Attorney Blog

Ches Crosbie versus the Moose

ccrosbie@chescrosbie.nf.net (Blog Author)73839 — Wed, 25 Jan 2012 08:00:00 EST

It is Ches Crosbie versus the moose of Newfoundland. Mr. Crosbie filed a class-action lawsuit earlier this year against the province of Newfoundland on behalf of two victims of moose-vehicle collisions. He claimed that “the province negligently failed to manage a moose population that is a public nuisance” (CTV News). The government was named as a defendant, according to The Globe and Mail, because “it brought moose to the island a century ago as a source of meat” and “controls the moose population through the issuing of hunting tags”. Mr. Crosbie estimated that there are “about 700 moose-vehicle collisions annually and perhaps two or three deaths” caused by moose weighing up to 1000 lbs. Although Mr. Crosbie acknowledges that “when we launched this class action, most people in the province thought that we were a bit crazy”, an increase in the number of plaintiffs and Justice Richard LeBlanc’s recent support of certification of the case means that he is now involved in a “potentially precedent-setting class action” unlike any other in the country.
(The above appeared in a recent edition of the Canadian Rhodes Scholars Newsletter. I reprint it for fun.)

Titanic and Injury Claims

ccrosbie@chescrosbie.nf.net (Blog Author)72252 — Thu, 29 Dec 2011 08:00:00 EST

If you build a boat, the boat must float… or must it? The band played on, but how did the lawsuit play out? And would civil justice be any kinder today, some 100 years after the largest man made moving object on earth grazed an iceberg south of Cape Race, sinking forever into the pages of myth and history? You be the judge… and jury!
That is the advertising summary – “blurb” if you like – I gave the Johnson Geo Centre in St. John’s to use for my presentation on the Titanic, to take place on the evening of Tuesday, February 7, 2012. Lots of great video from YouTube!
What interested me as the hundredth anniversary of the Titanic’s sinking on April 15, 1912 approaches, is how did the legal claims fare that arose out of the Titanic disaster? The short answer is not very well. If the Titanic disaster occurred today, would the legal claims for compensation made by survivors, widows and orphans fare any better?

Come to the Johnson Geo Centre on February 7^th, 2012 att 7:30 PM and find out!

Residential School Survivors Sue for Dignity Not Money

ccrosbie@chescrosbie.nf.net (Blog Author)71917 — Thu, 22 Dec 2011 08:00:00 EST

The decision of the Newfoundland and Labrador Court of Appeal yesterday to uphold the certification, or class action status, of actions brought on behalf of residential school survivors, is welcome news to the survivors and their legal team.

The Government of Canada is resisting the claims, saying that unlike in the provinces and territories outside Atlantic Canada, they did not have a hand in running the schools. Yesterday’s decision recognizes that there is a case to be made that the Government of Canada is legally responsible for abuses at the schools.

These abuses ran the gamut from cultural abuse to physical and sexual abuse, and affect about 5,000 living residential school survivors and close family members. Four of the schools were located in Labrador, and one in St. Anthony.

The Nunatsiavut Government knows that close to 4,000 of the class members are constituents. Nunatsiavut is supporting the class actions, although Nunatsiavut is not formally a party to the actions. Minister of Finance Danny Pottle was with me yesterday when we received the court’s decision.

Danny’s emotional response to the news that the class actions could go forward gave me a valuable insight into how Innu, Inuit and Métis view these claims. Sure, the actions advance a claim for a remedy in money damages, because that is the only remedy which our system of laws has the power to grant. But the actions have a bigger and more important dimension.

The class actions truly are about reconciliation between aboriginal peoples and the rest of Canadian society. Access by aboriginal people to one of the critical levers of power in Canadian society – the legal system – can make even the least citizen the equal of a King. Access to justice through the legal system may take aboriginal peoples in Newfoundland and Labrador several steps down the long road toward full and dignified participation, on their own terms, in the work-in-progress that is Canada. How much greater will Canada be in the eyes of the world when this historic unfinished business is complete!

Mother makes plea from the heart on moose to minister

ccrosbie@chescrosbie.nf.net (Blog Author)70978 — Mon, 12 Dec 2011 08:00:00 EST

Dear Mr. Henderson,

I am Crystal Adams. My daughter Denika was killed in a moose/vehicle accident on April 29, 2010 by the Avondale overpass.

Denika was just 18 years of age and two weeks shy of her Grade 12 grad. Denika was a well-loved young lady, not only by her peers but by everyone that met her. Denika had so many dreams that she wanted to fulfil, but her life ended way too early because of a moose that had been on the highway for a period of two or three nights. It was bad enough to lose my daughter, but it is worse to find out that the accident could have been avoided if something had been done to get these nuisance moose off the highway.

What I am writing about now is the fear that I now have of driving on our highways once the sun goes down.

Whenever I hear about another moose accident, it brings back all the memories of losing my daughter all over again. I get weak all over, fearing that someone else is going to have to go through what I have in the past 19 months. It’s like it’s all happening all over again. I have another daughter who now has a fear of driving on our highways at night. In this day and age, it is something that we should not have to worry about. I will not drive on our highways or be in a car after the sun goes down.

As for the sensor system that is now installed on the Trans Canada Highway, I feel it is in the wrong area.

I found it quite funny that, travelling west on the TCH about one kilometre west of the sensor system, there is a sign saying moose for the next six kilometres.

Shouldn't the sensor system be put in that area?

The system could be a step in the right direction, but there is not enough information being released on it.

When it was first described, I Googled the system and couldn't find anything about how it worked. I know that the lights will flash for a period of time. But what if the moose stays on the side of the road, and when the lights stop flashing, he decides then to go across the road? Will the lights keep flashing?

Do the lights also flash on the solar panels? If they don’t, how will we know if there is a moose in the road after we pass the warning signs?

How far is the sensor from the ground? What about when we have two or three feet of snow? Will the sensors be up high enough to still be able to work?

Also, can the sensor pick up a small calf? Or do the moose have to be a certain size?

I feel that it is about time that everyone started working together to come up with a solution to get these massive animals off our highways. I can remember years ago, I would say to myself “if it’s snowing, Crystal, don’t go.” Now I say “if it is after the sun goes down, Crystal, do not go on our highways.”

The fear of getting into a moose accident is too much for me. In the year 2011, the voters of this province should not be afraid to travel on our highways.

Crystal Adams

Shoal Harbour

Pain of Remembering Loved Ones Killed in Road Accidents Helped by Optimism for Future

ccrosbie@chescrosbie.nf.net (Blog Author)70115 — Tue, 29 Nov 2011 08:00:00 EST

I was humbled to attend two events memorializing Canada’s national day of remembrance for road crash victims, last Wednesday, November 23.

The first event was a wreath laying at the weigh scales just beyond the Foxtrap Access Road outside of St. John’s, which occurred at 1 PM.

The second was a ceremony at City Hall in St. John’s, which began at 6:30 PM. The Telegram has done a lovely write up of this event.

The occasions were somber, fraught by tragedy as they were. However, as Canadians we may find cause for optimism in the future. All levels of government have made a concerted effort to lower the death rate from auto crashes from the range of 4,000 a year, where it was in 1990, to the level of 2,011 fatalities in 2009. Canada’s national strategy is to have the safest roads in the world, and lowering the fatality rate by 50% is an impressive move in that direction.

Coincidentally, our goal in the moose vehicle collision class action against the Government of Newfoundland and Labrador is similar – at least a 50% reduction in the moose-vehicle collision rate over five years. So I say that the results of government resolution to tackle a difficult and appalling problem – traffic fatalities – has shown good results when targets are set. Let’s see our provincial government adopt the target of SOPAC and the class action – a 50% or more reduction in the moose-vehicle collision rate over five years. If governments decide to do this, it will be done. If they don’t, it won’t.

I would like to see our government adopt a goal of reducing moose vehicle collisions by 50% or more. I will be meeting with representatives of safety advocacy groups this week to develop a plan of action which would embrace not only the moose collision issue but other safety initiatives which should be in the 5-year strategy for the government of Newfoundland and Labrador.

Moose Vehicle Impact Echos On

ccrosbie@chescrosbie.nf.net (Blog Author)69929 — Mon, 28 Nov 2011 08:00:00 EST

Jean Pike hit a moose. She provided her friends on the Save Our People Action Committee listserv with a note describing the ongoing psychological consequences of this on her. All of us who drive at night will understand:

As many of you know I have a permanent full time job in St. John's and have been driving back and forth daily since my return to work in August. Due to my increased fear of driving home to Port de Grave after work I have taken a half time temporary position in Carbonear. As much as I am happy to be working closer to home, I have taken a half salary for the next 11 months due to my fear of driving on the highway. Once the temporary position is finished I will be returning to my position in St. John's. This means the highway drive begins again. The point of my rambling here, is to emphasize the impact a moose collision accident can have and how it impacts every aspect of our lives.

As we get into the winter weather road conditions, and early nights, my wish for you is safe travels and happy times.

Thanks again for all of the work SOPAC executives and others involved do to help push ahead for highway safety.

Atlantic Lotto, VLTs and Online Gambling

ccrosbie@chescrosbie.nf.net (Blog Author)69715 — Fri, 25 Nov 2011 08:00:00 EST

Minister of Finance Tom Marshall recently did an interview on the CBC’s St. John’s Morning Show and discussed how online gambling is eating into Atlantic Lottery Corporation’s profits. These profits have drifted down by millions of dollars in recent years, mainly owing to loss of business to offshore gambling sites.

The Province of Newfoundland and Labrador is one of the four Atlantic provincial shareholders in ALC. Somehow, the mistaken assumption has arisen that these offshore gambling sites are not against the law, and if they are nothing can be done about it.

I think they are against Canadian law, and there are technologies that can block access to these sites which can be implemented for very little expense. I’ve been told by people in the know that Newfoundland and Labrador is losing about $33 million a year due to failure to act on this.

From the standpoint of the class action against ALC over the VLT deception, the Minister’s interview constitutes an interesting admission that ALC is in competition with these offshore sites. Why is that important? Because ALC has informed the court that they intend to bring a special application in April 2012 to challenge the idea that they are subject to the deceptive marketing provisions of the Competition Act. Their argument will be that the Competition Act does not apply to ALC because they have a statutory monopoly and do not compete with anyone. Unfortunately for this argument, the Minister says they do compete. Many a beautiful theory has been slain by an ugly fact!

Certification will be heard in April 2012 – finally! Certification is very important because it determines whether the action can proceed as a class action. We remain optimistic about success in obtain certification. Then we’ll see what ALC knows about the dangers of VLTs.

Injuries Caused by Medical Devices and Pharmaceuticals: Evaluating the Case

ccrosbie@chescrosbie.nf.net (Blog Author)69329 — Mon, 21 Nov 2011 08:00:00 EST

From time to time, we receive enquiries from people who have been injured or even killed by the use of medical devices and pharmaceutical products. Generally speaking, for such a claim to be viable requires either a very serious injury with significant money damages, or a class action which the client may join as a member, or both. The following response to an enquiry shows how I think about accepting these types of cases:

Thank you for your enquiry about the [name of medical device]. I have discussed this with a lawyer in Toronto involved in medical device cases.

In view of the fact that problems with the filters were known about in 2009 if not before, one might wonder whether the surgeon should have explained these risks to you. However the fact is that you have not suffered serious injury, at least as yet. The case therefore would not justify the expense and time involved in suing either the surgeon or the manufacturer, as an individual claim.

Although there are class proceedings in the United States, there appears to be no class action outstanding in Canada. It is very difficult to gauge the possibilities of a national class action in that Health Canada does not have a database for medical device malfunctions or defects, unlike the one for pharmaceutical adverse events. It is therefore difficult to know whether there is a significant enough number of patients injured by the device, to form the basis for a class action.

For the time being, we must decline to represent you in any legal proceeding. However, if new information comes to light you may wish to contact us again. Please remember that your right to take legal action may expire two years from the date on which you learned that there was a problem with the device and it was migrating in your body.

I enclose a copy of my medical malpractice book and some other information that may be of interest to you.

Road Safety Gets Needed Attention, Injury Firm Makes Donation

ccrosbie@chescrosbie.nf.net (Blog Author)68966 — Wed, 16 Nov 2011 08:00:00 EST

This year was the official launch of the United Nations Decade of Action for Road Safety, in case you didn't notice. We should all notice, because although constant national efforts have reduced the traffic death toll to 2,418 in 2008 across country, this is still far too high. Each one of those traffic deaths was a human being with friends and family and a future - until it was cut short.

Transport Canada has designated 2011 as Canada's Year of Road Safety, and furthermore, this coming Wednesday November 23 is the National Day of Remembrance for road crash victims. Largely through the reforming zeal and energy of Jeannette Holman-Price, the day will be marked by an event at City Hall at 6:30 PM, and a wreath laying at the weigh scales outside of St. John's at 4:30 PM.

The campaign theme is "Re-think The Way You Drive".

To help promote the campaign for road safety and collision avoidance, Ches Crosbie Barristers will donate $500 to the Brain Injury Association of Canada for every collision case we take to settlement or judgment, where a new client mentions hearing our message of support on VOCM. Our message is playing now until November 23.

Start today to "Re-think The Way You Drive."

Texting While Driving With Your Knees

ccrosbie@chescrosbie.nf.net (Blog Author)68909 — Tue, 15 Nov 2011 08:00:00 EST

Sending text messages while travelling at excessive speed and driving with his knees - this gained a 21-year-old Newfoundland man three months in jail and a three year driving suspension. The sentence was delivered yesterday. This must be one of the more bizarre texting while driving incidents I have heard of. Two young women passengers suffered serious injuries as a result of this conduct, which exhibited extreme disregard for human safety.

I wonder what message this young menace from Spaniard's Bay, Conception Bay, found so compelling to get out while speeding and driving with his knees? Almost certainly the message was pathetically silly and inane.

At age 58 I am not about to be tempted to take up texting while driving, but now is a good time to remind our kids that texting while driving is not only against the law, it can ruin lives.

A Personal Injury Lawyer in Newfoundland

ccrosbie@chescrosbie.nf.net (Blog Author)68226 — Mon, 07 Nov 2011 08:00:00 EST

That's the search term I used in Google recently. Let's assume a consumer who may need to hire a personal injury lawyer has used those words to search Google.

What the injury victim will find is maybe 3 hits at the top of the page, which are paid advertisements but sometimes hard to tell that they are paid advertisements. On the right-hand side are ads which are easier to tell that they are ads.

Among the websites for Newfoundland and Labrador law firms that Google returns, will usually be some referral services which specialize in brokering clients to lawyers who pay to be on a referral list for the service.

Nowadays, the consumer may get hits from Google places, Facebook or even YouTube.

I have made helpful suggestions for finding the right accident and injury lawyer elsewhere, so for now I will just mention that one way of narrowing down your choice of lawyer is to look for testimonials and reviews on sites like the lawyer's website and Google places. Let's face it, we all like to know whether other consumers are satisfied with the product or service that we are considering. Hiring an injury lawyer can be a lot more important than most of the purchasing decisions that you ever make, so spending a little time reading testimonials and reviews is well worth it. Then if you really want to do your research, follow the other suggestions contained at my website and in my book 7 Deadly Sins, available free of charge by filling in the form above.

I wish you success in finding the personal injury lawyer in Newfoundland and Labrador who is right for your case!

What's being done to keep cars from crashing into moose

ccrosbie@chescrosbie.nf.net (Blog Author)68071 — Fri, 04 Nov 2011 08:00:00 EST

That is the title of a story in MacLean's dated November 3, 2011. Calling moose "an emotional, and frequently political, issue in Newfoundland", the story says that recent pilot projects put this province "on the cutting edge of efforts to tamp down on wildlife collisions".

I think this way over bills the pilot projects which the government of Newfoundland has instituted too little, too late.

If the government wants to test out relatively new technology such as wildlife detection systems using infrared beams, then fine, by all means do pilot projects. In the meantime, there is tried and proven technology - moose fences with and without under/overpasses - which have been in service and have proven their worth for the last 10 or 15 years in many parts of North America. There is nothing unique about Newfoundland to indicate that fencing will not work here. By all means erect moose fencing, but not through pilot projects, but on a serious scale at accident hotspots already identified by government.

Now that truly would put us on "the cutting edge of efforts to tamp down on wildlife collisions". But it hasn't happened yet.

Finding the Right Lawyer for Your Personal Injury Case

ccrosbie@chescrosbie.nf.net (Blog Author)68013 — Thu, 03 Nov 2011 08:00:00 EST

One indicator a consumer can use to find the lawyer that is right for them, is independent ratings by other lawyers. These peer reviews are conducted on the theory that other lawyers should have a pretty good idea about who is a good lawyer in their field.

It is a bit like the old saw, if you want to know if the surgeon is any good, ask the anesthetist. He or she is in a good position to know.

Two lawyer rating services in use in Canada are Best Lawyers and Lexpert. For example, Lexpert just notified me that I am included in their list of recommended lawyers in the personal injury category. This recommendation cannot be bought or purchased. I have been recommended by Lexpert for quite a number of years now.

So, finding a lawyer who is recommended by peer review services - other lawyers - is a pretty good start to finding the lawyer who is right for you. The personal injury category includes accident and injury by motor vehicle, or other forms of transportation such as boats and planes, slips and falls, other accidents and injuries on premises, and even the subspecialty areas such as medical malpractice.

If you would like more tips on how to find and select the lawyer that is right for you and your case, order a copy of my free book 7 Deadly Sins by filling in the form on this website.

It is worth the effort to do some research before you make a choice in something as important as hiring a personal injury lawyer. It increases the likelihood, that what can otherwise be a difficult experience of finding and hiring a lawyer, will be remembered as a satisfying experience by the client and the lawyer too.

Questions from Company Doing Moose Documentary

ccrosbie@chescrosbie.nf.net (Blog Author)68039 — Thu, 03 Nov 2011 08:00:00 EST

Q. We're going to be editing our story soon and I wanted to check if there have been any new developments in the moose class action suit since you were interviewed? Has it moved forward? Any action from the courts? Did the elections make any difference? What is the status of fencing? Is it possible to get a copy of the lawsuit so I can see exactly what the plaintiffs are asking? Thanks again for your help.

A. The Statement of Claim and Defence are available on our website, as is a lot of other information. Moose fencing and warning systems are being erected at certain locations around the island. The opposition adopted a policy in favor of a moose cull and fencing and also that the lawsuit should be settled. While the suit has not been settled, I am satisfied that there is a substantial section of public opinion which sees this as a legitimate issue and it will be easier for the government to settle the suit when the time comes. We await production of a number of bankers boxes of records and this should arrive soon. If there are no undue delays then trial of the common issues in the class action may be a year to a year and a half away. This article in MacLean's may be of interest.

Moose Class Action Enters Heavy Lifting Phase

ccrosbie@chescrosbie.nf.net (Blog Author)67411 — Tue, 25 Oct 2011 08:00:00 EST

The provincial election is behind us and the government feels it will have public peace on the moose vehicle collision issue for a while. The news media continues to report sightings and collisions with moose at a high pace, including a collision last week with a Royal Newfoundland Constabulary cruiser. I guess the "blame the driver" types have rationalized the police collision, which happened well within St. John's city limits, as being due to excessive speed and driver inattention - their usual mantra!

The heavy lifting phase of the lawsuit is the part where documents from the government must be read and officials and Cabinet ministers examined for oral discovery. This phase is where plenty of legal legwork must be done, and it is critical to the success of most lawsuits. It also takes some time to do.

By the time the House of Assembly opens next spring, we should know a lot more about how the evidence fits with our theory of the case. When both sides are satisfied they are ready, the case can proceed to what is called a common issues trial. The common issues trial will decide whether the government has to pay the class members, but not how much it has to pay the class members. A lawsuit can settle at any time, but often not before the courthouse steps are reached. The time this will take will be likely measured in years, not months, so members of the moose class action should be prepared! We at Ches Crosbie Barristers will be working hard on this mass motor vehicle accident claim until settlement or judgment is reached.

In the meantime, class members and SOPAC members alike can take some satisfaction in knowing that it is the actions we have all taken which have persuaded the government to stop sitting on its hands. Without the class action, and without SOPAC's activism (ably assisted by Wanda Cuff Young), the government would not have increased moose licensing by 5,000 this year and would not have announced spending of $5 million on fencing and warning system pilot projects. This success for the class action and for SOPAC is not the beginning of the end, but it is the end of the beginning. And it bodes well for a successful end at the end!

Let us not forget. Our purpose - our end - is not just much-needed financial help for those injured due to government neglect of the moose menace on our highways. It is a minimum 50% reduction in collisions. It can and must be done!

Text Messages While You Drive

ccrosbie@chescrosbie.nf.net (Blog Author)67132 — Thu, 20 Oct 2011 08:00:00 EST

Ford is installing a new feature in its vehicles that can read text messages out loud. The measures, says Ford, is intended to reduce texting while driving.

The software uses a Bluetooth connection and syncs with the phones and alerts users when they receive text messages. It reads the messages out loud and allows users to respond.

In view of studies which find that texting while driving increases the risk of getting into an accident by up to 23 times, I have doubts that this measure will improve traffic safety.

Moose population out of control (Part 2)

ccrosbie@chescrosbie.nf.net (Blog Author)65378 — Tue, 27 Sep 2011 08:00:00 EST

Here is the continuation of John Barry's letter posted yesterday:

We have the highest density of moose in North America, one for every 4 people (125,000). Let's say for arguments sake we have 75,000 mature females. We have a calf crop every year. Even by deducting for predation and calving difficulties that leaves us with approximately 28,000 bull calves and 28,000 female calves. Isn't this identical to how we arrived at our problem of seal over-population?

Since my accident, I occasionally have spoken with and listened to open line conversations and the consensus of the majority of the people in this Province are in favor of a serious moose cull. However, in this Province we have a separation of Government and people. This, it appears is not a Government for the people. Evidence of that is the decision made by bureaucrats and sanctioned by Minister Ross Wiseman. The prudent approach would be to advertise a serious cull of the moose population, and in turn generate income for the provincial coffers. The Governments decision is to keep the moose population growing and use the taxpayers money on an experimental fence and motion detection cameras. Incompetent! Looks that way.

The Government currently derives some revenue from moose hunting each year. Even with a serious cull that income would still be there, however, that income from hunting in no way offsets the medical cost to the taxpayers of Newfoundland from the people injured or killed in moose accidents in Newfoundland (2 per day).

Show your compassion for the many, many of your fellow Newfoundlanders who have been injured over the years in moose accidents. With an election around the corner, your voice will be heard. Remember you could be the next moose accident!

Moose population out of control (Part 1)

ccrosbie@chescrosbie.nf.net (Blog Author)65377 — Mon, 26 Sep 2011 08:00:00 EST

John Barry was hit by a moose! John provided me with this excellent letter (which I will publish on this blog in two parts, the second part tomorrow).

I have been living back in Newfoundland for 15 years. I work in the construction industry and that trade takes me to many towns in Newfoundland, especially along the TCH. During the past years of travel we have seen a lot of moose-auto collisions. Often times the vehicles involved are almost unrecognizable, people trapped in their cars, or laying on the roadside broken and bleeding.

It was always my view that the majority of these accidents were a direct result of speeding and some of these accidents are that. The roads at night are dark, the forest is dark, and the moose are dark, making it very difficult to see these large animals.

However, my opinion of moose accidents has changed due to a moose hitting my vehicle, not my vehicle hitting a moose.

On February 11. 2010 at approximately 7:30pm we were traveling home to the Marystown area, when two kilometers from the turn-off on the TCH (Goobies), to Hwy. 210. We were driving a 1 ton dually and pulling a 28'construction trailer at 90K per hour. In a split second the driver side window exploded inward and a moose head came into the cab, hitting me in the head, pushing me over to the center of the pick-up, and cut open my left shoulder with the seatbelt. The momentum of the truck pulled the moose back out the window. It tore the fender off the truck and crashed into the left front corner of the trailer. It then fell into the middle of the road.

I was diagnosed as having my neck broken 2/3 of the way, and serious ligament and muscle damage.

I have lost a considerable amount of work due to my injury. I am costing the medical system money. That is you the taxpayer.

As well as working construction I am also a farmer. If any of my livestock were to get out and wander onto a roadway and get hit by an automobile causing serious damage to the auto or yet worse maim or kill somebody, I would be paying for the rest of my life. Why then is the government not responsible for the damage that these moose are causing when they are the ones who regulate them?

(Part 2 appears tomorrow)

Client reveals human cost of moose accidents as election begins

ccrosbie@chescrosbie.nf.net (Blog Author)64966 — Mon, 19 Sep 2011 08:00:00 EST

Today Premier Dunderdale will visit the Lieutenant Governor and the general provincial election will be officially on, with voting on October 11. While the government posture is that they have taken action on the moose issue in the form of spending $5 million on pilot projects, Liberal leader Kevin Aylward says this is too little too late. He will have a press conference today with Ben Bellows, representative plaintiff in the moose class action, and call for settlement of the claims.

The politics of the issue should not distract us from the human tragedy underlying it. Deanne Byrne provided the following account of her accident recently.

The accident happened on the Stephenville Highway at around 10:00pm August 10, 2008. I was taken to the hospital by ambulance to Sir Thomas Roddick in Stephenville. I was there until 5:00pm the next day, I had to wait for CT Scan to come back to make sure I did not have bleeding on the brain. It did show that I had a left eye socket fracture of the orbit, left cheek bone fracture and a shattered nose, later I was told I had my rotator cuff injured and needed surgery. I also found out from a specialist of dentistry that my jaw bones were shifted, I wear a $2000.00 mouth piece at night, I still can't pick up my son due to my shoulder, it hasn't healed back 100%, I can't do most of my house work, I could not return to my job as a retail associate due to the fact that I cannot left things or reach high up to get things down. I have been out of work since Dec, 2009 and have not been able to return since. I have no income coming in and I am very depressed because I can't stop thinking about what will happen if we don't have money for the rent, bills etc. My common law husband works but only makes $16.00 an hour bringing home about $900.00 every two weeks, and we have to pay out over $2000.00 a month in rent and bills and groceries. It is very frustrating when no one will help us, I would love to be able to go back to school and do something that I can work at. Thanks for your time and good luck to everyone down home, hope that we get what we are trying to speak out about, for the government to open their eyes and see what this problem is doing to us Newfoundlanders.

As class counsel, I made an offer of settlement to the government last week. The amount that we estimate for pain and suffering damages for all 75 class members is not greatly out of line with the $5 million the government decided to spend on experiments in moose fencing and moose warning systems. Class members like Deanne were injured while government overlooked its responsibilities and ignored the science on how moose vehicle accidents and injuries could be reduced by 50% or even more. Class members were injured while government failed to implement scientifically-proved solutions found to work elsewhere. People like Deanne need settlement now, not after years of chasing through the courts. Premier Dunderdale, show the province what compassionate conservatism means by settling the moose vehicle class action now!

Should Moose Vehicle Collisions be an Issue in the Newfoundland Election?

ccrosbie@chescrosbie.nf.net (Blog Author)64480 — Mon, 12 Sep 2011 08:00:00 EST

CBC released the results last week of an informal poll which sought public opinion on to what extent moose collisions should be an issue in the upcoming provincial election. The percentage of positive answers out of the whole is 59.52%, meaning that a majority of respondents think moose collisions should either be front and centre, or one of the issues, during the upcoming campaign.

These results may not be scientific, but the issue is an emotional one and stands to influence the votes. Something tells me there will be important developments for the moose issue, with opposition parties adopting their policies during the next week or so.

Part of the opposition parties' policies on the moose vehicle collision issue should be settlement of the class action. In belatedly implementing their $5 million pilot project announced six weeks ago, the government has admitted that they have not been paying attention to this issue, and that more should have been done. The 75 or so people who were hospitalized or killed due to government's neglect must not be forgotten.

The government would love the highway moose issue to go away, but something tells me the opposition votes "yes": moose vehicle collisions should be an election issue.

Patient-Centered Care to Avoid Malpractice

ccrosbie@chescrosbie.nf.net (Blog Author)62942 — Tue, 23 Aug 2011 08:00:00 EST

I was recently invited to attend a conference in Toronto this October, on refocusing health care to be patient-centered. The invitation was kind, but I have to wonder: What else should health care be centered on, if not the patient?

That we need national conferences to refocus health care onto patients is an eloquent testimony that our medical system continues to fail patients.

A recent authoritative study in the United States found that 44% of adverse events in hospital are preventable, due to medical errors and substandard care, and cost the US government $4.4 billion a year. There is no reason to think things in Canada are any better.

Conferences on patient-centered care are a great idea, but I wonder if this will ever happen without voters getting riled up and forcing the politicians to take dramatic action.

Moose Watch Get Injury Message Out

ccrosbie@chescrosbie.nf.net (Blog Author)62797 — Mon, 22 Aug 2011 08:00:00 EST

People who know us from high profile cases like the Moose Class Action sometimes think we aren't interested in more ordinary cases like typical auto collisions. Not true! We built our skill and knowledge doing motor vehicle cases and love to help people with this type of case.

The fast evolving world of technology gives new ways of getting a message out, and this ad on Moose Watch is an example:

Darlene Russell to Staff New Ches Crosbie Barristers Office in Bay Roberts

ccrosbie@chescrosbie.nf.net (Blog Author)62689 — Fri, 19 Aug 2011 08:00:00 EST

Ches Crosbie Barristers has opened a new branch office to better serve clients in the Conception Bay North area.

The office will be staffed by Bay Roberts native Darlene Russell, who lives around the corner from our temporary office located at the Town Council Office in Clarke's Beach. A more permanent office will be opened in the fall.

Darlene will be dividing her time between Conception Bay North and St. John's.

Darlene has been practicing in the field of personal injury law with Ches Crosbie Barristers in St. John's for 17 years. She grew up in Bay Roberts and currently resides in Clarke's Beach, and looks forward to spending more time in the area.

Over the years, she has represented many people from Conception Bay North, and will now be offering the convenience of a nearby location for existing and new clients, particularly those with auto accident injuries.

To request your free consultation with Darlene, call 1-888-579-3262.

The Fight for Access to Justice

ccrosbie@chescrosbie.nf.net (Blog Author)62205 — Mon, 15 Aug 2011 08:00:00 EST

At a recent convention in New York, I was inspired by a speaker presentation for Public Justice, keynoted by former President Bill Clinton. Public Justice is America's public interest law firm.

The key to this law firm is that it does not sue in order to settle. It sues in order to make precedents on the law books. It protects people and the environment, holds the powerful accountable, and challenges government, corporate and individual wrongdoing. It keeps the courthouse doors open for all.

At a recent meeting of influential Canadian lawyers, I asked do we need a Public Justice in Canada? What do you think?

Avoid an Accident on Cruise Control

ccrosbie@chescrosbie.nf.net (Blog Author)61676 — Mon, 08 Aug 2011 08:00:00 EST

My mother passed something on to me recently involving the following potentially life-saving driving tip: never drive in the rain with your cruise control on! The reason is if your car begins to hydroplane, your tires have lost contact with the pavement and will accelerate to a higher rate of speed. Not good!

Aware of the take-off phenomenon, some vehicle manufacturers disable the cruise control when the windshield wipers are on.

This safety point is all the more important in Newfoundland, with our water-filled ruts on the highways.

Dog Bite Epidemic: Do I have a claim?

ccrosbie@chescrosbie.nf.net (Blog Author)60719 — Fri, 29 Jul 2011 08:00:00 EST

Yes, there is an epidemic of dog bites, certainly in the United States. According to the Centre for Disease Control and Prevention (CDCP), two percent of the population of the United States is bitten annually! One out of every six bites is serious. The rising number of dog bites is linked to the increasing dog population. I don't have statistics on dog bites for Canada, but as in most things, there is reason to believe that dog bites in Canada cannot be far behind.

And yes, you can make a legal claim for injuries suffered in a dog attack. In Newfoundland and Labrador we have a Dog Act. The Dog Act effectively imposes what amounts to strict liability on the owner of a dog which causes injury, with no proof of negligence necessary. The challenge then becomes identifying insurance or other assets that can respond to and pay a claim, but the good news is that most people have mortgages and banks required home owner insurance to be carried. Home owner insurance typically covers personal injuries caused by the owner, including by dogs.

Moose fencing to go up in Western Newfoundland

ccrosbie@chescrosbie.nf.net (Blog Author)60640 — Wed, 27 Jul 2011 08:00:00 EST

So today's Telegram informs us. Fifteen kilometers of fencing will go up in the area adjacent to Gallants and Black Duck Siding. In addition, a wildlife detection warning system will be installed on the TCH east of the Salmonier Line.

If the Government of Newfoundland had started on moose fencing and other mitigation projects 15 years ago, there would not be a class action today. It would be interesting to know how many people in the class were injured in the two areas selected for mitigation. I will have to look into this.

In the meantime, Government has ignored Richard Cashin's call for a cull. A cull is a significant drawdown of a wildlife population achieved over a relatively short period, and almost inevitably involves professional sharpshooters. A cull cannot be achieved by increasing licenses to hunters alone. The sharpshooters in question could be conservation officers or other professionals engaged for the purpose.

As lawyers for the class members we are now pulling together an estimate of what it would cost to settle the approximately 75 claims arising from admission to hospital after a moose vehicle collision. We will submit this to lawyers for the government, so that the government knows the appropriate amount it is facing as a claim. Between what we can do in the class action and what SOPAC can do in the public theatre, this issue is not going away.

Of Auto Accident Claims and Class Actions

ccrosbie@chescrosbie.nf.net (Blog Author)60653 — Wed, 27 Jul 2011 08:00:00 EST

Over the years, we have developed a reputation for winning big difficult cases like the Breast Cancer Testing Class Action and now of course, we are well known for the Moose Vehicle Collision Class Action - a type of auto accident case. People sometimes wrongly think we are not interested in their (relatively speaking) minor - but very important to them - auto injury or other accidental injury claim.

Ches Crosbie Barristers has given 20 years of service to people injured by the carelessness of other drivers or in other accidental situations. This is the base of experience we have built upon to be able to do the tough and complex cases for which we are known.

Remember, we built our abilities representing one client at a time in auto accident and all manner of other accident claim situations. As we like to say, get our free consumer book 7 Deadly Sins That Can Wreck Your Injury Claim before you talk to an adjuster or sign any form. Or you can talk to a lawyer now!

Bill Clinton and Healthcare Malpractice

ccrosbie@chescrosbie.nf.net (Blog Author)60050 — Wed, 20 Jul 2011 08:00:00 EST

Just today the Canadian Medical Association and the Canadian Nurses Association brought out "A set of principles to guide healthcare transformation in Canada". What does this have to do with Bill Clinton and malpractice? I'll get to that in a moment.

The CMA and CNA embrace three principles which must be implemented to make our healthcare system sustainable. The first is "enhance the healthcare experience", and here they say that care must be patient centered. They also say that healthcare services must continually strive for "quality".

As counsel to the Breast Cancer Testing Class Action, I sat through a lot of testimony at the Cameron Inquiry that focused on patient centered care and on continuous quality improvement. I have sources in Eastern Health, and lamentably, they tell me that very little has changed in this regard.

Now to Bill Clinton. I attended a conference of the American Association for Justice in New York last week, and it was a real pleasure to hear Bill Clinton speak. I have posted a (somewhat grainy) photograph on Facebook. Former President Clinton is a very practised and thoughtful speaker. One of the things he mentioned was that studies in the United States had found a low rate of hand washing amongst nurses and doctors, and when systems were set up to enforce hand washing to the requisite standard at a number of U.S. hospitals, the in-hospital infection rate all but disappeared. This is huge! Needless in-hospital infections cause a huge toll of death and prolonged hospital stays, at great expense to the taxpayer. Just this morning, there was an item in the news that the Capital Health hospital in Nova Scotia had a low 44% rate of hand washing, and after months of effort, this had improved only to 70%. Some officials even suggest that it is up to patients to ensure that their caregivers washed their own hands! I am not aware of any study done at Eastern Health or any other Newfoundland hospital to monitor compliance of hand washing protocols, and can only imagine that our performance here in Newfoundland is as bad as, or worse, than in Nova Scotia and in Ontario, where it has been less than 40%!

I'll give you the following take-home point: if you or a loved one have suffered serious injury (or even death) due to acquiring an in-hospital infection, talk to an experienced medical and hospital malpractice lawyer. With recent evidence that these infections are unnecessary and avoidable, you may have a case.

The other point I leave you with is not so much legal as it is political. Laudable as the CMA and CNA principles may be, the healthcare industry is the biggest industry in Canada, and is in the grip of many powerful vested interests who have a stake in keeping meaningful change from occurring within the system. I don't think that the change we need is going to happen without governments being elected with a mandate to tackle fundamental change in the system. Let's hope that the existing healthcare system doesn't have to hit a brick wall before the politicians - and the electorate - are ready to act.

Moose Cull Needed in Newfoundland

ccrosbie@chescrosbie.nf.net (Blog Author)58990 — Fri, 08 Jul 2011 08:00:00 EST

Background information

There are approximately 600-800 moose-vehicle collisions (MVCs) per year in insular Newfoundland resulting in an average 2 human fatalities annually. Collisions with moose result in human injury, fatalities and millions of dollars of property damage each year.

Moose densities in Newfoundland

Moose are not a native species on the island of Newfoundland. Government introduced them in 1904. They have no natural predators here. At the time of introduction, the wolf was being extirpated.

Our island environment is congenial to moose population growth. Nature has taken her expected course, impeded only by a government hunting management policy which has been unequal to the task of containing the burgeoning moose population.

Newfoundland has become home to a disproportionately large part of the North American moose population, representing >10% of the total number of moose with <2% of the species range. Moose densities in Newfoundland are reported to be the highest in North America. According to current estimates approximately 125,000-150,000 moose live in Newfoundland today. This is not only the largest density of moose in North America but worldwide. Moose numbers in Newfoundland have been increasing for the last 40-50 years. Moose densities range from < 1 to > 7 moose/km, however, the average density island-wide is roughly 1.7 moose/km. The current system of moose management through a regulated fall hunt has not been able to stabilize the growing population on the island.

Jurisdictions with similar transportation and resource management issues of moose and motorist safety (Quebec, Ontario, New Brunswick, Maine, Vermont) all have significantly lower estimated moose densities, well below 1 moose/km. Further, all of these jurisdictions have implemented mitigation techniques to reduce MVCs on their roadways in the last 10 years. These measures include wildlife fencing and wildlife underpasses, which have not been implemented in Newfoundland.

Three moose vehicle collision mitigation approaches are currently in use by the Government of Newfoundland. These are public awareness campaigns, signage, and clearing brush from roadways. All of these are either known to be ineffective, or are not recommended by leading authorities.

Regardless of the merits of moose fencing, all the jurisdictions with an MVC problem have implemented mitigation measures from the starting point of much lower moose densities. The solution to the Newfoundland problem has to begin there also: we have too many moose.

Fewer Moose Equal Fewer Accidents

There is resounding concordance from studies indicating that there is a positive correlation between moose densities and MVCs, particularly on a national scale. In other words, fewer moose equal fewer traffic accidents.

Thus, a strategy to reduce overall moose numbers on the island, and one aimed at reducing moose numbers in targeted areas with high MVCs, would result in a reduction of MVCs at both island and local scales. The burgeoning moose population in Newfoundland is having a significant impact on forest ecology, primarily balsam fir forests, impacting a suite of species that the forest health is dependent upon. Management of moose population through a strategic plan aimed at reducing moose numbers in high density areas will have benefits beyond reducing MVCs but restoring forest health. Ultimately, effective mitigation of MVCs will depend largely on integrated management of the surrounding landscape and moose population, and to a much lesser extent on the increased awareness of individual motorists.

The policy of the Government of Newfoundland toward the MVC issue is contained in a strategy paper now in the public domain. The strategy paper states correctly that only a drastic reduction in moose population on the island will result in a discernable reduction in moose vehicle collisions. This strategy document was generated by officials in the Department of Environment. The paper further states that a drastic reduction in moose population would be socially unacceptable in Newfoundland and Labrador. Is this assessment of public opinion correct?

Moose Cull the Obvious Solution

Government agrees that a drastic reduction in moose population would result in a drastic reduction in moose vehicle collisions. This is being done now in Gros Morne and Terra Nova National Parks for ecological reasons - a cull of the moose population in the parks by up to 80% or 4,000 animals. There is no debate as to whether a moose cull would drastically reduce traffic accidents. All agree this is true. The questions are: Are the officials correct in stating that Newfoundlanders would not accept a cull? Are the politicians correct in accepting the advice that a cull is not socially acceptable?

The new Chair of the Advisory Board of SOPAC is an individual with a long and respected experience in Newfoundland public life, and a record of care and commitment to the wellbeing of Newfoundlanders. Richard Cashin says a moose cull on the island of Newfoundland is socially acceptable and a necessity for public safety. Mr. Cashin calls for a moose cull.

Artists are often perceptive in seeing the need for change. In the concluding words of the Bill Luffman song, "Always be watching for moose":

They could make our highways more safer

If they declared open season on moose.

For safety sake, let's act now. When it comes to highway safety, it's us or the moose. It's time to choose sides.

To express your views and learn what you can do to focus the politicians on taking action, go to www.toomanymoose.com.

*Statements of fact contained in this briefing note are taken from Clevenger, "Moose-vehicle collisions and their mitigation in Newfoundland" and are extensively footnoted in the source document.

Injured Class Members Ignored in Government Announcement

ccrosbie@chescrosbie.nf.net (Blog Author)58845 — Thu, 07 Jul 2011 08:00:00 EST

The Government of Newfoundland and Labrador yesterday announced the spending of about $5 million on moose vehicle collision-related safety measures, principally a moose fencing pilot project. Very sensible - except that it comes 10 or 15 years later than it should have.

Meanwhile, the government ignores the plight of the 75 or so class members admitted to hospital (including families of 10 class members killed) over the last 10 years, when these safety measures should have been in effect. The announcement is geared toward doing the least amount the government can get away with to stave off the moose collision issue during the fall election.

Perhaps the government will achieve its objective of staving off the issue. Justice will eventually be done, and injured class members, many with devastating injuries, will eventually get the financial help they deserve - years down the road. Injured class members need this help now, not years from now.

Brain Injury Leading Cause of Injury and Death in Younger Adults

ccrosbie@chescrosbie.nf.net (Blog Author)58678 — Tue, 05 Jul 2011 08:00:00 EST

This is the year when major league sports, especially hockey, are finally beginning to face the reality of brain injury caused by these sports. Brain injuries are acquired not only in sports, but in accidents of every kind including motor vehicle accidents, and in Newfoundland, in moose vehicle collisions. It is the leading cause of injury and death in adults age 44 or under.

One of the most challenging types of personal injury cases is the brain injury case. Anyone who thinks that they may have a claim for financial compensation due to being injured by the fault of someone else, should consult an experienced personal injury lawyer with a track record of successfully handling these difficult claims. Many of the class members of the moose vehicle class action for which we at Ches Crosbie Barristers are class counsel, have acquired brain injuries.

For those who wish to learn more about acquired brain injury, I have made available a presentation by Harry Zarins, Executive Director of the Brain Injury Association of Canada and a YouTube link to some very good animated resources.

The accident and injury lawyers at Ches Crosbie Barristers are pleased to review potential claims completely free of charge. Just fill in the form at the upper right hand corner or give us a call.

Motor Vehicle Accident Injures Lawyer at Ches Crosbie Barristers

ccrosbie@chescrosbie.nf.net (Blog Author)58320 — Wed, 29 Jun 2011 08:00:00 EST

Personal injury lawyer Jonathan Fowler and his wife were injured in a car crash last week. Jonathan works at my office.

Jonathan waited at the light at the intersection of Major's Path and Torbay Road until the light turned green. They were the first car in the right lane of two lanes turning north. The pickup truck in the left lane led the way onto Torbay Road turning left to proceed to Stavanger drive. A car coming from the direction of Torbay and proceeding south slammed with great speed into the pickup truck and then into the driver's side of Jonathan's vehicle.

Apparently the driver's story is he was putting down his cup of tea and didn't notice the light change. But it gets worse. There was no insurance on the vehicle.

Accident and injury lawyers see this all too often. It doesn't mean that the injured parties not at fault are out of luck for obtaining compensation for their injuries, but the basic amount of coverage available for injury claims where no insurance was carried, is only $200,000. This can be taken up pretty fast, depending on the nature of the injuries and how many claimants there may be.

We always tell our clients to obtain the maximum amount of insurance available against third party liability, and a Section D endorsement which provides the same level of coverage to you the insured if you get injured. It's surprisingly cheap. So if you are injured in a car crash due to someone else's fault, and the at-fault person carries the minimum limits of $200,000, and you carry limits of $1 million, then you're covered for $1 million if need be. Check with your broker and you will be pleased to find out how inexpensive this protection for you and your family is.

Back to Jonathan and his wife. It looks like the injuries are mostly soft tissue in nature, which doesn't mean they can't be serious. 10 or 15% of soft tissue injuries go on to be long term and chronic (I'm not reminding Jonathan of this!). It's a shooting gallery out there at times, and you can be in an accident no matter how careful and avoidance-minded you are. You may not be able to avoid an accident, but you can make sure you have enough insurance coverage.

Lack of Interest in Mediation Frustrates Many

ccrosbie@chescrosbie.nf.net (Blog Author)58194 — Tue, 28 Jun 2011 08:00:00 EST

The judge has agreed to certify the moose vehicle collision class action, but the government shows no sign of being interested in tackling the traffic safety problem, or in settling the claims of the dozens of people in the class who were hospitalized for their injuries - not to mention the 10 who were killed. The frustration that many Newfoundlanders feel has been well expressed by Stuart Pearce in a recent letter to the Editor.

Dear editor,

I would like to address an issue that is very dear to my heart, and that of my fellow Newfoundlanders. As acting chairperson of the Save Our People Action Committee (SOPAC) our mission is to reduce and prevent future Moose/Vehicle accidents. The untold suffering, death, carnage, and cost to all the drivers, working people, such as myself, who has to pay very high insurance rates just to be on the road and has been footing the bill due to moose that can be very easily removed from our highways at far less the cost than the cost of just "one" accident.

That cost is around two hundred thousand dollars just to the first responders on the scene who are sickened at what they find at a Moose/Vehicle accident that could have and should have been prevented in the first place.

But the reason for my letter is that our town council did not endorse our recommendations. Removing the moose that live near our highways would solve the problems of all accidents with moose to say the least. Fence key areas that are known problem areas and if this current government won't do this may I remind them that the Government in New Brunswick was changed during an election.

Installing fencing to control moose has reduced the accident rate to zero in the controlled areas in New Brunswick. It is a great start to the problem that we have in our province which has more wealth than New Brunswick will ever have.

Furthermore, our committee and I are deeply offended and sickened that our mayor and council have ignored reasonable and proven methods that work. As per the letter sent to our committee from the town and on their lack of support: as usual they have suggested slow down, cut more brush, and increase more moose licences. We have already put forward those ideas years ago and it was a foregone conclusion that the province would never increase your hunting success rate, as they were afraid it would affect their bottom line.

And there, folks is the whole problem - the bottom line. The loss of a loved one does not even enter their minds but you pay the bills when someone gets hurt or killed because of their moose.

So I would really hate to wake up one day and hear the headline, a bus full of kids were killed trying to avoid a moose collision. But guess what. This is a constant complaint of many bus operators in our province that has been brought to our attention very close calls that almost ended in this manner.

So my question to our mayor and council is as follows. Are you willing to wait for that awful day when such a sick reality is just around the corner.

Sickened to my core,
Stuart Pearce,
Co-chair of SOPAC

Stuart could also mention that the root cause of the moose vehicle safety problem is too many moose! A reduction in the motor vehicle collision rate starts with a reduction in the number of moose - a moose cull!

When Hiring a Lawyer ... Credibility is King

ccrosbie@chescrosbie.nf.net (Blog Author)56831 — Fri, 17 Jun 2011 08:00:00 EST

If there's one think I've learned after handling thousands of personal injury claims over the last 25 years and trying lots of cases during this same period as well, it is that a lawyer's credibility is king.

Credibility is the trial lawyer's best weapon in court. Credibility with the judge. Credibility with the insurance adjuster. It doesn't matter who the audience is - the most effective and accomplished personal injury lawyers have credibility. They don't exaggerate the case. They don't hide important evidence or weaknesses in the case. They command credibility in the courtroom by how they present and argue their client's case. The most effective trial lawyer knows that if he or she loses credibility, their influence and ability to persuade is gone.

If you are looking for a personal injury lawyer for your car accident, wrongful death case, or some other type of injury claim, you should choose a lawyer who has credibility.

When you first meet the lawyer, does that lawyer appear honest and straightforward? Does the lawyer appear genuinely concerned about you and your case, or does the lawyer spend most of the time tooting his or her own horn? Can the lawyer answer all of your questions, or at least explain why the question cannot be answered? Does the lawyer come across as personable and respectful, or does the lawyer appear "slick" and "salesmanlike"? Does the lawyer make a good impression on you? If the answer is yes, then the lawyer will likely have credibility. That lawyer will then usually be a very good choice.

When you hire a lawyer for your injury accident or malpractice case, there is a chance that the lawyer may have to go to court. Can you imagine that lawyer standing up in front of a judge or jury and stating the case on your behalf? Or are you concerned about this lawyer being the "face and voice" of your claim?

Remember, your lawyer is basically an extension of you and your case. If the jury doesn't believe your lawyer, or if the lawyer doesn't command respect and attention in the courtroom, then the lawyer may not be the best choice for your personal injury case.

Sometimes a lawyer is just too inexperienced or too young to command the credibility and respect it may take to successfully represent the seriously injured person who brings a claim. Sometimes the lawyer may be paid his or her prime, and therefore does not have the energy or passion needed to do the best job possible for the client.

It often takes several years or more for a lawyer to develop his or her credibility with a judge or a jury in serious injury cases. If a lawyer has tried several cases in court, then he or she will often be very relaxed and comfortable in court if your case goes to trial.

With experience comes wisdom. The lawyer who has been practising for several years will usually have a wealth of experience to draw upon in any given cases and this is always beneficial to the client.

Yes, if you are an accident or malpractice victim who is looking for a lawyer to help you with your claim, choose a lawyer with credibility. Sometimes it may require that you meet with several lawyers before you meet the right one. But the lawyer's "credibility" is often something you'll feel and recognize in that first meeting. A credible lawyer is the best choice for your personal injury or accident case.

Arrive Alive: Impaired Driving--Not Just for Drinkers

ccrosbie@chescrosbie.nf.net (Blog Author)56830 — Wed, 15 Jun 2011 08:00:00 EST

The term "impaired driving" doesn't necessarily mean operating a vehicle after consuming alcohol. While alcohol consumption continues to be the major cause of impairment, it isn't the only one. Impairment is caused by anything that reduces a person's ability to drive a vehicle responsibly or react appropriately to dangerous conditions.

If you have ever driven while tired, after taking over-the-counter medication that makes you drowsy (such as cold remedies or sleep aids) or after taking illegal drugs, you have probably been impaired.

Drugs and Driving

A 2007 roadside survey concluded by the U.S.-based National Highway Traffic Safety Administration found that alcohol-impaired driving had decreased by about 2% since 1973, when a similar study was conducted.

The earlier study only looked at the effects of alcohol, while the 2007 study looked at additional substances as factors for impaired driving. It found that 16.3% of night time, weekend drivers tested positive for drugs, most commonly marijuana (8.6%), cocaine (3.9%), and over-the-counter and prescription drugs (3.9%).

Any drug that changes your mood or the way you see and feel will affect the way you drive, whether the drugs are illegal or not. Check the labels on your medications to ensure that they will not affect your ability to drive safely. If your driving ability is at risk, plan alternate ways to get around while you are taking the medication.

Fatigue

Another form of impairment that can lead to disastrous consequences is driver fatigue. Tired drivers are responsible for one in five traffic-related fatalities in BC. When taking long trips, it's especially important to plan ahead and start out after a good night's sleep. Here are some other things you can do to make sure you don't become a statistic:

Allow enough time to get to your destination.
Take plenty of rest breaks.
When you stop for a rest, go for a walk, change drivers, or take a nap.
Avoid overnight driving and break up your trip into shorter driving days.
Keep a window open for fresh air and don't set the temperature in the car too high.
Turn on the radio or talk to a passenger.

The DOs and DON'Ts of Talking with Insurance Adjusters

ccrosbie@chescrosbie.nf.net (Blog Author)56829 — Mon, 13 Jun 2011 08:00:00 EST

Write down the name, address and phone number of the insurance adjuster and insurance company.
Provide your full name, address and telephone number.
Take notes of the conversation.
Ask the adjuster if they are aware of any witnesses.
Be very general when you describe your injuries. Tell the adjuster you will provide a complete, detailed, medical description of your injuries after you and your doctors have done a full assessment.

DON'T

Do not agree to an audio tape recording of the conversation.
Insurance adjusters will engage you in an informal conversation in an effort to relax you and get as many details about the accident as possible. Do not discuss anything but the basic facts of the accident: (a) where the accident occurred, (b) date and time of the accident, (c) type of accident - motor vehicle, slip and fall.
You do not need to provide details about your work, such as income, schedule or details of what you do at your job.
Do not agree to anything.
Do not sign anything.
Don't answer family questions. You are under no obligation to give any information about your family.
You are not obligated at this point to identify witnesses.
You are not obligated to give the adjuster the name of your doctor.

Tips for Safety Around Dogs

ccrosbie@chescrosbie.nf.net (Blog Author)56828 — Fri, 10 Jun 2011 08:00:00 EST

Every year we get a few calls from parents of children who have been bitten by dogs. Most instances involve minor injuries and temporary dog anxiety. But every now and then there is a tragic, serious case. As parents, grandparents and good neighbors, we all want to do everything we can to keep kids safe and avoid them being hurt by a dog. To help us all achieve this very important goal, we have compiled the following list of things that all children should be taught about dogs:

- don't chase or tease dogs
- wait to be introduced to the dog by the dog's adult owner
- ask the dog owner's permission to pet their dog first, before trying to pet the dog
- wait for a dog owner's permission to pet the dog and then teach your child to let the dog sniff the child's hand first before petting the dog
- pet the animal gently after the dog sniffs his/her hand
- never pet the dog while it is eating or sleeping
- never approach a dog that has puppies or is nursing puppies
- never pet a dog while it is playing with a toy
- never try to take a dog's toy away from the dog
- don't play rough with dogs
- if a child is outside and a stray dog approaches, then teach your child to not run away but to try backing away slowly. The dog will always be able to run faster than the child and could chase your child and attack.

Please have a safe and happy summer!

Court Gives Moose Class Action Green Light While Government Fails to Take Action

ccrosbie@chescrosbie.nf.net (Blog Author)56676 — Wed, 08 Jun 2011 08:00:00 EST

A judge in St. John's gave the Moose Vehicle Class Action a green light in early June, ordering that it could go ahead as a class action. This means that any decision in the case will bind class members, and puts the class action on a (relatively) even playing field with the government.

Relatively, because, let's face it, the government has all the money and all the resources. But without the class action procedure, there would be no lawsuit on this issue of tremendous importance to Newfoundlanders. It is only as a class action that it is possible to fight this action at all.

We believe the case has merit and if we have to fight it all the way, the class members will win. But this is a process that can take years, maybe 5 years, maybe 10 years if the government uses every appeal device at its disposal.

In the meantime, while government fights a rear guard action, people will continue to be seriously injured and killed, and those injured through government neglect over the last 10 years will not receive the help and assistance they deserve and are entitled to.

What the government has to do is accept the invitation of Ben Bellows and Hugh George and enter into talks. What is called for is a mediation aimed at resolving issues of moose vehicle safety and issues of compensation to those suffering major injuries or death.

The solutions are obvious for all to see except, it seems, the government. The day before the judge issued his order certifying the class action, Ben Bellows had a lengthy meeting with Tom Hedderson, Minister of Transportation. Mr. Bellows was thankful for the meeting. However, the government gave no concrete undertaking and gave every sign that it was continuing to treat the moose vehicle safety issue in the same way it has for many years-they are trying to ignore it.

Nothing radical or experimental is being asked for, only what every other jurisdiction in North America with a moose problem has already discovered works: moose fencing, with or without underpasses or overpasses. And fewer moose. Remember, we have 2% of the moose habitat in North America, and 10% of the moose!

The government should get with it. Our job as lawyers is to deal with issues in court, but the issue has taken on a dynamic of its own through the activities of the Save Our People Action Committee (SOPAC). Anyone who thinks moose vehicle collisions in this province are purely a matter of careless driving, is living in a world built on wishful thinking. The goal is to cut collisions in half within 5 years. If you support this goal, go to SOPAC's new website www.toomanymoose.com and sign the online petition, with or without your name revealed. Easy to do, and an interesting website.

Government should consider comments like this one from Larry Gray made on the petition comment page on June 6: "I drive throughout the province on a regular monthly basis. It is high time our government stopped ignoring this issue. I think this will be a major election issue. It should be brought up at every BBQ and baby kissing opportunity possible this summer. Politicians you are being watched and we are listening and our choices will be made in Oct."

Suing a School for Negligent Injuries in Newfoundland

ccrosbie@chescrosbie.nf.net (Blog Author)56189 — Wed, 01 Jun 2011 08:00:00 EST

A serious fatal accident occurred at an Ottawa school last week, as a class was being instructed in building barbeques out of disused metal drums. It seems that flammable residues in a drum ignited and caused an explosion.

Some students were injured.

Can you sue a school for negligence? Ottawa lawyer Brenda Hollingsworth posted a thoughtful blog on that topic, and the answer is yes.

As Brenda points out, schools, as responsible institutions, carry liability insurance that responds to negligence claims. The money to pay an injury claim does not come out of the school budget.

Schools are in the position of parents. The legal term is in loco parentis, which means that they have the same responsibilities of care toward students as a prudent parent would.

An experienced personal injury lawyer can help families who have concerns about whether an injury suffered at school or in school organized activities might give rise to a legal remedy and compensation.

Moose: Newfoundland's Walking Roadside Bombs

ccrosbie@chescrosbie.nf.net (Blog Author)56195 — Wed, 01 Jun 2011 08:00:00 EST

I heard a radio ad on VOCM recently by the Save Our People Action Committee saying moose are "Newfoundland's walking roadside bomb". Well, that's certainly a very fitting description - moose are responsible for a large number of collisions on our highways each year, resulting in innocent people being seriously injured or even killed.

In case you haven't heard the ad, the text version of it is below, or you can listen to the audio version here.

THE FOLLOWING IS BROUGHT TO YOU BY THE SAVE OUR PEOPLE ACTION COMMITTEE.

MOOSE ARE NEWFOUNDLAND'S WALKING ROADSIDE BOMBS. MOOSE COLLISIONS ARE HIGH - SEVEN HUNDRED EIGHTY-THREE last year - AND GETTING HIGHER. MOOSE ARE CAUSING LOVED ONES PARALYSIS, INJURIES AND DEATH. AND ALL ARE BURDENED WITH THE EXHORBITANT MEDICAL EXPENSES FROM MOOSE- COLLISIONS. SOMETHING HAS TO BE DONE. STUDIES PROVE THAT GOVERNMENT ERECTION OF MOOSE FENCING AND REDUCTION OF MOOSE DENSITIES ARE COST EFFECTIVE. THE SAVE OUR PEOPLE ACTION COMMITTEE IS ASKING NEWFOUNDLAND'S GOVERNMENT TO DO ITS JOB - TO PROTECT YOU, THE PEOPLE, FROM THESE LARGE BEASTS TERRORIZING INNOCENT DRIVERS. EVEN ACCIDENT LAWYER CHES CROSBIE AND HIS INJURED CLIENTS ARE SPEAKING UP - TO PROTECT YOU, THE CITIZENS. HELP FEND OFF THIS UNENDING TOLL OF DEATH AND PREVENTABLE INJURIES. GET INVOLVED TODAY - TALK TO YOUR M H A, AND SIGN THE PETITION AT TOO MANY MOOSE dot COM. THAT'S TOO MANY MOOSE DOT COM.

More moose facts, less moose fiction

ccrosbie@chescrosbie.nf.net (Blog Author)55749 — Wed, 25 May 2011 08:00:00 EST

The Telegram ran an article on Saturday May 21 with the ambitious title "More moose facts, less moose fiction".

Good public policy begins with reliable data. The author is correct in stating that "there is no reliable data available to government to indicate with any real accuracy the true size of the resource."

He is also correct in stating that there is "uncertainty surrounding the number of collisions each year between moose and motor vehicles." This speaks to the government's lack of care in developing the reliable data needed for sound decisions about the moose vehicle safety issue.

However the author is out of date in referring to RCMP-supplied moose vehicle collision statistics as invalidated by computer searching technique. The RCMP has now completed a physical search of reports and provided statistics that they are prepared to stand by. Taking into account RNC statistics, the number of moose vehicle collisions in 2010 has been reliably stated at 783, and it is rising each year. This information is posted on ChesCrosbie.com.

Many of us kid ourselves with the old nostrum that all moose collisions result from use of alcohol, excessive speed, driver inattention and lack of seatbelt use. This is because we don't want to admit to ourselves that when we venture onto the highways we are in peril of being killed or seriously injured through events outside our control. We want to believe in an orderly and just world in which bad things don't just happen randomly.

Well it ain't so. The story on the Fabian Manning moose collision in the same edition of The Telegram illustrates the disturbing fact of life that bad things do happen randomly:

"Road conditions at the time were dry and clear, and speed is not considered a factor." RCMP Sgt. Mike Oulette said it was just an unavoidable accident.

"The moose just came up onto the road," Oulette said, "it happened so quick the driver was unable to avoid the moose."

We are all pleased that Sen. Manning was released from hospital after several nights and we hope he has no permanent injuries. Not everyone is so lucky.

The area of the Salmonier Line where Sen. Manning suffered his unavoidable accident is said to be "particularly notorious" for moose vehicle conflict, and presumably a candidate for moose fencing - if the government were prepared to follow what is standard practice in the rest of North America.

No, we can't eliminate the random evil of moose vehicle collisions, but yes, we are not completely helpless and we can control this evil. That is why SOPAC and the Moose Vehicle Collision Class Action have adopted the goal of a 50% reduction in serious injuries over five years, a goal the best wildlife science tells us is achievable with moose fencing and better population control.

The provincial government has undertaken legal responsibility for moose management and highway safety. Only government can act. Nothing radical is required. Government need only embrace the goal of collision reduction and start implementing methods to ensure traffic safety already proven effective elsewhere.

Drunk Driving Accident Mile One St. John's

ccrosbie@chescrosbie.nf.net (Blog Author)55336 — Wed, 18 May 2011 08:00:00 EST

The car wreck and the injured people displayed in front of Mile One Stadium in St. John's today was a simulation - on something that happens all too frequently in Newfoundland and Labrador. It was intended to depict the involvement of drugs and alcohol in roadway injuries and fatalities.

Even innocent victims of drunk or drug impaired drivers need to know some of the rules of the game for getting just compensation for injuries - before you sign a form or talk to an adjuster, get a copy of my free book, Seven Deadly Sins, which you can order at the top right-hand corner of this page. Don't be a victim twice!

Rising Moose Accident Rate Points to Tragic Summer

ccrosbie@chescrosbie.nf.net (Blog Author)54860 — Wed, 11 May 2011 08:00:00 EST

As today's press release points out, an RCMP physical review now shows a higher moose vehicle accident rate for 2009 and 2010 than previously thought. The total reported by the RNC and the RCMP for 2010 is close to 800 collisions.

But alarmingly, the statistics show that the moose vehicle collision rate is increasing every year for the last six years. Most collisions with moose occur in June, July and August, so the trends would seem to tell us to be ready for a tragic summer of moose mayhem.

Memorial Service Calls for Government Action to Reduce Moose Vehicle Collisions

ccrosbie@chescrosbie.nf.net (Blog Author)54232 — Mon, 02 May 2011 08:00:00 EST

Friday was a sad day. One year ago on April 29, 2010, Denika Adams was killed in a moose vehicle collision. She was just 18 years of age.

Last Friday, family and friends of Denika held a memorial service in her memory at the crash site. They were dressed in pink and carried flowers and balloons. And while they wanted to remember Denika, they also wanted to send a message to the Province that it is time to address the problem that moose pose to users of our highways.

Crystal Adams, Denika's mother, says that a year after her daughter's death the Province has failed to take any action that will make any change to prevent such a tragedy from happening to other families.

VLT Plaintiffs Still Waiting to Have Certification Hearing

ccrosbie@chescrosbie.nf.net (Blog Author)53858 — Tue, 26 Apr 2011 08:00:00 EST

The certification hearing, which decides whether an action can proceed as a class action or not, is supposed to be the first order of business. The present VLT class action was issued in December 2009. Right now, we await a decision of the case management judge as to whether the third party manufacturers brought into the proceeding by Atlantic Lottery Corporation have full rights of participation at the certification hearing. So it goes.

I can only hope that we get to argue certification sometime this year. In the meantime, as a recent commentator argues ALC continues to exploit problem gamblers.

Moose Collision Problem Still Getting National Attention

ccrosbie@chescrosbie.nf.net (Blog Author)53534 — Thu, 21 Apr 2011 08:00:00 EST

Eugene Nippard and I were on The Current this week with Anna Maria Tremonti of The Current on CBC Radio One. The show spent half an hour on the moose vehicle collision problem.

Ron Hicks was on the program too, representing the Outfitters Association. The outfitters like high moose densities because it translates into high hunter success rates for their out-of-province clients. But, there is a link between high numbers of moose in the woods and high numbers of moose vehicle accidents involving injury and death. It is hard to argue for high hunter success rates when injury and death to highway users is a result.

Mr. Hicks would be better advised to support moose fencing. Moose fencing is a win-win solution for everyone, and it is an argument that he can win.

Death on the Highway: Morrissey Johnson, Newfoundland Folk Hero

ccrosbie@chescrosbie.nf.net (Blog Author)53333 — Mon, 18 Apr 2011 08:00:00 EST

Morrissey Johnson was at different times, a master mariner, a sealing captain, and a member of Parliament. He died on July 14, 2003 at age 70, when a car in which he was a passenger collided with a moose in rural Newfoundland.

Captain Johnson was well known for his strong association with and support of the Newfoundland sealing industry. He was the father of ten children. J.M. Sullivan, in his Newfoundland Portfolio: A History in Portraits, describes the motor vehicle accident which claimed Captain Johnson's life:

Capt. Johnson's friend, businessman Austin Barry, was driving the vehicle at the time of the accident. The roads were clear and dry when the accident happened, around 10 PM near Lewisporte Junction. It was the second fatal moose/vehicle accident in 48 hours. Mr. Barry was badly hurt.

Morrissey Johnson's friend John Lundrigan called him a "true Newfoundland folk hero". It always struck me as tragically ironic that one of Newfoundland's last great hunters of large mammals - seals - was himself killed by one - a moose.

Moose Vehicle Collision Class Action Theme Song

ccrosbie@chescrosbie.nf.net (Blog Author)53212 — Fri, 15 Apr 2011 08:00:00 EST

I think everyone will enjoy this song by Bill Luffman, "Always be watching for moose". I like the last line in particular - the highways would be safer "if they declared open season on moose" - because it's true.

I thought readers of this blog might enjoy seeing the words to the song:

I travelled that highway so often
Modern cars and trucks at my use
I thought that I'd be superior
If I come in contact with a moose

But brother I sure was mistaken
From what happened last Tuesday night
The bull moose appeared out of no where
In the beams of my car's headlights

It all happened so quickly
No time to swerve or to brake
That big moose went clean over my bonnet
Totalling my car in its wake

I was lucky my injuries were minor
But my car will be no more of use
Be warned when you're driving the highway
And always be watching for moose

Because there are too many car moose encounters
Hear about them every day in the news
They could make our highways more safer
If they declared open season on moose.

Moose Vehicle Collisions and Media Website Comments

ccrosbie@chescrosbie.nf.net (Blog Author)52429 — Mon, 04 Apr 2011 08:00:00 EST

The anonymous commentators on media websites are usually more interested in making unreasonable, nonsensical and often downright malicious comments, than they are in saying something sensible.

At least one prominent exception appears in the comment section of Friday's story in the electronic version of The Telegram, "Expert appalled at inaction on moose-vehicle collisions". It goes like this:

John MacKey - Reducing speed in known moose areas will not prevent moose/vehicle accidents, although it may be a prudent thing to do to reduce deaths. I was driving between 75-80 kilometres per hour, a moose came out of the ditch, totaled my car, broke my wrist, and I credit the child car seat for saving my three year old grandson. I restrict myself to daytime driving now. MOVE on it Dunderdale!

A reasonable comment. But notice that this commentator did not hide behind anonymity - he used his name.

Moose Class Action Member Calls for Debate Based on Facts

ccrosbie@chescrosbie.nf.net (Blog Author)50943 — Tue, 15 Mar 2011 08:00:00 EST

Moose class action member Lucy Stoyles sent me a copy of her response to a recent opinion piece in The Telegram. It deserves a wide reading:

An item in the March 10 edition of this paper "Control speeds to reduce moose accidents", criticized moose fencing as too costly and impractical, and recommended a reduction in highway speed limits as the solution to the moose vehicle collision (MVC) problem. Credit was also given to the government for clearing roadside brush as a means of promoting safety.

Everyone is entitled to their opinion, but no one is entitled to their own version of the facts. The facts about current scientific knowledge of how to prevent MVCs may be found in the affidavit of Dr. Clevenger filed in the moose class action against the government. This affidavit is available for all to read at http://www.chescrosbie.com/library/moose-class-action/.

The scientific consensus does not support brush clearing, fearing that new growth will draw moose out to the roadside.

No one is asking for an expenditure on fencing which will "add significantly to our public per capita debt". MVCs already cost us $20 million per year. There is nothing unique about Newfoundland compared to places all over North America where moose fencing has been used with great success, and the decision about whether and where to place fencing can and should be made in accordance with cost-benefit analysis, as explained by Dr. Clevenger.

Reducing speed limits would reduce damage in MVCs, but enforcement of highway speeds far below 90 km/h would be required to avoid serious and fatal injuries - an impractical solution in modern society.

We are all affected in one degree or another by the problem of moose on the highway. I urge anyone who wants to express an opinion on this issue, to read Dr. Clevenger's affidavit, and weigh into the public debate with an understanding of the facts.

Lucy Stoyles

(Lucy is a Mount Pearl City Councillor whose daughter was severely injured in a MVC last year.)

Cerebral Palsy More Likely During Hospital Nightshift

ccrosbie@chescrosbie.nf.net (Blog Author)50369 — Mon, 07 Mar 2011 08:00:00 EST

A new study published in the American Journal of Obstetrics and Gynecology has found a higher frequency of cerebral palsy in babies born during the nightshift. This confirms what I've noticed over the years in representing clients in birth injury cases in Newfoundland and Labrador.

After examining medical charts for two million births in California hospitals over 14 years, the study found that children were 22% more likely to develop cerebral palsy between the hours of 10 PM and 4 AM.

Cerebral palsy is a spectrum condition which describes everything from learning disorders to profound brain damage requiring 24-hour a day care. The brain disorder usually affects a person's coordination and body movements. It is most often caused by lack of oxygen to the brain before, during or shortly after the birthing process.

Hospitals already have issues with staff shortages and fatigued workers, so it makes sense to me that these problems might be worse during the "graveyard shift".

Experts in causation of cerebral palsy have told me over the years that most cases of cerebral palsy are not preventable with reasonable medical care. However those that occur perinatally, or in the period leading up to and surrounding the birth process, may be preventable by good medical management and intervention by caesarian section or other means intended to prevent damage from lack of oxygenated blood to the brain. If you think that your child or the child of a family member or friend has CP which could have been prevented, we can help.

Two Ways To Lose Your Auto Accident Case

ccrosbie@chescrosbie.nf.net (Blog Author)49606 — Thu, 24 Feb 2011 08:00:00 EST

If you lie to your lawyer to the insurance company about past injuries and accidents, it doesn't matter how good your case is, the judge is going to make sure you lose.

Remember, insurance companies have access to vast databases about your private life, including past lawsuits, claims and injuries. Honesty really is the best policy. Tell your lawyer about past claims. Then he or she can deal with it. Your lawyer should not be the last one to know!

You can also wreck your accident and injury case by going on Facebook or other social networking sites after your accident, and posting words or photographs or videos which are inconsistent with the injuries you say you have. You should not be claiming for a whiplash injury and then be in a video taken at a party dancing up a storm. You can rely on it that the insurance companies and their defence lawyers will find this stuff and use it against you.

The best advice to accident victims about Facebook and social networking is: don't use them!

Newfoundland Government Ignorant of Science on Moose Vehicle Safety

ccrosbie@chescrosbie.nf.net (Blog Author)49425 — Mon, 21 Feb 2011 08:00:00 EST

That's the conclusion of world expert Dr. Tony Clevenger - the Newfoundland government has managed to ignore scientific knowledge about how to effectively mitigate moose vehicle collisions and the injuries they cause.

The Affidavit of Dr. Clevenger is now posted on our website. The Newfoundland government boasts that it is spending $2 million this year on brush cutting, but current scientific knowledge does not support brush cutting as there is concern that new growth will draw moose to the highways. Driver education as practiced by our government is ineffectual, and so is the signage program. Our government has decided to ignore the safety measures that do work, namely fencing with or without underpasses/overpasses.

Dr. Clevenger also outlines a cost-benefit analysis. MVCs have a social cost in Newfoundland of at least $20 million a year, he says. At an average cost of $30,000 per collision, fencing the many stretches of our highways would pay for itself on a dollars and cents calculation alone.

Bottom line, the officials in the civil service upon whom the government depends for advice appear to be 10 or 15 years behind current knowledge about the prevention of moose vehicle collisions. Time for the government to overrule the officials and save some money - and some lives!

The Shocking Truth About Wrongful Death - Chapter 1

ccrosbie@chescrosbie.nf.net (Blog Author)48934 — Tue, 15 Feb 2011 08:00:00 EST

Why Did I Write this Book?

I decided to write this book after sad visitation with the family of Donna Howell, perished at the age of 53 from generalized breast cancer. Donna was one of those many patients of Eastern Health whose hormone receptor testing was bungled. I was class counsel to the patients. Donna didn't get Tamoxifen.

It was not the time to tell Donna's husband Darryl Howell the shocking truth: in our province it is cheaper to kill than to maim. The first step I took was to write an open letter to Premier Danny Williams. It was published in The Telegram. The letter went like this.

Premier Williams, you were once a personal injury lawyer, and a very good one. Once, you too revolted against the shocking truth that dead people are worth less in money damages than the living. Your educated lawyer's conscience still revolts at this truth.

In your province, the law of compensation for intangible losses surrounding death has not changed since the days when the British Empire permitted slavery. Our still-existing law stems from a time when life was not just cheap, it was worthless. But as an educated lawyer, you know this.

In the rest of Canada, the wrongful loss of the society and comfort of a loved one is compensated and has been for decades. As an educated lawyer, you know this.

In the rest of Canada, the pain and suffering of a victim of wrongdoing is compensated even though the victim dies. As an educated lawyer, you know this.

Many times have courts, even the Supreme Court of Canada, condemned the wrongful death laws we still enforce. Courts have condemned the laws we enforce as inhuman, barbaric, anachronistic, and out of step with modern conceptions of fairness and justice. As an educated lawyer, you know this.

As an educated lawyer, you know that modern conceptions of fairness and justice demand that our laws of wrongful death be reformed. Better to reform these laws in the Legislature; but the time has come for court-driven law reform if government fails in the task. Many more like Donna will perish while court process grinds toward reform.

Donna's husband Darryl Howell still has faith in your commitment to fairness and justice. Others will wait and see.

We settled the Breast Cancer Testing class action for $17.5 million, and for deceased class members and their families we negotiated the same compensation as living class members. And I am particularly pleased that the government of Premier Williams announced in December 2009 that it would reform the law of wrongful death. As one MHA stated in the House of Assembly during debate:

The Supreme Court of Canada has condemned the wrongful laws that we still enforce, and it seems, Mr. Speaker, that we are really out of touch with the modern conceptions of fairness and justice.

Hear, hear!

Now finally, the laws have been reformed. As of 2010, the legislature passed the following clause into law as an amendment to the Fatal Accidents Act:

6.(2) The damages awarded under subsection (1) may include an amount to compensate for the loss of care, guidance and companionship that a person for whose benefit the action is brought might reasonably have expected to receive from the deceased if the death had not occurred.

The law of our province has finally been brought into step with modern conceptions of fairness and justice. My hope is that families victimized by wrongful death can benefit from this law - and from this book, which is dedicated to them.

Woman Killed as Vehicle Backs from Driveway: Is Backing Illegal?

ccrosbie@chescrosbie.nf.net (Blog Author)48935 — Tue, 15 Feb 2011 08:00:00 EST

The sad news was released this weekend that a 58 year old woman had been killed by a vehicle backing out of a driveway in the Goulds. The Royal Newfoundland Constabulary were said to be considering charges.

Is it against the law to back your vehicle out of your driveway? The answer is, it depends. What the Highway Traffic Act actually says is as follows:

151. A driver shall not back a vehicle unless the movement can be made with reasonable safety and without interfering with traffic.

So there is no absolute prohibition against backing a vehicle, and it is common experience that the vast majority of vehicle operators drive forward into driveways and back out of driveways. What is prohibited is (a) backing when it is not reasonably safe, and (b) backing when it interferes with traffic. I am afraid that we all see vehicles being backed without reasonable safety, and while interfering with traffic, all too often in Newfoundland and Labrador.

Our condolences go out to the family of the late Mary Drew, the lady whose life was so untimely lost. It may be small consolation in such tragic circumstances, but at least our anachronistic and badly dated laws of wrongful death were changed last year to mandate compensation to close family members for the intangible loss of companionship that they suffer when a loved one's life is taken by a wrongful death. I am pleased to have had a role in obtaining this needed change in the law, which permits some small measure of solace to the loved ones of the deceased.

Drunk Driver Hit and Run Occurs as Mounties Release Accident Statistics

ccrosbie@chescrosbie.nf.net (Blog Author)48876 — Mon, 14 Feb 2011 08:00:00 EST

The RCMP last week released information for 2010, showing a further decline in the rate of fatalities and serious injuries on Newfoundland roads. The number of accidents involving fatalities and serious injuries (meaning injuries which resulted in admission as an inpatient to hospital) fell to 102 last year, although the number of fatalities was constant. The police said that two main factors explain the stubborn fatality rate: the unwillingness of some people to wear seatbelts and, you guessed it, drinking and driving.

As if to emphasize the point, there was a horrible collision in St. John's last Wednesday in which two women, aged 22 and 24, were run down as pedestrians by a grey pickup truck. One of the women was dragged from Topsail Road just west of Forbes Street, to the Columbus Drive intersection. The driver of the pickup continued west on Topsail Road to the Hamlyn Road intersection, where he slammed into four other cars.

One Leo Jerome Power, 48, was arrested at the scene. He has been charged with various counts of impaired driving, and hit and run. None of the charges have yet been proved in court.

Our heartfelt sympathies go out to the two injured women and their families. The name of the 22 year old woman who was dragged by the truck and left in critical condition was released today. She is a 22 year old native of St. Andrews, NB, Christine Wells. Her parents Clayton and Nancy Wells are in Newfoundland to be with their daughter during her crisis. Mr. Wells was interviewed on CBC Radio this morning and explained that his daughter Christine may be in hospital for months to come, but her 24 year old friend may be discharged from hospital today. They were both originally admitted to hospital in critical, but stable condition.

I suppose these tragic "statistics" on serious injury (thankfully, not fatality) will not show up in the RCMP accident statistics, because they happened under Royal Newfoundland Constabulary jurisdiction. But nothing could more pointedly highlight the argument of the RCMP, that drinking and driving remains a major - and unnecessary - source of serious accidental injury and death on our roadways.

The Right to Recover Damages for Personal Injury: Not to be Taken for Granted

ccrosbie@chescrosbie.nf.net (Blog Author)48680 — Fri, 11 Feb 2011 08:00:00 EST

I started practicing law in 1982. This is not so long ago that I can't relate to the verdict from a recently retired Chief Justice of Ontario:

When I was called to the bar, my recollection is that tort law was in bad shape. There were many rules and economic factors that made it very difficult for injured people to succeed in litigation. Tort law also often favored defendants. For example, there was the guest passenger law that denied all recovery to gratuitous passengers against their drivers. There was no compulsory auto insurance law. Damage awards were generally puny and there many immunities. It was very difficult to get expert witnesses in medical malpractice cases and harder to succeed. Limitation periods were short and strictly enforced.

While much has been gained for tort victims over the last several decades, much has also been lost, particularly in provinces other than Newfoundland and Labrador. The loss of tort rights in Canada has in general been accomplished by various provincial legislatures, lobbied by the automobile insurance companies to impose no-fault auto insurance. British Columbia and Newfoundland and Labrador have resisted the assault on victim rights, because Coalitions Against No-Fault in our provinces have recognized the truth of what an American revolutionary said over two hundred years ago, and taken action:

No man's property is safe

While the legislature is in session.

Finding an Excellent Lawyer – In Personal Injury or Any Specialized Area

ccrosbie@chescrosbie.nf.net (Blog Author)48535 — Wed, 09 Feb 2011 08:00:00 EST

An astute lawyer once said:

In general jurisprudence I can give full satisfaction,
But I don't know what is proper for the conduct of an action.

Let's face it, there is a place for lawyers with a good generalist knowledge of the law, but that place may not be doing something as difficult and high risk as accident and injury litigation.

How can you find a lawyer who is right for your injury case? I give some helpful tips on this website. Put a query in the box in the upper right of this website, or order a free copy of one my books on accident law, medical malpractice, or wrongful death. If you don't do the research, you can only blame yourself.

Moose: Newfoundland's Roadside Bomb

ccrosbie@chescrosbie.nf.net (Blog Author)47928 — Tue, 01 Feb 2011 08:00:00 EST

In Afghanistan, they call them improvised explosive devices, or IEDs. In Afghanistan, IEDs are responsible for most of the deaths among our serving military, many of whom are Newfoundlanders.

In Newfoundland, we also have a roadside hazard that causes us to travel in fear. It lurks by the roadside and explodes without warning, shattering motor vehicles and often mangling limbs and taking lives. It is the moose - Newfoundland's roadside bomb.

Q&A: Ches Crosbie Answers Questions from National Post About Moose Collision Class Action

ccrosbie@chescrosbie.nf.net (Blog Author)47054 — Wed, 19 Jan 2011 08:00:00 EST

Q: Clearly, a person can't sue a moose for damage and personal injury. But why is the government to blame?

A: It looks a lot less strange when you realize that Parks Canada has been studying Gros Morne Park (in Newfoundland) and have decided to eliminate 4,000 moose out of 5,000 within the boundaries this year. The moose are eating us out of house and home, changing the composition of the landscape in the province and destroying the young trees so that we're losing forest cover. But the park has 25 moose vehicle collisions a year too. One of the benefits of reducing the density of the animal is if you have fewer animals in the woods, you'll have fewer animals on the road.

Q: Canadians tend to think of moose as an indigenous and iconic Canadian animal. But you say in your statement of claim that it really isn't the case, at least not in Newfoundland.

A: It's a Canadian animal all right, but back in the last Ice Age, the glaciers covered Newfoundland and it had to be colonized by flora and fauna all over again around 18,000 years ago. And the truth of the matter is that moose did not colonize the island, they were brought here 100 years ago by an act of the government.

Q: But how can you hold today's government to account for something their predecessors did 100 years ago? How would they know that in a century, the moose would become a threat to drivers?

A: The government runs a chain of accountability and responsibility, but that's only one factor. It does make us unique in that the animal is exotic and, introduced to Newfoundland, it can be called an invasive species. And whenever introduction is done, the outcome is never predictable. The other very important factor is that moose have been breeding like rabbits, far in excess of the ecological capacity of the land to carry them. The government has assumed a responsibility to manage them properly, as through issuing hunting licenses.

Q: What can happen to you if your vehicle's hit by a moose?

A: Moose are 1,000 lb. rabbits on stilts. When a vehicle hits them, the front grill strikes the legs, usually breaking them, and the centre mass of the moose is in the upper body behind the shoulder. And at highway speeds, the bulk of the moose hits the windscreen and the support pillars of a passenger vehicle crashes through the windscreen and lands on top of the front seat passenger and driver.

Q: That sounds like a tonne of impact.

A: That's literally correct.

Q: So how have moose-vehicle crashes impacted your clients?

A: We're not doing this lawsuit to collect for property damage and we're not trying to get compensation for people who might have had to go to emergency but not admitted to hospital. We're suing for people who were admitted as inpatients, and particularly for the most catastrophically injured of those.

Q: What about the recommendation to "remove" populations of moose. Have you heard from anyone opposed to a cull?

A: No. In Newfoundland, we like our moose. We're not bloodthirsty, out to kill moose for no good reason. And when we do kill them, we use the animal. We like them as a tasty meal. The fact remains that there are 40,000 new moose deposited onto the landscape of this island every year.

Q: What are some other ways to reduce the number of moose-vehicle collisions in Newfoundland?

A: There are proven methods of reducing, dramatically, the rate of collision and injury. One example would be moose fencing, and we've seen that implemented in a nearby province, New Brunswick.

Q: Any word from the province just yet?

A: No. It'll be interesting to see. We've asked them not to regard the people in the class as the enemy or for that matter, the people who are using the roadway as the enemy, but to sit down and start talking with us about how solutions can be come up with and imposed.

One-third Want Government to Act on Moose

ccrosbie@chescrosbie.nf.net (Blog Author)46896 — Mon, 17 Jan 2011 08:00:00 EST

CBC staff told me that questions they posted up after the news conference last week announcing the moose vehicle collision class action attracted one of the largest vote totals ever - 5,578 votes cast as of today, one week later. Story comments number 452.

I know this is not a scientific poll, but it is a good indicator of the level of public interest in the moose problem in Newfoundland. The way the votes went is also interesting:

Yes, I agree. It's about time 10% (558 votes)

No, I disagree. It's not the government's fault 63.84% (3,561 votes)

Hopefully this will provoke the government to do something about this 23.4% (1,305 votes)

This doesn't matter to me 2.76% (154 votes)

Total Votes: 5,578

Fully one-third of those who voted either agreed with the lawsuit or hoped it would provoke the government to do something about moose on the highways. If this is at all representative of what the population as a whole thinks on the issue of motor vehicle collisions and moose, then it is something which the government - the defendant in the class action - cannot afford to ignore. And as more becomes known about the lawsuit and the reasons for it, including the evidence of mismanagement by the government, public sympathy will grow.

Loose Moose Lawsuit Prompts Public Response

ccrosbie@chescrosbie.nf.net (Blog Author)46711 — Thu, 13 Jan 2011 08:00:00 EST

There has been a massive public response to the announcement of the moose vehicle collision class action on Tuesday. The CBC website has had over 5,546 responses to the poll question, and close to 440 posted comments. This is one measure of public interest in the issue.

One-third of those casting a vote on the CBC website either support the lawsuit or think the government should be doing more to control the moose menace. Most of these votes were cast as a reaction to the simple news that there was a lawsuit on the moose issue, without knowing anything more about the reasons for it.

When one-third of respondents think that the government is falling down on an issue which grips most of the population of the island of Newfoundland, then the government had better pay attention. The class action represents people injured due to past government neglect, but it also represents all of us who use the highways and who do so responsibly and safety. If government treats residents like the enemy, then residents of the province may just get angry and let them know that they aren't going to take it anymore!

Newfoundlanders would have good reason to get angry about the government's failure to act on the moose vehicle collision issue. Just this afternoon, I received an email from a consultant to the Department of Transport in Quebec, who says that he has been involved in the installation of over 61 kilometres of high-metallic moose fencing in prime moose habitat north and east of Quebec City. He says:

The positive effect on reducing MVC and saving lives and long-term injuries has been tremendous in just 2 years. We know the problem and the way to solve it while maintaining connectivity between habitats on both sides.

So if you're apathetic and fatalistic and think that nothing can be done to control the burgeoning moose menace, then the Moose Vehicle Collision class action is not for you!

Moose Class Action - Moose Collisions: Act of Government, Not Act of God

ccrosbie@chescrosbie.nf.net (Blog Author)46481 — Mon, 10 Jan 2011 08:00:00 EST

Over the years, Newfoundlanders have bought into the idea that collisions with moose on the highways are acts of God or nature, not something government can control. We just hope it doesn't happen to us. And when we go out on the highways, particularly at night, we live with fear, and our loved ones live with fear, until we are safe at home.

That is the way the government wants us to see it. Moose/vehicle collisions are nothing the government can do anything about.

The members of the Moose Vehicle Collision class action say moose collisions on the island portion of this province are an act of government, not an act of God.

Government made a decision to bring this non-native invasive species here about a hundred years ago. Government has also avoided taking responsibility for managing the hazard it created. Government's policy positions on the moose/vehicle collision issue are out of touch with sound ecological balance and with best safety practice in places like Sweden, Alberta, New Brunswick, and now even in our own national parks.

Lobby groups like Save Our People Action Committee have proposed what seem like sensible ideas, such as a reduction in moose numbers, elimination of problem moose and the erection of moose fencing. But government and government's own expert officials say these measures won't work. So what is an ordinary person, with no special learning in the field of moose and highway safety, to think?

People have several times asked me to consider a moose class action, and I have several times declined. But something happened last October that made me reconsider. Municipalities Newfoundland and Labrador had a conference in St. John's, and while driving to the city one of the mayors hit a moose near the Foxtrap Access Road and was admitted to hospital. The mayors at the conference passed a resolution asking the government to take action on the moose hazard and sent government a letter. This event suggested that public opinion on the moose/vehicle collision problem might be shifting to the point where government would feel political pressure to take meaningful action.

After the mayor's collision, I sought out world class experts and learned that the government has allowed the moose population here to reach densities of five to ten times what is allowed in places like northern Ontario. The government puts out a figure of 120,000 moose for the island, but 150,000 is a better guess and 200,000 is realistic. If we followed Ontario guidelines, we would have 21,000 moose. I was told that the result of our government-imposed high moose densities is an ecological crisis in which moose are drastically over-browsing on young trees and destroying the forests.

Another recent development confirms what experts have told me and suggests the timing for this class action is right. Last week, Parks Canada confirmed plans for a drawdown of moose numbers in Gros Morne National Park by four thousand animals, aimed at reducing numbers to 20% of what they are now. Credible federal authorities right here in Newfoundland have recognized the environmental damage and threat to highway safety posed by too many moose, and are taking decisive measures. In the meantime, our own government is in denial of the problem.

Environmental degradation and too many moose on the highways is a consequence of too many moose in the woods.

The Moose Vehicle Collision class action is taken for those Newfoundlanders and their loved ones whose lives have been changed forever by the reign of terror on our highways, and for the safety of future users of the highways. The class definition in the Statement of Claim makes this clear.

The Plaintiffs take this class proceeding on behalf of persons or the estates of persons who were admitted as inpatients to a hospital and on behalf of the estates of persons who are deceased as a result of a collision or near collision with a moose, while operating or occupying a motor vehicle on a highway in the island portion of Newfoundland and Labrador.

This is not about recovering money for property damage, or for soft tissue injuries, or even for serious injuries treated in Emergency. It is about help for those badly enough injured to be admitted to hospital, particularly those with serious head injuries like Hugh George, or spinal cord injuries like Ben Bellows. And it is about preventing injury and death to people like them in the future.

The first step in a class action is to apply to court for certification as a class action, and our Class Actions Act requires this application to be filed within 90 days. Once the class members and government have exchanged information, talks should commence within the next three or four months. The class action creates an institutional framework for a negotiated resolution of the moose/vehicle collision problem this year. Government should look on the class action as a resource for problem solving, and welcome an early mediation to discuss solutions. There are many creative solutions possible with a win/win outcome - a win for class members, for public safety, and for government.

A starting point for talks is our proposal that government should implement a five year plan to reduce the rate of injury in moose/vehicle collisions by 50% or more. Moose fencing is a proven part of an effective injury reduction strategy. The elimination of problem moose near the highways makes sense. And a drawdown of moose densities to environmentally responsible levels is a part of the solution too. Both the safety of the highways and the ecological health of the island will benefit if our people and their people sit down and talk.

At the same time, it is fair and just that government make financial amends with some of the most tragically injured citizens in the province, namely those admitted to hospital with devastating injuries who will never walk again or work again, and the families of those killed in moose collisions - not by acts of God, but by acts and omissions of government itself.

Death of a Hunter: Compensation Available?

ccrosbie@chescrosbie.nf.net (Blog Author)45187 — Thu, 16 Dec 2010 08:00:00 EST

The death of a hunter near Flat Bay this week raises the question, whether the family of the deceased might have an action for financial compensation for wrongful death.

The deceased is described as a 31-year-old man from St. Theresa's, pronounced dead of a gunshot wound. The deceased was from the same hunting party as the shooter.

I am a hunter myself, and I think I have a reasonable understanding of the rules of safety surrounding the hunting sport. Firearms are obviously lethal and extremely dangerous, but when used in accordance with the rules of safety pose no harm. The shooting sports are actually extremely safe. I cannot help but think that safety rules were violated in this case, as in any case involving a hunter shot by his own party. This tragic death was the fault of the shooter, almost certainly. The question is, can the family obtain compensation for wrongful death, and where will the compensation come from?

One source is the homeowner policy of the shooter. The standard coverage of the homeowner policy is coverage for personal injury. No doubt the shooter is remorseful about this tragedy. However, a 31-year-old hunter is likely to have left dependents behind, and after the grief of the tragedy takes its course and eventually subsides, there is a family which needs financial support. They should seek advice from a knowledgeable personal injury lawyer.

Victory from the Ashes of Defeat on Light Cigarettes? (2)

ccrosbie@chescrosbie.nf.net (Blog Author)45037 — Tue, 14 Dec 2010 08:00:00 EST

An opportunity exists for government to vindicate consumer rights otherwise denied by the decision in the light cigarettes class action. As some will remember, the class action over light cigarettes - Sparkes v. Imperial Tobacco - was dismissed by the Newfoundland and Labrador Court of Appeal on March 22, 2010, on the ground that a direct relationship on "privity" between consumer and manufacturer was a requirement of the Act.

The suit claimed that light and mild cigarettes are a deceptive marketing scheme to encourage addicted smokers to smoke cigarettes using these descriptors, as a more healthful alternative to regular cigarettes, and an acceptable alternative to quitting.

The government has an opportunity to snatch victory from the ashes of defeat. Section 16 of the Trade Practices Act provides that the Director of Trade Practices may maintain an action that has been started by a consumer. Privity would no longer be in issue if the Director were to use his powers under the Act.

The passage of time and the tolling of limitations recommends that a decision on whether to proceed should soon be taken. As a result of an agreement with the Director of Competition, Imperial Tobacco discontinued the manufacture of light and mild cigarette brands at the end of December 2006. A six year limitation period governs, which means that the opportunity presently exists to claim damages on behalf of consumers arising over the period 2005 and 2006. The amount of damages involved would still be very significant. An argument also exists that Imperial Tobacco is guilty of fraudulent concealment of the cause of action, which would render the six year limitation inapplicable. However, if the case were to settle, it would probably be on the basis of revenues from consumer deceptions perpetrated in 2005 and 2006.

A decision to proceed with a Director's action would be consistent with the reforming intent of Bill 33, and would garner widespread support from consumers and consumer organizations. The Department of Justice is nearing a decision on whether to revive the light cigarettes class action with the assistance of the Director of Trade Practices. The Department has had this issue under review for more than six months, and should make a decision soon. The passage of time likely diminishes the potential financial recovery on behalf of consumers with each passing day.

Victory from the Ashes of Defeat on Light Cigarettes?

ccrosbie@chescrosbie.nf.net (Blog Author)44982 — Mon, 13 Dec 2010 08:00:00 EST

Congratulations to the government of Newfoundland and Labrador for its response to the Court of Appeal decision in Sparkes v. Imperial Tobacco, which required privity in suits under the Consumer Protection Act. This decision effectively immunized manufacturers from suit taken by consumers pursuant to the Act. Bill 33 will define "supplier" to include manufacturer, thereby addressing the absurdity that legislation intended to reform consumer law, would preserve one of the worst impediments to consumer rights.

I described this in more detail in an interview in March, in which I called the legal position in this province a "Newfie joke". Bill 33 will return the Consumer Protection Act to its original purpose, aptly described by Minister Harding in the House on December 9:

The intent of the act is to prohibit unfair and unconscionable business transactions and provide remedies for wronged consumers. That is the principle purpose of this piece of legislation.

What a shame that the legislature must spend scarce legislative time overcoming an injustice created by court interpretation. The legislative response suggests that the courts did not correctly identify what the legislature originally intended. Too bad for the consumers who lost out when the class action was tossed by the courts, and too bad for access to justice and the goal of behavior modification for wrongdoers, which is served by class actions and consumer protection.

Or is it too bad - could the class action over light cigarettes rise from the court-created ash heap and live again? Visit this blog tomorrow and find out.

The Telegram says 'yes' to piece on no-fault insurance

ccrosbie@chescrosbie.nf.net (Blog Author)44718 — Wed, 08 Dec 2010 08:00:00 EST

Last week I published a blog pointing out that among the other ways in which outgoing Premier Danny Williams has given Newfoundlanders and Labradorians pride in their independence, was the fact that he said ‘no' to no-fault insurance. The Telegram newspaper picked up on the blog and gave me a call for an interview. I am pleased that the Telegram ran the following piece in their Saturday edition, because it should never be forgotten that the insurance companies will seize any opportunity to argue for measures that cut back on the rights of injury victims. Danny Williams resisted this lobby several years ago, but a new government may not be as smart and as determined. As an American politician once said, "no person is safe while the legislature is in session!"

Williams praised for saying ‘no' to no-fault insurance

St. John's lawyer credits former premier for not caving in to pressure

By Deana Stokes Sullivan

The Telegram

Saturday, December 4, 2010

When Danny Williams announced his decision to step down as premier and retire from politics, it prompted many of his supporters to recount some of the positive things he achieved during his tenure.

Besides leading the province towards greater economic independence and fighting to defend the resource rights of Newfoundlanders, says St. John's lawyer Ches Crosbie, Williams also deserves praise for resisting pressure from insurance companies to reform automobile insurance and apply thresholds to injury claims.

"He's given us a pride in our own independence and our ability to make our own future," Crosbie said Thursday. And, it wasn't a small thing, he said, for Williams to resist pressure from those big companies, while the governments of Alberta, New Brunswick, Nova Scotia and Prince Edward Island in the 2002-04 period, "caved in to insurance industry propaganda and adopted threshold, no-fault auto insurance."

Crosbie said threshold, no-fault insurance excludes large numbers of accident and injury victims from compensation for pain and suffering on the theory that reduced costs are passed on to consumers through lower premiums. He said the victims affected are often people with soft tissue injuries and, in some cases, fractures, but they can't make claims.

"The industry was trying to get all the Atlantic provinces to follow that same pattern, and that's what we didn't follow here," Crosbie said. "Although there were some changes made, there were relatively minor changes."

A $2,500 deductible was applied to injury claims in this province, he said, but in the "grand scheme of things that's not terribly significant when you compare it to thresholds that limit claims". Newfoundland and British Columbia are the only provinces that still have vigorous tort-based or fault-based compensation systems, Crosbie said.

There's also "pure no-fault insurance", which is similar to workers' compensation, he said, where fault doesn't come into it at all, but the no-fault, threshold systems make it difficult to make a claim.

Crosbie said provinces that went with these no-fault, threshold systems have found the insurance companies haven't passed on the savings to the consumers.

"The truth is, it doesn't happen," he said. "The insurance companies take any savings for themselves."

Crosbie said lawyer Barry Mason is quoted in Lawyer's Weekly saying the industry in Nova Scotia made an extra $250 million from 2003-07 as a result of threshold, no-fault changes that were enacted in that province.

"Now, the government there is backtracking on that. They're not going all the way back to the way things were, but they're making significant changes to pull some of the teeth of the no-fault system that was put in place," Crosbie said.

"Danny was an astute enough politician, and had enough guts, to take a calculated risk that public opinion was with him if he said ‘no' to no-fault, and he did," Crosbie comments in a blog on his law firm's website, www.chescrosbie.com.

Williams officially left office Friday, with Kathy Dunderdale being sworn in as the new premier.

Crosbie said it's always possible that insurance companies will lobby the province again for legislative changes, but these things tend to move in cycles and the last push for change occurred after the 2001 terrorist attacks in the United States.

"If you go back to September 2001, that caused a big tightening in insurance markets around the world, and that filtered down to all manner of insurance - and typically the industry uses a market tightening cycle to argue that too many people are claiming bogus injuries and ... to propagandize in favour of measures that cut back on the rights of injury victims," Crosbie said.

Workers Compensation and the Right to Sue for Injuries in Newfoundland

ccrosbie@chescrosbie.nf.net (Blog Author)44683 — Tue, 07 Dec 2010 08:00:00 EST

We often get questions like the following: I was injured in a car accident while I was working, so I am entitled to workers compensation benefits. Do I have to claim workers compensation benefits or can I sue the at-fault driver?

Workers injured while in the course of their employment, usually have to claim compensation through the Workplace Health, Safety and Compensation Commission (the "WHSCC"). In most cases, a worker cannot bring a court action against the person who is responsible for his or her injuries, due to the prohibition contained in the Act. If you were injured in a motor vehicle accident while in the course of your employment, however, you have the choice of either applying for worker's compensation benefits, or suing the at-fault driver. You may also elect to sue in certain other transportation related accidents such as helicopter accidents.

The decision whether to sue or accept compensation from WHSCC depends on balancing such factors as the likely financial recovery from a lawsuit compared to what you would recover from WHSCC compensation, the risk involved in the lawsuit, and whether the injured client can financially afford to wait out the period of time a lawsuit will take to get any settlement. As a rule, a lawsuit will result in a significantly higher financial recovery, but this depends on a variety of factors unique to each case. You should consult an experienced personal injury lawyer to determine which course of action would be better for you. Our firm provides this type of consultation without charge or obligation.

You can choose to ask the WHSCC legal department to start a court action in your name against the at-fault driver to recover damages, or they may decide to do so when the period of three months (or six months in the case of a death) has passed. Disadvantages are that the client does not control such a court action, and any funds recovered are used first to repay the WHSCC to compensate it for amounts of compensation it has paid or may in the future have to pay to the injured claimant, in addition to administration charges and the fees of the legal department.

Advantages of suing the at-fault driver (instead of making a worker's compensation claim) are that any money recovered would be yours alone and you would be the person instructing the lawyer of your choice. Pursuing the at-fault driver in a court action would also entitle you to claim the full extent of your losses.

Danny Williams said "No" to No-Fault Auto: Another Reason for Newfound Pride

ccrosbie@chescrosbie.nf.net (Blog Author)44135 — Mon, 29 Nov 2010 08:00:00 EST

A consistent theme has emerged from the commentary provoked by Premier Danny Williams' surprise resignation last week: he re-instilled pride in Newfoundlanders as equals in Confederation, a sense of independence, and optimism that we can create a bright and self-reliant future for ourselves.

One unique achievement of the Williams premiership does not get mention in the retrospectives. He resisted pressure from the auto insurance industry to bring in no-fault auto insurance. In the 2002-2004 period the governments of Alberta, New Brunswick, Nova Scotia and Prince Edward Island caved in to insurance industry propaganda and adopted threshold no-fault auto insurance. But not our Danny.

Threshold no-fault excludes large numbers of accident and injury victims from compensation for pain and suffering on the theory that reduced costs are passed on to consumers by lower premiums - a "rights for rates" trade-off.

The truth is, it doesn't happen. The insurance companies take any savings for themselves. Newfoundland and Labrador (along with British Columbia) has a vigorous fault-based auto accident compensation system, and our insurance rates are about the lowest in the country. The new government in Nova Scotia has recently announced that it is moving away from its no-fault auto scheme in a significant way.

Danny resisted the pressure for insurance companies to sacrifice the rights of victims, in part because he had been a plaintiff-side personal injury lawyer himself, and understood how the insurance industry works. He was less easily bamboozled than other politicians. But a determined campaign by the Coalition Against No-Fault, led by Kevin Breen, countered insurance industry propaganda, and Newfoundland public opinion was not impressed by it. The Atlantic Provinces Trial Lawyers Association, of which I was president, was a member of the Coalition.

Danny was an astute enough politician - and had enough guts - to take a calculated risk that public opinion was with him if he said "no" to no-fault, and he did.

Alone among premiers at the time, Danny Williams said "no" to no-fault. There are many reasons for Newfoundlanders' newfound pride in our independence and willingness to stand up to others for our rights, and this deserves to be one of them.

Can I get a Civil Jury Trial in Newfoundland and Labrador?

ccrosbie@chescrosbie.nf.net (Blog Author)43541 — Wed, 17 Nov 2010 08:00:00 EST

If your claim is for personal injury damages, you cannot get a civil jury trial in Newfoundland and Labrador. And now it seems that if your claim is for insurance bad faith and punitive damages, probably not either.

So says the Supreme Court, Trial Division, in a recent decision.

Caselaw over the last ten years left open the door to civil jury trial in this province, in the relatively small number of cases which engage community standards of morality and would benefit from a consensus or cross-examination of community opinion. Disability insurance cases with punitive damages claims were supposed to fit this exception exactly - see my brief - but now doubt has been cast on even this possibility. The merit of juries is that they overcome the complacency of the judges and move the law to new levels, in step with enduring social values. Just not, apparently, in Newfoundland.

For an illustration of how different attitudes toward the right to civil jury can be in other provinces, have a look at lawyer John McKiggan's blog "Court refuses to fast track medical malpractice claim of elderly plaintiff". Astonishing as it may seem to a Newfoundland lawyer, a very elderly plaintiff was refused a speedy trial because the defendant doctors told the court that they wanted a civil jury trial! The Nova Scotia court defended the right to civil jury trial, including in complicated malpractice cases, as "a process well suited to determining the resolution of the issues of fact that can be anticipated at this trial."

Residential Schools Claims in Newfoundland and Labrador

ccrosbie@chescrosbie.nf.net (Blog Author)43490 — Tue, 16 Nov 2010 08:00:00 EST

Yes, there are such claims in this province, and yes, these claims represent the biggest class action settlement in Canadian history, and yes, Canada has excluded Newfoundland and Labrador aboriginal people from participating in the national settlement.

That is why we brought suit on behalf of those who attended five different schools in Labrador, set up by the Grenfell Mission and the Moravians, but for which we say Canada was responsible from the date of Confederation in 1949.

Newfoundland and Labrador residential school victims deserve a settlement. They suffered sexual and physical abuse - and "cultural genocide" - as did aboriginal people elsewhere in this country. So thought the Supreme Court, Trial Division, in a decision that granted class action status. Canada has appealed

Firms represented by Kirk Baert, Stephen Cooper, and Ches Crosbie argued the appeal of the class action last week - justice for native peoples in Newfoundland and Labrador. I'll keep you posted.

What Can I Do If I Think My Lawyer Is Charging Too Much?

ccrosbie@chescrosbie.nf.net (Blog Author)42200 — Mon, 08 Nov 2010 08:00:00 EST

The Law Society thought I would be a good person to decide the reasonableness of lawyer's bills, and the Chief Justice agreed and appointed me last year. When a client disputes the amount of a legal fee, he or she can have the bill "taxed" or assessed, by a court officer known as a taxing master (master of the Supreme Court). I am one of them.

The process of assessing legal accounts is user-friendly and inexpensive. You find a taxing master on the Law Society website, and make an appointment. The appointment has to be served on the lawyer. When a client disputes his or her lawyer's bill, it is often called a "solicitor-and-client" taxation. The determining principle is reasonableness.

The client does not have to have a lawyer to tax a lawyer's bill, but as with any complex and unfamiliar process, it is a good idea. I do not encourage disputes over legal fees, and most lawyers strive to render a reasonable account, but clients have a right to know a bill can be challenged, and how to challenge it.

Recently I taxed fees and disbursements in a dispute between a lawyer and a client, and I thought it desirable to do a written decision explaining how I arrived at the result. I discovered that the Law Library on Water Street keeps a database of these decisions (assuming that the taxing master sends it in to be entered in the database), but there is otherwise no easily accessible database of precedent decisions. There is an easily accessible database of legal decisions through CanLII, and I intend to see if CanLII wants to publish or make available taxation decisions for Newfoundland and Labrador. In the meantime, I will make my own decisions available here.

Malpractice Victims Pleased with Injury Compensation

ccrosbie@chescrosbie.nf.net (Blog Author)41850 — Mon, 01 Nov 2010 08:00:00 EST

As noted in our press release last week, compensation cheques should have been received by class members by the end of last week. The compensation cheques were significantly more than the target amounts in the Breast Cancer Testing class action settlement, and we have had many emails from clients expressing their pleasure with the higher amounts of these cheques.

This is one of those moments which are very fulfilling for the lawyers who have played a role in obtaining the money compensation for victims of wrongdoing. We are certainly pleased to have played a role in making amends to the victims of the ER/PR testing scandal, in fact it was the class action that we started which exposed the scandal at Eastern Health and caused the government to institute the Cameron Inquiry. This is one of the most satisfying cases I have ever been involved in, and it has been a privilege to represent the class members.

How Do I Win My Injury Case?

ccrosbie@chescrosbie.nf.net (Blog Author)40695 — Wed, 13 Oct 2010 08:00:00 EST

The saying goes: all a defendant has to do to win is to not lose.

This is profound! The burden of proof is on the plaintiff, so the status quo, or default position, favors the bad guy. The bad guy can sit back and do nothing. If the plaintiff and her or his lawyer do not move the case forward, the defendant is happy. The default position is, bad guy wins!

In order for an injured plaintiff to win, he or she must pro-actively mount the proofs and push the defendant to the point where it is facing a court decision that amounts to a decision that "you lose". Then the bad guy settles - when "not losing" is no longer an option.

You win your accident and injury case by proving to the defendant that if they don't settle, they will lose at trial.

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

ccrosbie@chescrosbie.nf.net (Blog Author)37485 — Thu, 30 Sep 2010 08:00:00 EST

29. If you don't like what the insurance company for the bad guy offers you, call us...we'll tell you whether it's actually a good offer or not. But...don't wait too long. We don't accept "stale" cases.

**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 aroundt-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.

29 Quick Tips for Handling Your Own Newfoundland and Labrador Personal Injury Car Accident Settlement - Tip #28

ccrosbie@chescrosbie.nf.net (Blog Author)37483 — Wed, 29 Sep 2010 08:00:00 EST

28. If the insurance company responds to your demand, and you like what they are offering, take it...but FIRST read the general release of liability that they sent you to make sure you are not waiving important rights. And make sure your insurer can't accuse you of prejudicing their rights of recovery from the bad guy's insurer and sue you for it.

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

29 Quick Tips for Handling Your Own Newfoundland and Labrador Personal Injury Car Accident Settlement - Tip #27

ccrosbie@chescrosbie.nf.net (Blog Author)37482 — Tue, 28 Sep 2010 08:00:00 EST

27. Make an appropriate demand on the insurance company for the bad guy...one that's not so "wacky" that they just ignore you completely.

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

29 Quick Tips for Handling Your Own Newfoundland and Labrador Personal Injury Car Accident Settlement - Tip #26

ccrosbie@chescrosbie.nf.net (Blog Author)37481 — Mon, 27 Sep 2010 08:00:00 EST

26. Research and figure out what the reasonable settlement value of your case is in the jurisdiction where the accident happened. [Maybe hire your kids to hit the internet for this information.]

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

29 Quick Tips for Handling Your Own Newfoundland and Labrador Personal Injury Car Accident Settlement - Tip #25

ccrosbie@chescrosbie.nf.net (Blog Author)37480 — Fri, 24 Sep 2010 08:00:00 EST

25. Keep all receipts.

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

29 Quick Tips for Handling Your Own Newfoundland and Labrador Personal Injury Car Accident Settlement - Tip #24

ccrosbie@chescrosbie.nf.net (Blog Author)37478 — Thu, 23 Sep 2010 08:00:00 EST

24. When treatment is over, make sure you have all of the medical records and bills (not those "explanation of benefit" forms the insurance company sends you) so that you can submit them with the "demand package" you are going to create.

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

29 Quick Tips for Handling Your Own Newfoundland and Labrador Personal Injury Car Accident Settlement - Tip #23

ccrosbie@chescrosbie.nf.net (Blog Author)37477 — Wed, 22 Sep 2010 08:00:00 EST

23. Track down wage and salary information from your employer and get those tax returns together from the last 3-5 years.

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

29 Quick Tips for Handling Your Own Newfoundland and Labrador Personal Injury Car Accident Settlement - Tip #22

ccrosbie@chescrosbie.nf.net (Blog Author)37476 — Tue, 21 Sep 2010 08:00:00 EST

22. When all of your treatment is done, get a disability or prognosis report from your health care providers.

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

29 Quick Tips for Handling Your Own Newfoundland and Labrador Personal Injury Car Accident Settlement - Tip #21

ccrosbie@chescrosbie.nf.net (Blog Author)37475 — Mon, 20 Sep 2010 08:00:00 EST

21. Don't overtreat...insurance companies for bad guys hate overtreatment and they won't pay for it.

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

29 Quick Tips for Handling Your Own Newfoundland and Labrador Personal Injury Car Accident Settlement - Tip #20

ccrosbie@chescrosbie.nf.net (Blog Author)37474 — Fri, 17 Sep 2010 08:00:00 EST

20. While you are at it, if you are receiving workers' compensation for the injuries, figure out if THEY want to get at THAT money, too, and whether it's in your best interest to let them sue the bad guy on your behalf or whether you should do it yourself.

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

29 Quick Tips for Handling Your Own Newfoundland and Labrador Personal Injury Car Accident Settlement - Tip #19

ccrosbie@chescrosbie.nf.net (Blog Author)37473 — Thu, 16 Sep 2010 08:00:00 EST

19. Review your policy and see if your disability insurance company is entitled to be repaid out of your recovery. Make sure you aren't giving your money away just because they send you a form letter!

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

29 Quick Tips for Handling Your Own Newfoundland and Labrador Personal Injury Car Accident Settlement - Tip #18

ccrosbie@chescrosbie.nf.net (Blog Author)37472 — Wed, 15 Sep 2010 08:00:00 EST

18. Go back and review your own health insurance policy to figure out whether they will pay the therapy bills now or wait until your therapists sue you to get reimbursed out of your settlement money.

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

29 Quick Tips for Handling Your Own Newfoundland and Labrador Personal Injury Car Accident Settlement - Tip #17

ccrosbie@chescrosbie.nf.net (Blog Author)37471 — Tue, 14 Sep 2010 08:00:00 EST

17. Get a transcript of the bad guy's court appearance so that whatever he says might be "used against him" later.

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

29 Quick Tips for Handling Your Own Newfoundland and Labrador Personal Injury Car Accident Settlement - Tip #16

ccrosbie@chescrosbie.nf.net (Blog Author)37470 — Mon, 13 Sep 2010 08:00:00 EST

16. Attend bad guy's court appearance if he was charged with a traffic violation. [Hopefully, you're well enough to do this!]

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

Breast Cancer Testing Class Members to Receive First Cheque

ccrosbie@chescrosbie.nf.net (Blog Author)38911 — Mon, 13 Sep 2010 08:00:00 EST

Class members who have submitted applications and been approved for injury compensation will receive their first cheque by the end of October. This delay has been unavoidable in order to give the class members with deficiencies in their claim a chance to cure the deficiency.

A final cheque will go out to injured claimants later in the year, after the total number of approved claimants in each category is known. There are always class members who do not wish to make a claim, and there will be a handful of appeals to process. Once the "uptake" is known for certain, the administrator can disburse all of the funds.

An update on the situation was given by the class administrator last week. The administrator's website is www.nlbreastcancersettlement.ca and contains a wealth of useful information.

29 Quick Tips for Handling Your Own Newfoundland and Labrador Personal Injury Car Accident Settlement - Tip #15

ccrosbie@chescrosbie.nf.net (Blog Author)37468 — Fri, 10 Sep 2010 08:00:00 EST

15. If Medicare or some other government entity paid your medical bills, contact them and get the information as to who they paid and how much and, using their formula, figure out what they might be owed later by you if you get a recovery.

29 Quick Tips for Handling Your Own Newfoundland and Labrador Personal Injury Car Settlement - Tip #14

ccrosbie@chescrosbie.nf.net (Blog Author)37467 — Thu, 09 Sep 2010 08:00:00 EST

14. Figure out exactly how much of your therapy bills your own car insurance company might pay (since you've likely been paying them a premium for that coverage all these years).

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

29 Quick Tips for Handling Your Own Newfoundland and Labrador Personal Injury Car Accident Settlement - Tip #13

ccrosbie@chescrosbie.nf.net (Blog Author)37466 — Wed, 08 Sep 2010 08:00:00 EST

13. Figure out which of your insurance companies (your own car insurance or your health insurance or both!) should pay your therapists so that you don't get sued for non-payment while the bad guy's insurance company is deciding whether and when to compensate you for your injuries.

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

29 Quick Tips for Handling Your Own Newfoundland and Labrador Personal Injury Car Accident Settlement - Tip #12

ccrosbie@chescrosbie.nf.net (Blog Author)37465 — Tue, 07 Sep 2010 08:00:00 EST

12. Depending on your injuries, track down your own medical records for the last 10 years or so and read them before the bad guy's insurance gets them and reads them.

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

The Shocking Truth About Wrongful Death - Part 15

ccrosbie@chescrosbie.nf.net (Blog Author)32541 — Mon, 06 Sep 2010 08:00:00 EST

Conclusion

This book was written with the goal of providing useful information for people considering a wrongful death claim. In our office, we believe knowledge is power, and we hope that our book gave you the power to make some informed decisions.

Wrongful death litigation can be long and complicated, which is why we've advised that you consult with a lawyer whose practice focuses on personal injury claims. Ask if the lawyer's office has experience handling wrongful death claims because these cases often are more nuanced and complicated than normal personal injury claims.

If you think we can help you with your case, please call us at 709-579-4000 or toll free 800-579-3262. A receptionist will gather some information and connect you with a lawyer. Calls that come into our office after hours are forwarded to a lawyer. You can learn more about our firm by visiting our popular website at www.ChesCrosbie.com.

We'll schedule a free meeting with you at our office in St. John's or at your home. At the meeting, we'll give you our professional opinion about whether or not we can help you. If we do accept your case, you can be assured that we'll work hard to get the best result for you and your family.

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

ccrosbie@chescrosbie.nf.net (Blog Author)37464 — Fri, 03 Sep 2010 08:00:00 EST

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.

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

Can I Be Compensated for Moose Collisions on the Highways of Newfoundland?

ccrosbie@chescrosbie.nf.net (Blog Author)38409 — Fri, 03 Sep 2010 08:00:00 EST

This summer it seems like we turn on the news to hear almost daily warnings about moose on roads and highways in our urban areas, including St. John's. Frequently, the story is about yet another moose collision. Moose accidents all too often result in serious injury and death. Over the years I have helped moose collision victims to obtain financial compensation for moose accident injuries. Injured drivers and passengers have obtained statutory accident benefits (also known as Section B) but these are at a very low level and quite inadequate for serious injuries. Full compensation is potentially available for passengers from careless drivers, but drivers themselves have nobody to sue, whether they were careless or not.

Proof of liability is often difficult and uncertain. A good example is Baker v. Russell, 2008 NLCA 51 (CanLII). The trial judge dismissed the claim, but to the surprise of many lawyers, the Court of Appeal reversed and ordered the defendant to pay. This is an illustration of what has been called the "forensic lottery", in which it is very difficult to predict the outcome in a case. This is especially true of moose cases.

I don't pretend to have the solution to making our roads safer from the hazard posed by moose. Solutions are out there. Other provinces and other countries like Sweden have substantial moose populations and modern highway systems, and have taken means such as fencing certain places to control the hazard. What the solutions should be is for the government to figure out. But most would believe that the government can do a better job than they have been doing. Government will improve safety standards if put under enough pressure of public opinion, and pressure from lobby groups like the Save Our People Action Committee (SOPAC), and yes, maybe under pressure from a class action too.

The hazard posed by moose on the highway in Newfoundland has its own unique history. The government of Newfoundland brought moose from New Brunswick to Newfoundland in 1912. These critters grew in numbers and posed a threat to road traffic. If this hazard was foreseeable in 1912, then arguably the government is liable in what lawyers call the tort of negligence. There may also be a good case in what lawyers call public nuisance. If these theories of liability were to succeed, then those injured in motor vehicle accidents involving moose might be compensated, including those injured through no fault of the driver and including the injured driver too. The government would have a powerful incentive to take the measures necessary to control the problem and reduce the accident rate.

Now there is no doubt that any case alleging these theories of liability against the government, whether class action or otherwise, would be a risky case to take.

There is something government can do now quite easily to help those injured in moose accidents, and that is to make no fault accident benefits (Section B) mandatory for all vehicle owners, and greatly improve the level of benefits above the paltry amounts provided at present. These benefits are now limited to a total of $25,000 for rehab expenses and $140 a week for total disability. Making accident benefits mandatory, and making the benefit levels more reasonable, would have a minimal impact on auto insurance premiums, but the significant number of our fellow Newfoundlanders who are severely head injured and spinal cord injured and those injured in less disastrous ways through moose collisions every year deserve this help.

I would love to have your comments about improving accident benefits and what you think about a class action. The purpose of the class action would be compensation for the injured, and measures to reduce or prevent collision danger posed by moose.

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

ccrosbie@chescrosbie.nf.net (Blog Author)37463 — Thu, 02 Sep 2010 08:00:00 EST

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

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

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

ccrosbie@chescrosbie.nf.net (Blog Author)37461 — Wed, 01 Sep 2010 08:00:00 EST

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.

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

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

ccrosbie@chescrosbie.nf.net (Blog Author)37459 — Tue, 31 Aug 2010 08:00:00 EST

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.

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

The Shocking Truth About Wrongful Death - Part 14

ccrosbie@chescrosbie.nf.net (Blog Author)32540 — Mon, 30 Aug 2010 08:00:00 EST

Your Lawyer Doesn't Get Paid Unless You Do

Most of us don't have to hire lawyers very many times in our lives, so there's an understandable apprehension. One source of anxiety is the fear that hiring a lawyer will cost too much money. In a wrongful death case though, that shouldn't be a concern. The vast majority of lawyers handling cases like these will work on a contingent fee basis. That means that the lawyer's fee is covered through the settlement proceeds or court judgment.

The benefit of this type of arrangement is that the client doesn't have to pay the lawyer a big retainer up front, and in cases of need, the lawyer will cover the numerous expenses involved in a wrongful death case. Litigating cases is an expensive endeavor. Most people would never be able to come up with enough money to pay a lawyer by the hour for these time-consuming cases, let alone cover the big-ticket items such as payments to medical experts and the creation of complicated exhibits. Under a contingency fee agreement, family members who lost a loved one don't have to be rich to get their day in court. The contingency agreement provides access to justice - the keys to the court house.

The lawyer takes on considerable risk with this arrangement. If the case has flaws that cause it to get dismissed before trial or the claims can't be proven in court, the lawyer doesn't get paid. That's why most lawyers will be careful about what cases they decide to take on. That's good for everyone. The lawyer doesn't want to waste time, energy, and money on a weak claim. And prospective clients don't want to get their hopes up when there may not be a case.

In most situations, the lawyer's fee will be 25-33.3 percent of the gross settlement or court award. In some situations, the lawyer may set the contingent fee at 40 percent if the case is difficult and may have to go to trial, to cover the additional time, expense and risk required to take a case that far. The likely size of the money damages is also a factor in setting a fair contingency fee. In the event of a settlement or court award, the case expenses are taken from the client's portion of the recovery.

If the client has a concern about the reasonableness of a fee agreement, she has the right to have it reviewed by a court officer.

When you meet with a lawyer, you will have to sign a contract that specifies how the lawyer will be compensated and how the expenses will be paid. Make sure that the contingency fee arrangement is clearly spelled out. If you don't feel comfortable with the contract, don't sign it. If you have questions, make sure you get answers before you sign the document.

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

ccrosbie@chescrosbie.nf.net (Blog Author)37458 — Fri, 27 Aug 2010 08:00:00 EST

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.]

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

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

ccrosbie@chescrosbie.nf.net (Blog Author)37457 — Thu, 26 Aug 2010 08:00:00 EST

6. Get pictures of the vehicles and your injuries.

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

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

ccrosbie@chescrosbie.nf.net (Blog Author)37456 — Wed, 25 Aug 2010 08:00:00 EST

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

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

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

ccrosbie@chescrosbie.nf.net (Blog Author)37455 — Tue, 24 Aug 2010 08:00:00 EST

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

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

The Shocking Truth About Wrongful Death - Part 13

ccrosbie@chescrosbie.nf.net (Blog Author)32539 — Mon, 23 Aug 2010 08:00:00 EST

9 Ways a Lawyer Can Help Your Case

Lawyers with experience handling wrongful death cases can help maximize your recovery by making key decisions at the right time in the case. Each case is different, but we've assembled a list of 9 issues that may make a difference for your case.

1. Hire a lawyer to start investigating as soon as possible.

The earlier your find a lawyer, the better. The investigation into the facts of the case could be crucial to your claim. Witnesses need to be found and sworn statements may need to be taken. Police officers may need to be interviewed, photos of the scene need to be made, and crucial evidence needs to be preserved.

Sometimes the lawyer can conduct the investigation. Sometimes a qualified investigator must be hired for a proper investigation.

2. Accident Reconstruction.

An accident reconstructionist uses math and physics to determine the cause of an accident. In a disputed liability situation, both sides often use a reconstructionist to try to prove their cases. The qualifications of these experts vary from individuals with high school degrees and continuing education classes to professors who teach at universities.

The lawyer's experience and connections can find the right expert for your case.

3. Find all the defendants.

One of the jobs of the lawyer is to maximize financial recovery for the client. In order to do that, the lawyer needs to find all the potential individuals or businesses responsible for causing the death. Sometimes this is easy and obvious. If a defendant ran a red light and caused the death, it's pretty clear who will be the target of the lawsuit. But if the driver was on the job at the time, it may be difficult to determine the business for whom the driver worked. That's crucial information because under the doctrine of vicarious liability, the employer may be liable for the accident.

4. Find the right experts.

Experts can make or break your case. Experts are witnesses with a specialized knowledge base whose testimony is necessary to prove a case. Examples include economists, grief counselors, psychologists, accident reconstructionists, medical examiners, doctors, scientists, and engineers.

In our office, we have many ways to find the right experts. We belong to regional, national and international plaintiff organizations that have databases of various experts. Those organizations also have information available on the experts who tend to testify mostly for the defence. We also have a network of fellow plaintiff lawyers that we consult with on a regular basis to find the best experts.

5. Find the insurance coverage.

Insurance coverage is essential to getting the best recovery possible in most cases. Sometimes defendants do not have enough money or assets to adequately compensate the family members of someone killed as the result of negligence.

In an "over limits" claims, our lawyers demand to see certified copies of insurance policies and signed affidavits verifying the basic insurance policy limits and that the defendant does not have an "umbrella policy", which covers claims that exceed a basic insurance policy.

6. Document economic loss.

Families can suffer a huge economic loss when a loved one dies. In order to prove the amount of that loss, our office hires an actuary or economist. Many such experts are university professors who look at the decedent's income level, the income they would have earned had they lived, prior tax returns, and other economic data to determine the value of the economic loss caused by the death.

In addition to having excellent academic credentials and real-world experience, an economist or actuary must also be a superb communicator with the court.

7. Psychological injuries.

The death of a loved one is usually devastating, especially when the cause is someone else's negligence. The loss typically causes psychological injury to the survivors. Depression, post-traumatic stress disorder, and anxiety are the most common results. The report of a highly qualified clinical psychologist can help document these very real psychological injuries, which can be presented to the defendant and the court. This will become more important as the wrongful death laws are changed to give scope for psychological injury claims.

8. Grief counseling.

The grief counselor can document loss and help the survivors deal with the tragic situation. The grieving process is an expected part of the wrongful death of a loved one with various stages the family needs to work through with the help of the counselor. The lawyer can help the family locate trained professionals who can best deal with these issues. Again, this will become more relevant to the claims process as the laws change.

9. Demonstrate the relationship.

The Fatal Accidents Act is designed to benefit the survivors of the person who died as a result of the conduct of a negligent party. The more survivors who depended on the loved one for companionship, guidance, and income, the greater the potential value of the case.

You and your lawyer should work as a team to develop the best strategy for your family's case.

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

ccrosbie@chescrosbie.nf.net (Blog Author)37454 — Fri, 20 Aug 2010 08:00:00 EST

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

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

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

ccrosbie@chescrosbie.nf.net (Blog Author)37453 — Thu, 19 Aug 2010 08:00:00 EST

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

ccrosbie@chescrosbie.nf.net (Blog Author)37406 — Wed, 18 Aug 2010 08:00:00 EST

1. Secure the correct identity of the person who hit you, as well as the proper name of the owner of the vehicle if owned by someone else.

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

**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.

The Shocking Truth About Wrongful Death - Part 12

ccrosbie@chescrosbie.nf.net (Blog Author)32537 — Mon, 16 Aug 2010 08:00:00 EST

Seek Legal Help

In a routine personal injury claim, sometimes it's possible to proceed without a lawyer, even though it's usually unwise. People shouldn't even think about trying to handle a wrongful death claim on their own. These cases generally are far too complicated and technical for most people to tackle by themselves.

For instance, wrongful death claims need to be made through the administrator or executor of an estate. That means an estate has to be opened through the probate court, which requires an understanding of that legal process. The lawyer handling your wrongful death claim will do that for you or will consult with a probate lawyer to get it done. The estate will remain open until the claim resolves.

Sometimes these already complicated cases get trickier because the person who caused the decedent's death also dies in the incident. In that case, the claim is made against the wrongdoer's estate. If no one opens that estate, your lawyer will have to open it if you plan to go after estate assets. Again, that's a technical process that a layperson shouldn't try to handle.

As we discussed earlier, your lawyer has to show the decedent's death was caused by negligent or other wrongful conduct. On top of that, the lawyer must prove the various elements of the beneficiaries' claims for damages. The issues involved are complicated even for lawyers who operate in this world every day.

Seek a lawyer who focuses his or her practice on personal injury claims and who has experience working on wrongful death cases. Lawyers in this field understand the issues the insurance industry and defence lawyers will raise to defeat your claim, and will have the knowledge and experience to fight for your rights.

Your lawyer will have a few options when trying to resolve your case. Some lawyers file a lawsuit immediately, which has the benefit of putting you quickly on a trial track. The other path the lawyer might take is negotiating with the insurance adjuster to resolve the case without having to file a lawsuit. It all depends on the circumstances.

Lawsuits are time-consuming, expensive, and unpredictable. The benefit of settling a claim with the adjuster is that the client gets compensated sooner and has a certain outcome. We file suits quickly if the adjuster makes an unfair offer that we know isn't going to get any better or if the two-year statute of limitations is about to expire.

Sometimes going to trial becomes the only option. When you're looking for a lawyer, make sure you hire someone who is willing to try cases if necessary. It can take a long time to get to trial, but it may offer your best chance of getting fair compensation for your wrongful death claim. If you have to go to trial, be prepared for a long wait. It's not unusual for a trial date to be set years after the claim is filed in court, and trial dates often get postponed.

The Shocking Truth About Wrongful Death - Part 11

ccrosbie@chescrosbie.nf.net (Blog Author)32535 — Mon, 09 Aug 2010 08:00:00 EST

Wrongful Death Standards

As mentioned earlier in this book, wrongful death cases are brought because of another party's negligence or wrongful conduct. It might be helpful to understand a little bit about those concepts.

Just because someone dies doesn't mean a wrongful death case can be justified. For example, if Bill trips in a grocery store over cans stacked in an aisle, causing him to hit his head and die, there won't be a case. Under Newfoundland and Labrador law, those cans would be deemed an open and obvious hazard that Bill should have seen, so the store wouldn't be negligent.

If, however, a grocery store employee spilled some clear, liquid soap on an aisle and left it there for hours without cleaning it up or posting a warning sign, and Bill took the same fateful tumble, the store would be negligent.

The point is that a person or entity who causes the death has to be deemed negligent, or at fault, under the law. Someone is at fault when it is his responsibility to act or behave in a certain way, but fails to, which causes injury or death. There's a lot of nuance to negligence law, but that's a boiled down version of the concept. Negligence law essentially asks, what would be reasonable behavior for someone in the shoes of the defendant in all the circumstances, including the risk to the safety of others.

So, one basis for a wrongful death claim is to prove negligence. The other way is to prove wrongful conduct such as an intentional act that resulted in a death. For example, if Frank punched Jack without provocation, causing Jack to fall down, hit his head and die, Frank could be sued for causing Jack's death. In that case, Jack's estate would have to prove that Frank's intentional and wrongful conduct caused Jack's death.

Bringing a civil suit for wrongful death would be appropriate in both of the above examples, assuming there are assets such as insurance which can pay damages. Winning a lawsuit probably would seem like a hollow victory compared to the loss suffered, but the court system is purposely set up to allow us to work out our differences with other parties in a civil, organized way.

The insurance industry would like to paint everyone who files a lawsuit as a money grubber. That's ridiculous and it's shameful. People shouldn't be made to feel guilty for pursuing legitimate claims, especially when a person was killed as the result of negligent conduct. Family members deserve to be compensated for the mental anguish and loss of financial support they experience due to the wrongful death of a loved one. You have nothing to be ashamed of when you look out for the best interests of yourself and your family.

The Shocking Truth About Wrongful Death - Part 10

ccrosbie@chescrosbie.nf.net (Blog Author)32534 — Mon, 02 Aug 2010 08:00:00 EST

Changes to the Wrongful Death Laws: Amount of Awards

Our legislature changed the wrongful death laws in 2010 to provide for compensation for loss of care, guidance and companionship. A case decided in New Brunswick by the Federal Court of Canada illustrates the benefit of the new law.

Federal legislation, like Newfoundland and Labrador legislation now, permits family member claims for loss of care, guidance and companionship in wrongful death cases. The case of Wilcox v. Miss Megan (The), decided in 2008, helps to understand these awards. The decedent had been working on board a fishing vessel when it foundered and he was drowned. He was 63 years old at the date of death, and was a husband, father, and brother of two siblings. The awards for loss of guidance, care and companionship made by the Federal Court were:

- wife............................................................. $75,000

- disabled daughter......................................... 75,000

- adult daughter.............................................. 25,000

- adult son....................................................... 25,000

- brother.......................................................... 15,000

- sister.............................................................. 15,000

Total............................................................ $230,000

So you see that these new awards can be substantial. But remember that courts assess intangible, non-pecuniary losses such as loss of care, guidance and companionship, by looking at the nature of the relationships involved in the case, on a customized basis. No two cases are exactly the same. And remember as well, that courts in our province are conservative.

Although court assessments are customized to the case, conventional awards and guidelines do emerge. For example, in an Ontario case involving immigrant family members who were very close, the Court of Appeal assessed the value of a deceased 14-year-old's close relationship with his sister at $25,000. The loss of relationship suffered by the boy's parents was assessed by a jury at trial at $100,000 to each parent. Although the Court of Appeal felt this to be on the high side, it was not so high as to justify interference. But remember that an award of $100,000 to a relationship claimant is thought by many to be the rough upper limit to awards of this kind. It is the exceptional case.

In 2002, the Alberta legislature set the amount payable for grief and loss of guidance, care and companionship at $45,000 for each child on wrongful death of a parent, and $75,000 on wrongful death of a spouse. These are legislated, defined amounts and the awards are automatic and without any court assessment needed. Perhaps these amounts represent a rough consensus of amounts which Canadian society considers to be reasonable compensation for intangible, non-pecuniary losses which cannot be measured in money terms. The spousal compensation under the Alberta legislation happens to be the same as was awarded on a case-by-case approach in the Wilcox case in New Brunswick I discussed above. Saskatchewan and Manitoba have legislated awards for amounts payable for loss of guidance, care and companionship which are lower and, as I said before, our courts are conservative and the cases I have just discussed involve best case scenarios. But the important point is there is potential for significant awards - no longer must lawyers tell grieving loved ones that a legal claim makes no sense because their child or their elderly parent was "worth nothing" in the eyes of the law.

The Shocking Truth About Wrongful Death - Part 9

ccrosbie@chescrosbie.nf.net (Blog Author)32533 — Mon, 26 Jul 2010 08:00:00 EST

Damages Available to Beneficiaries

Though it is little consolation to people who have lost a loved one, the way our court system compensates the beneficiaries of a decedent is by awarding money. Damages - the term used to refer to the various reasons for which financial compensation can be awarded - are available to the estate for the losses of the decedent and to the beneficiaries.

The estate of the decedent can be compensated for the funeral expenses of the deceased, and for pecuniary losses such as loss of earning capacity. Pecuniary losses can be accurately measured in money terms; non-pecuniary losses such as pain and suffering are intangible and cannot be measured in money terms. Under our laws, the estate cannot claim for the pain and suffering the deceased experienced as a result of the accident or wrongdoing. But with the recent amendment to the Fatal Accidents Act, close family members of the deceased can now claim for loss of care, guidance and companionship they have suffered. As I explained already, the legislature has reformed the law as a result of the Breast Cancer Testing case in which I was involved.

Under Newfoundland and Labrador law, the following damages are available to the beneficiaries:

Out-of-pocket expenses - These are expenses caused by the injury and death and include the reasonable costs of funeral and burial.

Loss of support - This refers to the lost earning capacity of the decedent had he or she not died. The factors taken into consideration for loss of support would be the salary at the time of the decedent's death as well as the amount of money the decedent reasonably could have been expected to earn in the future had the death not occurred. Charts called "life tables" are used to calculate how long the decedent would have been expected to live based on such factors as age at the time of death, gender, and race.

Loss of services - Damages for loss of services are available to beneficiaries. It's a sort of vague claim, but essentially the law allows beneficiaries to collect compensation for services the decedent provided the beneficiaries. For example, assume Betty was killed as the result of someone's negligence. If Betty provided daycare for her daughter Leslie's children, Leslie could seek compensation for the money it cost her to secure daycare. That's not to say that the estate must show all the claimed lost services are attached to a specific dollar amount. The judge can determine a dollar figure for each lost service.

Loss of society and mental anguish - Under this category, beneficiaries can seek financial compensation for such things as grief and the loss of companionship, care, assistance, protection, advice, guidance, and education provided by the decedent. Obviously, it is difficult to put a dollar figure on these types of damages because they're not easily quantifiable. For instance, you can't look in a book to find a figure that would fairly compensate a wife deprived of decades of a future with her deceased husband. That's the job of your lawyer - to place a dollar amount on the loss of a decedent's society and to justify that amount with a reasoned argument to a judge. Though it's not readily quantifiable, it's certainly a huge and legitimate loss to the beneficiaries - a loss for which modern systems of justice agree they ought to be compensated. The problem was that no court in Newfoundland and Labrador had said the law requires that these types of losses be compensated. Now the legislature has reformed the law. In the meantime, there is room to make these claims in wrongful death cases before 2010, even though not recognized by our statute law, and settle them on a compromise basis.

The changes to the law of wrongful death made by the legislature in 2010 deserve more explanation. That's what we'll look at in the next section.

The Shocking Truth About Wrongful Death - Part 8

ccrosbie@chescrosbie.nf.net (Blog Author)32532 — Mon, 19 Jul 2010 08:00:00 EST

Relatives Are Beneficiaries

Under the law, wrongful death suits are brought in the name of the executor of the decedent's estate in the name of various beneficiaries. A beneficiary is someone who is entitled to financial compensation should the case be proven.

In Newfoundland and Labrador, the beneficiaries are relatives of the decedents, such as the decedent's surviving spouse, children, parents, and siblings.

The court determines how a settlement or award is to be distributed among the potential beneficiaries based on the relationship to the decedent and the degree of loss to the beneficiary. For instance, if the decedent was the breadwinner in the family, the surviving spouse and children would be given more money than a sibling of the decedent.

If all the beneficiaries are at the same level in the law's eyes - for instance a group of siblings - they can decide among themselves how to divide up the money and ask the court for approval.

Beneficiaries under 19 years old are treated differently by the court in order to protect their interests. The court typically orders that the money be held in trust by the Public Trustee until the beneficiary turns 19.

The Shocking Truth About Wrongful Death - Part 7

ccrosbie@chescrosbie.nf.net (Blog Author)32531 — Mon, 12 Jul 2010 08:00:00 EST

Time to File Lawsuit is Limited

Generally, the statute of limitations in a wrongful death claim is two years, which means if a lawsuit has to be filed, it must be filed within two years of the decedent's death. It's extremely important to keep track of this date. If the two-year period lapses, a claim may be barred forever. The idea behind a statute of limitations is that crucial evidence that someone needs to defend such a lawsuit could be lost or destroyed if too much time passes. However, the two-year period may not be absolute and you should talk to a lawyer on the specifics of your case. We will give you initial advice free of charge.

The Shocking Truth About Wrongful Death - Part 6

ccrosbie@chescrosbie.nf.net (Blog Author)32530 — Mon, 05 Jul 2010 08:00:00 EST

Wrongful Death Claims Controlled by Statute

Wrongful death claims are mostly controlled by the Fatal Accidents Act, RSNL 1990, c. F-6. The law allows the executor or administrator of the deceased person's estate to bring a claim against the person or entity whose negligent conduct or wrongful act caused the decedent's death. This law was brought in during the 19^th century and was aimed at allowing widows and orphans to seek financial redress for the loss of a family breadwinner.

A case can be brought if the decedent could have maintained a claim for negligence or wrongful conduct had the death not occurred. That means the executor would need to show that the other party acted in a negligent or wrongful way, and the wrongful conduct caused the death. Wrongful death cases can be brought for negligent acts resulting in motor vehicle accidents and medical malpractice, or for criminal acts like murder and manslaughter. Of course it is necessary for there to be assets available - such as insurance - to pay a settlement or judgment, in order for a lawsuit to be worthwhile.

To prove these cases in a negligence context, the executor must show that the defendant owed a duty of care to the decedent; that the duty of care was breached; that the breach caused the decedent's injuries and death; and that the decedent's estate and beneficiaries suffered damages.

The case must be proven by a standard called "preponderance of the evidence", or "balance of probabilities", which roughly means that the evidence must tilt more in the favor of the executor than the defendant. Lawyers often explain the standard by telling jurors they just need to prove their case by 50 percent or more, which is well short of the reasonable doubt standard that we've all seen in television dramas depicting criminal trials.

The Shocking Truth About Wrongful Death - Part 5

ccrosbie@chescrosbie.nf.net (Blog Author)32529 — Mon, 28 Jun 2010 08:00:00 EST

This Book Does Not Offer Legal Advice

I'm happy that you've taken time to read my book. You should note, however, that ordering or reading my book does not create a solicitor-client relationship. We also aren't offering a legal opinion in these pages because every case is different based on the facts of the situation. If you want our legal opinion, please contact us at 709-579-4000 or toll free 888-579-3262. We'll be happy to set up a meeting with you at no charge.

The Shocking Truth About Wrongful Death - Part 4

ccrosbie@chescrosbie.nf.net (Blog Author)32528 — Mon, 21 Jun 2010 08:00:00 EST

We Can Help You

Our office has been representing families who have suffered the tragic loss of a loved one since 1991. We take a comprehensive approach to the wrongful death cases we handle. We believe that our job is to:

Provide family members with all their legal options along with our analysis about how the case should be approached.
Develop strategies to maximize the recovery for grieving family members who may find themselves struggling financially.
Take charge of the situation and solve problems as quickly and easily as possible.
Help connect families with the resources they'll need to cope with their loss.

Over the years we have represented families in wrongful death cases arising from among the following situations:

Car accidents
Truck accidents
Motorcycle accidents
Medical malpractice
Aviation crashes
Prescription drug reactions
Shootings
Assaults.

Federal Crown Offers Unequal Treatment to Aboriginals in Newfoundland and Labrador Residential Schools Class Action

ccrosbie@chescrosbie.nf.net (Blog Author)33575 — Wed, 16 Jun 2010 08:00:00 EST

Last week, Justice Robert Fowler of the Supreme Court of Newfoundland and Labrador, granted an order allowing five residential school class actions to proceed by being certified as class actions. Given that courts in nine other provinces and territories have given certification orders in similar actions based on similar issues, it might have been odd if the Newfoundland and Labrador court had not certified. However, after some preliminary battling and a year on reserve while the judge worked hard on writing up the decision, finally our clients have certification and can proceed as a class.

In 2007, the federal government agreed to a $2 billion compensation package for aboriginal persons who were forced to attend residential schools here in Canada, but not including Newfoundland and Labrador. And when the Prime Minister apologized formally to residential school survivors, Newfoundland and Labrador aboriginal residents were not included either.

The reason for this unequal treatment of Newfoundland and Labrador aboriginal persons rests in the fact that when Newfoundland and Labrador entered Confederation in 1949, the schools administered by the Moravians and by the Grenfell Association were already practicing the abuses complained of. The federal government seems to have the idea that it had no responsibility for these abuses even though they may have continued up to the late 70s. Mr. Justice Fowler found that it is certainly arguable that Canada did have such responsibilities, and that was all he had to find in order to certify. But Newfoundlanders and Labradorians may not be surprised to see that once again, our residents are being offered unequal treatment.

The Indian Residential Schools Settlement Agreement which applies elsewhere in Canada includes an initial payout for each person who attended a residential school of $10,000 in money damages, plus $3,000 per year for each year of attendance. Further amounts are available depending on proof of injuries, and teams of adjudicators are available to deal with claims for the increased amounts. About 90,000 people are eligible for compensation, of which about 12,000 have so far decided to claim for the larger amounts through adjudication of their money damages claims.

I did an interview with CBC explaining the ins and outs of the Newfoundland and Labrador class actions in more detail.

The Shocking Truth About Wrongful Death - Part 3

ccrosbie@chescrosbie.nf.net (Blog Author)32527 — Mon, 14 Jun 2010 08:00:00 EST

The Newfoundland and Labrador Wrongful Death Book

A family member's passing causes tremendous pain, but the emotional and financial fallout of a death caused by another's negligence can be devastating. I hope you haven't picked up this book because you've lost a loved one through traumatic circumstances. If that is the case, I'm terribly sorry for your loss.

This book provides an overview of wrongful death cases that allows people having to navigate these difficult waters to make informed and educated decisions before ever talking to a lawyer.

Wrongful death cases are inherently complicated, involving everything from probate matters to negligence issues. These types of cases are often made more difficult because insurance companies representing the wrongdoer often try to avoid liability or offer unfair or inadequate compensation. Most people have never been through this process and, understandably, don't understand what they're up against when they decide to pursue a wrongful death claim.

Those who haven't been involved in a wrongful death case usually expect that an insurance company will compensate them for the loss of their loved one. But for many the nightmare is just beginning. The pain caused by the accident can be compounded by the unfair treatment the victim receives from some insurance companies that have one objective - closing the file for as little money as possible without fair compensation for the injured.

Insurance companies have teams of adjusters and lawyers that they can put to work on defending such claims. They're professionals - they handle claims involving death and serious injuries all day and every day. Naturally, they have an advantage over most people who are encountering these issues for the first time. In our office, we believe knowledge is power. We think this book will be helpful in leveling the playing field between insurance companies and those who have lost loved ones as a result of someone's wrongful acts. If you have questions, the lawyers in our office would be happy to answer them. Just call 709-579-4000 or toll free 888-579-3262. You can also visit our website at www.ChesCrosbie.com.

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

ccrosbie@chescrosbie.nf.net (Blog Author)33225 — Thu, 10 Jun 2010 08:00:00 EST

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.

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

ccrosbie@chescrosbie.nf.net (Blog Author)33131 — Wed, 09 Jun 2010 08:00:00 EST

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.

The Shocking Truth About Wrongful Death - Part 2

ccrosbie@chescrosbie.nf.net (Blog Author)32526 — Mon, 07 Jun 2010 08:00:00 EST

Why Should I Listen To You?

When someone dies because of the fault or negligence of another, it's called wrongful death.

I wrote this book so that you could have good, solid information about wrongful death lawsuits, hiring a lawyer or dealing with an insurance company. Forget the hype. This book is not about hype. It's about the tough, hard fought world of wrongful death and what you can do to improve your odds of winning if you have a legitimate case.

If the death of a loved one has occurred due to the fault of another, whether by motor vehicle accident, medical malpractice, or any other accident including injury on premises - I can help.

My name is Ches Crosbie and I have been representing individuals against insurance companies since 1983. I limit my practice to accident and injury cases, and helping people wronged by big corporations and big government; so, if you want a divorce or a will, or have a traffic ticket, I can't help you.

You may know me from my involvement in the Breast Cancer Testing Class Action against Eastern Health, and the Cameron Inquiry. I am one of the few plaintiff lawyers in Atlantic Canada recommended by peer review publications as having a recognized competence in wrongful death and personal injury. I was selected by the peer review publication Best Lawyers as Personal Injury Lawyer of the Year for 2009. I am frequently invited to speak to other lawyers on a variety of topics at continuing legal education programs around the country. I have written numerous articles for lawyers and consumers. My firm's popular website has a lot of useful consumer articles and links on a variety of subjects. Visit www.ChesCrosbie.com if you want to continue your research on wrongful death claims, class actions, and accident and injury claims.

The personal injury lawyers at my office and I have amassed many years of collective skill and experience in accident and injury law. Obviously, the longer you have been practicing a particular area of the law, the more you will know. We think experience matters.

We realize that a lawsuit may be the most important event going on in your life right now. Your case will be personally handled by one of our lawyers - not a non-lawyer paralegal.

We represent many people who have been injured by the fault or negligence of others. We also represent families of deceased loved ones in wrongful death cases - cases where the fault or negligence of others has caused or contributed to the death. While each case is different, and past results cannot be used to predict future success, we can tell you that we have been privileged to help our clients and their families recover tens of millions of dollars in settlements and judgments from the insurance companies. We did this by providing consumers with useful information, and our clients made an informed choice to ask us to help.

With this new book, we take our commitment to providing useful information to the consumer to a whole new level.

The Shocking Truth About Wrongful Death - Part 1

ccrosbie@chescrosbie.nf.net (Blog Author)32524 — Mon, 31 May 2010 08:00:00 EST

Why Did I Write This Book?

In the rest of Canada, the wrongful loss of the society and comfort of a loved one is compensated and has been for decades. As an educated lawyer, you know this.

In the rest of Canada, the pain and suffering of a victim of wrongdoing is compensated even though the victim dies. As an educated lawyer, you know this.

Donna's husband Darryl Howell still has faith in your commitment to fairness and justice. Others will wait and see.

The Supreme Court of Canada has condemned the wrongful laws that we still enforce, and it seems, Mr. Speaker, that we are really out of touch with the modern conceptions of fairness and justice.

Hear, hear!

Now finally, the laws have been reformed. As of 2010, the legislature passed the following clause into law as an amendment to the Fatal Accidents Act:

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

ccrosbie@chescrosbie.nf.net (Blog Author)31752 — Tue, 18 May 2010 08:00:00 EST

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

ccrosbie@chescrosbie.nf.net (Blog Author)31774 — Tue, 18 May 2010 08:00:00 EST

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.

Class Action Causes Reform of Wrongful Death Laws

ccrosbie@chescrosbie.nf.net (Blog Author)31599 — Fri, 14 May 2010 08:00:00 EST

The Government of Newfoundland and Labrador has introduced a bill to implement much needed reform in the wrongful death laws of the province. The need for reform became obvious to all in the course of the Breast Cancer Testing class action which reached a mediated settlement in October last year.

The amendment to the Fatal Accidents Act is aimed at allowing a court to make an award of damages which "may include an amount to compensate for the loss of care, guidance and companionship that a person for whose benefit the action is brought might reasonably have expected to receive from the deceased if the death had not occurred." In other words, the intent is to reform the common law or judge-made law, to allow courts to make awards for intangible losses of an emotional, pain and suffering nature to close family members of a person who becomes deceased through the fault of another.

These intangible losses are known as non-pecuniary losses, as distinct from pecuniary losses such as lost wages, which can be measured in money terms.

I call this the Donna Howell amendment. Donna Howell will be remembered by many as a courageous breast cancer survivor who succumbed to her disease a month before the mediated settlement in the Breast Cancer Testing class action. She was a compelling public spokesperson for many in the class. Her husband Darryl Howell served on the negotiating committee at the mediation. We were able to negotiate a settlement which treated all class members, whether living or deceased, on an equal footing in terms of damages awards, but this might not have been the outcome had we gone to court on the existing law. With this new bill, the unjust laws of wrongful death will be brought into step with modern conceptions of justice and loss.

But will the courts actually make non-pecuniary awards to the family members of the deceased? I am sure it is what the legislature intends. However courts are conservative, and I predict as a certainty that defence lawyers will argue that if the legislature had intended the new awards for loss of care, guidance and companionship to be non-pecuniary awards rather than awards for pecuniary losses, then the legislature would have said so. To remove any uncertainty, it would be a simple precaution for the government to add the words "non-pecuniary" before the word "loss". Surely the Donna Howell amendment deserves this much extra care.

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

ccrosbie@chescrosbie.nf.net (Blog Author)31285 — Mon, 10 May 2010 08:00:00 EST

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.

Atlantic Lotto Tries to Exhaust VLT Plaintiffs

ccrosbie@chescrosbie.nf.net (Blog Author)31121 — Thu, 06 May 2010 08:00:00 EST

In a recent blog I explained how Justice Dymond had thrown out an attempt by ALC to have the class action lawsuit thrown out prior to certification. He refused to "go down the rabbit hole" of endless pre-certification hearings.

Today we found out that ALC wants to seek permission from the Court of Appeal to appeal Justice Dymond's ruling. The very point of Justice Dymond's ruling was that the certification hearing should be the first order of business in a proposed class action lawsuit. Now ALC wants further delay so they can appeal that ruling.

But worse is to come - ALC is also proposing to issue a Third Party Notice against six manufacturers of VLT gaming machines. This will create more complexity in what is already a complex lawsuit, and is intended, in part, to create arguments that the claim is unsuitable for being certified as a class action. Any way you cut it, it creates the opportunity for plenty more delay and plenty more complexity. Delay, of course, is a defendant's friend, and the fact that all these extra steps and procedures cost money is just fine with the defendant. After all, they have plenty of it - money gained from all the wrongdoing we allege in the claim and are trying to get the right to challenge.

People say that class proceedings level the playing field between numerous injured plaintiffs and big, powerful and well financed defendants. They don't. Defendants with wrongfully gained money spend it lavishly on their lawyers and take advantage of every procedural right the legal system affords them. Representative plaintiffs have very little money, and lawyers who believe in the cause and are willing to risk a lot for the prospect of a fee down the road. A level playing field this is not, but it sure is better than no class actions at all.

Sometimes David can defeat Goliath, and when there are a lot of Davids, the chances of defeating Goliath get even better, but it is never an equal playing field.

Q.C. Stands for Quietly Competent Lawyer

ccrosbie@chescrosbie.nf.net (Blog Author)30953 — Mon, 03 May 2010 08:00:00 EST

The Queen's Counsel designation is a royal patent with a long and distinguished history, and nine new Queen's Counsel were inducted last week. Among these lawyers is my younger brother Michael Crosbie, Q.C. Should the present Queen pass away and be replaced as monarch by her son Charles, this designation will become K.C. for King's Counsel.

I have commented in an earlier piece that the honour would be strengthened by a set of written criteria for the grant of it. But I was present at Government House last Thursday, and present in Court Room 1 on Friday with Chief Justice Orsborn presiding, and no one who listened to his review of the inductees' qualifications, and indeed no one who knows the recipients themselves, could have any doubt but that they are indeed leaders of the Inner Bar and learned in the law.

The honorees are Pittman, Q.C., Lake, Q.C., Wells, Q.C., Rowe, Q.C., Crosbie, Q.C., Aylward, Q.C., Byrne, Q.C., Jewer-Mills, Q.C., and Maher, Q.C.

As the Chief Justice stated, the receipt by counsel of letters patent from the Queen's representative reflects the Sovereign's judgment that the counsel in question has the necessary experience, seniority, and professional skill to advise and to represent the Sovereign. Because of this recognition of eminence, he formally invited each Queen's Counsel to sit at and plead their cases from the Inner Bar, entitling them to sit on the front bench seating open only to Queen's Counsel.

Chief Justice Orsborn's comments about my learned and feisty brother are well rounded and true, as they were with all the other recipients. I proudly reprint them here:

Crosbie, Q.C. is a partner in the St. John's office of the Atlantic Canadian law firm of McInnes Cooper. He was admitted to the Bar in 1983. Since then he has been a bar admission course instructor in Civil Procedure - I believe for over 15 years - and he has been a frequent presenter at Canadian Property Tax Association conferences. He is a past president and honorary life member of Personal Credit Counselling Service.

Crosbie, Q.C. was probably preordained for a career in the law. The Crosbie name is synonymous with the law in this province and in this city. His Honour told us yesterday that the Crosbie family has now "degenerated to the point" (his words) where there are now eleven lawyers or lawyers-to-be in the family.

But preordination won't do it for you. Crosbie, Q.C. stands here this morning based on his own reputation as a person and as an excellent counsel.

This is what his partners and friends say of him as a man - "He is a man of integrity, high professionalism, tenacity, loyalty to his clients and colleagues, and humour. He is a wonderful family man, a gentleman and a very good friend." We can only hope that the same could be said for all of us.

Within the legal profession, Crosbie, Q.C. is viewed as being like a "dog with a bone". He is a passionate believer in fairness and equity and will leave no stone unturned in this pursuit of achieving what he feels is a just result for his client.

But despite his passionate beliefs, Crosbie, Q.C. also possesses that quality which is a hallmark of every good counsel. He is objective. I have had the opportunity to hear a number of matters in which Crosbie, Q.C. was counsel. Some he won - some he lost. But I remember clearly one occasion in particular when he rose to begin his argument. He said - "You'll see from my brief that I have four points in my argument." He paused for a moment and went on. "The first point is not very good so I won't say anything more about that."

That objectivity and honesty was refreshing and much appreciated. Indeed, as a matter of advocacy, it helped to reinforce the strength of his remaining argument.

I look forward to your future appearances, Crosbie, Q.C., but now from the front bench. Welcome to the Inner Bar.

Queen's Counsel appointments in this province could benefit from elaboration of written standards for selection, of that there is no doubt. However this year's selection of appointees, my brother among them, meets the highest standard that anyone could impose. All are a credit to their profession and wonderfully contributing members to their community: Quietly Competent lawyers. Congratulations all!

Atlantic Lotto Fails in Attempt to Kill VLT Class Action

ccrosbie@chescrosbie.nf.net (Blog Author)30445 — Fri, 23 Apr 2010 08:00:00 EST

Atlantic Lotto Corporation has failed in an attempt to get the court to hear an application to strike this class action lawsuit, before the hearing of the certification application. The record for the certification application has already been filed by the Plaintiffs.

Justice Dymond reserved on arguments for several weeks, and today handed down a decision in which he refused to go "into the rabbit hole" of motions preliminary to certification. The key point with the judge is that he did not consider that the application had the potential to end the lawsuit.

As Judge Dymond colorfully said:

[20] An application which cripples the action, hemorrhages the lawsuit or has the result of putting it on life support, may, in rare circumstances, be allowed, even if it does not kill the lawsuit. This is not the case here.

The plaintiff class, victims of the video lottery terminal deceit, will finally get to argue their case to be certified as a class proceeding. A long time in coming.

Don't Rest on Your Rights

ccrosbie@chescrosbie.nf.net (Blog Author)30207 — Tue, 20 Apr 2010 08:00:00 EST

If you think you have a case, don't dither - you can lose your right of action by passage of time, called "limitations". Here is an example taken from advice I recently had to give:

The original error was almost 7 years ago. Discoverability would not seem to apply - "the doctor even suggested I sue." The kind and extent of injury was known by December 2007, over 2 years ago. There is no reason I can see for the normal two year limitation not to apply, even if it ran from December 2007, you would be out of time. I wish I could give you a more favorable opinion, since it looks like otherwise you had a worthwhile case.

Money Mart Settlement

ccrosbie@chescrosbie.nf.net (Blog Author)29670 — Thu, 08 Apr 2010 08:00:00 EST

These Money Mart guys are tough customers. We have patterned the settlement in Atlantic Canada on the Ontario settlement outlined by Justice Perrell in Smith, but the numbers involved in Atlantic Canada are not nearly as large.

The biggest legal problem we faced is that customers of Money Mart sign arbitration agreements when they deal with Money Mart. The question was open as to whether the courts here would enforce the arbitration clause and prevent the class action from proceeding. The plaintiffs and their lawyers did not have this problem in Ontario. Consequently our settlement contains a major concession based on the risk of losing the arbitration issue. If we lost on the issue, then class members would get nothing at all.

Money Mart has a lot of money to protect and they know how to protect it. They hire the most talented and most expensive lawyers that money can buy. This is true in Canada, and it is true in the United States where they have corporate headquarters. When we negotiated with their lawyers in Philadelphia last summer, Money Mart was represented by the former chairman of a 600 lawyer firm in Philadelphia. Believe me, these guys are litigious.

The benefit of this lawsuit is that class members will get something of value now, rather than the possibility of something of greater value years from now. I think that is what our clients want.

The components of the settlement are outlined in our press release, and in news reports, and the full details are available in the Settlement Agreement.

We Get Questions

ccrosbie@chescrosbie.nf.net (Blog Author)28905 — Mon, 29 Mar 2010 08:00:00 EST

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.

Contingency Fees: Keys to the Court House

ccrosbie@chescrosbie.nf.net (Blog Author)28903 — Fri, 26 Mar 2010 08:00:00 EST

Contingency fees offer personal injury clients a valuable advantage. They enable anyone who suffers an injury to bring a lawsuit without having the money up front to pay a lawyer. With contingency fees, lawyers agree to accept a portion of the recovery and agree that if the client does not win and there is no recovery, there will be no fee.

Why does the contingent-fee system serve clients and work so well? Contingency fees ...
- give everyone--regardless of race, color, religion, national origina, gender, marital status, age, or other factors--an equal chance to have their day in court, no matter what their financial resources may be. Individuals with limited assets can use the richest, most powerful corporations, which often have unlimited money for legal defence fees.
- promote efficiency and discourage frivolous lawsuits by motivating lawyers to make sure that the cases they accept have legitimacy and merit.
- are fair, since there is no fee charged to the client unless he or she wins.
- discourage wrongdoers from continuing inappropriate behaviors.

Optimism for Reforms at Eastern Health

ccrosbie@chescrosbie.nf.net (Blog Author)28971 — Fri, 26 Mar 2010 08:00:00 EST

I was class counsel for the members of the Breast Cancer Testing class action, and sat through the Cameron Inquiry.

On Wednesday, there was a news conference to report on progress in implementing the Cameron Recommendations, so I attended.

Many of us who sat through the Inquiry hearings were pessimistic about the prospects for change. We saw an unrepentant old guard of health bureaucrats still in power at Eastern Health. They expected to go back to business as usual, once the Inquiry was over.

But now I am an optimist. The minister, Jerome Kennedy, has guts and drive, and is not easily bamboozled. CEO Vickie Kaminski seems to have the needed substance. And the cyclosporine incident, tragic for the victims, has provided a catalyst for Kaminski to break up the old gangs of cronies who stood in the way of change.

Now the next step is to make sure that all those pathologists on sick leave have a valid note from their doctors.

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

ccrosbie@chescrosbie.nf.net (Blog Author)28901 — Thu, 25 Mar 2010 08:00:00 EST

If you have been involved in a motor vehicle accident (MVA) the most common injury sustained is whiplash.

What is whiplash?
Whiplash is the term used when there is a rapid acceleration and deceleration of the neck and upper back. When you are rear-ended your head is forced into full extension and then comes forward into a fully flexed position. As the discs, joints and soft tissues are forced back and forward they undergo significant stress and injury can occur. Whiplash injuries vary from very mild to severe and can give rise to many symptoms.

What should you do if you sustain whiplash?
Initially you may not have any pain but a few hours later or even the next day, you may find that your neck is sore and stiff. At this point it is a good idea to see your family physician and ask for a referral to a physiotherapist or chiropractor. You should also contact your insurance company and ask them about your accident benefits package ("Section B"). This will pay for needed therapy, among other benefits.

Class Action Lawyer Criticizes "Newfie Joke" Tobacco Ruling

ccrosbie@chescrosbie.nf.net (Blog Author)28908 — Thu, 25 Mar 2010 08:00:00 EST

"Tobacco Lawsuit Dismissed": Ches Crosbie interviewed by Ramona Deering on CBC Radio Crosstalk, March 24, 2010.

Ms. Deering: I was mentioning a few minutes ago that the Newfoundland and Labrador Court of Appeal has ruled that a class action lawsuit against Imperial Tobacco cannot go ahead. Ches Crosbie is very unhappy about that decision and, if all holds, I believe he is with us on the line now. Mr. Crosbie, can you hear me?

Crosbie, QC: Yes I can. Look, you know, you're probably always unhappy when you're on the losing side, but there are a few aspects to this that make it unusual.

Ms. Deering: What was the premise of the suit?

Crosbie, QC: The premise of the suit was it was an attempt to get certified because if you're suing big tobacco, in this case Imperial Tobacco, you're not going to do it by yourself, so either it's a class action or forget about it.

Ms. Deering: And why sue Imperial Tobacco?

Crosbie, QC: Well the theory of this was not focusing on personal injuries caused by smoking, such as lung cancer or heart disease. It was focused rather on what we allege to be deceptions around the marketing of light and mild cigarette brands which were presented to the public in such a fashion as to lead them to believe that they were a more healthful alternative to regular cigarettes, which they were not. And that was a deception. So, it was under a consumer protection statute and the remedy would have been to seek a disgorgement of income or profits earned from that deception.

Ms. Deering: And how many people in Newfoundland and Labrador had signed on to that class action suit?

Crosbie, QC: We had several dozen people who inquired and registered with us, but it wasn't the kind of situation where, you know, we were looking for people to say yes I'd like to support the suit. If we got certified then, you know, the issue would come up with people wanting to know how they might participate in any overall global settlement. But we were a long way down, were a long way away from that.

Ms. Deering: But now the Newfoundland and Labrador Court of Appeal has said that you cannot pursue the class action lawsuit. Why not?

Crosbie, QC: Well it came down to a matter of interpretation of what we've had since the late 70s as consumer protection statute, it's called the Trade Practices Act, many other provinces around that time adopted similar acts. What's happened is, the Court of Appeal has just said or confirmed that our Trade Practices Act, which is supposed to protect consumers, requires that you must be in a direct relationship, what lawyers call privity, with the person that you want to use the Act to assist you to sue, and that includes manufacturers. So the bottom line is our consumer protection legislation does not permit Newfoundlanders to sue manufacturers because they're not in a privity relationship with manufacturers. Now why that would be the case, why the legislature would bring in a consumer protection statute aimed at getting rid of impediments in the old common law, impediments to consumers exercising their rights easily and with some chance of success against manufacturers, was not explained in the decision.

Ms. Deering: Is this class action suit able to go ahead in other provinces?

Crosbie, QC: Yes, there's a similar action against Imperial Tobacco taking place in British Columbia, it has not been a problem there. But I can tell you that to the best of my knowledge this problem, this requirement of privity, this situation whereby the consumer protection laws don't allow consumers to sue manufacturers, that does not exist to the very best of my knowledge in any other province in the country. So, you know, I think you could fairly say that it leaves us in something of a legal backwater.

Ms. Deering: And so what are the implications beyond this particular case?

Crosbie, QC: Well there's a huge hole in the network of laws that are intended to give consumers protection in the exercise of their rights against unscrupulous marketers or deceptive marketers or manufacturers of products which deliver less than they promise or which are marketed in a deceptive fashion.

Ms. Deering: Mr. Crosbie you've been quoted as saying that the Court decision is like a Newfie joke. Why say that?

Crosbie, QC: Well you know, it's so frankly strange when you look at the legal scenary in the rest of the country that we would have in our legislation intended to protect consumers, preserved the very doctrine that all of these Acts have been thought to be aimed mainly at getting rid of, namely this privity doctrine. When you can't sue manufacturers for deception under a consumer protection statute, well that's a very big hole in the statute, and when you're the only province where that problem arises, then I guess you could say that's a bit of a Newfie joke.

Ms. Deering: What do you do now?

Crosbie, QC: Well, you know, there is an amendment to this Act and they renamed it the Consumer Protection Act last year, that's our local legislature, they did tinker around with some of the wording. However I am not at all confident that another court interpreting this new wording in the Consumer Protection Act will not come to the same conclusion. What you're supposed to do, and as far as I'm concerned, and it was a submission in the Court of Appeal, the law says that it is mandatory and obligatory for a court not simply to look at the text of an Act and say, ah it's clear to me it means this or it means that, they are supposed to take a purposive approach and a contextual approach, ask what was the Act intended, what evil was it intended to remedy, and what was the context in which it came into being, what were the problems that legislatures were trying to deal with at the time. This interpretation, which did not follow that mandatory methodology of purposive and contextual interpretation that I just mentioned, this decision has left us with a huge hole in our consumer protection laws.

Ms. Deering: Mr. Crosbie I want to thank you for your time this afternoon.

Crosbie, QC: Yeah, my pleasure. Maybe the legislature will take notice and do something to fix it. It's a bit late to help the lawsuit against Imperial Tobacco, which is too bad.

Ms. Deering: Ches Crosbie is a lawyer in St. John's.

Why Most Medical Malpractice Victims Never Recover a Dime - Part 20

ccrosbie@chescrosbie.nf.net (Blog Author)28039 — Wed, 24 Mar 2010 08:00:00 EST

Surviving Your Health Care

You can do many things to prevent becoming a malpractice victim in the first place. Here are some protective measures to think about.

1. Volume matters. The more of a particular type of surgery the institution and the surgeon does, the more likely the surgery will have a good outcome. Ask your surgeon how many surgeries he or she does each year, and how many of them are the particular procedure intended for you. If you have doubts, ask for a referral to a surgeon with a high volume practice in your particular surgery. Don't be embarrassed to have this discussion.
2. Ask your surgeon whether your hospital is "state of the art" or follows "best practices" for surgical site infection prevention, and hand hygiene compliance. Surgical site infections are a huge problem and 50% of them are preventable. Surgeons who get enough questions like this will put pressure on administration to do better. And your surgeon may pay more attention to protecting you.
3. Check RateMDs.com. Most doctors practicing in Newfoundland and Labrador are reviewed by this site. Take the reviews with a grain of salt, because some are from people with an axe to grind, and some are unfair. But this is a useful source of information to look at in your quest for the safe healthcare to which you are entitled.
4. If you have an important test, never assume that everything is fine because if not you would have heard from the doctor. Always follow up and confirm the results after a reasonable period. Doctors are very busy and only human. The purpose of a test is to take timely action if it shows a problem. Don't let your test results fall through the cracks.
5. If you have a prescription, and you know it's for you and that the drug is the one your doctor intends, take it.
6. In the hospital, although the prescription-writing and dispensing functions will take place outside your view, you will see the medication when it's brought to you. Before you take it, ask the nurse what it is and what it's for - even if you think you know.
7. When you go to the doctor's office - particularly a specialist who is not your regular physician - or to the hospital, take a list of all of your current medications, including any over-the-counter medications and herbal remedies or dietary supplements that you use regularly.
8. During an office visit, most doctors hand you a written prescription when you leave. Check it before you walk out the door. If you can't understand it, the pharmacist might not either.
9. Introduce yourself (and reintroduce yourself) to anyone taking care of you during your hospital stay.
10. Ask questions politely and persist until they're answered. If you are transported to a different location, ask the nurse if your chart will go with you and make sure your new caregivers are aware of your allergies, medications, and the condition for which you are being treated.
11. It helps to have visitors. This not only takes your mind off your illness, at least briefly, but it shows caregivers that other people are aware of your case, are interested in your wellbeing, and are going to check up on you.
12. Healthcare providers or anyone administering injections should never reuse a needle or syringe either from one patient to another or to withdraw medicine from a vial. Both needle and syringe are to be thrown away once they have been used. It is not safe just to change the needle and reuse the syringe.
13. When nearing discharge or transfer to a new facility, get a list of your current medications, and make sure the caregivers at your new location know about them.

Remember that you are the reason the hospital exists. Your wellbeing is, and should be, everyone's highest concern. But hospitals, frankly, are risky places, and no matter what precautions a patient and their family takes, the medical malpractice monster can strike.

Why Most Medical Malpractice Victims Never Recover a Dime - Part 19

ccrosbie@chescrosbie.nf.net (Blog Author)28038 — Mon, 22 Mar 2010 08:00:00 EST

Well, Are There Any Cases Left?

Yes, there are, and that's just the point. We are a small firm and accept a limited number of cases each year. These include not only medical malpractice cases but serious car, truck, and motorcycle accident cases, slip and fall cases, dog bite cases, child injury cases, wrongful death, and cases involving someone else's negligent conduct. Typical injuries of our clients include death, traumatic brain injuries, birth asphyxia and brachial plexus injuries, spinal cord injuries, bone fractures, burn injuries, poisonings, scarring, drowning, neck and back, and psychological injuries. Again, the safe thing is to give us a call or fill out the form on our website and get our initial confidential advice at no charge.

We Concentrate Our Efforts On Increasing the Value of Good Cases-Not on Filing and Chasing Cases Without Proven Merit

We represent many clients with valid claims. When we devote our time and resources to representing only legitimate claimants with good claims, we are able to do our best work - getting "bogged down" in cases which have not been already investigated and proven to have merit, is not good for clients with legitimate claims. It's not good for anyone. We put our efforts into identifying claims for merit and increasing the value of good meritorious claims.

Why Most Medical Malpractice Victims Never Recover a Dime - Part 19

ccrosbie@chescrosbie.nf.net (Blog Author)28037 — Fri, 19 Mar 2010 08:00:00 EST

If you are not satisfied with a physician's or hospital's care, you should be aware that you can report what happened to the College of Physicians and Surgeons of Newfoundland and Labrador and if a hospital was involved, to the hospital authority.

It costs nothing to institute a complaint, and they can be lodged by patients themselves or by a person on behalf of the patient (spouse, parent, child, friend, lawyer, physician, etc.). Complaints to the College must be in writing and must include the following information:

Patient's name
Patient's mailing address
Patient's telephone number
Patient's MCP number
Physician's full name; and,
Physician's address.

If you are lodging a complaint on behalf of the patient, then your full name, mailing address and telephone number is required in addition to that of the patient. You will also have to state your relationship to the patient (spouse, etc.). The College also requires consent for the release of the patient's medical information to the College. This consent must be from the patients themselves (or the patient's legal representative).

If the physician has hospital privileges, you can also complain to the Vice President Medical Affairs of the appropriate regional health authority. Contact information for these officials is available at our website, at the hospital website, or by telephoning the hospital.

If you are computer savvy, there is a wealth of information online as to how the complain process works. Just go to http://www.nmb.ca/Complaints.asp.

Helpful Tips:

Be concise with your complaint. Avoid rambling and including unnecessary or irrelevant information.
Be professional. Avoid personal attacks or demeaning comments.
Type your complaint letter if you can.
Include copies of any medical records if you have them.

Many people we talk to about a potential malpractice case tell us: "I don't want this to happen to anyone else." If you feel this way, you owe it to yourself and the community to make your complaint heard. Perhaps your situation was simply a bad result that no reasonable doctor or hospital could anticipate. Or, you might not be the first person to make a complaint against the doctor or hospital involved, and your complaint may be the one where action is finally taken to make our medical care safer.

Remember: If nobody complains, this will guarantee that nothing will change!

Aging Population Requires New Safety Initiatives

ccrosbie@chescrosbie.nf.net (Blog Author)28562 — Thu, 18 Mar 2010 08:00:00 EST

Accident and injury prevention on our roads would be promoted by graduated curtailment of the driver's license of seniors as they age. This to be based on a program of driver testing. And if we are going to curtail automobile mobility, our communities have to be designed around other options for senior drivers. Politicians and urban planners take note!

All this flows from an article in the Canadian Medical Association Journal. The CBC interviewed the editor on March 17, 2010 and it speaks to these road safety issues so well I reproduce it.

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.

Why Most Medical Malpractice Victims Never Recover a Dime - Part 18

ccrosbie@chescrosbie.nf.net (Blog Author)28036 — Wed, 17 Mar 2010 08:00:00 EST

What Cases Do We Not Accept?

Due to the very high volume of calls and referrals from other lawyers that we receive, we have found that the only way to provide personal service is to decline those cases that do not meet our strict acceptance criteria. Our practice focuses on the most serious cases of medical malpractice. Therefore, we generally do not accept the following types of cases:

§ Cases with no clear objective evidence of significant injury which is directly caused by malpractice. These cases are expensive and time- consuming. The last thing you want to do is to "win" your case, only to have the lawyer fees and expenses be larger than your personal recovery. I would like to represent everyone who needs a good lawyer, but we cannot.
§ Cases with significant pre-existing injury in the same body part. If you have had three back surgeries in the past and are now claiming that your most recent surgeon is the cause of your chronic back pain, the chances of a court awarding you a substantial amount of money in your claim is just about zero. Again, I feel that it is not worth the risk to the client to pursue these cases.
§ Cases where the statute of limitations will soon run out. We like to have at least four months to adequately investigate and evaluate your claim. Because of the complexity of these cases and the extensive review process, we require the lead time.
§ If your case has already been filed, we will not represent you except in extraordinary circumstances. We like to do things our way.

More Legal Changes to Improve Pedestrian Safety

ccrosbie@chescrosbie.nf.net (Blog Author)28493 — Wed, 17 Mar 2010 08:00:00 EST

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.

Why Most Medical Malpractice Victims Never Recover a Dime - Part 17

ccrosbie@chescrosbie.nf.net (Blog Author)28034 — Mon, 15 Mar 2010 08:00:00 EST

Why You Should Hire Us

As I said at the beginning of this book, "we are different." We evaluate your case before we accept it. We can't guarantee a successful result, but our long track record does show that if your case passes our test, the likelihood of settlement is very high. And, we have long been leaders in the provision of useful information to the consumer - like this book. This helps you to decide whether you need a lawyer, and whether you need a lawyer like us.

There are many lawyers who advertise for personal injury cases. Luckily, most of these lawyers know they are not medical malpractice lawyers and know it is dangerous to "dabble" in medical malpractice work. There are good experienced lawyers in this field, but it is very difficult for a consumer to separate the good from the bad. You need to ask your lawyer all of these questions.

Our clients get personal attention because we are very selective in the cases that we take. We decline many cases each year in order to devote personal, careful attention to those that we accept. And, we don't get paid unless we win.

The bottom line: if we accept your case, we will fight to get you the compensation that is right for you and your case, and we will ensure that you are treated with respect while this is happening.

Legal Reform Needed to Help Pedestrians

ccrosbie@chescrosbie.nf.net (Blog Author)28235 — Mon, 15 Mar 2010 08:00:00 EST

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

ccrosbie@chescrosbie.nf.net (Blog Author)28139 — Fri, 12 Mar 2010 08:00:00 EST

Here is the final part of the transcript made of a CBC radio discussion of the issues surrounding a recent string of motor vehicle collision with pedestrians:

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.

Why Most Medical Malpractice Victims Never Recover a Dime - Part 16

ccrosbie@chescrosbie.nf.net (Blog Author)28032 — Thu, 11 Mar 2010 08:00:00 EST

The Legal Process in Medical Malpractice Cases

In a medical malpractice case, we will almost always file your suit before negotiating so that if negotiations break down, we will already have a trial date in place to head towards. In an automobile case, our approach depends on our experience of the attitude and previous behaviour of the insurance company. We apply our long history of negotiating claims to your benefit in every case.

I believe that it is a dangerous practice to wait until the statute of limitations has almost expired to file suit. I have seen other lawyers do this only to find that the defendant they sued is either not the correct defendant or is now blaming someone else.

While there are legitimate reasons for delaying filing suit, there is no excuse for the practice that I sometimes see whereby some lawyers routinely wait until the last moment to see if the insurance company will settle your case. When the claims do not settle, they often panic to file the case on time.

In Newfoundland and Labrador, a medical malpractice case is begun by filing a lawsuit in the Supreme Court. Once the lawsuit is filed, both sides engage in the legal process called discovery. Each party is allowed to investigate what it is the other side is going to say at trial. The defendant will be permitted access to your medical and work history, including your income records. You may have to give oral discovery under oath and you may be required to submit to a medical examination by a physician of the defendant's choosing. The defendant is also subject to discovery. He or she will answer written and oral questions about their own background and will have to give sworn testimony about the incident at issue.

In Newfoundland and Labrador you can expect to go to trial about one year after the case is placed on the "trial list". However, much must be done to be ready for trial and national statistics show an average of five years for a case to resolve, and seven years in a complex case is not unusual.

Three Pedestrian Traffic Accidents in Week Provoke Questions

ccrosbie@chescrosbie.nf.net (Blog Author)28065 — Thu, 11 Mar 2010 08:00:00 EST

A string of recent motor vehicle collisions with pedestrians have raised public concerns about traffic safety. CBC radio had a useful discussion of the issues this morning and I had a transcript made. Here's the first part, the final part will follow tomorrow.

More respect for safety and the rules of the road, from both drivers and pedestrians, is the prescription offered.

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.

Aim to Claim: Things to Know Before Calling Your Insurer - 7th and Final Point

ccrosbie@chescrosbie.nf.net (Blog Author)25493 — Fri, 26 Feb 2010 08:00:00 EST

7. RESOURCES AVAILABLE TO YOU

Is a particular loss covered? What's it worth? What does that clause really mean? If you encounter misunderstandings, disagreements or other problems with a claim:

Get clarification from the broker or agent who sold you the policy.
Talk to the adjuster or claims specialist, or this person's supervisor.
Ask for the insurance company's internal ombudsperson. Every federally licensed insurance company must have one.
For home, auto and business, contact the General Insurance OmbudService (www.giocanada.org) or the OmbudService for Life and Health Insurance (www.olhi.ca). They can help cut through the red tape and impartially resolve disputes between you and your insurers.

Don't worry about a claim being denied, seeing your premiums rise or being blacklisted if you raise a fuss. It's your right to complain-and it's often necessary. "An insurance policy is proof of a legal contract, but there can be grey areas when it comes to settling claims," says Sherman, from The Co-operators Group. "Every claims settlement is to some extent a negotiation."

Aim to Claim: Things to Know Before Calling Your Insurer - 6th Point

ccrosbie@chescrosbie.nf.net (Blog Author)25492 — Fri, 19 Feb 2010 08:00:00 EST

6. DO YOU NEED A LAWYER?

In cases involving serious injury or in disputes over claims involving significant sums, it may be prudent to consult a lawyer. Whether guiding you through the legalese of insurance contracts or helping you avoid lowball offers, a lawyer can protect your interests.

In the relationship between the insurer and the policy holder, lawyer Crosbie says, "There's a power and knowledge imbalance-a lawyer redresses the imbalance."

Aim to Claim: Things to Know Before Calling Your Insurer - 5th Point

ccrosbie@chescrosbie.nf.net (Blog Author)25491 — Fri, 12 Feb 2010 08:00:00 EST

5. BE YOUR OWN BEST ADVOCATE

An insurance company may not be on your side, but that doesn't mean they're against you. However, Bruce Cran, the president of the Consumers' Association of Canada, calls the relationship "adversarial." As he notes, people making claims want everything they feel is coming, and not a penny less. Insurers want to pay out what they feel they must, and not a penny more.

Settling claims is about balancing interests and being fair, which can be open to interpretation. Read your policy carefully to understand your responsibilities and rights. Clarify what you're expected to do (for example, quantify a loss and get receipts) and what your insurer will do for you. Justify your requests. Yes, the insurance company has obligations, but ultimately you're your own best advocate.

"You're an active participant in the claims settlement process," says the Insurance Bureau of Canada's Olson. "It won't just happen around you."

Timing of Compensation Payments

ccrosbie@chescrosbie.nf.net (Blog Author)26490 — Wed, 10 Feb 2010 08:00:00 EST

Some class members have been inquiring as to the timing of payments and as to why there will be more than one payment.

I would expect that Category 1 claimants will receive a cheque within several weeks from when the judge releases his decision. I cannot speak for the judge but would anticipate that the decision as to approval of the settlement will be handed down within several weeks. When it is handed down, we have the settlement fund in an interest bearing trust account and will hand over the monies to the administrator.

The administrator would be expected to keep these monies in an interest bearing account until the distribution is complete.

The first payment will be an amount which is about half of the intended injury compensation amount. The reason is that the ultimate payment will be partly a function of how many people claim in each category. Not all class members in a class action settlement actually make a claim, and depending on what is called the uptake, the amount for disbursement to each claimant may be slightly more than the intended amount, or slightly less.

We must give public notice of the settlement approval and there will be a six month period for class members to apply. The administrator will make a first payment to all those class members in categories other than 1 at that point (category 1 members will already have received a cheque).

The administrator will prequalify class members for whom we have medical records and notify them of the prequalification and the category in which they are prequalified. We will be giving the administrator the records we have obtained. To verify that the administrator has a class members records, you should contact the administrator at the toll free number or other address which he will provide. We will give you a reminder to do this when the judge hands down his decision on approval and the administrator makes the toll free number known.

I understand that these delays can seem frustrating, but in something as complex as a class action settlement, delays of this kind are inevitable and outside of our control. Thank you all for your patience.

Aim to Claim: Things to Know Before Calling Your Insurer - 4th Point

ccrosbie@chescrosbie.nf.net (Blog Author)25490 — Fri, 05 Feb 2010 08:00:00 EST

4. DON'T SETTLE TOO QUICKLY

Sometimes, you just want to get the incident behind you. But resolving a claim too quickly could mean an inadequate settlement.

Generally, for injuries where pain and damage can linger, don't settle until "the point of maximum medical improvement," says St. John's, N.L., lawyer Ches Crosbie. With other types of claims (such as fire, where you might not be certain of the property loss), give yourself time to gather all the necessary information. Then take time to consider the offered settlement to determine if it's fair. If not, go back to the insurer.

Remember, insurance is not for a quick cheque, "it's to reimburse you for what you've lost," says General Insurance OmbudService's Maltman.

Patient Wins Stroke Case: Failure to Inform

ccrosbie@chescrosbie.nf.net (Blog Author)26078 — Wed, 03 Feb 2010 08:00:00 EST

A chiropractic patient recently won a difficult case against a local doctor alleging neck manipulation caused her stroke. The case was tried in St. John's.

In Gallant v. Brake-Patten the patient won on the point that she was not advised by the doctor of the risk of stroke. She also satisfied the judge that she would not have undergone the procedure if properly advised. And very importantly, she convinced the court that she would not have suffered the stroke, but for the chiropractic procedure.

The plaintiff was ably represented by Lois Skanes of Roebothan McKay Marshall.

Teaching point: cases are infrequently won on the ground of absence of informed consent. But on the right facts, informed consent cases are winnable. Damages are to be assessed later, or agreed.

Eastern Health Mixes Up Test Results Again

ccrosbie@chescrosbie.nf.net (Blog Author)26107 — Wed, 03 Feb 2010 08:00:00 EST

One of our breast cancer members told me about a very bad turn she had yesterday. I'll call her Grace, not her real name, to protect her identity.

Grace got a call yesterday from a nurse telling her that the cancer doctor wanted to see her when she comes to the hospital for her appointment on Monday. Grace said I don't have an appointment Monday, and the nurse said yes you do, you have to start radiation on your brain.

Grace almost dropped dead - she saw Dr. McCarthy last Thursday and was told that her bone scan came back fine but that her kidneys were failing and she had to be taken off all cancer drugs but there was no cancer to worry about. She had a panic attack and blacked out for a few seconds. She then said to the nurse you must be wrong and told her what Dr. McCarthy had said to her previously. The nurse said oh my I'm sorry, she had mixed up the results and should have called someone else.

Grace is a very sick woman and this only added to her stress about all this. She wanted me to know about this terrible incident, and I am sharing this with other class members.

When Eastern Health stops mixing up individual results I'll feel a lot more confident that they have the big systemic issues fixed. If I were Premier Williams, I'd check my chart before heading off for heart surgery ... it could be someone else's result.

Aim to Claim: Things to Know Before Calling Your Insurer - 3rd Point

ccrosbie@chescrosbie.nf.net (Blog Author)25489 — Fri, 29 Jan 2010 08:00:00 EST

3. TELL THE TRUTH

Being honest won't work against you, even if you're to blame for the loss. But fudging the details, let alone outright deception, will come back to haunt you.

Often when making a claim, you are at fault-"There's no stupidity exclusion in a policy," says Lindsay Olson, a vice-president for the Insurance Bureau of Canada in British Columbia. "People make errors." But withholding the facts could make it harder for insurers to probe a loss, be construed as deliberate misrepresentation, label you as what The Co-operators Group's Sharman calls a "moral hazard"-what else are you lying about?-and could even nullify your claim.

Governments Sues Bill Murray to Recover Money Stolen to Feed VLTs

ccrosbie@chescrosbie.nf.net (Blog Author)25757 — Wed, 27 Jan 2010 08:00:00 EST

A $500 a day VLT habit!

Almost lost among the ugly details the press has reported about Bill Murray's guilty plea to theft of an estimated $400,000, is the fact that most of the money went into VLTs. At a rate of $500 a day, $180,000 a year.

Looks to me like Murray might have a defence to the government's lawsuit - the government already has the money! Let's see how this works. Murray steals from the taxpayer; VLTs run by Atlantic Lotto steal the money from Murray; the government takes the VLT money from Atlantic Lotto; the government sues Murray to recover the stolen money, which was poured into VLTS, which was paid to the government ... and so on.

Who are they trying to kid?

Aim to Claim: Things to Know Before Calling Your Insurer - 2nd Point

ccrosbie@chescrosbie.nf.net (Blog Author)25488 — Fri, 22 Jan 2010 08:00:00 EST

This is the second in a series of seven points to think about before calling your insurer. It comes from an article in Readers Digest by Stuart Foxman, for which I was interviewed. Look for other points each Friday.

2. FILING YOUR CLAIM

Delays in reporting an incident can hamper an insurance adjuster's ability to investigate. With a car accident, for instance, the memories of witnesses can fade. Back to that basement flood: The insurer could also wonder if a loss was bigger than it needed to be. Did you take steps to, say, minimize damage after a flood? Where's the evidence of the original loss? Did you try to fix a loss on your own and possibly make it worse?

"Your delay could make it difficult to assess damage," says Brian Maltman, executive director of General Insurance OmbudService, "The insurer may even deny the claim because it has been prevented from being able to properly deal with the loss."

Court Favors Plaintiff in Pension Class Action Against Memorial University

ccrosbie@chescrosbie.nf.net (Blog Author)25255 — Tue, 19 Jan 2010 08:00:00 EST

Over 250 pensioners of MUN will benefit from a court order last week allowing them to proceed as a class action against their former employer. The pensioners allege that MUN is in breach of contract and of fiduciary duty in cutting pension benefits. The case is called Acreman v. MUN.

The decision is a workmanlike effort which builds on established Newfoundland jurisprudence such as Rideout v. Health Labrador Corp. and Doucette v. Eastern Regional Integrated Health Authority, in each of which Ches Crosbie Barristers was privileged to obtain certification and settlement for injured class members. For example, the decision quotes Doucette that the litigation plan is only a preliminary projection and subject to adjustment: "It is not to be unexpected that a litigation plan may undergo changes as the matter progresses" (para. 86).

If there is anything new and noteworthy in Acreman, it is the court's rejection of the gloss on the "plain and obvious" test for showing a cause of action, which was attempted by the Saskatchewan Court of Appeal in Hoffman v. Montsanto. In this case, the Saskatchewan Court of Appeal oddly stated that the representative plaintiff must satisfy the court that the pleadings disclose "an apparently authentic or genuine" cause of action.

Whatever was intended by the apparently "more stringent test" in the Hoffman case, it was rejected. The court, quite properly, was of the view that the appropriate test is the unadorned "plain and obvious" test explained by the Supreme Court of Canada in Hollick and applied by the Newfoundland court in Wheadon v. Bayer Inc., in which we also had the pleasure of representing the plaintiffs. Exactly right!

All in all, a worthy addition to a distinguished body of class action jurisprudence in Newfoundland and Labrador, which makes us the leader in the class action field, certainly in Atlantic Canada, and elsewhere as well.

Aim to Claim: Things to Know Before Calling Your Insurer

ccrosbie@chescrosbie.nf.net (Blog Author)24976 — Wed, 13 Jan 2010 08:00:00 EST

I was pleased to be interviewed by Readers Digest for an article which appeared in their January 2010 edition, "Aim to Claim: Seven Things to know before calling your insurer." The article was written by Stuart Foxman and quoted me in several places. As it points out, when the consumer buys insurance, he or she believes they are buying piece of mind. But reporting a loss can be anything but a peaceful experience. There are things to think about before making an insurance claim that can improve success. Here from Readers Digest is the first of the seven things you need to know before calling your insurer. The other points will follow in subsequent blogs.

1. IS THE CLAIM WORTH IT?

Depending on the amount of your loss and your deductible, you might not even want to make a claim. Your $400 bike is stolen and you have a $300 deductible? Coming out $100 ahead may not be worthwhile if it means you'll lose your claims-free discount. So think hard and check your policy first.

In other situations-for example, making repeated claims for minor water damage in your basement-the insurance company could say you're ignoring the root cause and potentially will refuse to sell you that coverage anymore. "Insurance isn't a maintenance contract," says Bob Fitzgerald, executive vice-president and chief marketing and underwriting officer at Aviva Canada. You need to do your part.

By law, you must report any car accident resulting in an injury or damage over a certain dollar amount, which varies by jurisdiction. However, for minor at-fault accidents, which could affect your insurance premium (how much you pay per year for coverage), dealing with repairs on your own could be wise, says Leonard Sharman, spokesperson for The Co-operators Group.

Wrongful Death: What Breast Cancer, Swine Flu, and Cougar Helicopter Have In Common

ccrosbie@chescrosbie.nf.net (Blog Author)24439 — Mon, 04 Jan 2010 08:00:00 EST

The shocking truth that unifies these topics is the antiquated state of Newfoundland and Labrador law of wrongful death and the welcome decision of the Danny Williams government to change it.

In the Breast Cancer Testing class action, we came up against the defense position that they should pay nothing for patients already dead.

The families of the Cougar Helicopter crash victims come up against the same problem. Newfoundland law says that the dead are worth nothing. This is a major reason for the families of the victims to seek a venue in the courts of the United States, where substantial damages to compensate for this loss, insofar as money can do so, are available.

My firm is investigating cases of injury and death from H1N1 swine flu. These cases meet our test where death or injury is due to negligent failure to diagnose and treat, and where the failure - medical malpractice - caused the injury or death. All too often, a missed opportunity to treat has led to death.

What these high profile cases - Breast Cancer Testing, H1N1 Swine Flu, and Cougar Helicopters - have in common is the awful consequence of death and the failure of our civil justice system to recognize it in money damages.

What the families of wrongful death victims need is civil justice laws with real teeth, teeth that make wrongdoers pay. The Danny Williams government seems to be moving on wrongful death law reform - based on my prompting and the experience of the Breast Cancer Testing class action. Godspeed the legislators on this needed law reform.

Our 100% Outrageous Guarantee

ccrosbie@chescrosbie.nf.net (Blog Author)23742 — Tue, 29 Dec 2009 08:00:00 EST

This website may contain information about cases that look similar to yours. We 100% GUARANTEE that your case is different. Don't think that because your aunt Mildred in Clarenville or your friend's friend in Corner Brook got a ton of money for their injuries that any other lawyer can get something similar for you in your case. We recommend you should always consult with an experienced lawyer before proceeding with your claim. You can contact us for a recommendation.

Not Giving Up on VLT Class Action

ccrosbie@chescrosbie.nf.net (Blog Author)23741 — Mon, 21 Dec 2009 08:00:00 EST

On Saturday December 19, 2009 the Telegram ran a front-page story on the Piercey family's renewed effort to obtain class action certification. The story was called "Crosbie not giving up on VLT class action", and the reporter was Barb Sweet.

The earlier attempt to obtain certification was based on the Trade Practices Act. Justice Dymond ruled that as a crown corporation, the Trade Practices Act did not apply to Atlantic Lottery Corporation. So, now we are back, this time with allegations based on breach of the Criminal Code, and breach of s. 52 and s. 36 of the Competition Act prohibiting misleading advertising. Also, unjust enrichment, breach of contract, and breach of duty to warn in tort.

We hope to have a date for the certification hearing set in a case management meeting with Justice Dymond, on January 18, 2010. Certification is what determines whether a class action can go forward or not.

You can read the Telegram story at the above link.

Bloopers of the Year: Defendant Doctor Pleads Cancer Patients Entitled to Second Class Care

ccrosbie@chescrosbie.nf.net (Blog Author)23605 — Fri, 18 Dec 2009 08:00:00 EST

In a decision this year, also reported at the News feature of this site, a trial judge was confronted with the outrageous defence that patients in Newfoundland are entitled to a lower standard of care than elsewhere.

General practitioner Peter J. Cleary missed a diagnosis of mouth cancer over a nine month period, resulting in extensive commando surgery to effect a cure. To get himself off the hook, the doctor and his powerful defence organization, the Canadian Medical Protective Association, told the judge that the injured cancer patient's expert from Indiana, U.S.A., was expecting too high a quality of care for diagnosing cancer in Newfoundland and Labrador.

The trial judge rejected the doctor's argument for second class care, finding that "examination of oral lesions is basic medicine in the western world no matter where one was trained or practised." To accept the defence evidence "would be endorsing a different, and in this case lower, standard of patient care" for Newfoundland: para. 99.

This is the theme I've heard throughout the Breast Cancer Testing Class Action: Newfoundland cancer patients should not expect high quality care, and a certain rate of error is acceptable. But as Dr. Brendan Mullen from Mount Sinai put it at the Cameron Inquiry hearings, an error is a 100% rate of error for the patient involved. For doctors to justify their errors by telling patients they should expect only second class care is an outrage.

Ontario Courts Not Afraid of Large Numbers

ccrosbie@chescrosbie.nf.net (Blog Author)23643 — Fri, 18 Dec 2009 08:00:00 EST

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.

Government Decides to Modernize Compensation for Wrongful Death

ccrosbie@chescrosbie.nf.net (Blog Author)23562 — Thu, 17 Dec 2009 08:00:00 EST

In my blog and letter to The Telegram in October 2009 "The Shocking Truth About Wrongful Death", I sought to bring the attention of the legislators to the backward state of the law of Newfoundland and Labrador. Our law makes no provision for compensation of estates for pain and suffering, and no provision for compensation of close family members of victims of wrongful death. Now in a move which has received less press than it deserves, the legislature has seen the introduction of a private members resolution aimed at much needed reform of this primitive area of our law, and yesterday December 16, the government adopted the initiative and will strike a select committee to make recommendations for amendment of the laws. My name even got a mention in debates.

Anyone who takes a look at our law of wrongful death will agree that it is not in step with modern conceptions of justice and fairness. In the interests of needed law reform, I propose Compensation Modernization Act.

The amendments to the Survival of Actions Act are necessary in order to permit estates to claim for pain and suffering experienced by a deceased prior to the death. This is done in Ontario and elsewhere.

The amendments to the Fatal Accidents Act are necessary in order to permit persons in a close family relationship with a deceased to claim for loss of care, guidance and companionship on a non-pecuniary basis.

When the Supreme Court of Canada reformed the law in 1998 in the Ordon Estate case, it did so on behalf of persons in a close family relationship with deceased persons and with injured persons, in other words persons who had not died of their injuries. Therefore the inclusion of provisions seeking to extend the right of compensation to close family members in relation to injured persons.

I have for the most part followed the language of the Marine Liability Act, 2001, c. 6, sections 4, 5 and 6, which was Parliament's response to Ordon Estate, inserting a legislative right to compensation in the relevant legislation. Here are links to the Ordon Estate case and the Marine Liability Act.

I wish our legislators good luck and God speed with this much needed piece of modern law reform.

Can the Civil Justice System Rise to the Challenge of VLTs?

ccrosbie@chescrosbie.nf.net (Blog Author)23353 — Mon, 14 Dec 2009 08:00:00 EST

The social and public health problem presented by Video Lottery Terminal use is more intractable than the social and public health problem of tobacco use in the 1990s. In the case of tobacco, enormous industry propaganda and lobbying created a legislative deadlock over meaningful action, and the civil lawsuit stepped into the void, resulting in a global settlement in the United States in 1997. Nowadays, the cigarette industry no longer argues that their product is safe. It is a generally admitted fact that cigarettes kill half of all consumers when used as intended. About all the industry can say in defence of tobacco use now is that it is a legal product. Much of the credit for the "outing" of big tobacco lies with those enterprising U.S. civil justice lawyers who used the civil justice system to expose the truth about tobacco and make wrongdoers pay.

The legal challenge posed by the social scourge of VLTs is even greater, because it is the government itself which is responsible for establishing VLTs in Newfoundland and Labrador in the early 1990s, and for promoting VLTs and feasting on VLT revenues ever since. Atlantic Lotto Corporation, the government agent for managing and controlling VLTs in the province, is its own regulator, and the government is a shareholder raking in profits in the tens of millions each year, so don't expect that a solution to this scourge is going to come from government. The VLT problem has never been subject to the machinery of democracy in this province. It has never truly been an election issue, has never been subject to a referendum as in New Brunswick, and has never been subject to formal hearings with meaningful public participation.

If there is to be a meaningful legal response to the VLT problem, then it will have to come from the class action lawsuit. According to the Supreme Court of Canada, class action suits are about access to justice and deterrence of wrongdoers. In passing class action legislation, Canadian policymakers have chosen to delegate civil oversight to lawyers and their clients, who are prepared to take on the risk of prosecuting cases they believe will succeed against wrongdoers who cause widespread harm. The function of class actions is to fill a gap in the system of public interest regulation and oversight which can't be filled in any other way.

Today we filed our certification materials to be recognized as a class action. The class action is taken by Keith Piercey on behalf of his daughter Susan's estate, and is for the benefit of the class defined as follows:

"Natural persons and their estates, resident in Newfoundland and Labrador, who, during the Class Period, paid the Defendant to gamble on VLT games, excluding video poker games and keno games, in Newfoundland and Labrador.

The Class Period is the period from six years before the bringing of this action, up to the opt-out date set by the Court in this action.

Excluded from the class are directors, officers and employees of the Defendant."

Our court documents are available elsewhere on this website. We will meet with Justice Dymond in mid January to set a date for the certification hearing.

The problem with a VLT or continuous electronic gambling class action is that no one has ever done it before, at least in the common law world. The recipe for success has not been invented yet. American lawyers have attempted but failed. To the best of my knowledge, no other proposed class action with any realistic possibility of success has been taken in the other Canadian provinces outside Quebec. The old adage comes to mind, "you can tell the pioneers by the arrows in their backs."

But I believe that anyone who looks in an objective and fair-minded manner at the complaint we have filed will conclude that Mr. Piercey has a righteous case. We have filed evidence that VLTs are an inherently dangerous product - see the affidavit of Dr. Harrigan. The question is whether the civil justice system has enough inherent vitality and flexibility to fill the regulatory gap left by a governmental apparatus which is in hopeless conflict of interest.

Surgery: Making a List, Checking it Twice...

ccrosbie@chescrosbie.nf.net (Blog Author)23016 — Mon, 07 Dec 2009 08:00:00 EST

Performing surgery on the wrong site is, in my view, per se negligent and something that just should not happen. Wrong site surgery is easily avoided by following simple checklists: identify the patient; ask the patient to identify the intended site of surgery; mark the site; correlate the patient's anatomy with the imaging studies; correlate the site of surgery which what is planned as documented in the medical chart. But believe it or not, there are still times when these simple precautions are not followed and a surgical blunder occurs.

You would think that the victim of wrong site surgery could settle the case without a lawyer (assuming he or she knew the law on quantifying the money damages arising, which might be a stretch...). Well think again! Noted Virginia malpractice lawyer Ben Glass is representing a patient who tried to do just that - settle her own case - by making a very reasonable offer. Ben's client was met with a blunt denial.

Ben will give this client access to justice though the device of the contingent fee, and I don't doubt that after taking fees and expenses into account, the client will do much better in her settlement or award than as a "do it yourselfer", but the same unreasonable medical malpractice insurers are busy lobbying in the U.S. Senate to pass a law limiting fees that injured patients pay to their lawyers. (Luckily, a fee cap proposal was defeated in the Senate last week.) No mention is ever made of limiting fees paid to defence lawyers. With enough one-sided changes to the rules, insurance companies may eventually get away with denying recovery even for wrong site surgery - negligence per se!

Tough Rules Reduce Accidents

ccrosbie@chescrosbie.nf.net (Blog Author)22824 — Thu, 03 Dec 2009 08:00:00 EST

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.

Why Most Medical Malpractice Victims Never Recover a Dime - Part 15

ccrosbie@chescrosbie.nf.net (Blog Author)22592 — Mon, 30 Nov 2009 08:00:00 EST

What Do We Do For You in a Medical Malpractice Case?

Here is a more or less complete list of the tasks we may be called to do in your case. Remember that each case is different, and that not all of these tasks will be required in every case.

Interview the client
Educate you about medical malpractice claims
Gather documentary evidence including medical records and hospital documents
Interview known witnesses
Collect other evidence, such as photographs of the injury itself
Analyze the legal issues, such as contributory negligence and assumption of the risk
Talk to your physicians or obtain written reports from them to fully understand the client's condition
Analyze your health insurance policy or welfare benefit plan to ascertain whether any money they spent to pay your bills must be repaid. (Unbelievable as it may sound, your health insurance company may be entitled to full reimbursement of the money it paid on your behalf.)
Analyze the validity of any liens on the case. Insurance companies, group benefit plans and employers may each assert that they are entitled to all or part of your recovery
Obtain relevant medical literature to help determine whether malpractice was involved in your injury
Recommend whether an attempt should be made to negotiate the case with the insurance company or whether suit shall be filed. (However, you should know that it is the rare malpractice case that can be successfully negotiated before filing suit.)
Obtain nursing and expert review of your claim
If suit is filed, prepare the client, witnesses and healthcare providers for depositions
Prepare written questions and answers and take the deposition, under oath, of the defendant and other witnesses
Produce to the defendant all of the pertinent data for the claim, such as medical bills, medical records, and tax returns
Go to court to set a trial date
Prepare for trial and/or settlement before trial
Prepare the client and witnesses for trial
Organize the preparation of medical exhibits for trial
Organize the preparation of demonstrative exhibits for trial
Prepare for mediation and/or settlement conference with a judge
File briefs and motions with the court to eliminate surprises at trial
Take the case to trial
Analyze the judgment to determine if either side has good grounds to appeal the case
Make recommendations to the client as to whether or not to appeal the case[1]

[1] Our contract with you does not obligate us to participate in any appeal.

Why Most Medical Malpractice Victims Never Recover a Dime - Part 14

ccrosbie@chescrosbie.nf.net (Blog Author)22412 — Wed, 25 Nov 2009 08:00:00 EST

"It's so frustrating" - and how to find a lawyer on the Internet

Being a malpractice victim and looking for a malpractice lawyer in Newfoundland and Labrador - it's so frustrating! It's frustrating because there are so few sources of reliable information out there to help consumers find the right lawyer. Consumer frustration at trying to find good reliable information is the reason I wrote this book.

Nowadays, consumers often don't stop their research at the Yellow Pages or by asking a friend. They "Google" the internet. And when consumers do that, they get frustrated all over again.

Because when you put in a search term like "Newfoundland and Labrador Injury Lawyer" you get lots of lawyer referral sites that are spending millions of dollars to get good search engine placement, you get lots of random law firm sites that don't even have an office in our province, but you don't get search results that return websites of local law firms with good reliable information on personal injury issues. What you need is information that can really help you make what may be one of the most important decisions in your life - choosing a malpractice lawyer to help you with an injury claim that could affect the rest of your life.

The frustration caused by lack of good information is why I totally revamped our website. Our aim is to provide injured consumers with an easy to locate web resource to help them to answer the questions that keep them up at night. How do I find the right lawyer for my case? Should I talk to the doctor or hospital about what I think was malpractice or sign any papers? Am I making a terrible mistake by not contacting an experienced malpractice lawyer?

With the valuable free information you can get from this book and my website, I aim to put the consumer on an even playing field with the doctors, hospitals, and insurance companies. Armed with this information, if you think you need a lawyer, the next step of hiring a lawyer is up to you. I've given you the tools to make the right choice.

The internet has emerged as an indispensible tool in the injured consumer's quest to find a great lawyer. But to get the most value from this revolutionary tool, consumers need to know how to recognize sites that are likely to lead them to a great lawyer who is perfect for their case. Many sites are not what they appear to be.

Search engines such as Google use organic search terms. So a search term such as "Newfoundland injury lawyer" yields many pages of hits. If you're like me, you don't have time to view more than the first two or three pages. Among those pages you will see two basic categories of lawyer finder websites. They are "directory sites" and "referral sites", which are explained further on my website. A point about these sites is that they guarantee nothing about the qualifications of the lawyers to whom the consumer is directed or referred, and tell the consumer little about them except that these lawyers want the consumer's business.

The other type of website is a site put up and maintained by an individual law firm. Your search for "Newfoundland injury lawyer" will probably return only 2 or 3 hits for law firms with offices in Newfoundland and Labrador which claim to be experienced in injury law. A good test to use for judging law firm sites is: Does this website provide me with good useful information about my type of problem? If a law firm provides information about your problem in a useful and interesting way, instead of just talking about how great the law firm and its lawyers are, then this is a good indicator that you may be on the way to finding a great lawyer who is the right lawyer for your case.

Light Cigarettes Appeal: Judge out of step with modern policy

ccrosbie@chescrosbie.nf.net (Blog Author)21993 — Wed, 18 Nov 2009 08:00:00 EST

On behalf of Victor Sparkes, I am arguing the light and mild cigarettes deceptive practices appeal on Wednesday and Thursday. The proposed class action seeks a monetary remedy against Imperial Tobacco for deceptively marketing light and mild cigarettes as a more healthful alternative to regular cigarettes. Here's how I will introduce the appeal.

Many people who read the decision of the learned judge below, get an impression that he just did not see this proposed class action as a legitimate civil action.

With respect, we say that the learned judge was led into legal error by his adherence to an outmoded model of the legitimate purposes of civil actions. His mindset or philosophy of civil litigation is anchored in what the Ontario Law Reform Commission called the conflict resolution model. We say that with the passage of the Class Actions Act, the legislature has rejected this model and has adopted the alternative, behaviour modification model. By adopting this enactment, the legislature has removed the choice of model from the courts. With respect, the learned judge below applied a model of the purposes of civil litigation which it was not open to him to apply. His choice was out of step with modern litigation values and it influenced the policy choices he made in interpreting not only the Class Actions Act but the Trade Practices Act as well.

Two significant developments have occurred since certification was argued below, which reflect on the legitimacy of this action. One is national, the other local.

The national development is that every province except PEI has passed a statute to create a civil cause of action for an aggregate damages remedy against tobacco manufacturers. The Alberta legislature is in the process of enacting such a statute. Ontario commenced litigation against tobacco manufacturers this fall. This development is huge. British Columbia and New Brunswick are already in litigation and every other province has announced an intention to follow suit. This means that there is now a public policy consensus in Canada that the civil action for aggregate damages is a legitimate policy tool of tobacco control. Mr. Sparkes' action on behalf of consumers can no longer be viewed as something odd or unusual. It is now unquestionably in the legitimate mainstream of Canadian public policy.

The local development is the recent settlement of the Breast Cancer Testing Class Action. The Inquiry into hormone receptor Testing could make recommendations but had no jurisdiction to follow up on them. An important part of this settlement is class member presence on an oversight committee and the joint selection of an independent expert to perform an audit of the implementation of the Inquiry recommendations and made a public report. Many would see the Breast Cancer Testing Class Action as an example of the benefits foreseen by the foundational report of the Ontario Law Reform Commission on Class Actions. Many would see it as an indication of the vital role of the civil action in the machinery of Canadian Justice, and as a demonstration of the legitimacy of the class action on the local scene.

Our legal briefs are available at these links.

Why Most Medical Malpractice Victims Never Recover a Dime - Part 13

ccrosbie@chescrosbie.nf.net (Blog Author)21901 — Tue, 17 Nov 2009 08:00:00 EST

12. Here are factors and good points to look for and question your lawyer about. Note that not every lawyer will meet all of these criteria, but the significant absence of the following should be a big question mark.

Experience - obviously, the longer you have been practicing a particular area of the law, the more you will know. Experience is a big factor in most cases.
Experience actually trying cases - the greater your number of cases actually tried and substantial awards and settlements achieved, the more likely the insurance companies will respect you. Past results are not a guarantee of the future but past results do demonstrate some level of experience and success. All the same, the experience most people value is the experience to get a good outcome without going to trial! We have many satisfied clients whose cases have settled and very few whose cases have gone to trial.
Ethical record - does the lawyer have a good record of discipline by the Law Society for ethical violations? What violations?
Respect in the legal community - does the lawyer teach other lawyers in Continuing Legal Education courses?
Respect in the courts - have the courts commented on the lawyer either favorably or unfavorably? Has he or she been in litigation with former clients or in fee disputes?
Membership in Best Lawyers in Canada - a compilation of the Best Lawyers in Canada, as selected by peers. This can be checked on the web at BestLawyers.com.
Membership in Lexpert - another peer review publication, searchable at Lexpert.ca. Membership in Lexpert and Best Lawyers in Canada cannot be bought, and is an indicator of respect on the part of other lawyers.
Membership in trial lawyer associations - in our area, you can certainly find a lawyer who is a member of the Atlantic Provinces Trial Lawyers Association (APTLA), and the trail-blazing American Association for Justice (AAJ). Some dedicated lawyers are also members of other provincial bodies, such as the Ontario Trial Lawyers Association (OTLA). All three of these organizations provide extensive education and networking for trial lawyers.
Serious involvement in trial lawyer associations - whether your lawyer is or has been involved in the leadership of trial lawyer organizations, for example as a member of the Board or as a President, is another indicator that the lawyer is dedicated to excellence in representing injured people.
Honors and Awards - appointments such as Queen's Counsel (Q.C.) and other awards can be recognition of merit by other lawyers and the community.
Appointments such as Master of the Supreme Court - this appointment is made by the Chief Justice and carries the confidence of the profession and the judges that the Master is competent to make binding judgments on such matters as the fees a client must pay to his or her lawyer. Such monetary amounts can be large. This is an appointment to an office with legal powers and indicates recognition of merit not only by the organized legal profession but by the Chief Justice as well.
Scholarly Publications - has your lawyer written anything that has been accepted for publication in legal journals? This is another sign of respect that the legal community has for his or her skills and experience.
Consumer Publications - has your lawyer published anything aimed at providing useful information to the consumer - like this book? A lawyer who wants the public to be well informed about their rights probably works hard on his or her cases and treats clients with the respect they deserve.
Referral Base - do the lawyer's clients come from relentless advertising or from referrals? Most of our clients are either referred to us or by other clients or other lawyers, or are former satisfied clients.
Independent Journalistic Reviews - how have journalists and the media treated your lawyer? Lawyers often take on unpopular causes, so you have to allow for this. The question is whether he or she is perceived by reputable journalists as being ethical and effective. The Evening Telegram published a front page article on me called "A Real Class Act" - read the article and other resources on my website ChesCrosbie.com and make up your own mind.
Maintaining a Consumer Oriented Website - does the lawyer make the effort to maintain a website that answers the questions that are keeping you up at night? Does it talk only about how great the firm or the lawyer is, or does it provide useful resources that empower the consumer? Our website ChesCrosbie.com is consistently on page one of Google, so judge for yourself. But finding a great lawyer on the internet can be tricky - and frustrating - unless you know how to recognize the different types of sites. Read on.

Why Most Medical Malpractice Victims Never Recover a Dime - Part 12

ccrosbie@chescrosbie.nf.net (Blog Author)21443 — Mon, 09 Nov 2009 08:00:00 EST

How Do You Find Out Who Is Good In Your Area?

Here Are Some Tips

1. First, while your lawyer should be licensed in Newfoundland and Labrador, do not limit your search geographically. There are a small handful of lawyers in Newfoundland and Labrador who specialize in malpractice cases. Find the best lawyer in Newfoundland and Labrador for your case and don't concern yourself with geography. Our firm handles cases throughout Newfoundland and Labrador. Our size and small case load allows us to deliver terrific service whether you are in St. John's, Corner Brook, or Goose Bay.
2. Look on www.BestLawyers.com or www.Lexpert.ca. These sites contain the names of lawyers who are peer-reviewed - ranked highly by other lawyers - in various specialties.
3. Get a referral from a lawyer that you know. He or she may know someone who does specialize in your area of need. If you don't know anyone at all, do a Google search under terms like "Newfoundland Injury Lawyer" or "Newfoundland Accident Lawyer". Or "Newfoundland and Labrador Malpractice Lawyer" etc., if you prefer.
4. The Yellow Pages can actually be a good source of names. Understand three things, however: First, not everyone advertises in the Yellow Pages. Most of our cases come from referrals from other lawyers or from satisfied clients. Second, be careful about the ads that tout too many different specialties, no one can do everything well. Third, be careful about the double page ads. This advertising typically attracts a lot of cases, including the small cases that we do not accept. Make sure that the lawyer you hire is selective enough with his or her cases that your important case does not become just one more file in the pile, buried under the "weight" of Yellow Page ads. Fourth, ask yourself how much useful information do the ads actually contain. If they just say "Free consultation" and "No fee until you collect", they are not telling you anything new. Go for the law firm that gives you useful information and respects your intelligence.
5. The Law Society has a lawyer referral service. Understand that lawyers have signed up and paid a fee to be listed in certain specialties. Their names come up on a rotating basis. This is another good source for an initial appointment. Just take the questions we talk about here to that interview.
6. Ask each lawyer if they have information just like this book and/or a website so that you can find out more about qualifications, experience, and method of handling a case before you walk in the door.
7. Be careful about any lawyer who rushes you to sign a contingent fee agreement. A contingent fee is not the right fee for every type of personal injury case. You have the right to take the agreement home, read it and understand it.
8. Beware of any lawyer who contacts you in writing just after you have had an accident for the sole purpose of soliciting your claim. If you are contacted "cold" it should be for the sole purpose of providing free information to you that you can study in your own home on your own time.
9. Beware of a lawyer who has a stable of doctors he wants to refer you to. A pattern of referrals from the same lawyer to the same doctors is perceived negatively by insurance companies and judges, and can actually be the "kiss of death" to your claim.
10. Interview several lawyers. Ask each lawyer who else he would recommend for your case. If they won't give you any names, leave. Ask this question of each lawyer. The names you see showing up on different people's lists are probably good bets.
11. Forget fancy slogans and hype. Slogans like "we are aggressive," "we care for you", "we fight for you", are absolutely meaningless. After all, aren't these the things that you would expect from your lawyer?

Breast Cancer Settlement: How Much and When Paid?

ccrosbie@chescrosbie.nf.net (Blog Author)20954 — Mon, 02 Nov 2009 08:00:00 EST

Class members have asked us how much is the settlement in individual cases, and when will the settlement moneys be paid to the victims. First, membership in the class is determined by the class definition approved by the court:

(a) Patients, including their estates, who underwent ER (estrogen) and PR (progesterone) receptor tests in which their breast tissue samples were tested at the Defendant’s hospital during the Class Period; and

(b) Persons who have a claim for loss of consortium and loss of guidance, care and companionship on account of a relationship with a person in paragraph (a).

The Class is restricted to residents of Newfoundland and Labrador.

The “Class Period” is defined as: May 1, 1997 to August 8, 2005, or such other dates as may be approved by the court.

Patients who gave samples at Clarenville between 1999 and 2005 would not be included, because their specimens were sent to Mount Sinai for testing and not to Eastern Health.

The settlement structure is made up of five harm categories and more seriously injured patients will receive higher payments. Details of how much is proposed to be paid in relation to each injury category will be announced after a scheduled case management meeting with Justice Thompson on December 1.

The settlement will be funded by December 29 and the hearing to obtain court approval could occur in late December or early January. Class members will be expected to submit an application for compensation, and cheques may be available commencing 30 days from the date of approval, should approval be granted. The 30 day period is intended to allow for any possible appeals. The exact timing of these events is subject to the court.

The application process is intended to be straightforward. Most class members should receive written notice of prequalification for a compensation category based on such information as whether the class member changed ER/PR positivity status on retesting, whether the disease recurred or not within 10 years of the date of diagnosis of breast cancer, and whether the patient was stage IV (already metastasized to distant organs) on diagnosis.

Class members who have hired Ches Crosbie Barristers to represent them individually, can expect us to assist them in the process of applying for compensation in the injury category that applies to them. For example, should a class member disagree with the assignment of her or him to a particular prequalification category, we would be able to check the correctness of this against the medical chart which we have in our possession.

Patients who have passed away (ie. their estates) are entitled to compensation. Application may be made by the executor or administrator or failing that, by beneficiaries of the estate.

We ask that further questions of a general nature be posted here in the form of a Comment. We will post answers to these questions so that the answers are available to be viewed by class members generally.

A death that still leaves questions - seven years later (Part II)

ccrosbie@chescrosbie.nf.net (Blog Author)20465 — Mon, 26 Oct 2009 08:00:00 EST

Imagine our reaction when we were told that our sister’s/daughter’s life was essentially worthless in the eyes of the law; a pretty tough pill to swallow. Of course had the outcome been different, had she been left in a coma for life or otherwise permanently incapacitated, the potential result would be different. As Mr. Crosbie pointed out, “…the shocking truth: it is cheaper to kill than to maim.”

So where has this left our family? We have tried, with the help of some friends, to pursue the matter directly with Eastern Health. We naively filed a Freedom of Information request seeking a variety of information surrounding the death.

Guess what? We are being totally stonewalled by Eastern Health.

Of course, they can see we don’t have a lawyer so they figure we don’t have the resources to pursue this and will ultimately just go away.

Notwithstanding the Cameron inquiry, nothing has changed with regard to accountability and transparency at Eastern Health. They’ve got one thing wrong though: we aren’t going way.

Trudy Meaney (sister)
The Browne family
St. John's

A death that still leaves questions - seven years later (Part I)

ccrosbie@chescrosbie.nf.net (Blog Author)20464 — Fri, 23 Oct 2009 08:00:00 EST

The following letter to the editor appeared in The Telegram October 17, 2009 as a response to my piece “The Shocking Truth About Wrongful Death”. It’s time for Premier Williams to do some needed law reform. My condolences to the Browne family.

I am writing in response to the letter to the editor from Ches Crosbie, published in your Sept. 29 edition, which you headlined “The shocking truth about wrongful death claims.”

Our family is living with the horrible truth of Mr. Crosbie’s assertions. Our sister/daughter passed away suddenly in the Emergency Department of the Health Sciences Centre on Jan. 13, 2002. She was 36. During 2008, we were provided with very credible information (the source of which would not be appropriate to disclose in this letter) to the effect that our sister had died as a result of medical mistreatment that evening.

After the initial shock of receiving this type of information six years after her death subsided, we felt we had no alternative but to try to seek out the truth.

Suit useless
As our family did not and does not have the resources to pay for a costly discovery and legal proceeding against Eastern Health, we approached a number of local lawyers that deal with these types of cases on a contingency basis – i.e. they would only be paid from a portion of any settlement or judgment ultimately received.

It was then that we found out what Mr. Crosbie was referring to in his letter. Our sister/daughter had a relatively low-paying job but had no dependents. She was a source of constant love, assistance and support for our parents, with whom she lived, but they were not her dependents.

We were essentially advised that, even if we were successful in proving wrongful death, the courts would likely only award a relatively small amount of damages and that such an amount would not justify the time and expense (and risk) that a lawyer would incur in pursuing a matter of this nature.

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

ccrosbie@chescrosbie.nf.net (Blog Author)20218 — Mon, 19 Oct 2009 08:00:00 EST

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.

How to Stop Thinking Like a Lawyer and Love It

ccrosbie@chescrosbie.nf.net (Blog Author)19936 — Tue, 13 Oct 2009 08:00:00 EST

Looking back on my career as a personal injury lawyer in Newfoundland and Labrador, the unifying theme has been access to justice, particularly for those injured in accidents and through medical malpractice. More recently I have became involved in class action practice as a means for people to access justice and hold wrongdoers accountable. My legal career has been challenging, busy, and rewarding. Perhaps at times, too busy.

I had the honor of addressing a talk to an audience of law students and professors at Dalhousie Law School last week, and for my topic I took the puzzling title above: How to stop thinking like a lawyer and love it.

Puzzling, because law students go through three years of extensive indoctrination to learn to think like a lawyer. Why would they want to undo all that training? The topic must have aroused curiosity because on the Thursday before a long weekend, there was an audience of about 80 people. My answer has more to do with mindset and with living a great life than it does with anything technical and legal. You can read more at following link to the text for my talk.

Safe Driving Contract Worth Considering

ccrosbie@chescrosbie.nf.net (Blog Author)19562 — Tue, 06 Oct 2009 08:00:00 EST

All of us who have had teeenagers in recent years have been thankful for the various restrictions placed on new drivers such as curfew times and zero tolerance for alcohol. These graduated licensing requirements have helped to save young lives and drive down the accident and injury rates.

Another example of legislative intervention to increase road safety and drive down the accident and injury rate is the ban on cell phones enacted by Newfoundland and Labrador in 2003. In a story last weekend on Ontario's similar ban which takes effect at the end of October, the Globe and Mail reported that accidents caused by distracted driving declined 23% in the three years following the Newfoundland ban, according to the Department of Government Services.

But not every precaution against road accidents needs legislation to back it up. A useful extension of safety practices can come in the voluntary form of a safe driving contract between parents and children licensed to drive a motor vehicle. I have provided a form of safe driving contract in our library, which you can change to fit the circumstances and the understandings which you may negotiate with your child. The value of the discussions around safety expectations and agreed safe practices cannot be underestimated. Give it a try with your child.

The Shocking Truth About Wrongful Death Claims: An Open Letter to the Premier

ccrosbie@chescrosbie.nf.net (Blog Author)19142 — Tue, 29 Sep 2009 08:00:00 EST

Last weekend I attended sad visitation with the family of Donna Howell, perished at the age of 53 from generalized breast cancer. Donna was one of those many patients of Eastern Health whose hormone receptor testing was bungled. She didn’t get Tamoxifen.

It was not the time to tell Donna Howell’s husband Darryl the shocking truth: Yes Premier, in your province it is cheaper to kill than to main.

But you already know this. You were once a personal injury lawyer, and a very good one. Once, you too revolted against the shocking truth that dead people are worth less in money damages than the living. Your educated lawyer’s conscience still revolts at this truth.

In the rest of Canada, the wrongful loss of the society and comfort of a loved one is compensated and has been for decades. As an educated lawyer, you know this.

In the rest of Canada, the pain and suffering of a victim of wrongdoing is compensated even though the victim dies. As an educated lawyer, you know this.

As an educated lawyer, you know that modern conceptions of fairness and justice demand that of our laws of wrongful death be reformed. Better to reform these laws in the Legislature; but the time has come for court-driven law reform if government fails in the task. Many more like Donna will perish while court process grinds toward reform.

Donna’s husband Darryl Howell still has faith in your commitment to fairness and justice. Others will wait and see.

Does the Public Support Members of the Breast Cancer Testing Class Action?

ccrosbie@chescrosbie.nf.net (Blog Author)18932 — Fri, 25 Sep 2009 08:00:00 EST

If the Telegram editorial from Thursday represents public opinion, then public opinion favors full and fair compensation for injured class members and doing it now. This can be done only by government.

We have formed a small group of class members to serve as a consultative committee to Verna Doucette, the representative plaintiff, and this group will begin regular meetings next week.

Eastern Health to Put Scandal Behind It: Here's How

ccrosbie@chescrosbie.nf.net (Blog Author)18944 — Fri, 25 Sep 2009 08:00:00 EST

Vickie Kaminski wants to put the breast cancer testing scandal behind her. That's what the Eastern Health CEO told the annual general meeting Wednesday. "The time has passed for Eastern Health to be defined by one issue", she said.

The Cameron Inquiry was about truth and reconciliation. The truth came out, and it was ugly. Reconciliation remains elusive.

Eastern Health will not put this scandal behind it until it achieves full reconciliation with injured patients by earning the right to be trusted, and by making financial reparation. This is how we close the circle of reconciliation in an advanced society based on respect for human rights. Reconciliation requires the courage to make amends, and there can be no moving on until amends happen and are seen to happen.

More truth will help with reconciliation too. Many times have clients told me that they "don't want this to happen to anyone else". Beginning in March 2009, we have asked for information from Eastern Health on the progress of several important recommendations of the Cameron report, for example, retesting of the positives. We still have no formal answer. (I don't blame Eastern Health's lawyers for this, they can only work with the information they are given.)

That's why Verna Doucette has asked us to demand an accounting from Eastern Health on progress on the more important Cameron recommendations as an aspect of settlement.

Verna is not well, due to complications of treatment, and has not been willing to make herself available for public comment. She told me yesterday that she will come to St. John's from her Port au Port peninsula home to be available for press interviews on Tuesday, October 27, 2009 before the mediation begins. She is not a public person and I know this decision to speak publicly requires courage.

Let's see matching courage from Eastern Health. The courage to make amends.

Malpractice Damages Clear $1 Million

ccrosbie@chescrosbie.nf.net (Blog Author)18749 — Tue, 22 Sep 2009 08:00:00 EST

A damages assessment released in July by the Supreme Court of Newfoundland and Labrador, Trial Division, enjoys the rare distinction of exceeding the $1 million level. The plaintiff in Courtney v. Cleary sued his family doctor for unreasonably delaying a diagnosis of throat cancer. The injuries suffered by the plaintiff, involving “commando” surgery and long-term disability, were far more significant than they needed to be with timely diagnosis and treatment.

A recent edition of Brown’s Economic Damages Newsletter has calculated the damages awarded, with pre-judgment interest but excluding the general non-pecuniary damages award, as $920,939. The non-pecuniary damages award for pain and suffering and loss of amenities was $165,000, and this would attract interest also. The total would be in the area of $1.1 million.

The newsletter contains a careful analysis of the economic part of the decision and those interested can find out more by clicking the link above. The only other decision in a personal injury case awarding more than $1 million in damages was the one I achieved in the Williams case, overturned by our Court of Appeal. The Court of Appeal overturned us unfairly on an issue which was neither pleaded nor argued on appeal. I was unable to obtain leave to appeal to the Supreme Court of Canada, which is given in only about 1 in 10 civil cases.

Should the Courtney decision be appealed I wish Mr. Courtney and his lawyer the best of luck, because in this province no matter how good the plaintiff’s case and no matter how well reasoned the trial judge’s decision, an appealed plaintiff should never refuse luck or prayer.

Class Member Comments on Government Absence

ccrosbie@chescrosbie.nf.net (Blog Author)18754 — Tue, 22 Sep 2009 08:00:00 EST

Marie Hickey has asked me to post the following comment:

Ladies: Based on our recent communication from Mr. Crosbie regarding the upcoming mediation talks, it's time to let your voice be heard! Don't let all these months and years of worry go for nothing. Don't let Premier Williams back down on his word! Contact him and contact the media to make sure they keep on top of this story. Don't be swept under the rug - make a noise!

Class members are welcome to post comment. Remember, this is a public site.

Hard Fought Case Shows Value of Contingent Fee

ccrosbie@chescrosbie.nf.net (Blog Author)18320 — Mon, 14 Sep 2009 08:00:00 EST

A decision we received Friday from the Court of Appeal in a motor vehicle accident case illustrates the enormous value to consumers of the contingency fee agreement - at least the way it works with our personal injury firm.

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.

Light Cigarettes Case Nears Appeal Hearing

ccrosbie@chescrosbie.nf.net (Blog Author)18092 — Wed, 09 Sep 2009 08:00:00 EST

A case taken by Victor Sparkes against Imperial Tobacco is nearing the appeal hearing on September 14 in a context of heightened social concern over the abuses of the tobacco companies.

Ontario and Quebec have passed enactments aimed at assisting healthcare cost recovery, both passed in June of this year. Alberta introduced a bill and expects that it will be enacted this fall. That means that the great majority of Canadian provinces have resolved to sue the tobacco industry for healthcare-related costs based on fraud and deception perpetrated over the last 50 years.

To come back to Mr. Sparkes' action against Imperial Tobacco, this action was taken in Newfoundland and Labrador as part of a broad social movement to hold tobacco companies financially accountable. By driving up the price of cigarettes, society puts them out of reach of the teenagers whom the tobacco companies constantly attempt to recruit as future paying consumers. The personal health costs and personal injuries which result have been documented endlessly and are a major public health problem and source of product liability injuries in this and other advanced countries.

When Mr. Sparkes applied for certification of the class action against Imperial Tobacco, the judge dismissed on the basis of technical arguments surrounding the consumer protection statute on which the action relied. Imperial Tobacco filed a Brief stating that the judge made a finding that the words of the Act were clear and unambiguous. We disagreed and pointed out that he did not make any such finding, and filed a Brief in Reply. You can see the Brief in Reply at this link.

The Court has asked us to obtain permission to file the Brief. Our Rules of Court do not expressly provide for the filing of a Brief in Reply. The Rules of other advanced jurisdictions do so provide. Our application and brief on the application to file the Reply are available on our website.

It would be a lot simplier if the Court of Appeal followed the lead of other advanced jurisdictions and put in place a rule which expressly allows for filing of reply.

Why Most Medical Malpractice Victims Never Recover a Dime - Part 11

ccrosbie@chescrosbie.nf.net (Blog Author)18067 — Tue, 08 Sep 2009 08:00:00 EST

How Do You Choose?

How do you find out which lawyer is the best in Newfoundland and Labrador for your case? Do you want less than the best? I believe that there are certain questions to ask that will lead you to the best lawyer for your medical malpractice case. It will involve some time on your part, but that's a fair price to pay.

The world of medical malpractice claims is much too specialized for someone who does not regularly handle these cases. Too many times we have looked at cases that other - inexperienced - lawyers have handled. You should be aware that the insurance company that defends malpractice cases knows which lawyers in Newfoundland and Labrador actually go into court to try cases and which do not. The insurance company uses that information to evaluate their risk. One of the first questions they ask when a serious claim comes in is: Who is representing the plaintiff? Since this information is important to the insurance company, it should be important to you.

Why Most Medical Malpractice Victims Never Recover a Dime - Part 10

ccrosbie@chescrosbie.nf.net (Blog Author)17944 — Fri, 04 Sep 2009 08:00:00 EST

How Do I Find a Qualified Medical Malpractice Lawyer?

Choosing a lawyer to represent you is obviously an important task. It is probably the critical task that determines the success of your case. The decision certainly should not be made on the basis of advertising alone. The Yellow Pages are filled with ads - all of which say basically the same thing. You should not hire based solely on advertising. Anyone can buy a slick commercial, even if they have never successfully tried a malpractice case in front of a court. Heck, you shouldn't even hire me until you trust that I can do a good job for you.

You also cannot rely on the recommendations of friends and family. The fact that Lawyer Jones did a good job on Uncle Joe's breathalyzer case or Cousin Sue's divorce - or even on your best friend's auto accident claim - does not make him or her a qualified, experienced medical malpractice lawyer. Malpractice work is a legal subspecialty of its own. Most lawyers in our province actually have the good sense to recognize this and not attempt to do malpractice work themselves. But they may not know who does malpractice work well either, so as to refer you to those lawyers who do the work well.

Charitable Immunity from Suit

ccrosbie@chescrosbie.nf.net (Blog Author)17019 — Mon, 17 Aug 2009 08:00:00 EST

Newfoundland and Labrador was probably the first place in North America where clergy abuse came to public consciousness and rocked the pillars of society. The infamous abuse by Christian Brothers at the Mount Cashel Orphanage blew the lid off, but numerous suits against priests and ministers have followed. In one of these, charitable immunity was raised by our own Court of Appeal as a defence for churches who had turned a blind eye and knowingly moved priests around and given them new opportunities for predation. Fortunately on further appeal, the Supreme Court of Canada soundly banished this unjust anti-victim defence from modern law in this country. For those who have an interest, the case is John Doe v. Bennett, 2004 SCC 17 (CanLII).

And Ben, you might think of relying on Bennett in your own argument as an illustration of how an advanced common law system has abrogated this unjust doctrine. Good luck.

I posted this comment on a lawyer friend's website - he is battling the same injustice in Virginia.

Why Most Medical Malpractice Victims Never Recover a Dime - Part 9

ccrosbie@chescrosbie.nf.net (Blog Author)15547 — Mon, 20 Jul 2009 08:00:00 EST

Beware of the Subrogation "Monster"

You should be aware that often, if your bills were paid by the health insurance of an employer's health plan or your loss of income was paid by a disability insurance plan, the insurance company or plan may want you to reimburse it out of any personal injury recovery. Your "insurance" turns out to be not insurance at all, but a "loan." What the insurance companies don't tell you is that this area of law, known as "reimbursement" or "subrogation," is actually quite complicated and the law frequently goes against what they are claiming. We have frequently been successfully in substantially reducing these "subrogation" claims.

In this book I refer to "the insurance company", but it is important to understand that over 95% of doctors are "insured" by a mutual defence organization, the Canadian Medical Protective Association, or CMPA. This is important because the mandate of this large and powerful organization is to defend its doctor members, not to settle legitimate claims. CMPA has enormous resources and a war chest of two billion dollars, which it uses to fight the more than 100 trials it defends each year in Canada - and it wins at trial 80% of the time.

The master skill of the best plaintiff malpractice lawyers lies in identifying the cases which have potential to be turned into winners. The master skill of the CMPA and their very smart defence lawyers lies in recognizing which cases they are likely to lose at trial, and should therefore settle.

Why Most Medical Malpractice Victims Never Recover a Dime - Part 8

ccrosbie@chescrosbie.nf.net (Blog Author)15415 — Thu, 16 Jul 2009 08:00:00 EST

The Reasons Most Malpractice Victims Receive Nothing

The number of suits has not increased since the mid 90's, and in most cases, plaintiffs receive nothing. There are a variety of reasons why patients do not recover any compensation for injuries suffered while receiving medical care. Most of these issues stem from general misconceptions about medical malpractice. It is important for potential malpractice plaintiffs to understand these issues while seeking counsel to represent their case.

1. Patients don't know they are victims of medical malpractice. Studies show that roughly 7% of admitted hospital patients suffer some sort of preventable injury as a result of medical management (i.e., not from the original medical condition). Many patients are killed each year as a result of preventable medical error. Medical malpractice is the eighth leading cause of death, yet only 1400 cases are filed each year, and most do not involve wrongful death. In the vast majority of cases the fact that malpractice occurred is hidden from the patient and the patient's family. The whole country received an insight into this in 2008 as the scandal of Eastern Health's botched breast cancer testing and cover up attempts was revealed in the media day after day.

2. No autopsy was ever performed. In a situation where we claim that the malpractice caused death, we must prove that the carelessness of the health care provider directly resulted in the patient's death. In a medical malpractice case that results in death, it is difficult to prove that the death occurred because of the malpractice without an autopsy. This is because there are many reasons why a person might have died, but we must prove that the one substantial reason why they died is because of the negligence of the health care provider.

3. Even though the doctor committed malpractice, the disease or illness likely would have resulted in death anyway. Sometimes cancer or other deadly illnesses may go undiagnosed for months or even years. A late diagnosis of cancer does not always mean, however, that the doctor is responsible for the patient's death. An experienced malpractice lawyer can help determine whether the cancer or other serious illness should have been detected "in time" to save the patient.

4. A physician's poor bedside manner does not constitute negligence. In the vast majority of cases, even terribly poor bedside manner cannot be considered in determining whether a physician committed malpractice in providing treatment. We have reviewed many cases where arrogant physicians provided care and the patient was injured. It just doesn't matter that the doctor was a jerk. We must prove, from a scientific and legal standpoint, that it was carelessness, not bad bedside manner, that caused the injury.

5. The patient suffered no significant damages. While we understand that every case is an important case to the patient, the legal system is not set up to handle "small" medical malpractice cases. We decline many cases each year where it appears that the doctor was careless, but the resulting injury is not significant. A pharmacist may incorrectly fill the prescription, for example. That error may make you violently ill for a week. If you have a good recovery, however, you probably don't have a case to pursue. This is because the costs of pursuing the case will be greater than the expected recovery. Our court system may not be perfect, but it does act as a filter to keep out all but the most serious cases of medical malpractice.

6. The injury suffered was not necessarily caused by the physician's or hospital's mismanagement. As discussed earlier, it is often very difficult to prove that medical mismanagement was the reason the patient suffered the injury that he or she did suffer. The insurance companies have many standard defenses including, for example, that (1) the injury was an unpreventable result of the initial condition/injury (e.g. "If the tumor had been diagnosed six months earlier, it would not have made a difference."); (2) the injury was due to the patient's noncompliance with medical advice (e.g. "I told him to return to the office if his symptoms did not clear up, but he didn't."); (3) the risk of the patient's particular injury was an acceptable one (e.g. "He got infected in surgery but 2% of all patients undergoing that surgery get an infection."); (4) some other party was responsible for causing the injury, or (5) the injury was caused by a previous illness or disease. Many, many cases have good proof of negligence but are unwinnable because they have no good proof of causation. Medical malpractice plaintiffs must show a very clear connection between the defendant's misconduct and the claimed injury.

7. The plaintiff has not retained an experienced lawyer. Medical malpractice litigation is a world unto its own. It has its own special rules and laws. There are very few lawyers in Newfoundland and Labrador who specialize in medical malpractice claims. We believe that it is imperative that you be represented by an experienced medical malpractice lawyer or a lawyer who is "teaming up with" or co-counsel with an experienced malpractice lawyer. The malpractice insurance company and the doctors' lawyers know who the "real" plaintiffs' (patients') malpractice lawyers are. They know who has the experience, skill and resources to battle them in court and who doesn't. The insurance lawyers billing by the hour will string out the inexperienced, poorly prepared lawyers for as long as they can before beating their brains out in court. In malpractice cases, perhaps more than in any other type of case, experience and prior results do matter.
Do not be afraid to check out the experience and the results of your medical malpractice lawyer. It's your responsibility to ask. If you end up in inexperienced hands, it's your fault!

8. The statute of limitations has expired. Each province has its own statute of limitations for filing a medical malpractice suit. These are strict time limits! If the statute of limitations has expired, you can't file a case. The Newfoundland and Labrador Statute of Limitations is two years. The important question is "Two years from when?" Newfoundland and Labrador has something called the "continuing treatment rule," so your actual time to sue may be longer than two years from the specific date of the negligence, if the defendant continues to treat you. The "continuing treatment rule" can be tricky and should not be left to novices or other inexperienced lawyers. Even more tricky is the "discoverability" rule, which says that time does not begin to run until the plaintiff knew or ought to have known that they were the victim of malpractice. One reason that you should consult an experienced medical malpractice lawyer early is to determine when the statute of limitations expires in your case. You may not need to hire a lawyer now, but you should get a lawyer's advice now as to when your statute of limitations expires!

9. The Plaintiff is Unable to Hire Good, Qualified Experts. You cannot win most medical malpractice cases without one or more very qualified medical experts. They can be hard to find. It is difficult to find doctors who are willing to stand up for what is right. It takes time and money to find the best experts for your case. This is one area where the insurance companies have a tremendous advantage. If they have a case that is particularly bad for their doctor, they may show the case to many experts before they find one to support (or simply concoct) the defense. They can afford to hire that many experts. Most patients cannot afford to have 10 experts look at their case in order to determine which expert will work "best" for them.

10. The Patient Contributed to the Injury. Any carelessness on the part of the patient is weighed together with the carelessness of the doctor and damages are apportioned accordingly. This defence seldom works with a trial judge but is vigorously pursued nonetheless, contributing to the many good claims that plaintiffs are demoralized into dropping before they complete the obstacle course to success.

why Most Medical Malpractice Victims Never Recover a Dime - Part 7

ccrosbie@chescrosbie.nf.net (Blog Author)15054 — Thu, 09 Jul 2009 08:00:00 EST

Limit on Recovery for Pain and Suffering

The law imposes a limit to recovery of pain and suffering damages. No matter how seriously injured you are, the maximum recovery you can obtain is currently $330,000. This amount for pain and suffering might be awarded in such cases as catastrophic complete paralysis or severe brain damage. This limit or cap has been set by the Supreme Court of Canada and is constantly adjusted for the effects of inflation. The vast majority of awards for pain and suffering are well below this cap.

The types of cases which have large enough settlement value to justify investigation for merit and with which we have been successful include:

• birth injuries causing cerebral palsy
• delay in treating bacterial meningitis
• spinal cord or brain damage resulting in quadriplegia, paraplegia or other paralysis
• surgery resulting in serious damage to nearby structures or organs
• undiagnosed heart attacks
• other failures to diagnose serious conditions where timely intervention would have avoided a bad outcome
• pathology negligence, including cancer misdiagnosis
• wrongful death, where there is significant financial loss to surviving dependents (remember, the wrongful death laws in this province are backward and allow no damages for pain and suffering)

What Is My Case Worth?

ccrosbie@chescrosbie.nf.net (Blog Author)14774 — Fri, 03 Jul 2009 08:00:00 EST

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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