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Written on behalf of Cuming & Gillespie

Damages Awarded in Personal Injury Cases

In Alberta, if you have suffered a physical, emotional or psychological injury as a result of a car accident, medical malpractice, slip and fall, or any other type of personal injury claim, you may be entitled to damages. Monetary compensation, referred to as damages in the legal context, are awarded to the injured party (plaintiff) by the party who is legally responsible for the accident (defendant).

In the case of motor vehicle accidents, a tort claim (claim that deals with an injury to a person or their property for which the person may claim financial compensation) can be commenced for pain and suffering sustained in the accident and any out of pocket expenses that are not covered under accident benefits (statutory accident benefits claimed through your auto insurer). This type of lawsuit is commenced against the insurer of the at-fault driver of the motor vehicle accident.

Compensatory damages are awarded in an attempt to restore the injured party to the position that he/she would have been in had the injury not taken place. Such damages are remedial, rather than punitive.

There are two categories of compensatory damages, general and special damages.

GENERAL DAMAGES

General damages are awarded by the court for the non-monetary losses suffered by the injured party that directly flow from the wrongful conduct of the defendant. Damages of this nature include physical pain and suffering, inconvenience, loss of enjoyment of life, loss of companionship, physical disfigurement, mental anguish, physical impairment, and lowered quality of life. These damages are often difficult to quantity as they are personal and subjective to the plaintiff.

The court will consider several factors to help determine the appropriate amount of general damages to be awarded, including:

  • Plaintiff’s age;
  • Plaintiff’s general health prior to the incident;
  • Nature of the injury;
  • Severity and duration of the pain;
  • Level of disability;
  • Impairment of physical and mental abilities;
  • Emotional suffering; and
  • Loss of lifestyle or impairment of life.

The court will also look to previous case law with similar facts and injuries to assist in the assessment of damages. However, the amount of general damages awarded can vary on a case by case basis.

In 1978, the Supreme Court of Canada, in its ruling in the case of Andrews v. Grand & Toy Ltd., set a limit on the maximum amount of general damages that may be awarded at $100,000 (approximately $375,000 adjusted for inflation) for the most severe injuries in a civil action.

The Supreme Court of Canada specifically stated that the amount of general damage awards should not vary greatly throughout Canada. The Court stated:

Everyone in Canada, wherever he may reside, is entitled to a more or less equal measure of compensation for similar non-pecuniary loss.

SPECIAL DAMAGES

Special damages are those damages that can be easily calculated and quantified. This category of damages are designed to reimburse the injured party for out of pocket expenses incurred due to the defendant’s improper actions. These expenses can include medical and rehabilitation expenses, lost wages, lost income during recovery, loss of future income and earning capacity, and housekeeping and home maintenance expenses.

Special damages must be proven with specificity. Plaintiffs are reminded to keep all receipts and paperwork to prove the amount of the special damages they have incurred as a result of the accident.

Future care costs can be defined as the amount required to pay for medical and professional support and equipment that will restore the injured person to the position they were in before the accident occurred. Future care costs are a projection of actual expenses.

In the case of a calculation of future costs, the use of expert opinion from medical professionals will help with this financial valuation. This assessment may include items such as the following:

  • Pharmaceutical products;
  • Assistive devices and household items that aid in the care of the plaintiff;
  • Housekeeping and personal care services;
  • Vocational counselling or retraining; and
  • Treatments prescribed by health care professionals.

DUTY TO MITIGATE

In assessing the range of damages in a personal injury case, the courts will also consider mitigation. Mitigation is defined as a legal principle requiring the plaintiff to take all reasonable efforts to minimize the impact of the loss, physical, psychological, emotional or financial. This is known as the duty to mitigate.

A plaintiff is required to seek and obtain all available treatment to help recover from the injuries. Damages may be reduced by the court if the plaintiff has failed to take all reasonable steps to recover from his/her injuries. Thus, damages may be reduced for a failure to mitigate. The onus is on the defendant to prove that the injured plaintiff failed to mitigate.

For example, in the case of Stevenson v. Thompson, the Court found that the plaintiff failed to mitigate her damages as she failed to follow the advice of her caregivers to continue with her physiotherapy treatments. The Court reduced her general damages award by 20%. Therefore, she was awarded $60,000 instead of $75,000.

At Cuming & Gillespie Lawyers, we represent individuals who suffer from all types of serious personal injuries. If you or a loved one have sustained an injury and would like more information about your legal options, we can help. For a free initial consultation with one of Calgary’s award winning personal injury lawyers, please contact our office online or at 403-571-0555 today.


Back To School Safety

It’s that time of year again. Time for our children to return to school. Traffic will be heavier on our roadways as everyone returns from holidays, school buses return to their routes, and more people are walking, cycling, or driving to school.

Cuming & Gillespie Lawyers want to ensure that everyone has a safe return to school whether children are arriving by foot, car, bike, or school bus.

PLAYGROUND AND SCHOOL ZONES

In Calgary, there are approximately 1,680 playground zones. These zones were designed to increase the safety of children from motorists driving through these neighbourhoods.

Drivers should take extra caution and reduce speed when driving around playgrounds or school zones. The maximum speed permitted in playground zones is 30 km/h between 7:30 a.m. and 9:00 p.m. every day of the year. Fines double if you are caught speeding in school or playground zones in Calgary.

Within playground zones, drivers are not permitted to pass another vehicle travelling in the same direction.

SCHOOL BUS SAFETY

Travelling by school bus is one of the safest ways for our children to arrive at school. School buses are specifically designed to protect our children, even without seat belts. Most incidents involving school buses occur while children are waiting for or getting on and off the bus.

As drivers, it is important to give school buses plenty of room.

When driving on a road without a median, all drivers in both directions must stop for a stopped school bus with its upper red lights flashing. If you are approaching the school bus from the front, stop your vehicle at a safe distance to allow children to cross the road in front of the bus. Do not begin driving until the red lights have stopped flashing or the school bus begins to move.

If you are driving on a road with a median, only drivers traveling in the same direction as the school bus must stop when the upper red lights are flashing. Drivers traveling in the opposite direction are not required to stop, but should proceed with caution.

Drivers can be charged if they pass a stopped school bus with its upper red lights flashing. The fine for illegally passing a stopped school bus is $150 to $300 and 6 demerit points for a first offence. A second offence could result in a fine of $300 to $500 and suspension of a driver’s license for 30 days, and 100 hours of community service. A third offence could result in a fine up to $1,000, driver’s license suspension of up to 90 days, and 200 hours of community service. A fourth offence is considered a felony and is subject to a fine up to $3,000 and a one-year license suspension.

SAFETY WHEN TRAVELLING BY CAR TO SCHOOL

Parents and children should follow the school safety protocols in place when dropping off and picking up children from school.  It is especially important to follow posted speed limits, and designated drop-off and pick-up areas.  Double parking, parking in crosswalks, parking within 5 metres of a crosswalk, and not crossing at a crosswalk all create hazards and are all prohibited by law.

SAFETY WHEN TRAVELLING BY BICYCLE TO SCHOOL

In Alberta, cyclists must obey all traffic laws and have the same rights and responsibilities as drivers of motor vehicles according to the Use of Highways and Rules of Road Regulation.

Parents should remind their children to ride in a single file, complete a shoulder check for vehicles, know how to use hand signals, and watch for cars backing out of driveways and/or pulling onto roads.

As we have previously blogged about, by law, every cyclist under the age of 18 must wear an approved helmet. Helmets can reduce the risk of head injury. It is a parent or guardian’s duty not to authorize or permit a person to ride a bicycle under the age of 18 unless he/she is wearing a bicycle helmet.

Although it is not compulsory for adults over 18 to wear helmets, one can greatly reduce the risk of permanent injury or death. All helmets must be certified, must fit properly and have a chin strap, must have a hard smooth outer shell, and be capable of absorbing an impact.

WALKING TO SCHOOL

Many children will be walking to and from school. Injuries to pedestrians can be very serious and may lead to long-term physical and mental difficulties.

Parents have the responsibility to teach their children the skills required to be safe as a pedestrian. Children should be reminded to obey all traffic lights and crossing guards, and to always to look left, right, in front, and behind before crossing the street.

Parents should practice walking a safe route to school before school begins, taking special note of crosswalks, stop signs, and potential traffic hazards. Children should be encouraged to walk to school with a sibling, friend, or neighbour.

It is important that your child remain hands-free while walking to and from school to avoid distractions from cell phones and gaming devices (see our blog regarding the consequences of distracted walking). If your child is walking with their head down, they cannot see what is in front of them. Also earphones prevent your child from hearing sirens or car horns.

It is also important to make sure your child knows what to do and who to contact if he/she gets lost or faces an emergency while travelling to or from school. Ensure that your child has memorized a parent’s cell phone number and write down important numbers on the inside of their backpacks.

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.


The High Cost of Speeding

Traffic collisions are becoming more commonplace in Alberta with approximately 385 collisions occurring each day. To date this year, there have been 149 people killed in vehicle collisions in Alberta. In 2016, there were a reported 133,124 collisions, out of which 16,622 individuals were injured and 299 individuals died.

Based upon reports from the RCMP, from July 31 to August 13 of 2018, at least 16 people were killed in collisions across Alberta. These fatalities were the result of eight separate collisions. The most catastrophic being the three-vehicle crash south of Jasper resulting in six deaths when a vehicle was struck head-on by a van and both vehicles caught fire.

Speeding is one of the factors that can be associated with fatal collisions occurring throughout the province. In fact, one out of every four collisions involves driving at a speed that is unsafe for the road conditions.

HOW SPEEDING CAN CAUSE ACCIDENTS

According to Alberta RCMP, drivers will only save two minutes when increasing their speed from 100 km/h to 120 km/h over a 25km stretch.  Nevertheless, this increase in speed will almost double the possibility that someone will become involved in a fatal collision.

Drivers tend to lose control when they speed, especially when coming to a complete stop. Speeding also reduces your ability to steer around obstructions or curves in the roadway and increases your chance of losing control of your vehicle. Speeding also decreases your field of vision and peripheral vision. Your brakes, tires, steering, and suspension become less effective as a result of increased rates of driving.

Speed also affects your safety if you are driving at the speed limit, but too fast for the road conditions. When you are driving in bad weather, at night on a dark road, or on a road under repair, it is important to drive at the appropriate speed for these conditions.

The consequences of speeding are wide-ranging, including:

  • Greater potential for loss of vehicle control;
  • Reduced effectiveness of occupant protection equipment (i.e. seat belts, airbags, and side impact beams);
  • Increased stopping distance after the driver perceives a danger;
  • Increased degree of crash severity leading to more severe injuries;
  • Economic conditions of a speed-related crash; and
  • Increased fuel consumption and cost.

RECENT STUDY REGARDING WHAT DRIVES SPEEDING

Speeding is a type of aggressive driving behaviour. Traffic congestion, running late, and anonymity, are just a few factors that contribute to the rise in this type of aggressive driving.

A recent University of Alberta traffic study looked at how an American media franchise action movie involving illegal street racing, heists, and espionage may have affected the behaviour and driving habits of individuals.

The study looked at speeding infractions four weeks prior to and fours weeks following the release of the sixth and seventh installments of The Fast and the Furious series.

The study from the university’s psychology department found that following the opening weekend of Furious 7 there was a significant increase in the number of speeding infractions and that the speed of the faster drivers that were caught travelling more than the posted speed limit was higher.

SPEEDING FINES IN ALBERTA

Alberta is one of six provinces (or territories) in Canada that increases the fine for each km/h that you are found driving over the speed limit.

The standard speed limit on Calgary roadways is 50 km/h, unless otherwise posted. The speed limit in school and playground zones is 30 km/h during the hours indicated on signs.

The fines are as follows:

  • Speeding 1 km/h over the limit is $78;
  • Speeding 2 km/h over the limit is $80;
  • Speeding 8 km/h over the limit is $98;
  • Speeding 9 km/h over the limit is $102;
  • Speeding 10 km/h over the limit is $105.

The fine for speeding in a school zone or construction zone is doubled.

If you are caught traveling at 50 km/h over the limit, the fine is $474 and four demerit points. If you are traveling any faster, you could face a maximum fine of $2,300, six demerit points, a mandatory court appearance, and a licence suspension of up to six months.

A BC man recently received a substantial fine when he was caught in April traveling 70 km/h over the speed limit driving southbound on Highway 63 in Alberta earlier this year. An RCMP officer caught the man driving at 171 km/h. He was given a $1,700 fine after he plead guilty in court.

HOW ONE CALGARY COMMUNITY IS TRYING TO DETER SPEEDERS

A northeast Calgary community is painting brightly coloured polka dots around some intersections along 1st Avenue in Bridgeland.

To combat dangerous driving in the neighbourhood, the city also extended the curbs with long lines of white paint and put up plastic traffic delineators to help broaden out the sidewalk.

The bright colours on the roadway make the road seem narrower and draw drivers’ attention to any pedestrians that may be waiting to cross the street.

Ali McMillan of the Bridgeland-Riverside Community Association said:

Before you used to stick your head out into the traffic lane and boot it across so that you didn’t get hit by a car. The polka dots add visual interest so that drivers going by are like, “what’s going on?” and that causes them to pay more attention to the road.

According to reports, just an hour after installing the polka dots, cars were clearly slowing down as they approached the quiet intersection and the narrowing of the road is forcing cars to be more attentive to their surroundings.

If you or a loved one have suffered injuries as a result of a motor vehicle collision, 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.


Changes to the Minor Injury Regulation in Alberta

The Minor Injury Regulation was first introduced in 2004 by the Alberta Government to limit compensation for less severe injuries arising out of motor vehicle accidents. The regulation places a “cap” on how much an injured person with minor injuries can potentially recover in general damages.

The Minor Injury Regulation does not place a cap on compensation for income loss, medical expenses, loss of housekeeping capacity, cost of care, or future treatment costs.

The 2018 cap is $5,080. This means that if you have been involved in a motor vehicle accident in 2018 and you have suffered only minor injuries that fall under the cap, the maximum amount of pain and suffering damages that you are eligible to receive is $5,080.

On May 17, 2018, the Government of Alberta announced changes to the Minor Injury Regulation to provide more clarity on which injuries and symptoms are covered by the “cap”. These changes apply to all motor vehicle accidents that occur after June 1, 2018.

HOW TO DETERMINE WHETHER AN INJURY CLAIM WILL BE “CAPPED”?

A lawyer or insurance adjuster must look at a number of documents to determine whether the injury falls under the “cap”. These include the individual’s medical records, the Minor Injury Regulation, the Diagnostic and Treatment Protocols Regulation, and all relevant case law.

A minor injury is defined as a sprain, a strain, or WAD injury (whiplash associated disorder) caused by a motor vehicle accident that does not result in a serious impairment.

A sprain is defined as a stretching or tearing of ligaments (the tough bands of fibrous tissue that connect two bones together in your joints).  A strain is defined as a stretching or tearing of muscle or tendon (fibrous cord of tissue that connects muscles to bones).

WAD injuries are injuries to the neck caused by rapid acceleration and deceleration, typically seen in motor vehicle accidents. There are five grades of WAD. Alberta’s cap on injury damages applies to WAD I and WAD 2 only.

WAD I is defined as neck pain with normal range of motion and strength, no swelling, and no muscle spasm.

WAD II is defined as neck pain with limited range of motion, spasm or swelling, and tenderness in the neck and shoulders.  Injuries of this nature are possibly related to sprained ligaments or muscle tears causing internal bleeding and swelling.

A “serious impairment” is defined as an impairment of a physical or cognitive function that:

  1. Results in a substantial inability to perform the essential tasks of employment, schooling, or normal activities of daily living;
  2. Has been ongoing since the accident; and
  3. That is not expected to improve substantially.

RECENT CHANGES TO THE MINOR INJURY REGULATION

Alberta has recently enacted changes to the Minor Injury Regulation for all motor vehicle accidents in Alberta that occur after June 1, 2018.

The two main changes included in this amendment are that temporomandibular jaw (“TMJ”) injuries are now included in the Minor Injury Regulation, with the exception of those that involve injury to bone or teeth, or damage or displacement of the articular disc, and psychological injuries associated with whiplash disorders are also included in the amended regulation

TMJ Injuries in Alberta

Under the new amendment, TMJ injuries that do not involve damage to teeth or bones in the jaw, or damage to the articular disc will be capped.

Damage or displacement of the articular disc is usually found when an individual’s jaw makes a clicking sound, which is likely caused when the articular disc is sliding back into place after being displaced.

Mild jaw pain that resolves quickly and with minimal treatment will now be considered an injury that is capped by the Minor Injury Regulation.

Psychological Injuries in Alberta

The least severe psychological injuries will now be capped by the Minor Injury Regulation.  Psychological injuries such as depression or anxiety arising from a whiplash injury, which resolves once the whiplash injury is healed, is an example of a capped injury.

Those psychological injuries that persist for an extended period of time or that do not resolve when physical injuries heal will likely not be capped.

These changes to the Minor Injury Regulation only apply to motor vehicle accidents that occur after June 1, 2018. The preceding rules still apply to those accidents that arose before June 1, 2018.

If you or a loved one have been injured in a motor vehicle accident, call Cuming & Gillespie Lawyers today for a free initial consultation and speak to one of our experienced personal injury lawyers to get the help and advice you need. Please contact our office online or by calling 403-571-0555 to make an appointment for a free case evaluation. We look forward to helping you obtain the compensation that you deserve.


Recalled Blood Pressure Medication Triggers Two Proposed Class Action Lawsuits in Canada

Pharmaceuticals containing valsartan have been pulled from the market in 22 countries after contamination by a potential carcinogen N-nitrosodimethylamine (“NDMA”).

On July 9, 2018, Health Canada recalled 28 blood pressure medications from five generic brands that use the ingredient valsartan.

Health Canada advised that the medications were supplied by Zhejiang Huahai Pharmaceuticals of China. The ingredient valsartan used in the products contains an impurity called NDMA, a potential carcinogen that can cause cancer with long-term exposure. NDMA can be toxic for the liver and other organs and has been used by scientists to induce cancer in lab rats.

This recall could affect 4.4 million Canadians who have been prescribed medications.

WHAT IS VALSARTAN?

Drugs containing valsartan are used to treat high blood pressure and help prevent heart attacks and stroke. They are often used by patients who have had heart failure or a recent heart attack.

Canadians are advised to check with their pharmacists to learn if their medication is being recalled. They should not immediately stop taking the medicine unless they have been advised by their doctor or pharmacist.

Nardine Nakhla, from the School of Pharmacy at the University of Waterloo in Ontario, stated:

Patients should contact their pharmacist(s) to see if the drugs they’re taking are indeed the affected, recalled valsartan products. The pharmacist can then figure out alternative medications that are unaffected by the recall.

At this time it is unclear as to the long-term risks posed by the NDMA found in valsartan-containing drugs. The amount of NDMA consumed would certainly affect the risk.

Dr. Erin Michos, an associate professor and associate director of preventive cardiology at Johns Hopkins Medicine, stated:

What we know about the dangers of this impurity comes primarily from laboratory studies. It is a toxin that can affect the liver and cause liver fibrosis or scarring and liver tumors in rats. So, it is assumed to be toxic to humans, as well. In these animal studies, they usually give large quantities, so again, the risk is likely not the same equivalent in humans. …

I am certainly concerned, but I think it is too soon to panic. This recall is a precaution for safety.

Dr. Wassim Saad, Windsor Regional Hospital’s chief of medicine, believes that there may be a risk of getting cancer, but that the risk is relatively low. He stated:

In some animal studies and some very small human studies it caused gastric cancer, so stomach cancer, and colorectal cancer. But we’re talking months and sometimes years and oftentimes decades of exposure. So it’s unlikely that anybody is really going to see any harm from this.

 CLASS ACTION LAWSUIT PROPOSED IN QUEBEC

Kenneth Aitchison of Beaconsfield, Quebec has been taking valsartan for nearly two years to help regulate his blood pressure. He received a call from his local pharmacy several days after drugs containing valsartan were recalled in Canada on July 9, 2018.

Aitchison is named as the applicant in a request to proceed with a class-action lawsuit in Quebec, which was recently filed at the Montreal courthouse.

In Quebec, a lawsuit of this nature requires the permission of the court before it may proceed. This is referred to as the authorization stage, which is a screening mechanism to weed out untenable or frivolous claims. In Quebec, the burden is low and the province is viewed as a class action friendly jurisdiction.

Aitchison’s lawsuit alleges negligence against five Canadian pharmaceutical companies that manufactured drugs containing valsartan. It is alleged that these companies did not adequately inspect the ingredients shipped from China and failed to notify Canadians taking the drug that it was contaminated and subject to a recall.

The plaintiffs are seeking damages for personal injury, including increased risk of cancer, anxiety and mental distress, and additional costs for medical monitoring and dispensing fees.

The request to proceed with a class action reads as follows:

The class members have sustained a personal injury because there is a real possibility in the future that the class members will contract cancer because they consumed a drug contaminated with NDMA, which is a carcinogen.

Aitchison anticipates that thousands of Quebecers will join the lawsuit. It is anticipated that a hearing to determine whether the class action will go ahead will take place in six to nine months.

CLASS ACTION LAWSUIT COMMENCED IN ONTARIO

A separate class action lawsuit is being filed in Ontario to represent those individuals affected by the recall of valsartan in the rest of Canada.

This lawsuit is alleging that the following five companies did not adequately test their products:

  • Teva Canada Ltd.
  • Sandoz Canada Inc.;
  • Pro Doc Limitee;
  • Sanis Health Inc.; and
  • Silvern Pharmaceuticals ULC.

In Ontario, a lawsuit which is started as a class proceeding requires an Order for Certification from the Court certifying it as a class action. In order to certify the lawsuit as a class action, the court must consider the following:

  • whether there is a cause of action;
  • whether there is an identifiable class;
  • whether common issues are raised;
  • whether a class action is preferable for the resolution of the common issues; and
  • whether there is a suitable representative plaintiff.

Certification does not determine the merits of the case, it is simply a procedural matter to ensure that a case is appropriate to be dealt with as a class proceeding.

If a settlement cannot be reached, a class action lawsuit will proceed in the same manner as a traditional lawsuit with the common issues to be determined by a trial before a judge.

We will continue to follow any developments that occur with both of these class action lawsuits and will provide updates on this blog as they become available.

The personal injury lawyers at Cuming & Gillespie Lawyers have many years of experience litigating claims on behalf of accident victims. We provide free consultations for new clients to review your case and discuss potential options. Contact our office today online or call 403-571-0555 to make an appointment. We look forward to helping you obtain the compensation that you deserve.


Study Examines the Consequences of Distracted Walking

We are all aware of the dangers of distracted driving, but it is becoming commonplace in every busy city these days to see pedestrians walking with their eyes glued to their mobile phones, and even crossing busy streets without looking up. This is often described as “distracted walking”.

Walking while distracted by our smart phones can lead to injuries, including minor sprains, bruises and cuts, concussions, broken bones and more serious injuries in extreme cases where pedestrians have walked into traffic, stepped off train platforms, and fallen down flights of stairs.

A study by State Farm in 2016 found that 40% of Canadians surveyed participate in texting while walking. The study surveyed 3,000 respondents of driving age. Of those surveyed, 45% admitted to wearing headphones while walking and 70% of those surveyed admitted to jaywalking while being distracted.

Distracted walking is becoming so problematic that policymakers across both Canada and the United States have considered creating laws aimed at fining pedestrians who are found using their cell phones while crossing the road.

In fact, in Honolulu in 2017 a “Zombie Law” was enacted authorizing police to fine pedestrians for crossing the road while using their cell phones.

Lawmakers in Vancouver, Toronto, and Calgary have expressed interest in imposing fines or bans on distracted walking. However, laws of this nature have yet to be introduced in any city in Canada.

LATEST STUDY REGARDING DISTRACTED WALKING

A study by researchers at the University of British Columbia (“UBC”) has found that individuals walking while focused on their mobile phones move slower than other pedestrians and are less steady on their feet.

The study used automated video analysis to examine the movements and walking behaviour of 357 pedestrians at a busy four-way intersection in Kamloops, British Columbia, over a two-day period of time.

The research found that more than a third of pedestrians were distracted by their mobile phones, and those individuals had more trouble maintaining their walking speed and took longer to cross the road, thus increasing the potential for accidents with motor vehicles.

Pedestrians who were using their smart phones to text or read while walking, according to the study, took shorter steps without altering how long each step took. Pedestrians who were talking on their smart phones were found to take slower steps, but didn’t alter the length of each stride. Pedestrians who were distracted by texting and reading were found to have more unstable movements in comparison to other pedestrians.

Tarek Sayed, professor of civil engineering at UBC and a co-author of the study, stated:

This can have applications for safety. They can have less reaction time, they cannot focus on the road, and there are things that need to be done to improve the safety of distracted pedestrians.

Mohamed Zaki, a research associate in the department of civil engineering at UBC and co-author stated:

When it came to interactions with vehicles, distracted pedestrians acted differently than those who were not distracted. To avoid oncoming vehicles, they reduced their speeds by adjusting their step frequency, while non-distracted pedestrians adjusted both their step frequency and the length of their steps.

 The findings of this study will be used in the development of driverless cars. It will be essential to program autonomous vehicles to recognize distracted pedestrians from their walking patterns in order to anticipate their behaviours and take the appropriate evasive actions to avoid an accident.

PEDESTRIANS MUST EXERCISE DUE CARE

All pedestrians are obligated to demonstrate due care while using the road. As a pedestrian, the Use of Highway and Rules of The Road Regulation (section 92) requires you to yield the right of way to a vehicle if you are not in a crosswalk.

The law tends to favour pedestrians who are injured in motor vehicle accidents. However, courts will be less forgiving if you are found to be using your cell phone while crossing the road.

Talking on the phone, texting or surfing the internet on your mobile phone while walking may seem harmless, but performing these activities while walking is extremely distracting and can result in very serious injuries. A pedestrian may be found partially at fault for a motor vehicle accident if it can be proven that the pedestrian was distracted at the time of the accident.

TIPS FOR PEDESTRIANS TO AVOID INJURIES

Here are just a few simple tips to avoid distracted walking and keep you safe from injury:

  • Always be aware of your surroundings and stay alert, especially when crossing the road;
  • Maintain eye contact with drivers and wait until vehicles have stopped before crossing the road;
  • Obey all traffic signals;
  • Only cross the road at designated crossing points;
  • Wear light-coloured or reflective clothing when walking in low light or poor weather conditions;
  • Unplug – don’t be a distracted walker, remove your headphones and put your phone away when you’re crossing the road;
  • Always use a sidewalk when one is available;
  • Watch for vehicles turning as you cross an intersection;
  • Make sure all vehicles have seen you and will stop for you before proceeding across the road; and
  • If you absolutely need to use your phone, stop walking.

If you or a loved one were involved in a motor vehicle accident as a pedestrian, it is imperative that you have an experienced personal injury lawyer to help you determine fault for the accident. 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 that you deserve.


Nova Scotia Boy Receives $6 Million Settlement for Brain Damage at Birth

Obstetrician Dr. Allison Ball and the former Guysborough Antigonish Strait Health Authority (the “defendants”) have agreed to pay $6-million to Cullan Chisholm (“Cullan”), a 7-year-old boy, due to severe brain injuries he suffered during his birth. This is one of the largest settlements of this nature in the province of Nova Scotia.

Cullan lives with his parents and his little brother in a bungalow in Antigonish, Nova Scotia.

Cullan is unable to control his body due to severe cerebral palsy and cognitive impairment. He is unable to speak, move or use the bathroom without the help of an adult.

Cullan will require constant care, 24 hours a day, for the rest of his life. He is totally dependent upon his parents for feeding, bathing, dressing, and all other personal care activities.

WHAT HAPPENED?

Monique Chisholm was in labour at St. Martha’s Regional Hospital while receiving oxytocin, which induces and intensifies contractions.

According to the Chisholms’ Statement of Claim, two nurses attending the labour and Dr. Ball, a fifth-year obstetrical resident, neglected to discern the signs on the fetal heart monitor that the baby wasn’t getting enough oxygen.

The Chisholms allege that the defendants failed to take proper medical responses when they saw that the baby was in distress. Dr. Ball decided not to proceed with an emergency C-section, ultimately leading to oxygen loss for the baby, resulting in brain damage and cerebral palsy.

On July 31, 2010, Cullan was born. He was grey and lifeless, with the umbilical cord wrapped around his neck.

Cullan was airlifted to IWK Health Centre in Halifax and spent the next 72 hours being chilled in an incubator to try to reduce damage to his brain.

Medical experts retained by the Chisholms maintain that Cullan suffered brain damage in two stages, during the prolonged labour and again during delivery.

These experts opine that an earlier intervention, such as a caesarean section, would likely have resulted in a healthy birth.

There was no admission of fault by Dr. Ball or the health authority, or any finding of fault by a court. However, the defendants did agree to settle the case out of court.

WHAT WAS THE SETTLEMENT?

The Chisholms maintain that it currently costs $70,000 per year to take care of Cullan. These costs are expected to increase as he continues to grows and will likely reach $130,000 a year by the time he reaches the age of 21.

As a result of a settlement between the Chisholms and the defendants, Cullan’s future care is guaranteed through a $3-million annuity purchased with the settlement funds. There is also money available to build a wheelchair-accessible home for the family.

A third of the settlement money will go towards paying legal costs that the family accumulated during the seven-year legal battle.

Dr. Ball is responsible for $4-million of the settlement, while the hospital, through the Canadian Medical Protective Association (a non-profit organization that defends doctors against malpractice claims) is responsible for the remaining $2-million.

The Chisholms’ lawyer, John McKiggan, emphasized the significance of this case as it recognizes the harm and associated costs that are associated with caring for a catastrophically injured child. He hopes that this case will help children who are seriously injured during birth receive the care they require.

WHAT IS CEREBRAL PALSY?

Cerebral palsy is a neurological condition affecting muscle tone, body movement, and muscle co-ordination. Cerebral palsy is caused by an injury to the developing brain that occurs during pregnancy, labour and delivery, birth or within the first two to three years of a child’s life.

The most common cause of cerebral palsy due to birth injury is oxygen deprivation. The lack of oxygen can lead to decreased blood supply to the baby’s organs, and can result in permanent injury to the baby’s brain and other vital organs. Babies with these type of injuries may later develop permanent neurologic conditions, such as cerebral palsy or other cognitive and developmental problems.

Brain damage during the birthing process can occur due to:

  • Umbilical cord issues, which lead to oxygen deprivation;
  • Abnormal uterine contractions;
  • Shoulder dystocia;
  • Rupture of the uterus;
  • Placental problems;
  • High maternal blood pressure;
  • Undiagnosed and untreated maternal infections;
  • Excessive pressure on the baby’s head during uterine contractions;
  • Jaundice; and
  • Arching the back and neck.

In the hospital, the obstetrical team is responsible for monitoring fetal and maternal wellbeing during labour and delivery. If a baby is deprived of oxygen this will cause changes in the heartbeat, which can be monitored on an electronic fetal heart monitor. Warning signs on the fetal heart monitor must be examined by the obstetrical team. The failure to intervene in the face of troublesome changes can result in serious injury to the baby. Medical errors of this nature can form the basis of a successful birth injury claim.

If you or a loved one have suffered due to birth trauma, nursing and hospital negligencesurgical error or medical malpractice, you may have a right to pursue financial compensation for the damages you have endured. Please contact the experienced personal injury lawyers at Cuming & Gillespie Lawyers today online or at 403-571-0555 for a free consultation.


Albertans Cautioned about Summer ATV Safety

ATV use is a very popular recreational activity for those in Alberta due to their economical, versatile, and thrill-seeking appeal. Unfortunately, recent injury data according to the University of Alberta informs us that Albertans are not riding ATVs safely, leading to serious injuries and sometimes even death.

According to the Injury Prevention Centre at the University of Alberta, every year an average of 16 Albertans die in ATV crashes. Head injuries are responsible for 41% of these deaths. The majority of those who died from head injuries (80%) were not wearing a helmet.

Each year approximately 5,200 Albertans visit emergency departments with ATV injuries. Over half of all ATV fatalities during this time period tested positive for alcohol.

RECENT REPORTED ATV ACCIDENTS IN ALBERTA

In late April, 2018, a 31-year-old man died following a crash involving an off-highway vehicle west of Athabasca (150km north of Edmonton).

Three children were injured after the ATV they were riding on rolled over in April, 2018 southwest of Linden, Alberta. The oldest of the three was airlifted to a Calgary hospital, the other two children suffered minor injuries. None of the children were wearing helmets.

In June, 2018, a 12-year-old girl died of her injuries after her ATV rolled over in Central Alberta.

In late June, 2018, a 26-year-old man was pronounced death at the scene by EMS following a single vehicle accident in southeast Edmonton.

 These are disturbing reminders to us all to always exercise caution and common sense when operating an ATV.

 WHAT IS AN ATV?

An All-Terrain Vehicle, often known as an ATV, is a type of off-road vehicle and is often defined by having the following characteristics:

  • 4 low-pressure bearing tires, all in contact with the ground;
  • steered by handlebar;
  • seat designed to be straddled;
  • vehicle designed to carry a driver only and no passengers.

In Alberta, ATVs are considered off-highway vehicles according to the Traffic Safety Act.

WHAT IS THE LAW IN ALBERTA REGARDING HELMETS FOR ATVS?

As of May 2017, helmets are mandatory when operating an ATV in Alberta on public land. However, there are a number of circumstances where helmets are not required when riding an ATV. These exemptions are as follows:

  • On your own property;
  • On private property with permission of the owner;
  • On First Nations Reserve or Metis Settlement lands, unless they have a law requiring it;
  • If you are a member of the Sikh religion and wear a turban; and
  • If you are performing farming or ranching operations exempt from Alberta’s occupational health and safety laws.

Despite these numerous exemptions, it is strongly recommended that all riders wear a safety helmet. Helmets for ATVs must comply with the same standards that exist for motorcycle helmets.

SAFETY MEASURES TO REDUCE RISK OF AN ATV ACCIDENT

If you are using an ATV for work or for recreation, it is important to follow these precautions to reduce your risk of injury:

  1. Ride sober: Do not drink alcohol or do drugs before or while operating an ATV. Impaired driving laws are the same for all motorized vehicles in Alberta.
  2. Get trained: Take an Alberta Off-Highway Vehicle Associate course or the Alberta Safety Council ATV course to educate yourself before riding an ATV.
  3. Clothing: Wear a helmet, eye protection, long pants, long sleeves, gloves, and non-skid shoes for every ride.
  4. Ride the proper size ATV: Always follow the manufacturer’s recommendations and remember that adult-sized ATVs are not appropriate for children under 16 years of age.
  5. Ride in daylight: Low light and reduced visibility will increase the chances of an accident.
  6. Do not take passengers: Most ATVs are not designed for passengers.
  7. Lighten your load: Check your owner’s manual for load limits and keep to those limits. Also use proper tie-downs to secure your load and properly distribute the weight.
  8. Keep your ATV in good repair.
  9. Always tell someone where you are going and check in when you return from your ride.

ATVS AND PERSONAL INJURIES

ATVs are operated similar to motorcycles in so far as the rider is most often seated above the engine. However, ATVs are designed to be used on off-road terrain and this element can make them very dangerous. The biggest danger facing ATV use is the possibility of a rollover, which can cause severe personal injuries requiring weeks or months of recovery.

Some of the most common personal injuries suffered by those involved in an ATV accident include:

  • fractures to the knees, lower legs, ankles, and feet;
  • fractures to the shoulders and upper arms;
  • head injuries ranging from cuts and bruises to traumatic brain injuries (TBI);
  • spinal cord injuries;
  • crush injuries;
  • internal injuries, including fractured ribs, organ damage, and internal bleeding;
  • burn injuries; and
  • whiplash.

If you or a loved one have suffered personal injuries as a result of an ATV accident and believe a third party is responsible, please contact the award winning and experienced lawyers at Cuming & Gillespie Lawyers online or call 403-571-0555. We will review your ATV accident case to determine the best approach to take and how we can help you recover compensation for your injuries.


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.


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