Tag Archives: brain injury

Contributory Negligence and Helmet Use: Recent Updates to the Law in Ontario

Written By: Patrick Brown and Endrita Isaj, Student-at-Law

Although it is agreed that a properly fitted bicycle helmet may reduce the impact of head injuries, the helmet is considered to be the last line of defence available to a vulnerable road user when being struck down by drivers who navigate a two-ton high-speed machine. The first and foremost focus of road safety should always be to ensure contact is avoided and that drivers follow the rules of the road, reduce speed and avoid distractions. Municipalities should also build safe infrastructure that allows safe riding and driving for all. Despite the fact that the primary cause of road violence falls in many cases with drivers and governments, it does not mean that when they cause serious injury or death, they will not seek to try to limit their responsibility by asserting what is called the “helmet defence” against the injured or killed cyclist.  In Ontario, the defence has very little success and is difficult to prove. That being said, it is something that all riders should be aware of.

First, it is necessary to understand what contributory negligence is. It is the principle that is used by defendants to limit liability if they can establish that the plaintiff caused or contributed in any way to their injuries or damages.

The seminal case of Snushall v Fulsang, 2005, OJ 4069 [Snushall] dealt with contributory negligence in the context of seat belts, but has established the legal groundwork for contributory negligence in the absence of helmet use. Snushall was an important case for setting the limit for contributory negligence at 25% for the failure to wear a seatbelt.

Recent Case Law:

In the case of Labanowicz v Fort Erie (Town), 2017 ONSC 630 [Labanowicz], the plaintiff was injured when she was biking on a municipal trail and her bicycle’s wheel struck the metal bracket of an empty housing that would have contained a bollard. The plaintiff flew off of her bike and suffered serious injuries from the fall, including a concussion. She was not wearing her helmet when the accident occurred.

In its decision, the court did an analysis of causation and the contributory negligence of the plaintiff. When considering contributory negligence, the court considered how the absence of a helmet when biking contributed to any of the plaintiff’s injuries.

The defendant attempted to lead evidence of literature that a bicycle helmet prevents up to 88% of brain injuries. The court took issue with the reliance on statistical generalizations that the defendant put forward, stating that the court would be erring if they accepted the “bald assertion” advanced by the defendant’s counsel. The court was not persuaded that the plaintiff would have belonged to the 88% group, as evidence of the injuries she sustained that were recorded in the ER records were inconclusive at best.

The defendant had presented no expert evidence or biomechanical evidence to allow the court to draw a conclusion that the lack of a helmet had any impact on the severity of the plaintiff’s injuries. There was no admissible evidence presented that allowed the court to assign contributory negligence to the plaintiff for her failure to wear a helmet when biking. The defendant was held fully responsible for the accident.

The court’s decision in St. Marthe v O’Connor, 2019 ONSC 1585, followed much of the same reasoning as in Labanowicz. In St. Marthe v O’Connor, the cyclist was biking to work in the morning when the defendant drove out of a gas station roadway, striking the plaintiff on his bike and knocking him to the ground. The plaintiff was not wearing a helmet when he was struck by the car. The plaintiff was found not to be contributorily negligent, even though he was not wearing a helmet because the defendant did not establish the necessary causal link between the alleged contributory negligence and the plaintiff’s injuries. The court was clear in its reasoning that expert evidence must be led to establish this important causal link, in order to prove that the plaintiff was responsible for a certain part of their injuries.

In Repic v Hamilton (City), 2009 OJ 4657, the plaintiff was 14 years old when he was struck by a car when he was riding his bike across an on-ramp. The plaintiff was not wearing a helmet when he was struck by the car. When deciding on the issue of contributory negligence, the court did not find the plaintiff contributory negligent on the specific issue of helmet wear. The defendant did not lead evidence before the court that the head injury the plaintiff sustained would not have occurred if the plaintiff had been wearing a helmet. The defendant’s counsel led evidence of literature that helmets reduced the risk of head injuries by 60-75%. The court was not swayed by this statistical generalization either, holding that the extent that the helmet would have reduced the plaintiff’s head injuries was still unknown. The plaintiff was found not to be contributorily negligent for his failure to wear a helmet, but was contributorily negligent for other reasons.

These cases are important in demonstrating that the defendant must lead expert evidence in order to establish the plaintiff’s contributory negligence when failing to wear a helmet. Even when a negligent defendant is able to prove with medical and engineering evidence that the brain injury would have been reduced by helmet use, any percentage that will apply will be nominal in light of the Court of Appeal’s ruling in Snushall and the fact that helmet use, unlike seatbelts, is not mandatory for adults.

If you or someone you know has been injured in a cycling incident, please do not hesitate to contact the lawyers at McLeish Orlando for a free consultation.

2020 Awards of Excellence in Brain Injury Rehabilitation

As a member firm of PIA Law, McLeish Orlando is proud to present the 2020 Awards of Excellence in Brain Injury Rehabilitation, in partnership with the Ontario Brain Injury Association (OBIA).

These awards are designed to recognize individuals and organizations that provide exceptional service to the brain injury community in the following five categories:

  • Hospital Social Worker of the Year
  • Case Manager of the Year
  • Health Care Provider of the Year
  • Community Brain Injury Association of the Year
  • Rehabilitation Company of the Year

Click here to register to receive the Zoom link to view the event.

For more information on the Awards of Excellence, see Rules and Regulations.

Guelph Lidz on Kidz

On Saturday, May 23, 2020, The Brain Injury Association of Waterloo Wellington and McLeish Orlando Lawyers had planned to host our first ever Bike Rodeo! We had planned to invite the community to attend a completely free event with the hope that we can educate them on brain injury prevention, promote road safety and public awareness for cycling safety ahead of the summer months!

We had a great day planned – including a bicycle obstacle course running throughout the day. Children would have participated while learning about road rules and injury prevention. Most importantly, there would have been free children’s helmets and helmet fittings.

Due to the COVID-19 pandemic, we were unable to have this event but still wanted to educate the public and distribute helmets to children in need.

On July 11, 2020 we will be in Guelph to hand out the helmets that have been requested through our website. Once you request a helmet, we will contact you to arrange a contactless pick-up. Please note, this is for the Guelph and Wellington County area only.

More about Lidz on Kidz:

The mandate of the Lidz on Kidz program is to provide free educational sessions to generate awareness on the key messages on brain injury and prevention to the general public.

Lidz on Kidz is also a community effort dedicated to providing bicycle helmets to children whose families cannot afford helmets. If your child needs a helmet to ensure that he/she is safe while enjoying the exercise that bicycling can provide please contact the Brain Injury Association of Waterloo-Wellington at 

2020 Awards of Excellence in Brain Injury Rehabilitation

Nominations are now open for the 2020 Awards of Excellence in Brain Injury Rehabilitation. Nominate from June 1 to July 3 for any of the five Awards of Excellence by clicking here.

Voting will be open from August 3 to August 31.

These awards will be presented by the Ontario Brain Injury Association (OBIA) to recipients who have been selected by their peers for providing exceptional service to the brain injury community in the following categories:

  1. Hospital Social Worker of the Year
  2. Case Manager of the Year
  3. Health Care Provider of the Year
  4. Community Brain Injury Association of the Year
  5. Rehabilitation Company of the Year

Click here for more information.

The Record – Here’s what one local charity has learned from the pandemic

“Here’s what one local charity has learned from the pandemic,” published by Luisa D’Amato for The Record, discuss the Brain Injury Association of Waterloo-Wellington (BIAWW), and how they are pivoting in order to support their community during the current COVID-19 pandemic.

The article is in interview format with Lynda Abshoff, the executive direction of BIAWW. One of BIAWW’s major fundraisers is making and selling greeting cards handcrafted by brain injury survivors. They used to get together in person to make them, but now some of the card makers have taken supplies home and can connect online while making the cards. For some brain injury survivors, it is easier for them to be in their own space and using the tools online to connect, rather than meeting in person. “Like introverts, some brain injury survivors are more comfortable talking and sharing stories without making eye contact. Online activities allow them to stay connected and still work on meaningful projects. We will absolutely continue to hold these activities online,” says Abshoff. McLeish Orlando’s 2019 holiday cards were made by BIAWW’s community of brain injury survivors. While BIAWW’s local retail card locations are all closed right now, they have online card sales. Click here to learn more.

Perhaps the most poignant takeaway from this article is the connection that Abshoff makes between brain injuries and isolation, “The rest of the world now knows what it`s like to be isolated. Brain injury survivors, because of their inability to work and be out in society, have been isolated for years. That was their normal before, so it may not be as much of a shocking change for them as it is others.”

McLeish Orlando is proud to support incredible organizations like the Brain Injury Association of Waterloo-Wellington (BIAWW). During this current pandemic, organizations like BIAWW are adapting to maintain support for its members. We are proud to support this great organization. Click here to find out how you can also support BIAWW.

Eastwood v Walton, 2019 ONSC 4019

Written By: Patrick Brown and Ryan Marinacci, Summer Student

Therefore the plaintiff submits, we are left with a commercial host, a patron with approximately three times the legal limit of alcohol in her system who left the establishment, drove her car and caused an accident resulting in devastating injuries to the plaintiff and the liability for the plaintiff’s damages should be left to a jury.

A jury is well able to decide whether Versailles met its duty of care related to how they served alcohol and tracked the consumption of individual patrons.”

In his recent decision Eastwood v Walton 2019 ONSC 4019, Justice Sloan dismissed the defendant banquet hall’s motion for summary judgment against the plaintiff due to the absence of direct evidence from any of the servers or bartenders serving alcohol at the event on the night in question.

The plaintiff sustained serious injuries in a motor vehicle accident on the night of November 24, 2012, including a traumatic brain injury.  The defendant driver was on her way home from a company Christmas party held at the defendant banquet hall where she had spent the evening drinking.  Liability was not at issue as between the two drivers.  The plaintiff also started an action against the defendant banquet hall, claiming it breached its duty of care as a commercial host by serving the defendant driver to the point of intoxication and allowing her to leave.

The defendant banquet hall moved for summary judgment against the plaintiff.  The banquet hall emphasized the evidence from the driver’s co-workers, none of whom had noticed any signs of intoxication.  Hence, the banquet hall submitted, its staff would not have noticed any intoxication either if no one sitting at the table did, relying on Stewart v Pettie 1995 SCC 147.

The banquet hall also contended that it met its duty of care as a commercial host by requiring the thirty on-shift servers and bartenders to have Smart Serve Training and to report intoxication, and by posting notices about alcohol consumption and taxi company phone numbers.

In response, the plaintiff made three essential points.  First, taking issue with the co-worker statements, the plaintiff submitted that these were interested witnesses (at the time of the Discovery, they were employees of the defendant company who hosted the Christmas party) and pointed out that no one saw the defendant driver leave.  While she could have left between 9-9:30pm as indicated, it was also likely that she stayed longer in the room of 350 to 400 people and kept drinking.

Second, relying on its reports by a toxicologist and a commercial host expert, the plaintiff emphasized that a jury could find that the banquet hall did not meet industry standards despite the defendant not showing signs of intoxication.  Importantly, the plaintiff distinguished Stewart because in that case it was reasonable for the establishment to assume one of the two sober individuals would drive the group home as they had arrived together.  Here, the defendant had arrived alone and was attending the event by herself, which precluded a reasonable assumption that someone else would drive her home.

Third, and most importantly, the banquet hall failed to produce any of the staff on-shift serving the alcohol on the night in question.  This was critical, as Justice Sloane concluded:

[62] Currently there is no evidence from any of Versailles’s staff who were on duty on the night of the accident, with respect to what they understood their duties were in regards to alcohol service and patrons and what if anything they noticed on the night in question.

[63] The statement of claim was issued November 20, 2014, and assuming that it was served on Versailles shortly after that date, they have had over 4 years to try to contact the staff they had on the night in question.  It seems unusual that an employer would not have the SIN numbers of their employees and some method of contacting them even if they were casual.

[64] The court was not directed to any evidence to show what efforts have been made by Versailles to contact their casual staff.

[65] Based on the evidence produced on this motion the court is unable to conclude whether or not staff members were at the exits so that they could assess the sobriety of patrons when they were leaving so they could intervene if they thought it necessary.

In the absence of direct evidence on the procedures followed by the staff with respect to serving alcohol, Justice Sloane was not prepared to grant the summary judgment.  The motion was dismissed with costs.

Ontario Concussion Rates Are Much Higher Than Previously Reported

Written By: William Harding and Christina El-Azzi, Summer Student

Study from the Journal of Head Trauma Rehabilitation

A concussion  is  a brain injury that results from a blow to the head or body which causes the brain to hit the walls of the skull, resulting in bruising or swelling. Though many concussions heal quickly, they have the potential to have lasting effects and can sometimes result in death.

A recent study by Toronto’s University Health Network suggests that concussion rates in Ontario are almost twice as high as previously recorded. They state that approximately 150,000 concussions get diagnosed in Ontario annually, with children under 5, women over 65 and populations in rural communities being the most susceptible.[1]

Are We Dealing With a Concussion Epidemic?

Though the dramatic increase in the rate of reported concussions appears to be alarming, the team at Toronto’s University Health Network believes the dramatic spike is influenced by increased public awareness surrounding brain injuries rather than an increase in the actual number of concussions.

Public education surrounding concussions has ramped up in recent years. This is likely due, in part, to the highly publicized death of Rowan Stringer. Rowan was a 17-year-old Ottawa girl who died after sustaining multiple concussions while playing high school rugby. Rowan’s Law, legislation which establishes safety protocols for young athletes suspected of having a concussion, was born out of this tragic incident. The NFL concussion class action also played a role in publicly highlighting the serious risks associated with repetitive brain injuries.

The limited scope of previous studies done in Ontario with regards to concussion rates may have also contributed to the skewed statistics. Previously, studies only considered smaller jurisdictions, single causes of injury, or they focused on specific pockets of the population. By using a larger research sample (records were pulled from a province-wide health data repository), the research team at Toronto’s University Health Network was able to offer a much more comprehensive look at concussion rates in the province.


The importance of public awareness and education surrounding concussions persists because concussions are invisible injuries, unseen by the naked eye or on many forms of diagnostic imaging. They can easily be downplayed by the patient or misdiagnosed by the treating physician.

Concussions range in severity from mild to debilitating. If left untreated, symptoms such as headaches, mental fog, and fatigue can persist for years.

The more information we have about concussions, the better equipped we are to prevent and efficiently treat them. Keep the following in mind:

  • The best way to prevent a head injury is to protect the head. Always wear a properly fitted helmet that is appropriate for the activity you are participating in.
  • Always ensure that you and your fellow passengers are wearing seatbelts when in a vehicle.
  • Know the signs and symptoms of concussion which includedizziness, headaches, nausea, sensitivity to light, blurred vision, ringing in the ears, lack of concentration, problems with balance, and trouble speaking. Note: You do not always lose consciousness when you sustain a concussion.
  • Remove yourself from the situation immediately if you suspect that you have been injured.
  • Do not take a chance! If you are having any symptoms, it is important to seek medical attention.
  • Do not return until all symptoms have dissipated and you have been medically cleared. The risks associated with concussions are exacerbated if multiple concussions are suffered, especially if they happen within a short period of time!

If you or someone you know has suffered from a severe concussion, contact one of the critical injury lawyers at McLeish Orlando LLP for a free consultation.

[1] Langer, Laura & Levy, Charissa & Bayley, Mark. (2019). Increasing Incidence of Concussion: True Epidemic or Better Recognition? Journal of Head Trauma Rehabilitation.

Living with a TBI: Your Brain on Exercise

BrainInjuryWritten by: Dale Orlando

We all know that regular physical activity plays a leading role in the maintenance of overall health. Reduced risk of illness such as cardiovascular disease and type 2 diabetes, weight control, increased energy and sound mental health are just some of its many benefits. Along with a balanced diet, exercise can contribute to a life free of serious health concerns.

But when you are living with a TBI, what are the implications of fitness on your health? That is topic of discussion that is much less common.

Why do many TBI patients shy away from physical activity?

For many survivors of traumatic brain injury, the main priority is to once again become comfortable with the activities of daily life. Participation in physical activity may seem out of the question, and as a result, individuals can quickly adapt to a sedentary lifestyle. The role of fitness in the recovery of traumatic brain injury has not been researched extensively; but recent studies have suggested that the benefits of physical activity are just as relevant for those who have suffered a serious brain injury.

How can exercise impact a TBI patient’s quality of life?

It has been shown that people with TBI who exercise have fewer physical, emotional and cognitive symptoms, which contributes to an overall increase in their quality of life. Study subjects experienced fewer sleep problems, showed less irritability and forgetfulness, and even reported less depression.

A condition known as heterotopic ossification can occur as a result of changes in the brain and reduced activity after an injury. Extra bone may form around the joints which causes pain and discomfort and can be a serious obstacle in an otherwise uncomplicated recovery. However, it can be prevented and reduced with physical activity.

Regular exercise is crucial in the control of side effects, which can otherwise interrupt an individual’s ability to return to a normal life. Considering that this is the goal for many TBI survivors, the importance of a healthy lifestyle is undeniable.

Can exercise also benefit the recovery of the brain itself?

Physical activity does have a tremendous impact on the health and recovery of the brain itself. Studies have shown that regular exercise results in increased blood flow and neuro-regeneration of the hippocampus, the area that controls memory. According to the Brain Injury Recovery Network, a physically active lifestyle can actually assist in restoring the damaged areas of the brain.

It is evident that physical activity has a significantly positive impact on not only controlling the physical, emotional and cognitive symptoms that come with a traumatic brain injury, but also facilitating the recovery of impaired areas of the brain as well.

We’re proud to be advocates of healthy living

McLeish Orlando is proud to advocate the importance of healthy living both in our office and for our clients year-round. We’re dedicating the month of June to celebrate a new health initiative. We invite you to keep up with our #MOfit campaign on Twitter and be sure to check back for more blog posts on healthy living.

The 2015 Traumatic Brain Injury Conference

The 2015 Traumatic Brain Injury Conference is a one day conference hosted by UHN’s Toronto Rehabilitation Institute. The conference will cover all ranges of Traumatic Brain Injury (TBI). This event is for healthcare practitioners who contend with traumatic brain injury in their practice: physicians, therapists, nurses, social workers, program service managers, researchers and service providers from rehabilitation, insurance and legal organizations.

Continue reading

Designating Traumatic Brain Injuries

As the phrase implies, “Traumatic Brain Injury” (“TBI”) refers to damage to a person’s brain as a result of trauma. TBIs have become a pervasive feature of the Canadian social landscape. Where, 30 years ago, certain kinds of trauma to a person’s head would have been fatal, medical advancements now result in more people surviving. This, in turn, means that an increased number of Canadians live with the ongoing effects of a TBI.

The symptoms of TBIs present on a spectrum – anywhere from mild and short-lasting on one end to severe and permanent on the other end. Continue reading

A Weekend of Giving Back

McLeish Orlando Supports BIST 5k Run, Walk and Roll and SCIO Wheelchair Relay Challenge

This past weekend, McLeish Orlando staff, family and friends came out to support two very important causes in our community. In spite of the rain on Saturday, there were close to 300 participants who finished the race for the 3rd Annual BIST 5K Run.

McLeish Orlando participated as part of The Personal Injury Alliance with a team of close to a hundred staff and supporters.

Through sponsorship, fundraising and registration, BIST generated over $50,000 that will go a long way in supporting programs, services and efforts to raise brain injury awareness.

The Brain Injury Society of Toronto supports brain injury survivors and family members. BIST aims to enhance the quality of life for people in the City of Toronto, living with the effects of brain injury through education, awareness, support and advocacy.

Photos from bist.ca- Click the photo to enlarge


As part of our weekend of giving back, on Sunday we participated in Spinal Cord Injury Ontario’s Wheelchair Relay Challenge held at Ontario Place.  Continue reading