1. Avoid driver distractions. Distracted drivers can be just as impaired as drunk drivers.
2. Ensure proper use of seat belts, child car seats and booster seats at all times.
3. Obey the rules of the road, respect posted speed limits, the rights of other drivers and drive according to road conditions.
4. Understand graduated licensing restrictions. Encourage yourself to learn more about being a safe road user at every age.
5. Always have a designated driver. Impaired driving is a serious danger to public safety as alcohol and drugs can reduce a driver’s reaction times and attention to the road.
6. If you’re experiencing driver fatigue pull off the road to a safe spot and have a nap as driving while drowsy can be just as fatal as impaired driving.
7. Be alert to the presence of all vulnerable road users and operate your vehicle safely around them.
8. If you are a medically-at-risk driver, protect yourself and consistently refresh your driving knowledge.
9. Share the road with trucks. Be visible and be aware of a motor carrier’s capabilities and limitations.
10. Spread the word to friends and family about safer road behaviour and road safety issues. Education starts with you.

(Source: IBC, Transport Canada, Ontario Ministry of Transportation and Canadian Association of Occupational Therapists)

Marilena DiMarco was riding her bicycle in a town that had closed its main street for a festival. She was forced onto a sidewalk, which was partially blocked by a parked van. DiMarco tried to avoid the van, lost her balance and fell, hitting the van with her hand in the process. She was seeking auto insurance benefits to help her in her recovery.  The auto insurer was denying entitlement because the crash was not connected to an automobile

In the decision DiMarco and Chubb Insurance Company, arbitrator Deborah Pressman accepted that the incident arose directly from the “use or operation” of an automobile as defined in the Insurance Act and Statutory Accident Benefits Schedule (SABS). This allowed Ms. Di Marco to claim benefits for her injuries.
Arbitrator Pressman stated “This automobile set in motion a chain of events directly resulting in Ms. DiMarco’s fall from the bicycle. There was no intervening act that caused Ms. DiMarco to fall. There were no other impediments around the automobile or near Ms. DiMarco.”
“Therefore, there was a direct and proximate cause between the ‘use or operation’ of the automobile and Ms. DiMarco’s injuries.”

Most people reading this blog will be familiar with the dispute resolution procedure under the Insurance Act.  Most people will recognize tht the procedure is badly broken.  Before a dispute can proceed to Court or to a binding Arbitration, a mediation must be held at the Financial Services Commission of Ontario.  If the mediator is unable to resolve the dispute, only then are you able to proceed to a final determination of the issue.  The difficulty is that mediations are being scheduled more than a year from the filing of an application in many instances.

Now for the good news.  Justice Sloan ruled on February 8, 2012 in the case of Cornie v. Security National, that section 19 of the Dispute Resolution Practice Code requires FSCO to conduct a mediation within 60 days of the filing of the Application.  If FSCO is unable to schedule a hearing within this time frame, the mediation is deemed to have failed and the claimant can proceed to a final determination.

In rejecting the defence arguments in the case, Justice Sloan says “The insurance companies take the position that the accident victims must simply wait.  To entertain this argument could mean that an accident victim might have to wait 100, 300 or 500 days for mediation.  I find that submission preposterous.”

The Daily Bread Food Bank’s mandate is to fight to end hunger. As Canada’s largest food bank  the Daily Bread Food Bank provides food to thousands of individuals and families across Toronto. The annual law firm challenge raised $245,000.00 this year for the Daily Bread Food Bank. For every $500.00 that is raised, a truck is able to deliver 275,000 lbs of food. For every $25 that is raised, a hamper box containing 3 days worth of groceries is provided to a person in need.

This was our first year participating in the Holiday Law Firm Challange and we were out to win and show our strong support for this great cause. With the help of many very generous donors and the overwhleming enthusiasm  of the McLeish Orlando staff and lawyers, we were able to raise $37,041.49. Not only was this the largest amount raised on a per capita basis, but this was also the largest amount raised by a Toronto law firm in the challange. We are proud to support such a great organization, and we are already looking forward to next year’s competition to help raise even more money than this year for the Daily Bread Food Bank.

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.

First, the proper interpretation of section 2(1.1.) (f) of the Statutory Accident Benefits Schedule (the SABS) is consistent with allowing the combination of scores.  The catastrophic impairment provisions were meant to be inclusive rather than restrictive.  This is evidenced by the extremely broad definition of “impairment.”  In addition, the WPI test was added as a “catch all” for injured persons who did not fall within other specific impairment tests (GCS, amputation, etc.).  Perhaps most importantly, there is nothing in the SABS that suggests that a combination of physiological and psychological impairments is not permitted.

Second, the purpose of the AMA Guides supports combination.  One such purpose is to assess the “total effect of a person’s impairments on his or her everyday activities”:

An objective, standardized system of assessment is only useful to the extent that it can reflect persons’ actual levels of impairment.  To disregard the mental and behavioural consequences of a person’s injuries because they are too hard to measure would defeat the purpose of the Guides.  This is reflected by the fact that the Guides, at p. 301, after cautioning against quantifying Chapter 14 impairments in percentage terms in ordinary cases, go on to allow quantification where necessary…

Third, the AMA Guides themselves describe several situations where the assessment of a person’s physical impairment should take into account mental and behavioural impairments.  The Court noted that the Guides do not suggest that the combining principle be limited to the specific examples set out in the Guides.

Fourth, combining scores produces results that are consistent with the purposes of the SABS.  One such purpose is to make “catastrophic impairments” exceptional.  At oral argument, the Economical acknowledged that there are very few cases where there are physical and psychiatric impairments that are not catastrophic if assessed separately but are catastrophic if assessed together.  Accordingly, the class of persons entitled to “catastrophic impairment” benefits will remain small even if combining is allowed.

Finally, allowing combination promotes fairness and the objectives of the statutory scheme.  In this regard, Justice MacPherson wrote

[I]t seems unfair to deny to persons with combined physical and psychiatric impairments the enhanced benefits that are available to persons with similarly extensive impairments that fall entirely into one category or another.

The Court of Appeal’s judgment is well-reasoned from a legal perspective.  It also makes sense from a policy perspective, especially when you take into account the fact that the injured person must still prove need to qualify for benefits.  This outcome means that people with severe psychological and physical impairments will now get access to medical and other benefits that their treating doctors and professionals recommend.

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. 

Law to change side guards

• The federal government, specifically Transport Canada, has the responsibility to set standards for vehicles manufactured or imported in to Canada.  Accordingly, it has the authority to pass legislation requiring side guards on trucks. 
• The mechanism to set the standard is in the Motor Vehicle Safety Act, SC 1993, c.16 – which is legislation to regulate the manufacture and importation of motor vehicles and motor vehicle equipment to reduce the risk of death, injury and damage to property and the environment.
• The Canadian government could set a standard that all trucks are mandated to have side guards under the Motor Vehicle Safety Regulations, C.R.R., c. 1038.
• For example, in Sept. 2004, “rear impact guards” for trailers were introduced in the Motor Vehicle Safety Regulations, s. 223 to prevent cars from sliding underneath the trailer if it hits it from behind. 
• Therefore, the Canadian government can amend the Motor Vehicle Safety Act or introduce a regulation – change via regulation would be faster than amending the Act

Other jurisdictions with side guards

United Kingdom: ECE Regulation 73

The purpose of the regulation is to offer effective protection to unprotected road users against the risk of falling under the sides of the vehicle and being caught under the wheels – trucks of a certain size are required by law to be equipped with side guards between front and back wheels

Europe: Council Directive 89/297/EEC

Introduced at the European Commission.  The objective is to harmonize the requirements to be met by vehicles as regards the side-guards of motor vehicles and their trailers

This issue is not new.

 In 2006, Olivia brought a Petition to the House of Commons to consider the recommendation and introduce a Private Members` Bill but nothing came of it.  

 In 2006, the City of Toronto requested that Transport Canada implement the recommendation for side guards on trucks. 

In 2010, Siobhan Coady (St. John’s South-Mount Pearl) brought a Private Members’ Bill, seconded by Olivia Chow, for “An Act to Amend the Motor Vehicle Safety Act (Side Guards)“.  Bill C-512 had its first reading in the house on April 15, 2010.  It did not become law.

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.He argued that even if he had been negligent, there was no evidence that the delayed transfer caused or contributed to Salter’s paralysis.  The trial judge agreed.  The judge referred to Rule 52.08 of the Rules of Civil Procedure, which states:

where there is no evidence on which a judgment for the plaintiff could be based or where for any other reason the plaintiff is not entitled to judgment, the judge shall dismiss the action.

Salter’s lawyers appealed.  However, the Ontario Court of Appeal held that the trial judge had made the correct decision and dismissed the appeal.  In doing so, the Court of Appeal noted that it was not enough for Salter to show that the delay cost him a chance of recovery, since the loss of chance is not compensible in medical malpractice cases.  Rather, Salter had to prove that if Dr. Hirst had not been negligent, he would have avoided the paralysis of his legs.

The Salter case is a reminder of the complexity of medical malpractice cases and the care that must be taken to prove every element of such cases.

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?  By looking to the duty of care the driver of the car owes to his or her passengers. In 1994 in the case of Galaske v. O’Donnell the Supreme Court of Canada affirmed that drivers have a duty to take reasonable care to ensure their passengers have buckled up. The Supreme Court likened the driver of a car to the captain of a ship or the pilot of a plane – meaning they are in a position of control. A responsibility that comes from this position of control is a duty to take reasonable steps to provide for the safety of your passengers. The Court found that this duty extended generally to any child under the age of 16. The presence of a parent who is also a passenger in the car does not remove the driver’s duty. The line of reasoning applied by the Court to find a duty owed to a child under the age of 16 can also be applied to incapacitated individuals, such as those who are intellectually challenged or impaired by drugs or alcohol.

A lawyer representing an unbelted passenger should always be aware of the duty owed by the driver to ensure passengers buckle up. If this duty of care is not met, the lawyer for the injured passenger should give strong consideration to including the driver of the car as a defendant.

 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!