Newfoundland Injury Law Blog

Ontario Courts Not Afraid of Large Numbers

Courts in Ontario are now regularly making awards in the double digit million dollar category to severely injured plaintiffs.  This willingness to make very large awards where the evidence warrants has been confirmed on more than one occasion by the Ontario Court of Appeal. 

In Marcoccia (Litigation Guardian of) v. Ford Credit Canada the Court of Appeal affirmed a jury award of more than $15 million.  In MacNeil v. Bryan an Ontario judge showed that very large awards are not just the province of juries.  The trial judge awarded a total of over $18 million to a 15-year-old girl and her parents.  The girl was severely brain injured in a crash.

Here in Newfoundland and Labrador, the past year recorded a milestone of sorts:  a court made a damages award to a victim of medical malpractice in an amount just over $1 million.  This marked the first time a court in our province has ever made an award for over $1 million in damages in a personal injury case.  I understand this decision is under appeal. 

The reality is that our judges, generally speaking, do not think big when approaching personal injury damages assessments.  And when a trial judge is courageous enough to award a significant amount, the Court of Appeal is apt to find reasons to cut it down or overturn it completely.  This is what happened in the Williams case in which I represented the plaintiff and achieved a $4 million judgment at trial.  The Court of Appeal overturned this completely on the basis that the defendant did not owe a duty of care and anyway, there was no negligence despite the presence of a 4½ foot deep, unmarked ditch into which the plaintiff had plunged.  This finding of no duty was made despite the fact that the issues was not pleaded or raised in argument before the Court of Appeal.  Lawyers call this the absence of a fair hearing.

I am not carping behind the back of the court, because I said this to its face in subsequent proceedings.

Courts are not generous, whether in Ontario or here.  Large awards have to be won by meticulous preparation and overwhelming evidence.  And sometimes even that is not enough.

Labels: accident damages injury

How do I find the best Newfoundland and Labrador personal injury lawyer for my accident case?

Most accident victims really don't know where to turn to when looking for a Newfoundland and Labrador accident lawyer. In some areas there are many pages of Yellow Page ads for lawyers. Here are some tips on finding the right car accident lawyer for your motor vehicle injury in St. John's or elsewhere.

Step One: Educate yourself. In the old days, the law was pretty much a closely guarded secret. Use the internet to get a basic understanding about your legal problem, including accident cases, before even picking up the phone. The purpose is simply to move you along the path of knowledge so that you can make an informed decision about what lawyer to hire. Remember that if a law firm is listed at one of those mega lawyer directory websites, all it took was a checkbook to get there.

Step Two: Start to gather names of potential lawyers. Remember you are still in the information-gathering process. Contact them and ask each one for this set of information to be mailed to you:

1. Are you a nationally recognized lawyer.
2. Show me examples of sample judgments and settlements.
3. Show me articles you have written for legal publications.
4. Show me a list of your public speeches to lawyers about your practice area.
5. Send me a copy of any book, DVD or audio CD that your firm has produced.
6. Send me a sample fee agreement and explain how fees and costs are calculated.

Then if you really want to be thorough, interview the most promising candidates. This process should result in a satisfied client and a personal injury lawyer proud to have helped.

Labels: accident and injury car highway lawyer motor vehice road

Auto Insurance Company Breaches Confidential Records of Jurors

When this abuse was exposed, the CEO of Insurance Corporation of British Columbia admitted it was "completely inappropriate", and "a serious mistake". The company terminated the defence lawyer and reported the breach of confidentiality to the judge and plaintiff lawyers.

These events caused the Information and Privacy Commissioner to undertake an audit into the privacy aspects of ICBC court proceedings involving jurors.

It was not disclosed what the insurance lawyer in this personal injury trial and the insurance rep from which the juror information was obtained, were going to do with the information. Was it to be used to argue for disqualification of certain jurors? Was it to be used to make appeal to the perceptions and biases of jurors inferred from information that no one else possessed? Whatever the answer, there is no doubt that this invasion of confidentiality represented a serious undermining of the integrity of the administration of justice.

Of course this sort of breach of confidentiality is not ICBC policy, but the significance of this incident is in the fact that elements of the insurance and legal defence communities are willing to engage in abusive practices to win at any cost.

Labels: breach of confidentiality and privacy insurance juror personal injury

Wal-Mart Victim Has Good Day in Court

Labels: accident on premises damages for injury how much

Winning the Case Through Cross-Examination of the Expert in Oral Discovery

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Dangers of Social Media Hits Conventional Media

            Bloggers are always gratified to know when someone reads what we have to say.  In this case, it was my earlier blog on the dangers of social media for personal injury clients.  A reporter from the Canadian Press called last Friday to speak with me about this topic, however I was in Toronto on a mediation involving the Breast Cancer Testing Class Action.  He then followed up with my friend Brenda Hollingsworth, a personal injury lawyer in Ottawa, who has written on this topic.  The issue of accident and injury clients being hoisted on their own petard by statements made and photographs posted on Facebook and other sites has been the recent subject of court decisions.  The Globe and Mail and the Evening Telegram have taken due note, and anyone involved in a legal claim for bodily injuries, whether suffered in a car accident, through medical negligence, by an accident on premises, or in any other way, should take due note as well.

             Insurance companies and their adjusters and lawyers routinely search the web for evidence which can be used to contradict a plaintiff’s statements as to the limitations imposed by their injuries.  Your life on the internet is an open book.

Labels: accident and injury Facebook social media dangers

Difficult Choices For Copter Crash Victims Include US Lawsuit

The known evidence is pointing more and more strongly to potential negligence on the part of Sikorsky Helicopter Corporation, based in Connecticut, United States of America.  Today the Globe and Mail published a story that it had obtained documents showing that the Sikorsky S-92 “failed a critical test of whether the aircraft can keep flying if the oil in its main gearbox leaks out….  Certification documents show that the S-92 couldn’t meet a specification that calls for the main gearbox to run for half an hour without oil – a requirement known as “dry run”.”  I wrote about the 30 minute dry run requirement in “Families Review Legal Options”.  The story quoted an experienced test pilot who said that until three weeks ago, he would have assumed the S-92 would fly without oil pressure for 30 minutes – which probably is exactly what the pilot of Cougar Flight 491 assumed as he was making for safety at Cape Spear.  “Now I know different.”

The laws of Newfoundland and Labrador are not generous in wrongful death cases, in fact they are downright backward.  I have to deal with this in the Breast Cancer Testing Class Action.  How about some attention to law reform here, Danny Williams, Q.C.?

A very important question is whether the victims of a product defect which causes death and injury in Newfoundland and Labrador, Canada, can sue a product manufacturer which is based in the United States of America.  I know from experience in other cases that the money damages in a US court can be ten times the damages available here.

So last week I contacted a leading US aviation liability lawyer in the United States for advice.  Bottom line:  there is no black and white answer, but the chances of bringing suit in the US are greatly improved if the Cougar/Sikorsky family members are guided from the start by sound Canadian and US legal advice on how to achieve the fullest measure of justice. 

The decision to accept Workers Compensation or not is a complicated decision to be based on many individual factors.  The decision must be made within 6 months in death cases, 3 months in a case of injury, so there is time to sort through the options.  Families should obtain a package of information from the Commission, and obtain the best advice they can, from the Commission, union representatives, and other trusted advisors.

One of these advisors should be a personal injury lawyer with experience in product defect cases and the ability to access top legal expertise in the complicated world of aviation disaster law.

There are strong reasons for all the families and their legal advisors to stick together in these early months and develop a common strategy.  The potential benefits of acting together are great.  Loved ones lost in the tragedy would expect it.

If this sounds expensive, lawyers who do this kind of work usually work on a “no cure no pay” or contingent fee basis, meaning the fee will be a percentage of the settlement or court award.  Anyone looking for a lawyer should interview more than one lawyer, taking care to discuss qualifications, case strategy, and fees.  You don’t just want a good lawyer, you want the best lawyer for your case!

Labels: compensation Cougar Flight 491 helicopter crash lawsuit money damages Sikorsky

Cougar's Rescue Response Tardy?

In a recent piece for The Bond papers, Ed Hollett raises some good questions as to why Cougar took so long to respond with their own search and rescue flight.  Cougar’s response flight did not launch until 43 minutes after mayday, but when it did launch, took only 18 minutes to reach the scene.  Had they arrived on scene more timely, it may be that not only Robert Decker but also the second passenger who escaped the shattered copter body, Allison Maher, would have survived.  It is unlikely to have helped the 16 people found inside the fuselage on the bottom of the sea. 

        I have taken a different tack in my piece posted March 27 on Newfoundland Injury Law Blog, and focused on the 30 minute dry run requirement.  Cougar flight 491 flew dry for only 11 minutes, then crashed with tremendous force.  Another 19 minutes dry running would have delivered those imperiled to safe haven at Cape Spear, with a safe fly margin to spare.

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Families Review Legal Options in Wake of Copter Crash

Cougar Flight 491 hit the North Atlantic with brutal force on March 12, killing all but one of the 18 occupants.  The disaster has gripped the sympathy and imagination of the entire Province of Newfoundland and Labrador.

The shock and trauma of the sudden death of loved ones eases with time, the funerals if not the grieving are over, and some families of the occupants of Cougar Flight 491 may be turning their minds to financial issues.  They may be in for a shock of another kind when they make contact with the Workplace Health, Safety and Compensation Board.  The amount of annual earnings which the Board insures is limited to $49,295.  All the offshore workers on Flight 491 earned more than this amount, and many earned considerably more, even several times more.  Their traumatized families may find out that the level of benefit they are entitled to is capped at half or one-third the rate of their loved one’s earnings. 

The general rule is that workers injured or killed in the course of employment are barred from pursuing legal rights against any worker or employer covered by the Workplace Health, Safety and Compensation Act.  However the statutory bar against suit probably would not arise against Flight 491 families for two reasons.  The first is that information coming out over the last two weeks points to potential fault or negligence on the part of the manufacturer Sikorsky Aircraft Corporation, which is based in the United States.  Sikorsky is not an employer under the Newfoundland and Labrador statute, and thus no bar to suit would arise.  The second reason is that the Act itself provides that the bar against suit does not apply where the worker is injured or killed while taking “transportation in respect of which public liability insurance is required to be carried”.  Regulations under the Aeronautics Act require helicopter companies to carry such insurance.  In this second situation, the worker who is injured, or his or her family in a fatality, is required to make an election within three months of the injury or fatality as to whether to claim compensation or to bring an action.

Whether legal action is an option which families of Cougar Flight 491 workers find attractive depends on their values, their individual circumstances, and whether they have a good case to pursue in the courts.  Grief sometimes turns to anger.  Often, the victims of a terrible event which should have been avoided, are more concerned with deterrence or ensuring the same thing doesn’t happen to someone else, than they are concerned with compensation; I know this from the Breast Cancer Testing Class Action.

Attention has focused on the possibility that an oil filter assembly leak destroyed the aircraft’s main gearbox and stopped the rotor blades.  As to the possible existence of a good case, an interview with Sheldon Peddle, president of the CEP Local, on CBC radio yesterday morning, is suggestive.  Among the circumstances which raise safety questions are the following:

·         In July 2008 near Broome, Australia a Sikorsky S-92 was travelling from offshore and had to make an emergency 8 minute descent to land, after a similar gearbox problem developed.

·         There have been other events involving main gearbox problems causing emergency landings.

·         Sikorsky gave operators a year to replace main gearbox components, which may not be reasonable when the consequences of failure are potentially catastrophic.

·         The FAR 29 certification under which the Sikorsky S92A operates requires a 30-minute dry run capability.

·         The Transportation and Safety Board also confirmed yesterday that titanium gearbox fittings that were the subject of a global emergency-airworthiness directive this week were broken before the impact, not because of it.

With the 30-minute dry run capability in mind, it is revealing to look at the chronology of events for the Cougar helicopter as compiled by the Transportation Safety Board of Canada and released yesterday.  Flight 491 departed St. John’s at 11:48, and recorded rapid loss of main gearbox oil pressure at 12:15.  The pilot executed an immediate right turn and issued a mayday call.  At this point they were 53 nautical miles from St. John’s.  Two minutes later, the main gearbox oil pressure reached 0 PSI.  At 12:18, they had altered course slightly for nearest landfall at Cape Spear, which then was 42 miles away, and were traveling at an altitude of 800 feet.  By 12:26 the helicopter crashed into the sea with enormous force.

The first point to note is that being 27 minutes from St. John’s when it turned back, the helicopter had about enough time to return to St. John’s airport under the 30-minute dry run standard.  Perhaps more importantly, with the change of course to Cape Spear, the helicopter would have been about 27 miles from shore when catastrophic failure caused the gearbox to seize.  Ditching occurred only 11 minutes from the time the helicopter began to turn around.  Under the 30-minute dry run standard, and at the recorded speed of 133 knots, the helicopter should have been able to cover another 45 miles, adequate range to travel the 27 miles remaining to safe landfall at Cape Spear.

None of this proves that the helicopter crashed due to the fault or negligence of Sikorsky or anyone else, and much remains to know.  But it does amount to grounds for the families to consult trusted advisors, keep their options open, and learn more.

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Court Decides to Hear Appeal of Astonishing Decision

I wrote about this in an earlier post “Astonishing Invasion of Personal Privacy Challenged on Appeal”.    The Court of Appeal has now granted leave to appeal, meaning permission to argue the merits of the decision made by the judge in the Trial Division. 

The implication of the decision in the Trial Division is that all personal and confidential medical and financial information is put in issue and discloseable to the other side whenever a person claims a personal injury.  My clients the Szetos, injured in an auto accident in St. John’s and both of them physicians, know the value and importance of confidentiality and were greatly taken aback by the intrusive and far-reaching nature of the decision.  They instructed me to seek leave to appeal, and the Court of Appeal has now granted this, in a brief decision available here.

The brief on leave to appeal is also available in our Library.   I will post again on the progress of this case, which should be of intense interest to personal injury lawyers and their injured clients, both in Newfoundland and Labrador and elsewhere in Atlantic Canada.

Labels: appeal auto accident confidentiality injury pain privacy suffering

Appeal Court Confirms Plaintiffs Must Beware of Causation

The Court of Appeal has rendered its decision on the appeal of Lane v. Alcock Enterprises  Limited et al., a slip and fall case in which the trial judge dismissed the injured plaintiff’s claim.  The plaintiff slipped and suffered personal injury on a set of wooden steps and alleged negligence arising from the lack of non-slip treading on the wooden steps, and the lack of a handrail.  The Court of Appeal upheld the trial judge in dismissing the claim.

I wrote about this case in an earlier blog "Plaintiff's Neglect Causation At Their Peril".

On the issue of whether the absence of non-slip treading constituted negligence, there was conflicting expert evidence on the interpretation of National Building Code requirements, and the evidence of the plaintiff’s expert architect was thought not to be persuasive.  Even if the absence of non-slip treading was a breach of the National Building Code, this was merely evidence of negligence, not proof of it, and it was somewhat unclear what this would have added to the safety of wooden steps.  In any event, the trial judge’s determination that the absence of non-slip treading did not constitute negligence, was reviewable as a finding of mixed fact and law, and no extricable error could be found. 

The trial judge found that the absence of a handrail constituted negligence but its absence was not shown to be a cause of the slip and fall accident and the plaintiff’s personal injuries.  It had not been shown that but for the absence of the handrail, the injuries would have been avoided.  This was a determination of factual causation and again the Court of Appeal was not disposed to interfere.

As I said on a prior occasion, plaintiff’s ignore the issue of causation at their peril.  The prevailing test is the “but for” test, and unless the judge is persuaded that the injuries would not have happened but for the negligence, then the plaintiff will not win.  Plaintiffs beware.

Labels: accident and injury causation occupiers liability premises liability slip and fall

Astonishing Invasion of Personal Privacy Ordered in Injury Case

Our clients were injured in an automobile accident in which their car was t-boned.  The defendants served a set of intrusive questions known as Interrogatories, which sought a great deal of information as to the clients’ personal medical and financial lives.  The questions sought information such as a description of every complaint the clients expressed to any healthcare provider in the three years before the accident, and whether they had filed tax returns in the three years before the accident.

On the strength of the fact that the Statement of Claim filed in court alleged “personal injuries” and that the clients had suffered “pain and suffering and loss of amenities”, the judge thought the information “relevant” and ordered all these questions to be answered under oath, including the questions which pertained to pre-accident information. 

One of the ironies of the decision is that one of our clients has already presented his personal injury demand for damages, and he has not made a claim for any financial loss.  Yet the court has ordered him to produce a great deal of confidential financial information!

According to this ruling, just saying that you have suffered a personal injury puts your pre-accident financial and medical history in the hands of the defendant, with no more onus on the defendant to show relevance than that.  The Interrogatories sought information for the three years before the accident, but why would it stop there?  Why not five years?  Why not ten?  This is contrary to the law and practice that I have worked with in personal injury cases for decades, and as readers can guess, an appeal is under consideration. 

Labels: accident and injury confidential interrogatories personal information questions

Legal website to relieve consumer frustration

Labels: accident lawyer, injury lawyer, Newfoundland and Labrador injury lawyer,

Plaintiff's Neglect Causation At Their Peril

In this Trial Division decision, the court found that the defendant had been negligent, but the plaintiff had not proven the necessary causal connection between the defendant’s negligence and his injuries.  

In the Newfoundland and Labrador case of Lane v. Alcock Enterprises, Mr. Lane fell on a set of four stairs leading to a landing.  He argued negligence in three respects: no hand rail, difficult stair geometry, and lack of non-slip treading.

The trial judge found that the lack of a handrail and poor stair geometry from the main access stairs into the business, constitute negligence.  Evidence of architectural experts was heard.  However the judge found that she was not convinced that either the stair geometry or the lack of a handrailing made a significant contribution to the slip and fall and consequent injuries.

The teaching point is that to succeed in a negligence action, the plaintiff needs to prove not just negligence, but that the negligence caused the injury.  Proof of causation is the element of a successful action that all too often gets overlooked.  Plaintiffs and their lawyers neglect proof of causation at their peril.

Labels: Proving negligence, slip and fall injury

What is cross-examination and why should I care anyway? A Primer for Injury Victims

In my article How to Get More Money for Your Injury Claim: Giving Evidence at Discovery, I briefly touched on the importance of cross-examination.  This article explains more about the role of cross-examination in getting you the money you may be entitled to for your injury.

A famous legal authority once described cross-examination as the most powerful engine for the discovery of truth ever devised by man.  This statement of the critical importance of cross-examination to court process is accepted and even venerated by virtually all experienced lawyers and judges.  So what is cross-examination, and why should you care?

If you or someone you care about has a significant personal injury claim, then cross-examination and what you can do about it could be very important.  Read on.

To most lawyers, cross-examination is a method of asking questions of the other side's witnesses, and it means they can ask "leading" questions.  A leading question is one that suggests the answer ("You stopped beating your wife in 2005?").  But leading questions are only part of the story of cross-examination, and lawyers who think it is the full story often engage in table thumping or nitpicking sessions that give the impression of making a point (which nobody can remember afterwards) or peter out without leaving any impression at all.

Yes, cross-examination involves leading questions.  That is Rule #1 of cross-examination:  (1) leading questions only.  But most lawyers do not understand the other two cardinal rules of cross-examination:  (2) establish one fact per question, and (3) move toward an achievable goal.  This goal should be one which harms your adversary's case.

That's it - the only three cardinal rules of cross-examination.  But leave out any one of them and the lawyer is trusting to luck not skill.

One other thing.  Preparation is required to apply the above three rules to maximum effect.  Lots of preparation.

Should you care?  Any accident and injury client with a case important enough to have a lawyer should know that cross-examination can make or break a winnable case.  And there is something important that you yourself can do to stack the odds in favor of winning, other than choosing a lawyer who will effectively cross-examine the other side. 

Most personal injury claims don't go to trial.  Over 95% of accident and injury claims settle.  But the majority of significant injury claims (significant enough to have a lawyer) will go to "oral discovery".  This involves going to a law firm boardroom and being examined under oath or solemn declaration to tell the truth.

So what can the personal injury client do to influence the odds of winning in their favor?  Prepare!  The two or three hours spent in oral discovery will strongly influence the amount of your settlement and may be the most profitable few hours in your life.

A good, experienced personal injury lawyer will help you prepare for this important initial event of oral discovery.  How well your claim fares will depend on how good the defence lawyer is at cross-examination, and how well prepared you are to answer it.  The good news for injury clients is that most defence lawyers are not good at cross-examination, and that you can enormously improve your bottom line results if you prepare for your testimony. 

In the next instalment in this series, I will discuss winning cross-examination at the oral discovery and winning the cross-examination at trial.

Labels: cross-examination discovery money damages preparation winning

How to Get More Money for your Injury Claim: Giving Evidence at Discovery

There is one reason to take an accidental injury claim.  You want the greatest amount of money to which you may be entitled for your injury.

Rarely, making a personal injury claim may involve giving testimony at trial.  More frequently, and almost always in serious injury claims, a claimant must give personal testimony as part of a process called discovery, also called a "deposition".

You and your injury lawyer are in a partnership, and your lawyer can't do it all.  Your lawyer can't testify for you.  The preparation you do for your oral discovery will pay big dividends.  It will have a big effect on the money you get. 

Oral discovery happens when evidence is taken under oath (or solemn affirmation) with the opposing lawyer asking questions, usually in a law office boardroom. The evidence is recorded and a transcript is typed up.

In a personal injury case, the objective of the other side at oral discovery (broadly speaking) is to meet the claimant and form a personal impression of him or her, to explore inconsistencies between the claimant's medical history and the claimed injuries, and to establish the claimant's version of the story in a way that can be used later if the story changes at trial.

There are two styles of conducting discovery. First, discovery can proceed as a learning exercise, by which the defence attempts literally to learn or "discover" the plaintiff's story through a series of who, what, where, why, when, and how questions.  Second, discovery can be conducted as a cross-examination discovery, in which the lawyer asking the questions thoroughly prepares beforehand to establish areas of examination, in which she believes she can by use of leading questions, one fact at a time, establish points that will hurt the claimant's case.  The cross-examination method requires a level of skill and preparation from the examining lawyer.  Fortunately for plaintiffs, few defence discoveries are conducted according to the cross-examination method, and most discoveries proceed on the basis of who, what, where, why, when, and how questions.

The client can do many things to maximize the chances of giving good discovery evidence.  At Ches Crosbie Barristers, we meet with the client to properly prepare for their oral discovery under oath, and we find that clients who prepare for discovery have a much better experience. Here are some quick tips clients can use for giving a good oral discovery:

1.         You can't win an unwinnable case at discovery, but you can sure lose a winnable case.

2.         You will be under oath. Tell the truth--the insurance companies have access to huge databases, and if you have a prior claim, or a bankruptcy, or if you have posted information about yourself on the internet, they will find it. Never exaggerate.

3.         Be "on guard" the whole time. They may act friendly and professional but they are not your friends.

4.         Be pleasant, polite, and don't show any "attitude" or get in personal conflict with the examining lawyer.

5.         Listen to the whole question. Resist the human urge to interrupt.

6.         Resist the urge to tell them "well, what you really want to know is..." or "the question you didn't ask but should have is..." In other words, don't volunteer answers to questions they don't ask.

7.         Don't answer a question you don't fully understand. Say you don't understand.

8.         Don't try to guess "where they are going with that question." Just concentrate on giving good, truthful answers.

9.         If they don't ask the "right" question, tough for them.

10.       Don't guess. If you don't know, you don't know. You are not required to have an answer to every question.  If you are estimating, please tell them you are estimating.

11.       Trust us to protect you from questions not allowed under the rules. We can also clarify unclear answers at the end.

12.       Before the discovery, tell us what questions you are afraid of.

You are not alone in this.  A good injury lawyer will help you to prepare for discovery, but it is you who has to testify, not your lawyer.  Clients who do a good level of preparation and who are able and willing to follow their lawyer's advice will get the best results from their discovery, leading to more money for their injury claim.

http://en.wikipedia.org/wiki/Cross-examination; http://www.howardnations.com/crossexamination/cross_ex.html
http://www.oba.org/en/pdf_newsletter/DTFGeneralDiscoverybest.pdf

Labels: cross-examination discovery money damages preparation winning

Tough Rules Reduce Accidents

According to insurance company figures, British Columbia's enhanced graduated licensing regulations prevented over 17,000 accidents and saved 31 lives between 2003 and 2006.

British Columbia has introduced upgraded regulations to extend the novice and learner stages, raise the age for drivers needing supervisors, and limit passengers for new drivers.

The new rules will be introduced in January 2010.  Young drivers will be banned from using both hand-held and hands-free cellphones or electronic devices while driving.  Younger drivers aged 16-24 are more likely to be distracted by phones or MP3 players because of their inexperience at the wheel, according to the insurance company for B.C. drivers.

I wonder why more experienced drivers are immune from the distraction of hands-free devices?

There will be more restrictions coming in future years, but this is a good start in preventing needless automobile injury and death - and in restraining insurance premium increases necessary to pay damages to those injured by negligent driving.  Government in Newfoundland and Labrador should take note.

Labels: accidents compensation damages hands free motor vehicle

Safe Driving Contract Worth Considering

Labels: accident and injury cell phone ban safe driving contract safety

Hard Fought Case Shows Value of Contingent Fee

The lead lawyer in this case was Pamela Taylor. Our client's injury was a leg broken by a careless driver. He was riding a bicycle. He was a high achieving graduate student who was delayed in obtaining a university teaching job as a result of his injuries. An important issue in settling the case was, how to value the loss represented by delayed entry into the workforce?

The defendant offered about half what we thought the claim was worth, so we went to trial. Sometimes you go to trial the sake of justice. Our client received a trial judgment for twice the amount of the defendant's formal offer, the total judgment being $118,098. The Court of Appeal thought the judge should have deducted money earned as a graduate student from the $60,000 award for loss of future economic opportunity, and reduced this by $22,719, an amount the Court of Appeal called "a relatively minor change to the total damages award": Jarvis v. Treberg, 2009 NLCA 51.

The point of significance to the issue of consumers and contingency fees, is that as Mr. Treberg's lawyers we were willing to expend about twice the amount of the money judgment, measured by the reasonable value of our time, to recover this money judgment for our client. Twice what the judgment was worth - but the client got twice the money the insurance company was willing to pay.

Rarely does an accident and injury client have to go to trial to get justice. But if you do go to trial, as this example shows, your contingent fee lawyer "subsidizes" the trial in all but the very largest cases. We do it because we believe in justice.

At Ches Crosbie Barristers, contingent fee agreements protect the consumer and provide access to justice. Which is the way it ought to be.

Labels: access to justice accident and injury cases contingent fee money damages

What Is My Case Worth?

This is a natural question for personal injury clients to ask and one that accident and injury lawyers often hear. Unfortunately, there is no simple answer in most cases, and if there were a simple answer, then the client probably would not need a lawyer.

Every case is different and many factors influence the value of a case. Some of the main factors include these:

• In a traffic accident case, how clear was it that the other driver was at fault?
• How serious are your initial injuries?
• How long were you unable to work?
• Were you hospitalized, and if so for how long?
• Are any of the injuries permanent, or indefinitely persisting?
• Are there issues of contributory negligence, such as failure to wear a seatbelt in an auto case?
• Will the injuries interfere with your capacity to earn a living?
• Will the injuries interfere with your capacity to maintain a household?
• Are the injuries so severe that personal care will be required?
• Are there medical conditions which pre-exist the accident and which may subtract from the claim that the injuries and ongoing limitations are wholly caused by the accident?

An experienced personal injury lawyer takes all of these factors and more into account in determining the settlement value of your case. I have provided useful information on how to find a great personal injury lawyer elsewhere in this website.

As you can see, there is no simple rulebook for determining the worth of a personal injury case. A great accident and injury lawyer learns all of the facts of the case which may affect settlement value, knows the awards made by courts in Newfoundland and Labrador in comparable cases, and knows the attitudes and approaches of the defence lawyers and insurance companies with whom settlement will be conducted and has a professional relationship with them. A great injury lawyer also has a professional working relationship with the medical doctors and other healthcare providers involved in your care, knows how to document the case to maximize settlement value, and knows that in a serious injury case it takes time for doctors to be in a position to state a confident prognosis about the future. These are some of the skills and knowledge that a great personal injury lawyer applies to establish what your case is worth.

For some specific examples, see our Frequently Asked Questions.

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Court Takes Dim View of Fraudster Allegations at Injury Trial

The judge ruled the defence lawyer was "grasping at straws" and pointed out that an allegation of fraud is a serious one which connotes criminal conduct. She withheld certain costs which the defendant would otherwise be entitled as a result.

Testing credibility in cross-examination at trial is one thing; labeling someone fraudulent in a pre-trial brief filed with the court is another. Most lawyers would agree that some kind of sanctioning was required to discourage this type of defence abuse.

The plaintiff was awarded $45,000 plus pre-judgment interest for soft tissue injuries which caused considerable pain, suffering and reduced mobility for "several" years - one expert witness had suggested five to seven years - before he otherwise would have suffered the symptoms. The trauma of jumping into the cab of his truck to avoid being struck by the oncoming vehicle accelerated the plaintiff's pre-existing degenerative disc disease, and aggravated the totality of the condition. Although the plaintiff had asked for a general damages award for pain and suffering and loss of amenities of $96,700, which represented the inflation-adjusted top of the range in Newfoundland and Labrador for damages for soft tissue injuries, the judge gave an award more toward the low middle of the range.

The abuse a plaintiff must sometimes endure to obtain even modest compensation for an injury is truly amazing.

Labels: damages injury trial motor vehicle accident

Fault-Based Newfoundland Has Second Lowest Auto Insurance Rates in Canada

Our province has close to the lowest auto insurance rates among Canadian provinces.  This is a finding of the independent Fraser Institute which recently issued a report.

Prince Edward Island’s average auto insurance premium is $701 annually.  The premium in Newfoundland and Labrador was found to be $703 annually.  These rates are for third party liability insurance.

It is interesting to note that provinces with varieties of no-fault auto insurance schemes had much higher premiums:  for example Manitoba ($1,029), Saskatchewan ($1,063) and Ontario ($1,229).

The full Fraser Institute report is available here.

Not only is Newfoundland and Labrador nearly the cheapest in Canada for auto insurance against third party liability, it is one of only two provinces that have kept a fault-based, tort system largely intact as our compensation system for accidental auto injuries.  The provinces with no-fault systems are quite a bit more expensive.

Doesn’t make the case for auto no-fault as keeping insurance premiums down, does it?  Seems like the Coalition Against No Fault was right, and insurance industry scare tactics were wrong.  No surprise.

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Understanding the Adjuster's Role: Not Your Friend

Many people deal directly with the insurance company when injured in an accident to get fair compensation.  In many cases, you might not need a lawyer if you have a small injury or the loss is straightforward.  Here are a few things you must know about your adjuster.

1.      Your adjuster does not work for you.  He or she works for your insurance company.  This is true whether he or she is an employee of the insurance company or an “independent” adjuster who looks after your case.  And as stated by one regulator, “the bottom line is that insurance companies make money when they don’t pay claims”:  see my blog Deny Till You Die.

2.      An adjuster may also be called a “claims representative” or a “customer service representative”.  That changes nothing.  He or she still works for the insurance company.

3.      The insurance adjuster’s job is to settle your claim as cheaply as possible.  It is not to ensure that you receive all the compensation you deserve.  See my blog How To Get Your Case Settled Fairly:  The Adjuster.

The majority of the adjusters you will meet will be professional and have a pleasant manner.  However, you will be more successful in your dealings with them if you understand that their job is to settle fast and settle for the least amount possible.

Labels: accidental injury claim practices denial insurance claims personal injury

Invasion of Privacy Appeal is Filed

Our clients are both physicians.  They were injured in a t-bone car crash in St. John’s.  The defendant asked for years of pre-accident medical and financial information, through a device called interrogatories, as part of a “fishing expedition”.  The judge granted the request solely on the basis that the court papers alleged personal injury!

Being physicians, our clients have a deeply ingrained professional respect for the value of confidentiality and privacy, and asked us to appeal.  The written argument for appeal was filed this week.  We next have to get the responding written argument from the defendant insurance company, and obtain a date for oral argument in the Court of Appeal, which should be available pretty quickly.  I’ll keep readers posted.

I have blogged about this case previously.  The written argument on appeal filed this week is available in our library.

Labels: auto accident confidentiality interrogatories Newfoundland and Labrador Court of Appeal privacy of personal information

Astonishing Invasion of Personal Privacy Challenged on Appeal

I wrote about this astonishing invasion of privacy in a blog two weeks ago.  The clients are angry with the decision, which obliges them to provide private and confidential financial and medical information not just from a point in time after the automobile accident in which they were injured, but also from the period before that accident.

The judge ordered one client, whose claim had already been presented and contained no request for financial compensation, just damages for pain and suffering, to provide all of his pre- and post-accident financial information!  The implication is that any person who claims personal injury, no matter how modest and circumscribed the claim, will be required to give virtually unlimited access to their personal and confidential medical and financial information.  This is intolerable to most citizens of a society which values privacy as a bulwark of human dignity, and the confidentiality of medical records as the foundation of therapeutic relationships.  The following two interrogatories give the flavor of the questions asked of each plaintiff.

1.     For the time period January 1^st, 2002 to present, please advise of all physicians that you have received medical services from, including particulars of the names of the physicians, the location of their offices, the dates of the visits, the complaints you made to the physicians at each visit, and the treatment – including referrals and prescriptions each physician rendered to you on each particular visit.

7.     For the time period January 1, 2002 to present, please advise of your annual gross income for the years, respectively, of 2002, 2003, 2004, 2005 and 2006, please particularize that part of your gross annual income which was for employment and that part or parts which you received from other sources.  If you have non-taxable benefits of any kind please specify.

The reasoning of the decision of the judge is stated in the following paragraph:

[14]      In all other respects, I am satisfied that the questions are relevant to the claims raised, namely “personal injuries”, “pain and suffering and loss of amenities”, “special damages”, and “further and other relief”.  Certainly, claims for loss of amenities raise questions whether those amenities had been lost by reasons of earlier accidents or pre-existing disease.  The Applicant needs to be able to verify prior incomes to determine potential lost incomes.  All of the questions permitted can be answered easily without great effort or cost on the part of the Respondents.  There is nothing oppressive or irrelevant being sought nor are the permitted questions embarrassing, unreasonably annoying nor likely to cause expense.  In fact, the process chosen may obviate the need for oral discovery and thus save expense.

The documents filed in the court of appeal, including our brief for leave to appeal, can be found in our Library.

Labels: appeal auto accident pain and suffering injury privacy and confidentiality