Citizens are crying foul after the City of Hamilton posted signs at popular tobogganing spots warning that sledding was banned and violators would be fined up to $5,000. Cash strapped municipalities say they don’t want to be grinches, but they just can’t afford to expose themselves to potential lawsuits. The Agenda asks McLeish Orlando’s Patrick Brown if this is creating a liability chill, and if our court system has lost touch with reality.
Watch the segment on toboggan hills below:
By: Patrick Brown | Published in: The Lawyers Weekly February 6, 2015 Issue |
Extreme sports is a growing industry that is profiting from the human desire to experience the adrenaline rush associated with risk-laden activities. Whether it is racing down a ski hill on a mountain bike, falling from a white water raft, or climbing up a rock face, there is an increased appetite for such thrills. Continue reading
The Practical Strategies webinar aired on April 30, 2013.
This webinar will update you on how lawyers and health care providers are coping with the evolving challenges of working in the constantly changing auto insurance system. You will learn strategies that will benefit you and your clients, including:
- Establishing “incurred expense” and “economic loss” in attendant care claims.
- Recent developments in catastrophic impairment.
- Common pitfalls in clinical note taking and report writing.
- Preparing for giving evidence in the Courtroom.
This is the third part of a series of blogs on Winning Strategies for Handling a Mild to Severe Brain Injury Case. The first part of the series explained the anatomy of the brain, an understanding of which is essential in order to appreciate what happens to the brain after a traumatic brain injury. The second part explained the ways a brain can become injured. This part considers the challenges that Plaintiff’s counsel encounters when representing an individual who has suffered a traumatic brain injury.
Difficulties a Plaintiff’s Counsel Faces in Proving a Traumatic Brain Injury
There are a number of difficulties Plaintiff’s counsel faces in trying to prove the existence and severity of a traumatic brain injury. One of those difficulties is that most brain injuries, unlike other injuries such as a broken arm or an amputated leg, are invisible to the naked eye. X-rays, CT scans and MRIs can detect fractures, hemorrhages, swelling, and certain kinds of tissue damage, but they cannot always detect injury to a person’s brain. This is because traumatic brain injury, especially in its milder forms, often involves subtle traumas to the brain that cause chemical and physical changes to brain tissues. These changes often cannot be found with standard imaging procedures.
Another difficulty for any Plaintiff’s lawyer in a brain injury case is establishing that the traumatic event caused ongoing organic damage which affects the person’s ability to function in the real world. This is often difficult to prove because many brain injured individuals appear “smart.” They are articulate and can perform many of the tasks they did before they were injured. It is difficult for most of us to understand how a person may retain, for example, a high IQ after suffering a traumatic brain injury and still perform very poorly on certain neuropsychological tests and in real life. It is hard for us to understand that deficits do not occur in all areas of the brain and that indeed, many parts of the brain remain intact while the person’s ability to function in many aspects of his or her life is significantly reduced.
A third difficulty is that in the months after suffering a traumatic brain injury, many individuals are in denial. They insist they are fine and have told all their treating health professionals that they are fine. They may tell their treating health professionals the only reason they are seeing him or her is that of ongoing pain resulting from a back injury suffered in the collision.
For these reasons, proving the existence of a traumatic brain injury, and the consequences of that injury to your client can be difficult. However, as Plaintiff’s counsel, that is your job.
The Ontario Court of Appeal released its decision In Martin v. Fleming earlier this week. The issue in dispute was whether a plaintiff who was injured in multiple collisions and is having both actions tried together to allow for a global assessment of damages is subject to one deductible for each claim.
In its brief reasons, the Court of Appeal agreed with the motions judge who held that the each collision or accident attracts a separate deductible:
The plain meaning of s. 267.5(7) is that the court determines the amount of general damages in an action by first determining the general damages in that action and then reducing that amount by the amount of the statutory deductible.
Global assessment is a methodology for determining damages where damages from multiple accidents overlap. Even where the court undertakes a global assessment, it must still determine the amount of general damages attributable to each action. It is in keeping with the wording of the provision and the scheme as a whole that, once the court has allocated the general damages for the individual action, it then reduces that amount by the amount of the statutory deductible.
I conclude that the statutory deductibles apply to each action. The plaintiffs’ motion is therefore dismissed.
While the decision can result in unfairness to a plaintiff, it was largely expected given the language in s. 267.5(7) of the Insurance Act.
Deanna Zurek suffered soft tissue injuries in a rear-end collision. After a trial, a jury awarded her non-pecuniary general damages, damages for past loss of income, and damages for future care costs. However, it awarded her no damages for future loss of income. Ms. Zurek appealed, citing the trial judge’s erroneous charge to the jury as the reason for the jury’s failure to award damages for future income loss.
The Court of Appeal released its decision in Zurek v. Ferris on November 5, 2010. The Court agreed with Ms. Zurek that many of the trial judge’s comments to the jury were unnecessary and “not germane to the issues the jury had to decide.” It characterized the charge as “unorthodox.” Despite these comments, the Court held that the charge as a whole was fair. It cited the following examples of the trial judge’s attempts to have the jury resolve the issues using relevant evidence:
On Friday, October 12th, 5 year old Victoria Dehan was playing with Rottweiler puppies in her family’s barn in Pelham, Ontario when she was suddenly attacked by three adult Rottweilers. Victoria is now in critical condition at Sick Children’s Hospital in Toronto.
Victoria has undergone two surgeries since the attack. Her condition is reported to be improving. We wish Victoria a fast and full recovery. Our thoughts are with the Dehan family.
In Ontario, dog owners are responsible for keeping dogs under proper control and if they do not, the owner may be responsible for any harm caused by the dog. Every year there are over 300 reported dog bite incidents in the City of Toronto alone.
The impact of a dog bite can cause significant physical and psychological injury to an individual who is attacked.
What many people do not know is that the insurance policy a dog owner has on his home or apartment will, in many cases, pay for claims arising out of injuries their dog causes.
The Ontario Court of Appeal released the Pastore v. Aviva decision today and decided that a marked impairment of a single area or aspect of functioning is enough to designate a person as catastrophically impaired.
In the decision delivered by Justice Feldman, the Court concluded that the Director’s Delegate’s decision to this effect was a reasonable one:
In my view, the decision of the delegate, in which he concludes that the use of “a” in the definition of “catastrophic impairment” in cl. (g) refers to a single functional impairment due to mental or behavioural disorder at the marked level, constituting a catastrophic impairment, is a reasonable decision. The reasoning process was logical and transparent and the result is within the range
What is also very important is that the impairment does not have to be due “solely” to the mental or behavioural disorder. The marked impairment can be caused by a combination of mental and behavioural disorder as well as physical causes of pain:
Seriously injured accident victims received an early Christmas present from the Ontario Court of Appeal this morning. The Court released its long-awaited decision on catastrophic impairment in Kusnierz v. Economical Mutual Insurance Company. In it, the Court reversed the decision of Mr. Justice Lauwers, who had held that assessors could not combine psychological and physical impairment scores to determine an injured person’s Whole Person Impairment (WPI) score. Instead, the Court adopted the previous practice espoused by Spiegel J. in the 2004 decision of Desbiens v. Mordini.
Justice MacPherson, writing for a unanimous Court of Appeal, set out five reasons in support of its decision to allow the combining of physical and psychological impairment scores.
The Ontario government is completing a review on what constitutes a “catastrophic impairment” when a person is injured in a car accident. The definition is critical: a person who has suffered a catastrophic impairment is entitled to access much greater levels of benefits for care and treatment. This is not akin to a lottery ticket. A catastrophically injured person must still prove that the benefits are reasonable and necessary. All the definition does is raise the ceiling so that the most seriously injured accident victims may gain access to the treatment and care that they legitimately need. Last week, an expert medical panel completed a review of the definition of catastrophic impairment. The recommendations are based on a technical review. In yesterday’s Toronto Star, Dale Orlando wrote an article urging the Ontario government to consider not just rigid technical definitions but also to consider the real needs of severely injured individuals.
The text of the article is reproduced below:
‘Catastrophic impairment’: What’s at stake
Published On Sun Apr 17 2011
President of the Ontario Trial Lawyers Association
“If any changes are to be made to this definition of injury, the government should ensure that everyone who needs the additional level of coverage has access to it. It is important to remember that, just because someone is deemed to be catastrophically impaired, that does not confer an automatic right to benefits. They must demonstrate need on an ongoing basis in order to receive benefits from their insurer.”
After September 1, 2010, car insurance companies and brokers across Ontario will be presenting consumers with new choices for their auto insurance renewals. A daunting process is ahead. The insurance system in Ontario is one of the most complicated systems in North America.
Even though car insurance is a major budgetary item for many families, many consumers are unfamiliar with the coverage they actually have. After September 1, consumers will be given a number of choices as to amount of benefits they wish to purchase. By giving such a choice, the intent was to give them a break on premiums being paid.
The new basic auto policy being sold contains far less benefits than what existed before September 1. With benefits being drastically reduced, one would of course expect to see some significant reductions in how much one has to pay in premiums.
Therefore it is absolutely critical that each consumer ask their insurance company and brokers what are they buying and at what price. Like shopping in a supermarket, each item ought to have a price tag. Continue reading
What a day indeed. 250 kids and their parents packed in to the Dovercourt Boys and Girls Club to be custom fitted with a brand new bike helmet. The event was the official kick off to the 2010 “Helmets for Kids” campaign in Toronto.
Our firm was proud to donate the 250 helmets to make this event happen. OTLA has been running the program since 2002 across Ontario, but this was the first one in Toronto. We can’t think of a better way of giving back to our community than keeping kids safe. It was a lot of fun in getting this together and getting these helmets on the heads of the kids.
We were very pleased to have community sponsorship from not only OTLA but also the Boys and Girls Club, the Ontario Safety League, the Ontario Brian Injury Association, Brain Injury Society of Toronto, the Toronto Police, CP24, and the Toronto Cyclists Union. Continue reading
Recently Cheri DiNovo an MPP for Parkdale has brought forward a private members bill requiring motorists to give three feet of space to cyclists. A similar law has been passed in 16 States south of the border. What will be seen is how Minister Kathleen Wynne and the government reacts to the proposed law.
Is this a good law for Ontario?
Yes it is. If every driver obeyed this basic concept of giving space to cyclists, there would be a sharp reduction in the number of cyclists killed and injured on our roads. Statistics indicate that the majority of cyclist’s injuries and deaths are caused at the time a vehicle passes. There are very few who could possibly argue that if the law was obeyed, the number of accidents would be reduced.