New Lawyer Practice Series Part 3: Plaintiff’s Personal Injury Law

The third part of our blog series entitled: Developing and Funding  a Plaintiff’s Personal Injury Practice.

In this post we will take a look into developing systems for document gathering and file development and its importance through the various stages of litigation.

File Development and Progression

In our office, we have dedicated a lot of thought and energy to developing systems for document gathering and file development.  If you are running your law firm like a business you will realize that it is very important for files to move as quickly as possible through the various stages of litigation.  This is what your client wants and this is also in your best financial interest as all or nearly all of your retainers will be on a contingency basis whereby you are not receiving fees or recovering your disbursements until the case in concluded.  In the majority of injury cases, you will not be able to get an opinion on the prognosis for the future from a physician until two years has passed from the date of injury.  You should plan to have your case at discovery at or near the two year anniversary of the incident to allow you to set the case down shortly after discovery.

The document gathering process in motor vehicle litigation is essential.  The documents are essential to prepare the client for discoveries and avoid inconsistencies and credibility issues at trial. Productions also provide the building blocks necessary to obtain complete and consistent expert opinion.  Addressing production issues after your client has already been discovered is much more difficult.   To ensure that the necessary document gathering has occurred well before discovery, this process should be started when the file arrives in your office.  Documents you will want to gather for liability and damages along with expert reports are discussed below.

A.     Liability

 1.         Police Report and Template

In a standard motor vehicle collision file, a review of the issue of liability typically begins with the motor vehicle accident report.  The report has numerous pieces of information easily identifiable. However, it is the additional information found in codes along the sides of the report that often go overlooked.  These codes contain important information about the road conditions, weather conditions, alcohol consumption, seatbelt use, and the officer’s assessment of injury at the scene.

2.         Police File

While the police report is a good starting point when reviewing liability, there is additional information that should be obtained from the police file.  The police file will almost always contain the investigating officer’s notebook notes and may also contain key witness statements, field notes, sketches, scene measurements, photographs, and in serious or fatal collisions, a technical traffic investigator’s report.

A written request should be made to obtain a copy of the police file.   Your request will go to the police department which investigated the collision.  As there is no uniform procedure amongst the different police forces regarding production of the file, considerable confusion and delay can be experienced when attempting to obtain these records.

The police file you receive in response to these requests will normally be an edited copy. The material has been reviewed and edited to remove any personal information in accordance with various privacy and policing concerns.

In order to obtain the unedited copy of the police file, you must bring a motion for production of the file pursuant to Rule 30.10 of the Rules of Civil Procedure.  The motion must be served on the non-party (i.e.Ontario Provincial Police,Toronto Police Service,York Regional Police etc.).

3.         Wagg Motion

Where the Defendant has been charged with an offence (i.e. Highway Traffic Act, Criminal Code etc.), it is necessary that your motion also be served on the Ministry of the Attorney General[1].  If charges have been laid, an additional paragraph of relief should be included in your motion to obtain a copy of the Crown Brief. The Crown Brief may include additional material that has been created or obtained in connection with the prosecution of the Defendant. The additional paragraph for relief is as follows:

An Order requiring the Ministry of the Attorney General, to produce and make available to the lawyers for the Plaintiffs, a complete, unedited copy of the Crown brief or briefs, as they may now exist, all exhibits and transcripts of any and all proceedings for which transcripts exist, with respect to charges laid against the Defendant, John Doe.

Recently, the Ministry of the Attorney General has relinquished its review and vetting of files to the local police service where the charges against the Defendant are limited to Highway Traffic Act or Compulsory Automobile Insurance Act offences. Where there is a combination of charges which include a Criminal Code offence, the Ministry of the Attorney General will continue to deal with the production request.   It is important that you serve the Ministry of the Attorney General, notwithstanding that it may be that the local police force ultimately responds to your production request.

4.         Damage and Repair Documentation

It is important to also request and obtain a copy of the Defendant’s Affidavit of Documents before discovery.  There will likely be additional liability documents under Schedule “A” of the Defendant’s Affidavit of Documents that will help to prepare your client.  For example, the Defendant’s Affidavit of Documents should contain the damage documentation regarding the Defendant’s vehicle.  This will likely include photographs, appraisals, estimates and repair documentation.  A careful review of the Defendant’s Affidavit of Documents is required to ensure that proper production has been made by the Defendant.  If you find that there are missing documents that ought to have been included in the Affidavit of Documents, request these from the Defendant before discovery.

5.         Vehicle Collision Data

Where liability is going to be a significant issue, you will want to ensure that your client’s vehicle and the Defendant’s vehicle are not altered, destroyed or disposed of before your liability expert has had an opportunity to inspect the vehicles.  Crucial information may be available from an inspection of the vehicles by your expert.   For example, your expert may be able to obtain key data from a vehicle’s air bag module.   Since the early 90’s, vehicle manufactures have equipped their vehicles with air bags. Some manufacturers use deployment sensors to measure accelerations during the crash. This measurement device is located in the Sensory and Diagnostic Module (SDM). The SDM measures the crash to determine whether to fire the air bags. The information is then recorded in the Event Data Recorder (EDR) or Crash Data Retrieval (CDR) system. Other sensors, such as the brake switch, gather information which is also relayed to the data recorder during an event.  The data recorder, similar to an airplane’s “black box”, is typically located in the passenger compartment of an automobile. The data recording is triggered by an air bag deployment and/or some near-deployment events.  Recorded information can vary, but usually consists of pre-impact speed, braking behaviour, seat belt usage and position of the throttle.  Depending on the vehicle some or all of the following data will be recorded and can be downloaded by your expert:

  • Vehicle speed (5 seconds before impact)
  • Brake status (5 seconds before impact)
  • Engine speed (5 seconds prior to impact)
  • Ignition cycle count at event time
  • Ignition cycle count at investigation
  • Passenger’s airbag state (enabled/disabled)
  • State of driver’s seat belt switch (on/off)
  • Throttle position (5 seconds before impact)
  • Time between near-deploy and deploy event
  • Time from vehicle impact to airbag deployment
  • Warning Lamp status (or/off)

At this time, approximately 95 % of GM vehicles use a recording system in which this data is retrievable. Currently some Ford vehicles have a RCM’s (Restraint Control Module) that can be retrieved for analysis.  Although this data may not be available on all vehicles, when it is, it can be most beneficial in an accident reconstruction situation.

In addition to information available from the vehicle’s air bag module, the ability of your expert to investigate and document the condition of the vehicles personally is important.  Exercising this opportunity may ultimately become one of the reasons why, at trial, your liability expert’s evidence is accepted over the opposing side’s liability expert who may not have personally inspected the vehicle.

Where the safe keeping of the vehicle is in doubt, you should bring a motion for the interim preservation of the vehicle under Rule 45 of the Rules of Civil Procedure.  In addition, a motion may also have to be brought for the right to inspect the vehicle pursuant to Rule 32 of the Rules of Civil Procedure.

6.         Client’s Accident Benefit File

Obtaining and reviewing your client’s complete accident benefit file is also necessary when gathering liability information.  Typically, your client will have provided an adjustor with a signed statement about how the collision occurred.  Additionally, the “history” section of health practitioners’ reports may include your client’s information about how the collision occurred.  These statements should be reviewed by you and your client before discovery.

7.         Weather and Environment Records

When the accident may involve a road authority, environment records and a forensic weather expert will be required. A comprehensive request for records should be made to Environment Canada or through your expert climatologist or meteorologist.

8.         Ministry of Transportation Records

When road authorities are involved, additional documentation can be obtained from the Ministry to determine liability.  These include a request to the Ministry for the following:

i) Motor Vehicle Collision Reports and Summaries (MTO) 

In addition to the standard motor vehicle collision reports generated and prepared by the local police following a collision and deposited with the Ministry of Transportation, the Ministry also keeps a data base of auto collisions known as Collision Summaries.  The summaries allow counsel to identify the nature and extent of motor vehicle collisions along a particular stretch of highway. The Collision Summary Sheets include the time, date, specific location along the highway where the accident took place, a description of the nature of the collision, and the road and weather conditions prevailing at the time.

ii) Ministry of Transportation Searches

These are standard requests in any auto related litigation and include the Driver Record searches; VIN # search; license plate search, maps, diagrams, policies and procedure manuals related to the particular issue.

9.         Ambulance Call Report 

Valuable information may also be obtained concerning the roadway conditions from observations noted by the ambulance attendants at the scene and on the way to the scene. Requests with the $60.00 fee can be made to Emergency Health Services, ICRCG 5700 Younger Street, 6th Floor North York, Ontario, M2M 4K5.

10.       Fire Department Records  

Like the ambulance attendants, the fire department is normally on the scene shortly following any collision.  The Fire Department Standard Report or the Fire Department Response Report may have valuable information concerning the weather and road conditions.

We will continue next time on documents relating to damages.

[1] See P. (D.) v. Wagg (2004), 71 O.R. (3d) 229 (Ont. C.A.), where the Court held that where the Crown Brief, or part, is sought in relation to a companion civil proceeding, the consent of the Attorney General and the police service, or an order of the Court, after notice to the Attorney General of Ontario and the appropriate police service, is required.


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