Halifax Personal Injury Lawyer Blog

Fashion is preventing skiers and snowboarders from wearing helmets...and it's putting them at risk of brain injury according to a Toronto neurosurgeon.

The Journal of the American Medical Association published a commentary this week from Dr. Michael Cusimano, a neurosurgeon at St. Michael’s Hospital:

"Despite compelling evidence that shows wearing a helmet significantly reduces the chance of head and brain injury, there are still those who argue that helmets are not fashionable or part of the ski culture," wrote Cusimano.

There are certain sporting activities that are known to have a higher incidence of traumatic brain injury:

* Bicycling

* Skateboarding

* Rollerblading (Inline Skating)

In most jurisdictions it's now mandatory to wear helmets when doing any of these activities. People accept that it's just common sense.

Skiers and snowboarders are still resisting mandatory helmet use.

More than 120,000 people suffer head injuries every year in North America while skiing or snowboarding. Recent studies have shown that helmets help reduce the risk of head injuries by up to 60 per cent. Two weeks ago I posted about a similar Canadian study: Brain Injury Leading Cause of Death and Serious Injury for Skiers and Snowboarders

People are going to continue to suffer head injuries and traumatic brain injury claims are going to continue to be filed in the courts. But if the injured person wasn't wearing a helmet, you can expect defence lawyers to be more successful with claims of contributory negligence: that the injured person contributed to their brain injury because they refused to wear a helmet.

What do think? Should helmets be mandatory for skiers and snowboarders?

Continue reading "Brain Injury Claims Will Continue Until Helmets Mandatory" »

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" »

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" »

Head Injury Seminar

Hockey Canada is conducting its 2009 concussion seminar in Regina this week. The seminar, being staged jointly by Hockey Canada and the Dr. Tom Pashby Sports Safety Fund invites hockey player, parents, team managers, therapists, coaches and trainers, physicians and other medical professionals to receive up to date information on the diagnosis, treatment and return to play protocol for players who suffer from a concussion.

Concussions a Problem in Hockey

Former NHL defenseman Jammie Heward was attending the seminar. Heward estimates that he may have had more than 20 concussions during his amateur and professional hockey career.

But:

“The pressure to get back on the ice as quick as you possibly can is so incredible. I don’t mean its pressure from management and trainers; I mean its pressure from the players themselves.”

Players Lie to Play

Heward actually admits that some players will even lie to their trainers and team physicians because they don’t want to be taken out of the lineup.

NFL Acknowleges Brain Injury a Problem

The National Football League is also beginning to recognize the huge problems that concussions pose to professional football players.

Pittsburg Stealers receiver, Hines Ward created a uproar recently when he slagged quarterback, Ben Roethlisberger, for sitting out after suffering a concussion which resulted in Pittsburg loosing in overtime to the Ravens.

Public Service Announcements

My colleague Bruce Stern has posted on the Traumatic Brain Injury Law blog that the NFL in now conducting public service announcements on the danger of concussions and how to recognize the signs and symptoms of concussion.

Dangers in Amateur Sport
I have posted before about the dangers of a concussion in amateur sports.

Ban Fighting in Hockey to Prevent Brain Injuries – Deaths: Expert Panel

NHL, Parents Need to be Aware of Brain Injury from Concussion

In Canada hockey is our national sport, in the United States football carries the same tradition.

More Education Needed

But it is clear that athletes, both amateur and professional, are not being properly educated about the dangers of brain injury caused by repeated concussion.

For more information about concussion and brain injury you can check out my website or contact me to receive a free copy of my book, The Survivor’s Guide to Brain Injury Claims.

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" »

Parental Waivers Not Worth the Paper They Are Printed On?

In what appears to be the first ruling of its kind in Canada, the British Columbia Supreme Court has ruled that parents cannot waive their children's rights to sue for negligence when the child is injured as a result of participating in recreational or sports activities.

In Wong v. Lock's Martial Arts Centre Inc, Justice Willcock held that British Columbia's Infants Act:

"Does not permit a parent or guardian to bind an infant to an agreement waiving the infant's right to bring an action in damages in tort"

The plaintiff, Victor Wong was 16 years old when he broke his arm participating in a martial arts sparing match organized by the defendant martial arts club.

Parent Waivers are Commonplace

Any parent who has had a child participate in minor hockey, basketball, football, martial arts, gymnastics and so on has probably signed a parental waiver. Typically the waivers are broadly worded and release the defendants from any cause of action whatsoever.

Recreational and Sports Organizations Will Have to Be Careful

I am not aware of any equivalent case law in Nova Scotia and this case appears to be the first of its kind in Canada. What it means for the future is that organizations that hold recreational or sports activities will need to be more vigilant to ensure that they are not negligent in the way they organize their activities.

What do you think? Have you ever signed one of those waivers? Ever read it? Perhaps you should next time.

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

Father Acts as Litigation Guardian

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

Claim Settled

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

Claimant Dies Before Payment

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

Insurance Company Tries to Back Out of Settlement

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

Insurer Knew Claimant Was Brain Injured

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

Insurer "Taking Advantage" of Claimant's Death

Justice Coady stated, at paragraph 26 of his decision:

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

Protecting the Rights of People Who Cannot Protect Themselves

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

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

Moral Obligation May Not be a Legal Obligation

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

Continue reading "Claimant Dies After Settling Claim – Insurance Company Tries to Back Out of Deal" »

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

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

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

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

What do you do? Who do you call?

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

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

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

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

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

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

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

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

Have a great, and safe, summer!

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" »

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" »

The American Academy of Pediatrics (AAP) wants doctors to stop using the term “shaken baby syndrome”.

Shaken Baby Syndrome is a diagnosis used to describe injury to the brain, skull and the spine of infants who have suffered severe shaking.

The AAP has recommended using the term: “Abusive Head Trauma”. This diagnostic term more accurately reflects the nature of the injuries suffered by infants. The term also more accurately conveys the nature of the injury. Shaking an infant can cause bruising, swelling and bleeding to the brain which, according to the National Institute of Health:

“...can lead to permanent, severe brain damage or death.”

The fact remains that many members of the public do not realize that it is possible to suffer a brain injury without striking your head. That is one of the brain injury “myths” that I dispel in my article “8 Myths of Traumatic Brain Injury”.

For more information about traumatic brain injury claims, you can contact me to receive a free copy of my book: The Survivor’s Guide to Traumatic Brain Injury Claims: How to Prove the Invisible Injury.

Technorati Profile

Continue reading "Doctors Call for New Name for “Shaken Baby Syndrome”: Halifax Brain Injury Lawyer Explains" »

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?" »

New Guidelines to Diagnose Mild Brain Injury

The American College of Emergency Physicians has established new guidelines to be used in diagnosing mild traumatic brain injury.

Serious but Undiagnosed Injury

Mild traumatic brain injury has to be one of the most serious, yet undiagnosed health problems in Canada. Unfortunately, the general public has little understanding of what mild traumatic brain injury is and the problem is compounded by a poor understanding by some health professional about the criteria for what constitutes a brain injury.

Each year approximately 700 Nova Scotians suffer a traumatic brain injury. There are up to 5,000 - 6,000 serious car accidents in Nova Scotia and P.E.I. each year. Given the violent nature of car crashes, many of these people will suffer a mild traumatic brain injury, although they may never be diagnosed by a health professional.

No One Knows the Real Numbers!

In their release announcing the new guidelines, the College of Emergency Physicians states:

“The real incidents of traumatic brain injury are unknown since many patients who sustain an injury never seek medical care.”

I fully support any initiative that makes it easier for health professionals to determine when a patient has suffered a brain injury. But more effort needs to be placed on educating the public about the causes, and symptoms, of mild traumatic brain injury.

Thanks to Bruce Stern at the Traumatic Brain Injury Law Blog for bringing the guidelines to my attention.

Related Posts:

Ban Fighting in Hockey to Prevent Brain Injuries – Deaths: Expert Panel

NHL Hockey Stars - Doctors team up to study concussion/brain injuries

Traumatic Brain Injury: Myth # 1 - You have to be knocked out to suffer a brain injury

Traumatic Brain Injury Claims: Myth #2 You Have to Hit Your head to Suffer a Brain Injury

What is a Mild Traumatic Brain Injury?

Continue reading "Brain Injury Claims: New Guidelines to Diagnose Mild Traumatic Brain Injury" »

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 " »

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" »

Two years ago the province of Nova Scotia passed strict new rules for all-terrain vehicles (ATV's) supposedly to protect children from injury.

Rule Ban Children From Riding ATV's

The Off-highway Vehicles Act bans children under 14 from riding ATVs anywhere except on a closed course.

ATV's Pose Risk of Serious Injury to Children:
ATV's have become very popular in the last few years and as their use has increased, the number of serious injuires to children as a result of ATV accidents has sky-rocketed. There has been a call from medical professionals to ban children under age 16 from riding ATV's.

The Canadian Paediatric Society has stated that ATV drivers should be 16 or over, suggesting younger children are not developmentally ready to drive these vehicles.

There have been numerous reports in media about how dangerous ATV's are for young children. See for example: ATVs: Too Dangerous For Kids, Capital Health concerned about rise in ATV injuries

The Facts:

Sales of ATVs more than tripled between 1995 and 2003, rising from about 26,000 units to 94,000 units.

The Canadian Institute for Health Information reports the number of ATV-related hospitalizations increased by almost 50% in five years, from 1,693 in 1996/1997 to 2,535 in 2000/2001.

Children between the ages of 5 and 19 accounted for 36% of all ATV-related injuries.

Of the 92 ATV-related severe injury admissions in 2000/2001 where blood alcohol concentration was recorded, 26% tested positive.

Injuries from ATV-related activities are now the second most common cause of severe injuries in sports and recreation, after cycling.

Province Plans to Train 6 Year Olds to Ride ATV's:

Last week the province's Department of Health Promotion and Protection announced the government was spending $230,000.00 on 66 ATVs so that children as young as six could be trained to ride the vehicles.

Children's Hospital Says Plan May Increase Injuries:

Nova Scotia's Children's Hospital was critical of the plan. Dr. Robin Walker, vice-president of medicine at the IWK Health Centre, said that the training could actually lead to an increase in injuries:

"If this program leads to children more frequently operating ATVs because then their parents think that they're now trained to do so, this program could actually increase the number of children injured and killed," Walker said.

Premier Supports Plan:

Premier Rodney MacDonald supported the plan when it was announced last week. "If it's an investment in safety for our young people," he said at the time, "the government's willing to make it."

Premier Makes a U-Turn on ATV's:

But today Rodney MacDonald has decided he doesn't like the plan after all and he wants his money back. CBC news has reported that MacDonald is demanding the return of the $230,000.00 although he didn't have any details on how that was actually going to happen.

Leaving aside the debate about whether it was a good idea to use public money to train young children to ride ATV's (it wasn't!) the real question in my mind is whether children under the age of 16 should be driving ATV's AT ALL!

ATV's are a motor vehicle, just like a car or a motor cycle. Everyone accepts that one has to be mature enough to drive a car or motor cycle. Children cannot be licensed to drive motor vehicles until they are 16 and then there is a graduated license program to ensure that young drivers can gain the experience they need before getting an unrestricted license.

I have represented many families of children who have been seriously injured as a result of ATV accident's and I have come to the conclusion that children under age 16 simply should not be driving ATV's. Not on closed course. Not with training. NEVER.

What do you think?

Continue reading "ATV's Pose Serious Risks to Children: Premier does a U-Turn" »

On Monday I had the pleasure of golfing in the Brain Injury Association of Nova Scotia's annual charitable golf tournament.

The event went off without a hitch and I wanted to offer my congratulations to BIANS and their volunteers for making the day a great success.

As I mentioned in an earlier post, June is Brain Injury Awareness Month in Nova Scotia.

Brain Injury is one of the leading causes of injury and death in children. As our weather improves (finally) more children are going to be out riding their bikes, scooters and skateboards. Unfortunately, some of them are going to suffer a brain injury as a result of not wearing proper protective gear.

I am posting this public service announcement from the Virginia Emergency medical Services as a reminder for parents to ensure that your kids wear proper safety gear when they are out having fun.

Have a great...and safe...summer!

Continue reading "BIANS Golf Tournament Kicks off Brain Injury Awareness Month" »

Hypothermia therapy, where patients with traumatic brain injury (TBI) are cooled to prevent brain swelling, has shown promise in helping adult survivors of TBI. See this article for example.

However, a study led by researchers at Toronto's Hospital for Sick Children have found that the practice may be dangerous for children with brain injuries.

The study, involved 225 children at 17 centres in Canada, France and the United Kingdom. There was no difference in how the patients in each group recovered neurologically.

However the study found more deaths among the children who had been cooled - 23 versus 14 in the group not treated using hypothermia.

Dr. Jamie Hutchison, director of critical care research at Sick Kids and one of the lead investigators in the study said:

"We were very surprised by these findings, since preliminary research in adults with traumatic brain injury had demonstrated the potential benefit of hypothermia therapy..."

Continue reading "Cooling Therapy for Brain Injured Children Dangerous: Canadian Study" »

June is Brain Injury Awareness month in Nova Scotia!

Traumatic brain injury is the number one cause of injury and death among children in Canada.

This one of my favourite public service messages from the Brain Injury Association. I love the way it gets the message across with humour without losing the point.

For more information about brain injury check out the website of BIANS, the Brain Injury Association of Nova Scotia.

I will be taking part in BIANS's annual charity golf tournament on June 16 at Brightwood golf course. I hope to see you there!

Continue reading "June is Brain Injury Awareness Month in Nova Scotia" »

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!" »

Bisphenol A has been officially named a dangerous substance by Health Canada. The Globe and Mail reported the story here.

There is wide concern that the hormonally active chemical, which is commonly used in products like baby bottles, can have long term negative health effects. Toxicnation.ca published a helpful list of baby bottles that are manufactured using the chemical. You can find the list here.

The move is widely expected to be the first step in an outright ban on the chemical in products designed to contain food or drinks.

Bisphenol A is one of the:

...most widely used synthetic chemicals in modern industry. It is the basic building block for polycarbonate, the see-through, shatter-proof plastic that resembles glass, and is also used to make the epoxy resins lining the insides of most tin cans, along with some dental sealants, sports helmets, and compact discs.

You can read more about the chemical on Kathy Farber's blog Non-Toxic Kids.

Next time you go to the gym, take a look and see how many people are chugging their water out of Bisphenol bottles. The question is, what else are they chugging?

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" »

Lead contamination in toys and other consumer products has been receiving a great deal of coverage from the media lately. See this story, for example.

However, China is not the only source of potentially dangerous toys. The Attorney General of Vermont has sued Canadian Toy manufacturer Ganz Inc. of Woodbridge, Ontario, for distributing items of jewelry and other metal products containing high amounts of lead through retail stores in Vermont.

The lawsuit points out the consumers shouldn't be complacent or assume a product is safe simply because it isn't made in China. So how do you find out if a product is safe?

Katy Farber runs a great blog called Non-Toxic Kids with information about product recalls and contaminated toys and dangerous products. It's a great resource. Check it out.

Health Canada has a website listing all it's Advisories, Warnings and Recalls. You can find it here.

The popular anti-wrinkle drug Botox and a competitor have been linked to dangerous botulism symptoms in some users, cases so bad that a few children have died, the government warned Friday.

Botox, and its competitor, Myobloc, use botulinum toxin to block nerve impulses, causing them to relax. In rare cases, the toxin can spread beyond the injection site to other parts of the body, paralyzing or weakening the muscles used for breathing and swallowing, a potentially fatal side effect.

The drugs are not approved for use with children but are commonly used to treat severe muscle spasticity in children with cerebral palsy.

MSNBC has reported that the FDA:

...warned that patients receiving a botulinum toxin injection for any reason —cosmetic or medical — should be told to seek immediate care if they suffer symptoms of botulism, including: difficulty swallowing or breathing, slurred speech, muscle weakness, or difficulty holding up their head.

Health Canada is now reviewing the safety of Botox as a result of the reported deaths.

Health Canada spokesperson Carole Saindon told CTV News:

"Departmental experts are currently reviewing safety information on the issue of toxin spread regarding Botox. Canadians can be confident that after a thorough review, Health Canada will take action, if necessary,"

These reports highlight the dangers of "off label" use of drugs. Since the drugs are not being used for their approved purpose, they have also not been subjected to testing by the FDA and Health Canada for potential side effects from the non-approved drug use.