2. Keep a safe following distance from the vehicle in front of you.

3. Always use the three second rule. Pick a spot on the roadway ahead and when the vehicle ahead of you passes that spot, begin counting “one second, two seconds, three seconds”. If you cannot count three seconds before you reach that spot, you are following too closely and need to increase your following distance until you are three seconds behind that vehicle. Increase the distance as road conditions deteriorate.

4. “Leave the phone alone” when driving. Talking or texting while driving is a distraction. Even hands free phones should be avoided because it is the distraction for the brain that is the problem, not the distraction of the hand.

5. When making a left turn into a multi-lane roadway, enter the closest legal lane. That is usually the lane closest to the yellow line or median.  If you want to be in the right lane, establish yourself in the left lane and then make a normal lane change to the right.

6. Always do a shoulder check into your blind spot on the side into which you wish to turn before making a lane change.

7. If you have to turn on your wipers, turn on your headlights and turn off your cruise control. In wet conditions visibility and road conditions usually deteriorate.

8. Always scan the roadway ahead and anticipate the actions of others. Be prepared to react should they take the right of way from you.

9. Scan your rear view mirrors frequently (five to eight seconds) to be aware of what is around you.

10. Do regular checks of your vehicle to ensure its safety and proper operation. Your signal and brake lights and your horn are key tools for communicating with other drivers.

11. Prepare for winter driving by preparing your vehicle. Always use winter tires. All-season tires are ineffective in our climate. Replace worn windshield wipers, top up washer fluids, check your brake and exhaust systems.

12. Ensure your windows, car roof and lights are free of snow before driving in winter.

13. Always check the weather before starting a trip.  If bad weather is forecast, change the timing of your trip.

14. Ensure someone knows your travel plans including your travel route and your departure and arrival times.

15. When travelling in winter, have a survival kit in your vehicle including warm clothing, food and water.

16. A fully charged cell phone can be a life saver if you encounter trouble on the roadway.

17. Remember, fatigue is as serious an impairment as alcohol or drugs. If you feel tired when driving, pull off the road and rest until you feel more alert.

18. Statistics show that for new drivers, road incidents and collisions increase as the number of passengers in the vehicle increases.  Insist that new drivers drive with a minimal number of passengers.

19. As you age, consider how your physical and cognitive abilities change and adjust your driving to accommodate these changes.

20. Avoid rush hour traffic.  Select travel times when traffic conditions are easier to navigate.

21. Left hand turns are a risky maneuver. Plan your route to minimize the need to make left hand turns in areas uncontrolled by a left turn traffic light.

22. Never drive when emotionally upset or when you are in poor health.  Check all medications before operating any mechanical equipment.

23. Always use your seatbelt. Seatbelts prevent you from moving around the inside of your vehicle and becoming a human projectile. Seatbelts also keep you in the vehicle where it is safest in a collision.

Here are the major points that emerged from discussion at the conference:

• St. John’s has the second highest rate of serious injury from motor vehicle collisions in Canada.
• The City of St. John’s wants to work with the province to improve road safety.
• CARS wants to see a 50% reduction in traffic collision in Newfoundland and Labrador.
• The province’s plan to deal with issues of road safety is largely unknown.
• It’s time to take action.

Click this link to see CBC news coverage of the conference and read the transcript of my interview on another CARS advocacy issue.

This is serious stuff. Speakers at the conference included CARS President Jeannette Holman-Price, City Councillor Debbie Hanlon, City Traffic Engineer Robin King, RNC Sgt. Sean Ennis, and me – Ches Crosbie. I’m the legal advisor to CARS. Other organizations in attendance were the Save Our People Action Committee (SOPAC) and Newfoundland and Labrador Safety Services.

One topic of discussion at the conference was the series of 5 year road safety plans initiated by the federal government and currently in the responsibility of provincial governments. These are called “Visions,” like Vision 2010 and Vision 2015. Across the country, these strategies have lowered the fatal accident rate on Canadian roads significantly. But it appears the Newfoundland and Labrador Government isn’t doing such a great job.

Ms. Holman-Price said the provincial government has “failed miserably” at reducing fatalities on our roads. She asked the government about what it was bringing to the table regarding Vision 2015. She said, “There’s not a whole lot they can tell us.”

Ms. Hanlon said the city has asked for a copy of the Vision but the city hasn’t received it. Mr. King said that he’s a member of the provincial road safety committee on behalf of the city. He’s asked on a number of occasions for a copy of the province’s road safety strategy and he’s never seen it. “I really don’t know if they have a Vision for 2015 or not,” he said.

That’s not good. We’re more than half way through the current 5 year plan and it appears we have no idea what the Newfoundland and Labrador Government is doing to reduce the rate of traffic collisions.

I can tell you one thing the provincial government can do to lower the rate of serious injury from traffic collisions and reduce the rate of accidents generally: Keep moose of the roads!

Fences are the best option for keeping people safe from moose on the roads, and moose safe from people, for that matter. The current system of flashing lights doesn’t work as set up by the province.

Are fences expensive? Sure. But moose – vehicle collisions incur cost to the province in the form of social services, health care, clean up, lost productivity, and property damage. Studies put the average cost of a MVA at over $30,000 and we probably have 1000 of them a year in Newfoundland and Labrador. When you take the anxiety, pain, and suffering of the traveling public into consideration, it’s a no brainer.

Provincial government: Start reducing serious and non-serious collisions with fencing.

The President of CARS asked me to speak about a couple important issues regarding insurance in our province.

Currently, residents of Newfoundland and Labrador are required by law to carry a $200,000 limit in third party liability insurance (Section A). This limit was set about 30 years ago. With the effects of inflation, the limit should be closer to $500 000 - That’s the mandatory insurance limit in Nova Scotia. Raising the limit of third party liability insurance to $500,000 is something that CARS wants to see in Newfoundland and Labrador.

As a separate issue, Newfoundland and Labrador is the only province in Canada where accident benefits, which are available on a no fault basis as Section B benefits, are not mandatory. Those who do not carry Section B benefits can get into a situation where they’re unable to work due to car accident injuries without compensation. Unfortunately, people in this situation are usually the people who need Section B benefits the most. People who do have Section B benefits are looking at $140 per week compensation from the insurance company. This is far too little and forces people in this situation to live below the poverty line. CARS also wants to see Section B coverage made mandatory and the benefits increased. It’s cheap to do.

My message: Come on, provincial government. Let’s have a hard look at updating the mandatory insurance requirements set out in the Automobile Insurance Act. Car accidents happen, and social responsibility requires financial responsibility when they do happen.

It was great to be invited to speak at the CARS news conference and work with an organization with worthy goals. Click here to read a transcript of my interview with VOCM from the conference.

One factor that affects the rate of traffic injuries in St. John’s and island-wide is moose-vehicle collisions. MVCs occur at a rate of 700 to 800 per year. This results in, on average, two deaths and 10 to 15 admissions to hospital each year. Leading MVC expert Dr. Tony Clevenger says that with better moose population control and judicious application of fencing, this toll of carnage can be reduced by 50% within 5 years. The government has come late to this issue, prompted by the class action lawsuit, and it is moving slowly. At least it is finally moving.

The Canadian Automobile Association’s 2012 study identified Newfoundland and Labrador as having the worst road in Atlantic Canada– the road to Harbour Breton. It also identified Newfoundland and Labrador as having 5 of the worst roads on the top 10 list. This is attributed to cracks, heaves, potholes, the size of roads, and more. It will be interesting to find out whether government has done anything about the state of these roads when the 2013 study is released. Considering its track record, probably not.

Today, May 6^th 2013, is the start of the second annual United Nations Road Safety Week. The World Health Organization fact sheet on traffic injuries states:

Road traffic injuries can be prevented. Governments need to take action to address road safety in a holistic manner, that requires involvement from multiple sectors (transport, police, health, education) and that addresses the safety of roads, vehicles, and road users themselves.

We couldn’t agree more. The NL Government should take this advice to help reduce the number and seriousness of traffic injuries, making our roads and communities safer for us all.

Maybe that’s about to change – in relation to traffic accidents anyway.

We all agree there is a problem.  The Telegram had an Editorial on March 26, 2013 which observed:

On the Northeast Avalon, car accidents are an everyday occurrence; serious ones make the news almost every day, while the RNC warns about excessive speed and driver inattention.

Virtually every police officer interviewed on morning radio shows asks drivers to slow down.  It is impossible to drive in the city without meeting drivers blithely talking into their cellphones and cars that apparently were never equipped with turn signals.

I can see readers nodding.  But the Telegram actually had some ideas about how to improve the situation.

Edmonton has established an Office of Traffic Safety which has applied – guess what – road safety science to dramatically reduce the number of collisions in a five-year period by 38%.  Injuries and death came down from 5,513 in 2007, to 3,385 last year – and this with a population growth of 11%.  You can read some of the details of how Edmonton has done all this at the Telegram Editorial, or at the website of the Edmonton Office of Traffic Safety.  It is based on collecting and understanding information, and acting on it.  None of the solutions are beyond us here in St. John’s.

It’s time to stop complaining about the traffic and do something about it.  A group called the Coalition Advocating for Road Safety or CARS has been formed, and is about to take road safety from the realm of complaining to the realm of action.  I’ll have more to say about this in a subsequent blog.

At the time of this incident, St. Clare’s Hospital in St. John’s did not make use of surgical checklists for breast surgery which would force the surgical healthcare team to verify that everything necessary for patient safety had been done.  Now, St. Clare’s does have a policy of using surgical checklists.  Although this is too late to help my client, who developed a horrific infection, it should avoid needless complications from developing in other patients.

The outstanding question is why St. Clare’s and other hospitals have not been using such an elementary preventative measure as surgical checklists before now.  These checklists are standard practice in the aviation industry, where pilots do everything by checklists.  Perhaps it has to do with the authoritarian medical culture in which physicians and surgeons in particular, do not want to concede that they may be human and are subject to human failings.  Get over it!  Safety challenges in our hospitals are every bit as complex as those in the aviation industry, if not more so.

I am pleased to see an article in the New England Journal of Medicine  “Simulation-Based Trial of Surgical-Crisis Checklists”, which now advocates extending the checklist method for avoiding injuries into operating room crises such as cardiac arrest and massive hemorrhage.  6% of the steps in life-saving processes of care were missed when checklists were available versus 23% when they were unavailable.  Almost all of the participants in the studies said that if one of these crises occurred while they were undergoing an operation, they hoped the checklist would be used.

Hospital checklists, whether for routine procedures or for crises, avoid needless injury and death – and beat lawsuits any day.

To be a personal injury law firm in Atlantic Canada and be selected for this recognition is a considerable achievement, when you consider that this region has 7 or 8 percent of the Canadian population, a smaller share of the economy, and doesn’t get a lot of recognition in Central Canada or out west.  Indeed, 8 of the 10 firms selected are from Toronto and area, and one from Vancouver.  So you can see the natural tendency for the editors of this publication is to take notice of firms engaged for plaintiffs in the personal injury field in the editor’s own back yard.

All of which makes it the more impressive that Ray Wagner and the other exceptional lawyers at Wagners receive this recognition!

Ray didn’t build this reputation yesterday.  It is the product of 30 years and more of dedicated, consistent work on behalf of injured people.  Congratulations to Ray and all the other talented injury lawyers at Wagners who received this recognition!

The 10 firms selected as Top 10 Personal Injury Boutiques made the cut from an original selection of about 50 firms.  Ches Crosbie Barristers was included among the 50 candidates for recognition as one of the best personal injury firms in the country, and this was a significant recognition by itself.  But hats off to Ray Wagner and the other law firm picks!

This new publication adds to two other peer review publications called Lexpert and Best Lawyers.  I have been listed in both of these, and naturally I am pleased to note that my name appears in this additional publication as a “local litigation star” under the section for The Atlantics.  The publication appears to be oriented towards institutional, corporate and defence law firms, and only four lawyers from the plaintiff injury bar are listed in the whole Atlantic region.  Naturally, I am pleased that I am one of them, as are my friends Ray Wagner, John McKiggan, and Matt Napier, all in Halifax.

I don’t know if Benchmark Canada is meeting an unmet market need or not with this listing of stars in court proceedings, but it does serve the useful function for consumers of identifying those whom other lawyers assess as being leaders in the field of litigation.  So this kind of peer review assessment can be useful to consumers in helping them to decide on who might be the right lawyer for their case.

Congratulations to everyone whose name has been included as a local litigation star!

In 2009, Pfizer settled U.S. criminal charges arising out of the Bextra fraud for a total of $2.3 billion.  Bextra was approved to treat arthritis and menstrual cramps, but amazingly, was no more powerful than Ibuprofen, while causing damage to heart, brain and skin.

Pfizer brought back to the United States $37 billion in order to take advantage of a one-time tax break that year, so paying the $2.3 billion fine was not a problem.  The fine was the largest fine of any kind ever but amounted to less than three weeks of Pfizer sales.

This was Pfizer’s fourth settlement for fraud since 2002.

U.S. prosecutors also allow pharma defendants to set up dummy corporations to pay the fines.  The reason is that U.S. law would prohibit fraudster pharma companies from selling to big U.S. purchasers of drugs such as Medicaid and Medicare.  So to facilitate settlement, ways are found to avoid the prohibition.

To truly achieve deterrence and modification of wrongful behavior, the law would need to confiscate all of the profits made by fraudulent sale of drugs, and also impose further significant penalties on the perpetrators of drug fraud.  No matter how many prosecutions undertaken and gargantuan fines levied, and no matter how many class action lawsuits are launched and settled, big pharma still makes money.  The big pharma companies may be just too big and too rich for the law to control.

This happened a few years ago, and soon after Bextra and related drug Celebrex were withdrawn from the market.  The class actions in the United States and Canada started soon thereafter.  The settlement, which my firm is pleased to have conducted, obtained for the client the full amount of compensation available from the settlement of the Canadian class action against Pfizer in relation to Bextra and Celebrex.

Our client is thrilled with the settlement, and the money will mean a great deal to her and her family and their quality of life.  There is always satisfaction for the lawyer who is able to help injured people.  Compensation for the injured is one of the main purposes of tort law, the branch of law in which manufacturers of defective and even dangerous products are held accountable to the public by way of private remedies in damages.  Bad drugs are one of these defective products.

But deterrence – or behavior modification of wrongdoers – is also one of the purposes of tort law, and in the field of bad drug litigation, with such vast amounts of money being made from bad drugs, multi-million and even multi-billion dollar settlements and fines are brushed off as speeding tickets.  Is Big Pharma too big for the law?  I will offer a few more thoughts on this in a blog tomorrow.

Q:        How much money does moose-vehicle accidents cost the province of Newfoundland and its citizens a year?

A:           Based on published and peer-reviewed research which arrived at a figure of about $30,000 per collision, Dr. Clevenger estimates approximately $20 million per year.

Q:        Is the area of highway through Salmonier Line any safer as a result of the electric system that has been put in place?

A:           The government of the province will not be ready to arrive at any conclusions as to the success of the detection system until they have analyzed data at the end of this year.

Q:        Is the area of highway where the moose fence has been put in place any safer?

A:           Same answer as above.

Q:        Have the number of accidents been reduced?

A:           Same answer as above.

Q:        Have the number of fatalities been reduced?

A:           Same answer as above.

Q:        Which option has had the best results at reducing the number of collisions in that area compared to previous numbers?

A:           Because the government will not analyze the data until after the test period, a specific answer cannot be given.  The general answer is that moose fencing should be at least 90% successful in reducing collisions, detection systems somewhat less effective.

Q:        Which option is most cost effective?

A:           Moose fencing.  Also, moose population density could be reduced by more expansive licensing, at no cost to government.

Q:        Which option would be most easily sustained long-term?

A:           Once moose fencing has been constructed, it does require maintenance, but this is a relatively minimal cost.

Q:        Since the government brought the moose to the island, they were not indigenous, is it their responsibility to control the population so no one gets hurt and put preventative measures in place?

A:           Moose were introduced to insular Newfoundland by the government, and a significant additional fact is that the only effective natural predator, the Newfoundland wolf, was in the process of being eliminated partly as the result of government policy of placing bounty on wolves.  The expansion of the moose population to a state of overabundance was therefore foreseeable.  The right of the public to use the highways unimpeded is an established legal right.  If one accepts that there is a relationship between moose population densities and moose vehicle collision rates, then there is an argument that in allowing moose densities to be among the highest in the world, the province is responsible for an unreasonable interference with the public right to use the highways unimpeded by intrusions by moose.  There is the argument based in the tort of public nuisance.  There is also an argument in tort of negligence.

Q:        Have there been any major developments in this issue since the major media coverage regarding the issue died down?

A:           Discoveries of witnesses will be completed in April, and a trial date has been given for January 2014.

Q:        Are there any other options to explore that could potentially be more effective at protecting humans from moose-vehicle accidents?

A:           Best evidence is that moose fencing is both highly effective and cost effective.  Reduction in moose population densities in areas adjacent to highways would also tend to lower the accident rate, and could be achieved by hunters at no cost to government.

The right to access information relevant to the issues in a lawsuit is independent from any right of access under legislation.  However, the experience of the Moose Class Action is relevant to the theme of the articles.  The province filed a list claiming public interest immunity over Cabinet documents.  They subsequently withdrew the claim of immunity over all but two of them, on the basis that there was no record that the documents had actually been submitted to Executive Council.  We argued for production of the ones which had been submitted to Executive Council, and the court agreed, subject to certain confidentiality provisions.

The point of interest for access to Orders in Council and other Cabinet documents is that no documents are listed surrounding the decision in early July 2011 to spend $5 million on fencing and animal detection pilot systems and enhanced brush cutting.  Press releases also documented a change in course toward a more expansive licensing of hunters aimed at reducing the moose population.  All this represented not only the spending of new money previously unbudgeted for, but a reversal of the previous government minimalist approach to moose vehicle collision mitigation.  Yet the list of documents filed publicly at the Registry of the Supreme Court, Trial Division, lists no relevant documents.  Legal counsel for the province has confirmed that the intention was to represent to the parties and the court that there are indeed no documents surrounding these decisions.  He also said he would double check this.

Perhaps documents may yet be found, but as the position now stands, I am left to wonder how undocumented decision-making of this importance at the Executive Council level could be consistent with general expectations of how Cabinet government is supposed to function.  Can important policy decisions be made which are undocumented?  We will see.

I’m not aware of any cases dealing with this issue in Newfoundland and Labrador, but there are enough court decisions in other provinces that a few generalizations may be made.

First let me caution victims of accidents who have valid claims, that claiming a right to something and actually getting it by way of settlement are two different things.  You can expect a lot of resistance on the part of the defendant insurance companies to the idea of paying the interest on loans which are taken out in the course of suing them.

Nevertheless, looking at the cases around the country, if the cost of a litigation loan for personal expenses and disbursements is to be made recoverable from a defendant, attention should be paid to the following:

1. the expenses must be reasonable and necessary and incurred as a result of the defendant’s negligence, and this must be documented;
2. it is a good idea to give notice to the insurer that a litigation loan is being sought for such expenses, and to set out projected financing costs which will accrue to the borrower plaintiff;
3. the statement of claim filed in court should itemize interest on litigation loans as a claim item;
4. loans should be obtained from the least expensive sources of financing, such as banks and other traditional sources of credit, and it should be documented that less expensive credit was unobtainable;
5. attention should be paid to staging the loan in order to reduce interest, ie. taking the money at different points in time; and,
6. terms provided by a variety of litigation lenders should be considered – buyer beware!

Remember, most people with good legal claims want their cases to settle, not go to trial, and some defendant insurance companies simply will not want to make payment for the expenses of a litigation loan taken out to sue them.  If a defendant refuses to pay on this item of claim, the cost of the loan ends up coming out of monies the victim of injury receives on account of other losses.  The litigation loan strategy is a strategy to be pursued only when there is no alternative.  But if access to justice requires a litigation loan, it should be pursued while putting the measures in place, as outlined above, to maximize the chance of recovering the expense.

Personal injury, of course, is what we do.  It was pleasing to see that my firm name, Ches Crosbie Barristers, is on the short list of 50 firms which the editorial staff of Canadian Lawyer thinks is eligible for this honour as a top personal injury small firm.  Just being on this short list is significant recognition of outstanding skill and knowledge and devotion to clients!

It would be nice to be named as one of the 10 top personal injury boutiques!  The choices will be made by relying on survey results from other lawyers – peers who know the work of the candidate law firms by experience or reputation.

I have to admit it’s not very likely a small accident and injury firm in small province like Newfoundland and Labrador will get chosen among the top 10 in Canada.  It is satisfying just to be among the 50 contenders!

I include in this “missing in action” conduct by Cabinet the decision in July 2011 to spend an extra $5 million on enhanced brush cutting, and moose fencing and detection system pilot studies.  Whoever made this decision, it wasn’t Cabinet.

Not how I thought the system of Cabinet government is supposed to work.

Stay tuned.

CanLNC Experts has banished that age old barrier to justice, the inability to find an independent medical expert willing to give opinion.  I am a seasoned veteran of the malpractice wars, with an expert network of my own, but these pros can source experts in tough cases.  This service is worthy for use by lawyers and their clients who want to know if they have a case, and who want to win it if they do.

In a recent paper for business valuators who are frequent expert witnesses, the authors surveyed 15 years of decisions to identify the seminal legal principles and approaches being applied by judges today to weigh and evaluate expert valuation evidence.  I have adapted the conclusions which apply to expert evidence generally, and they are contained in the attached table.  Readers may find this of interest.

A recent article in The Lawyers Weekly noted a long history of lawyer advertising in the United States prior to the early 1900s.  Even Abraham Lincoln, widely-admired civil war President, did his share of advertising his law practice in Illinois.  Wendy Moore Mandel, a Toronto personal injury lawyer, points out that without advertising, injured people must rely on knowledge of lawyer reputation.  Not everyone has access to information about lawyer reputation, including those who have never hired a lawyer before, and who do not know people who have.  Lawyer advertising and marketing therefore provides such prospective clients with valuable information they otherwise do not have access to.

But information from advertising is only the beginning.  Advertising does not necessary reflect the quality of the legal work.  Therefore the author says:

Consumers should continue to ask for recommendations or referrals from people they know and respect.  They should do their own research when considering a lawyer to hire.  Legal advertising can supply some guidance, and provides a starting point for further inquiry.

Here, here!  Hiring the lawyer who is right for you and your case is a tough decision.  It pays to do some checking around.  I have made some suggestions for the research consumers could do in other places on this website.

A lawyer ad is a starting point for information, but that is all.  Do more research on the prospect.  For example, does the lawyer have a website which provides useful information to consumers?  Check it out.

As in all important decisions, buyer beware.

Occasionally, a personal injury claimant may make a settlement which in retrospect, turns out to be improvident – it did not make prudent provision for the problems and the losses that the injuries known at the time of the settlement might realistically lead to.

Even so, a personal injury victim who may have made an improvident settlement may be able to repair the damage.

Four elements signal what is called an unconscionable transaction:

(a)         the transaction is grossly unfair or improvident;

(b)         there is a lack of independent legal advice:

(c)         there is an overwhelming imbalance in the bargaining; and

(d)         one party knowingly takes advantage of the other party’s vulnerability.

Sounds like a complicated job, doesn’t it?  If you think that you made a too early or improvident settlement of your automobile or other personal injury claim, then maybe the first lesson is to not repeat the mistake of going it alone again.  This time, get advice from a lawyer who knows and has experience in the personal injury field.