29 Quick Tips for Handling Your Own Newfoundland and Labrador Personal Injury Car Accident Settlement - Tip #11

11.     Decide whether you will allow the bad guy's insurance company to have broad, open-ended medical releases that will allow them to go fishing through your medical history for some unlimited time period.

29 Quick Tips for Handling Your Own Newfoundland and Labrador Personal Injury Car Accident Settlement - Tip #10

10.     For kicks, ask the insurance company if you can take a recorded statement from their guy.  [You'd be the first!]

29 Quick Tips for Handling Your Own Newfoundland and Labrador Personal Injury Car Accident Settlement - Tip #9

9.     Make a decision as to whether you will voluntarily submit to a recorded statement requested by the bad guy's insurance company, without your lawyer being present.

29 Quick Tips for Handling Your Own Newfoundland and Labrador Personal Injury Car Accident Settlement - Tip #8

8.     Go back and get some pictures of the accident scene as well-the police who investigated the accident may have taken some, call them and see if they'll send you a set.

29 Quick Tips for Handling Your Own Newfoundland and Labrador Personal Injury Car Accident Settlement - Tip #7

7.    Find out how much insurance the bad guy actually carried.  If he is one of those people who carried the minimum $200,000 of coverage, and your injuries are significant, see how much coverage your agent sold you that will protect you.  [If your agent sold you only $200,000 of coverage, and never advised you to buy more, call her up and yell at her if you have significant injuries.]

29 Quick Tips for Handling Your Own Newfoundland and Labrador Personal Injury Car Settlement - Tip #6

6.     Get pictures of the vehicles and your injuries.

29 Quick Tiips for Handling Your Own Newfoundland and Labrador Personal Injury Car Settlement - Tip #5

5.     Contact defendant's insurance company.  [They act like they're your friend-don't fall for it.]

29 Quick Tips for Handling Your Own Newfoundland and Labrador Personal Injury Car Settlement - Tip #4

4.     Determine whether the defendant had any other insurance available for the accident.

29 Quick Tips for Handling Your Own Newfoundland and Labrador Personal Injury Car Accident Settlement - Tip #3

3.     Secure the name of the defendant's [this is the bad guy] insurance company. 

29 Quick Tips for Handling Your Own Newfoundland and Labrador Personal Injury Car Accident Settlement - Tip #2

2.     Get the full contact information of any independent witnesses to the accident.

Tune in next day for the next "quick tip".

29 Quick Tips for Handling Your Own Newfoundland and Labrador Personal Injury Car Accident Settlement

**This isn't legal advice.  It's just fun information.  In fact, trying to actually handle a case on your own is something like trying to take out your own appendix, or doing a root canal.  It's possible, we suppose, but that's not what MOST sane people do.  Obviously we can't put three years of law school and many years of experience on one little piece of paper, so take the above for what it's worth.  We offer free books, and a ton of information throughout this website.  Have a look around-but ... don't wait too long.  Believe it or not, there are actually time limits on when you can begin your claim.  Each case is different, so we can't list them here, but you get the drift.

Court of Appeal Overturns Invasion of Privacy Decision as "Misguided"

My clients were a mother and son who were t-boned in a road accident in St. John's.  In due course, we issued a statement of claim, which stated that the clients had personal injuries, but not going into any detail.  This was in accord with long-established practice.

The response of the defendant was to immediately send out a detailed set of "boilerplate" questions known as Interrogatories, which intrusively sought all manner of private and confidential personal medical and financial information from the clients.  The Interrogatories would have required them to sit down and do detailed answers to the questions, answers which otherwise would be available from the production of medical records and any financial records that might be relevant to the claims.  We objected to this but when the defendant brought the matter before a judge in the Trial Division on an application, he ordered our clients to answer the Interrogatories and to pay the costs of the application.  I have blogged about this previously.

Now the Court of Appeal has decided our appeal, and I am pleased to say that it has agreed with my clients on virtually all points raised on the appeal.  The decision of the Court of Appeal is a victory for commonsense and for the principle of proportionality in the application of the rules of civil procedure which govern the conduct of all actions for personal injury damages.  The situation had been getting out of hand.  No longer will our clients, or any other victims of accident and injury who make a claim for money damages for personal injuries, be required to unnecessarily surrender their privacy to oppressive, annoying and embarrassing questions in writing - a defence technique to harass accident victims for daring to make a claim.

The new surveillance: What video surveillance and social networking sites have in common

Insurance companies like to hire private investigators to take live video surveillance of injury claimants just before, or just after, they have testified at oral discovery about how badly they've been injured and all the things they can't do.  Most video surveillance is inconclusive and boring, but it can create problems.  It can capture an injured person chopping wood in the backyard, but it can't capture how badly that person "pays for it" when he gets back inside the house.

Perhaps more dangerous to accident victims are the social networking sites such as MySpace or Facebook.  Be very careful about your presence on these sites.  Be wary about posting photographs that could be viewed as inconsistent with claims of physical limitation.  Before you post something or say something, think about how it might look when you are confronted by it later at discovery or at trial.  Insurance companies can get access to everything on your networking site.  Tell the truth - but think before you act and be on guard.

I have warned about the dangers of social media before.  Halifax injury lawyer John McKiggan has put out an alert about facebook being used against personal injury victims as well.  This warning can't be given too often!

Monetary Limits of Small Claims Act Now Highest in Country

Minister of Justice Felix Collins has introduced a bill aimed at bringing the jurisdiction of the Small Claims Court from $5,000, the lowest in the country, to $25,000, the highest in the country.  This is a good thing.  The Small Claims Court is designed to be user friendly and to permit claims to proceed without the expense of hiring a lawyer.

A person injured in an accident who wants to make a claim for compensation should ask, do I even need a lawyer?  In our experience, in a $25,000, $20,000, or even $12,000 claim, it is.  The reason is that if a claim is an insurance claim, the adjuster or defence lawyer will typically make a low-ball offer, well below what the claim should be worth if it were properly negotiated.  Remember, the adjuster for the at-fault party is not your friend, and is not working for you - they are working for the insurance company.

We have found that clients are better off to have hired us to negotiate their settlement, even after paying fees, than they would have been if they had not hired us.  So a good personal injury lawyer can definitely add value.

But if you have a claim with a value up to $25,000 and you want to "do it yourself", you can now do it yourself.  It is good to have a choice.

We Get Questions

Q.  In 2004, legislative changes were made to reduce damages awards in auto accident cases and keep insurance premiums down.  What changes were made?

A.  The main changes were:

(a)  $2,500 deductible on all pain and suffering claims;
(b)  lost wages recovered on 100% of net;
(c)  collateral source compensation to be deducted from the recovery;
(d)  collateral source is deducted where the provider of the benefit retains no right of subrogation;
(e)  insurers shall attempt to settle claims as expeditiously as possible, with failure to comply to be considered in awarding costs;
(f)  where the insurer admits liability in part or in whole, the insurere shall make prepayments, with failure to comply to be considered in awarding costs;
(g)  application may be made for an order for payment of compensation periodically;
(h)  minimum reduction of damages by 25% for failure to wear seatbelt, unless claimant establishes failure to wear assembly did not contribute to the injury or death (reverse onus).

These changes to the law apply only where the claim is against an automobile insured.  They would not affect any other injury litigation or claim.

More Legal Changes to Improve Pedestrian Safety

In 2008 the Government of Nova Scotia amended their Motor Vehicle Act to impose new rules aimed at improving pedestrian safety.  The Government of Newfoundland and Labrador should have a look.  The new rules clarify that the driver of a vehicle must yield the right-of-way to a pedestrian lawfully within a crosswalk or stopped facing a crosswalk.  Drivers in this province certainly need to be reminded of this responsibility!  Another needed reminder is that if outside a crosswalk, a pedestrian crossing a roadway must yield the right-of-way to motor vehicles in the roadway, which does not, of course, relieve either of them from the duty to exercise due care.  Fines for motorists who fail to yield to pedestrians in crosswalks were doubled, to $500 for a first offence, and there is provision for an automatic 7 day license suspension.

The reverse onus provision in section 248 of the Nova Scotia Motor Vehicle Act remains in effect:  When a pedestrian is injured by a motor vehicle, the onus is on the driver and vehicle owner to show the accident was not the fault of the driver.  This reverse onus provision is something we do not have in our laws in Newfoundland and Labrador and should implement. 

The spate of motor vehicle-pedestrian collisions which occurred last week is a good occasion for the government to have a close look at improving safety and clarifying the rights of pedestrians. 

Legal Reform Needed to Help Pedestrians

Three serious road accidents involving pedestrians including one death occurred last week, and I posted the transcript of a good CBC radio interview on the topic.  Here's the point I would make about pedestrian collisions, and it's one the government should act on.

Sure, it's easy to say everyone should be more observant of safety, including pedestrians.  But the loser in any disagreement between a motor vehicle and a pedestrian is going to be the pedestrian.

I walk to work most days and I cross LeMarchant Road in front of the Basilica, at the intersection with Bonaventure Avenue.  And I can tell you from experience that one in three cars do not stop for a pedestrian entering a crosswalk.  I've complained to the Chief of Police about enforcement, with no result.

Others have suggested ways to improve safety and reduce accidents and needless injury and death.  As a lawyer helping injured people, I see an area where our law of the roads needs reform.  Most other provinces have a rule on their books that vehicles running down pedestrians are presumed to be at fault.  An example is s. 248 of the Nova Scotia Motor Vehicle Act.

Pedestrians are frail and vulnerable.  It's time our legal rules shift the onus of proof against the driver, who all too often is focused on everything but pedestrian safety, and protect the frail.

Three Pedestrian Traffic Accidents in Week Provoke Questions - Part II

Mr. Gilhooly:        Yeah.  Let's talk a little bit about pedestrians.  In our news today we're quoting RNC sergeant Paul Murphy and he's talking specifically about the accident in which the 85 year old man was killed in Long Pond the other night.  He's saying that it should serve as a wake-up call to pedestrians who chose to run the risk of crossing streets, crossing the streets not at crosswalks.  What do you think of that?

Mr. Brazil:             Well the crosswalks are there for a reason, and I think that there's some common sense that needs to be applied here as well.  If you're out in the dark in poor visibility then it, you know, it's important for you to consider that you want to make yourself as visible as possible, either with reflective clothing, carrying a flashlight with you, just to make sure that the driver does see you, and that's what you want to make sure happens, that you are visible to them.  And if you're not in a crosswalk, and there are places in Newfoundland and Labrador where there aren't crosswalks, and the Highway Traffic Act is very clear you cross that roadway when it's safe to do so, so really what you need to make sure is that there isn't any traffic when you cross that roadway.

Mr. Gilhooly:        You teach defensive driving courses, you're about to go to one now, I mean that's why we've got you in here early this morning.

Mr. Brazil:             Yes.

Mr. Gilhooly:        How popular are they; enough people taking them?

Mr. Brazil:             Well typically what you will see is we have clients, corporate clients, the oil companies, the businesses that use vehicles for their business purposes, that will come in, will ask that we do a driver education program and defensive driving course, often times these same companies will ask that we do assessments of their drivers to provide them with some sense about what we're seeing with their drivers in the road system.

Mr. Gilhooly:        How long does it take before a new driver starts forming bad habits?

Mr. Brazil:             Well often times new drivers form bad habits right off the bat simply because they're learning from their moms and their dads, and moms and dads have picked up the poor habits.  What we try to do is we try to make sure that we refine their skills so that they can see that the poor habits mom and dad have aren't the sort of habits that they want to have, to keep themselves safe, to keep their passengers safe, and really when it's all said and done, to keep other road users safe as well.  You know, what I mean though, that as soon as you get your license, I remember mine, I remember some other young people that I know I mean the first, I don't know, hundred days or maybe even the first year, you're really careful, but in time things start to change, we get complacent, we think because we've gotten away with it this long, we'll get away with it the next time, and really what it comes down to Jeff, honestly is keep in mind that you're in a piece of machinery that's probably the riskiest thing you will do in your lifetime is drive a vehicle, if you're not a skydiver, if you're not catching crab off the sea, then it's probably the riskiest thing you'll do in your lifetime.  And that's why we try to make sure our students understand that this is their responsibility, your license is not a right, okay, it is a privilege.

Mr. Gilhooly:        So driver's heads up, pedestrians up and of course if the weather keeps on the way it is I'm pretty sure we're going to have a lot of bicycles and motorcycles out around.

Mr. Brazil:             I think that that needs to be pointed out as well.  Most of us as drivers seem to think of other road users as simply being other drivers.  The pedestrians have a right in the road system, the cyclists have a right, the motorcyclists have a right to be in that system.  The Highway Traffic Act allows for it.

Mr. Gilhooly:        Thanks for coming in.

Mr. Brazil:             You're welcome.

Mr. Gilhooly:        Jim Brazil, Manager of Traffic Safety for Safety Services, of course used to be known as the Newfoundland Safety Council. 

Three Pedestrian Traffic Accidents in Week Provoke Questions

Mr. Gilhooly:        An 85 year old man dies after being knocked down while crossing a busy stretch of highway in Long Pond, an 11 year old girl is in critical condition at the Janeway after she was struck by a car in Grand Falls-Windsor, and on Monday, another pedestrian was knocked down by a hit-and-run driver around lunchtime on Elizabeth Avenue in St. John's.  A spike in car-pedestrian accidents has a lot of people wondering, what is going on.  Jim Brazil is the Manager of Traffic Safety for Safety Services, that's the group we used to call the Newfoundland Safety Council, and he's live in the studio.  Good morning Jim, thanks for coming in.

Mr. Brazil:             Thanks.

Mr. Gilhooly:        I know that we don't know the specifics of each of these cases so we're not going to go there but when you hear about a string of accidents like this in a fairly short period of time, what goes through your mind?

Mr. Brazil:             Well, I think it's not typical, what goes through my mind is I'm seeing and our instructors are seeing a lack of respect for other road users, typically from the driver side. A lack of respect in the sense of ignoring crosswalks; ignoring people in the crosswalks.  Now it goes both ways.  You'll see jaywalkers all over the city who don't use the crosswalks when they're supposed to use them.  So while there's a spike as you say, I'm not certain that it's tied to anything that's sound, I think it's simply something that has occurred.  There has been a lack of respect on our roadways it seems for a long time. 

Mr. Gilhooly:        We always hear comments about there's too much traffic now, it's more than the infrastructure, I guess, was built for, or we talked about speeds, drivers are, they're too fast these days, does any of that make sense to you?

Mr. Brazil:             Well statistically in the last 25 years we've increased our vehicle registrations by 60% across the country, we have 35% more drivers than we had 25 years ago, so obviously there is increased traffic out there, there's no doubt about that.  Speed, well speed is always a factor.  We all have this understanding that we can drive 60 in 50 kilometers alright and 65, we're not going to get a ticket, we can drive 150 in a 120 on a 100 kilometer an hour stretch and we're not going to get a ticket.  The reality of it is though speed impacts on us in a number of ways.  It increases our stopping distance and obviously it also increases our kinetic energy or our force of impact.  Statistically it's interesting to note that someone who's hit, a pedestrian is hit at 30 kilometers an hour and has only a 5% chance of actually dying from that collision, whereas someone who's hit at 65 kilometers an hour, there's a 85% chance that they will die from that collision.

Mr. Gilhooly:        Wow.  I think some people would also be shocked with the latest statistics on the percentages of pedestrians killed in all traffic accidents in Canada.  I was when you told me this number yesterday.  Can you lay that on us now?

Mr. Brazil:             13 out of every 100 fatalities in Canada are pedestrian traffic fatalities. 

Mr. Gilhooly:        Everybody I asked that question to guessed much lower than that.

Mr. Brazil:             They typically do.

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.

Safe Driving Contract Worth Considering

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.

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.

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.

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.