence of the defendant: Hanke, at paras. 21-22; Athey v. Leonati, 1996 CanLII 183 (S.C.C.), [1996] 3 S.C.R. 458 at para.14.

The appellants submit in the alternative that this case falls into the class of exceptional situations discussed in Hanke in which the test for causation should be relaxed to the “material contribution” standard. I cannot accept this submission. As Hanke made clear, the sorts of special situations for which the material contribution test is reserved generally have two characteristics. First, it is impossible for the plaintiff to prove that the defendant’s negligence caused the injury under the “but for” test, and second, it is clear that the defendant breached a duty of care owed to the plaintiff and thereby exposed the plaintiff to an unreasonable risk of injury of the type which the plaintiff ultimately suffered: Hanke, at para. 25.

Nova Scotia's NDP Government has acted on one of its campaign promises to ensure that the Province’s Insurance Act is updated.

Graham Steele, Minister responsible for the Insurance Act, has announced that former Deputy Minister Ron L’Esperance will chair a committee that will examine six areas relating to automobile insurance and recommend changes:

Section B Benefits

This covers reimbursement for medical expenses incurred for necessary treatment and indemnity for income loss suffered when injured persons are unable to work;

Treatment Protocols

In some provinces in Canada there is a defined plan of treatment for persons who have suffered so called soft tissue injuries.

Creation of a “full tort” Insurance Product

This means the possibility of being able to buy additional insurance coverage that would allow a person to have the right to fully recover for their injuries instead of being limited by the $7500.00 “minor injury” insurance cap.

Coverage and Premiums for Young or Inexperienced Drivers

Insurance Coverage for Volunteer Firefighters

Vicarious Liability for Vehicle Leasing Companies

Currently insurance companies for car rental agencies are held responsible for paying benefits when a person who rents one of their vehicles is involved in car accident

Asked to Sit on Review Committee

I have been asked, as President of the Atlantic Provinces Trial Lawyers Association, to volunteer to sit on the review committee that will be conducting the review of the Insurance Act.

Changes Long Overdue

There is no doubt that the Insurance Act in Nova Scotia is long over due for changes. The last time the Insurance Act saw a major overhaul was in 1974.

Poverty Level Payments

The maximum income loss benefits currently paid to people who have been injured in a car accident borders on the poverty line. The maximum benefit that someone injured in a car accident is entitled to receive from their own insurance company is $140 per week.

Medical Coverage Inadequate

Similarly, the amount of coverage for medical and rehabilitation expenses is woefully inadequate. The current cap is $25,000.00. If you are catastrophically injured and require 24 hour care this fund can easily be exhausted within a year.

Fast Answers

The NDP government is looking for a final report by the end of May, 2011. The committee will have a lot of work to do between now and then.

If you have any suggestions as to how Nova Scotia’s Insurance Act should be changed or updated, please leave a comment or feel free to contact me directly.

Last week I posted about how many drivers are not aware of the dangers posed by their car's rear blind spot. Yesterday I asked under what circumstances a persons driving privileges should be restricted.

Today I want to talk about another driver safety issue that is just starting to come to the public's attention. But it is an issue that is going to become more important in the near future. I also want to provide some information that may help improve the safety of our roads and highways.

Why Do I Care?

I represent the family of a young boy who suffered a serious brain injury as a result of a car crash. The driver that injured him, a senior citizen, backed out of her parking spot, accelerated backwards and crushed the child between two cars. The elderly driver had no explanation for how the crash happened.

In the twenty years that I have been representing accident victims I have heard similar stories time and time again.

Number of Elderly Drivers Increasing

There are nearly 3 million elderly drivers in Canada. But as baby boomers get older this figure will increase to more than 6 million within 25 years. According to the Canadian Medical Association Journal by the year 2025 1 in 4 Canadians will be 65 or older.

Drives age 65 or older account for the highest number of fatalities by age group.

Safe to Drive?

The Canadian Medical Association is calling for a simple test to help determine when a senior citizen is safe to drive. Provincial laws place an obligation on doctors to notify authorities if they suspect their patients are not safe to drive.

No Standards in Place

There is no set age that determines when a person should stop driving. However, in 2009 the Canadian Association of Occupational Therapists launched a research program to study driver safety for senior citizens.

Their research indicates that older drivers can be re-trained to improve their response times, increase their flexibility to allow them to do shoulder checks and check behind them and to improve their visual search abilities so they can be more aware of road hazards.

A Few Simple Questions

The Association’s website offers simple questions that senior citizens (or their family members)can ask which may indicate that the driver should be tested.

The questions include:

1. Have you noticed a change in your driving skills?
2. Do other drivers frequently honk their horn at you or show signs of irritation?
3. Have you lost confidence in your driving ability?
4. Have friends or family refused to drive with you?

No Call To Remove Driving Privileges

Surveys show that the majority of Canadians do not want to see elderly drivers stripped of their driving privileges. There is no question that many seniors are safe and capable drivers. My great uncle was driving safely when he was 90 years old!

Drivers Need to Take Personal Responsibility

But ever individual is different and each person has to be aware of how their own driving abilities may have deteriorated and the risks that this poses to themselves and other drivers and pedestrians.

What's The Answer?

So what do you think? Is the answer mandatory driver testing after a certain age? Increased public education?

More Information:

Traffic Injury Research Foundation

Senior Driver Safety Tips

Continue reading "Elderly Drivers: How old is too old?" »

Everyone who has learned to drive knows that all vehicles have “blind spots” in the back, sides and corners where the vehicles rear view or side view mirrors don’t provide adequate visibility.

Children Injured Every Day

Everyday, young children are injured when they are backed over by a motor vehicle. More than 70% of children injured in “backing up” accidents are hit by a driver who’s related to them, usually their parent.

Young children are particularly at risk. Toddlers up to 2 years of age represent 70% of all backing up victims. Young children simply don’t understand the danger posed by moving vehicles.

Blind Spot Increases with Vehicle Size

As the popularity of passenger vans, SUVs and pickup trucks has grown in North America, vehicles have gotten longer, higher and larger and the blind spots for these vehicles have gotten bigger.

Drivers are often to blame because they don’t understand, or underestimate, the risk presented by blind spots.

Edmunds.com conducted tests that showed for the average driver in a sedan the blind spot extends up to 10 feet behind the vehicle. For SUVs the blind spot is more than 20 feet and for a pickup truck is more than 30 feet! The shorter the driver is the larger the blind spot.

Completely Preventable

Fortunately, backings up accidents are preventable. Newer vehicles can be purchased with video cameras or rear sensor systems. After market products can be purchased so that older vehicles can have these systems installed.

Safety Doesn’t Have to Cost

Drivers don’t have to spend money to protect the safety of their children. There are a number of simple things that drivers can do to reduce the risk of backing up accidents.

Here is a list of safety tips to prevent or reduce backing up accidents. Although some of the tips may seem like common sense, as the old saying goes: “common sense is not all that common”.

1. Take a look behind your car before backing up.

2. Be aware of where your children are!

3. Tell children to move away from your vehicle before you move it.

4. Teach them! Teach your children that parked vehicles can move suddenly. Tell them that even though they can see the car, the driver may not be able to see them.

5. Know that steep hills and larger vehicles increase the size of the blind spot behind the vehicle.

6. Keep bicycles, toys and sports equipment out of your driveway.

7. Most Important. Pay attention!

Perhaps the biggest myth of brain injury is that mild traumatic brain injuries are not disabling.

They Look Okay

Since persons with traumatic brain injuries do not look obviously injured and many can function reasonable well in society, there is a common misperception that a traumatic brain injury is not as disabling as more obvious physical injuries.

But They're Not Okay

However, the National Institute of Health concluded that the consequences of traumatic brain injury can include a dramatic change in the patient’s life course, profound disruption of the family, enormous loss of income or earning potential and significant expenses over a life time.

Consequences Can be Devastating

The social consequences of mild, moderate and sever brain injury are significant and serious and include increased risk of suicide, divorce, chronic unemployment, economic strain and substance abuse.

Continue reading "Brain Injury Myth: Mild Traumatic Brain Injury is not Disabling" »

This week Evenflo, one of the largest manufactures of infant car and booster seats, announced it is recalling more than 18,000 child car seats in Canada and the U.S. after Consumer Reports crash-tested the seat and found that it can crack and fail in a simulated 48 km/h frontal collision.

The recall affects the Evenflo Maestro Combination Booster Seat. Canadians who own the seats should call 1-800-265-0749 for more information.

The news made me think of some of the claims I have had in the past where children were injured in car accidents even though they were secured in car seats. The fact is that many parents are not aware of some of the issues that need to be considered when buying and using infant car seats.

Transport Canada statistics show that as many as 30% of children are not properly restrained in vehicles (either in a car seat or with a seat belt).

Car Seats Mandatory

Every province in Canada has laws requiring children to be placed in proper car safety seats or booster seats.

Unfortunately, every year infants, toddles and young children are injured because the seats have not been properly installed or are not used.

Selecting a Child Safety Seat

Canada has standards for child safety seats that are published by the Canadian Standards Association (CSA). The proper seat for your child will depend on his or her size (which is usually estimated by age). Safety seats usually have a sticker on the side of the seat indicating the proper age range for children that can safely use the seat.

Which Seat is Right for Your Child?

There are four main types of child car seats and each has certain risks and benefits.

Rear Facing Seats

Infants up to 20 pounds should be placed in a rear facing seat. These types of seats provide maximum support and protection for an infant’s body.

However, in order to be properly installed the seat must be placed at the proper angle. Newer infant car seats come equipped with special indicators that allow parents to adjust the angle of the car seat.

Benefits: Statistics indicate that rear facing seats provide children with the best protection in collisions.

Risks: Many infant seats come with hanging toys to amuse the child. These features can be dangerous in a collision because they can hit and injure your child. Some rear facing seats “snap in” to a base unit. If the base unit is not properly secured to the vehicle the safety seat can release during a collision.

Convertible Seats:

Some car safety seats can be used as a rear facing when the child is an infant and then be turned to face forward when the child gets older or larger. These seats are popular because parents can use the seat for a long period of time.

Benefits: According to Consumer Reports convertible seats usually have higher weight capacities which allow parents to use the seat in the rear facing configuration longer (thus providing greater protection to their child).

Risks: Convertible seats are often harder to secure in vehicles and are therefore at greater risk of releasing during a collision.

Forward Facing Seats:

Toddlers up to 40 pounds (4 years of age) must be secured using a front facing car seat.

Benefits: Forward facing car seats come in a variety of shapes, sizes and weights which allows parents to maximize the useful life of the car seat.

Risks: Some forward facing car seats have higher backs that can interfere with the car’s seat belts.

Booster Seats:

In Nova Scotia, for example, children must use a booster seat until they are either 145 cm (4 feet 9 inches) or 9 years old

Booster seats are typically appropriate for children between age 4-9.

Benefits: Booster seats are cheap so that you can buy separate booster seats for each vehicle that your children may ride in. Newer booster seats come with guides showing how to properly position the seat belt over your toddler’s waist.

Risks: Children often quick to want to “grow up” too soon. Children and parents may be too quick to place their children into a booster seat simply because of the added convenience.

However, if a child is too small for a booster seat they run the risk of serious abdominal injuries because the toddler’s seat belt doesn’t go over the child’s pelvis but instead goes over the child’s stomach or abdomen. When children are not properly belted into a vehicle they can run the risk of serious internal injuries in even comparatively minor collisions.

More Information:

Canadian Pediatric Association

Canadian Standards Association

Transport Canada

Consumer Reports

Concussions Have Long Term Effects

It was once thought that the effects of concussion, (mild traumatic brain injury) were temporary. Doctors assumed patients could recover from the effects of concussion after a few minutes or hours.

However a famous research study published in Neurology, the Journal of the American Academy of Neurologists, found that after one year, 10% to 15% of mild traumatic brain injury patients still had not fully recovered. In fact, the study determined that many patients had more symptoms than immediately after the accident.

Modern medical research has found that mild traumatic brain injury can result in deficits (problems) in the speed of information processing, attention, and short term memory.

Recovery from these deficits can take several weeks or months and a small percentage of patients may never fully recover.

Continue reading "Brain Injury Myth - Mild Traumatic Brain Injury Isn’t Permanent" »

As a Nova Scotia Brain Injury Lawyer I have had a number of brain injury cases where the defendant’s experts claimed my client did not suffer a brain injury, because their symptoms did not develop until hours after their initial injury.

Symptoms May Take Time to Develop

Modern medical science now recognizes that the effects of traumatic brain injury may not become apparent until 6-12 hours after the initial injury.

Becomes Obvious When Victim Returns to Work

The effects of traumatic brain injury can be so subtle that they do not become apparent until the victim of brain injury attempts to return to their normal daily activities or work place demands.

It is only after the brain injured person is exposed to the increased organizational demands of the work place or school that their cognitive deficits, organizational problems or memory difficulties become apparent.

Continue reading "Brain Injury Myth - Effects of Brain Injury can be Identified Immediately" »

Diagnosis Misleading

The term mild or minor traumatic brain injury is extremely misleading. The reference to “mild” or “minor” refers only to the initial physical trauma or impact that causes the brain injury.

Permanent Problems

Brain injuries caused by a comparatively minor physical trauma or blow to the head can result in significant long term impairment or functional disability.

Often Misdiagnosed

As a Nova Scotia Brain Injury lawyer, I have spent the last 20 years representing persons who have been victims of serious personal injuries. I also sit on the Board of the Brain Injury Association of Nova Scotia (Halifax). In my experience, both as a brain injury lawyer, and a BIANS Board member, mild traumatic brain injury is one of the most serious injuries that commonly go undiagnosed.

Careful Examination Necessary

Busy, overworked doctors may not take the time to thoroughly question patients about their symptoms. The symptoms themselves may not develop until hours or days after the injured person has been discharged for the Emergency Room. In fact, the symptoms of mild traumatic brain are so subtle that the victims themselves may not realize they are suffering from a brain injury.

Symptoms to Look For

You can find a helpful checklist of the Symptoms of Minor Traumatic Brain Injury on my website.

Continue reading "Brain Injury Myth - Mild Traumatic Brain Injury Isn’t Serious" »

Pain Specialist Concerned About Minor Injury Cap

Dr. Richard Dumais is a pain specialist working at the Dr. Georges L Dumont Pain Clinic in Moncton New Brunswick. Today he voiced his concerns on the broadness of New Brunswick's definition of a "minor injury" under the provinces car insurance laws that caps compensation for pain and suffering.

According to Dr. Dumais:

"The label "minor injury" under the cap is misleading and appears to have had no meaningful input from physicians and the medical community,"

"Some people involved in motor vehicle accidents have residual injuries that are severe from a medical standpoint but may be considered minor injuries by the insurance cap",

"From my practice, I have seen patients who were categorized as having 'minor injuries' who are experiencing long-term pain.” I feel the current system has to be modified to make it fair for those who are truly injured beyond what could be called 'minor'."

Consumer's Group Opposes Cap

In August, the newly formed N.B. Consumers for Insurance Fairness Group (NBCIF) launched a campaign to inform the public about the real consequences of the so-called "minor injury" cap.

Frances McConnachie, spokesperson for NBCIF said:

"In 2003, New Brunswickers were told by the government that a cap would be placed on soft tissue injuries which were non-permanent in nature",

"The current regulations are far-reaching and broader than it was intended by the government. People with injuries and conditions such as epilepsy, chronic pain, bulging discs, spasms, broken and crushed bones could all fall under the cap".

Changes Recommended by N.B. Consumer Advocate and Insurance Brokers

The New Brunswick Consumer Advocate for Insurance and the Insurance Brokers Association of New Brunswick have recommended the government change the definition of "minor injury".

Call To Action

The NB Consumers for Insurance Fairness have called upon accident victims to join them via their Facebook Group or through their website: www.fairautonb.ca

Changes Overdue in New Brunswick

In April of this year, the newly elected NDP government increased the so-called "minor injury" cap on compensation. The NDP also made changes to Nova Scotia's insurance act to limit the number of innocent accident victims whose claims will be unfairly capped by the "minor injury" definition.

The changes are a huge step in the right direction and it is time that New Brunswick takes the same steps to protect the rights of innocent accident victims. It's time to "scrap the cap".

Consumer's Group Calls For Review of Minor Injury Cap

The CBC has reported that a group of concerned citizens has formed a new consumers action group calling for a review of New Brunswick's "minor injury" cap on car accident insurance claims.

Frances McConnachie is a member of N.B. Consumers for Insurance Fairness. McConnachie was quoted as saying she received $2,500 following an accident in 2004 that has left her with back and neck problems that limit her activities and make her reliant on therapy and pain killers.

Victims Share Stories

The group has started a Facebook page where N.B. accident victims can share their stories, provide support, and get information about the groups effforts to get the N.B. Government to repeal the $2500.00 limit on compensation for so called minor injuries.

I would encourage any readers from New Brunswick to join the fight for fairness!

N.S. Changed Minor Injury Law

After the NDP won the last election here in Nova Scotia, they fullfilled one of their election promises by making improvements to the minor injury cap here in N.S.

The amount of the cap was increased to $7500.00 and the number of people whose claims will be unfairly limited by the cap have been reduced.

Related posts:

Nova Scotia’s Minor Injury Cap: NDP Makes “Minor” Improvements

Court of Appeal Confirms Minor Injury Cap - NDP to Repeal Cap Law

There are generally two types of losses that your personal injury lawyer will try to recover on your behalf.

Non Pecuniary Losses

Non pecuniary losses are losses or harms that cannot be precisely measured or valued. For example, the most common type of non-pecuniary loss is compensation for “pain and suffering”.

See for example Nova Scotia Personal Injury Claims: How Much Is My “Pain and Suffering” Worth?

Pecuniary Losses

On the other hand pecuniary losses are financial losses that can be precisely measured. They may involve out of pocket expenses for things like medical treatment, travel expenses or funeral expenses.

The largest pecuniary loss that most personal injury victims suffer is their loss of income. If someone is seriously injured as a result of someone's negligence they are entitled to be compensated for their pecuniary losses for their past loss of income to the date of settlement or trial, as well as any ongoing income losses they may continue to suffer in the future.

In wrongful death cases, family members are entitled to recover for the pecuniary loss of income that the deceased family member provided to support the family.

Expert Evidence

Pecuniary losses may be difficult to calculate. Typically this part of the claim requires the services of an expert. See for example, Experts in Personal Injury Claims.

In most cases your personal injury lawyer will hire an economist or an actuary to figure out exactly what your pecuniary losses have been to date and how much your pecuniary losses will be in the future. Economist and actuaries use tables, guidelines and statistics to help determine how much money you would have earned over your lifetime. Obviously, there is no such thing as a crystal ball and future losses can never be determined with absolute certainty.

Your lawyer will take into account what are called negative contingencies. For example, the chance that you may have been fired, that your company would go bankrupt or that you may have been injured in some other way.

On the other hand, the expert will also determine the “positive contingencies” like raises, bonuses and promotions that might have increased your income in the future.

Continue reading "What is a Pecuniary Loss in a Personal Injury Claim?" »

"Do I have to pay income tax on my personal injury award?"

I get asked this question a lot. The short answer is, at least until the government changes the Income Tax Act, personal injury awards in Canada are not taxable.

In Canada, compensation for non-pecuniary damages (what is typically referred to as “pain and suffering”) is not considered taxable income. However, if you invest the money that you receive, any interest, profit or gain that you receive from those investments is taxable.

For example, say you receive $100,000.00 in compensation for your “pain and suffering” claim. The entire award is tax free.

However, if you take that $100,000.00 and buy an investment that earns 5% interest per year, the $5,000.00 you earn each year will be considered taxable income.

There are tools that your personal injury lawyer can use to ensure that investments from your injury settlement are tax free.

In certain circumstances your personal injury lawyer may recommend that you place your settlement funds into an investment known as a “structured settlement”.

A structured settlement is a type of investment, known as an annuity, where you purchase an insurance contract that entitles you to receive periodic payments (usually monthly) over a specific time frame (which may be a specific number of years or even your entire life).

All of the payments, including any increase in value of the payments over time, are tax free.

Structured settlements are not right for every personal injury claim. There are advantages and disadvantages that you will need to discuss with your personal injury lawyer.

Structured settlements can be complicated and your lawyer will probably retain the services of an expert to determine whether a structured settlement is right for you and what the appropriate terms of the structured settlement should be.

I don't think I have ever seen a more effective educational video promoting seatbelt use.

Watch the video here: Embrace Life

In the past 10 years, more than 30,000 Canadians have died in car crashes.

Today 93% of Canadians use their seat belts.

The 7% of Canadians that do not wear seat belts account for almost 40% of motor vehicle accident deaths!

Injured Victim's Constitutional Appeal Fails

Today the Supreme Court of Canada refused to hear an appeal of a decision that upheld the constitutionality of Nova Scotia's cap of $2500.00 compensation for injured car accident victims deemed to have suffered a "minor injury".

The Applicant MacDonald was involved in a car accident in November, 2003. She suffered soft tissue injuries to her neck, shoulders and back. Her insurance company claimed that she had suffered a "minor injury" under Nova Scotia's new auto insurance provisions and offered a settlement that included the capped amount of $2,500 for pain and suffering.

The other Applicant Gionet was in a car accident in December, 2003. She suffered soft tissue injuries to her knee and back. She accepted the insurance company's offer of $3,000 to settle her claim for pain and suffering and for loss of wages.

Victims Claimed "Minor Injury" CAP Discriminatory

The plaintiffs applied to challenge the constitutionality of amendments to the N.S. Insurance Act that "capped" damages for "minor" injuries, as defined in the legislation, at $2,500.00. The plaintiff's claimed the law discriminated on the basis of physical disability and sex. They also contended the Regulations promulgated under the Act were ultra vires.

Supreme Court Upheld "Minor Injury" Cap

Justice Walter Goodfellow of the Nova Scotia Supreme Court upheld the legislation.

Benefits of “Minor Injury” Cap Legislation does not Justify Discrimination

Court of Appeal Confirmed Trial Decision

The Nova Scotia Court of Appeal dismissed the plaintiff's appeals. They appealed to the Supreme Court of Canada.

Court of Appeal Confirms Minor Injury Cap - NDP to Repeal Cap Law

Supreme Court of Canada

In a decision released today the S.C.C. ruled:

"The motions for an extension of time to serve and file the first and second applications for leave to appeal are granted. The first application for leave to appeal...is dismissed without costs. The second application for leave to appeal...is dismissed with costs to the respondents Adam Thomas Roy and Attorney General of Nova Scotia."

That's All Folks

The S.C.C. decision marks the end of the line. If you or a family memeber have been injured in a car accident since November 2003 your claim will be determined based on the amendments to the Insurance Act that caps compensation for "pain and suffering" for "minor" injuries at $2500.00.

Recent Changes to Cap

The NDP government introcuced changes to the "minor injury" cap recently. Unfortunately, they did not scrap the cap as many injured victims had hoped. The cap remains in place. There were some improvements made to the cap. But they will not apply retroactively.

Nova Scotia’s Minor Injury Cap: NDP Makes “Minor” Improvements

Get Advice!

Now more than ever it is important for injured accident victims to get advice from an experienced Nova Scotia Car Accident Lawyer.

Which version of the legislation applies to your claim? Is your claim is capped? What evidence do you need to prove that your claim isn't capped? What compensation you are entitled to in addition to the cap? These are all questions that are best answered by an experienced motor vehicle accident lawyer.

Continue reading "Supreme Court of Canda Refuses to Hear Appeal on N.S. Minor Injury Cap " »

Nova Scotia has a cap on the amount of compensation that innocent victims are entitled to receive when they have been injured in a car accident.

I have posted before about the unfairness of Nova Scotia’s minor injury cap. For example, see Benefits of “Minor Injury” Cap Legislation does not Justify Discrimination

Promise to Scrap the Cap

The NDP campaigned on a promise to do away with the $2,500.00 minor injury cap. Most people believed that the NDP intended to scrap the cap altogether since that was the fairest thing to do.

NDP Increases Cap to $7,500.00

However, on April 28, 2010, the NDP Government introduced changes to Nova Scotia’s minor injury cap. Unfortunately, the cap remains in place. The amount of the cap has been increased to $7,500.00 and some minor improvements have been made to the legislation which will allow more accident victims to recover more compensation.

The legislation was passed on May 7, 2010 but the "new" cap will not take effect until it is proclaimed in force.

"Does the Cap Apply to My Claim?"

I get asked that question a lot. Unfortunately there is no single answer. If you have been injured in a car accident you should get the advice of an experienced Nova Scotia Car Accident lawyer.

$2,500.00 Cap Still Applies to "Old" Claims

One of the key issues that the NDP Government had to struggle with was whether any improvements to the minor injury cap would be made “retroactive”. In other words, would the benefits be extended to anyone who has been injured since the minor injury legislation came into affect in November 2003, or would they only apply on a “go forward” basis? Unfortunately, the NDP Government has decided not to make the improvements retroactive.

Anyone who has been injured in a car accident since November 2003 is stuck with the draconian and unfair $2,500.00 minor injury cap.

Amount of Compensation under "New" Minor Injury Cap

As I mentioned, while the minor injury cap remains in place the amount of compensation that injured victims are entitled to recover has increased from $2,500.00 to $7,500.00. While this is an improvement, innocent accident victims who may end up suffering significant injuries that cause pain for the rest of their life will be limited to the maximum recovery of $7,500.00.

In my view this simply isn’t reasonable.

Sprains, Strains and Whiplash

The definition for the old $2,500.00 cap eliminated the vast majority of injury claims, including people who suffered fractures, some forms of disfiguring injuries, and long term chronic pain.

The new definition will focus on limiting compensation to persons who have suffered sprains strains and certain kinds of whiplash. This is certainly more in line with what the insurance industry asked for when they were lobbying for the original minor injury cap.

Details Matter

However, as always, the “devil is in the details” and how the regulations define what is covered by the cap and what is not covered by the cap will ultimately have a huge impact on the fairness (or unfairness) of this new legislation.

So what does it all mean?

There is no question that a cap of $7,500.00 is better than a cap of $2,500.00.

There is no question that limiting the types of injuries that the minor injury cap applies to is an improvement.

Bad Law Bad Policy

However, I believe that placing a cap on the amount of compensation that innocent injured car accident victims are entitled to receive in order to increase insurance company profits is bad law and bad public policy.

Making minor improvements to a bad law does not make the law fair nor does it make it good public policy. I represent hundreds of injured accident victims who have been waiting to resolve their claims in hope that the NDP Government would do the right thing and scrap the minor injury cap altogether. They now face the prospects of having to deal with their claims under the egregiously unfair provisions of the $2,500.00 minor injury cap.

Continue reading "Nova Scotia’s Minor Injury Cap: NDP Makes “Minor” Improvements " »

A recent decision from the Ontario Superior Court had to ask (and answer) this questions.

In Babakar v. Brown the Babakars were injured in a motor vehicle accident. They were insured by State Farm Insurance. They applied for accident benefits under their own automobile policy. Their insurance company sent the Babakars to see a psychologist, an orthopedic surgeon and a physiotherapist for so called “independent" medical examinations.

Plaintiffs Cut Off

Based on the reports of the experts, State Farm cut off the Babakars’ accident benefits. (What a surprise).

The Babakars were forced to sue their own insurance company to try to recover the benefits that they were entitled to receive under their auto insurance policy.

How Were Experts Reports Prepared?

During discoveries the Babakars’ lawyer asked State Farm to ask their experts a number of questions about how their reports were prepared:

1. To ask Dr. Hoath whether pre-accident or other historical records were needed and if he ever made a request to State Farm for the records.

2. If pre-accident records were information Dr. Hoath thought he needed, why didn’t he request it? To ask Mr. McCready, when he had the report, if he ever considered sending such information to Dr. Hoath.

3. To ask Dr. Kadish what use he made of or what possible benefit to him Mr Diaz’ s Functional Ability Evaluation Report was given that Mr. Diaz says in his report he can’t tell you anything without the Functional Demands Analysis.

4. With respect to Farzana, ask Dr. Hoath why he didn’t have the pre-accident records of Dr. Sheikh, whether he thought they were necessary, did he ever ask for them? Did the adjuster, after having reviewed the report, think to send the records to Dr. Hoath or ask Dr. Hoath if the pre-accident reports were important?

5. Ask Dr. Dorman to confirm at page 3 (Tab 127) that his notation about bruising of her legs at the hospital was information that he received from Mrs. Babkar as opposed to otherwise.

6. Refusal – To ask Dr. Dorman if his answer in question no. 2 on page 8 of 9 of his report, if he is referencing Farzana’s right knee problem.

7. To ask Dr. Dorman why he was answering questions that he was not asked by the insurer to address.

Insurer Refuses to Answer Questions

The insurance company refused to ask the questions on the basis that the doctors were expert witnesses and discovery of experts is prohibited under Ontario’s Rules of Court.

State Farm was ordered to make the inquiries on an initial motion. State Farm appealed.

On appeal, Justice Lederer said that:

“An expert is not treated as an expert when his or her opinion is an approximate or immediate cause of the harm, loss or damage.”

In other words, because the experts’ conduct was the reason why the Babakars had been forced to sue, the experts were the cause of the loss that was the subject of the litigation. Therefore, the prohibition against discovery of experts did not apply.

Justice Lederer concluded that:

“These reports are not prepared to assist the court in understanding technical information that is outside the knowledge of the judge or jury. The information in the reports is used by the insurer to assist in determining whether the party claiming the benefit qualifies. If, as here, it is suggested that a determination that a party does not, or no longer qualifies, was made in bad faith, the basis upon which the determination was made is directly pertinent.”

This decision is going to be relevant to claims in Nova Scotia because we have recently implemented new Civil Procedure Rules which eliminates (or severely curtails) the right to discovery of expert witnesses.

I anticipate Nova Scotia courts will interpret the prohibition on discovery of experts in much the same way since our rule is based on the same rule in Ontario.

Darrel Dexter’s NDP Government pledged to remove the unfair $2,500.00 cap on compensation for motor vehicle accident victims who have suffered a “minor injury”.

Constitutional Challenge Unsuccessful

A constitutional challenge was filed against the legislation arguing that the cap of $2,500.00 for persons who have supposedly suffered a minor injury was contrary to the Charter of Rights and Freedoms. The constitutional challenge failed at both the trial level and the Nova Scotia Court of Appeal. Leave to appeal to the Supreme Court of Canada has been filed.

Requesting Public Feedback

Now the NDP Government has released a position paper requesting input from the public. The minor injury cap was introduced because insurance companies claimed they were losing money on automobile insurance claims.

However, evidence presented to the Nova Scotia Supreme Court and the Nova Scotia Court of Appeal confirms the insurance industry was making record profits at the time the minor injury cap legislation was introduced.

Is the Cap Fair?

So what do you think? Is the cap of $2,500.00 for pain and suffering for persons who have suffered an injury in a motor vehicle accident fair?

Your comments can be sent to:

The Office of the Superintendent of Insurance
PO Box 2271
4th Floor
Provincial Finance Building
1723 Hollis Street
Halifax, NS B3J 3C8

Submissions must be received by February 15, 2010.

Please contact the Premier to voice your support for the government’s plan to repeal the minor injury cap. You can contact his office here or

Telephone: 902-424-6600
Fax: 902-424-7648
Toll-free Message Line: 1-800-267-1993
E-mail Address: premier@gov.ns.ca
Address:
Office of the Premier
PO Box 726
Halifax, Nova Scotia
B3J 2T3.

Further Reading

Court of Appeal Confirms Minor Injury Cap - NDP to Repeal Cap Law

Benefits of “Minor Injury” Cap Legislation does not Justify Discrimination

Nova Scotia Personal Injury Claims: “Minor Injury” Compensation Cap Constitutional

Continue reading "NDP Requests Public Input Regarding “Minor Injury” Compensation Cap" »

Defence Lawyers on Facebook

Everybody seems to be interested in Facebook, Twitter and all the other social media networks these days. That includes lawyers who represent insurance companies. There have been a series of cases across Canada where lawyers for insurance companies have demanded production of plaintiffs' Facebook pages in order to use the information against the plaintiff.

Depressed Victim Looked Too Happy

In a recent case in Quebec, Nathalie Blanchard was on disability for depression. She had her benefits terminated because her insurance company, Manulife found pictures on her Facebook page where she was smiling and looking like she was having a good time. In other words, she didn’t look depressed so the insurance company cut off her benefits.

Blanchard is now suing Manulife to reinstate her disability benefits.

In New Brunswick the Court of The Queens Bench recently ordered a plaintiff to produce the contents of her Facebook page to the lawyers representing the defendant’s insurance company.

Online Information Must be Disclosed?

Court rules in each province require the parties to disclose any information they have that may be relevant to the matters at issue in litigation. This now includes any electronic information in possession of the parties. While this commonly refers to things like e-mail or digital documents, the courts have been extending the reach of this disclosure obligation to include online information.

In Leduc v. Roman the Ontario Court required the plaintiff to produce information from a “private” Facebook account. The judge in that decision stated:

“It is now incumbent on a party’s counsel to explain to the client, in appropriate cases, that documents posted on a party’s facebook profile may be relevant to the allegations made in the pleading.”

Facebook May Be Used For Cross Examination

In a recent case in Newfoundland, Terry v. Mullowney, the lawyer for the defendants used excerpts from the plaintiff’s facebook page to cross examine the plaintiff about his social life.

The judge commented on the use of this information:

“While not getting into the details of the excepts, they convince me that Mr. Terry (at least in the few months prior to his testimony in court) recorded on facebook had a rather full and active social life…I find it incredible that Mr. Terry’s social life miraculously improved in the few months he was communicating on facebook and that for the remainder of the time from 2001 to 2007 he essentially had little or no social life. Without this evidence I would have been left with a very different impression of Mr. Terry’s social life.”

Disclosure Obligations Extend Online

So in the future you can expect parties in litigation to demand complete disclosure of Facebook pages, Linkedin profiles, Twitter accounts and public Blogs. In short, any information that you post online can and may be used against you. Beware.

Continue reading "Facebook Being Used Against Personal Injury Victims" »

Lawyer Fees Generally

Usually lawyers are paid an hourly rate for the time they spend working on behalf of the claim. For the most part, the hourly rate changed by lawyers increases depending on the lawyer’s experience and, in particular, the lawyer’s experience in the particular field in which he is being retained.

Time = Money

Abraham Lincoln once said, "A lawyer's time and advice is his stock in trade." In essence, asking a lawyer for his or her advice is no different than asking an accountant to do your taxes, or hiring an electrician to fix the wiring in your home.

However, some people are under the impression that calling a lawyer and asking a question is free. Most lawyers will answer preliminary questions regarding a legal matter at no charge, but when it is determined a lawyer is needed, a fee contract is required.

The amount of time that a lawyer will spend on any particular case will vary by lawyer and by case. Just as no two cases are the same, the work habits, productivity or the approach deemed best to a particular case, are not going to be the same from one lawyer to another.

What's a Contingency Fee?

In some cases, a lawyer may accept a case on the basis of what is generally known as a contingency fee agreement. Given the tremendous cost of litigation, most of my clients are simply not in a position to be able to financially afford to pay my hourly rate on a month by month basis.

Contingency Fees Allow Access to Justice

A contingency fee contract has been referred to as the "poor man's key to the courthouse" because many persons who are in need of a lawyer cannot afford the significant costs of litigation at the lawyers normal hourly rate.

At Arnold Pizzo McKiggan we are pleased to be able to offer our client’s the option of contingency fee contracts in appropriate cases. However, we go one step further.

Client Choice Legal Fee Program

There are some cases where a percentage fee may not be appropriate. For example, in a case where the insurance company has already made you an offer, you may want to pay the lawyer on an hourly rate basis and perhaps save tens of thousands of dollars in the process!

This is why we developed the innovative Client Choice Legal Fee Program for personal injury claims.

If you live in Atlantic Canada and have a serious personal injury claim and you think you require the services of a lawyer, you can call us for more details of our Client Choice Legal Fee Program

Continue reading "Lawyer Fees: How To Hire a Personal Injury Lawyer" »

Direct Liability

The term vicarious liability comes up in personal injury claims frequently. In most cases, your claim will be against the person who directly caused your injuries. For example, if you are run over by a car while walking in a cross walk, you can sue the driver of the car who may be found directly liable (at fault) for your injuries.

Vicarious Liability

On the other hand, in some cases someone else may be liable (responsible) for compensating you for your injuries. This issue typically comes up in cases of employees who do something wrong during the course of their employment.

In the Course of Employment

The law has generally held that the employer will be vicariously liable (responsible) for any wrongful acts committed by an employee while the employee was acting in the general course of their duties.

So to take our care accident example, if you were run over by someone driving a car you might sue the driver who could be found directly liable. However, if the person is driving a delivery truck you may also sue the delivery company that owned the truck and employed the driver.

Vicarious Liability Important to Ensure Justice

The ability to hold an employer vicariously liable for the wrongful acts of employees is important because it encourages employers to properly supervise their employees to ensure that are performing their job duties in a safe and careful fashion. It is also important in the case of catastrophic personal injury claims where an individual defendant may not have sufficient insurance or assets to fully compensate the injured person. Being able to pursue the defendant’s employer means that there is another source of funds available to help pay the plaintiff’s personal injury claim.

Continue reading "What is “Vicarious Liability”? Halifax Personal Injury Lawyer Explains" »

Whirlwind Week for Auto Accident Victims

It’s been quite a week for anyone interested in Nova Scotia’s automobile insurance minor injury cap.

Court of Appeal Decision

On Tuesday Chief Justice MacDonald released the Court of Appeal’s decision in Hartling v. Nova Scotia.

The Plaintiffs filed a constitutional challenge against Nova Scotia’s automobile insurance law which places a monetary cap of $2,500.00 on the compensation that injured car accident victims are entitled to receive for their pain and suffering.

Recap

During the original hearing, Justice Walter Goodfellow ruled that the legislation was not discriminatory and did not violate the Charter of Rights and Freedoms.

Nova Scotia Personal Injury Claims: “Minor Injury” Compensation Cap Constitutional

Justice Goodfellow released a second part to his decision where he determined that, if the legislation was discriminatory, the benefits of the legislation were not sufficient to justify the discrimination.

Benefits of “Minor Injury” Cap Legislation does not Justify Discrimination

Hope For Accident Victims

The decision offered hope to accident victims who felt that the Court of Appeal might give greater weight to the evidence of the adverse effects of the cap legislation.

Court of Appeal Dismisses Accident Victim’s Appeal

This week the Court of Appeal dashed the hopes of accident victims who have been told that the injuries they have suffered are minor and that compensation for pain is caped at $2500.00

Court of Appeal Agrees Legislation is Discriminatory

Chief Justice Smith agreed with the appellants on several issues:

Injured victims whose claims are capped by the legislation are treated differently from other automobile accident victims. Justice MacDonald ruled that this meets the distinction required by Section 15 of the Charter of Rights and Freedoms to establish discrimination.

The distinction is based on one of the prohibited ground of discrimination listed in the Charter. In this particular case accident victims were being discriminated against on the grounds of physical disability.

Chief Justice MacDonald acknowledged that minor injury victims are disadvantaged by the minor injury cap legislation.

Finally, Chief Justice MacDonald agreed that the court had to consider any evidence of prejudice or stereotype regardless of how limited it might be, in considering whether the legislation violates the Charter.

However, after conducting an analysis of the evidence for each of these points Chief Justice MacDonald determined that the court had to consider whether the legislation’s purpose (controlling increasing auto insurance premiums) out-weighed the discriminatory effects of the legislation.

Minor Injury Cap Doesn't Eliminate All Right to Recovery

Chief Justice MacDonald distinguished the Supreme Court of Canada’s decision in Martin v. Nova Scotia (Workers Compensation Board) which found that the way in which Nova Scotia’s workers compensation legislation treated victims of chronic pain was discriminatory. Chief Justice MacDonald stated that, in Martin, claimants were denied all right of recovery whereas under the automobile insurance “minor injury” cap, victims’ right to recover compensation was limited rather than eliminated.

Legislation Doesn't Discriminate Against Women

Chief Justice MacDonald also dismissed the appellant’s arguments that the legislation unduly discriminates against female accident victims. While acknowledging that women have been historically disadvantaged in the work place Chief Justice MacDonald feels that the root problem of the discrimination and reduction in women’s wages were caused by unrelated social issues, not the minor injury insurance cap.

Minor Injury Cap Upheld

The Court of Appeal has decided that the minor injury cap legislation is discriminatory. However the discrimination is not sufficient to trigger the equality provisions of Section 15 of The Charter of Rights and Freedoms. In other words, the legislation discriminates. It just doesn’t discriminate enough to violate Canada’s constitution.

So there you have it, in Nova Scotia the minor injury compensation cap is constitutional and all of the limits and restrictions that the legislation places on innocent automobile accident victims are justified in pursuit of lower automobile insurance rates.

Supreme Court Denies Alberta Leave to Appeal

Accident victims in Alberta have been waiting for leave (permission) from the Supreme Court of Canada to appeal the decision of Morrow v. Zhang which upheld to constitutionality of Alberta’s minor injury automobile cap.

Minor Injury Cap Reinstated in Alberta

On Thursday morning the Supreme Court of Canada denied the accident victims’ leave to appeal. In other words, the Court wouldn’t even hear the victim’s appeal, let alone consider their arguments.

That means an appeal from Nova Scotia over the Hartling decision is also likely to be denied leave, since the Supreme Court only hears matters that have a national interest.

NDP to Repeal Minor Injury Cap

But not all hope is lost for accident victims.

Yesterday afternoon Premier Darrell Dexter confirmed the NDP government’s commitment to “scrap” the minor injury cap.

Premier Dexter was quoted as saying:

"The $2,500 cap is not fair to people who have suffered serious injury," he said.>"Insurance is a product designed to protect people. If you exclude people from protection through a $2,500 cap, then by definition you're not delivering the product that has been paid for."

Contact the Premier

Please contact the Premier to voice your support for the government’s plan to repeal the minor injury cap. You can contact his office here or

Telephone: 902-424-6600
Fax: 902-424-7648
Toll-free Message Line: 1-800-267-1993
E-mail Address: premier@gov.ns.ca
Address:
Office of the Premier
PO Box 726
Halifax, Nova Scotia
B3J 2T3.

Further Reading

My colleague David Brannen has posted a more thorough analysis of the hartling decision on his Nova Scotia Car Accident Law Blog. Take a look.

Continue reading "Court of Appeal Confirms Minor Injury Cap - NDP to Repeal Cap Law" »

The Discovery Process

One of the most important steps in any personally injury claim is the oral discovery. If you file a lawsuit for compensation for personal injuries you will be required to testify about your knowledge of the event that lead to the lawsuit and your knowledge of the injuries that you have suffered.

In other words; what happened? How badly were you injured? How have the injuries effected your life?

A discovery is basically a question and answer session where you swear (or affirm) to tell the truth. The question and answer session is recorded by a court reporter who will type up a transcript of all the questions and answers. That transcript can be used later in court.

Since more than 90% of civil lawsuits settle before trial, the oral discovery is probably the most important step in the litigation process. As the name implies, the discovery process allows each side to “discover” all there is to know about the other side’s case. Each side gets a better understanding of the strengths and weaknesses of their claim and their opponents claim. They are able to judge how the plaintiff and defendant will appear if they have to testify in court.

In short, the discovery process provides a “dry run” for how the witness will testify at trial.

Before your discovery your lawyer will meet with you to prepare you for the discovery. I have prepared a report for all of my clients who are getting ready for discovery so that they can read it at their leisure and we can discuss any questions that they have. If you would like a copy, feel free to contact me through this blog.

Continue reading "What is a “Discovery”? Halifax Personal Injury Lawyer Explains" »

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.

Continue reading ""I Want to File a Personal Injury Claim – Why Do I Have To Give All My Personal Information to the Defendant?"" »

2 Important Questions

There are two questions that almost every single client asks me during our first meeting. They are questions that I think every person who has suffered a personal injury should ask their lawyer before they decide to hire them.

The two questions are:

1. How long will this take?

2. How much will I get?

How Long Will This Take?

The golden rule of any personal injury claim is that you should never settle your claim until your injuries have completely resolved or until you know the full extent of any future residual disability that you may be left with as a result of your injuries. In other words, don’t settle your claim until you know how your injuries are going to affect you in the future.

It is often very difficult to tell, shortly after an accident, how long a person’s injury will last. It is usually impossible to tell what kind of long term residual problems they will have as a result of their injuries.

That means it is difficult if not impossible to determine how long it will take you to recover, how long it will take your doctors to provide a medical-legal opinion as to what your future limitations will be, what affect it will have on your future employment, what, if any, future rehabilitative or medical treatment you will require.

It is also impossible to say, in the early stages of a lawsuit how long it will take to complete document disclosure, complete discoveries of the parties, and get a trial date from the court.

While most experienced personal lawyers will be able to tell how long it takes to resolve a typical injury claim, your claim may not be “typical”. Every personal injury claim is unique and the best course of action depends on the particular facts of each individual case.

If a lawyer tells you in your first meeting exactly how long it is going to take before your claim is settled or how long it will be before you get to trial, ask them to put it in writing. Then you may want to consider talking to another lawyer.

How Much Will I Get?

The amount of compensation you will be entitled to receive for non-pecuniary damages (what is typically referred to as compensation for “pain and suffering”) depends a great deal on how long it takes you to recover from your injuries.

As I have explained above, it often takes months, sometimes years, for doctors to determine what the full extent of a patient’s injuries are and what the long term affects will be. That means it will take time to determine the full extent of the compensation you are entitled to receive for your non-pecuniary damages.

You are also entitled to recover compensation for things like loss of housekeeping capacity, loss of income, medical expenses and any other out of pocket expense you may have suffered as a result of your injuries.

In short, it will usually take a great deal of time and investigation to determine the full value of your claim.

If a lawyer tells you in your first meeting: "your claim is worth millions", ask him or her to put it in writing. When they won't, you may want to consider talking to an experienced personal injury lawyer.

Continue reading "2 Questions To Ask Before You Hire a Personal Injury Lawyer" »

Landmark Ruling Regarding Loss of Housekeeping Capacity

In the 1991 decision of the Saskatchewan Court of Appeal in Fobel v. Dean, the court confirmed that loss of housekeeping capacity has value and an injured plaintiff is entitled to be compensated for the loss of that capacity.

Nova Scotia Confirms Claims for Loss of Housekeeping

In 1998, Nova Scotia Court of Appeal confirmed that the loss of housekeeping capacity is a separate and distinct head of pecuniary damages and must be compensated for accordingly. In Carter v. Anderson, Justice Roscoe stated:

“Future loss of capacity, where proved, should be compensated separately, whether or not replacement help has been paid in the past … the partial or total loss of that ability has economic value which should be recognized.”

Groundbreaking Decision in Ontario

The National Post has reported on a recent "groundbreaking" decision by the Ontario Court of Appeal that helps to provide some clarity. In McIntyre v. Docherty the Court of Appeal stated that in order:

"...to avoid this kind of confusion in future cases where different scenarios of housekeeping losses arise, it will be helpful if the jury can be specifically instructed regarding the type of loss at issue and the evidence in support of that loss."

Three Types of Housekeeping Losses

The court goes on to classify three different types of housekeeping losses.

Pre-trial: Work Left Undone

Justice Susan E. Lang for the Court of Appeal:

"Where the injured plaintiff is unable to perform some or all housekeeping tasks, and where a third party [i.e. a housekeeper] does not do the work in the injured person's stead, work will be left undone...In that situation, the injured plaintiff will experience two sorts of intangible losses compensable in an award of non-pecuniary [i.e. general] damages."

Pre-trial: Work Can Be Done, But with Difficulty/Pain

"A plaintiff may continue to undertake housekeeping but may experience pain or difficulty in doing so…He or she may be required to work more hours post-accident to accomplish the same amount of pre-accident housekeeping. If a plaintiff thus works 'inefficiently,' he or his non-pecuniary award would be increased to reflect any increased pain and suffering."

Pre-Trial: Work Done by Third Parties

"The law is well-established that where a plaintiff incurs a pre-trial, out-of-pocket loss by hiring a replacement homemaker, the plaintiff may claim the reasonable replacement costs of that homemaker as special [i.e. pecuniary] damages."

The decision of the Ontario Court of Appeal is reasonable and, for the most part, mirrors the approach taken by most judges in the Nova Scotia courts. However, this decision is the first one that I have seen that clearly explains how to appropriately calculate different types of loss of housekeeping capacity.

Continue reading "Ontario Court of Appeal Tries to Bring Clarity to Calculating Loss of Housekeeping Claims" »

Last week I had the pleasure of golfing in the Brain Injury Association of Nova Scotia's 18th annual 18 Holes for Hope Golf tournament.

Brain Injury Awareness Month

The tournament is one of BIANS's major fundraisers and I was happy to be part of the organizing committee.The tournament is held in June every year as part of Brain Injury Awareness month.

BIANS: Helping Survivors and Their Families

Over the past 20 years, BIANS has helped provide a community of support for survivors of brain injury by bringing together brain injury survivors, family members and health professionals.

BIANS has established a chapter network at the grassroots community-level to provide support and information to survivors and their families.

BIANS is a source of information about the effects of brain injury and has worked to increase injury prevention and awareness of brain injury.

BIANS established Aiseirigh House (now operated by the Moving In New Directions Society) a residential assisted living facility for brain injury survivors, and the Inroads Program; a community-based program for survivors which teaches cognitive skills and strategies in a combination of one-on-one tutoring, workshops/classroom and social settings.

Living With Brain Injury

I have dedicated my career to helping persons with serious injuries receive fair compensation. To get some idea of the effects, and extraordinary needs of brain injury survivors, take a look at this lecture about living with a traumatic brain injury.

How to Make a Donation

If you want to help support BIANS you can make a donation here.

Continue reading "June is Brain Injury Awareness Month" »

Last week the Alberta Court of Appeal released its decision in Morrow v. Zhang.

Alberta introduced legislation placing a “cap” of $4000.00 on the compensation that persons who suffered a “minor injury” were entitled to receive. The plaintiff’s Morrow and Pedersen appealed the cap claiming that it infringed their rights under Section 15(1) of the Canadian Charter of Rights and Freedoms.

The trial judge ruled that, were it not for the “minor injury” cap, the plaintiffs would have been entitled to non-pecuniary damages in excess of the $4,000.00 cap. The trial judge also found that the distinction in the legislation between people that had suffered a minor injury and other injured victims resulted in substantive inequality resulting in an unequal distribution on financial benefits.

The trial judge found that the legislation was discriminatory and that the distinction was not reasonable and justified under the Charter. The trial judge struck out the cap as being unconstitutional.

Province of Alberta and Insurance Industry Appeals

The Alberta Court of Appeal has ruled that the minor injury cap legislation must be considered as a whole and not in isolation. The Court of Appeal stated that while the legislation did make a distinction on the basis of disability, the distinction was not discriminatory.

Trade-Off of Rights/Benefits

The court appears to focus on the fact that while victims of “minor injuries” would receive lower compensation for non-pecuniary damages (“pain and suffering”) the trade off was that all victims of car accidents were entitled to increased no-fault medical benefits.

The court stated that a reasonable person in the position of a minor injury claimant would not conclude that the distinction created by the minor injury cap was discriminatory.

This finding is puzzling. I have explained the Nova Scotia minor injury cap to hundreds, if not thousands, of accident victims since Nova Scotia introduced similar legislation. Unanimously, injured victims feel that it is unfair that they are being singled out by the legislation when injured persons whose claims exceed the cap are entitled to full compensation.

Nova Scotia Appeal to be Heard in October

The appeal of Nova Scotia’s minor injury cap legislation is scheduled to be heard in October of this year. It remains to be seen how the Nova Scotia Court of Appeal will deal with this issue.

Stay tuned.

Okay, lawyers have a bad reputation.

In most public opinion polls we rank just above used car salesman and below politicians when it comes to trust.

I am proud to be a lawyer. I think being able to help people when they are most in need is one of the most important jobs in the world.

But sometimes I am simply embarrassed to tell people what I do.

Here are five reasons why.

Thanks to The Greatest American Lawyer for the link.

I came across an interesting case the other day which should worry anyone who is interested in privacy rights.

Leduc v. Roman is a case out of Ontario. The plaintiff, Leduc filed a claim for compensation for injuries he claim to have suffered in a car accident.

The defendant, Roman, made an application to court for an order to produce the contents of Leduc’s Facebook page! Leduc claimed that, because he only allowed access to his Facebook page to his Facebook “friends”, the contents of his Facebook site were private and confidential.

Roman lost the initial motion to force production of Leduc’s Facebook site. However, Roman appealed and Justice Brown of Ontario's Superior Court issued a decision ordering the plaintiff to produce the entire contents of his Facebook site.

Justice Brown reasoned that:

“...to permit a party claiming very substantial damages for loss of enjoyment of life to hide behind self set privacy controls on a website, the primary purpose of which is to enable people to share information about how they lead their social lives, risks depriving the opposite party of access to material that may be relevant to ensuring a fair trial.”

Given the massive popularity of Facebook I am sure that many of my clients have Facebook pages. I am even aware of a couple of my clients who have posted details of their accidents or injuries on their Facebook websites. The clear message from this decision is that plaintiffs who post details of their private lives on a public website risk having all of that information used against them some day in court.

Continue reading "Posting About Your Car Accident on Facebook? Better Think Twice!" »

One of the challenges that I face as a Nova Scotia personal injury lawyer is explaining to people who have been seriously injured how much compensation they are entitled to receive.

Pain and Suffering

One of the heads of damages that the court will consider when awarding compensation is what lawyers refer to as “non-pecuniary damages”. Most people refer to this type of damages as “pain and suffering”.

How Do Courts Calculate “Pain and Suffering”?

There is no such thing as a “Pain-O-Meter”. An injured victim cannot be hooked up to a machine that prints out the financial value of their pain. What a judge does when determining compensation for pain and suffering is use his or her experience and discretion to consider how the injury has affected the victim’s ability to function and how the injury has effected the person's enjoyment of life.

In other words, how have your injuries affected your normal day to day activates; your ability to work; and your normal amenities of life?

Financial Awards in Canada Different than the United States

Many of my clients have read news stories from the United States where injured victims have been awarded millions of dollars (sometimes tens of millions of dollars) for their “pain and suffering” from catastrophic injuries. Unfortunately, those types of damage awards cannot happen in Canada.

Supreme Court of Canada Caps Pain and Suffering Awards

The Supreme Court of Canada has placed a cap on the amount of compensation that injured victims are entitled to receive for non-pecuniary damages for pain and suffering.

In 1978, in a case known as Teno v. Arnold, the Supreme Court of Canada created a barrier to recovery for innocent victims who have been injured as a result of someone else’s negligence. In the Teno case, the Supreme Court ruled that no matter how seriously injured you are the maximum compensation that you can receive for your “pain and suffering” is $100,000.00.

Maximum Award for Pain and Suffering

Taking inflation into account, the cap on pain and suffering awards is currently considered to be slightly more than $300,000.00. But that maximum amount is only paid to the most catastrophically injured victims (quadriplegic, paraplegic, severe brain damage and similar injuries).

Even when plaintiff’s receive damage awards that seem large, they often never see the full amount decided by the judge or jury. Many awards are drastically reduced on appeal. These reduced or vacated judgments are seldom reported by the media.

If you are considering a claim for compensation for pain and suffering it is important to have an experienced Nova Scotia personal injury lawyer assisting you to ensure that you provide all of the relevant information that the courts will consider when assessing your non-pecuniary damages claim for pain and suffering.

Continue reading "Nova Scotia Personal Injury Claims: How Much Is My “Pain and Suffering” Worth?" »

Justice Walter Goodfellow has released the second part of his decision in Hartling v. Nova Scotia (Attorney General).

"Minor Injury" Cap Isn't Unconstitutional

As I explained in a previous post last month: “Minor Injury” Compensation Cap Constitutional, Justice Goodfellow determined that Nova Scotia’s legislation that places a cap of $2,500.00 on the compensation that innocent accident victims can receive for their pain and suffering does not violate the Canadian Charter of Rights and Freedoms.

Accident Victims Not Sterotyped or Discriminated Against

In his decision of January 12, 2009, Justice Goodfellow ruled that victims of minor physical injuries were not subject to stereotyping or discrimination. Therefore, the legislation did not violate Section 15 of the Charter, which prohibits discrimination on the basis of a physical characteristic.

Similarly, Justice Goodfellow found that the legislation did not discriminate on the basis of gender or mental disability.

Accident Victims Disappointed - Insurance Companies Happy

Justice Goodfellow’s decision disappointed advocates for accident victims who felt that the legislation was simply a transparent attempt to increase insurance company profits at the expense of innocent accident victims.

The Insurance Bureau of Canada was no doubt very happy about the decision.

However, Justice Goodfellow’s decision of February 9, 2009, is guaranteed to create some consternation amongst the insurance industry.

Is Discrimination Justified?

In his latest decision, Justice Goodfellow provided his views on whether the legislation would survive a Section 1 analysis under the Charter. If the Minor Injury legislation is discriminatory, Section 1 of the Charter can still save the legislation if the discriminatory limits are “justified in a free and democratic society”.

Justice Goodfellow began the second part of his decision by stating that he is certain that he is correct when he ruled that the Minor Injury legislation is not discriminatory. However, given the effort that was put into the hearing by all of the parties involved Goodfellow J. felt that it was appropriate to conduct the Section 1 analysis in case the Court of Appeal differs with his views as to whether the legislation is discriminatory.

Justice Goodfellow conducted an exhaustive review of the evidence submitted during the hearing with respect to the reasons why the legislation was created.

Insurance Industry Pleads Poverty While Profits Increase

Goodfellow J. paid considerable attention to the financial evidence that was presented at the hearing. At the time the Minor Injury cap was introduced, the insurance industry claimed that it was losing money on auto insurance, and needed the cap on personal injury claims to protect insurance profits (and to supposedly lower auto insurance premiums).

Justice Goodfellow determined that the evidence actually showed insurance industry claims costs were decreasing, and company profits were increasing, when the Minor Injury legislation was introduced. Goodfellow indicated that the insurance industry had not provided this financial information to the government when the $2,500 cap was put in place.

His Lordship did not go so far as to say that the insurance industry had mislead the government. (Perhaps the Tory government was just too trusting?)

Goodfellow J. considered the negative effects of the legislation on accident victims who’s claims have been capped.

Minor Injury Cap has Provided Considerable Benefits?

Finally, His Lordship reviewed the evidence with respect to the benefits of the legislation.

He concludes by saying:

“There is no doubt that there has been considerable benefit to the citizens of Nova Scotia in the passing of this legislation.”

Benefits Don't Justify Discrimination!

Justice Goodfellow concludes, at paragraph 108 of his decision:

“Clearly there was no intent in the legislation to cause stereotyping or marginalization. Stereotyping almost always carries a negative, demeaning message that those who are stereotyped are less worthy and possess traits that are not held by decent, law abiding citizens. If, however, it had been established such was a consequence of the legislation, then I conclude the benefits of the legislation fall short of justifying such stereotyping. Given the view I express about stereotyping I am unable to suggest what the Attorney General of Nova Scotia might otherwise have done to overcome the consequences of stereotyping.”

In other words, Justice Goodfellow is of the opinion that the legislation does not discriminate against accident victims. But if it does, the object of the legislation is not one that can be justified in a free and democratic society. Goodfellow’s comments appear to imply that, if the legislation is discriminatory, then there is nothing that can be done to justify the discrimination!

So there you have it, win one lose one. The province and the insurance industry come out ahead on the issue of whether the Minor Injury legislation is unconstitutional.

But Justice Goodfellow sides with injured accident victims on the issue of whether the benefits justify discriminating against accident victims.

No doubt the Court of Appeal will not just be hearing an appeal from the Plaintiffs. I am sure lawyers for the Insurance Bureau of Canada are already drafting their appeal factums.

Continue reading "Benefits of “Minor Injury” Cap Legislation does not Justify Discrimination" »

Nova Scotia Limits Compensation For Injured Car Accident Victims

As I have explained in previous posts, Nova Scotia has legislation that places caps on the amount of compensation that persons injured in car accidents are entitled to receive for their injuries.

"Minor Injury" Cap Constitutional

The Nova Scotia Coalition Against No Fault Insurance filed a court challenge seeking to have the “minor injury” cap declared unconstitutional. On Tuesday, Justice Walter Goodfellow of the Nova Scotia Supreme Court based his decision in Hartling v. Nova Scotia (Attorney General). Justice Goodfellow decided that the legislation is constitutional and does not violate the Canadian Charter of Rights by discriminating against accident victims.

A more detailed review of Justice Goodfellow’s decision will follow in a later post.

Limiting Compensation Okay in N.S.

Justice Goodfellow has decided that Nova Scotia’s cap legislation that caps compensation for innocent victims who have suffered injuries in a car accident is constitutional.

Injured Person's Protected in Alberta

However, in Alberta, similar legislation which placed a cap on the compensation that injured victims received for “minor injuries”, was ruled unconstitutional in a decision released in February 2008.

Needless to say, the Province of Alberta, and the insurance industry, immediately filed an appeal which was recently heard by Alberta’s Court of Appeal. You can read the trial decision in Morrow v. Zhang here.

What Happens Now?

So now what? Two contrasting decisions by two different Provincial Supreme Courts dealing with the same constitutional issue. The case in Alberta is already at the Court of Appeal level. The case here in Nova Scotia will no doubt make its way to our Court of Appeal.

The whole issue will likely have to be sorted out by the Supreme Court of Canada several years from now.

Innocent Victims Pay to Increase Insurance Profits

In the mean time, innocent injured victims pay the price by having their legitimate claims for compensation limited so that insurance companies can make more money.

Continue reading "Nova Scotia Personal Injury Claims: “Minor Injury” Compensation Cap Constitutional " »

For years insurance companies and their lawyers have been telling chronic pain victims: "...it's all in your head!"

Defendants Claim Chronic Pain Isn't Real

Insurance companies hire psychiatrists to produce reports claiming that the chronic pain victim's pain is the result of a psychiatric illness, accuse the victim of malingering or come up with a bogus diagnosis like compensation neurosis.

New Medical Evidence

Well this weeks issue of the medical journal Neuron has proved that the insurance companies are right, the pain is in their head. But not in the way they think.

CBC has reported on a new study that used functional magnetic resonance imaging to study differences in the brains of normal subjects and the brains of subjects with complex regional pain syndrome.

Chronic Pain Rewires the Brain

The brains of chronic pain patients showed physical changes in the brain's white matter, the cable-like "wiring" of fibres that deliver messages between neurons.

The study's lead investigator, Vania Apkarian, a professor of physiology at Northwestern University's Feinberg School of Medicine in Chicago had this to say:

"This is the first evidence of brain abnormality in these patients...People didn't believe these patients. This is the first proof that there is a biological underpinning for the condition."

Another Tool for Victims Advocates

This study is going to be a great tool for those of us that represent injured victims!

Continue reading "Chronic Pain Rewires the Brain: Insurance Companies Take Note!" »

Insurance companies use "dirty tricks" and "unethical behavior" to deny legitimate claims and boost their profits, according to a new report released by the American Association for Justice.

The report explains how insurers have:

...endeavored to deny claims, delay payments, confuse consumers with incomprehensible insurance-speak, and retroactively refuse anyone who may cost them money.

Although the report takes a look at the practices engaged in by American insurance companies, the insurance industry is multi-national in scope and many of the insurers exposed in the report, for example Allstate and AIG carry on business in Canada.

The report describes how:

Allstate gave employees who denied valid claims rewards such as portable fridges, and used a “boxing gloves” approach to policyholders who refused to accept lowball offers.

Here in Nova Scotia, Justice Walter Goodfellow of our Supreme Court just finished hearing a trial involving a constitutional challenge to our province's Insurance Act. The law places a "cap" on the amount of compensation that innocent victims can receive for their pain and suffering if they have suffered a "minor injury". The problem with the law is that the law defines almost every injury as "minor"; making it very difficult for legitimate innocent victims to receive fair compensation for their injuries.

When Justice Goodfellow releases his decision on the constitutional challenge we can expect the insurance industries' "public relations" machine to kick into high gear, claiming that the insurance industry is losing money because of payments to innocent accident victims.

Don't believe a word of it.

Related posts:

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

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

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

Continue reading "How Insurance Companies Deny, Delay, Confuse and Refuse: New Report" »

"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" »

Nova Scotia Government Passes Law to Protect Insurance Company Profits

In 2003 Nova Scotia passed the Automobile Insurance Reform Act (AIRA) to protect the profits of the insurance industry at the expense of innocent accident victims.

"Minor Injury" Cap on Compensation

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

In other words, if you have a minor injury, as defined by the AIRA law, the most compensation you can receive for your pain and suffering is $2500.00.

There are many reasons why the insurance company may claim that you have a minor injury.

Reason # 1

Your injury isn't "permanent"

The AIRA law defines a minor injury as every injury that does NOT result in a:

...permanent serious impairment of an important bodily function...

So the first reason the insurance company may say that you have a "minor injury" is because your injury isn't permanent.

That covers a lot of injuries. Think about it: bruises go away, torn muscles repair themselves, broken bones heal. There are few injuries that last forever.

Does Permanent Mean Forever?

In some cases (amputations) it may be obvious that the injury will last forever. But for most injuries the only way to know for sure that your injury is/was permanent is to wait until you die. If you still had the injury when you died, then the injury was truly permanent.

So does that mean you have to wait until you die before you can prove your injury is permanent?

Fortunately that isn't the case.

Various court decisions have considered what the definition of the word permanent means when it comes to personal injury claims.

A victims injuries will be considered to be permanent where there is a “substantial possibility” that the injury will continue into the future: Skinner v. Goulet.

"Permanent" means lasting into the indefinite future without any end limit: Bos v. James

How Do I Prove My Injury Is Permanent?

So the first thing you have to do to prove that you do NOT have a minor injury if provide proof that your injury is "permanent". How do you do that? By having your doctor carefully document the nature and extent of your injuries so that he or she can write a report confirming that there is a "substantial possibility" that your injury will continue into the "indefinite future" without any certain end limit.

There are a number of other reasons that the insurance company may say you have a minor injury, and claim that your compensation should be capped at a maximum of $2500.00. I will cover them all in future posts.

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

Unintentional injury is the leading cause of death for children in Canada.

Safe Kids Canada has released a research report this week that showed that residential streets may be more dangerous for our children that we think. According to the study, which was released this week a child hit by a car travelling at 50 km/h has an 80 per cent chance of being killed!

Thousands of Children Injured or Killed in Pedestrian Accidents:

Child - pedestrian accidents are a leading cause of death for Canadian children. More than 2,000 children are seriously injured each year in child pedestrian accidents each year! Sadly, almost 30 children are killed in pedestrian accidents every year.

Intersections Dangerous:

Most child pedestrian accidents happen while the child was crossing the street in an intersection.

Injuries Happen Close to Home:

It may come as some surprise that many of these serious injuries and deaths happen within just 5 kilometres of the children’s home.

Slow Down and Save Lives:

The study found that reducing vehicle speed results in a huge decrease in the number of child injuries and fatalities. A child hit by a car traveling at 30 km/h, has up to a 95 per cent chance of surviving.

The report calls for legislation reducing speed limits in residential neighbourhoods to a maximum of 30 KM (from the current 50 KM).

As a personal injury lawyer for the past 18 years I have represented hundreds of children who have been seriously injured in car-pedestrian accidents. Even more tragic are the cases where a child has been killed by a driver who was speeding, or just not paying attention.

I would encourage anyone who is interested in child safety to send a copy of the Safe Kids Canada news release to their local MLA.

Continue reading "Slow Down and Save a Childs Life!" »

Injury is the leading cause of death and disability among children and adolescents in
Canada. A new report from the Canadian Institute for Health Information indicates that the number of children injured each year in Canada has declined steadily over recent years.

The rate of child injury in 2005–2006 was 36.7 per 10,000 persons, compared to 40.6 per 10,000 persons, in 2001–2002.

The authors of report suggest that the decrease in pediatric injuries could be due to a variety of
factors, including:

Improved injury-prevention programs;
Changing practice patterns with changing hospital admission criteria;
Administrative changes; and
Legislation designed to target child safety concerns.

The leading cause of injury was unintentional falls (37%) with double the number of injuries of the second leading cause of injury, car accidents (18%).

It is perhaps not surprising that car accidents resulted in more serious injuries. The study reports that falls resulted in 24,433 hospital days with an average of 2.3 days required for treatment. Whereas car accidents resulted in 32,118 hospital days with an average hospital stay of 6 days required for treatment.

The leading cause of injury that resulted in death among children and adolescents under age 20 years was car accidents (55.5%).

While the trend towards fewer injuries is encouraging, more study is needed to identify the specific reasons for the decrease so that governments and hospitals can determine how to most effectively spend limited health care and trauma prevention dollars.

You can read the whole report here.

Continue reading "Pediatric Injuries Requiring Hospitalization in Canada Dropping" »

Driver fatigue is a factor in 20% of fatal car crashes and the cause of more than 400 deaths due to car accidents every year according to a new report from the Highway Safety Roundtable.

The study also reported that an alarming 20 percent of Canadians admit to falling asleep at the wheel at least once over the last year.

I was actually a little surprised by the reports findings. In my practice representing people who have suffered injury as a result of motor vehicle accidents, I would have said driver fatigue was an issue in close to 50% of all serious car crashes.

The Canada Safety Council has posted a website: Tips to Avoid Drowsy Driving that is worth a look.

Continue reading "Sleepy Drivers Cause 400 Deaths 2100 Serious Injuries Every Year" »

Dangerous drivers suffering from alcohol abuse, cardiac disease and neurologic disorders are not being reported by their doctors; and doctors may be committing medical malpractice for failing to comply with provincial laws.

A recent report in the medical journal Open Medicine found that between 1996 and 2001 37% of drivers admitted to a trauma unit with injuries from car accidents had a reportable medical condition that made them unfit to drive.

Most of the patients (85%) had seen a doctor in the year before the crash, and 14 per cent had even seen a doctor a week before their crash. But only three per cent of these had been reported to the Ontario Ministry of Transportation.

The author of the report Dr. Donald Redelmeier of Toronto's Sunnybrook Health Sciences Centre, was quoted by CTV as saying:

"There's sort of a historical tradition where a lot of physicians didn't believe road safety was a part of public health...Globally, motor vehicle crashes account for almost 1 million fatalities, far eclipsing malaria for the first time in the history of the planet."

All Canadian provinces and territories have enacted some form of legislation requiring doctors to report patients who are believed to be unfit to drive a motor vehicle. In some jurisdictions, the duty is mandatory; in others, it is discretionary. In either case, the duty to report is an exception to the normal rules in respect of doctor-patient confidentiality.

The authors suggest a number of reasons why doctors may not be following the law requiring them to report unfit drivers:

Uncertainty as to whether a patients impairment is serious enough to report;

Concerns over how their patients will react;

Being too busy;

Lack of training; and

The view that road safety isn't a medical problem.

Based on their findings, the authors conclude that mandatory reporting in Ontario "does not achieve its stated purpose."

Innocent victims of car accident have filed personal injury claims against doctors for failing to report unfit drivers who subsequently caused car accidents. See for example Toms v. Foster

Whatever the reason, a doctors failure to report can have serious consequences, not only for the innocent victims of car accidents caused by unfit drivers, but to the doctors who fail to report them.

A judge has fined a Nova Scotia man $700 for driving drunk last spring in an incident that killed his best friend. Jonathan Savoy initially faced four charges, which included impaired driving causing the death of his friend, David MacDonald.

The more serious charge was dropped in a plea bargain deal that involved Savoy pleading guilty to impaired driving, taking a car without permission and driving while suspended.

Susan MacAskill of Mothers Against Drunk Driving said she was appalled with the judge's decision.

"Somebody's dead and nobody seems to be held responsible..."

In 2004, it was estimated that 3,013 individuals were killed in motor vehicle crashes in Canada. MADD Canada estimates that at a minimum 1,157 of these fatalities involved impaired driving. Further, MADD Canada estimates that approximately 68,245 individuals were injured in impaired driving crashes (187 per day).

A $700.00 fine for a drunk driving crash that killed someone. Appalling doesn't begin to describe the situation. It appears I am not the only one that shares that opinion.

Continue reading "Fatal Nova Scotia Crash Nets Drunk Driver $700 Fine" »