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Toronto family launches $3.2 million damage suit against TTC

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Toronto (July 3rd, 2013) – The family of a 48-year Toronto woman, struck and killed by a TTC bus last January, has launched a $3.2 million damage suit against the driver – who faces charges arising from the tragedy – and the Toronto Transit Commission.

“The sad reality, is that what happened to Wendy Martella, could happen to anyone,” said Dale Orlando, of McLeish Orlando LLP, the lawyer representing the Martella family. “Wendy was simply crossing the street, on her way home from work as a Senior Management Support Officer with Scotia Bank, when she was struck and killed by the TTC bus as it accelerated through a red light, without warning.”

The TTC bus driver, Magdalene Angelidis, appeared in court on Thursday, June 6th, 2013, on charges of careless driving and failing to stop at a red light.

Orlando writes in the statement of claim, that on January 23, 2013, at approximately, 4:00 p.m., Angelidis stopped the TTC bus in the intersection of Eglinton Avenue and Sinnott Road to pick up a passenger. The bus drove through the intersection, and a red light, striking Martella as she crossed the street on a green light. She suffered serious injuries, and died the following day at Sunnybrook Medical Centre.

The Martella family, alleges the TTC bus driver was distracted and failed to follow proper protocols by making an unscheduled stop in an intersection, writes Orlando in the statement of claim.

The TTC bus driver is scheduled to make a second court appearance at Old City Hall court on July 4.

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Study highlights need for brain injury awareness

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Brain injuries are occurring at an alarming rate among Ontario teenagers, a new study has found, making education and awareness on the effects of a blow to the head crucial for parents, says Toronto critical injury lawyer Dale Orlando.

“I think there’s a common misconception where people talk about a concussion without understanding that a concussion is considered to be a brain injury,” says Orlando, partner with McLeish Orlando LLP. “A concussion, by definition, is a mild or moderate brain injury.”

The study found that one in five teens in Ontario has had a concussion or another brain injury in their lifetime that was serious enough to leave them unconscious for five minutes or to send them to hospital overnight, CTV reports.

As well, a total of 5.6 per cent reported they had had a concussion or significant brain injury in the past year, it adds.

“Statically, the majority of people who suffer mild traumatic brain injuries go on to have full symptom resolution, but there is a percentage that have significant ongoing difficulties as a result of their mild traumatic brain injury,” says Orlando. “But even for the people that do go on to have a good recovery and are symptom free, they become much more vulnerable to more significant impairments if they suffer a second head injury.”

The study used data from the 2011 Ontario Student Drug Use and Health Survey, CTV reports, noting it used responses from almost 9,000 students from Grades 7-12.

The survey found that the majority of traumatic brain injuries for the teens occurred during sports: 47 per cent for girls and 63.5 per cent for boys, with hockey and soccer accounting for more than half the injuries, the report says.

“I think as parents we have to be hyper vigilant and aware that a concussion isn’t just a minor thing like a scrape or a bruise that happens through the course of childhood that isn’t a big deal,” says Orlando.

“Many Canadian boys and girls grow up chasing the dream of making a living playing hockey, but Peewee games and Bantam games – they’re not the NHL,” he says. “Rules regarding hits to the head should be stringently enforced. Any hit directed to the head should have serious consequences for the person delivering the hit. Hitting from behind, driving somebody’s head into the boards … the penalty should be increased to eliminate it from the sport.”

On the soccer field, Orlando says it’s common to see injuries from regular activities, like heading the ball.

“That may not be appropriate for children of a certain age,” he says.

Orlando says while improvements have been made in sporting rules, more can be done to prevent serious injury.

“I think we’ve come a long way from the days of somebody suffering a concussion and having the coach say ‘Get back out there for your next shift.’ There are practices and protocols in place,” he says. “Parents have to recognize that a concussion is a mild traumatic brain injury and the restrictions associated with return to play are there for a reason.”

Negligent drivers can still pursue claims against a road authority, says decision

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A recent case points out very clearly that there is not an absolute bar when it comes to whether a negligent driver can still pursue a negligence claim against a road authority, Toronto critical injury lawyer Dale Orlando says in Law Times.

Deering v. Scugog (Township), says the article, involves a 2004 motor vehicle accident that left two teenage sisters quadriplegics, with the trial judge finding the defendant municipality to be two-thirds liable with the drive responsible for the remainder. The Ontario Court of Appeal dismissed an appeal last year, and the Supreme Court of Canada denied leave to appeal in December.

As all avenues of appeal have now been exhausted in the case, says Law Times, the Superior Court’s decision is the latest word on the duty of municipalities to keep roads in a reasonable state of repair and the “expected driving capability of the ordinary driver.”

Whether a negligent driver can still pursue a negligence claim, says Orlando, partner with McLeish Orlando LLP who represented the younger sister, “is a question of apportionment after objective analysis of the state of non-repair of the road.”

“Shannon Deering was admittedly negligent. She was over the speed limit on an unfamiliar, hilly road and, accordingly, contributed to the happening of the accident. But that is the second question. The first is: On an objective analysis of the test, did the road represent an unreasonable risk of harm to an ordinary, average user, not to a negligent driver? This includes drivers who are not super drivers,” he says.

Orlando also says he believes that the Deering decision doesn’t create any new tests but reinforces previous decisions. “Municipalities are not held to a standard to make the road safe for negligent drivers. That’s not what the case means,” he explains.

Benefits deduction requires strict burden of proof

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DVOOnly in the rarest of cases will a defendant in a personal injury action be permitted to deduct the value of a future stream of accident benefits from a tort award for future pecuniary loss, Toronto critical injury lawyer Dale Orlando writes in Lawyers Weekly.

Referring to the decision of Madam Justice Darla Wilson, in Hoang v. Vincentini [2013] O.J. No. 321, Orlando says the jury assessed the damages of the injured plaintiff at just over $684,000 for future medical treatment, rehabilitation, attendant care, housekeeping and home maintenance.

“In Hoang, the defendant’s counsel sought an order reducing the award by the amount available to the injured plaintiff pursuant to the statutory accident benefits schedule,” he writes.

“As the plaintiff had been designated catastrophically impaired, had the defendant’s argument been accepted, the amounts remaining available pursuant to the schedule would have effectively reduced the defendant’s obligation to pay the jury’s award for future cost of care to zero.”

In dismissing the defendant’s motion to reduce the damages for future health care expenses, Wilson makes it clear that a defendant seeking such a deduction faces a very strict burden of proof and that a deduction will only be made if the defendant places “persuasive evidence” before the court to demonstrate that it is “patently clear” the plaintiff qualifies for the future benefits, the article says.

“In my experience, the type of proof required simply does not exist unless the plaintiff has entered into a full and final settlement of entitlement to future benefits under the schedule,” writes Orlando, partner with McLeish Orlando LLP. “This is a sensible approach when one considers who is in a better position to bear the risk of non-payment of a future benefit: a plaintiff, who has established need before a jury, or a defendant who has caused the harm.”