Halifax Personal Injury Lawyer Blog

Traumatic Brain Injury a "Disease" not an "Event"

Thu, 02 Sep 2010 13:39:04 -0400

Traumatic Brain Injury Claims

New research published in this months issue of the Journal of Neurotrauma advocates treating traumatic brain injury as a chronic disease process, rather than an isolated event.

As a brain injury lawyer, I wholeheartedly agree with the conclusions reached in the article.

Brain Injury the Beginning of a Process

The authors of the study, Brent E. Masel and Douglas S. DeWitt from the Univesity of Texas Department of Neurology state that:

The purpose of this article is to encourage the classification of traumatic brain injury (TBI) as the beginning of a chronic disease process, rather than an event or final outcome. Head trauma is the beginning of an ongoing, perhaps lifelong, process that impacts multiple organ systems and may be disease causative and accelerative.

The authors review how a brain injury is often the start of a degenerative process that may cause further injury, even death, months or years after the initial trauma. The conclusions reached by the authors no doubt will be supported by brain injury survivors, their family's and those that advocate for survivors.

Chronic traumatic brain injury disease should be reimbursed and managed on a par with all other chronic diseases. Only then will the individuals with this condition get the medical surveillance, support, and treatment they so richly deserve. Only then will brain-injury research receive the funding it requires. Only then will we be able to truly talk about a cure.

Citizens Group says N.B. Insurance Cap Unfair

Wed, 11 Aug 2010 18:41:34 -0400

Consumer's Group Calls For Review of Minor Injury Cap

The CBC has reported that a group of concerned citizens has formed a new consumers action group calling for a review of New Brunswick's "minor injury" cap on car accident insurance claims.

Frances McConnachie is a member of N.B. Consumers for Insurance Fairness. McConnachie was quoted as saying she received $2,500 following an accident in 2004 that has left her with back and neck problems that limit her activities and make her reliant on therapy and pain killers.

Victims Share Stories

The group has started a Facebook page where N.B. accident victims can share their stories, provide support, and get information about the groups effforts to get the N.B. Government to repeal the $2500.00 limit on compensation for so called minor injuries.

I would encourage any readers from New Brunswick to join the fight for fairness!

N.S. Changed Minor Injury Law

After the NDP won the last election here in Nova Scotia, they fullfilled one of their election promises by making improvements to the minor injury cap here in N.S.

The amount of the cap was increased to $7500.00 and the number of people whose claims will be unfairly limited by the cap have been reduced.

Court of Appeal Confirms Minor Injury Cap - NDP to Repeal Cap Law

What is a Pecuniary Loss in a Personal Injury Claim?

Fri, 30 Jul 2010 12:59:42 -0400

There are generally two types of losses that your personal injury lawyer will try to recover on your behalf.

Non Pecuniary Losses

Non pecuniary losses are losses or harms that cannot be precisely measured or valued. For example, the most common type of non-pecuniary loss is compensation for “pain and suffering”.

See for example Nova Scotia Personal Injury Claims: How Much Is My “Pain and Suffering” Worth?

Pecuniary Losses

On the other hand pecuniary losses are financial losses that can be precisely measured. They may involve out of pocket expenses for things like medical treatment, travel expenses or funeral expenses.

The largest pecuniary loss that most personal injury victims suffer is their loss of income. If someone is seriously injured as a result of someone's negligence they are entitled to be compensated for their pecuniary losses for their past loss of income to the date of settlement or trial, as well as any ongoing income losses they may continue to suffer in the future.

In wrongful death cases, family members are entitled to recover for the pecuniary loss of income that the deceased family member provided to support the family.

Expert Evidence

Pecuniary losses may be difficult to calculate. Typically this part of the claim requires the services of an expert. See for example, Experts in Personal Injury Claims.

In most cases your personal injury lawyer will hire an economist or an actuary to figure out exactly what your pecuniary losses have been to date and how much your pecuniary losses will be in the future. Economist and actuaries use tables, guidelines and statistics to help determine how much money you would have earned over your lifetime. Obviously, there is no such thing as a crystal ball and future losses can never be determined with absolute certainty.

Your lawyer will take into account what are called negative contingencies. For example, the chance that you may have been fired, that your company would go bankrupt or that you may have been injured in some other way.

On the other hand, the expert will also determine the “positive contingencies” like raises, bonuses and promotions that might have increased your income in the future.

Pain and Suffering Awards in Canada: Taxable or not?

Wed, 28 Jul 2010 12:31:30 -0400

"Do I have to pay income tax on my personal injury award?"

I get asked this question a lot. The short answer is, at least until the government changes the Income Tax Act, personal injury awards in Canada are not taxable.

In Canada, compensation for non-pecuniary damages (what is typically referred to as “pain and suffering”) is not considered taxable income. However, if you invest the money that you receive, any interest, profit or gain that you receive from those investments is taxable.

For example, say you receive $100,000.00 in compensation for your “pain and suffering” claim. The entire award is tax free.

However, if you take that $100,000.00 and buy an investment that earns 5% interest per year, the $5,000.00 you earn each year will be considered taxable income.

There are tools that your personal injury lawyer can use to ensure that investments from your injury settlement are tax free.

In certain circumstances your personal injury lawyer may recommend that you place your settlement funds into an investment known as a “structured settlement”.

A structured settlement is a type of investment, known as an annuity, where you purchase an insurance contract that entitles you to receive periodic payments (usually monthly) over a specific time frame (which may be a specific number of years or even your entire life).

All of the payments, including any increase in value of the payments over time, are tax free.

Structured settlements are not right for every personal injury claim. There are advantages and disadvantages that you will need to discuss with your personal injury lawyer.

Structured settlements can be complicated and your lawyer will probably retain the services of an expert to determine whether a structured settlement is right for you and what the appropriate terms of the structured settlement should be.

Slip and Fall Claims: 10 Questions You Need To Answer

Mon, 26 Jul 2010 12:25:47 -0400

If you have been injured as a result of a “slip and fall” or “trip and fall” there are 10 questions that you should know the answer to before you call a lawyer. Knowing the answers to these questions will help the personal injury lawyer evaluate whether or not you have a claim that is worth pursuing.

10 Questions:

1. What was the weather like on the day that you fell?

2. What kind of shoes were you wearing? (Keep the shoes. Take pictures).

3. Do you wear glasses or contact lenses? (Were you wearing them when you fell?)

4. Do you have any medical history of dizziness or falling?

5. Do you take any medication that makes you dizzy?

6. What caused you to slip or trip? (Take pictures if you can).

7. Had you had any alcohol to drink on the day you fell?

8. Were there any witnesses to your fall? (Get their names, and contact information)

9. Did you file an accident/incident report with the property owner or police?

10. If your fall was caused by a dangerous condition, how long do you think the conditions existed before you fell?

Knowing the answers to these questions will help the personal injury lawyer evaluate whether or not you have a claim that is worth pursuing.

Embrace Life!

Wed, 14 Jul 2010 09:07:18 -0400

I don't think I have ever seen a more effective educational video promoting seatbelt use.

Watch the video here: Embrace Life

In the past 10 years, more than 30,000 Canadians have died in car crashes.

Today 93% of Canadians use their seat belts.

The 7% of Canadians that do not wear seat belts account for almost 40% of motor vehicle accident deaths!

Bicycle Helmets Save Lives - Prevent Brain Injury

Tue, 06 Jul 2010 21:00:53 -0400

I bought my son Liam a new bike this past weekend. He just couldn't wait to get outside and go riding with his friends. But he had to wait while I made sure that his new bicycle helmet fit him properly.

Summertime is Bicycle Time

With warm weather and summer vacation the number of children on bikes increases dramatically. So do the number of children attending hospital emergency rooms with head injuries.

Last month I read an article about bicycle helmet use by a pediatric neurosurgeon from Winnepeg's Children's Hospital expressing concern about Manitoba's "dismal" rate of helmet use. Only 22% of Manitoba cyclists wear a helmet when they ride.

Almost Half of Canadians Don't Wear Helmets

According to Statistics Canada's Community Health Survey :

Among the 11.4 million people aged 12 and over who reported bicycling in the past year, almost half (46%) never wore a helmet.

Can you believe that there are still people who refuse to wear a helmet when they ride a bike?

Good News Bad News

The good news, at least here in Nova Scotia, is that we have gone from one of the lowest rates of helmet use in the country to the highest (66%) since the province introduced legislation making helmet use mandatory. But even with laws that require helmets more than 4 out of 10 Nova Scotians still insist on risking their lives, and their brains, by riding unprotected.

How to Properly Fit a Helmet

So as a public service I have included a link to an article on helmets.org which explains how to properly fit a bicycle helmet.

So have a great summer and please make sure you and your loved ones wear a helmet!

Class Action involving "disgraced" pathologist to proceed: NB Ct. of Appeal

Mon, 28 Jun 2010 21:59:30 -0400

Dr. R. Menon tried to stop a class action filed against him by patients whose test results were mis-read by Menon.

The New Bruswick Court of Appeal ruled last week that the class action can proceed.

I have been following this fiasco for the last two years. For more information you can take a look a some of my past posts:

Pathologist Menon Should Have Been Fired Years Ago: N.B. Inquiry

Disgraced Pathologist Menon “Sorry” but Blames Everyone in Sight

Disgraced Pathologist Menon's Work had 'Big Problems': New Brunswick

Health Authority Knew About Pathologist's Problems: Miramichi

Perhaps now the parties can get down to the real issue. Compensating the victims who were injured or died, because they didn't receive treatment for cancer, because of the problems with Menon's work.

Brain Injury Awareness: BIANS (Hfx) presents mini-film festival

Tue, 08 Jun 2010 15:29:26 -0400

June is Brain Injury Awareness Month.

Every year in Nova Scotia between 2200 and 3500 people sustain a brain injury through a variety of ways such as falls, motor vehicle accidents, strokes, near drowning and aneurysms. No one recovers 100% from a brain injury. Dealing with the effects of brain injury is a lifelong journey for brain injury survivors and their families. The Brain Injury Association of Nova Scotia works to enhance the quality of life for survivors and their families.

To promote Brain Injury Awareness Month, the Halifax Chapter of the Brain Injury Association is inviting the public to two special movie viewings this month in the Royal Bank Theatre at the Halifax Infirmary on Summer Street.

On June 23rd at 7:30 pm the movie 'Braindamadj'd Take II' will be shown. On June 29th at 7:30 pm the documentary movie 'Breakaway' will be shown with a post-movie discussion with the subjects and producer of the film.

There will be no admission charged to these movie showings, but donations to the Brain Injury Association of Nova Scotia will be accepted at the door.

For more information contact HalifaxBIANS@gmail.com.

Supreme Court of Canda Refuses to Hear Appeal on N.S. Minor Injury Cap

Thu, 27 May 2010 12:29:26 -0400

Injured Victim's Constitutional Appeal Fails

Today the Supreme Court of Canada refused to hear an appeal of a decision that upheld the constitutionality of Nova Scotia's cap of $2500.00 compensation for injured car accident victims deemed to have suffered a "minor injury".

The Applicant MacDonald was involved in a car accident in November, 2003. She suffered soft tissue injuries to her neck, shoulders and back. Her insurance company claimed that she had suffered a "minor injury" under Nova Scotia's new auto insurance provisions and offered a settlement that included the capped amount of $2,500 for pain and suffering.

The other Applicant Gionet was in a car accident in December, 2003. She suffered soft tissue injuries to her knee and back. She accepted the insurance company's offer of $3,000 to settle her claim for pain and suffering and for loss of wages.

Victims Claimed "Minor Injury" CAP Discriminatory

The plaintiffs applied to challenge the constitutionality of amendments to the N.S. Insurance Act that "capped" damages for "minor" injuries, as defined in the legislation, at $2,500.00. The plaintiff's claimed the law discriminated on the basis of physical disability and sex. They also contended the Regulations promulgated under the Act were ultra vires.

Supreme Court Upheld "Minor Injury" Cap

Justice Walter Goodfellow of the Nova Scotia Supreme Court upheld the legislation.

Benefits of “Minor Injury” Cap Legislation does not Justify Discrimination

Court of Appeal Confirmed Trial Decision

The Nova Scotia Court of Appeal dismissed the plaintiff's appeals. They appealed to the Supreme Court of Canada.

Court of Appeal Confirms Minor Injury Cap - NDP to Repeal Cap Law

Supreme Court of Canada

In a decision released today the S.C.C. ruled:

"The motions for an extension of time to serve and file the first and second applications for leave to appeal are granted. The first application for leave to appeal...is dismissed without costs. The second application for leave to appeal...is dismissed with costs to the respondents Adam Thomas Roy and Attorney General of Nova Scotia."

That's All Folks

The S.C.C. decision marks the end of the line. If you or a family memeber have been injured in a car accident since November 2003 your claim will be determined based on the amendments to the Insurance Act that caps compensation for "pain and suffering" for "minor" injuries at $2500.00.

Recent Changes to Cap

The NDP government introcuced changes to the "minor injury" cap recently. Unfortunately, they did not scrap the cap as many injured victims had hoped. The cap remains in place. There were some improvements made to the cap. But they will not apply retroactively.

Nova Scotia’s Minor Injury Cap: NDP Makes “Minor” Improvements

Get Advice!

Now more than ever it is important for injured accident victims to get advice from an experienced Nova Scotia Car Accident Lawyer.

Which version of the legislation applies to your claim? Is your claim is capped? What evidence do you need to prove that your claim isn't capped? What compensation you are entitled to in addition to the cap? These are all questions that are best answered by an experienced motor vehicle accident lawyer.

Brain Injury Survivors Face Long Waits for Services

Wed, 12 May 2010 22:32:47 -0400

Survivors of traumatic brain injuries face long waits for treatment and rehabilitation services.

No Service the Norm

The president of the Brain Injury Association of Canada, Shirley Johnson, says that for persons who have suffered brain injuries shortages of programs, long waiting lists or simply no access to services at all, is the norm in most areas of the country.

Help Us Change That

June is Brain Injury Awareness Month in Nova Scotia. The Brain Injury Association of Nova Scotia is hosting 18 Holes for Hope on Monday June 21, 2010 at the Brightwood Golf and Country Club.

This is one of BIANS major fundraisers. There are still a few spaces available for anyone who wants to come out and support brain injury awareness. You can contact me through this blog if you want more information.

Nova Scotia’s Minor Injury Cap: NDP Makes “Minor” Improvements

Sat, 08 May 2010 23:44:47 -0400

Nova Scotia has a cap on the amount of compensation that innocent victims are entitled to receive when they have been injured in a car accident.

I have posted before about the unfairness of Nova Scotia’s minor injury cap. For example, see Benefits of “Minor Injury” Cap Legislation does not Justify Discrimination

Promise to Scrap the Cap

The NDP campaigned on a promise to do away with the $2,500.00 minor injury cap. Most people believed that the NDP intended to scrap the cap altogether since that was the fairest thing to do.

NDP Increases Cap to $7,500.00

However, on April 28, 2010, the NDP Government introduced changes to Nova Scotia’s minor injury cap. Unfortunately, the cap remains in place. The amount of the cap has been increased to $7,500.00 and some minor improvements have been made to the legislation which will allow more accident victims to recover more compensation.

The legislation was passed on May 7, 2010 but the "new" cap will not take effect until it is proclaimed in force.

"Does the Cap Apply to My Claim?"

I get asked that question a lot. Unfortunately there is no single answer. If you have been injured in a car accident you should get the advice of an experienced Nova Scotia Car Accident lawyer.

$2,500.00 Cap Still Applies to "Old" Claims

One of the key issues that the NDP Government had to struggle with was whether any improvements to the minor injury cap would be made “retroactive”. In other words, would the benefits be extended to anyone who has been injured since the minor injury legislation came into affect in November 2003, or would they only apply on a “go forward” basis? Unfortunately, the NDP Government has decided not to make the improvements retroactive.

Anyone who has been injured in a car accident since November 2003 is stuck with the draconian and unfair $2,500.00 minor injury cap.

Amount of Compensation under "New" Minor Injury Cap

As I mentioned, while the minor injury cap remains in place the amount of compensation that injured victims are entitled to recover has increased from $2,500.00 to $7,500.00. While this is an improvement, innocent accident victims who may end up suffering significant injuries that cause pain for the rest of their life will be limited to the maximum recovery of $7,500.00.

In my view this simply isn’t reasonable.

Sprains, Strains and Whiplash

The definition for the old $2,500.00 cap eliminated the vast majority of injury claims, including people who suffered fractures, some forms of disfiguring injuries, and long term chronic pain.

The new definition will focus on limiting compensation to persons who have suffered sprains strains and certain kinds of whiplash. This is certainly more in line with what the insurance industry asked for when they were lobbying for the original minor injury cap.

Details Matter

However, as always, the “devil is in the details” and how the regulations define what is covered by the cap and what is not covered by the cap will ultimately have a huge impact on the fairness (or unfairness) of this new legislation.

So what does it all mean?

There is no question that a cap of $7,500.00 is better than a cap of $2,500.00.

There is no question that limiting the types of injuries that the minor injury cap applies to is an improvement.

Bad Law Bad Policy

However, I believe that placing a cap on the amount of compensation that innocent injured car accident victims are entitled to receive in order to increase insurance company profits is bad law and bad public policy.

Making minor improvements to a bad law does not make the law fair nor does it make it good public policy. I represent hundreds of injured accident victims who have been waiting to resolve their claims in hope that the NDP Government would do the right thing and scrap the minor injury cap altogether. They now face the prospects of having to deal with their claims under the egregiously unfair provisions of the $2,500.00 minor injury cap.

John McKiggan invited to present to National Symposium on Class Actions

Mon, 19 Apr 2010 12:25:27 -0400

Osgoode Hall Law School's National Symposium on Class Actions is Canada’s "premier forum for class actions debate". The Symposium "brings together leaders from both sides of the bar as well as experienced judges and academics to share and explain the strategies and tactics at play in this form of high-stakes litigation".

The conference is taking place at Osgoode Hall Law school April 29 and 30.

I am pleased to say I have been invited to speak to the conference as part of a panel discussing the top 10 class actions decisions of the past year.

I have had a chance to preview some of the papers for the conference and I have to say I am very impressed. It should be a great conference for anyone interested in this developing area of law.

Brain Injury Lawyer Explains New Rule for Children with Head Injuries

Thu, 25 Mar 2010 16:29:49 -0400

More than 650,000 children are seen every year in hospital emergency rooms across North America suffering from the effects of mild traumatic brain injury.

Important Tool

CT scans are an important tool used in diagnosing the severity of brain injury. The problem is that CT scans expose children to the harmful affects of radiation.

Dramatic Increase

In Canada, the number of CT scans in pediatric emergency departments has increased from 15% in 1995 to over 50% in 2005.

Rule Helps Determine Who Needs Scan

A new study published by the Canadian Medical Association Journal has created a new rule to help doctors determine when a child, who has suffered a head injury, should receive a CT scan. The CATCH rule (Canadian Assessment of Tomography for Childhood Injury) uses findings from the child’s history and a physical exam to help determine which children are in need of further testing including CT scans.

Four Risk Factors

Four high-risk variables were found to be most important: a Glasgow Coma Scale score less than 15 at 2 hours after injury, suspected skull penetration or depressed skull fracture, worsening headache on history, and irritability on examination.

Rules Help Increase Accuracy/Decrease Risk

The new rules will help limit children's exposure to the potentially harmful effects of radiation, while at the same time help increase the accuracy of diagnosing children who have suffered a traumatic brain injury.

When is an Expert not an Expert?

Wed, 10 Mar 2010 10:47:45 -0400

A recent decision from the Ontario Superior Court had to ask (and answer) this questions.

In Babakar v. Brown the Babakars were injured in a motor vehicle accident. They were insured by State Farm Insurance. They applied for accident benefits under their own automobile policy. Their insurance company sent the Babakars to see a psychologist, an orthopedic surgeon and a physiotherapist for so called “independent" medical examinations.

Plaintiffs Cut Off

Based on the reports of the experts, State Farm cut off the Babakars’ accident benefits. (What a surprise).

The Babakars were forced to sue their own insurance company to try to recover the benefits that they were entitled to receive under their auto insurance policy.

How Were Experts Reports Prepared?

During discoveries the Babakars’ lawyer asked State Farm to ask their experts a number of questions about how their reports were prepared:

1. To ask Dr. Hoath whether pre-accident or other historical records were needed and if he ever made a request to State Farm for the records.

2. If pre-accident records were information Dr. Hoath thought he needed, why didn’t he request it? To ask Mr. McCready, when he had the report, if he ever considered sending such information to Dr. Hoath.

3. To ask Dr. Kadish what use he made of or what possible benefit to him Mr Diaz’ s Functional Ability Evaluation Report was given that Mr. Diaz says in his report he can’t tell you anything without the Functional Demands Analysis.

4. With respect to Farzana, ask Dr. Hoath why he didn’t have the pre-accident records of Dr. Sheikh, whether he thought they were necessary, did he ever ask for them? Did the adjuster, after having reviewed the report, think to send the records to Dr. Hoath or ask Dr. Hoath if the pre-accident reports were important?

5. Ask Dr. Dorman to confirm at page 3 (Tab 127) that his notation about bruising of her legs at the hospital was information that he received from Mrs. Babkar as opposed to otherwise.

6. Refusal – To ask Dr. Dorman if his answer in question no. 2 on page 8 of 9 of his report, if he is referencing Farzana’s right knee problem.

7. To ask Dr. Dorman why he was answering questions that he was not asked by the insurer to address.

Insurer Refuses to Answer Questions

The insurance company refused to ask the questions on the basis that the doctors were expert witnesses and discovery of experts is prohibited under Ontario’s Rules of Court.

State Farm was ordered to make the inquiries on an initial motion. State Farm appealed.

On appeal, Justice Lederer said that:

“An expert is not treated as an expert when his or her opinion is an approximate or immediate cause of the harm, loss or damage.”

In other words, because the experts’ conduct was the reason why the Babakars had been forced to sue, the experts were the cause of the loss that was the subject of the litigation. Therefore, the prohibition against discovery of experts did not apply.

Justice Lederer concluded that:

“These reports are not prepared to assist the court in understanding technical information that is outside the knowledge of the judge or jury. The information in the reports is used by the insurer to assist in determining whether the party claiming the benefit qualifies. If, as here, it is suggested that a determination that a party does not, or no longer qualifies, was made in bad faith, the basis upon which the determination was made is directly pertinent.”

I understand that State Farm has appealed. What Does it mean to Nova Scotia Accident Victims?

This decision is going to be relevant to claims in Nova Scotia because we have recently implemented new Civil Procedure Rules which eliminates (or severely curtails) the right to discovery of expert witnesses.

I anticipate Nova Scotia courts will interpret the prohibition on discovery of experts in much the same way since our rule is based on the same rule in Ontario.