Halifax Personal Injury Lawyer Blog

"I always feel like somebody's watching me."

Remember that song from the 80's one hit wonder Rockwell? It's one that many claimants in personal injury claims feel like singing.

Secretly Watching You

In many serious injury cases the insurance company that represents the defendant will hire a private investigator to follow you and secretly video you going about your normal daily activities.

Why Do They Do This?

There are two reasons why insurance companies do this:

1. To see if your injuries are genuine. Do you walk with a limp? Do you need to use a cane? Do you have difficulty bending over or kneeling down? Problems lifting your groceries out of your trunk? In other words, is it obvious to anyone looking at you that you have suffered a serious injury?

2. Ammunition: To try to get information that can be used to defend or minimize your claim. Say for example the private investigator gets videotape of you taking your garbage to the curb in the morning. Perhaps they videotape you mowing your law or trying to shovel your sidewalk. Maybe looking at the video you don't appear to be hurting all that much.

The Problem With Surveillance

What videotape doesn’t show is what happens behind closed doors: the hours that you spend laying down because the physical activity has aggravated your injuries.

How Surveillance Can Be Used Against You

Surveillance can be very damaging to the plaintiff who hasn't been properly prepared for discoveries. The insurance company’s lawyer may ask: “So tell me what kind of things your injuries prevent you from doing? Are you able to take out the garbage?”

An unprepared plaintiff might say “No, I can’t take out the garbage.”

Now what she really means is “...taking out the garbage aggravates my pain, sometimes I have to take medication and lay on the couch for hours waiting for the pain to subside. So I try to avoid taking out the garbage whenever I can.”

Unfortunately, it takes too long to say all that so the unprepared plaintiff just says: “No, I can’t take out the garbage”. Then the insurance company’s lawyer plays the video of you taking out the garbage and all of a sudden you look like a liar.

Surveillance More Common

When I first started practicing as a lawyer I used to do insurance defence work. Surveillance video was rarely used back then. But now I see surveillance video used routinely in almost every serious injury claim.

Boy Scout Motto

That’s why I tell all of my clients that they should act like boy scouts and be prepared.

Be prepared for the fact that the insurance company may have you under surveillance.

Be prepared to give your evidence at discovery.

Be prepared for your testimony at trial.

Free Report

That’s why I have prepared a report that I give to all of my clients well in advance of the discovery telling them what they need to do to prepare to give their evidence.

You can get a free copy of the report “10 Tips to Prepare for your Discovery Examination” by contacting my through this blog.

"An expert is a person who has made all the mistakes that can be made in a very narrow field."
Niels Bohr

Witnesses in a personal injury claim trial, or any trial for that matter, are only allowed to testify to facts. However, in some circumstances a witness may be allowed to offer an opinion. Only witnesses that have been accepted by the court as an expert in their field can offer their opinion.

Who Can Be An Expert?

Almost anyone can be qualified as an expert if they have special knowledge in a certain field that the average person doesn’t have.

Personal Injury Claims

However, there are certain experts that routinely testify in personal injury claims:

Doctors: Your doctor and any of the specialist that have treated you will normally testify about the nature of your injuries, the symptoms you exhibited, the treatment they administered and their prognosis (their opinion) as to how your injuries will effect you in the future.

Physiotherapists: Your physiotherapist will testify about the treatment you needed and that you will need to get in order to fully recover from your injuries.

Occupational Therapists: Will testify about the limitations that your injuries have caused and how they impact your ability to work or perform your normal day to day activities.

Actuaries or Economists: Will testify about how much income you have lost to the date of trial, how your injuries will effect your ability to earn income in the future, and calculate the cost of your ongoing medical rehabilitation expenses.

Future Care Planners: Will provide their opinion about what types of aids you require or expenses you are going to have to hire people to help you with your normal day to day activities.

Each of the experts that testify on your behalf will bring special knowlege to the case in order to help prove a different aspect of the damages or losses that you have suffered as a result of your injuries.

Continue reading "Experts in Personal Injury Claims " »

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" »

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.

Balancing Act

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" »

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" »

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?

The honest answer to both of these questions (at least during the initial interview) is: “I don’t know”.

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.”

In the 11 years since the Carter v. Anderson decision there has been a tremendous amount of confusion experienced by lawyers, insurance companies and the courts as to how to properly calculate a loss of housekeeping capacity.

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."

Decision Provides Clarity

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 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.

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" »

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

In other words, if you have a "minor injury", as defined by the AIRA law, 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 #2 :

If your injury "resolved" within 12 months of your car accident, it will be considered a "minor injury".

The AIRA law defines a minor injury as any injury that:

...resolves within twelve months following the accident.

What Does Resolves Mean?

Now you and I know what resolves means; it means you are better! If you aren’t better in one year your injury has not “resolved” and you are entitled to more than $2500.00 in compensation. Right?

Wrong! As if things weren’t complicated enough, in an effort to:

Limit the ability of innocent car accident victims to get compensation for their injuries; and

Increase insurance company profits,

the government of Nova Scotia created regulations “defining” what the word “resolves” means.

According to the Minor Injury cap law, "resolves" means...

…does not cause or ceases to cause a serious impairment of an important bodily function which results from a continuing injury of a physical nature to produce substantial interference with the person’s ability to perform their usual daily activities or their regular employment…

In other words, if you are in a car accident and spend 6 months in a body cast and then 5 1/2 months in painful rehabilitation, but you pretty much fully recover within a year, you may be considered to have a minor injury. Your claim for pain and suffering may be capped at $2500.00.

"How Do I Prove My Injury Hasn't Resolved?"

In order to prove that you do NOT have a minor injury you must provide proof that your injury did not "resolve" within 12 months. How do you do that? By having your doctor 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 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

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