Posted by Dale Orlando on January 18, 2012 under Our Firm | 
In October of 2011, the Ontario Court of Appeal ruled in the case of Tut et al. v. RBC General Insurance Company, that s. 6(1) of O. Reg. 340/94 creates an offence of strict liability rather than absolute liability. Under this provision, a driver with a G2 licence is not permitted to drive with a blood alcohol concentration in excess of 0 per cent. The insurer of the vehicle denied coverage, relying on statutory condition 4(1), which provides that an insured shall not operate, or permit any other person to operate, a motor vehicle unless the person is authorized by law to operate it.
The Court accepted that the driver had a reasonable belief that his blood alcohol content was zero on the morning of the accident and this was supported by a witness who saw no evidence that he had alcohol in his system, and by the fact that he had slept for a number of hours before driving. In the case of the owner of the vehicle, the test under statutory condition 4(1) was whether she knew or ought to have known under all the circumstances that her son was not authorized to operate her car because he had a blood alcohol content greater than zero. The insurer had the onus of establishing that that test was met and the C.A. ruled that there was no basis on which to conclude that the insurer did not discharge its onus.
Posted by Rikin Morzaria on December 23, 2011 under Accident Benefits, Case Law |
Seriously injured accident victims received an early Christmas present from the Ontario Court of Appeal this morning. The Court released its long-awaited decision on catastrophic impairment in Kusnierz v. Economical Mutual Insurance Company. In it, the Court reversed the decision of Mr. Justice Lauwers, who had held that assessors could not combine psychological and physical impairment scores to determine an injured person’s Whole Person Impairment (WPI) score. Instead, the Court adopted the previous practice espoused by Spiegel J. in the 2004 decision of Desbiens v. Mordini.
Justice MacPherson, writing for a unanimous Court of Appeal, set out five reasons in support of its decision to allow the combining of physical and psychological impairment scores.
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Tags: 55%, Accident Benefits, automobile insurance, CAT impairment, catastrophic impairment, Ontario, Ontario Court of Appeal, personal injury claims, Rikin Morzaria, Statutory Accident Benefits, Whole Person Impairment
Posted by Patrick Brown on November 7, 2011 under Cycling, Our Firm, safety |
On July 1, 1998 W.J. Lucas, Regional Coroner for Toronto, July 1, 1998 recommended Transport Canada investigate the feasibility of requiring “side guards” for large trucks, trailers and buses operated in urban areas to prevent pedestrians and cyclists being run over by the rear wheels in collisions with these large vehicles.
Side guards are a legal requirement in the UK and in Europe to reduce injuries to pedestrians and cyclists. The mechanism of injuries for cyclists and pedestrians involved in slow speed collisions to be a dragging down motion of the victim caused by the large tire’s slow rotation. Side guards are designed to reduce the risk of a cyclist or pedestrian being dragged down under the rear wheels. The lack of side guards has been a contributing factor to multiple deaths to cyclists over the years including two deaths within the core in 1996 (which gave rise to the 1998 recommendation) and the death of Ryan Carriere in 2005.
The Federal Government (Transport Canada) sets vehicle standards for all new vehicles which are manufactured in or imported into Canada. The responsibility for mandating truck or bus safety equipment, including retrofitting, would therefore fall under the jurisdiction of Transport Canada. The responsibility of the Province would include prescribing that side guard protection remain in place and maintained if they were prescribed by the Federal Agency. Read more of this article »
Posted by Rikin Morzaria on October 18, 2011 under Case Law |
It is extremely rare for a judge in Ontario to overrule the decision of a jury.
However, that is precisely what happened in the recent case of Salter v. Hirst. Recently, the Court of Appeal upheld the trial judge’s decision and set out strict requirements for proving causation in medical negligence cases.
In the Salter case, George Salter came to the hospital with severe abdominal pain. Over the course of 3 days in hospital, Salter began vomiting and passing blood. Finally, he began to lose feeling in his lower extremities. Dr. Jason Hirst was the doctor responsible for Salter’s care in hospital. After three days in hospital, Dr. Hirst had Salter transferred to another hospital for more investigation. At the second hospital, Salter underwent emergency surgery that left his legs paralyzed.
Salter sued Dr. Hirst for negligence. He alleged that Dr. Hirst’s failure to transfer him sooner was negligent and that, if he had been transferred sooner, he would have recovered the use of his legs.
After a long trial, the jury found that Dr. Jason Hirst was negligent for failing to transfer George Salter sooner as Salter alleged. The jury also found that Dr. Hirst’s negligence caused Hirst’s paralysis.
Dr. Hirst asked the trial judge to overrule the jury’s decision. Read more of this article »
Posted by John McLeish on October 14, 2011 under automobile insurance, Case Law, Insurance Companies |
Since 1968 the Courts have recognized that passengers in a car are under a legal obligation to wear a seatbelt. And if they do not, there are consequences. Take the example of a passenger who was not wearing a seatbelt and is injured in a motor vehicle collision and advances a claim. If the defendant can prove that the injuries would not be as severe if the passenger had been wearing a seatbelt, then the injured passenger will be found to be contributory negligent and the person’s damages will be reduced by the percentage amount of contributory negligence. This is the so-called ‘seatbelt defence’. This defence is used frequently by defence lawyers when circumstances warrant its use. The amount of the unbelted passenger’s contributory negligence is determined by how much worse the passenger’s injuries were because of the failure to buckle up. In the past, Courts have deducted 5% to 25% from an injured passenger’s damages for failure to wear a seatbelt.
How can a lawyer representing an injured passenger who was not belted, reduce or eliminate altogether negative consequences of the seatbelt defence? Read more of this article »
Posted by Patrick Brown on September 29, 2011 under community, News, Our Firm, safety |
Halloween is coming fast. To ensure children are safe while still having fun, Halloween safety tips include:
Safe Costumes
Before buying or making your childs’ costumes, consider the following:
- Avoid Trips and Falls. The UL Safety Guide advises that Halloween costumes should “allow full movement for your kids. Costumes that drag, constrict or drape pose a dangerous hazard, especially at night. Check to ensure that costumes don’t restrict your children’s vision, and instruct them to watch out for tripping hazards, such as cords”.
- Flame Resistant Material: Also check to see if the costume is made of flame-resistant materials. During Halloween many jack o lanterns are lit by candles located near the trick or treat areas.
- Be Seen, Be Safe: Attaching reflective materials to costumes also ensures greater visibility. Make sure each child has a flashlight to help them see and be seen.
- See more at the Under Writers Laboratories Halloween Safety Guide
Jack O Lanterns:
Battery lit lanterns are the best option to keep children safe. If candles are used, the pumpkin should be placed well out of reach of all children.
Candy:
Make sure the kids do not eat the candy until you have had an opportunity of inspecting it at home under the light. Suspicious or open packages should be thrown away.
Road Safety Tips:
A quick reminder of road safety tips should be given to the kids going out on their own or in a group. The Ontario Safety League posts Elmer’s 7 Safety Rules which include looking all ways before you cross the street and when “leaving a curb, don’t run.”
For those driving, reduce your speed and keep a look out!
Posted by Dale Orlando on September 12, 2011 under Our Firm |
As Ontario auto insurers continue to lobby the government for dramatic changes to restrict the definition of catastrophic impairment, the financial results of the cutbacks made in September of 2010 are starting to become apparent. Economical Mutual’s second quarter income went from a $3.6m loss in 2010 to a profit of $23.2m this year. Underwriting results improved to $26.5m despite $26.2m in losses from weather-related catastrophes.
The proposed changes to the definition of catastrophic recommended by FSCO’s appointed medical panel have been deferred until after the Ontario Provincial election. With a dramatically improving profit picture for Ontario auto insurers, perhaps whichever party forms the next government will see fit to resist the call to restrict access to adequate levels of funding for medical expenses for those that are the most seriously injured people in the Province.
Posted by John McLeish on September 7, 2011 under Our Firm |
Contrary to what many people believe, a lawyer can represent more than one injured person arising from the same accident. When can a lawyer represent a number of individuals injured in the same accident? When there is a deep pocket defendant.
What is a deep pocket defendant? Examples of deep pocket defendants are large corporations, construction companies, transit companies, commercial trucking companies – any company with the financial where-with-all to pay whatever settlement or judgment is obtained on behalf of all of the injured individuals.
Are there advantages to more than one injured person retaining the same lawyer arising out of the same accident? There are several significant advantages. An obvious advantage is reduced cost. If the expenses associated with an investigation and the hiring of liability experts are divided by a number of individuals, the cost for each person is going to be less. Another not so obvious advantage is the ease and speed with which each case can move through the judicial system, if some or all of the injured individuals are all represented by the same lawyer. Read more of this article »
Posted by Rikin Morzaria on under Accident Benefits, automobile insurance, Case Law, Claims Denial, Insurance Companies |
On February 26, 2000, Michael Downer pulled into a Scarborough gas station in his Jeep. He left the engine on the Jeep running while he sat in the driver’s seat and separated money from his wallet to pay for gas. When Mr. Downer looked up from his wallet, he saw 3 or four young men around his jeep. The men began hitting Mr. Downer while pulling him out of the vehicle. Mr. Downer put the Jeep into reverse to get away from the men. One of the men tried to force the gear into park while Mr. Downer reversed out of the gas station and then drove off. A short time later, he became aware that he had suffered injuries in the incident.
Mr. Downer’s insurance company brought a motion to dismiss Mr. Downer’s claim for benefits on the basis that he had not suffered his injuries in an accident.
Was the carjacking an accident?
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Posted by Dale Orlando on under Our Firm |
When the Ontario Government dramatically reduced non-catastrophic no-fault coverage on September 1, 2010, they explained that they were providing choice to Ontario consumers by allowing people to pay for coverage that they formerly received as part of their basic coverage.
The vast majority of clients that have retained me since the September 2010 changes were completely unaware of the option to buy additional coverage before meeting me. This anecdotal evidence is now reinforced by the results of a survey conducted by the Financial Services Commission of Ontario (FSCO) who asked the largest private passenger auto insurance insurers in Ontario to provide data regarding consumers’ purchasing habits regarding optional coverage. The survey covered policies written between September 1, 2010 and December 31, 2010.
As was reported by ILSTV at http://www.ilstv.com/ontario-auto-insurance-consumers-slow-to-add-optional-coverages/#.Tl98j-kP_8M.twitter, the survey captured 78 per cent of the Ontario market, based on written premium.
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