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Written on behalf of Cuming & Gillespie

Lawsuit Commenced by Estate and Parents Over Broncos Bus Crash

The estate and parents of Adam Herold, one of the Humboldt hockey players killed in the highway bus accident, is suing the semi-truck driver, trucking company, and the manufacturer of the bus.

The horrific accident occurred on April 6, 2018 at about 4:30 p.m. at the intersection of highways 35 and 335 (known as “Armley Corner”).  A bus made up of junior hockey team players, coaches, the team radio announcer among others were headed to a playoff game.  As a result of the accident, sixteen were killed and another thirteen were injured.

THE LAWSUIT

Russell and Raelene Herold and the estate of Adam Herold (the “Plaintiffs”) have filed a Statement of Claim at the Regina Court of Queen’s Bench.  The Statement of Claim states that they are seeking an unspecified amount in damages, expenses, costs, and interest.  Adam Herold was the youngest member of the Humboldt team at 16 years of age.

The Plaintiffs have commenced their lawsuit against the man who was driving the semi-truck, Jaskirat Singh Sidhu (“Sidhu”); the Alberta-based trucking company, Adesh Deol Trucking Ltd; and the unidentified manufacturer of the bus that transported the Humboldt Broncos.

According to the Statement of Claim (a written statement by the Paintiffs setting out the facts they intend to rely on and the relief they seek), the Plaintiffs allege that the sight lines for northbound traffic on highway 35 are not sufficient to allow drivers to see the traffic approaching the intersection from highway 335, contrary to provincial rules and regulations. The Plaintiffs also claim that there have been many accidents at the Armley Corner intersection prior to the accident in question. They further allege that Sidhu, the driver of the semi-truck, had inadequate training (only two weeks) and had failed to stop at a flashing stop sign at the rural intersection.

The Statement of Claims contains allegations that the bus itself was defective and posed a risk to its passengers due to the roof design, the lack of shoulder harness seat belts, and the lack of an early warning safety feature to warn the driver of a potential accident.

The Plaintiffs are also seeking a number of “declaratory orders” from the court. These orders include:

  • That the intersection in question be found unsafe to drive on as it is currently designed and maintained;
  • That the sight lines at the intersection are unsafe for northbound traffic;
  • That coach buses carrying sports teams in Saskatchewan be equipped with shoulder harness seat belts and other safety devices, such as early warning devices;
  • That the roof of the bus was not designed or manufactured to ensure it stayed in place in an accident; and
  • That all semi-truck drivers pass “strict safety tests” before being allowed to haul “Super B Trailers” in Saskatchewan.

The Plaintiffs are also asking the court to find that the Automobile Accident Insurance Act and the Fatal Accidents Act are outdated and do not adequately address compensation for victims and their families.

The Plaintiffs claim that Adam Herold would have played in the National Hockey League and had the potential to earn $20 to $30 million over the course of his NHL career. They also maintain that outside of hockey their son would have taken over the family farm near Montmartre, Saskatchewan.

The Herolds’ allege that they are suffering from extreme physical and emotional pain and suffering as a result of the accident that has caused them to lose significant enjoyment of life.  They are also seeking damages for medical, funeral, and counselling expenses, and loss of earnings.

The Statement of Claim is made up of details that have not yet been proven in court. A Statement of Defence has not, as of yet, been filed by the Defendants.

CRIMINAL CHARGES PENDING

On July 6, 2018, Jaskirat Sidhu, the truck driver involved in this terrible accident, was arrested and charged with 16 counts of dangerous driving causing death and 13 counts of dangerous driving causing bodily injury.

Sidhu recently appeared in court in Saskatchewan. He was released on $1,000 bail and must abide by several conditions, including that he must reside at his home in Calgary, he must follow a curfew, he cannot drive, and he must surrender his passport.

NEW MANDATORY DRIVER TRAINING

In Alberta, the province plans on making driver training for new commercial truckers mandatory as early as January 2019. This training will apply to individuals seeking their Class 1 (tractor trailer), Class 2 (bus), and Class S (school bus) licences.

Alberta will also be eliminating temporary 60-day safety certificates for newly registered trucking companies, thus eliminating the “chameleon carrier”. This is in an effort to eliminate those trucking companies that simply change their name and begin operation under another name following a suspension for safety violations.

Transportation Minister Brian Mason explained:

We’re the only province that issues these temporary safety certificates and we’re going to be ending that practice. Carriers will have to comply with requirements of a safety certificate before they can start operation, not after.

The province is also making plans for changes to the road test model for Class 1 and Class 2 licences and they are considering a mandatory compliance review for new carriers within nine months to a year from the day they open, and ongoing.

Ontario is currently the only province with a mandatory entry-level training program, which requires all drivers to complete a minimum of 103.5 hours of training before they can road test a semi-truck and they must show they can handle a loaded truck on major highways.

Cuming & Gillespie Lawyers will continue to provide updates through this blog as we receive further information on any new developments.

In the meantime, if you or a loved one have suffered a serious personal injury as a result of a motor vehicle accident you may be entitled to compensation for the damages you have suffered. 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 you deserve.


Alarming Increase in Bounce House Injuries

Bounce houses seem like a great addition to any neighbourhood or school fun fair, outdoor parties, amusements parks, or even in your own backyard. However, there are multiple risks that all individuals should be aware of and users of bounce houses need to take adequate measures to minimize accidents that appear to be on the rise in Canada.

In fact, in Norfolk, U.K. on July 1, 2018, a three-year-old girl died while playing in a bouncy castle when the trampoline exploded and launched her 30 feet in the air, causing her to land on the sand. Ava-May Littleboy received medical assistance from ambulance attendants and despite all efforts died at James Paget Hospital. The owner of the Bounce About play area at Gorleston Beach in Norfolk claimed that the equipment exploded because of the heat.

INJURIES ARE ON THE RISE IN CANADA

According to the Canadian Hospitals Injury Reporting and Prevention Program (CHIRPP), there has been a six-fold increase in bounce house-related injuries in the last 20 years. The most common injuries were fractures and sprains, but injuries can range from bruises, sprains and broken bones to more serious injuries, for example skull fractures.

In this study, an inflatable amusement attraction was defined as any structure inflated and supported by a blower. This includes bounce houses, slides, interactive attractions (i.e. wrestling, boxing, bungee), obstacle courses, and climbing walls.

The CHIRPP study found that children 5-years-old to 9-years-old were the most frequently injured in bounce houses. The research found that the lower extremities was the body region most frequently injured (40.3%).

Bad landings accounted for 39% of injuries, 31% of injuries were caused by ejection from the inflatable structure, 17% of injuries were due to impact between users, and 4% of injuries occurred when users attempted somersaults.

According to MyHealth.Alberta.ca, in Alberta, in the last two years, more than 80 people were treated for injuries associated with playing on an inflatable device, such as a bounce house.

It is clear that over time injuries associated with inflatable bouncers have increased. Risk factors include lack of effective adult supervision, overcrowding, and excessive number of participants of different ages and weights.

One of the main reasons that we are seeing an increase in the frequency of injuries associated with bounce house and similar inflatables is that there has been a sharp increase in the number of inflatable structures available and being used and the industry itself continues to grow at a rapid rate. Thus, the increase is injuries in likely due to the increased exposure to inflatable structures. It has been suggested that the availability of these structures has increased due to a decline in manufacturing costs.

SAFETY AUTHORITY

Each Canadian province or territory has a designated safety authority that issues licenses and permits for amusement rides, as well as certification for amusement ride operators. Inflatable structures also require a license and valid permit. In Alberta, Aedarsa is the organization created to independently oversee the inspection, installation and ongoing safety of elevating devices, amusement rides, and passenger ropeways, including inflatable devices.

 TIPS TO ENSURE SAFETY IN INFLATABLE STRUCTURES

Here are a few tips to ensure safe play in inflatable structures:

  • Consumers should only rent inflatable structures from companies that are certified by a safety organization and use properly trained supervisors and carry adequate liability insurance;
  • Parents should ensure that the bounce house is adequately secured on level ground according to the manufacturer’s instructions;
  • Parents should ensure that the bounce house is situated away from obstacles such as fences, trees or overhead power lines;
  • Parents should check if the inflatable is not on soft ground as impact absorbing mats should be positioned at the open sides;
  • Children should remove shoes, jewelry, and any hard or sharp objects from their pockets;
  • Children should be supervised by a responsible adult and horseplay should be discouraged;
  • Only one child should be allowed in the bounce house at a time;
  • If more than one child is inside the bounce house, they should be grouped together according to size to reduce risk of injury;
  • Children should be discouraged from performing flips or somersaults while in the bounce house;
  • Children should stay away from exit points while bouncing inside the bounce house;
  • Children should exit the bounce house immediately if it begins to lose air;
  • Do not use a bounce house outside if there are high winds or in wet weather.

At Cuming & Gillespie Lawyers we represent all types of serious personal injury. If you or a loved one have been involved in a serious accident or have suffered an injury due to someone else’s negligence, please contact the award winning Calgary personal injury lawyers at Cuming & Gillespie Lawyers online or at 403-571-0555. Contact our office today for a free initial consultation.


Victim of Dog Bite Contributed to Her Injuries

It is common knowledge that dogs are known as man’s best friend, but sometimes we need to be reminded that dog ownership is a very big responsibility. Dog owners must take care of their dogs and can be held liable for any damages resulting from a dog bite, especially when the dog bite results in bruises, abrasions, inflammation, eye injuries, fractures, puncture wounds, skull fractures, concussion, virus/bacterial transmission or even death.

In the recent decision (McKinlay v. Zachowby the Honourable Madam Justice D.A. Yungwirth (“Justice Yungwirth”), Jennifer McKinlay was claiming damages for injuries she suffered when she was bit by Clinton Arthur Zachow’s (“Zachow”) dog. Justice Yungwirth found that Zachow was liable in negligence for McKinlay’s injuries; however, she also found that McKinlay was 50% responsible for her own damages.

WHAT HAPPENED?

On June 7, 2011, Zachow was delivering water to Divine Spine Chiropractic, the workplace of McKinlay. Zachow’s dog, Junior, was in the front seat of his delivery van. He was neither leashed nor muzzled.

Junior was a mixed breed, commonly known as a pit bull. He was considered a “restricted dog” under the City of Edmonton Bylaw 13145, the Animal Licensing and Control Bylaw (“Bylaw”). Zachow admitted at trial that he was aware of both the Bylaw and the fact that his dog was regarded as a “restricted dog”.

Evidence given by both the plaintiff McKinlay and the defendant Zachow was conflicting as to whether McKinlay spoke to Zachow prior to approaching the dog. In any event, Justice Yungwirth relied upon the evidence of an independent witness. Justice Yungwirth considered the following set of facts:

  • McKinlay did not ask Zachow if she could pet the dog prior to approaching the dog;
  • McKinlay approached the dog with high energy;
  • McKinlay leaned into the van and petted the dog on his head, ears, and neck and got close to the dog’s face; and
  • McKinlay either kissed the dog or made kissing noises while she petted the dog.

McKinlay argued that the defendant should be found liable for damages under the doctrine of scienter and in negligence.

Scienter

According to the doctrine of scienter, the plaintiff (the individual bringing a case against another in a court of law) must establish the following:

  • The defendant (the individual, company or institution sued in a court of law) was the owner of the dog;
  • The dog manifested a propensity to cause the type of harm occasioned; and
  • The owner knew of the dog’s propensity to cause harm.

If these three elements are met, liability is absolute. In this case, Justice Yungwirth was not satisfied that the dog exhibited a propensity to cause harm.

Negligence

In order to succeed in an action based upon negligence, McKinlay must prove on a balance of probabilities the following:

  • That Zachow knew or ought to have known that his dog was likely to create a risk of injury to third parties; and
  • That Zachow failed to take reasonable care to prevent such an injury from occurring.

Justice Yungwirth acknowledged that Zachow knew his dog was a restricted dog and that under the Bylaw his dog needed to be leashed and muzzled when in public. Furthermore, Zachow opened the front passenger door and by doing so he put the dog in a position where it could get out of the van and interact with the public.  Therefore, it was reasonable to conclude that Zachow ought to have anticipated that an injury could result to any person who interacted with his dog.

Furthermore, Zachow took no steps to prevent the interaction between McKinlay and his dog by closing the door or stopping McKinlay from approaching his van. Therefore, Justice Yungwirth concluded that Zachow was liable in negligence for McKinlay’s injuries as McKinlay’s injuries were reasonably foreseeable in the circumstances and Zachow did not take reasonable care to avoid the harm.

DID MCKINLAY’S BEHAVIOUR CONTRIBUTE TO HER INJURIES?

Having heard all of the evidence, Justice Yungwirth found that McKinlay was contributorily negligent as her actions contributed to her injuries. McKinlay moved quickly with outstretched arms, she did not ask to pet the dog, she intruded into the dog’s space, and she either kissed or made kissing noises to the dog. Justice Yungwirth was of the opinion that McKinlay’s injuries were the result of the dog feeling threatened and snapping rather than an unmotivated attack on McKinlay’s face.  In conclusion, Justice Yungwirth found that Zachow and McKinlay were each 50% liable for the damages suffered.

Justice Yungwirth held that McKinlay’s injuries fell within the mid-range as she did not require any surgery or hospitalization and her scarring was limited to her lip. McKinlay’s damages were assessed as follows:

  • General damages $30,000;
  • Out of pocket expenses $6,017.18 and
  • Future care costs $10,000 for future care costs.

Given the findings on contributory negligence, Zachow was found to be responsible to pay McKinlay $23,008.54.

If you or a loved one have been the victim of a dog bite, the award winning and knowledgeable personal injury lawyers at Cuming & Gillespie Lawyers can help you or your loved one receive the compensation that you deserve. Contact our offices online or call 403-571-0555 to speak with one of our experienced personal injury lawyers today.


Cuming & Gillespie Supports Crossfield-Madden 4-H Beef Club

Each year, Cuming & Gillespie is proud to contribute to the Crossfield-Madden 4-H Beef Club, a non-profit positive youth development organization dedicated to teaching youth life-long skills including cooperation, leadership, decision making, critical thinking, and community service.

For more information on 4-H Alberta club programs and projects, including how your family can get more involved, check out their website.


City of Calgary Responsible for Injuries Suffered in Attack due to Deficient Surveillance

On January 1, 2007, Kyle McAllister (“McAllister”) was assaulted on the Plus 15 connecting the Canyon Meadows C-Train Station parkade to the Canyon Meadows C-Train Station. McAllister sued the City of Calgary (“City”) for damages resulting from his injuries as a result of the assault. Justice Kubik found the City liable for McAllister’s injuries.

WHAT HAPPENED?

In the early morning hours of New Years Day 2007, McAllister was attacked by multiple assailants. The assault went unnoticed by surveillance monitoring personnel. McAllister suffered multiple injuries, including a severe concussion, broken orbital bones, and multiple fractures to his face. He required 40 stitches to his cheeks and lower left lip, his eye was badly bruised, and several teeth were damaged.

One of the assailants was later identified on surveillance footage and pleaded guilty as a youth to aggravated assault. He was given a one-year sentence in open custody. Another one of the assailants was identified and pleaded guilty to simple assault and received a forty-five day closed custody sentence and six months probation.

The trial in this matter was for liability only. McAllister bears the burden of proof on a balance of probabilities.

McAllister alleged that the City was the occupier of the premises and owed him a duty of care under the Occupiers’ Liability Act to ensure he was reasonably safe when using the premises.

McAllister further alleged the City failed to meet the duty and standard of care owed due to insufficient lighting, cameras, peace officers, surveillance video monitoring personnel, and the absence of a trespass ban or special events policy.

The City maintained that it was not an occupier of the Plus 15. Furthermore, it maintained that liability would not extend to a sudden, unprovoked and random attack of violence. Also, the City contended that McAllister failed to prove the standard of care with respect to issues of lighting, cameras, sufficiency of peace officers, and the reasonableness of a trespass ban or special events policy. Lastly, the City submitted that there is no causal connection between any breach and McAllister’s injuries.

JUSTICE KUBIK’S FINDINGS

Justice J.C. Kubik of the Court of Queen’s Bench of Alberta concluded that the City was in physical possession of the premises and was therefore responsible for and had control over the condition of the premises, the activities on the premises, and the persons allowed to enter the premises.

Based upon the evidence, Justice Kubik also concluded that McAllister was a “visitor” on the premises.

Therefore, the City owed McAllister a duty of care as set out in section 5 of the Occupiers’ Liability Act, as follows:

An occupier of a premises owes a duty to every visitor on an occupier’s premises to take such care as in all the circumstances of the case was reasonable to see that the visitor was reasonably safe in using the premises for the purposes for which the visitor is invited or permitted by the occupier to be there or is permitted by law to be there.

Justice Kubik found that the City failed to meet the standard of care of a municipality to provide a safe and secure transit environment.  Specifically, the City had deficient video surveillance and lighting resulting in the surveillance operators failing to take notice of the assault and subsequently failing to quickly dispatch transit officers or the police to the scene of the crime.

The Judge found that the City breached their duty and standard of care in the following ways:

  • Deficient video surveillance and lighting: The combination of camera placement, low light, and poor quality video made it impossible to observe the assault as it occurred;
  • Deficient video monitoring system and personnel: The City employed an insufficient number of personnel to observe 42 monitors from 332 camera at rapid intervals; and
  • Understaffing of peace officers: The City employed an insufficient number of peace officers resulting in there being no deterrence present and increasing the risk of harm to visitors.

Justice Kubik was satisfied on a balance of probabilities that, but for the City’s breach of the duty of care, the attack on McAllister would have been observed quickly and appropriate personnel would have responded to the scene at an earlier stage and McAllister’s injuries would have been less severe.

If you or a loved one have been seriously injured, it is critical that you speak with a lawyer regarding your situation as soon as possible so as not to jeopardize any opportunity to seek compensation. Please contact the experienced and award winning lawyers at Cuming & Gillespie Lawyers online or at 403-571-0555. Contact our office for a free consultation to determine how we can help you recover compensation for your injuries.


Alberta Leads the Country in Increased Distracted Driving Claims

Distracted driving is defined as driving a vehicle while engaging in another activity such as texting, using a handheld device, grooming, eating and drinking.

Aviva Canada reports that claims for distracted driving accidents soared by 58% in the past two years in Alberta, the largest increase across all provinces in Canada.

Aviva Canada collected data from its clients’ motor vehicle accidents between 2016 and 2018. The claims for distracted driving accidents increased in Canada by 23%, on average.  Alberta’s increase in claims was found to be more than double the Canadian average.

Phil Gibson, Aviva Canada’s chief underwriting officer, could not explain why Alberta was leading the pack in distracted driving. He stated,

Despite increased penalties and awareness on this issue, too many Canadians are still driving distracted behind the wheel.  The majority of these accidents are preventable – such as hitting stationary objects, rear ending other vehicles and inattentive lane changes.

CPS Sgt. Dale Seddon stated:

People need to come to the realization that distracted driving causes all the damage, all the lives lost and all the hurt in society that impaired driving causes. The two equate to each other just like that and even though distracted driving is newer, if you will, than impaired driving it causes all the catastrophe that impaired driving does.

STATISTICS REGARDING DISTRACTED DRIVING

It should be common knowledge by now that distracted driving is dangerous as it takes your eyes and your mind off the road. Distracted driving has severe consequences to both the distracted driver and his/her passengers and anyone within his/her path.

Statistics demonstrate that a distracted driver can fail to see up to 50% of their immediate environment.

Distracted drivers contribute to 20-30% of all motor vehicle collisions and distracted drivers are three times more likely to be involved in a motor vehicle accident than focused drivers.

Between September 1, 2011, when distracted driving legislation was first introduced in Alberta, to March 31, 2017, there were 139,579 convictions.  Of these convictions, 97% were for the use of hand-held electronic devices while driving.

With distracted driving claims on the rise in Alberta, it is becoming more fatal than impaired driving.

ALBERTA’S DISTRACTED DRIVING LAWS

On January 1, 2016, Alberta increased the fine for distracted driving from $172 to $287, with three demerit points.

Drivers who receive too many demerit points will have their licence suspended.  Individuals with a Graduated Driver Licence will have their licence suspended if they collect eight or more demerit points.  Fully licenced drivers will have their licences suspended if they collect 15 or more demerit points.

According to the Traffic Safety Act, distracted driving laws apply to all roads in Alberta and prohibit drivers from the following:

  • using hand-held cell phones;
  • texting or e-mailing;
  • using electronic devices such as laptop computers, video games, cameras, video entertainment displays and portable audio players;
  • entering information on GPS units;
  • reading printed material;
  • writing, printing or sketching; and
  • personal grooming (including brushing and flossing teeth, putting on makeup, curling hair, clipping nails or shaving).

The following activities are not restricted activities under the law:

  • smoking;
  • eating;
  • using a cell-phone in hands-free mode;
  • drinking non-alcoholic beverages;
  • listening to music;
  • using earphones;
  • using two-way radios or hand-held radios (i.e. CB radios) when a driver is required to remain in contact with his/her employer (i.e. escorting oversized vehicles or participating in search and rescue or emergency situations); and
  • calling 911 with a hand-held cell phone in an emergency.

There are no specific laws regarding distracted driving and pets, however, police could argue that a driver became too involved with his/her pet and was distracted in a manner that was comparative to the banned activities of reading, writing and grooming.

SIMPLE TIPS TO AVOID DISTRACTED DRIVING AND TO KEEP FROM BECOMING A STATISTIC

Cell phones are a driver’s biggest distraction while driving. It is strongly recommended that drivers only use hands-free devices while driving to make short phone calls. Even drivers who are using hands-free devices become distracted by a telephone conversation while navigating through traffic.

It is also suggested that drivers pre-program any GPS tools or music devices before starting their vehicle. If the need to make a call or return a text arises while driving, find somewhere safe to pull over and park your vehicle.

Before starting your vehicle, drivers should ensure that their children are comfortable, properly seat belted and have everything they need.  It is also essential to keep pets safely secured in the backseat or in a crate while driving.  Also, know your itinerary before leaving and do not attempt to read a map while driving.

If you or a loved one have been injured in a motor vehicle accident that was caused by a distracted driver, you may be entitled to compensation for the damages you have suffered.  Please contact the experienced lawyers at Cuming & Gillespie Lawyers either online or by calling 403-571-0555 for a free consultation.


Brain Trauma Indicator Approved by the FDA

The month of June is Brain Injury Awareness Month. According to Brain Injury Canada, 160,000 Canadians suffer a brain injury annually and these numbers are on the rise.

Approximately 50% of all acquired brain injuries (brain damage caused by events after birth, rather than as part of a genetic or congenital disorder) in Canada result from falls and motor vehicle accidents.

Approximately 30% of all traumatic brain injuries (brain damage caused by an external force to the head) are suffered by children and youth, usually while participating in sports and recreational activities.

Brain injuries can be caused by many factors including motor vehicle accidents, falls, sports injuries, physical abuse, and alcohol related incidents. A traumatic blow to the head can lead to the interruption of brain functioning, resulting in various symptoms such as confusion, forgetfulness, headaches with associated symptoms, behavioural concerns, and emotional issues (including depression).

These serious injuries typically have a dramatic effect on the lives of both the victims and their families. Fortunately, recent advancements, such as the “Brain Trauma Indicator” may revolutionize the diagnosis of brain injuries.

WHAT IS THE BRAIN TRAUMA INDICATOR?

The United States Food and Drug Administration (FDA) has approved the marketing of the first blood test called the “Brain Trauma Indicator” (“BTI”) to help doctors diagnose mild traumatic brain injuries.

Banyan Biomarkers has developed the blood test and is now working towards finding a way to diagnose concussions.

The BTI measures the levels of two proteins (UCH-L1 and GFAP) present in brain cells that can leak into the bloodstream following a blow to the head. This test is designed to help doctors quickly determine which patients with suspected concussions may have brain bleeding or other brain injury. The plasma concentrations of these proteins can indicate whether a patient who has experienced a head injury has intracranial lesions (ie. brain bleeds). The BTI can predict the presence or absence of intracranial lesions with 99% accuracy if administered within 12 hours following an injury.

Thus, patients with negative blood tests can avoid unnecessary CT scans and radiation exposure. Patients who receive a positive test would require a CT scan to confirm the results and determine whether surgery or other forms of treatment are required.

Although the BTI is not sensitive enough to rule out concussions, it is a step in the right direction. Its approval will open the door for further research and development that will hopefully one day be able to identify concussions from a simple blood test.

HOW IS A BRAIN INJURY CURRENTLY DIAGNOSED?

A patient who is suspected of having suffered a head injury is examined using a neurological scale referred to as the 15-point Glasgow Coma Scale (“GCS”). This test is used by trained staff at the site of an injury, such as a car accident or sports facility, and in the emergency department and intensive care units in a hospital.

The GCS measures the eye opening, verbal response and motor response in a patient to objectively record the initial and subsequent level of consciousness. In general, a GCS score of 8 or less indicates a severe brain injury; a score of 9-12 indicates a moderate brain injury; and a score of 13-15 indicates a mild brain injury.

Mild brain injuries can result in temporary or permanent neurological symptoms, whereas moderate to severe brain injuries often result in long-term impairments in cognition, physical skills and/or emotional/behavioural functioning.

Following an examination, a health care provider may order a computed tomography (“CT”) scan of the head to detect brain tissue damage, intracranial lesions or a fracture in the skull. Currently, the presence of intracranial lesions can only be detected using CT scans, which are expensive and expose a patient to radiation.

The majority of patients who undergo a CT scan do not have any detectable intracranial lesions. Thus, the availability of the BTI will help health care professionals rule out the need for CT scans and reduce unnecessary radiation exposure to patients.

If you or a loved one have suffered a head injury as the result of an accident, contact the experienced and award winning lawyers at Cuming & Gillespie Lawyers today. 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.  Contact our office today online or at 403-571-0555 for a free initial consultation.


What You Need to Know About Bicycle Accidents

As summer in the city quickly approaches and the weather improves, we are beginning to see more and more cyclists on our city streets. Cycling is a great form of exercise and is also good for the environment as it helps to ease road congestion, reduce noise pollution and emissions.

Calgary is becoming a more cycle friendly city and has made efforts to provide designated lanes for cyclists. However, there are dangers involved with cycling and cyclists are especially vulnerable in the event of a crash.

WHAT IS THE LAW REGARDING BICYCLE HELMETS?

According to the Vehicle Equipment Regulation found in Alberta’s Traffic Safety Act (“TSA”), no person under the age of 18-years shall operate or ride as a passenger on a bicycle unless that person is properly wearing a safety helmet (section 111(1)).

A safety helmet is required:

  • To be certified;
  • To be constructed so that it has a hard, smooth outer shell and is capable of absorbing energy on impact;
  • To be securely attached to a strap that is fastened around the chin of the person wearing the safety helmet; and
  • To be free of damage or modification that would reduce its effectiveness.

If these safety features are not met, the cyclist may be subject to a fine.

Despite the fact that the law does not require cyclists who are 18-years of age or older to wear a helmet, it is strongly encouraged that helmets be worn by cyclists of all ages to prevent brain injuries or severe damage to the skull.

WHAT RULES OF THE ROAD MUST CYCLISTS FOLLOW?

According to the Use of Highways and Rules of Road Regulation (“Regulation”) found in the TSA, cyclists are required to operate their cycle just as those driving a motor vehicle (section 75), such as obeying traffic control devices and yielding to pedestrians.

Section 77 of the Regulation requires a cyclist to operate their bicycle as near as practicable to the right curb or edge of the roadway, except when making a left hand turn.

Section 78 of the Regulation requires cyclists to ride in single file, except when overtaking and passing another bicycle.

Section 113 of the Vehicle Equipment Regulation found in the TSA specifically states that no person shall ride a bicycle unless it has a brake. Furthermore, this section lists the required equipment that every bicycle must have for riding at nighttime, including:

  • At least one headlamp (but not more than 2 headlamps);
  • At least one red tail lamp; and
  • At least one red reflector mounted on the rear of the bicycle.

 WHAT IS THE ONUS OF PROOF IN BICYCLE ACCIDENT CASES?

In a civil action (a lawsuit between private parties), the plaintiff (the individual who brings a case against another in a court of law) has the onus of proving that the defendant was negligent on a balance of probabilities (i.e. that it is more likely than not that the defendant was negligent).

However, according to section 186(1) in the TSA, in the case of a motor vehicle vs. cyclist accident the usual onus is reversed. In situations where a motor vehicle hits a cyclist or pedestrian, the driver of the motor vehicle is presumed to be negligent unless he/she can prove that the loss/damage did not arise entirely or solely through his/her negligence.

In this type of accident, a cyclist could still bear some of the responsibility for the accident if he/she failed to take reasonable steps to look out for his/her own safety according to section 1 of the Contributory Negligence Act.

Courts in Alberta use the “comparative blameworthiness approach”. This approach requires a judge to examine all of the circumstances of the misconduct of both parties to determine their contributing negligence in causing the collision. The judge will look at the amount to which each party deviated from the normal standard of care and apportion responsibility on a percentage basis (i.e. 50/50). If a cyclist is found to be somewhat careless, his/her damage award will be reduced accordingly. For example, if the cyclist were found to be 25% responsible for the collision and his/her damages were assessed at $100,000, the cyclist would only receive $75,000 in damages.

Courts will consider the following factors when determining contributory negligence:

  • In the case of a head injury, was the cyclist wearing a helmet?
  • Was the cyclist wearing headphones that impeded his/her ability to hear traffic?
  • Was the cyclist following the rules of the road?
  • Was the cyclist riding on the sidewalk prior to entering the roadway?
  • Did the cyclist take steps to ensure that he/she was visible to motorists considering the time of day and weather conditions?

The case of Bradford v. Snyder is a good example of the Court apportioning liability between two parties to a collision involving a motor vehicle and bicycle. In this case, Bradford was on her bicycle and gave evidence that she came to a rolling stop at a stop sign and did not see Snyder, the driver of a van, approaching. Bradford also admitted that had she stopped properly, the accident could have been avoided. Snyder testified that she looked down at her speedometer for a few seconds and then struck Bradford. The trial judge held that Bradford bore greater responsibility for the accident as she failed to properly stop at the stop sign. Therefore, Bradford was found to be 2/3 at fault for the accident.

The case of Bradford v. Snyder is just one example of a collision involving a bicycle. Of course, a decision in court will ultimately depend upon the circumstances of each case, including the rules of the road, the visibility of the cyclist and the speed of the driver, just to name a few.

If you or a loved one have been injured while riding your bicycle as a result of another party’s negligence, do not hesitate to contact the experienced and award winning personal injury lawyers at Cuming & Gillespie Lawyers. Please contact our office for a free case evaluation either online or by calling 403-571-0555. We look forward to helping you obtain the compensation you deserve.


Supreme Court of Canada Held that Car Garage Does Not Owe Duty to Teenager Injured in Stolen Car

In a recent decision, the Supreme Court of Canada (“SCC”) has ruled that a car service garage did not owe a duty of care to a teenager who was seriously injured after stealing a vehicle from its premises. A business will only be held responsible where it should have known that both the car could be stolen, and that someone could be injured due to it being driven unsafely.

In the case of Rankin’s Garage & Sales v. JJ by His Litigation Guardian, the SCC overturned earlier rulings which placed some responsibility on Rankin’s Garage for the tragic accident. The only issue before the SCC was whether Rankin’s Garage owed JJ a duty of care.

WHAT HAPPENED?

On July 8, 2006, JJ and his friends (all between the ages of 15 and 16 years old) were hanging out at a dam in Paisley, Ontario. The group of friends proceeded to JJ’s friend CC’s home to drink beer bought by CC’s mother. The friends continued to drink vodka and orange juice and smoked marijuana after CC’s mother went to bed.

Later that night, JJ and CC decided to go to Rankin’s Garage. They found an unlocked Toyota Camry with the keys in the ashtray and decided to take it for a joyride. CC drove the vehicle, although he did not have a driver’s licence and it was his first time driving a car. JJ sat in the passenger seat. While driving on the highway towards Walkerton, CC crashed the car causing JJ to suffer a catastrophic brain injury.

CC was charged with several offences, including theft and driving with over 0.08% blood alcohol concentration.

Through his litigation guardian, JJ sued Rankin’s Garage (as well as CC and CC’s mother) and claimed that Rankin’s Garage owed a duty of care to JJ to secure the vehicles at his garage. The trial was held on September 25, 2014 before a jury.

The jury heard evidence from several witnesses that advised they had brought their cars to Rankin’s Garage to be serviced and were instructed by Mr. Rankin to leave the keys in unsecured places (i.e. under mats or in the car). Mr. Rankin testified that he asked customers to leave their keys in a locked drop box and that he made sure that the cars were locked every single night after closing.

The jury found that Rankin’s Garage owed a duty of care to JJ and apportioned 37% of the liability on the business. The jury also apportioned liability at 30% for CC’s mother, 23% for CC and 10% for JJ. The Ontario Court of Appeal (“ONCA”) upheld the trial decision.

DOES AN OWNER OF A CAR SERVICE GARAGE OWE A DUTY OF CARE TO THIEVES WHO DRIVE THE GARAGE’S SERVICED CARS?

The SCC found that Rankin’s Garage did not owe a duty of care to JJ in these circumstances. The SCC overruled the ONCA decision that found that a novel duty of care should be recognized in this case.

The ONCA applied the Anns/Cooper test (a duty of care analysis established by the SCC in an earlier decision) to establish a novel duty of care. The Court found:

  • That it was foreseeable that minors might take a car from Rankin’s Garage that was made easily available to them and may result in injuries; and
  • That there was sufficient proximity between Rankin’s Garage and JJ because Rankin’s Garage should have had minors in mind when considering security measures at the car garage.

Justice Andromache Karakatsanis, writing for the majority of the SCC, did acknowledge that the garage ought to have known about the risk of theft. However, the SCC held that determining whether something is “reasonably foreseeable” is an objective test and there was no evidence to establish that bodily harm resulting from the theft of the vehicle was reasonably foreseeable in the circumstances. The evidence did not make it reasonably foreseeable that the stolen car might be driven in a manner that would cause personal injury. Therefore, the SCC concluded that the foreseeability stage of the Anns/Cooper test had not been met and the SCC refused to find a new duty of care.

The SCC stated:

[I]t does not automatically flow from evidence of the risk of theft in general that a garage owner should have considered the risk of physical injury.

… I do not accept that anyone that leaves a vehicle unlocked with the keys in it should always reasonably anticipate that someone could be injured if the vehicle were stolen. This would extend tort liability too far.

The SCC makes it clear that a duty of care requires that the risk of harm be reasonably foreseeable and not a mere possibility.

The SCC also concluded that JJ’s criminal conduct was irrelevant in analyzing whether a duty of care existed. A business may owe a duty of care even if a plaintiff participates in criminal or immoral activity. Furthermore, this type of behaviour may be considered when assessing for contributory negligence.

In conclusion, the majority of the SCC allowed the appeal and dismissed the claim against Rankin’s Garage.

If you or a loved one have suffered injuries arising from a motor vehicle accident, please contact the experienced and award winning 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 motor vehicle accident.


Canadian Lawyer on Capping Damages

Ontario, changes to the Insurance Act in 2016 saw benefits paid to accident victims reduced “dramatically,” says Patrick Brown, a partner at McLeish Orlando LLP in Toronto.

And elsewhere in Canada, plaintiff-side lawyers agree that caps on minor injury claims can place undue hardship on plaintiffs and may not consider the effects of minor injuries over time.

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