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Written on behalf of Cuming & Gillespie

Appeal Court Upholds Ruling that City of Calgary Liable in CTrain Attack

In a recent decision by the Alberta Court of Appeal, the court ruled that the City of Calgary breached its “duty of care” by failing to provide a safe and secure transit environment and is liable for the injuries suffered by Kyle McAllister (“McAllister”).

WHAT HAPPENED?

Last year Cuming & Gillesplie Lawyers blogged about the lower court decision of the Court of Queen’s Bench which found that the City of Calgary is responsible for injuries suffered by McAllister following a brutal attack on a CTrain platform.

On New Year’s Day 2007, McAllister, 18 years old at the time, was attacked on the pedestrian overpass at the Canyon Meadows LRT station.  He was initially attacked by two youths, but others joined in with kicks and punches over a 20-minute period of time.

On the night of the attack on McAllister, two employees were viewing 42 video surveillance monitors.  Canyon Meadows station was being broadcast on 2 monitors from 25 cameras in the station that would cycle every three to four seconds.  The assault would have been on screen approximately five times each minute for three or four seconds.  Part of the attack was captured on camera, however, the images were blurry.

McAllister suffered a severe concussion, broken orbital bones, several facial fractures and damage to his teeth.  He required 40 stitches for these injuries. 

The trial judge found that the lighting, video surveillance and monitoring at the LRT station was deficient and prohibited a timely response to prevent the attack. 

The appeal court agreed that the City owed McAllister a duty of care to have systems in place to detect and respond to assaults and other such events.  The City was not, however, required to have a 24 hour security guard or continuous monitoring of every surveillance camera available.  However, the appeal court did find that the City was in breach of its duty to have a reasonable system in place for detecting and responding to an assault.

Unlike the lower court, the appeal court determined that the City’s breach of duty was in its failure to prevent the continuation of the assault.  The appeal court found the City liable for the “incremental damage caused by delayed detection and response”.  Therefore, the City was found to only be liable as one cause of the incremental damage to McAllister in the final 10 minutes of the 20 minute attack. 

PRIVACY CONCERNS

In response to this appeal decision, the Privacy and Access Council of Canada has declared concerns about the degree of surveillance required by the city.

Sharon Polsky, council president, is of the opinion that this judgment will apply to all city property, which will require installing more video surveillance in areas such as parks and bike paths.  The concern is that every citizen’s privacy will be compromised.  Polsky stated:

In essence, the court said there needs to be surveillance cameras to be able to meet the new duty to detect.  That applies therefore to all municipalities. 

So law abiding citizens, visitors to the city, everybody who just goes for a stroll and is minding their own business, not doing anything illegal, they will now be on surveillance cameras. It [the judgement] basically ordered a surveillance state.

McAllister’s lawyer, Trevor McDonald, on the other hand, does not believe that there should be any concern as a result of this decision. 

WHAT HAPPENS NEXT?

The City of Calgary is currently reviewing the appeal decision and has until the end of August to decide whether it will seek leave to appeal this decision to the Supreme Court of Canada.

In terms of compensation for McAllister’s injuries, another trial will be held, likely next year, to determine how much the city must pay to McAllister for his injuries and the delays to his career and education.  Based upon the appeal court decision, the city is only partly responsible for McAllister’s damages.  According to the ruling:

[o]n a balance of probabilities, the City should only be found liable for being one cause of the incremental damage to the respondent within the final 10 minutes of this 20-minute event.

Cuming & Gillespie Lawyers will continue to monitor this case and report any new developments in this blog when they become 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. 


New Study Shows Brain Injuries in Children Linked to Consumer Products

Statistics show that 452 people in Canada suffer a serious brain injury every day.  This translates to one Canadian suffering a traumatic brain injury every 3 minutes.

Researchers from Pacific Institute for Research and Evaluation in the United States examined specific causes of non-fatal traumatic brain injuries in children to identify areas of prevention and intervention.  They found that 72% of brain injuries that resulted in visits to the emergency department were caused by consumer products that are regulated by the U.S. Consumer Product Safety Commission, a government agency that develops uniform standards and promotes the safety of consumer products.

WHAT IS A TRAUMATIC BRAIN INJURY?

Traumatic brain injuries (“TBI”) refer to a disruption in the normal functioning of the brain due to a bump, blow or jolt to the head or a penetrating head injury. 

Non-fatal TBIs in children are often caused by falls, motor vehicle accidents, being struck by or colliding with a moving or stationary object, and assault.

Children who suffer from TBIs experience adverse outcomes, including but not limited to impairment in neurological development that impacts their educational performance, memory and adaptive skills.  Impairments of this nature can also affect a child’s cognitive, behavioural and emotional welfare, physical well being, interpersonal and social functioning. 

In Canada, 30% of all brain injuries are suffered by children and youth.  Those that survive a brain injury are, unfortunately, three times more likely to experience a second brain injury and are eight times more likely to sustain a subsequent injury as a result of their initial injury. 

CHILD BRAIN INJURY STUDY

A new study published in the journal entitled Brain Injury examined children up to 19 years of age who suffered non-fatal traumatic brain injury related emergency department visits in the United States from 2010 to 2013.  The researchers examined children who suffered mild or moderate TBIs that are often associated with symptoms that include headaches, dizziness, memory difficulties, sleep disruption and changes of mood.

The study found that 72.2% of all TBI-related emergency department visits and hospitalizations amongst children and adolescents up to 19 years of age are attributed to the use of various consumer products.  The types of consumer products associated with children who suffered TBIs depended upon their age group.

Children aged 5 to 19 years often suffered TBIs as a result of sports or recreational products.  Bicycles were the leading product associated with TBIs in children aged 5 to 9 years, and footballs followed by basketballs were the most prevalent consumer products related to TBIs in adolescents aged 10 to 19 years.

Infants and young children up to the age of 4 most often suffered TBIs from home furnishings and fixtures, such as beds.

Beds were found to be one of the leading products that resulted in TBIs amongst children.  Infants were found to have suffered falls when placed on beds or other furniture.  Bunk beds were also found to be dangerous resulting in children falling from top bunks while they slept or played and suffering a TBI.

For infants under the age of 1, car seats were found to contribute substantially to TBIs when used as baby carriers or handled inappropriately.  There is a great deal of risk of injury if a car seat falls off a high surface.

Floors and stairs also accounted for approximately 11% of childhood TBIs.  Uneven flooring and prefabricated stairs were found to contribute to falls and be the leading cause of TBIs in children.  Surfaces that were hard or non-resilient, such as asphalt and concrete, were also associated with skull and upper extremity fractures.

RECOMMENDATIONS ARISING OUT OF THE NEW CHILDHOOD STUDY

Given the important data arising out of the study, the researchers provided a number of recommendations to prevent childhood TBI injuries.  These recommendations include:

  • Removing tripping hazards, such as rugs;
  • Improving lighting;
  • Avoiding hard surface playgrounds;
  • Increasing the use of home safety devices, such as stair gates and guard rails;
  • Installing and using stairway handrails;
  • Avoiding the use of prefabricated stairs that can create a tripping hazard;
  • Caregiver education regarding the prevention of TBIs in younger children;
  • Enforcement of safety rules for games and playgrounds;
  • Proper use of safety gear, especially helmets, during games and sports;
  • Adult supervision; and
  • Education for youth athletes, parents and coaches regarding the risks of TBIs for sports.

CANADIAN STATISTICS REGARDING BRAIN INJURIES

The Canadian Hospitals Injury Reporting and Prevention Program (“CHIRPP”) is a surveillance system that collects and analyzes data from emergency room patients at 11 pediatric hospitals and 8 general hospitals in Canada.

CHIRPP found that ice hockey, physical education classes, sledding and tobogganning were the most common sport and recreational causes for brain injuries for boys aged five to nine years.

Girls aged five to nine years suffered brain injuries most often from ice hockey, sledding and tobogganning, while ringette and horseback riding were the most common recreational causes for brain injuries in girls aged 10 to 19 years.

If you or a loved one have suffered from personal injuries or a head injury as the result of an accident, contact the experienced and award winning lawyers at Cuming & Gillespie Lawyers today.  It is important that you call promptly so we can help you understand your rights and the potential to recover compensation for your injuries.   Contact our office online or at 403-571-0555 for a free initial consultation. 


E-Scooters Lead to Injuries in Calgary


Like other big cities such as Chicago, San Francisco and Washington DC, the city of Calgary has unleashed electric powered scooters, otherwise known as e-scooters, on its city streets.  Lime and Bird Canada are the companies behind the scooters in Calgary.

E-scooters are considered an easy, fun, inexpensive and efficient form of transportation, however, they are being met with a great deal of criticism.  Complaints include abandoned scooters littering sidewalks and being tossed in streams and injuries resulting from the use of e-scooters.

WHAT ARE E-SCOOTERS?

E-scooters are two-wheeled, narrow skateboards with a set of handlebars and a small motor, which are able to travel approximately 20 to 30 kilometres an hour.  Standing with one foot on the deck, you push off with the other foot and use a toggle on the right side of the handlebars to accelerate.  Your left hand operates the brake. 

E-scooters are battery powered and dockless, which means they can be left anywhere when riders are finished using them (including in the middle of a busy sidewalk).    

In the summer of 2018, Calgary passed a resolution authorizing a two-year pilot project for rental bicycles and e-scooters, which runs until October 2020, at which time they will re-evaluate and determine whether the scooters will remain for the long term.

Lime and Bird are the two companies operating these scooters as of July 2019, and a third company called Ugogo will be making its way into the marketplace in the future. 

The cost to rent Lime e-scooters is $1 to start and 30 cents for every minute thereafter.  Bird does not charge to unlock the scooter, but charges 35 cents for each minute of riding.  This price point makes it competitive with the cost of utilizing public transit.

Users of e-scooters can locate the most conveniently located e-scooter by using an app on their smartphone.  Once you find the scooter, you scan the QR code on the handlebars to unlock it.  New users can review a tutorial on how to ride and park the e-scooter on their smartphone.  Both Lime and Bird encourage riders to wear a helmet and they offer free helmets by request (you just have to pay for shipping). When you are finished using the scooter, you simply use the app to re-lock the scooter.

Stewart Lyons, CEO of Bird Canada, states:

We encourage those who are living in Calgary or visiting the city to try the e-scooters at least once.  That way they can not only experience what it’s like to ride Bird One, the best designed e-scooter in the market, but they can also see how easy it is to make communities like Calgary more livable by reducing congestion on the roads.

INJURIES ASSOCIATED WITH E-SCOOTERS

It has been reported that Calgary emergency rooms have examined 60 patients so far with e-scooter related injuries. 

Approximately a third of the injuries were fractures and 10% of the injuries were to the head or face.  Riders have also reported sprains, cuts and scrapes caused by the rear wheel of the scooter catching on the riders’ back ankles.

Researchers at the University of Calgary have begun studying the dangers associated with these e-scooters.  Dr. Eddy Lang is leading the study and is also a doctor in one of the emergency rooms in Calgary.  According to Dr. Lang:

Sixty people coming to the hospital in two weeks who wouldn’t otherwise come to the hospital is a big problem.  What we may find is this is just an early blip and things will settle down in time, but it’s certainly a significant health issue if we think it’s resulted in this many visits so far.

The city of Nashville, Tennessee, now has more than 4,000 rentable scooters.  Nashville quickly responded to the influx of these devices by setting up regulations to govern their use.  They are now struggling with enforcement as their police force isn’t prepared to handle the additional demand.  Safety has also become an important issue after a 26-year-old man was killed recently after being struck by a car while riding an e-scooter while he was under the influence of alcohol. 

SAFETY TIPS ASSOCIATED WITH E-SCOOTERS IN CALGARY

Cuming & Gillespie Lawyers would like to provide some rules and safety tips for those who plan on using e-scooters in Calgary:

  • Users must be 18 years of age. 
  • Only one individual can ride the scooter at a time.
  • It is strongly encouraged to wear a helmet while operating a scooter, although it is not illegal to ride without a helmet.
  • E-scooter users can only ride them on sidewalks, pathways and in bike lanes.  It is encouraged to use bike lanes instead of the sidewalk whenever possible.  It is illegal to use these scooters on city roads.
  • It is very important to watch out for pedestrians while operating the e-scooter. 
  • Proceed slowly through crosswalks.
  • Like all motor vehicles, you may not ride the scooters under the influence of drugs or alcohol. 

As e-scooters are in their infancy phase in Canada, we will have to wait to see how the courts respond should any litigation arise out of injuries that have occurred during the use or operation of this mode of transportation.  We will continue to follow any developments and will report them in this blog.

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


Wrestler Bret Hart Sues Doctor Over Failed Wrist Surgery 

Bret Hart (“Hart”), a legendary wrestler known as The Hitman, filed a lawsuit against Dr. Justin Yeung in November 2017 alleging that he botched his wrist surgery and left him in constant pain.

Calgary plastic surgeon, Dr. Justin Yeung, has recently filed his statement of defence in this legal action and is denying all allegations of negligence arising out of his operation on Hart’s wrist.

WHO IS BRET HART?

Hart is a 62 year old man who was born into a wrestling family led by his father Stu Hart, founder of Calgary’s Stampede Wrestling.

Hart began wrestling professionally in 1978 and participated in nearly 3,000 matches until he retired.  He was very successful throughout the 1980s and 1990s in the WWE as a tag team with his brother-in-law, Jim “The Anvil” Neidhart.  He then wrestled solo and went to win the Intercontinental Championship in August 1991 and became a two-time holder of the title at WrestleMania VIII.  He proceeded to win additional titles throughout the 1990s.

Hart suffered a concussion in 1999 and a significant stroke in 2002, which left him partially paralyzed.  He recovered well.  He also underwent surgery for prostate cancer.  Unbelievably, he returned to WWE in 2010.

HART’S WRIST INJURY

Hart injured his right wrist during a wrestling match in 1981 when he chipped his scaphoid (one of the small bones that constitute the carpal bones of the wrist).  Over time, the injury worsened prompting him to visit Dr. Yeung in September 2015.  Hart underwent surgery in November 2015.

According to Hart’s statement of claim (legal document setting out the issues in dispute and the names of the disagreeing parties):

Dr. Yeung advised Mr. Hart that he could perform surgery to repair his right wrist by a partial fusion of the wrist bones.

Hart’s statement of claim goes on to allege that Dr. Yeung advised Hart that he would have no pain in his wrist and that movement would be restored.

Hart returned to see Dr. Yeung in January 2016 with complaints of severe pain in his wrist and that his right thumb and index finger did not function.  His complaints continued up to his follow-up visit in March 2016 wherein he contends that his “complaints were ignored”.

The lawsuit alleges that Dr. Yeung was negligent (failing to take proper care in doing something) and failed to advise Hart of all of the risks involved in the operation.

Hart alleges that as a result of the unsuccessful operation he is unable to use his right hand to pick up and use objects (i.e. pens, utensils), and is unable to properly dress himself without assistance. 

According to the lawsuit, Hart is seeking general damages of $1 million, plus unspecified amounts for lost income and other losses.

Hart is claiming the following:

  • Dr. Yeung and his team were negligent and breached their duties of care;
  • Dr. Yeung and his team left a tourniquet on Hart’s right arm for too long and cut off circulation to the nerves and tendons of his right index finger and thumb;
  • Hart’s right index finger and thumb were injured, immobilized, by the lack of oxygen they were supplied; and
  • Hart is incapable of participating in recreational and social activities.

DR. YEUNG’S DEFENCE

According to Dr. Yeung’s filed statement of defence (document prepared in response to a statement of claim), he maintains that he provided an acceptable level of care during and following the surgery.

The statement of defence reads:

Dr. Yeung denies any negligence on his part and states that the treatment provided to Hart was skillful, competent and careful and within the accepted standard of practice of plastic surgery in Calgary and elsewhere in Alberta.

Dr. Yeung states, and the fact is, that Hart was at all times made aware of the nature and risks of the procedure performed by Dr. Yeung.

Dr. Yeung claims that the surgery was uneventful and that he addressed all of Hart’s concerns as they became known.  As stated in his statement of defence:

Dr. Yeung ordered all appropriate investigations to address Hart’s post-operative concerns, including diagnostic imaging, urgent electrodiagnostic assessments, electrophysiologic evaluations and nerve conditions studies.

Dr. Yeung maintains that he made all appropriate referrals to address Hart’s complaints, including to physical medicine, rehabilitation specialists, a neurosurgeon and a neurologist.

We will continue to follow the developments in this lawsuit and will provide details of any information or updates in this blog.

This lawsuit is one example of a medical malpractice lawsuit commenced in Canada.  When a medical professional provides sub-standard, reckless or irresponsible care, patients and their families can suffer life-changing consequences.  If you or a loved one have been a victim of medical error or negligence, you need experienced and dependable legal counsel fighting for you.

At Cuming & Gillespie Lawyers we are committed to helping you and your loved ones.  We can assemble a team of legal and medical experts to ensure that you put forth the strongest case and receive the compensation you are entitled to.  With over 20 years of experience, the award winning lawyers at Cuming & Gillespie Lawyers have handled many different types of medical malpractice claims, and have the experience and knowledge to evaluate your case and help you decide whether you should pursue a claim.  Call us at 403-571-0555 or online today to book a free consultation.


Spinal Cord Injuries and the Personal Injury Lawsuit

Motor vehicle accidents (35%) are the leading cause of spinal cord injury in Canada, followed by falls (17%).  In Canada, there are approximately 4,300 new spinal cord injuries each year.  The number of individuals living with spinal cord injuries is expected to increase to 121,000 by 2030 as the Canadian population ages and the causes of these injuries are likely to shift (i.e. older people falling rather than young males involved in motor vehicle accidents).

Spinal cord injuries devastatingly impact the individual, their family, their community and all of society.  The economic burden of new traumatic spinal cord injuries is approximately $2.7 billion per year in Canada.

WHAT IS A SPINAL CORD INJURY (SCI)?

SCI occurs when there is damage to the spinal cord caused by an injury or a disease.  The spinal cord itself is a bundle of nerves that runs from the base of the brain down the back.  The spinal cord is protected by vertebrae (bones that make up the spine) and sends message from the brain to control the body’s movements, provide nerve supply to internal organs and feel sensation in the rest of the body. 

When an individual suffers a complete SCI, messages can no longer transmit, resulting in the loss of feeling and loss of movement below the injured part of the spinal cord.

When an individual suffers an incomplete SCI, the amount of function varies depending on the nerves that have been damaged, and the muscles, organs or the area of sensation that they supply.

SCI can also affect bodily functions such as blood circulation, breathing, bowel and bladder control and sexual functions.

SCIs are characterized as quadriplegic if the injury is in the neck (cervical vertebrae) causing loss or impaired function and/or sensation in the arms, trunk and legs. 

SCIs are characterized as paraplegic as the result of a spinal cord lesion located at the thoracic vertebrae or lower down in the lumbar or sacro-coccygeal regions.  This type of injury causes an impaired function or sensation in the legs and possibly in the lower trunk, depending on the level of the injury.

WHAT CAUSES A SPINAL CORD INJURY?

Spinal cord injuries are either categorized as traumatic or non-traumatic.

A traumatic SCI occurs as a result of external impact or injury that damages the spinal cord.  The most common causes of this type of SCI are motor vehicle accidents, falls, sports injuries (i.e. diving into shallow water) or the result of a violent attack.  It isn’t surprising that car accidents are the leading cause of spinal injuries as they are an almost daily occurrence throughout Alberta.

Falls are also a common source for spinal injuries, which are often the result of carelessness or negligence.  A failure to promptly clean up spills, poor lighting, ice, debris or obstacles on the floor, loose carpeting and damaged flooring are all examples of situations that may cause falls.  Spinal injuries resulting from fall accidents cause trauma to the neck and back after the impact of violently striking a hard surface.

Non-traumatic SCI occur when a disease, infection or tumor damages or presses on the spinal cord causing the loss of function.  Diseases such as multiple sclerosis can also cause lesions on the spinal cord that may result in paralysis.  A congential disorder, such as spina bifida, results in SCI where the spinal cord is malformed or exposed at birth.

IS THERE A CURE FOR SCI?

There is no cure for SCI, however, researchers are currently working toward understanding spinal cord injuries and research has shown the possibility of spinal cord repair and regeneration.  There have also been new advances to help those that suffer from SCI to better manage their quality of life.

HOW CAN SCI BE TREATED?

Those that suffer from SCI following an injury will move onto the rehabilitation stage once the victim has stabilized.  Through rehabilitation, the individual can learn how to live with their injury.  Physiotherapy may help the individual regain function and various therapists (physiatrist, physical therapist, occupational therapist, psychologist, and/or rehabilitation counsellor) can help teach the individual to become self-sufficient.

Treatment can include:

  • Helping to regain or maximize the ability to use affected limbs and to maintain strength in unaffected limbs;
  • Teach new ways to move, transfer and care for oneself;
  • Teach long-term movement skills like walking with mobility aids or using a wheelchair;
  • Providing education and exercises to prevent future mobility problems.

Spinal cord injuries are considered both severe and catastrophic injuries and may result in significant compensation for accident victims arising from civil law suits involving victims who were injured due to the negligence of others.  Although monetary compensation will not resolve the trauma that victims of SCI face, it may help to ease the significant financial burden.

If you or a loved one have been involved in a motor vehicle accident or another serious accident and suffer from spinal cord injuries as a result of someone else’s negligence, the experienced personal injury lawyers at Cuming & Gillespie Lawyers can help evaluate your specific case to determine whether you have a valid claim.  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 case 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.


Canada’s ‘Passenger Bill of Rights’ Began This Week

A portion of the new Air Passenger Protection Regulations went into effect earlier this week.  Although these new regulations were created to help air passengers, they are being met with criticism from both traveller advocacy groups and the airlines themselves.

NEW AIR PASSENGER PROTECTION REGULATIONS

The first phase of the new regulations require airlines to provide compensation up to $2,400 to passengers who are bumped from flights for reasons within the airline’s control.  Those passengers whose luggage is lost or damaged will be eligible for up to $2,100, and a refund for their baggage fees.

According to the regulations, airlines are required to adhere to standards of conduct during tarmac delays and allow passengers to leave the aircraft after a three-hour delay if take-off is not impending.  Airlines must also create clear policies with regards to the handling of musical instruments, and provide passengers with information about their rights and regular updates with respect to any delays and cancellations.

Additional requirements are to come into effect starting on December 15, 2019, including compensation of up to $1,000 for flight delays and cancellations that are within an airline’s control, but not related to safety.  There will also be a requirement that airlines rebook or refund passengers when flights are delayed.  This may include providing a ticket for another airline, providing food, drink and/or accommodations during flight delays, and making sure that children under 14 years of age are able to sit near their parents at no extra charge.

The key phrase included in these regulations is  “within an airline’s control”.  Thus, circumstances such as bad weather, emergency maintenance, airport operational problems or medical emergencies are not considered within an airline’s control and in these circumstances airlines will not be subjected to pay compensation.

CRITICISM OF THE REGULATIONS FROM BOTH SIDES

Gabor Lukacs, a passenger rights advocate, maintains that these new rules are making things worse for Canadians and is challenging the new regulations in court.

He states:

The government is duping the public.  Proving that a flight is overbooked is virtually impossible without access to the airline’s reservation system.

Lukacs is advocating for tarmac delays to be capped at 90 minutes and for refunds to be offered for all delays and cancellations outside of extreme circumstances.

The advocacy group, Air Passenger Rights, have argued that the new rules fall short of European Union passenger rights standards regarding delays caused by maintenance issues.

Both Air Canada and Porter Airlines (and 17 other applicants) filed an application for the new rules to be struck down and argued that the required payments violate international standards and could cause confusion for passengers.

According to the Air Transport Association of Canada, the national trade association for commercial aviation and the flight training industry, the compensation grid is “very high” and the new rules are “outrageous”.  The association maintains that these new regulations will lead to increased fares.

The government has not yet issued a formal response to the airlines’ legal challenge.

INJURIES DUE TO TURBULENCE

A recent Air Canada flight traveling from Vancouver to Australia was forced to make an emergency landing in Hawaii after 37 passengers on board were injured during turbulence.  Upon landing, thirty passengers were rushed to a local hospital, including flight crew, children and the elderly.  Nine of these passengers suffered serious injuries, and 21 suffered only minor injuries.  The remaining passengers opted not to go to hospital.

Michael Bailey, a passenger on board the turbulent flight, described the incident:

A lot of people hit the ceiling… It must have dropped like, 100 feet or something because everyone went up to the ceiling throughout the plane.  It was pretty scary.

Aviation analyst Phyl Durdey explained that injuries can occur when passengers’ seatbelts aren’t securely fastened.  If a plane hits unexpected turbulence, passengers who are not wearing seatbelts may hit the overhead bins resulting in neck and head injuries.  He emphasized the importance of always wearing your seatbelt while in the air throughout the entire flight.

Air Canada has confirmed that all injured passengers have been treated and released from hospital.

Passengers who have been injured during flights may be entitled to compensation for their injuries.

Passengers who are flying domestically may retain a lawyer and commence a claim against the airline in a similar fashion to any other civil claim commenced in Canada.  There is no cap on the compensation a passenger may receive.

Personal injury claims made by passengers who are flying internationally are regulated by a treaty called the Montreal Convention.  In order to file a claim for injuries sustained on an international flight, the passenger must have sustained an actual physical injury (emotional distress or inconvenience can not be the basis for a claim).  Passengers may be able to obtain compensation for the following types of damages:

  • Past and future medical expenses;
  • Lost wages and lost earning capacity;
  • Pain and suffering;
  • Emotional distress;
  • Travel expenses to and from medical appointments;
  • Property damages; and
  • Expenses related to childcare and/or housekeeping expenses.

The onus is on the individual bringing the lawsuit to prove that the aircraft or airline was negligent in the circumstances.

There is also the possibility that the passenger may have done something to contribute to the injuries.  This is called “contributory negligence” and it may result in compensation being reduced.  For example, if a passenger was not wearing his/her seatbelt while the seatbelt light was flashing.

If you or a loved one have suffered serious personal injuries or damages as a result of an airplane-related incident or accident, you deserve to be compensated.  Please contact the experienced personal injury lawyers at Cuming & Gillespie Lawyers for more information about your legal options.  For a free initial consultation with one of Calgary’s award winning personal injury lawyers, please contact our office online or at 403-571-0555 today.


Dangers of Nerf Guns

High velocity projectile toys are very popular in Canada.  Many believe that these toys are safe because the darts that are used are “soft”.  However, these airsoft gun pellets, often found in Nerf brand products, can cause a variety of eye injuries.

Projectile toys have been found to cause serious eye injuries, including eye scrapes or scratches, bleeding, cataracts, increased eye pressure, blurred vision, torn or detached retinas and temporary or permanent vision loss.  Blurry vision may occur as a result of swelling in the retina following a traumatic eye injury.

EYE SPECIALIST WARNS PARENTS OF DANGERS OF NERF GUNS

University of Alberta eye specialist Dr. Matthew Tennant is advocating for safety rules surrounding Nerf guns after treating a woman who was accidentally hit in the eye by a Nerf dart fired from six metres away.  This resulted in the woman suffering a tear to her retina, which can result in permanent vision loss if left untreated.  Fortunately, Dr. Tennant treated the woman and she went on to recover. This case was documented in the Canadian Journal of Ophthalmology.

Dr. Tennant described the injury as follows:

You can think of the eye as a basketball.  When you bounce the ball, it compresses down and widens sideways.  Trauma can cause the same thing to the eye, and the sudden stretching causes a tear to the retina.

Dr. Tennant maintains that projectile weapons are being manufactured with better gun springs and heavier foam bullets than in the past.  Tests have demonstrated these guns can shoot darts and balls at speeds up to 69 km/h. 

Dr. Tennant is advocating for mandatory eye protection when using these types of airsoft projectile toys.  He is working with the Canadian Ophthalmological Society to create a policy statement about these types of toys, and others including paintball guns, in an effort to increase safety awareness among manufacturers and consumers.  Dr. Tennant maintains that this type of recommended eye protection is similar to face cages on helmets, which are required for minor hockey players, and seatbelts for passengers in vehicles.

Dr. Tennant stated:

The policy will likely state something along the lines of, ‘Children should not be using these without adult supervision’ and that anyone using these toys should be wearing eye protection, and preferably a face shield.

Hasbro, the company that makes Nerf guns, maintains that they go to great lengths to ensure that their toys are safe.  The toy company upholds that its products are not inherently dangerous when they are used properly and according to the recommended guidelines.

According to Julie Duffy, the senior vice-president of global communications for Hasbro:

Our products comply with all applicable global safety laws, regulations and standards.  Nerf foam darts and foam rounds are not hazardous when used properly.  Consumers must never aim Nerf blasters at a person’s eyes or face, should only use official Nerf darts, and never modify darts or blasters.

PROJECTILE TOYS TO LOOK OUT FOR

The American Academy of Ophthalmology recommends that customers avoid purchasing all types of projectile-firing toys because of safety concerns. 

These are a few other toys that pose a high risk for eye injuries:

  1. Toy crossbows are able to shoot arrows nearly 150 feet, however their impact at close range can result in serious eye injury.  Arrows made from plastic can cause corneal abrasions (a scratch or scrape on your cornea) that can scar over when healed, and lead to permanent affects to vision.
  2. Darts are another type of toy that can injure the eye, and potentially cause hyphema (when blood collects inside the front of the eye between the cornea and the iris), which raises the risk of developing glaucoma.
  3. Water balloon launchers and water guns can cause trauma to the eye and a stream of water can serious damage to eyes, especially when used at close range.
  4. Toy wands, swords or sabers are also types of toys that can lead to eye trauma, if used carelessly.
  5. Aerosol string (silly string) is another product that can cause eye irritation, and if used at close range it can cause a corneal abrasion, which could lead to serious eye infections.
  6. Laser pointers and bright flashlights can also be dangerous and may lead to temporary blindness. They may also put children at risk of a fall or other accident.

RECOMMENDATIONS

Cuming & Gillespie Lawyers would like to provide a few recommendations to parents to safeguard against injuries to their children when playing with Nerf guns or other toys that fire projectiles:

  • Do your research to ensure that you are selecting the safest model and accessories for your projectile toy and specifically pay attention to the manufacturer’s age recommendations.
  • Do not allow your children to use projectile toys unsupervised.
  • Be aware that although Nerf brand products are manufactured to comply with strict safety regulations, other brands that purport to be Nerf compatible may not.  There are some bullets made by other manufacturers that have a harder end and may pose a greater threat for injury.
  • Do not modify or allow your children to modify the guns, darts or blasters in an effort to shoot further, harder and faster.  Altering the toy in any way can deteriorate the safety measures built into the design of the toy and may result in trauma.
  • Do not allow your children to use projectile toys without eye protection.
  • Educate your children to never aim or shoot at anyone’s eyes or face.
  • Encourage your children to shoot at objects and not people.

If you or your loved one have experienced a serious personal injury or loss and 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 are dedicated to providing you with the legal help you deserve.


Alpine Canada Sexual Abuse Victim Launches Class Action Suit

Allison Forsyth (“Forsyth”), a victim of sexual abuse at the hands of her ski coach, Bertrand Charest (“Charest”), is initiating a class action lawsuit against Charest’s employer, Alpine Canada. 

WHAT HAPPENED?

Forsyth has launched a proposed class action lawsuit in the British Columbia Supreme Court against Alpine Canada, the national governing body for alpine, para-alpine and ski cross racing in Canada, alleging that the organization did not protect its female athletes from sexual abuse by their employee and coach, Charest.

Forsyth began alpine racing for the Canadian National Ski Team at the age of 17 in 1998.  She participated in the Salt Lake City Olympic Games on behalf of Team Canada in 2002 and retired from racing in 2008.

In 2017, former Team Canada coach, Charest, was found guilty of 37 sexual assault, sexual exploitation and sexual assault causing bodily harm charges stemming from complaints made by nine victims ranging in age from 12 to 18 at the time of the offences.

Charest was sentenced to 12 years in prison.  He was released from prison in March 2019 on bail pending a ruling of his appeal, which was recently argued before Quebec’s Court of Appeal.

WHAT IS THE CLASS ACTION LAWSUIT?

The class action lawsuit seeks financial restitution from the defendant, Alpine Canada, for its own wrongdoing and its vicarious liability as the employer of Charest. 

It is alleged that Alpine Canada hired Charest to coach the national ski team from 1996 to 1998 despite his reputation in the ski racing community of engaging in sexualized conduct with female athletes.

It is alleged that Alpine Canada failed to publicly acknowledge and investigate Charest’s sexual abuse and harassment of his athletes.  The lawsuit states that Alpine Canada failed to protect its female athletes by not warning them, not responding immediately to complaints and not addressing the suspicion of sexual conduct.

The class action lawsuit alleges that Charest used his power and authority to manipulate and compel sexual acts with skiers in his care.

According to the claims in the lawsuit, “Charest began favouring [Forsyth], providing her with extra coaching and attention and touching her in an intimate manner.  Charest told [Forsyth] that he could develop her into a great athlete and that she needed him to succeed in ski racing.”

Forsyth alleges that she felt trapped and pressured into a sexual relationship with Charest.

According to the lawsuit, there were a number of sexual encounters between Charest and Forsyth, including an incident whereby it is alleged that Charest sexually assaulted her in the stall of a women’s washroom in Austria.

Forsyth alleges that as a result of her relationship with Charest she has suffered severe anxiety, leading to anorexia and psychological devastation.  The lawsuit seeks damages for emotional, physical and psychological harm.  The lawsuit is also seeking punitive (damages awarded to punish the defendant and deter others from future breaches) and aggravated damages (damages awarded to compensate for intangible injury) for “the selfish, high-handed and callous conduct of Alpine Canada”.

Forsyth has stated:

What I really learned is the ramifications and the depth to which this man victimized athletes – before he worked for Alpine Canada and during his time for Alpine Canada.  …  I also learned about his coaching license never being taken away.  And it really showed me that things need to change so this won’t happen to young athletes again.

The allegations against Alpine Canada have not been proven in court.  Alpine Canada has issued a statement advising that it is reviewing the details of the lawsuit and that it applauds the courage of Forsyth and other women in speaking out about the abuse.  The statement reads:

For the past 20 years, Alpine Canada has been working to ensure a safe environment for all athletes, and we are continually reviewing best practices with regards to athlete safety and security.

In order to proceed, the class action lawsuit must first be approved by the B.C. Supreme Court.  Forsyth will act as the representative plaintiff in the lawsuit, but it is unclear at their time how many other victims will take part in the lawsuit.

Cuming & Gillespie Lawyers will continue to monitor this case and report in this blog any new developments and whether the class action will be approved by the Court.

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


The Dangers of Keyless Cars

Push button ignition cars are becoming more and more common in Canada.  However, this new modern convenience of pushing a button to power your vehicle rather than turning a key can lead to lethal consequences.

WHAT ARE KEYLESS IGNITION SYSTEMS?

Keyless ignition systems began appearing on cars in the late 1990s and early 2000s, but were initially only available on luxury or high-end vehicles.  However, push button ignition is becoming more commonplace and 62% of all vehicles sold in the United States came equipped with these standard systems in 2018.

Vehicles that have keyless ignition systems come with a key fob.  The fob can be kept in your pocket, purse, briefcase or somewhere in close proximity to the receiver inside of the vehicle.  The fob transmits a low-frequency signal to the vehicle’s computer system, which allows you to push a button on the dashboard or console of the vehicle to start the engine. 

These vehicles equipped with push button ignition come equipped with pre-start safety checks to ensure that the vehicle is in park and that your foot is on the brake before allowing the engine to start.  Some vehicles may even require that you flick or rotate a switch before pressing start and in most cases the fob key must be inside the vehicle before the engine will start running.

WHAT PROBLEMS ARISE FROM KEYLESS CARS?

Although a keyless ignition system is extremely convenient, it does come with a few drawbacks.  Dangers may arise if one forgets to turn off their engine, since you do not have to remove a key and the engines these days are exceptionally quiet.

According to a New York Times investigation, 28 people in the United States have died and 45 others have been injured from carbon monoxide poisoning since 2006 as a result of keyless ignition cars.  If a car is left running in an enclosed garage, carbon monoxide (which is odorless and colourless) can fill the garage and seep into the attached home. There is no information available regarding incidents of this nature in Canada.

Another safety problem associated with keyless ignition systems and those individuals that forget to turn off their vehicle before exiting is the risk of the car rolling away.  If a driver forgets to turn the car off before shifting into park, the vehicle is likely to roll away or lurch forward and drag the driver along.  This can result in very severe injuries or property damage. 

WHAT IS BEING DONE TO PREVENT INJURIES FROM KEYLESS IGNITIONS?

In the United States, safety groups have appealed for regulations to prevent keyless cars from running unattended.

A proposed law called the “PARK IT Act” (“Protecting Americans from the Risks of Keyless Ignition Technology Act”) was introduced in the United States Congress in February, 2019 in an effort to protect against the risk of keyless technology.  The proposed law includes the following:

  • That automakers be required to provide an automatic shutoff for keyless internal combustion engines when the car has been idling for a designated period of time;
  • That automakers add an anti-rollaway feature to immobilize a car if a driver exits the vehicle, but leaves the vehicle in gear;
  • That the National Highway Traffic Safety Administration issue rules within two years of the law’s passage.

Toyota Canada Inc. recently announced that it will be adding automatic engine shutoff and automatic park technology to its 2020 model year vehicle lineup.  They will also be adding more noticeable warning sounds and visual alerts to its new models and drivers will have the option of being alerted through their smartphone that their car is still running.

In Canada, there are no keyless ignition standards in the automobile industry to protect users of push button cars from carbon monoxide poisoning.  We will report in this blog if any legislative or industry standard information becomes available in this regard.

Cuming & Gillespie Lawyers would like to provide a few recommendations to safeguard against the risks of keyless ignition systems:

  • Always read your owner’s manual to educate yourself on how to operate your vehicle’s keyless ignition system properly;
  • Develop good driver habits and routines and make sure that your car is in park and that the engine is shut off before departing from your vehicle;
  • Before purchasing a new vehicle, research the keyless ignition systems and other safety devices available to safeguard against the risk of leaving a vehicle running or in gear; and
  • Be sure to install working CO detectors in your home and consider installing them inside your garage as well.

If you or a loved one have suffered a serious personal injury as a result of a motor vehicle accident you may be entitled to compensation for the damages you have suffered.  Please contact the award winning lawyers at Cuming & Gillespie Lawyers either online or by calling 403-571-0555.  We can get started with a free case evaluation and are dedicated to providing you with the legal help you deserve.


Family Suing RCMP for $900K in Son’s Death

Family members of Tracy Janvier (“Janvier”) are suing the RCMP, the federal government, the driver of the vehicle that initially struck Janvier and Constable Michelle Phillips (“Phillips”) for $909,000 for Janvier’s death that occurred on August 21, 2016.

WHAT HAPPENED?

Janvier was walking along Highway 881, approximately 80 kilometres south of Fort McMurray, when he was struck by a car and injured.  An RCMP vehicle driven by Constable Philips, responding to the emergency call, proceeded to run over and allegedly kill Janvier.

According to the Alberta Serious Incident Response Team (“ASIRT”) (the department responsible for investigating incidents involving police that result in death or serious injury), which completed its investigation in June 2017, Janvier was walking along an unlit section of Highway 881 when he was hit by a vehicle and seriously injured.

ASIRT reported that the exact location of the injured pedestrian was not clear at the time that Constable Philips was dispatched to the scene.  ASIRT further reported in a news release:

While responding [to the scene] at an extremely high rate of speed, the officer came upon a number of vehicles stopped on one side of the highway with their lights on and proceeded to drive past these vehicles without slowing. Unfortunately, this location was where the pedestrian had been originally struck, and the officer ran over the injured pedestrian prone on the roadway with the police vehicle, killing him.

Philips also struck the hand of a 71-year-old man, James Cardinal, that had been helping Janvier, causing him non-life threatening injuries.  Cardinal was the passenger of the truck that initially struck Janvier.  At the time of the initial accident, Cardinal exited his vehicle and proceeded to place the 911 call. 

It has been reported that Constable Philips had approximately one year of experience with the RCMP at the time of the accident.  Following the laying of criminal charges against her, Philips was suspended with pay and has remained off-duty until the resolution of the criminal charges against her.

THE CIVIL LAWSUIT

Janvier’s parents and three children commenced a civil lawsuit last summer seeking damages for emotional and nervous shock, grief and loss of love, guidance, support, assistance and companionship.  The lawsuit alleges that Philips was negligent and was speeding, driving recklessly and carelessly when she struck and killed Janvier.

The lawsuit has also named Lucy Deltess, the driver of the first vehicle that ran over Janvier.

None of the allegations by Janvier’s family have been proven in court.  We are not aware at this time whether any of the defendants have filed their statements of defence.

THE CRIMINAL TRIAL

RCMP Constable Michelle Philips plead not guilty to charges of dangerous driving causing death and dangerous driving causing bodily harm. 

Last week, in the Court of Queen’s Bench in Fort McMurray, Justice John McCarthy found Constable Philips not guilty of all charges as there was not enough evidence to prove that the Constable had caused Janvier’s death. 

Chief Medical Examiner, Dr. Elizabeth Brooks-Lim, testified that she could not determine which collision caused Janvier’s internal injuries.

Cpl. Mark Podesky, an RCMP collision reconstruction expert, stated that the initial collision was unavoidable as Janvier was walking in the middle of the highway in the dark.  He also testified that Philips’ impact with Janvier was unavoidable.

Justice McCarthy stated:

I find that the Crown has failed to establish that the accused caused Mr. Janvier’s death, either in fact or in law.  Rather, this is one of the rarest cases where the court is unable to determine on the evidence before it, whether the deceased was in fact alive at the time of the alleged prohibited act.  … I cannot conclude that the second collision significantly contributed to his death.

Justice McCarthy said that Phillips had been driving reasonably, but a “reasonable driver would have observed [the pedestrians] earlier than Constable Phillips did”.  Justice McCarthy went on to state:

While in my view she erred, it was not to the degree required to attract penal consequences.

According to the agreed statement of facts, Constable Philips drove up to the scene where multiple vehicles were pulled over to the side of the road.  This was approximately 20 kilometres away from the location where the dispatcher had told her the injured pedestrian was located.  Constable Philips testified that she believed the vehicles were pulled over because of the police sirens.  She testified that she did not realize the two men were in the middle of the road until milliseconds before she hit them. 

We will continue to follow any developments that become available regarding the civil lawsuit and will provide details in this blog.

At Cuming & Gillespie Lawyers we are committed to helping you and your loved ones.  If you or a loved one have suffered serious injuries as a result of a motor vehicle accident or 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 to learn what options are available.


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