Guidance, Care and Companionship in Newfoundland and the Thinking Behind Amendment to the Fatal Accidents Act

In a speech in the House of Assembly this month, the Minister of Justice clarified the government's thinking behind the amendment to the Fatal Accidents Act.  The amendment would allow the court to make an award of damages for the loss of care, guidance and companionship suffered by a loved one upon the death of a family member.

In an earlier blog, I suggested that the use of the word "non-pecuniary" would clarify that the legislature intends this amendment to permit courts to make awards of non-pecuniary damages for intangible, emotional losses suffered by family members.  Otherwise, the intention to create an award of damages for non-pecuniary loss to family members might be left in doubt and open to defence arguments which seek to undermine it.

Now I understand the government's logic.  The Minister of Justice, Mr. Collins, cited the case of McLean v. Carr decided in 1994, in which a judge in this jurisdiction distinguished between an award for loss of guidance and care, which is pecuniary in nature, and an award for loss of companionship, which is non-pecuniary in nature.  Our government has relied on the analysis in this case and Mr. Collins takes the position that by inserting the words "guidance, care and companionship" in the Fatal Accidents Act, but particularly the word "companionship", the legislature has directed the courts to make non-pecuniary awards, because companionship is an inherently non-pecuniary concept.

I certainly hope that when the first case to rely on this amendment and claim a non-pecuniary award of damages for wrongful death comes before our courts, the plaintiff lawyers who argue it will recognize the significance of the presence of the word "companionship" in the legislation, and will be able to link it back to the decision in McLean v. Carr.  Otherwise, the judge-make law may get off on the wrong foot.  The Minister's remarks to the House should be obligatory reading for any injury lawyer who represents victims of wrongful death.

How is my Injury Claim affected by a Separation or Divorce?

You have a personal injury claim, arising from an auto accident, a slip and fall on premises, medical malpractice, or some other source of bodily injury.  Before settling your claim, you go through a separation or divorce proceedings or think soon may have to.  Here are some basic considerations to keep in mind.

The division of "matrimonial assets" in the province of Newfoundland and Labrador is defined and governed by the rules set out in the Family Law Act.  Generally the Act has the effect of providing for an equal distribution of matrimonial assets upon separation or divorce, allowing some discretion on behalf of the Court to divide the matrimonial assets in non-equal portions if it considers that to do otherwise would be unjust. (You should seek the advice of a lawyer who practices in the area of family law for any questions in this regard.)

A portion of personal injury awards, fall under an exception and are excluded from the definition of "matrimonial assets" under Section 18(1)(c) of the Family Law Act.  It states:

18(1)(c) "matrimonial assets" includes all real and personal property acquired by either or both spouses during the marriage, with the exception of,

• (i) gifts, inheritances, trusts or settlements....
• (ii) personal injury awards, except the portion of the award that represents compensation for economic loss,"
• (iii) ...

Whether "personal injury awards" in s. 18(1)(c)(ii) is intended to include settlements involving payment of compensation for personal injury has not been interpreted by a court, but it would be a pretty illogical result if it did not.  Most lawyers would assume "award" as used in the Family Law Act includes not just monies awarded by a court, but settlements of legal claims too.

Therefore, personal injury awards, including settlements for non-economic loss (e.g., awards for pain and suffering) are not to be included in the calculation of matrimonial assets.  However portions of a personal injury claim that are considered to be in respect of economic loss will be included as a matrimonial assets.  Meaning, for example, if you are awarded damages under a heading such as a loss of future earning capacity, that would be considered an economic loss and thus would be included as a matrimonial asset, or compensation received for the damage or loss of a vehicle would also be included as a part of the matrimonial assets.

One should be aware that property held under joint names has been considered to be proof of intent to share ownership of the property.  This should be considered before one deposits a cheque, received as damages for personal injuries, into a joint bank account. 

In Newfoundland and Labrador an excluded asset used to acquire matrimonial assets loses its identity and no longer exists as an excluded asset.  Therefore if one takes their personal injury award, which would otherwise be excluded under this section, and decides to purchase a new vehicle out of the funds, prior to separation, the vehicle will likely be considered a matrimonial asset and therefore be divided property in accordance with the Family Law Act.  One possible way to protect such property rights would be through the use of a marriage contract or separation agreement. 

This summary is intended to be informative but is not legal advice.  For that, you need to hire a lawyer.  Your injury lawyer can give general advice but if you are involved in separation or divorce proceedings, your matrimonial lawyer is the person to work out the details of who gets what.

Contingency Fees: Keys to the Court House

What is whiplash and what should you do if you sustain whiplash?

Aging Population Requires New Safety Initiatives

Jeff Gilhooly:        Well if you're a senior and you enjoy the independence of driving your own car, listen up, an article in this week's edition of the Canadian Medical Association Journal suggests that many people turn a blind eye to elderly motorists who should not be driving.  It goes on to say that a government run driving retirement program is long overdue.  The editor and chief of this journal is Dr. Paul Hebert and he's on the line.  Good morning.

Dr. Paul Hebert:    How are you?

Mr. Gilhooly:        Good.  Why do you think a driving retirement program for seniors is long overdue?

Dr. Hebert:            Well I think right now we have what amounts to a bit of a haphazard approach to this.  We basically need clear standards and a clear approach.  At present what we have is a system where doctors are mandated to report dangerous drivers in most provinces if they think they have a medical reason not to drive.  So the difficulty we have is doctors are not in a position to judge whether someone can drive or not.  We are basically our patient's advocate, we're there to help them, diagnosis them, treat them.  We're not driving testers.  So what we're advocating for is that governments be the gatekeepers and, you know, decide when or not to drive, and the doctors be basically the people who notify.

Mr. Gilhooly:        Is there recent research to suggest that people who are driving over the age of 65, or driving over the age of 75, aren't doing as safe a job as they once did or what's the basis for this?

Dr. Hebert:            No.  Let me put it to you this way, at some point in your life you will be unsafe to drive, you're not going to be driving, you know, at the end of your life.  So it's something we're all going to have to face, right.  Now just to be clear, I'm not saying every single driver, in fact, I'm saying the opposite.  We're not saying every single driver over the age of 65 is dangerous, in fact, the evidence is to the contrary.  What we're saying though is that by the time we hit 75 and 80 your health is an issue and you ought to be evaluated on a more regular basis, and your risk of having accidents dramatically increases, almost as bad as being a teenager.

Mr. Gilhooly:        But you know how this is going to be received by some seniors, I mean, we are such a car-oriented society that their, almost their entire independence is based on being able to get from A to B in a vehicle.

Dr. Hebert:            I completely agree.  First and foremost public safety as we said.  Secondly we need, and that's the second part of our editorial.  The first part is let's standardize the approach, you know, let's get rules in place, standardize the approach, make sure doctors aren't the gatekeepers, because that's not our job.  And the second part of this whole thing is really we need to keep our seniors as independent as we can as long as we can.  This is something that governments haven't stepped up to the plate to do, right.

Mr. Gilhooly:        Well programs like what?

Dr. Hebert:            Well, for example, making sure that these communities have, let's say, school buses that are used to basically help people get to their groceries.  There are programs like that in, for example, in Ottawa.  We need to make sure that, as you pointed out, that urban planners mandate that seniors be considered when they build buildings and communities, right.  Communities aren't seniors friendly these days, as you pointed out, where we've got urban sprawl and our communities in general are not designed to basically walk to get your groceries.

Mr. Gilhooly:        Do you think there should be like financial incentives, even tax breaks?

Dr. Hebert:            Yeah.  Well I think what we need is governments to consider this and to start, you know, a consultation process to determine what we need in place to basically keep our seniors independent, but at the same time to have programs into place to help them retire from driving.  So when I get there, I want to make sure that I have choices.  My choices aren't to drive or not to drive, my choices are first I will go to a conditional license, some form of, you know, de-escalation, I won't be driving on the highways when I'm 90 years old and I won't be driving at night, I'll be driving to my doctor's appointments only, hopefully not on a highway, you know.

Mr. Gilhooly:        Don't drive in rush hour.

Dr. Hebert:            Yeah, so rush hour, or in unsafe conditions like during, you know, like St. John's has a lot of fog and snow.

Mr. Gilhooly:        I get a sense in talking to you that some of this is coming from the aging of our population in 5, 10, 15 years where the bulk of our drivers, or the age of the bulk of our drivers may be, is that what's pushing this to some degree?

Dr. Hebert:            Well actually if you're asking me why we came up with this, well we came up with this when we talking around our editorial group and at least a few of us were facing this very issue with our parents.  So that's where the idea came from and all of us realize that this is something that is going to affect more and more of us as our population ages.  So yes this is going to become a big problem.  It's a problem now because it's not standardized and we have, you know, we have issues, we have problems because our doctors are gatekeepers to licenses as opposed to our patient advocates, we have problems because we don't have a standardized, you know, approach to identifying patients when we need to, to send them off for evaluation, we have problems because we don't have appropriate testing procedures, like government to decide whether people need to be, you know, maintained on the road or not or have a restricted licence.  So all the way around there are issues and it's going to become a bigger and bigger one as our population ages.

Mr. Gilhooly:        Dr. Hebert thanks for this.

Dr. Hebert:            Thank you very much for having me.

Mr. Gilhooly:        Bye now.

Dr. Hebert:            Bye.

Mr. Gilhooly:        That's Dr. Paul Hebert, he's editor and chief of the Canadian Medical Association Journal.  You can read the article online at their website, www.cmaj.ca.

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.

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.

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.

Wal-Mart Victim Has Good Day in Court

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

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.

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!

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.

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.

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.

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.

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. 

Legal website to relieve consumer frustration

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.

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

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.