(403) 571-0555
About Us
Our Team
Medical Malpractice
Personal Injury
News
Contact

Written on behalf of Cuming & Gillespie

Dentist Awarded $5.26 Million After Failed Career Ending Vision-Correction Surgery

A Toronto Judge has ordered Dr. Yair Karas (“Karas”) to pay Dr. Brent Jesperson (“Jesperson”) $5.26 million for a “poorly done and misleadingly explained operation” that caused Jesperson to be unable to continue practicing dentistry and left him feeling depressed and suicidal.

WHAT HAPPENED?

In 1994, Jesperson decided to undergo vision-correction surgery, known as radial keratotomy (“RK”), in order to play sports without having to wear glasses.  Although he was admittedly capable of performing his work as a dentist with glasses, he chose to proceed with the procedure after his ophthalmologist suggested the surgery to him and advised that the risks were minimal.

RK was invented by a Russian doctor in the 1970s.  It involves making incisions with a diamond blade in the cornea in a radial pattern around a clear area, flattening the cornea and correcting the nearsightedness.  RK was an elective surgery that was performed on thousands of nearsighted Canadians for many years, until it was replaced in the 1990s by safer, more effective laser-assisted procedures.

Jesperson considered the surgery to be a success at first, but his eyesight worsened as time went on and he began to suffer from blurriness in one eye, glare and impaired depth perception.  He returned to see Karas a year after the surgery and underwent another operation.  His eyesight again improved, but he began over time to develop eyesight problems.

Jesperson was forced to give up his dental practice in 2009 as he was unable to continue working on patients. 

In her reasons for judgment, Justice Darla Wilson wrote:

His life has changed dramatically now because of his vision problems.  He cannot work as a dentist, he gets eye strain that causes headaches and he finds he is fatigued.

LIABILITY FINDINGS AT TRIAL

At the conclusion of the trial, Justice Wilson found that Karas’ judgement fell below the standard of care of a surgeon, performed the surgeries negligently and failed to warn Jesperson of known risks and overstated the chances for success. 

Justice Wilson also concluded that Karas did not obtain the required informed consent prior to operating.  Karas was obligated to provide the known risks to Jesperson, including that cutting the cornea might lead to corneal weakness or instability; the potential that he might not be free of his glasses; he may suffer from halo, glare and starburst in his vision, fluctuating vision, loss of clarity of vision or irregular healing which may create an irregular astigmatism which could not be corrected by glasses.  In her decision, Justice Wilson wrote:

The consent form signed by the Plaintiff made no mention of these known risks, there was little or no discussion about them or of other options, and therefore Dr. Jesperson did not given an informed consent to the RK surgery.

Justice Wilson also concluded that Karas did not meet the standard of care required of an ophthalmologist as he made a pattern of incisions that left too small a clear area, which cut into the eye’s limbus (the marginal region of the cornea of the eye) and reduced the effectiveness of the operation.   As a result of the negligence of Karas, Jesperson was left with an unstable cornea, scarring and irregular astigmatism. 

Justice Wilson wrote:

Dr. Karas knew that the work of a dentist required good, clear vision to do fine work in the small, dark spaces of the mouth.  An individual who required excellent vision to work at his chosen occupation would not risk his career for the potential benefit of playing sports without glasses.

WHAT WERE THE DAMAGES AWARDED TO JESPERSON?

As part of his claim for damages Jesperson claimed a past loss of income and a future loss of income as a result of his inability to practice as a dentist.  Justice Wilson concluded that Jesperson could work on a part-time basis (15 hours a week) as a college instructor in the field of dentistry after he stopped working as a dentist.  Given this consideration, she awarded Jesperson $2,465,000 for past loss of income and $2,591,161 for his future income loss.

Jersperson also made a claim for general damages (i.e. damages for non-monetary losses).  Based upon the evidence at trial, Justice Wilson found that as a result of the surgeries Jesperson was left with weak corneas, a severe irregular astigmatism in his left eye, irregular astigmatism in his right eye and neovascularization of several incisions in his eyes.  Jesperson experiences blurred vision, glare, lack of depth perception and problems focusing, eye strain, headaches and fatigue.  Given these challenges, Justice Wilson awarded Jesperson general damages of $150,000.  He was also awarded out of pocket expenses and his wife was awarded $40,000 in damages for her loss of care, guidance and companionship. 

At Cuming & Gillespie Lawyers, we represent individuals who suffer from all types of serious personal injuries, including those resulting from medical malpractice.  With over 20 years of experience, the award-winning lawyers at Cuming & Gillespie have handled many different types of medical malpractice claims, and have the experience and knowledge to evaluate your case and help you decide when you should pursue a claim.  Please contact our office today either online at 403-571-0555 for a free initial consultation.


Is the ‘Textalyzer’ the New Device That Will Bust Distracted Drivers in Canada?

Millions of collisions throughout North America are caused by distracted driving.  According to Transport Canada’s National Collision Database, distracted driving contributed to an estimated 21% of all fatal collisions and 27% of all serious injury collisions across Canada.

Data released from the government of Alberta has shown that the number of distracted driving convictions in Calgary in the past five years has decreased by nearly half.  The majority of those who were convicted of distracted driving were those using hand-held devices, such as cellphones.

Despite these encouraging numbers, the government is considering introducing new technology for Canadian police to use to catch distracted drivers on our roadways.  The technology, known as a textalyzer, is also being considered to help prove that a driver was using their phone while driving by various states in the U.S.A., including New York and Nevada.

WHAT IS A TEXTALYZER?

A textalyzer is a device developed by an Israeli digital forensics company, Cellebrite, that would allow police to plug a suspected distracter driver’s cellphone into the device to determine if the driver was on the phone while driving.

According to Cellebrite’s website:

If a driver was using the hands-free option to talk via their mobile-phone, the Textalyzer would also be able to determine that.  Much like the breathalyzer, from which the device received its name, its two prime-use cases are for situations where either there is a suspicion of distracted driving or at the scene of an accident.

Critics of the textalyzer are concerned about privacy rights and that police would have access to private data that they should not have access to without a court order.

Former Privacy Commissioner for Ontario, Ann Cavoukian, stated:

My concern is this: if the police are accessing your cellphone, could they get access to any other information … all of the sensitive data? … I want some assurance that the police will not be able to gain access to all this other wealth of information which they are not authorized to access.

Cavoukian explained that a cellphone is more than just a device to make phone calls, it also keeps track of a lot of information, including financial records, health data and communications with numerous individuals.  Cavoukian would like to have an independent, third-party review and assess Cellebrite’s textalyzer to verify that it will not access personal information.

ALBERTA’S DISTRACTED DRIVING LAWS

Penalties for distracted driving were increased on January 1, 2016 when the government of Alberta increased fines from $172 to $287, in addition to three demerit points.  Those who receive too many demerit points will have their driver’s licence suspended.

In Alberta, distracted driving laws apply to all roadways and according to the Traffic Safety Act prohibit drivers from exhibiting the following distracting behaviour while driving:

  • Using hand-held cell phones;
  • Texting or e-mailing;
  • Using electronic devices, such as laptop computers, video games, cameras and portable audio players;
  • Entering information on GPS units;
  • Reading printed materials;
  • Writing, printing or sketching; and
  • Taking part in any personal grooming, such as brushing and flossing teeth, putting on makeup, hair care, clipping nails or shaving.

HOW TO REDUCE DISTRACTED DRIVING

The law firm of Cuming & Gillespie Lawyers would like to recommend the following ways in which we can all reduce the number of motor vehicle accidents on our roadways caused by distracted driving:

  1. Stop Texting and Driving:  Texting while driving is dangerous and increases the risk of an accident.
  2. Put Away Your Cell Phone:  All activities involving a cellphone should be avoided while driving, including using maps and the GPS for navigation purposes.  If drivers are still tempted to use their phone while driving, the device should be turned off and stored in the vehicle out of the reach of the driver. 
  3. Avoid All Other Distractions:  Talking to passengers, listening to music, applying makeup, eating and drinking are all distracting behaviours that can increase the risk of an accident.
  4. Remind Your Loved Ones to Avoid Distracted Driving:  Do not be afraid to speak up if you notice that your loved ones are engaged in distracted behaviours while driving. 
  5. Leave Yourself Enough Time to Travel:  Leaving early will allow you the time to make safer driving decisions and the time to pull over to answer a phone call, if necessary.
  6. Avoid Multi-tasking:  It is important to focus on the road while driving and avoid completing other tasks.
  7. Plan Your Route in Advance:  Careful planning before you enter your vehicle will help you get where you are going.  If you are using a GPS device, be sure to program it before you start driving and use the audio feature to provide navigation instructions so you do not have to look at a screen while driving.

If you or a loved one have been injured in a motor vehicle accident and distracted driving has played a role in the injuries you have suffered, you may be entitled to compensation for the damages you have suffered.  It is important that you call the lawyers at Cuming & Gillespie Lawyers promptly so we can help you understand your rights and the potential to recover compensation for your injuries. Please contact the experienced personal injury lawyers at Cuming & Gillespie Lawyers online or at 403-571-0555 for a free consultation today.


Family of California Man Killed in Crash Suing Tesla

The family of Walter Huang (“Huang”), 38 years old at the time of his death, has filed a lawsuit against Tesla alleging wrongful death and negligence in a California state court.  Huang died in a crash while driving his Tesla Model X SUV along U.S. Route 101 in California in March 2018.

What Happened?

On March 23, 2018, Huang was driving his Tesla in Mountain View, California on Autopilot mode when the car sped up to 71 mph and crashed into a safety barrier, resulting in Huang’s death.

Huang had purchased his Tesla vehicle as a birthday gift to himself but quickly began complaining to family members about alleged flaws with the Autopilot features.  Huang even brought his vehicle into a dealership but was unable to replicate the issues that he was having with his vehicle and he was advised to keep driving it.

Huang’s family alleges that Tesla’s marketing of its Autopilot features left Huang with an “inflated impression” of the vehicle’s technological capabilities. 

The lawsuit alleges that Tesla has a defective product design, provided intentional and negligent misrepresentation and false advertising, in addition to other allegations.

The attorney representing the Huang family stated:

The navigation system of Huang’s Tesla misread the lane lines on the roadway, failed to detect the concrete median, and failed to brake the car, but instead accelerated the car into the median. …  That system is not safe, is not something that should be released to the public and certainly should not be advertised as an Autopilot system.

The Huang family wants to help prevent this tragedy from happening to other drivers using Tesla vehicles or any semi-autonomous vehicles.

The Huang family is also suing the state of California.  The lawsuit alleges that California’s department of transportation failed to replace a crash attenuator guard after a motor vehicle accident had occurred days earlier.  The family alleges that had the crash attenuator guard been replaced the impact would have been better absorbed during the high-speed collision.

What is Autopilot?

Autopilot is software that works as a driver-assistance system with features such as traffic-aware cruise control and lane keeping assistance that enables the vehicle to steer, accelerate and brake within its lane, as well as maintain a safe distance from traffic and follow road markings.

Tesla’s website specifically states that “[c]urrent Autopilot features require active driver supervision and do not make the vehicle autonomous.”

Tesla’s Response to Huang’s Accident

Although Tesla has not provided any comment in regards to the recent lawsuit commenced by the Huang family, Tesla did issue a statement following Huang’s accident, which read as follows:

Our hearts are with the family and friends who have been affected by this tragedy. … The driver had received several visual and one audible hands-on warning earlier in the drive and the driver’s hands were not detected on the wheel for six seconds prior to the collision. … If you are driving a Tesla equipped with Autopilot hardware, you are 3.7 times less likely to be involved in a fatal accident. … Tesla Autopilot does not prevent all accidents – such a standard would be impossible – but it makes them much less likely to occur.

Tesla also wrote on their website that the reason that the crash was so severe was that the crash attenuator, which is a highway safety barrier that is designed to reduce the impact into a concrete lane divider, had either been removed or crushed prior to Huang’s accident. 

Another Lawsuit Against Tesla Resulting From a Fatal Autopilot Crash

The family of Jeremy Beren Banner (“Banner”) has also filed a wrongful death lawsuit against Tesla in Palm Beach County.  On March 1, 2019, Banner was driving along a Florida highway when his 2018 Tesla Model 3 collided with a tractor-trailer that was crossing his path. 

The lawsuit states that Banner believed his vehicle would prevent fatal injury from driving into obstacles or other vehicles in its path and that his vehicle was:

safer than a human-operated vehicle because Defendant, Tesla claimed superiority regarding the vehicle’s autopilot system, including Tesla’s ‘full self-driving capability’, Tesla’s ‘traffic-aware cruise control’, Tesla’s ‘auto steer lane-keeping assistance’ and other safety-related components.

The lawsuit also alleges that Tesla knew that its product was defective and would not avoid impacting other vehicles or obstacles and that the company had specific knowledge of prior accidents in which safety systems failed resulting in significant property damage, injury and death to its occupants.

According to a preliminary report by the National Transportation Safety Board, Banner activated Autopilot on his vehicle approximately 10 seconds before the collision.  The vehicle did not detect Banner’s hands on the steering wheel beginning approximately 8 seconds before the crash until the point of impact.

Tesla maintains that the vehicle data logs showed that Banner removed his hands from the wheel immediately after activating Autopilot, which does not comply with Tesla’s instructions to drivers to keep their hands on the steering wheel while the vehicle is operating on Autopilot.

Tesla has also faced criticism for several additional fatal crashes, including:

  • May 8, 2018 fatal crash in Ft. Lauderdale, Florida;
  • May 11, 2018 crash in Utah;
  • May 29, 2018 crash in Laguna Beach, California;
  • October 12, 2018 crash on the Florida turnpike; and
  • January 22, 2019 crash into a fire truck in Culver City, Los Angeles;

Tesla maintains that its Autopilot system is safer than vehicles without it, however, admits that the system does not prevent all crashes. 

We will continue to follow the lawsuits against Tesla in the United States and will report in this blog if we become aware of a lawsuit filed in Canada.

In the meantime, if you or a loved one have been injured in a motor vehicle accident, please contact the knowledgeable personal injury lawyers at Cuming & Gillespie Lawyers online or at 403-571-0555.  We are committed to helping you obtain the compensation you deserve.


Halloween Pedestrian Safety Tips

Halloween is an exciting holiday for kids and is often one of their favourite nights of the year.  It’s a night when children can dress up, stay up late and binge on chocolate and candy.  However, there are unfortunately many hazards to be aware of and to look out for during Halloween night.

DANGERS FOR PEDESTRIANS

Halloween is the deadliest night for pedestrians, according to a study by researchers from the University of British Columbia.  Data from the National Highway Traffic Safety Administration in the United States from 1975 to 2016 demonstrated that the most dangerous hours during Halloween night were between 5 p.m. and 8 p.m. 

Pedestrian accidents are believed to increase on Halloween night for the following reasons:

  • There are more children on the road;
  • Excited children often forget about safety rules;
  • Dark costumes are difficult to see;
  • Masks restrict peripheral vision; and  
  • Halloween is a popular night for adult parties, which often involve alcohol.

According to the study, compared to any other fall night, on Halloween pedestrians have a 43% greater risk of being fatally struck by a car.  Not surprisingly, children are at the highest risk of being struck by a vehicle.  The study showed that children between the ages of 4 and 8 are 10 times more likely to be killed by a vehicle on Halloween than an any other night of the year. 

SAFETY TIPS FOR TRICK-OR-TREATING

The three most common factors associated with any pedestrian accident are visibility, distractions and vehicle speed.  Keeping this in mind, Cuming & Gillespie Lawyers would like to provide the following safety tips for little spooks and their parents on Halloween night. 

  1. Be Visible:  Costumes should be light coloured or have reflective patches so little trick or treaters can be seen in the dark.  Reflective tape or reflective paint is recommended.
  2. Costume Safety:  Make sure that your child’s costume fits properly and that they can walk in their costume without tripping and falling.  Also, use face paint instead of a mask that can obstruct your child’s eyes or lines of vision.  It is also important to wear non-flammable fabrics as most jack-o-lanterns have real candles inside.  Costumes made from fabrics such as nylon, polyester and acrylic are safest.
  3. Follow the Rules of the Road:  Ensure that while venturing out on Halloween that your children stay on the sidewalks and do not run between parked cars and jaywalk across the street.  It is important to remind children to look both ways before crossing the street.  Be sure to cross the street in well-lit areas and at marked intersections or crosswalks (where possible).
  4. Light it Up:  It is also recommended to carry a flashlight, glow sticks or clip bike lights onto your child’s costume and stay in well-lit areas.  You can also apply reflective tape on strollers to help keep it noticeable in the dark.  Parents should also carry flashlights.
  5. Check the Candy:  It is important to inspect your child’s entire candy bag before letting them indulge.  Remind your children not to open any candy until they get home and their parents have had an opportunity to inspect it.  Throw out any packages that have been opened, are homemade or repackaged.
  6. Travel in Groups:  Younger children usually go out with their parents on Halloween.  When your child is old enough to venture out on their own, make sure they are in a group.  Remind your children about the risks of trick-or-treating and give them a curfew.  You should also plan a route ahead of time and everyone in the group should be made aware of the route. 
  7. Avoid Distractions:  If you are a parent taking your children out for Halloween, it is important to keep distractions to a minimum and keep a careful watch on your children.  It only takes a moment for your child to dart out into the street or into the path of a vehicle.  Put your cell phone away and keep your eyes on your children.
  8. Drivers Should Be Alert and Slow Down:  Driving on Halloween can be difficult given the number of increased pedestrians walking in residential areas.  Do not speed in residential areas and be on the lookout for children and other pedestrians crossing the road, as they may not be crossing at intersections.  Also, it is important  to keep distractions, such as the use of handheld devices, to a minimum.  

The personal injury lawyers at Cuming Gillespie Lawyers wish your family a fun and safe Halloween!  

Should anything go wrong during Halloween, know that the lawyers at Cuming Gillespie Lawyers are available.  If you or someone you love has suffered a serious personal injury, contact our experienced personal injury lawyers at our office online or at 403-571-0555 for a free consultation.  We look forward to helping you obtain the compensation that you deserve.


Trial delays in personal injury disputes add insult to injury

Across Canada, trial wait times are plaguing the personal injury field, and plaintiff’s and insurance-defence lawyers are lamenting the many years it takes to close files.

Causes vary from province to province and, in some regions, cases linger longer than others. For injured people, bills pile up, critical support is inaccessible and some are forced to use litigation loans at exorbitant interest, say their lawyers. On the other side, insurance companies rack up huge legal bills as litigation can stretch on for the better part of the decade.

Read Full Article


Slip and Fall Season is Here: Are There Limitation Periods I Should Be Aware Of?

Last week, up to 10 centimetres of snow fell in the city of Calgary during the second snow event of the fall season.  Combining the snowfall with the subzero overnight temperatures resulted in slippery city sidewalks. 

This is just the beginning of slip and fall season and we all need to be careful to avoid injuries as we travel throughout the city.  As the snow falls and the temperatures drop, everyone, including business and property owners and the City of Calgary, have to take extra care to ensure that pedestrians can travel safely.

THE CITY OF CALGARY’S RESPONSE TO SNOWFALL

Chris McGeachy, speaking on behalf of the City of Calgary, advised that city crews worked all night applying salt to roadways to help melt snow and prevent ice from developing.

In Calgary, the city is responsible for clearing 249 of the 5,658 kilometres of public sidewalk.  Calgary Parks will also clear 400 km of its 850 km pathways within 24 hours from when the snow stops falling.

The City of Calgary’s snow and ice clearing budget is substantially lower than other Canadian cities.  There is currently a budge of $40.4 million, which covers the time period between January 1 to December 31, 2019.  There is also a snow reserve fund of $12.4 million.

If an individual slips and falls on snow and ice and suffers an injury on a publicly owned street or sidewalk in Calgary, the individual may have the right to seek monetary damages for their physical and emotional pain and suffering. In Alberta, unlike a personal injury claim against an individual or business, the injured party must be able to prove “gross negligence” on the part of the municipality.  This is a high, although not impossible, standard to prove.  Gross negligence can be defined as a conscious and voluntary disregard of the need to use reasonable care. 

CALGARY PROPERTY OWNERS OWE A DUTY OF CARE

As a homeowner, property owner or even a renter, you are responsible for keeping your property reasonably safe for others.  Property owners owe those lawfully on their property a duty of care to keep their property in a reasonably safe condition.  This includes cleaning your driveway, sidewalk and walkways from snow and ice.  If property owners are negligent in this duty, they can be held responsible for any injuries.

According to city bylaws, property owners are required to remove snow and ice from public sidewalks within 24 hours of snowfall ending.  The failure to remove snow and ice can result in fines, which start at $250 for the first offence and up to $750 for repeat offenders.  Property owners will also be charged a snow removal fee of at least $150.

These snow removal fines were introduced last year.  The City has advised that residents and businesses will first receive a warning notice before any action is taken.

LIMITATION PERIODS TO BE AWARE OF IN THE CASE OF PERSONAL INJURIES FROM A SLIP AND FALL ACCIDENT

Limitation periods for personal injury claims are very important.  If you miss a limitation period, you are unable to sue for your injuries and receive compensation.

In Alberta, the Limitations Act sets out the time limits for filing civil claims (i.e. personal injury lawsuits).  For the most part, personal injury cases, including those involving motor vehicle accidents, serious and fatal accidents and slip and falls, need to be started as follows:

  • Within two years of the incident in question; or
  • Ten years after the claim arose, whichever occurs first.

The timeline for filing a claim begins to run on the date that the person filing the claim knew or ought to have known that:

  • The injury occurred;
  • The injury was a result of someone else’s misconduct;
  • The injury warranted bringing a legal action.

There are exceptions to this rule regarding limitation periods.  The timer does not begin to run until the conduct stops or the last act or omission takes place in the case of claims that are based on a “continuous course of conduct or series of related acts or omissions”. 

In the case of claims involving minors, the operation of the Limitations Act is suspended until the minor reaches 18 years or age or until the minor can be represented by a litigation guardian or the Public Trustee.

There are special limitation periods that apply when an individual is making a claim against a municipality, such as the City of Calgary.  In Alberta, according to the Municipal Government Act of Alberta, you must inform the municipality of your injury within 21 days after the fall (with some limited exceptions) if you are claiming that the municipality is grossly negligent for ice or snow on a road or sidewalk. 

Contacting a personal injury lawyer promptly will assist you in commencing a claim and an experienced lawyer will advise you whether you have missed any limitation periods and whether or not an exception applies to your case.   

If you have been injured in a fall due to snow or ice, please contact the experienced lawyers at Cuming & Gillespie Lawyers online or at 403-571-0555.  It is important that you call us promptly so we can help you understand your rights and the potential to recover compensation for your injuries.  Call our office for a free consultation to determine how we can help you following a slip and fall injury.


Teenage Driver Safety

All parents will come to the point in their lives when their teenager has reached the driving age and is ready to set out on the open road.  A driver’s licence is the beginning of the road to independence for most teenagers.  However, due primarily to inexperience, the harsh reality is that motor vehicle collisions are the leading cause of death for teenagers between the ages of 16 and 19. 

STATISTICS REGARDING TEENAGE DRIVING

The Traffic Injury Research Foundation examined the involvement of young people in motor vehicle accidents and found that the rate of driver fatalities of those aged 16 to 19 years has consistently been greater than those that are 20 years of age or older. Also, speed was found to be a factor in more than a quarter of those car accidents that resulted in the death of a teen driver.

Impaired driving is a major problem affecting all drivers in Canada, especially young people.  Young people between the ages of 16 and 19 account for 23% of fatalities, 18% of injuries and 11% of those arrested for alcohol-related driving offences. More than one third of students in grades 9 to 12 report being a passenger in a vehicle of a driver who has been drinking. In fact, one in three teens do not consider driving while impaired by cannabis to be as bad as drunk driving.

FACTORS WHICH PUT TEENAGE DRIVERS AT RISK

The brain of a teenager is still developing.  The prefrontal cortex of the brain, which controls decision-making and risk taking, develops into early adulthood.  This might explain why young drivers are more willing to take risks and make impulsive choices while driving.  Teen drivers are also more likely to speed and drive with shorter distances between cars. 

The leading causes of teenage motor vehicle accidents include the following:

  • Driver inexperience;
  • Driving with teenage passengers;
  • Nighttime driving;
  • Not using seatbelts;
  • Distracted driving;
  • Drowsy driving;
  • Reckless driving; and
  • Impaired driving.

TIPS TO HELP KEEP YOUR TEENAGE DRIVER SAFE

Cuming & Gillespie Lawyers would like to provide the following tips to help parents keep their teenage driver safe and help avoid personal injury claims.

  1. Invest in a safe driving course for your young driver.  The more education and practice your child has behind the wheel, the better. 
  2. Emphasize the importance of avoiding distracted driving.  Ensuring that your teen is not texting, making phone calls, eating or engaging in any activity that will distract their driving is essential to safe driving.  Any behaviour that takes a driver’s attention away from the road is a distraction and potentially dangerous.  Setting a good example for your teen is also important.  If they see their parent distracted while driving, they will assume it is okay for them to participate in distracted activities as well. 
  3. Set a zero-tolerance drinking or cannabis policy with your child. Many young drivers do not understand or recognize the risks associated with driving while under the influence of cannabis.  Impaired driving (alcohol or drugs) can cause shorter attention spans, altered perception of time and distances and slower reaction times that impair a driver’s ability to drive safely. 
  4. Ensure that your teen driver has the proper sleep they need to drive safely.  Drowsy driving is very similar to drunk driving.  It can impair an individual’s reaction time, judgment and situational awareness. 
  5. Explain the risk of speeding to your teen.  Speed was found to be a factor in more than one quarter of teenager driver deaths. 
  6. Limit your teen from driving in stormy or hazardous weather.  Inexperienced drivers travelling on slick roads can have disastrous results.  Teen drivers need to understand the risks of driving in bad weather.  Inclement weather can reduce visibility, impair a driver’s capabilities and reduce a vehicle’s traction and maneuverability.  Hazardous road conditions increase crash risk.
  7. Make buckling a seatbelt a habit.  Seat belts can save lives and buckling a seatbelt is something that parents can start teaching their children right from the start.  Parents should also model proper seatbelt use and ensure that everyone in their vehicle is always buckled up.
  8. Be prepared for a motor vehicle accident.  As parents, we need to prepare our children for the possibility of an accident occurring while they are driving.  We need to teach our children what to expect and what is expected of them following an accident, such as interacting with the police or other driver and exchanging information regarding the vehicle and proof of auto insurance.  Parents should also discuss with their teens the importance of telling the truth after an accident. 

Keeping your teen safe while driving starts with practicing safe driving yourself, however, accidents are not always avoidable.  If you or a loved one have been injured in a motor vehicle accident due to an inexperienced or impaired teen driver, you could be eligible for compensation. 

To learn more about personal injury lawsuits or to file a claim, please contact the experienced lawyers at Cuming & Gillespie Lawyers online or at 403-571-0555.  Our personal injury lawyers will guide you through the litigation process and help you obtain the compensation you deserve.  Contact our office today to make an appointment for a free legal consultation with one of our experienced personal injury lawyers.


Jaywalker Who Witnessed Accident Awarded $98,000 for Nervous Shock

On March 20, 2013, Ariston Quirmit Marcena (“Marcena”) and his wife jaywalked across a street to their car after attending a medical appointment.  Mrs. Marcena was hit by a motorcycle and suffered serious injuries.  Marcena witnessed the accident and was diagnosed as suffering from nervous shock.  A B.C. Supreme Court judge awarded Marcena $98,794.86 in damages for the psychological injuries that he suffered as a result of observing his wife’s accident.

WHAT HAPPENED?

On the morning of March 20, 2013, Mr. and Mrs. Marcena were jaywalking across Yates Street in Victoria when Barry Robert Thomson (“Thomson”) hit Mrs. Marcena with his motorcycle. 

Mrs. Marcena filed a separate lawsuit regarding the damages she suffered as a result of the accident and her case has settled. 

DECISION REGARDING LIABILITY

Marcena sued Thomson for damages for nervous shock, which he alleges to suffer as a result of witnessing his wife being hit by Thomson’s motorcycle. Thomson adamantly denied liability at the trial.

B.C. Supreme Court Justice Jennifer Power ruled that Marcena was partially liable for the injuries he suffered.  Marcena initiated the jaywalking and his behaviour was found to be negligent and in breach of British Columbia’s Motor Vehicle Act

Justice Power also found the motorcyclist, Barry Robert Thomson, responsible for the accident as there was a hazard to be seen, nothing was obstructing his view and Ms. Marcena was wearing a bright yellow sweater.  Furthermore, the judge found that there was no evidence of any precautions taken by Thomson. 

Had he slowed in response to the halted vehicles in lane one, or upon seeing the Marcenas – who were there to be seen – enter the road, he could have avoided the accident. … I conclude that Mr. Thomson did not exercise due care to avoid colliding with a pedestrian on the highway, in violation of s. 181(a) of the Act and his common law responsibilities.  As such, he bears liability.

Justice Power concluded that because Thomson failed to keep a look out, failed to see what there was to be seen, and failed to take appropriate evasive action, he should therefore bear 25% liability for the collision.

DECISION REGARDING CAUSATION

At trial, Marcena alleged that he suffered psychological injuries as a result of seeing his wife struck and injured by the motorcycle accident.  The onus is on Marcena to show there is a “nexus” between the injuries that he sustained and Thomson’s negligent act or omission.  The question that the court was asked was “but for the defendant’s negligence, would the plaintiff have suffered the injuries?”

Justice Power agreed with Marcena’s allegations and concluded that the medical evidence established that Marcena suffered a psychiatric injury as a result of witnessing Thomson’s negligent conduct in running over Mrs. Marcena with his motorcycle.  Justice Power stated:

A reasonable person would have foreseen that striking a pedestrian with a motorcycle could cause traumatic psychological injury to a close family member who witnessed the accident.  …I find that Mr. Thomson’s negligence is a proximate cause for Mr. Marcena’s injuries, and the mental harm he suffered was a reasonably foreseeable outcome for a person of ordinary fortitude.

DECISION REGARDING DAMAGES

Justice Power concluded that Marcena suffered a psychiatric injury and was diagnosed with major depression as a result of witnessing his wife being struck by a motorcycle.  Since the accident, Marcena was also found to suffer from poor concentration, inadequate sleep, decreased energy levels, lack of motivation, headaches and forgetfulness.  The evidence before the court also established that Marcena had been unable to work since 2014 and has had ongoing trouble maintaining his relationships with his wife and son as a result of the accident.

In determining an assessment of non-pecuniary damages (damages which are not readily quantified or valued in money), the court considered the following factors:

  1. Age of the plaintiff;
  2. Nature of the injury;
  3. Severity and duration of pain;
  4. Disability;
  5. Emotional suffering;
  6. Loss or impairment of life;
  7. Impairment of family, marital and social relationships;
  8. Impairment of physical and mental abilities;
  9. Loss of lifestyle; and
  10. The plaintiff’s stoicism.

At the conclusion of the trial, Justice Power awarded Marcena the following:

  1. Non-pecuniary damages      $125,000
  2. Gross past wage loss             $140,000
  3. Loss of future income           $120,000
  4. Cost of future care                $10,000
  5. Special damages                    $179.45

Marcena was awarded $395,179.45 in total damages.  This damage award was reduced to 25% in light of the judge’s findings on liability. 

At Cuming Gillespie Lawyers, we are committed to helping you and your loved ones.  If you or a loved one have been injured in a motor vehicle accident and believe a third party is responsible, you may be entitled to compensation for damages.  Please contact the award winning lawyers at Cuming & Gillespie Lawyers either online or by calling 403-571-0555.  We can get started with a free case evaluation and are dedicated to providing you with the legal help that you deserve.


Rotator Cuff Injuries

Both motor vehicle accidents and slip and fall incidents can leave a victim with severe injuries that are difficult to recover from fully.  All parts of the body are vulnerable in a car accident due to the speed and impact of the crash.  However, the shoulder, the rotator cuff in particular, is generally at risk.  Shoulder injuries can also occur from slip and fall accidents, ranging from mild inflammation to severe tearing.

WHAT IS A ROTATOR CUFF TEAR?

The rotator cuff is a group of four muscles and tendons that stabilize the shoulder joint and provide the ability to lift and rotate the arms. 

There are two types of rotator cuff tears.  A partial tear occurs when one of the muscles that form the rotator cuff is frayed or damaged.  A complete tear occurs when the tear goes through the tendon or pulls the tendon off of the bone.

There are various symptoms associated with a rotator cuff tear, which can include:

  • Trouble raising the arm;
  • Pain when moving the arm in certain ways or lying on it;
  • Disruption in sleep, particularly if you sleep on the affected shoulder;
  • Weakness in the shoulder and arm;
  • Being unable to lift things; or
  • Hearing clicking or popping with arm movements.

Rotator cuff injuries typically occur in individuals who repeatedly perform overhead motions associated with their jobs or sports, i.e. painters, carpenters, or those who play baseball or tennis. 

There are also times that a rotator cuff tear occurs as a result of a single injury, i.e. a motor vehicle accident or slip and fall accident.

The risk of an injury of this nature also increases with age.  As we grow older, our tendons have a tendency to wear down, allowing them to be vulnerable to tears or other damage that may occur. 

DIAGNOSIS AND TREATMENT OF ROTATOR CUFF INJURIES

During a medical examination, your doctor will examine your shoulder and check to see the areas where it is tender and whether there is any deformity.  Your doctor will measure the range of motion of your shoulder by asking you to move your arm in different directions.  Your arm strength will also be tested during this initial examination.

Imaging tests such as x-rays, magnetic resonance imaging (MRI) and/or ultrasounds will provide more information to your doctor and will confirm whether you have a rotator cuff tear. 

There are a number of different treatment options available depending on your age, activity level, general health and the type of rotator cuff injury that has occurred, including:

  • Rest;
  • A Sling;
  • Limiting overhead activities;
  • Activity modification;
  • Strengthening exercises and physical therapy;
  • Heat or cold applied to the sore area;
  • Medication to reduce pain and swelling;
  • Electrical stimulation of muscles and nerves;
  • Ultrasound;
  • Cortisone injections; or
  • Surgery.

RESEARCHERS FIND SUCCESS IN NON-SURGICAL APPROACHS TO ROTATOR CUFF TEARS

Researchers at the University of Calgary have found that patients suffering from a full-thickness tear (torn right through from top to bottom) within their shoulder could be treated without surgery.  Seventy five percent of the one hundred patients who had torn their rotator cuff reported favourable results lasting for up to five years from a non-surgical approach.

Dr. Richard Boorman, an orthopaedic surgeon and the lead researcher, reported:

Their shoulders felt better, move better, functioned better. They did not only not want surgery, they didn’t need surgery. …

The patients in the study worked with a physiotherapist and were taught a set of specialized exercises to perform at home.  They were also required to return for follow-up appointments at regular intervals. Dr. Boorman explained:

Together – the patient and surgeon – decided if the treatment program was “successful” and that surgery was not an appropriate intervention, or if it “failed”, meaning surgery was the best option because significant symptoms still persisted.

Rotator cuff injuries can be very serious, affecting an individual’s ability to work, perform daily tasks, take part in recreational activities or generate an income.  Shoulder injuries of this nature should not be ignored.  Without proper treatment, rotator cuff injuries can lead to permanent stiffness or weakness or even progressive degeneration of the shoulder joint.

Compensation for rotator cuff injuries may include money for pain and suffering, loss of enjoyment of life, out-of-pocket expenses (including medical expenses, transportation costs etc.), cost of future medical care, past and future wage loss and loss of earning capacity.

If you or a loved one have suffered a rotator cuff injury due to a slip and fall accident or motor vehicle accident that occurred due to the fault of another individual, you may be able to file a legal claim against the responsible party. 

It is in your best interest to promptly hire a skilled and experienced law firm to guide you through the litigation process and answer any questions that you may have.  Cuming & Gillespie Lawyers can help evaluate your specific case to determine whether you have a valid personal injury claim.  Contact our office online or at 403-571-0555 for a free consultation today.  We look forward to helping you obtain the compensation that you deserve.


The Dangers of Ethanol-Fueled Appliances 

The Ontario fire marshal has issued a warning of the significant risk associated with tabletop fireplaces that use ethanol as fuel following a number of fatalities and injuries in Ontario over the past three years.

One of the incidents involved a woman named Hana Engel (“Engel”) who suffered second and third degree burns at a dinner party hosted by Cody Ceci (“Ceci”), a player for the Toronto Maple Leafs, and his common-law partner, Jamie Thompson (“Thompson”).   Engel is suing Ceci, Thompson and others for more than $8 million in damages for the injuries she has suffered when she was “immediately engulfed in flames”.

WHAT HAPPENED?

On May 9, 2018, Engel alleges that she became engulfed in flames when Thompson unintentionally ignited her with liquid ethanol burner fuel, causing Engel to suffer burns to 35% of her body.

At approximately 9 p.m., Thompson was refilling one of the burners of the outdoor fireplace.  It is alleged that she squirted ethanol onto the burner without checking to ensure that it had completely extinguished, which caused flames and ethanol to jet out of the bottle.  Thompson proceeded to throw the burning bottle in Engel’s direction, causing her clothing to catch fire and she became immediately engulfed in flames. 

The phenomenon referred to as flame jetting, which occurs when fuel vapors are ignited when refueling an appliance that is not fully put out and a flame is not visible, is the cause of several incidents of burn injuries.  According to Douglas Browne, Ontario’s Deputy Fire Marshal:

It essentially means the ethanol fuel creates an over pressurization in the canister and when a flame contacts it, it will shoot out flames similar to a blowtorch or flame thrower.

As a result of the accident, Engel was in a coma for three weeks and required three surgeries.  Engel alleges that her appearance has been permanently altered and she continues to undergo rehabilitation and treatment for her injuries.

Engel is seeking damages for pain and suffering, loss of amenities, loss of enjoyment of life, loss of housekeeping and homemaking capacity, loss of income, loss of competitive advantage in the marketplace and loss of economic opportunities.

The lawsuit also names Engel’s common-law partner, Jacob Cardwell (“Cardwell”), her parents and her siblings as plaintiffs (i.e. person(s) who brings a case against another in a court of law) in the lawsuit.  Cardwell is seeking $900,000 in damages for loss of care, guidance and companionship, loss of income, and for costs associated with providing nursing, attendant care and other services to Engel.  He is also seeking damages for nervous shock, intentional infliction of mental suffering and emotional distress. 

Engel’s parents are seeking $700,000 and her siblings are seeking $200,000 in damages for loss of care, guidance and companionship and for costs associated with nursing, attendant care and other services provided to Engel. 

The lawsuit names also Clair de Lune Products Inc. (the manufacturer of the tabletop ethanol fireplace) and Les Distributions Orca Lite Inc. (the distributor of the ethanol biofuel) as defendants (i.e. individual or company sued in a court of law).

It has been reported that Clair de Lune stopped selling the tabletop ethanol fireplace following this accident.

WHAT ARE THE ALLEGATIONS AGAINST CECI AND HIS PARTNER IN THE LAWSUIT?

According to the lawsuit, the plaintiffs allege that the incident was caused by the “individual or combined negligence” of the defendants. 

It is alleged that Thompson didn’t know how to properly operate the fireplace, disregarded warning labels, failed to take safety precautions failed to warn guests of the danger, failed to read instructions, and allegedly squirted liquid ethanol onto an open flame.

The lawsuit also alleges that Ceci was negligent for not knowing how to properly operate the fireplace, failing to read instructions, failing to understand the safety precautions, ignoring warning labels and failing to prevent Thompson from refilling the fireplace with ethanol while the flame was low.

CECI AND THOMPSON’S RESPONSE TO THE ALLEGATIONS

Ceci and Thompson have denied all allegations of negligence contained in the lawsuit against them. 

The statement of defence that Ceci and Thompson have filed in response to the lawsuit alleges that their co-defendants, the companies that manufactured and distributed the products involved in the incident, were responsible for the damages or losses suffered by the plaintiffs.

Ceci and Thompson allege that the manufacturers made the tabletop fireplace with faulty components, failed to properly test and inspect the product, sold poor quality materials, sold the fireplace without proper instructions, failed to warn consumers that the fireplace could fail at any time, and failed to warn retailers of the “inherent defects and dangers associated with the use of ethanol-filled tabletop fireplaces”.

The couple also allege that Engel’s damages and losses were contributed to by her own negligence.  They set out in their defence that Engel was inattentive, endangered her own safety, may have been impaired and was affected by “illness, injury or disease” that pre-dates the incident in question.

None of the allegations made by the plaintiffs or the defendants have been tested in court.

HOW TO PREVENT FLAME JETTING FROM OCCURING?

The Office of the Fire Marshal and Emergency Management of Ontario recommends the following tips to prevent flame jetting when utilizing ethanol fuel appliances:

  • Ensure that all flames in an ethanol fueled appliance are fully extinguished and that it is cold to the touch before refueling;
  • Ensure that no one is near the appliance when refueling;
  • Use a fuel container that has a flame arrester (plastic or wire mesh that absorbs heat from a container and prevents fire from travelling inside) when refueling.

If you or a loved one have experienced a serious personal injury or loss as the result of someone else’s fault or negligence, you may have grounds to pursue legal action against them in the form of a personal injury claim. Please contact the experienced personal injury lawyers at  Cuming & Gillespie Lawyers for a free case evaluation online or by calling 403-571-0555.  We are dedicated to providing you with the legal help you deserve.


Personal Injury

Read more

Medical Malpractice

Read more

Our Team

Latest News

Dentist Awarded $5.26 Million After Failed Career Ending Vision-Correction Surgery

Is the ‘Textalyzer’ the New Device That Will Bust Distracted Drivers in Canada?

Family of California Man Killed in Crash Suing Tesla

Halloween Pedestrian Safety Tips

Slip and Fall Season is Here: Are There Limitation Periods I Should Be Aware Of?

What our clients have to say