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Cuming & Gillespie's COVID-19 Statement - Read Post

Written on behalf of Cuming & Gillespie

Alberta’s Latest Minor Injury Cap Announcement

A recent announcement by the Superintendent of Insurance has confirmed that the minor injury maximum amount for 2021 has been set at $5.365.  This is an increase of 1.3% from last year’s amount of $5,296.  The minor injury cap applies to automobile accidents that occurred in Alberta on or after January 1, 2021.

Under the Minor Injury Regulation, the minor injury amount cap should be adjusted each year in accordance with the annual changes in the Alberta Consumer Price Index.  The annual maximum minor injury amounts have been set by the Alberta government since 2004.  The historical yearly adjustments can be viewed here.

WHAT IS THE MINOR INJURY CAP?

In Alberta, the Minor Injury Regulation was first introduced by the Alberta Government to limit compensation for less severe injuries arising out of motor vehicle accidents.  In doing so, the government was attempting to balance the rights of injury victims with the increasing costs of insurance.  The goal was to lower premiums for Alberta drivers.  The regulation places a “cap” on how much an injured person with minor injuries can potentially recover in general damages.

The Minor Injury Regulation only places a cap on pain and suffering damages for those with certain minor soft-tissue injuries.  It does not place a cap on compensation for income loss, medical expenses, loss of housekeeping capacity, cost of care or future treatment costs.

WHAT IS CONSIDERED A MINOR INJURY?

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

The definition of minor injury was recently amended pursuant to Order in Council 333/2020 and came into effect on November 1, 2020.  These amendments expanded the definition of minor injury. 

The minor injury definition has been broadened and now includes the words:

caused by the accident that does not result in a serious impairment and includes, in respect of a sprain, strain or WAD injury that occurs on or after November 1, 2020, any clinically associated sequelae of sprain, strain, or WAD injury, whether physical or psychological in nature, caused by the accident that do not result in a serious impairment.

The changes to the definition now include anything associated with those listed injuries, whether physical or psychological in nature, may be considered a minor injury.  Therefore, this definition now includes minor psychological injuries whereas all psychological injuries were once excluded under the term “minor injuries”. 

Injuries to the temporomandibular joint (TMJ) and associated muscles were once considered outside of the scope of the minor injury cap.  The new definition attempts to bring TMJ injuries under the cap.  Dentists have also been given the green light to determine if there is a minor injury involving the TMJ.  Previously, the accident victim would visit a TMJ specialist to assess the injury.  This is an attempt to lower the costs of assessments as dentists’ fees are much lower than those of TMJ specialists.

IMPORTANT DEFINITIONS RELATED TO THE TERM ‘MINOR INJURY’

The term ‘minor injury’ as found in the Minor Injury Regulation is a vague, complex and confusing concept.  We will attempt to breakdown and define a few of the medical terms found within the term ‘minor injury’. 

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 minor 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, with tenderness in the neck and shoulders, 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.

IS MY MOTOR VEHICLE ACCIDENT CLAIM CAPPED?

In order to determine whether your accident claim for general damages is capped, a review of your injuries, your medical history and the opinion of your medical providers is required. 

There is not always a simple answer to whether your claim is capped, therefore it is important to speak with an experienced personal injury lawyer in order to protect your rights and obtain the compensation that you are entitled to.

The knowledgeable and award winning personal injury lawyers at Cuming & Gillespie Lawyers can help educate you with respect to minor injury caps and help you navigate the insurance system.

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.


Four Reasons to Contact A Lawyer Immediately Following an Accident

It is extremely important to contact an experienced personal injury lawyer immediately following an accident.  The importance of doing so should not be taken too lightly.  The sooner you contact a lawyer, the sooner he/she can begin to build a case and look for evidence.

IMPORTANCE OF PRESERVING EVIDENCE

One of the biggest factors that will affect the value of your personal injury case is how well your injuries are documented.  Contacting a personal injury lawyer in the days following an accident will help ensure that the injured party not only receives medical attention quickly, but also ensures that the injuries and complaints are properly documented. 

When you contact the personal injury lawyers at Cuming & Gillespie, we will take the appropriate steps to ensure that your medical professionals are preparing the necessary documentation and reports.  We will also ensure that evidence from the scene of your accident is preserved. 

Not all evidence is easily accessible.  Experienced personal injury lawyers are skilled at collecting the required evidence, such as photos from the accident scene, cell phone records, video camera footage or police reports, and preserving it. 

In some cases, it might also be important to have the expertise of accident reconstruction experts or other potential witnesses.  Experienced personal injury lawyers are prepared to retain necessary experts and locate eye witnesses, if necessary.

IMPORTANCE OF LAW AND PROCEDURAL RULES

Hiring a personal injury lawyer to represent you following an accident will ensure that you have a professional working for you who is extremely knowledgeable about the relevant laws and procedural rules that may affect your legal case.

One of the most important rules are the time limits that can bar you from filing a lawsuit against the at fault party. 

In many cases you cannot sue after a certain period of time has passed.  This is known as the “limitation period”.  In Alberta, the Limitations Act governs the time limits for filing civil lawsuits, including those for serious personal injury claims.  The time limit generally depends upon the reason for suing.

Legal claims have different time limitation periods, therefore it is extremely important to discuss your personal situation with an experienced personal injury lawyer as soon as you believe you have a claim.  This early discussion will help you understand any potential complications regarding limiting timeframes.

Limitation periods are a complicated and technical area of the law.  Therefore, receiving advice from an experienced and knowledgeable lawyer is of the utmost importance. 

IMPORTANCE OF ESTABLISHING FAULT IN THE ACCIDENT

Before you can pursue a personal injury claim, you must be able to prove the fault of a third party (i.e. driver, property owner etc.).  In some accidents, fault may be clear.  However, even in these cases liability (the legal term for fault) will likely be disputed and will need to be proven.

An experienced personal injury lawyer can help establish fault in the accident by investigating the incident, visiting the scene and reviewing the physical and photographic evidence.  Witness statements can also be a valuable tool in establishing fault.  Witness testimonies can help eliminate the possibility of negligent or careless behaviour on the part of the victim.  In slip and fall cases, witnesses may also be able to speak on the existence of dangerous conditions and the property owner’s awareness of the problem.

PERSONAL INJURY LAWYERS ADVOCATE FOR YOU

Early contact with an experienced personal injury lawyer will help a victim in the aftermath of an accident by allowing him/her to rely on their lawyer for their expertise.  A lawyer experienced in personal injury law will help alleviate the concerns and anxiety of the victim during the litigation process by ensuring that their client is not rushing through or reacting hastily to the process.

When you hire a personal injury lawyer, all interactions and communications regarding your case will be filtered through your lawyer. 

In the case where insurance companies become involved, victims can rely upon the experience of their personal injury lawyer to advocate on their behalf and ensure that insurance companies are holding up their end of the bargain. 

When you hire Cuming & Gillespie Lawyers, you can be confident that you are getting the best and most effective representation for your personal injury claim.  We have more than 20 years of experience successfully representing injured clients in serious personal injury claims.

If you 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.  The award winning personal injury lawyers at Cuming & Gillespie Lawyers can help.  Please contact us 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.


Motor Vehicle Accidents and Arthritis

Car accidents can cause a wide variety of injuries from bruising to head injuries.  One of the most overlooked results of a car accident is arthritis.  The effects of a crash may aggravate pre-existing arthritis or cause acute post-traumatic arthritis.  In some cases, the symptoms of arthritis may take time to develop.

WHAT IS ARTHRITIS?

Arthritis is a colloquial way of referring to over 100 types of conditions that are characterized by inflammation in joints or other areas of the body.   Inflammation is defined as redness and swelling that causes pain and may cause stiffness in the joints.  This condition can involve any part of the body, but most often affects the hip, knee, spine or other weight-bearing joints, as well as the fingers and other non-weight-bearing joints. 

The most common arthritis joint symptoms include swelling, pain, stiffness and decreased range of motion.  These symptoms can range from mild to severe, and may come and go.  Severe forms of arthritis can result in chronic pain, which affects the ability to complete daily activities and may make it difficult to walk or climb stairs. 

WHAT IS POST-TRAUMATIC ARTHRITIS?

Post-traumatic arthritis involves damage to cartilage in an injured joint resulting from trauma to the body as a result of a physical injury, such as a sports injury, motor vehicle accident or a fall.  This damage can range from bruising to cartilage loss.  Typically damaged or lost cartilage rarely grows back.  This allows for scar tissue to form, which may interfere with movement in the joint and cause further damage. 

Post-traumatic arthritis may also develop where cartilage has not been damaged.  For example, arthritis may develop in the case where a bone fractures and heals out of place.

Post-traumatic arthritis can also develop many years after a crash.  Trauma to joints caused by a car accident increases the chances that arthritis can develop many years following the injury. 

Those suffering from post-traumatic arthritis often experience pain in the joint, swelling, fluid accumulation in the joint and limited mobility.  These symptoms can make participating in physical activities, such as recreational sports or even walking, extremely painful.

Treatment for post-traumatic arthritis often includes weight loss, medication, low-impact physical activity and strengthening exercises, and may include cortisone injections.  If arthritis progresses and non-surgical treatments are no longer effective, surgical options such as debriding reconstructing or replacing worn out joint surfaces may be considered.

If you have been involved in a motor vehicle accident, it is important to ask your doctor about the chances of developing post-traumatic arthritis and any ways that you can reduce your risk of developing this condition.  This information will be helpful in determining compensation for your injuries.

CAN A CAR ACCIDENT AGGRAVATE PRE-EXISTING ARTHRITIS?

It is very common that a car accident will make arthritis or other pre-existing medical conditions worse. 

Although an individual’s pre-existing condition may affect their claim for compensation, it certainly does not bar him/her from recovering compensation. 

As a general rule, in assessing damages a judge will only put an accident victim back to his/her original position before the accident occurred.

An accident can make your pre-existing issues worse (an aggravation or exacerbation of a pre-existing injury) or cause a condition that was previously asymptomatic to become symptomatic.  All injuries sustained as a result of a car accident or slip and fall are compensable.  However, you are not entitled to be placed in a position better than your original position before the accident.

If you choose to proceed with a claim, it will be important to obtain the accident victim’s medical records to prove the nature of the pre-existing condition and whether or not this condition was stable at the time of the accident.  Past medical records and more recent medical evaluations since the accident are required to prove the validity of the claim.  These records can verify the diagnosis, treatment taken and ongoing prognosis, which will be useful in proving an injury or disability.

Records such as clinical notes from doctors, diagnostic test reports, office appointment histories, treatment records, laboratory tests, hospital records and account or billing statements are all important documents which may illustrate the severity or nature of the injuries.

The personal injury lawyers at Cuming & Gillespie Lawyers have many years of experience successfully handling cases for compensation by those who have suffered injuries in accidents caused by the negligence of third parties. 

If you have suffered injuries as the result of someone else’s negligence, please contact the personal injury lawyers at Cuming & Gillespie Lawyers.  Our legal team is made up of knowledgeable lawyers capable of handling a wide range of personal injury cases, including those involving pre-existing conditions.  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.  For a free evaluation, please contact our office online or at 403-571-0555 to make an appointment.  We look forward to helping you obtain the compensation that you deserve.


Play Safe This Winter

As the pandemic continues, Albertans are looking for ways to keep busy and stay safe by limiting the risk of coronavirus infection.  The winter season provides many opportunities to be active and to practice social distancing, however, these activities can sometimes lead to a trip to the emergency department. 

In 2018, skiing and snowboarding accidents accounted for 1,700 hospitalizations throughout Canada, with snowmobiling (905 hospitalizations) and hockey (720 hospitalizations) following behind.

TOBOGGANING

Tobogganing is a great way to get the whole family outside and it’s an activity that can easily be enjoyed while continuing to follow the government safety measures in place to limit the spread of COVID-19.

But be warned, tobogganing is also one of the most dangerous winter sports.  It is rated the fifth-highest cause of winter injury hospitalizations in Canada. However, tobogganing injuries are preventable if you take the proper precautions.

The lawyers at Cuming & Gillespie Lawyers recommend following these tips to ensure safety while tobogganing:

  1. Always wear a helmet:  Half of tobogganers’ catastrophic injuries are caused by head injuries.  Therefore, wearing a ski helmet is recommended as they are designed for use in cold weather and for similar falls and speeds.
  2. Inspect the hill before sledding down it:  It is important to look out for rocks, logs, ditches and other hazards.  Be sure to avoid sledding on icy days, which can make the hill treacherous.  Also, ensure that the hill is away from roads, rivers and railroads, and that the hill has a long, clear runoff area. 
  3. Inspect your equipment before heading out:  Always ensure that your sled or toboggan is in good condition before using it.  Broken or defective equipment can cause you to fall off and result in accidents or injuries.
  4. Adults should always supervise their children:  Children require supervision while sledding to ensure safety.  According to Parachute, tobogganers were unsupervised in 93% of catastrophic injuries recorded.
  5. Watch out for others:  Ensure that you watch out for others who are using the same hill and move quickly away from the bottom of the hill to avoid an injury.  It is also important to walk up and away from the sliding path to avoid any collisions.

ICE SKATING

Ice skating is another outdoor winter sport that experts recommend as it presents a good opportunity for socialization, exercise and can be enjoyed while maintaining a proper distance from others. 

It is recommended that those who enjoy ice skating, like sledding, should always wear a helmet to prevent the risk of a head injury.  It is also important to ensure that your skates fit property and that the blades are sharpened.  Dull blades are more dangerous to skate with. 

Those that are new to skating should take skating lessons where they will learn safer ways of falling in order to minimize the chance of an injury.  It is also important that all skaters proceed in the same direction, as accidents can happen when getting in the way of skaters.

Most importantly, if you choose to skate on a pond or lake, it is essential to practice ice safety.  Always inspect the ice before proceeding.  Ice needs to be at least fifteen centimetres thick to be considered safe.  Never skate near pockets of open water on a frozen lake as this is an indication that the ice is thin or you are near a cracked surface.   The colour of the ice may also indicate its strength.  Clear blue ice is the strongest and white opaque ice is half as strong.  Grey ice is unsafe and indicates the presence of water. 

It is presumed that those who take to the ice or to the hills are voluntarily assuming the risks associated with these activities, including the possibility of falling. However, there are some exceptions to this presumption in a situation where an injury may occur through no fault of the participant.  If there is a situation where an injury occurs as the result of improper maintenance or when a disruptive individual directly causes an injury, there may be liability on the part of the venue or property owner.  For example, as an occupier of an outdoor skating rink, the owner has to keep the property in a safe condition for its intended purpose. 

Most outdoor activities are inherently dangerous, however, there are often simple ways for individuals to reduce the risk of injury and continue to participate in these exciting winter activities.  It is important to know that just because an individual undertakes an activity, he/she does not necessarily assume any and all risks that may arise during that activity.  If an individual is injured while participating in an activity by an unknown danger on the premises, he/she may be able to hold the occupier of the premises liable. 

If you or a loved one have been injured as a result of an unknown danger, it is important to contact the experienced personal injury lawyers at Cuming & Gillespie Lawyers.

Cuming & Gillespie Lawyers hope that you have an opportunity to enjoy the outdoors this winter, and know that we are available should anything go wrong.  If you or someone you love has suffered a serious personal injury this winter, contact our office online or at 403-571-0555 for a free consultation.  We look forward to helping you obtain the compensation that you deserve.


Judge Appeals to Calgary Drivers to ‘Do Better’ and Fines Motorist $1,500 Following a Fatal Pedestrian Collision

On January 9, 2019 at approximately 7am, Dawn Chiasson (“Chiasson”) was walking her dog in a poorly lit, unmarked crosswalk at 26 Avenue at 5 Street N.W. when she was struck by Wesley Kevin Harder’s (“Harder”) pick-up truck.  At the time, Harder was making a left turn, but was looking to his right for oncoming traffic. 

Chiasson was taken to hospital in life threatening condition where she succumbed to her injuries 11 days later. 

FAILING TO YIELD TO A PEDESTRIAN CHARGES

Harder pleaded guilty to a Traffic Safety Act charge of failing to yield to a pedestrian.  The Crown prosecutor sought the maximum fine of $2,000 and a driving prohibition. 

Harder offered the court and Chiasson’s brother and sister who were seated in the courtroom an apology.  He stated:

I’d like to say to the family members that I’m so sorry this happened.  I have no words to express how I feel.  I wish I could turn back time to make it right. 

Provincial Court Judge Josh Hawkes considered the legal arguments by both the Crown and Harder’s lawyer and ordered Harder to pay a fine of $1,500.

JUDGE APPEALS TO DRIVERS IN CALGARY

During his sentencing judgment, Judge Hawkes emphasized that Calgary drivers need to do better as there are too many pedestrians being killed by inattentive drivers.  He stated:

We have all become too familiar with these headlines that we read in the city of Calgary every day about pedestrians being killed.  …

The enormity of that … isn’t brought home until it happens in your circle. …

And then you see the terrible price. …

This is not an uncommon driving infraction … it happens frequently. …

Even minor errors or lapses in attention or judgment can have and do have a catastrophic effect…. We must all do better.

MAKING A CLAIM FOR WRONGFUL IN ALBERTA

The loss of a family member as a result of a motor vehicle accident is devastating. 

In Alberta, if your loved one has died as a result of personal injuries sustained in a car accident, you may be entitled to financial compensation for your losses. 

Alberta’s Fatal Accidents Act permits a legal action to be brought to recover damages for the benefit of certain family members.   According to section 3 of the Fatal Accidents Act, only the spouse, adult interdependent partner, parent, child, brother/sister of the individual who died are eligible to make a claim.

Under the Alberta Fatal Accidents Act, the following claims may be made:

  1. Expenses incurred for the care and wellbeing of the deceased between the time of injury and death may be claimed by a spouse, adult interdependent partner, parent, child, brother/sister (section 7(a));
  2. Travel and accommodation expenses incurred in visiting the deceased between the time of the injury and death may be claimed by the spouse, adult interdependent partner, parent, child, brother/sister (section 7(b));
  3. Funeral expenses including all things supplied and services rendered in connection with the funeral and disposal may be claimed by the spouse, adult interdependent partner, parent, child, brother/sister (section 7(c));
  4. Fees incurred for grief counseling for the benefit of the spouse, adult interdependent partner, parent, child, brother/sister (section 7(d));

A spouse or child may make a loss of dependency claim if the deceased was gainfully employed and was supporting or partially supporting those dependents. 

The deceased’s family members may also make a claim for bereavement, which is an amount for grief, and loss of care, guidance, and companionship. 

Section 8 of the Fatal Accidents Act sets out the amount for bereavement for fatal collisions occurring after May 1, 2013 as follows:

  • A surviving spouse or interdependent partner may claim  $82,000;
  • Surviving parent or parents may equally divide a claim of $82,000, and
  • Each surviving child of the deceased may claim $49,000

Unlike other provinces in Canada, brothers, sisters, and stepchildren cannot receive any financial compensation for bereavement.

LIMITATION PERIOD FOR WRONGFUL DEATH CLAIMS

As with other personal injury claims in Alberta, proceedings for wrongful death must be commenced within two years from the date of death.  However, limitation dates may vary if the claimant is a minor or dependent adult.

Legal advice from an experienced personal injury lawyer is strongly recommended in order to avoid failing to commence an action outside of a limitation period, which could be disastrous to your claim.

If you have a loved one that died as a result of someone else’s negligence, our personal injury law firm can help.  At Cuming & Gillespie Lawyers, our team of personal injury lawyers are knowledgeable, experienced and compassionate and we can help ensure that you receive fair compensation while helping you and your family move forward.  Please contact our office online or at 403-571-0555 for a free consultation to help you understand your rights under the Fatal Accidents Act and help you and your family receive compensation for your loss. 


Ontario Town Not Liable for Electric Shock Hazard at Sports Field

The Ontario Court of Appeal has agreed with a trial judge’s ruling that found a town not liable for injuries suffered by a teenager who sustained a shock and subsequent injuries while playing soccer at an outdoor sports centre.

Zoe Onley (“Onley”), 18 years old at the time, and her parents sued the town under the Ontario Occupiers’ Liability Act and claimed for general damages, lost wages and loss of future earnings.  The main issue at the trial was whether the town had met its standard of care.

THE TRIAL

On August 15, 2012, Zoe Onley was playing soccer at a sports field owned by the Town of Whitby (east of Toronto).  The grass was wet at the time.  During a break in the game, Onley left the field and sat down on some grass near a light pole.  As she began to resume play she felt an electric shock.  She later collapsed and was taken by ambulance to hospital.

As a result of the electric shock, Onley alleged that she suffered from physical pain in her legs, feet and muscle cramping, and also suffered from post-traumatic stress disorder.

Investigators removed an access metal plate near the base of the light pole in question and discovered damaged wiring.  Expert evidence suggested that a bonding wire melted and separated, disconnecting it from the pole.  This caused an electrical current to leak from the damaged, uninsulated wire to the surface of the pole, then down the pole into the ground.  It was suggested that Onley provided a current between the lighting pole and the surrounding ground. 

An electrical engineering expert testified on behalf of Onley and claimed that the wires and connectors in the electrical system could have been damaged due to the lack of the town’s effective maintenance and inspection program. 

In the end, Justice Koke determined that the components had been damaged by an earlier lightning strike and that this damage was not overtly noticeable.

In his decision, Justice Koke wrote:

The damage was such that no short-circuit path had been created in the electronics of the luminaires.  The current-carrying wires and fuses remained intact, allowing the luminaires to continue functioning normally when energized after the incident.  Leakage current escaped from the damaged phase conductor, but the nature of the damage was such that it prevented the leakage current from being safely drained away by an intact bonding wire.  Instead, the leakage current migrated down the pole and onto the ground.

Justice Koke decided it was not reasonably foreseeable that a lightning strike would damage wiring in the light pole without also affecting the normal functioning of the lights or causing circuit breakers to trip.  He wrote in the reasons for his decision:

In my view damage of this nature, and the consequences flowing therefore, were not reasonably foreseeable and could not have been within the reasonable contemplation of the town.  Although I find the risk of lightning striking an electrical pole is foreseeable, it was not reasonable foreseeable that such a strike would cause the damage at issue in this case, with the resulting injury to a user of the field.

With respect to Onley’s claim for damages, Justice Koke found that she had “achieved substantial recovery” and had been employed in various positions that require her to be an “able and mobile body” and that she has done well in overcoming her PTSD issues. 

If the town had been found liable, the trial judge would have assessed Onley’s non-pecuniary damages in the sum of $85,000.  Justice Koke would have dismissed her claim regarding a delay in her graduation from university, her claim for past income loss, her claim for the loss of an athletic scholarship and her claim for loss of future earnings.  With respect to her claims for future care costs, he would have awarded her $50,000 for future therapy sessions and he would have awarded her parents $15,000 each for their Family Law claims. 

THE APPEAL

Onley and her parents brought an appeal and submitted that the trial judge erred in his finding regarding the timing of the damage to the light standard and his findings in law with respect to his analysis of the foreseeability of the nature of the damage. 

The appeal court reiterated the following three important parts of the Occupiers’ Liability Act:

  • The Act imposes a duty on all occupiers to “take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises”;
  • The Act does not require a standard of perfection; and
  • What constitutes reasonable care depends on the facts of each case.

The judges on the appeal panel agreed with the trial judge’s findings of fact and application of the standard of care analysis.  Therefore, the appeal was dismissed.

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


Ottawa Man who Lost His Leg in a Boating Accident Sues Boat Driver, Owner and ‘Spotter’

A multi-million dollar lawsuit has recently been filed by a 20-year old Ottawa man who lost his leg in a 2018 boating accident.

Aidan McLaughlin (“McLaughlin”), the boat driver, Julia Fournier (“Fournier”), the mother of McLaughlin who owned the boat, and Otis Fatona-Pinet (“Fatona-Pinet”), a friend who was acting as a “spotter” on the boat, have been named as defendants to the lawsuit.

THE ACCIDENT

On August 29, 2018, Emilio Dutra Lidington (“Dutra Lidington”) was in a tube being towed by his friend’s boat on Lac Pemichangan, two hours north of Ottawa, when he was thrown off the tube.  McLaughlin, who was driving the boat, circled around at high speed and struck Dutra Lidington with the boat despite the fact that he was waving his arms in the air.  The boat propeller sliced through Dutra Lidington’s right leg and right hand.

Dutra Lidington described the accident to a reporter:

I thought he was going to slow down, but suddenly there was like three seconds to react.  I realized, ‘This is not happening,’ so I dove down as deep as I could. …

I lay down on the floor of the boat and I was trying to convince myself it was just a wrist injury, but everyone was panicking.  I knew I had to stay calm.  I kept telling myself, ‘It’s just a wrist injury’ because I didn’t want to look at my leg.  …

I was pretty angry at that guy for running me over.  They were saying ‘Bro, you’re going to make it!’  And I was, ‘Bro, shut up.  I know I’m going to make.  I’m not scared of making it.  I didn’t even know how bad it was.

Dutra Lidington was taken by ambulance to Hull Hospital, approximately an hour away from where the accident occurred.   There he received 43 units of blood.  He was then transferred to Ottawa Hospital’s trauma unit where he received an additional 20 units of blood. 

The young man spent two and a half weeks in intensive care.  Complications arose as his wounds were infected due to the lake water.  Despite multiple debridements (cutting away of the dead tissue), the infections continued to spread.  Eventually the decision was made to amputate the leg.  Dutra Lidington’s leg was originally taken off above the right knee, then halfway up the thigh and then his leg was amputated right up to the hip.  He has already had to undergo 16 surgeries related to his injuries.

After five months in hospital, Dutra Lidington began his rehabilitation at Ottawa Rehabilitation Centre.  His artificial leg costs approximately $100,000 and he will likely need a dozen of them during his lifetime. 

THE ALLEGATIONS

According to the statement of claim, Dutra Lidington is alleging that McLaughlin operated the boat “recklessly” and with “negligence” and without a valid boating licence.  It is also alleged that McLaughlin failed to decelerate the boat after Dutra Lidington fell off, he failed to keep the boat under proper or any control, and he failed to keep a proper or any lookout. 

The lawsuit also contains allegations that the defendant Fatona-Pinet did not keep a proper lookout at the time of the accident.

It is further alleged that both McLaughlin and Fatona-Pinet were impaired by alcohol and/or drugs at the time of the accident.

According to the lawsuit , the impact of the boat’s propeller left Dutra Lidington with “serious, permanent, catastrophic and disfiguring injuries”.  His injuries included a fractured right femur; the loss of three fingers on his right hand; multiple deep lacerations in his leg, knee and thigh; and vascular and nerve damage.

Dutra Lidington is claiming $450,000 from each of the named defendants for general damages and pain and suffering, and unspecified amounts for loss of income and loss of economic opportunities, health care expenses and housing costs. 

He is also claiming $100,000 for loss of guidance, care and companionship on behalf of his mother, sister, father and step-father, as well as $50,000 for his two grandparents. 

The lawsuit also includes a claim for $100,000 in punitive damages against Fournier.  It is alleged that the evidence of alcohol on the boat was removed by or on behalf of Fournier.  Fournier has denied all allegations of the involvement of alcohol in this tragic accident. 

The boating accident was investigated by the Surete du Quebec and no criminal charges were laid as a result.

None of the allegations contained in the lawsuit have been proven in court.

BOATING AND PERSONAL INJURIES

The majority of injuries resulting from boat accidents are preventable when safe boating is practiced.  However, there are occasions when a boat operator’s carelessness is responsible for the boat accident and the subsequent death or injury to innocent individuals. 

Disastrous boating accidents often occur due to poor planning or lack of caution regarding potential rough weather conditions. 

If you or a loved one have experienced a serious injury or loss as the result of a boater’s negligence and you would like information about your legal options, please 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 online or by calling 403-571-0555.  We look forward to helping you obtain the compensation you deserve.


9 Defensive Driving Tips for Winter Weather

The calendar may indicate that it is still fall, but winter is quickly approaching. It’s time to grab your toques, scarves and mittens.  Environment Canada has already issued a number of snow squall warnings in and around Calgary, which can pose a significant threat to drivers. Keeping in mind the dangers that winter weather, such as sudden squalls, black ice and storms in general can pose to drivers, we wanted to provide some tips for keeping safe and avoiding serious motor vehicle accidents.

Winter Weather Threats to Drivers and Pedestrians

Snow Squalls

Snow squalls are quick bursts of heavy snow.  They can travel up to 60 miles per hour and are very brief, lasting less than an hour.  Unlike flurries, snow squalls can accumulate significant amounts of snow and are accompanied by strong winds. A snow squall’s strong winds and snow can create sudden white-outs and the drop in temperature can make them very dangerous, especially to those driving on highways who are not expecting sudden slick roads or reduced visibility. 

Black Ice

Black ice is another danger to drivers, and it particularly problematic because the driver is unlikely to see it until it’s too late. Black ice accumulates when rain falls while the air is below zero degrees celsius. The water freezes on impact with road surfaces, making the road instantly slick and difficult to maneuver. However, since the ice is clear, drivers are generally unaware of its presence until their car is sliding.

Multi-Vehicle Collisions and Pile-Ups

Due to a sudden change in weather conditions, chain-reaction pile-ups may occur, particularly in high-traffic areas where drivers are travelling at high speeds. Drivers can easily lose control of their vehicles, creating new dangers for those behind them who may not be able to see what has happened.

In January 2013, an 80-car pile-up near Oshawa, Ontario shut down one of Canada’s busiest highways due to snow squalls and unfavourable weather.  Five people were taken to hospital, two of which were found to have life-threatening injuries. In December 2019, a snow squall in Pennsylvania caused a 30-vehicle crash that killed two people and injured 44.

Defensive Driving Techniques to Avoid Injury

The lawyers at Cuming & Gillespie Lawyers would like to provide the following tips to assist when your region is expecting potentially dangerous weather conditions.

  1. Check road conditions and forecasts before driving. Preparation is key to avoiding potentially dangerous conditions. It is important, especially during the winter, to check forecasts and road conditions before heading out to be better prepared.
  2. Stay where you are. If you are at home, at work or shopping, do not start driving until the snow squall has passed.  If you are driving, consider pulling over to a safe area before the squall arrives (not the shoulder, but a gas station or rest area). 
  3. Observe your surroundings. If you do not receive a weather warning of an upcoming snow squall, there are times when you can see a snow squall coming.  If you are driving and you see a snow squall advancing toward you, try to pull off the road somewhere safe. Snow squalls often arrive quickly, and they tend to pass just as fast. If you have a thermometer in your car, pay attention when the outside temperature gets close to 0, and exercise extra caution at those times.
  4. Wait it out. If you find yourself facing reduced visibility, it is safest to pull over to a rest stop or gas station or at the very least the side of the road, if possible, to wait until conditions are safer.
  5. Reduce your speed. The best defense in reduced visibility, or in slippery situations, is to reduce your speed. This gives you greater control should you need to react quickly.
  6. Keep a safe distance. If the car in front of you has to slow or stop suddenly, you are much more likely to hit them if you don’t have enough time to react. You can proactively protect yourself by keeping enough space between you and those around you to slow down if necessary.
  7. Never slam on your brakes. Although your instincts might tell you to slam on your brakes when a whiteout hits, this behaviour will increase your chances of getting rear-ended or sliding off an icy roadway.  It is recommended that you slow down and try to keep a distance from the car in front of you.
  8. Keep headlights on. Be sure to have your headlights on during a whiteout, and if you need to, turn on your emergency hazards to alert other drivers to proceed cautiously.  Flashers will also give drivers more of an opportunity to see your vehicle.
  9. Keep an emergency kit in your vehicle. It is always important to keep an emergency kit in your vehicle containing drinking water, food, a blanket, a first-aid kit and a flashlight.  A shovel, sand or kitty litter, ice scraper, safety flares or reflective triangles and jumper cables are also useful items that can help if you are in an emergency while driving, especially during the winter.  Being prepared is always the best defence in safe driving.

If you have been injured in a multi-vehicle accident that was caused by someone else’s negligence during a snow squall or other weather-related event, you have a right to seek compensation.  Claims for personal injuries suffered in accidents involving multiple vehicles can be extremely complex.  It may be difficult to determine which vehicle caused the crash.  The lawyers at Cuming & Gillespie Lawyers have the skill and experience to evaluate your case and help determine the best course of action.

If you or someone you love has suffered a serious personal injury or been involved in a motor vehicle accident resulting in personal injuries this winter, contact the experienced personal injury lawyers at Cuming & Gillespie Lawyers online or at 403-571-0555 for a free consultation.  We look forward to helping you obtain the compensation that you deserve.


Supreme Court of Canada to Hear Case Regarding City Snow Removal

The Supreme Court of Canada will hear a case, likely in 2021, to determine whether a city is responsible for a leg injury sustained by a woman who climbed over a snowbank created by the city’s snowplows.  This is a case involving municipal liability and the operational versus policy distinction that can give rise to immunity from liability.

THE FACTS AND THE TRIAL

On a snowy day in January 2015, Taryn Marchi (“Marchi”) parked her car in the downtown area of Nelson, British Columbia.  As she exited her vehicle, she was blocked by a snowbank left behind by a city snowplow on the adjacent sidewalk.

The City had plowed the main road early in the morning and in doing so created snowbanks along the curb and onto the sidewalk.  According to the City, it is their priority to clear the street for traffic and then, if time permits, to return to remove the snowbanks.

As Marchi attempted to walk over the snowbank in her running shoes her right foot fell through resulting in a severe leg injury.  She was taken to a nearby hospital by ambulance.

Marchi sued the City of Nelson for negligence.  It was her position at trial that the City should have created openings in the snowbanks to allow for safe access from the street onto the sidewalk.  Marchi produced evidence at trial of the practices of neighbouring cities that provided reasonable alternatives to snow clearing streets while also ensuring safe access onto the sidewalks.

Liability was the only issue at trial as the parties had agreed on damages.

Justice Mark McEwan of the B.C. Supreme Court dismissed the case and found that the city had followed their regular snow-clearing operations, which were created out of policy decisions governed by both social and economic factors.  The City cleared their roads and pathways in a specific order based upon the availability of workers and prioritized having roads cleared first.  Given that public authorities cannot be held liable in negligence for policy decisions, except those made in bad faith or by an improper exercise in discretion, Justice McEwan found that the City did not owe Marchi a duty of care in the circumstances.

In the alternative, even if the decision was an operational decision and the City did owe Marchi a duty of care, Justice McEwan ruled there was no negligence on the part of the City as Marchi was “the author of her own misfortune”.

THE APPEAL

Marchi decided to appeal this decision and took her case to the B.C. Court of Appeal.  The appeal court found that the city was responsible for creating pathways for pedestrians and therefore overturned the trial court decision and ordered a new trial.

In a unanimous decision, the judges of the appeal court agreed that the trial judge erred in determining that the snow-clearing decisions by the City were policy decisions and may have instead been operational decisions. 

The appeal court cited the Supreme Court of Canada’s reasoning in the case of Just v. British Columbia:

…complete Crown immunity should not be restored by having every government decision designated as one of “policy”.  Thus the dilemma giving rise to the continuing judicial struggle to differentiate between “policy” and “operation”. …

The dividing line between “policy” and “operation” is difficult to fix, yet it is essential that it be done.

The appeal court also did not agree with the trial judge’s finding that Marchi was an “author of her own misfortune”.  The judges found that the possibility that Marchi should have known about the risk of climbing a snowbank does not necessarily absolve the city of liability. 

The Court of Appeal allowed Marchi’s appeal, set aside the order dismissing her action, and ordered a new trial.

The City of Nelson sought leave to appeal from the Supreme Court of Canada, which was granted in August 2020.  At that time, it is anticipated that the Supreme Court of Canada will clarify the division between policy and operational decisions in negligence claims in Canada.  This may alter liability exposure for public authorities by expanding the duty of care owed by public authorities in negligence claims.

We will continue to follow this appeal and will report on the Supreme Court of Canada’s decision in this blog once it becomes available.

In the meantime, if you or a loved one have suffered a serious personal injury you may be entitled to compensation for the damages you have suffered.  At Cuming & Gillespie Lawyers, we can help you identify the personal injury compensation types you are entitled to under the law.  Please contact the award winning lawyers at Cuming & Gillespie Lawyers either online or at 403-571-0555.  We can get started with a free case evaluation and are dedicated to providing you with the legal help you deserve. 


What To Do Following a Slip and Fall Accident

We are quickly approaching the “most wonderful time of the year” when the temperatures drop and the snow falls.  Given the pandemic, this winter will likely feel a little different.  With walking being one of the few safe and socially acceptable activities, Albertans will be heading out on more winter strolls to both pass the time and get some much needed exercise.  However, it is important to remember that city sidewalks in Alberta can be treacherous during the upcoming long and cold winter months.

Unintentional falls are the leading cause of preventable injury in Canada and can be quite serious, especially for young children and older adults. 

According to the Canadian Institute for Health Information (“CIHI”), nearly 41 Albertans per 100,000 were hospitalized after slips and falls during 2011 to 2016.  Hip fractures were found to be the most common injury sustained as a result of falls.  Lower leg fractures and head injuries were the second and third most common injuries reported to result from falls in Canada.

SLIP AND FALL LAWSUITS

According to CIHI data, almost 8,800 cases of injuries resulting from falls occurred as a result of Canadians slipping on ice.  Slip and fall claims of this nature are a common type of personal injury lawsuit.  You may have a right to compensation if you have suffered injuries as a result of a slip and fall on someone else’s property due icy conditions, inadequate maintenance, poorly designed stairs, or other dangerous conditions.

An injured person can receive compensation for pain and suffering, medical expenses, income loss, future care costs, loss of enjoyment of life, and other out of pocket expenses.  In some cases, the injured person’s spouse can also seek compensation for lost wages as a result of caretaking or companionship.

WHAT TO DO AFTER A SLIP, TRIP OR FALL ACCIDENT

If you or a loved one have been injured in a slip, trip or fall accident the steps that are taken immediately after the unfortunate event can be crucial to building a successful legal case.

The lawyers at Cuming & Gillespie Lawyers recommend the following steps be taken after a slip, trip or fall accident:

  1. Ask for Help and Seek Medical Treatment:  The number one priority following an accident is yours or your loved one’s health.  If you are in a public place, ask for assistance or call 911.  It is important to see a doctor immediately following an accident so that your injuries can be documented properly.  Medical records become an important piece of evidence should you or your loved one decide to seek compensation for injuries sustained. 
  2. Report the Accident:  Whether you have slipped, tripped or fallen in a store, on a sidewalk or at a friend’s house, be sure to report your accident to the manager, owner or landlord of the property.  If you are in a commercial space, it is important to have the details of the accident in writing and ask for a copy of the written incident report before you leave.
  3. Always Document Everything:  Be sure to obtain the names, addresses, phone numbers and email addresses of any potential witnesses to the accident.  Witness statements are helpful to prove your claim if you decide to pursue a litigation.  Take notes of what you were doing before the accident, the way in which you fell and any other details, including the exact time and date.  The shoes and clothes you were wearing at the time of the accident may also be relevant pieces of evidence so be sure to keep those in a safe place.
  4. Take Photographs:  It is important to take pictures of the exact location of where you fell and to photograph any stairs, icy patches or other circumstances that may have contributed to your accident.  It is also helpful to take photographs of any evident injuries, such as bruising or bleeding.
  5. Call a Lawyer:  Contacting an experienced personal injury lawyer, even if you are unsure about whether to proceed with a lawsuit following a slip and fall accident, as soon as possible can help determine the next steps and the best course of action.  Slip and fall accidents may have time limits for filing a notice or a claim.  Speaking to a professional can provide the guidance and legal advice you or your loved one requires to proceed with a legal claim.

The steps that you take after your unfortunate slip, trip or fall accident are very important in helping to recover compensation for your injuries.  Keeping track and preserving evidence such as your shoes, photographs of the accident scene and witness information are essential to help verify your claim.

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


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