Halifax Personal Injury Lawyer Blog

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

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

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

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

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

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

What is the difference between a sign and a symptom?

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

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

Neurological symptoms include:

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

Neurological signs include:

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

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

"What Caused My Injury?"

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

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

Clarification

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

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

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

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

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

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

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

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

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

Want More Information?

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

The book is for sale on Amazon.

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

"Are Whiplash Claims Capped?"

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

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

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

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

Risk Factors for Whiplash

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

Significant Risk

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

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

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

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

New Evidence of Causation in Whiplash Cases

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

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

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

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

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

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

The authors discussed the clinical significance of their findings:

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

Mechanism of Injury Critical

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

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

More Information

Spinal Cord Injury Claims

How Neck Ligaments Are Injured In A Car Crash

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

The Ontario Court of Appeal recently released its reasons in Degennaro v. Oakville Trafalgar Memorial Hospital. The Court of Appeal confirmed a $3 million compensation award for chronic pain stemming from a slip and fall injury.

As far as I can tell, the decision is the largest compensatory damage award from chronic pain in Canada.

Diane Degennaro was visiting her son who was a patient at the Oakville Trafalgar Memorial Hospital. A nurse at the hospital offered Ms. Degennaro a bed to sleep in while she was staying with her son. When Ms. Degennaro sat on the bed it collapsed and she fractured her sacrum (the pointed bone at the base of the spine).

As a result of the injury, Ms. Degennaro developed fibromyalgia and suffered serious chronic pain.

The trial judge awarded compensatory damages totaling more than $3 million.

Chronic pain cases are notoriously difficult to win. When the plaintiff is successful the damage awards are rarely of the magnitude seen in the Degennaro case.

Congratulations are due to Ms. Degennaro and to her trial counsel, Alfred Kwinter and her appellant counsel Paul Pape.

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

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

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

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

Canadian Guidelines Not Clear

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

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

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

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

Further Reading:

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

Body Checking Increases Risk of Bain Injury

Perhaps this new research should have been published in the Journal of Common Sense (if there was such a thing they probably wouldn't have enough subscribers).

A new study of minor hockey players has found that the incidents of brain injury in 9 and 10 year olds has increased ten times since Hockey Canada decided to allow body checking at a younger age in minor hockey.

I have posted many times about the problems with brain injury due to concussion in minor sports such as hockey, football and basketball. See for example:

Hockey Nova Scotia Recommends New Concussion Policy to Prevent Brain Injury

25% of Junior Hockey Players Suffer Brain Injuries: Ontario Medical Study

Another Study Linking Football and Brain Injury

Ignoring the Problem?

However, it seems that players, fans and officials were turning a blind eye to the problem until recently.

No doubt the high profile given to the injuries suffered by Sydney Crosby has played a part in recent public interest.

Professional Sports Starting to Pay Attention

For example, the NHL has announced details of a new concussion protocol that will require players showing symptoms of concussion to be tested by a doctor before returning the play. Until now, sports trainers would conduct player examinations on the bench during a game.

Last week the National Football League announced that this coming season every team will be required to use the same standard test: “the NFL sidelines concussion exam” to evaluate whether a player has sustained a concussion (or more serious brain injury). [Thanks to my colleague Bruce Stern at the Brain Injury Law Blog.]

What About Our Children?

While the "powers that be" in professional sports appear to be taking steps to protect the athletes that work so hard to entertain us, I have to ask: "Who is looking out for our children?"

Decade Long Study

Dr. Michael Cusimano of St. Michael’s Hospital in Toronto reviewed the records of more than 8,500 boys aged 6 to17 who attended Ontario area emergency departments for hockey related injuries during a 10 year period.

Dr. Cusimano is the volunteer Vice President of Think First Foundation of Canada, a non-profit organization dedicated to the prevention of brain and spinal cord injury.

More than half of the reported injuries (4,460) were the result of body checking!

But the scariest finding was that the risk of a head or neck injury, including concussions increased significantly across all minor hockey divisions.

It is simply common sense that we shouldn’t do anything to unnecessarily increase the risk of injury to our children.

The rule change that allowed body checking for 9 and 10 year olds in the Atom hockey division is simply wrong. It does not increase children’s skill levels. It does not teach them how to “take a hit”. It simply increases the risk of injury and exposes children to serious, potentially life threatening, brain injuries.

Want to do something about it?
Email Sean Kelly who is in charge of Regulations and Legal Affairs for Hockey Canada. Tell him you oppose body checking for 9 and 10 year olds.

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

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

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

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

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

What do you think?