Written on behalf of Cuming & Gillespie
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.
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.
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.
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.
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.
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.
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 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 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.
- 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.
- 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).
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
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”.
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.
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:
- 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.
- 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.
- 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.
- 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.
- 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.
Stroke is the third leading cause of death in Canada, following heart disease and cancer. Canadians suffer more than 50,000 strokes a year. Strokes are also the primary cause of physical disabilities amongst Canadians.
Physicians routinely fail to timely diagnose strokes. According to a 2017 study of American patients presenting with stroke symptoms at emergency departments, approximately 9% of patients who presented with stroke suffered initial misdiagnosis. Those that were misdiagnosed primarily presented with mild or non-specific neurological complaints.
One of the challenges doctors face is that strokes affect the brain causing patients to lose the ability to clearly and accurately communicate their symptoms. Doctors must rely on their knowledge, skills of observation and experience to recognize when a patient is having a stroke.
WHAT IS A STROKE?
A stroke occurs when blood flow to the brain is interrupted or severely reduced. Within minutes of being deprived of oxygen brain cells begin to die and brain tissue can die within a few hours when not receiving a proper supply of oxygenated blood. As brain tissue dies, the brain begins to lose its function and may not recover.
Common symptoms of stroke include numbness or tingling on only one side of the body, trouble speaking, vision and balance problems, confusion and severe headaches. Although the symptoms occur suddenly, the subsequent complications can persist and permanently impact one’s quality of life.
Typically, a doctor treats a stroke patient by ordering a CT scan or MRI to deduce whether or not a stroke occurred and determine what type of stroke it is.
There are three main types of strokes: ischemic strokes, hemorrhagic strokes and transient ischemic attacks.
Ischemic strokes (also known as clot strokes) are the most common and occur when blood flow through the artery to the brain becomes blocked. The first three to four hours are critical when the patient first experiences signs and symptoms until the results become severe and irreversible.
Hemorrhagic strokes (also known as bleeding strokes) occur when an artery in the brain leaks blood or ruptures and puts pressure on brain cells. This type of stroke can cause severe headaches and may be treated surgically if diagnosed immediately.
Transient ischemic attacks (also known as min-strokes) occur when blood flow to the brain is blocked for no more than 5 minutes. These types of attacks are warning signs of a future stroke. Treating transient ischemic attacks can lower the risk of a major stroke.
MISDIAGNOSING STROKES CAN HAVE DIRE CONSEQUENCES
Research shows that earlier diagnosis and treatment of a stroke can lead to better outcomes. If a patient is experiencing numbness or other stroke symptoms and his/her doctor fails to implement a proper stroke protocol, resulting in death or serious injury, this negligence may be the basis to file a lawsuit for medical malpractice.
There are a number of conditions that may present as a stroke, which include brain tumors, seizures and hypoglycemia. As these conditions have symptoms that may resemble stroke symptoms, it is imperative that health professionals are able to discern a stroke from another illness. Failing to properly diagnose a stroke patient may lead to permanent brain damage or even death.
An accurate diagnosis and prompt treatment are essential to reducing the long-term effects of a stroke. However, this does not always occur and medical malpractice can occur if errors are committed by medical providers, such as:
- Laboratory errors;
- Improper reading of tests;
- Failure to consult neurological specialists in a timely manner;
- Delays in performing testing for stroke and treatment of stroke;
- Delayed diagnosis, misdiagnosis or failure to diagnose stroke;
- Failure to perform a thorough physical examination;
- Failure to order vital tests in a timely manner to identify a blockage; and
- Failure to consider stroke in younger or seemingly healthy patients.
Not all cases of misdiagnosis are medical malpractice. Medical professionals are not to be held to a standard of perfection. The question is whether another reasonable doctor presented with the same information and circumstances would have made the correct diagnosis. If this is the case, then the physician who failed to make the stroke diagnosis may be liable for medical malpractice.
WHAT ARE THE WARNING SIGNS OF A STROKE?
The symptoms of a stroke are unique because they occur suddenly and without warning. The following are some of the warning signs of a stroke:
- Arm weakness;
- Sudden trouble seeing in one or both eyes;
- Sudden confusion, trouble speaking or understanding speech;
- Sudden numbness or weakness of face, arm or leg, especially on one side of the body;
- Sudden trouble walking, dizziness, loss of balance or co-ordination;
- Sudden severe headache and neck pain with no known cause; and/or
- Slurred speech.
If you notice any of these symptoms in yourself or a loved one, seek medical attention immediately. Early treatment can help improve the chances of full recovery. You should also specifically request that the doctor evaluate the possibility of a stroke.
If you or a loved one have experienced serious injury or death which may have been due to the failure to prevent stroke or failure to timely diagnose or treat stroke, you may be entitled to compensation.
It is in your best interest to promptly hire a skilled and experienced law firm to guide you through the litigation process and answer any questions that you may have. Cuming & Gillespie Lawyers can help evaluate your specific case to determine whether you have a valid medical malpractice claim. Contact our office online or at 403-571-0555 for a free consultation today. We look forward to helping you obtain the compensation that you deserve.
Pedestrians are one of the most vulnerable road users as they are unprotected and have more exposure than drivers of other types of vehicles. If a pedestrian survives being hit by a motor vehicle, the injuries can be severe, including skull or limb fractures, cuts and road burns, spinal cord or brain damage. In fact, pedestrian injuries are the leading cause of death for children 14 years of age or younger in Canada.
WHO IS AT FAULT WHEN A PEDESTRIAN IS HIT BY A VEHICLE?
In Alberta, the Traffic Safety Act sets out the law regarding who is responsible in pedestrian vs. automobile accidents. According to this Act, it is the responsibility of the driver to prove that he/she was not at fault for the accident.
Thus, the Act places what is known as a “reverse onus” on the driver to prove that a reasonable driver in the same situation could not have prevented the accident from occurring.
If the driver can prove that the actions of the pedestrian caused or contributed to the accident, it is up to the Court to decide whether a pedestrian was partially or completely at fault for a collision. A Court will review all of the circumstances of an accident to determine liability including whether the pedestrian was acting reasonably, where the pedestrian crossed the street, and whether the pedestrian was taking reasonable care for his/her own safety.
HOW PEDESTRIANS CAN ENSURE THEIR OWN SAFETY
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 distracted while crossing the road.
Pedestrians should employ the following tips to ensure their safety:
- 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;
- 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; and
- Make sure all vehicles have seen you and will stop for you before proceeding across the road.
WHAT SHOULD YOU DO IF YOU HAVE BEEN STRUCK BY A VEHICLE AS A PEDESTRIAN?
1. Remain Calm and Move Out of Harm’s Way (if possible)
If you have been struck by a motor vehicle, the first thing to do is to move out of the way of danger, if you can. If you are unable to move due to injuries, you should stay in place while awaiting medical assistance. If you are unable to move, try to have someone direct traffic to protect you. It is also important to stay calm.
2. Call 911 and Keep Everyone at the Scene
It is important to call 911 immediately and do not downplay any injuries you are suffering. While waiting for the police and paramedics to arrive, try to keep the driver of the motor vehicle and any witnesses at the scene. It is best to have all information provided to the police while memories are fresh.
3. Document Everything
An injured pedestrian, similar to any injured car accident victim, should keep a record of everything including:
- Record the driver’s name, registration, driver’s license number, insurance information and license plate number;
- Record contact information from witnesses and request whether any dash cam footage is available;
- Take photographs of the scene, the injuries, the vehicle involved in the collision and any other pertinent information;
- Record the exact time of the accident and the direction that you were travelling in at the time of the accident; and
- Take note of any damage to personal belongs and keep receipts if you need to replace or repair any items.
4. Seek Immediate Medical Attention
Seek medical attention even if you do not believe you are seriously injured. Any injury can be more serious or develop into something more serious. Seeking immediate medical attention will lower the chance of aggravating injuries that are left untreated or identify any internal injuries.
5. Seek the Advice of a Personal Injury Lawyer
If you or a loved one have suffered serious injuries as a result of a pedestrian accident, it is imperative that you have an experienced personal injury lawyer to help you determine fault for the accident.
Consulting with a personal injury lawyer can help you understand your rights, consider your options, and potentially mitigate any problems that may be a barrier to filing a claim.
At Cuming & Gillespie Lawyers we have been representing accident victims for more than 20 years. We understand the physical, emotional, and financial challenges that arise in the aftermath of a pedestrian accident involving a motor vehicle and can empathize with what victims of such incidents are going through.
If you are considering filing a personal injury claim following an accident with a motor vehicle, do not hesitate to contact the experienced and knowledgeable personal injury lawyers at Cuming & Gillespie Lawyers online or at 403-571-0555. We look forward to helping you obtain the compensation that you deserve.
Epilepsy affects approximately 260,000 people in Canada and approximately 65 million people worldwide. Epilepsy is a condition characterized by sudden changes in how the brain works and reveals itself in the form of seizures. Seizures, which are caused by bursts of electrical activity in the brain, often affect muscle control, movement, speech, vision or awareness.
The majority of individuals who live with epilepsy live completely normal lives. This includes driving. In Alberta, drivers are required by law to report any health condition that may affect their ability to drive, including epilepsy or a seizure disorder. Although driving privileges may be suspended for a period of time, in most cases once an individual has been seizure free for six months and has received a positive recommendation from their doctor their driver’s license will be reinstated.
The question is what happens if a motorist fails to follow his/her doctor’s medical advice and take prescribed medication. In these circumstances, can a motorist be held liable for a seizure-related car accident.
This question was recently answered by the British Columbia Supreme Court in the case of Goronzy v. McDonald. The Court ruled that a driver was solely liable and negligent for a multi-vehicle accident due to a seizure as a result of failing to take his prescribed medication.
GORONZY v. MCDONALD
On March 29, 2014, Daryl James McDonald (“McDonald”) was driving northbound across the Patullo Bridge in New Westminster, B.C. McDonald, who suffers from epilepsy, suffered a grand mal seizure and crossed through the yellow plastic pylons that separated the north and southbound lanes and struck a taxi. The taxi spun counter-clockwise and was struck in the rear by a Chevrolet pick-up truck.
The driver of the taxi, Rashpal Singh Rai (“Rai”), suffered a head injury. The passenger in the taxi, Christopher Tesar (“Tesar”), is now a paraplegic. Both Rai and Tesar were not wearing their seat belts at the time of the accident. The passenger in the McDonald vehicle, Stephen Alexander Goronzy, suffered a number of significant injuries. The driver of the pick-up truck, Sandra Mary McComb, and her passenger, Alia Lecoin, suffered relatively minor injuries.
All injured parties sued McDonald alleging that he failed to take his medication contrary to medical advice and should not have been driving and he should have foreseen the possibility of a grand mal seizure.
In finding McDonald liable for the crash, Madam Justice Humphries stated in her decision:
There is no question that Mr. McDonald was negligent and is at fault for the collisions. He knew he should be taking his medication. He was warned that he should not be driving if he was not fully compliant with his medication. Yet he drove, particularly on a day when he had already had a focal seizure. It seemed during his testimony that Mr. McDonald was not overly concerned with the accident; it was the effect of the accident on his appreciation of the seriousness of his condition that pre-occupied him. …
Had he been compliant with his medication, it is unlikely that he would have had the grand mal seizure. In fact, Dr. Woolfenden was prepared to go further and say he would have had such a seizure, had he been properly medicated. The accident would not have occurred.
DANGERS OF DRIVING WITH EPILEPSY OR SEIZURE DISORDERS
An epileptic incident may occur at any time. Some of the symptoms that may impair one’s ability to drive safely in the moments leading up to and during a seizure include:
- Seizure-induced confusion;
- Loss of consciousness;
- Uncontrollable body jerking;
- Cognitive impairment;
- Feeling “spaced out” or staring spells;
- Headaches; temporary paralysis after a seizure;
- Memory lapses; and/or
- Temporary loss of bowel control.
WHEN INDIVIDUALS WHO SUFFER FROM SEIZURES MAY BE LIABLE FOR A CRASH
Although an individual who has a seizure may lose control of his/her vehicle and cause an accident, this does not necessarily mean that he/she will be held legally responsible for the accident. There are a number of factors that may affect how liability is determined.
- Did the individual have a history of epileptic events or other seizures?
- Was the individual under the care of a doctor for epilepsy or seizure activity?
- Had the individual been seizure-free for six months or more?
- Was the individual prescribed anti-seizure medication and was the individual taking the prescribed medication as directed by a health profession?
In general, if the seizure was a determining factor involved in the collision, the individual with the medical condition may be found to have some amount of fault for the accident. However, if the individual had never been diagnosed with epilepsy or suffered a seizure in the past, he/she would have no reason to believe this would be a risk factor. All of these factors must be considered in determining who is liable for the injuries and damages resulting from the accident and each situation will be determined on a case by case basis depending on the individual circumstances.
CONTACT A MOTOR VEHICLE ACCIDENT LAWYER FROM CUMING & GILLESPIE LAWYERS TODAY
The dedicated personal injury lawyers at Cuming & Gillespie Lawyers are experienced at handling complex car accident cases. If you were involved in an accident with someone who was having a seizure, our knowledgeable lawyers can explain your rights. If you have suffered injuries and damages, you may be owed compensation. Please contact our experienced and award-winning personal injury lawyers for your free case evaluation online or at 403-571-0555 to determine how we can help you recover compensation for your injuries.
Everyone who is involved in a car accident has a unique experience. Some suffer injuries immediately, while others do not feel the full effect of their injuries for several weeks or even months. Those that do experience mild injuries may find that they gradually worsen over time.
Some accident victims walk away from a crash feeling lucky to not have suffered any injuries, only to experience pain later that day or even a few days following the accident. This is primarily due to our body’s reaction to trauma. Following a car accident, our body starts producing adrenaline to help cope with any injuries we might have sustained.
It is important to monitor your pain or discomfort after a car accident no matter how insignificant it may seem at first.
It is extremely important to take yourself to your family doctor or even the hospital after any kind of motor vehicle accident, even if you do not feel injured. It is especially important to be evaluated by a physician immediately following a severe collision to confirm that you did not suffer an injury with delayed symptoms.
COMMON SYMPTOMS OF DELAYED ONSET INJURIES
Delayed symptoms should not be ignored, such as abdominal pain, neck pain, back pain, tingling and numbness, memory loss or lack of concentration, constant headaches and nausea, and excessive sleeping and feeling tired.
Abdominal Pain: Following a car accident, stomach pain may be a sign of damage from the impact, such as injuries to internal organs or internal bleeding. It is important to seek medical attention immediately if you experience stomach pain, feel dizzy or develop large deep purple bruises. This could indicate a life-threatening condition and requires an immediate diagnosis and treatment.
Neck Pain: Neck pain is a classic symptom of whiplash, which frequently occurs following a rear-end collision. The force of the accident whips the head forward and back and my lead to sprains and strains, herniated disks and other spinal cord injuries. This symptom may not present itself for several hours or even days after the accident, but the pain may last for days, months or even be permanent.
Back Pain: Back pain following a car accident may be the result of soft-tissue damage, slipped or herniated disks, whiplash or spinal injuries. This type of pain often limits mobility, everyday activities and one’s ability to work. Back pain often lasts for months or even years and should be treated as soon as possible.
Tingling and Numbness: If you experience tingling and numbness symptoms following a car accident, it is important to seek immediate medical attention. These symptoms may indicate a possible brain injury, problem with the nervous system, pinched nerve or a herniated disk.
Memory Loss/Lack of Concentration: Symptoms of memory loss or the inability to concentrate can be caused by a traumatic brain injury sustained during the car accident. These symptoms must be reported to a medical professional as soon as possible for investigation and possible treatment options.
Headache and Nausea: Headaches are very common following a motor vehicle accident. Generally they are completely harmless and will dissipate over time, however, headaches sometimes signal more severe problems. Headaches may be an indication of blood clots on the brain, neck or head injuries or a serious concussion. The combination of headaches and nausea is very concerning and may indicate a concussion or a traumatic brain injury.
Excessive Sleeping/Feeling Tired: Individuals often feel exhausted after the initial adrenaline wears off following a car accident. They may also experience low energy as their body is healing from injuries. However, exhaustion may indicate a larger problem, such as depression or a traumatic brain injury. If this is occurring, it is important to seek medical attention as soon as possible.
EMOTIONAL IMPACT OF CAR ACCIDENTS
Although there are physical symptoms following a car crash that may be delayed or subtle, the emotional impact of an accident can be even harder to detect. Post-traumatic stress disorder and other emotional ailments may not present themselves until days or even weeks after the collision.
An accident victim may feel tired or upset and view these problems as normal given his/her busy life. However, you should seek medical advice if you notice the following symptoms of emotional distress:
- Difficulty sleeping;
- Fatigue and listlessness;
- Memory loss;
- Concentration and focus problems;
- Mood swings;
- Changes in appetite;
- Personality changes;
- Difficulty controlling emotions;
- Loss of interest in activities you normally enjoyed;
- Relationship problems;
- Lack of motivation;
- Nightmares or sleep disturbances;
- Panic attacks; and
- Intense feelings of sadness, anger or distress.
Car accident victims may experience sleep disorders, PTSD, anxiety and/or depression. These emotional challenges should not be ignored and should be taken as seriously as physical ailments for they can lead to the loss of quality of life, difficulties in returning to work and returning to the life you had before the accident.
Symptoms of emotional distress should be discussed with your healthcare professionals as soon as possible and appropriate therapy and medications can be prescribed to begin the road to recovery.
If or a loved one have suffered injuries in a car accident, please contact the experienced and award winning personal injury lawyers at Cuming & Gillespie Lawyers.
As a firm of lawyers who specializes in personal injury law and medical malpractice, the lawyers at Cuming & Gillespie Lawyers have a strong reputation in the community and in the legal profession. Our lawyers also have a proven track record of successfully handling serious personal injury and medical malpractice claims.
At Cuming & Gillespie Lawyers we strive to provide our clients with excellent legal services and offer a free consultation. We are happy to answer any questions you may have regarding hiring a lawyer for your personal injury or medical malpractice case. Please contact our office at 403-571-0555 or online.
Alberta’s Superintendent of Insurance has distributed substantial fines against 16 auto insurance companies for overcharging their customers during the time period between 2016 and 2019.
It is the Superintendent of Insurance’s responsibility to monitor, investigate and take appropriate action if there is any non-compliance by insurance companies with the Insurance Act and Regulations.
Those insurers recently subjected to fines in Alberta are blaming programming errors for charging their clients higher rates than those approved by the Automobile Insurance Rate Board.
PENALTIES FOR OVERCHARGING PREMIUMS
According to the Superintendent of Insurance, since 2016 there have been 30 penalties delivered to insurers for overcharging premiums, which have totalled $1.547 million. An additional 11 penalties have been issued in the amount of $1.16 million for other infractions since 2016.
The TD Bank Group, which includes Primmum Insurance, Security National Insurance Company and TD Home & Auto Insurance, received the largest penalty of $885,000 in fines.
According to the TD Bank Group, the overcharges to their customers was a result of a system error that affected their customers’ policies. TD Bank Group maintains that all customers impacted have been reimbursed with interest.
The second largest fine was directed at Intact Insurance for $165,000. Intact Insurance reported that the overcharges have been refunded and typically if erroneous charges are made they report them to regulators and work to fix the errors.
Economical Insurance and its affiliate, Sonnet Insurance, were also fined $165,000. Economical Insurance has responded the financial reprimand by stating that the overcharges were the result of a technical error that caused a small number of customers being overcharged, and that some customers were even undercharged. Economical maintains that its customers have been refunded for the overcharges and the company has improved testing in an effort to avoid the error in the future.
Alberta’s Ministry of Treasury Board and Finance issued the following statement:
Alberta’s government is serious about protecting Albertans and continues to maintain a regulatory environment that supports the fair treatment of consumers and integrity of the industry.
Keith McLaughlin, a spokesperson for FAIR Alberta, responded to the latest penalties against auto insurance companies in Alberta and stated:
It tells us that there’s a concerning pattern of behaviour happening in the insurance market, primarily in auto. … Are they functioning as a deterrent? Or are these fines just a slap on the wrist?
ALBERTA AUTO INSURANCE REFORM REVIEW RESULTS PENDING
Motorists in Alberta are amongst those experiencing the highest average premium rates for auto insurance in Canada, with an average premium of $1,316.00. Alberta is third highest on the list of auto insurance premiums across Canada behind B.C. and Ontario.
In February, the Alberta Superintendent of Insurance began its review of the auto insurance in Alberta in an effort to make it more affordable. One of the options being considered is the possibility of a no-fault insurance regime.
A three person committee made up of insurance, legal and medical experts sought feedback from other experts, consumers and industry stakeholders to consider reform options. A final report was to be delivered to the president of the Canadian Treasury Board and the Minister of Finance in June. The results of this report have not yet been made public.
The Automobile Insurance Rate Board recently published its annual survey. The results are in and according to the survey respondents only 23% agree with the statement that ‘automobile insurance premiums are fair and reasonable’. This is a significant decline compared to the 60% of respondents in 2017 who agreed with the same statement.
In an unrelated poll of Albertans by the provincial coalition Fair Alberta Injury Regulations (“FAIR”) in June, it was revealed that Albertans are three times more likely to prefer an at-fault insurance system (61% support) in comparison to a no-fault insurance system (20% support).
The legal team at Cuming & Gillespie Lawyers strongly support the efforts of FAIR and are dedicated to holding auto insurance companies accountable and demand that their clients and all Albertans injured in an auto accident receive the compensation that they deserve and appropriate treatment options.
For more information regarding FAIR and its efforts, please visit their website at fairalbertainjuryregulations.ca.
FAIR is eager to hear your opinion regarding the potential introduction of no-fault auto insurance in Alberta and is in the process of collecting personal stories. To read personal stories from fellow injured Albertans, please visit FAIR’s website.
Choosing a personal injury lawyer to represent you or a loved one in your time of need is not a decision to be taken lightly. As a law firm of lawyers who specialize in personal injury law and medical malpractice, the experienced lawyers at Cuming & Gillespie Lawyers have a strong reputation in the community and the legal profession.
At Cuming & Gillespie Lawyers, we strive to provide our clients with excellent legal services and we offer a free consultation. Our personal injury lawyers are happy to answer any questions you may have regarding your personal injury or medical malpractice case. Please contact our office today at 403-571-0555 or online.