Wagners Serious Injury Lawyer Blog

The Nova Scotia Court of Appeal recently commented on the analysis used in determining the standard of care in a personal injury claim resulting from a motor vehicle accident and the need for expert evidence.

In Holland Carriers Ltd. V. MacDonald, one of the defendants, Holland Carriers Ltd., owned a logging truck that was operated by an employee by the name of Murray, also named as a defendant. The truck contained eight vertical stakes on each side of the trailer to keep the load in place. The stakes were tapered, sat in a tapered pocket and were held by a chain and an additional tie put on by Holland to secure them in place. The stakes were very heavy and could not be easily removed. While Murray was driving the truck on Highway 103, the left rearmost stake became dislodged and crashed into the windshield of the plaintiff's van.

The action contained a number of defendants including the manufacturer of the truck and the retailer from whom defendant Holland purchased the truck. At trial, the evidence revealed that the stake was allowed to escape the mooring because its chain snapped due to wear and tear. The trial judge went on to find that a reasonable inspection would have exposed the wear and tear and prevented the accident.

The first issue on appeal was whether the trial judge was able to identify the appropriate standard of care for inspection of logging trucks without expert evidence related to industry standards. The defendant Holland presented evidence that the truck was inspected every 2 weeks and the stakes and chains were examined at that time. Evidence was also presented that indicated that the back stakes and their corresponding chains could not be property examined without removing the stakes themselves. Given the weight of the stakes and the effort that would be required to remove them, this was not done. The trial judge ruled that not removing the back stakes and properly inspecting them was evidence of a breach of the standard of care.

On appeal, the defendant Holland argued that without evidence as to the industry standard, the judge could not conclude that a reasonable inspection regime would require removing the 2 back stakes. The Court of Appeal rejected this argument, stating that expert evidence is not always needed in order to determine the appropriate standard of care and often, common sense will be all that's needed. The Court of Appeal went on to cite previous jurisprudence which distinguished between technical and specialized subject matter that will require expert knowledge and that which will not. Conduct that accords with the recognized and acceptable practice of physicians will fall into the first category and require expert opinions whereas the proper standard of care for a hotel manager will likely fall into the latter (G & S Haulage Ltd. v. Park Place Centre Ltd., 2011 NSCA 29).

Holland went on to argue that without evidence as to the timing of inspections in the industry the Court could not determine the appropriate standard of care. The Court of Appeal rejected this argument, noting that Holland felt that it was important to inspect the other 14 stakes regularly and, therefore, it would be equally prudent to inspect the remaining back 2.

The Court of Appeal dismissed this ground of appeal, having found no legal error or palpable and overriding factual error.

The second ground of appeal was that of causation. Holland argued that even if it's duty of care had included inspection of the back 2 stakes through their removal, there was no finding as to the frequency of such inspections and, therefore, there was no proof that such inspections would have prevented the accident. Specifically, Holland noted that there was no finding as to how often the inspection was required. The Court of Appeal noted that the argument may have had some merit if Holland had engaged in ANY inspection of the back stakes in the 22 months it had owned the truck; however no inspection had occurred despite the extreme driving conditions the truck underwent. The Court noted that the other 14 stakes were inspected every 2 weeks and had this been done for all stakes, the accident could have been avoided.

As such, the Court of Appeal dismissed the second ground of appeal.

The frequency of dog bites and attacks have increased in media over the past couple of years. Whether there are more bites are occurring or whether they are just now receiving increasingly more media coverage is unknown. Certainly there has been more attention to the requirement that owners control their dogs and to the by-laws that govern the consequences of a failure to do so.

The injuries that the victims of dog bites sustain can have serious, long lasting effects, including chronic pain, scarring, physical limitations and psychological and emotion effects. A review of the case law suggests that an individual who is bite by a dog can pursue a civil suit under one of two principles of law: the doctrine of Scienter and/or the law of negligence.

The doctrine of Scienter has sometimes been referred to as the idea that each dog gets one bite, however this has been modified with the passage of time. Scienter relates to the propensity of a dog to be "mischievous" and cause injury, and the knowledge of such propensity. Initially, there were three principles that plaintiff had to establish to be successful in an action for Scienter:

1. that the defendant was the owner of the dog;

2. that the dog had manifested a propensity to cause the type of harm occasioned; and

3. that the owner knew of that propensity.

The doctrine of Scienter placed a significant onus on the plaintiff to show that the owner of the dog knew of the propensity of the dog to cause injury. Over time, legislation was enacted to ease the burden. The Halifax Regional Municipality Charter, SNS 2008, c 39 [the Charter] eliminates the requirement that plaintiffs prove knowledge of the propensity on the part of the owner. The Charter provides authority to enact by-laws related to dog ownership and specifically, at section 197, states:

Proof at trial Upon the trial of an action brought against the owner or harbourer of a dog for any injury caused, or damage occasioned by, such dog, it is not necessary to prove knowledge by, or notice to, the owner or harbourer of any mischievous propensity of the dog. 2008, c. 39, s. 197.

Therefore, it appears that in an action under the doctrine of Scienter, it is no longer required to show knowledge on the part of the dog owner of the dog's propensity for injury. The plaintiff must only show that the defendant owned the dog in question and that the particular dog had a propensity to cause the type of harm that occurred. Such evidence may take the form of statements from neighbours and others that have knowledge of the dog and previous complaints made about the dog.

Negligence

In addition to a claim under the principle of Scienter, the victim of a dog bite case may also have a claim under the law of negligence.

Essentially, a civil suit resulting from a dog bite framed in negligence will be comprised of the basic elements relevant in any negligence claim. The plaintiff must show that the owner of the dog fell short of the standard of care owed to others to prevent the dog from causing harm. Many circumstances will come into play, including the efforts of the owner to control and restrain the dog, the particular mechanism used to control the dog (i.e. crates, leashes, etc.) and signage warning of the presence of the dog. Similarly to the doctrine of Scienter, the nature of the dog itself will also be a relevant factor in determining the standard of care required of owners.

Certainly, the best way to avoid a civil suit related to dog bites is to properly restrain animals, particularly around strangers and small children. The extent of restraint will depend on the circumstances and characteristics of the particular dog. Larger dogs with a greatly propensity to be aggressive, even in play, will require a greater level of restraint and supervision than smaller and/or somewhat more docile animals. Additionally, efforts to properly train and control an animal speak to the standard of care taken by the owners.

Home insurance is crucial, particularly so for owners of animals that have the potential to do damage. Most Home Owners' insurance policies provide coverage for injury caused by dogs, provided there is a legitimate negligence claim. That being said, each policy is different and dog owners are encouraged to read their policy carefully and make inquires as to their coverage for injury caused by pets.

Car accident and other injury victims take note: the use of inferences to make findings of negligence or causation has increasingly taken centre stage in several recent decisions out of the Nova Scotia Court of Appeal. The appropriate use of inferences was highlighted in a decision released in early December, Johansson v. General Motors of Canada Ltd., 2012 NSCA 120.

A lady was injured in a car accident when, in 1998, the car she was driving suddenly swerved to the right and off the road. Tragically, she sustained a permanent brain injury.

Nothing unusual had appeared on the road. No other vehicle, person or animal was involved. She and her passengers had no idea why the car swerved to the right. She did not sue at that time.

Years later, GMC sent the Johanssons a Recall Notice for the 1997 Lumina she was driving at the time of the accident. GMC advised owners that "When trying to turn left, some drivers could experience higher resistance or, in a few cases, assist towards the right." She and her family believed that this described the circumstances of her accident "to a T". They hired a Nova Scotia personal injury lawyer and claimed damages against GMC, alleging that GMC was negligent in the design and manufacture of the car and that this negligence led to the defect.

A trial was held before a jury last year. After her personal injury lawyers presented all the injured victim's evidence, GMC brought a "non suit motion" (which would strike her claim for lack of evidence). The trial judge sided with GMC and denied the claim. In other words, he did not let the jury decide the allegations of negligence. He felt that the lawyers for the plaintiff had not established sufficient evidence to possibly ground a claim of negligence.

In his non-suit ruling, the trial judge found that the lower pinion bearing on the rack and pinion mechanism was "defective". He stated:

The unexplained nature of the accident, combined with its circumstances, and the nature of the Recall Notice, could support a finding that it is more likely than not that the accident was caused by a defective lower pinion bearing rather than any other competing explanation such as driver error; this is sufficient to satisfy the prima facie case threshold on a nonsuit motion.

The judge granted the non-suit because, in his view, there was no evidence to establish the standard of care or GMC's breach of the standard.

Lawyers for the injured lady appealed this ruling. On appeal, the central question was: Did the judge commit an appealable error, in his application of the principles that govern a non-suit in a negligence claim, by ruling that there was no evidence from which a properly instructed jury could infer GMC's standard of care or GMC's breach of a standard of care?

The Court of Appeal unanimously found that sufficient evidence had been presented which would have allowed a jury to infer that GMC was negligent. As such, they found that the trial judge had committed an error of law in not allowing the jury to make this decision. A new trial was ordered.

The Appeal Court reasoned:

...when the plaintiff's evidence "permit[s] an inference of negligence attributable to the defendant", the non-suit motion should be dismissed and the jury, after any evidence from the defendant, would decide whether or not that inference should be drawn.

...

Drawing inferences is standard fare for juries. An inference is a finding deduced or induced from a premise without direct evidence of the inferred fact. It is a factual jump on the reasoning path. The judge ensures that the span is not so broad or irrational that a reasonable jury would stumble. Otherwise the system trusts the jury's common sense and agility to mind the gap and land softly. To resolve the non-suit motion simply because there is no direct evidence of GMC' standard of care for rack and pinion steering assemblies, is to emasculate the jury's function of assessing whether or not to reasonably infer the standard's particulars from appropriate evidence.

...

In my respectful view, the judge mistook the process by which a jury may choose whether or not to infer "negligence" from circumstantial evidence, for "strict liability" without negligence. That was an error of law.

...

... it is for the jury to balance those factors and weigh the evidence related to the application of the standard of care. It is for the jury to decide whether in the circumstances of a particular case evidence of industry practice or regulatory benchmarks, on the one hand, or evidence surrounding the defect, on the other, should tip the scale. It is not for the judge to wade into the factual waters with a finding that a particular factor, such as industry practice, on which the judge has heard no evidence, will outweigh the others.

...

... it is clear that a plaintiff may lead evidence that the defendant failed to comply with industry practice, and that evidence may assist to establish a prima facie case. Or the defendant may lead evidence of compliance with industry practice. Either way, the evidence is to be weighed, with other evidence, by the jury at the conclusion of the trial. But evidence of industry practice does not necessarily trump other evidence and settle the negligence issue in the jury room. So it cannot be a legal prerequisite to the plaintiff's prima facie case in mid-trial. A products liability plaintiff may establish her prima facie case with other evidence. The more common sequence is that the plaintiff leads with other evidence, and the evidence of industry practice makes its debut in the defendant's case.

...

In my opinion, from that evidence, a jury reasonably could, if it wishes, infer that the low end of the standard of care governing quality control, investigation or testing for an assembler of a new vehicle does not sanction: a "defect" that impugns "safety" where "a crash could result", because steering veers opposite to the intended direction, caused by components that are "not manufactured properly", so bearings would suffer "failure" and fall out making them useless for their purpose, leading to "misdirected" power steering fluid, and a "wobbling" steering shaft that can "flop around" unpredictably, causing "erratic steering".

A medical product liability class action was recently dismissed following a lengthy 138-day trial. The trial spanned over two years, from 2010 to 2011. The length and complication of the trial in reflected in the length of the detailed decision.

The plaintiff and class members each had implanted mechanical prosthetic heart valves and annuloplasty rings with Silzone, which is a proprietary term for a coating comprising layers of titanium, palladium and an outer layer of metallic silver. This was applied to the polyester sewing cuff that surgeons use to attach a prosthetic heart valve to heart tissue. Silver is known as an antimicrobial in medicine and the Silzone coating was designed to inhibit the growth of the bacteria that can cause endocarditis, an infection that is a serious complication of heart valve surgery.

The medical products were implanted in Canadian patients between September 1997 and January 21, 2000, when the defendants issued a worldwide recall of all Silzone-coated products. At that time, an ongoing randomized clinical trial called 'AVERT' revealed a small, but statistically significant increase in explants due to a medical complication known as paravalvular leak (PVL) in patients who had received a Silzone implant.

It was alleged that the Defendants designed and manufactured the products such that they were unsafe for use. It was not disputed that the silver within the product can be poisonous to human cells. However, at the time that Silzone was developed, the silver had been shown to be effective against bacteria and safe to use in applications such as wound dressings, sutures and catheters.

A few Canadian hospitals stopped using Silzone-coated devices in the year preceding the recall and in November 1999, the United Kingdom Medical Devices Agency (MDA) issued an Advice Notice to physicians warning about possible thromboembolic complications.

The MDA took no other action, but within days of this notice, Australian and New Zealand regulators withdrew approvals for Silzone products in those countries. Health Canada and the United States Food and Drug Administration (FDA), as well as the Data Safety Monitoring Board (DSMB) for the AVERT clinical trial, were well-informed about this, but they did not express concerns about the safety of the valve or take any action.

The claim against the defendants was based in negligence. The evidence focused mainly on two of its major elements: breach of duty causing injury and cause. The trial examined the defendants' conduct in designing, testing and marketing the Silzone valve and considered whether Silzone has an adverse effect on tissue healing and whether the risk of medical complications is greater for patients with Silzone valves.

The plaintiffs needed to establish, on a balance of probabilities, a "but for" negligent act or omission linking the defendants' conduct to a class-wide injury in order to move the claims of each class member forward to individual hearings.

They tried to show that the defendants failed to reasonably evaluate the utility and safety of Silzone before introducing it to the market and then failed in their duty to warn of its risks. A theme was that the Silzone valve was rushed to market in view of the pending expiry of the patent for the defendants' successful bileaflet valve.

The plaintiffs advanced the theory that Silzone is a toxic substance that interferes with the cells involved in tissue healing and impairs the body's ability to properly incorporate the Silzone device into the heart, thereby causing or contributing to a variety of serious medical complications for Silzone patients.

As medical complications can occur with all prosthetic heart valves, the trial judge focused on whether that heart valve puts patients at a materially increased risk of experiencing one or more of these complications. The defendants did not dispute that Silzone probably materially increased the risk of PVL for some patients for some period of time post implant. The explanation for this is unclear.

However, the Court found that there was insufficient evidence to conclude that Silzone increased the risk of the other medical complications that were in issue. The judge found that the plaintiffs did not succeed in proving that Silzone has an adverse effect on tissue healing.

Although there is a high duty of care imposed on a medical device manufacturer, the plaintiffs did not establish that the defendants failed to exercise a reasonable degree of care in the pre-market design and testing or in the post-market surveillance of Silzone-coated products that would be expected of a reasonable and prudent prosthetic heart valve manufacturer in similar circumstances.

These findings, based primarily on a lack of evidence, led to the conclusion that the action must be dismissed.

This recent decision from the Supreme Court of Canada addresses the issue of causation for the tort of negligence.

Historically, it is required that a Plaintiff demonstrate that "but for" the negligent act of the Defendant the injury would not have occurred. Complications with the ability to draw a direct line of causation between the Defendant's action and the Plaintiff's injury have resulted in sometimes allowing a less onerous test to be applied. This less onerous test is that the Defendant "materially contributed to the risk of injury".

In the Clements' decision, the trial level judge determined that the Plaintiff did not have sufficient scientific evidence to demonstrate that her injury would not have occurred but for the Defendant's actions. However, the trial judge determined that this was because scientific evidence is not sufficiently advanced and therefore the material contribution test should apply. Specifically, this case determines when it is appropriate to substitute the material contribution of risk test for the "but for" test.

Facts
The Defendant, Mr. Clements, was driving a motorcycle with the Plaintiff, Mrs. Clements riding behind on the passenger seat, on the highway in wet weather. Neither party were aware that a nail had punctured the bike's rear tire. Mr. Clements had overloaded the bike by 100 pounds and was speeding to pass another vehicle when the nail came out of the tire, causing the tire to deflate. Mr. Clements lost control of the bike resulting in the bike crashing and the Plaintiff being thrown from the bike which resulted in a traumatic brain injury.

Issue
When is it appropriate to apply the material contribution to risk of injury test instead of the "but for" test in order to determine causation of negligence?

Rule
The tort of negligence requires that the Plaintiff show that the Defendant did not meet the duty of care, and the failure to do so caused the injury of the Plaintiff.

The "but for test" should always be applied to determine causation except in special circumstances. The "material contribution" to risk test requires only that the Defendant's act contributed to the risk that the injury would occur. The variation from the "but for" test must be for the purpose of conforming to the goals of negligence law which include: compensation, fairness and deterrence. In these cases there still must be a substantial connection between the injury and the Defendant's negligence demonstrated by the Plaintiff.

When should the material contribution test apply
In order to apply the material contribution test, instead of the "but for" test, it must be impossible for the Plaintiff to prove causation. The law of negligence has never required scientific proof of causation; common sense inferences based on the proven facts is sufficient. Therefore, as scientific evidence of causation is not a requirement, the absence of scientific evidence does not make showing causation with the "but for" test impossible and the material contribution test should not be substituted.

Actual impossibility of demonstrating legal causation includes scenarios where there is more than one possible cause of the injury. For example, when there are multiple Defendants who have breached the standard of care it may be impossible to show causation of one specific Defendant to the injury. All Defendants may suggest that injury would still have occurred because of the negligent actions of the other Defendant(s). Therefore, in cases involving multiple Defendants, it is impossible to show causation using the "but for" test and it is appropriate to apply the material contribution to risk of injury test.

Conclusion
The general rule in Canada is that the trial judge should take a robust and pragmatic approach to determining if a Plaintiff has established that the Defendant's negligence caused a loss. In exceptional circumstances, a Plaintiff may only have to show that the Defendant's conduct materially contributed to the risk of the Plaintiff's injury, if they can demonstrate that:

(a) the loss to the Plaintiff would not have occurred "but for" the negligence of two or more tortfeasors, and
(b) it is impossible for the plaintiff, through no fault of her/his own, to show that any one of the possible tortfeasors was the necessary "but for" cause of her injury.

Application
The Clements case does not present the impossibility of the "but for" test succeeding. At trial, the judge determined that the Plaintiff was not able to show solid scientific evidence that the injury suffered would not have occurred "but for" the negligent actions of overloading the motorcycle and speeding. The trial judge found that because of this "impossibility" the material contribution to risk test should be applied. The law requires a "robust and pragmatic approach to the 'but for' test. The judge should have allowed for the possibility that without the use of scientific proof, the negligence of the Defendant could be shown to have caused the injury of the Plaintiff.

Therefore, causation is not impossible to demonstrate using the "but for" test and the material contribution test should not be applied.

The Scout movement is a worldwide youth movement with the stated aim of supporting young people in their physical, mental and spiritual development so that they may play constructive roles in society. Scouts Canada bills itself as the country's leading youth organization.

However a recent independent forensic audit of Scouts Canada's records has resulted in 129 cases of alleged sexual abuse of children being reported to police. The audit report amounts to an indictment of Canadian Scouting. The review identified findings in five specific areas: records management, governance, contact with authorities, suspensions and terminations, and other observations.

Particularly damning is that the alleged abuse went on for more than six decades. The audit confirms that sexual abuse remained hidden for just as long. Child youth organizations, like Scouts Canada, have an ethical and legal obligation to protect youth in their care of child predators. Where they have reason to suspect abuse, or know about abuse, they have an obligation to act. For most, this would mean bringing the suspicions or allegations forward to police. However, while the audit found no evidence of a systemic cover-up it showed that even after 1992, when internal rules changed to require that such allegations be reported to the authorities, the information was not always shared.

The review of the organization's records involved 468 incidents that go back 64 years. It found that about half of the more than 100 cases recently turned over to police were never reported to the police. Scouts Canada's records were so deficient that in many cases, determinations over whether complaints were brought forward to authorities could not be made.

It is sad how Scouts Canada failed the youth in its care on so many fronts. It failed to comply with its own internal policies (when they came about). It failed in its duty to protect them. And Scouts failed to comply with the law of the land. Where a person has good reason to suspect child abuse, he or she is obligated to come forward with these concerns.

Systemic negligence, and turning a blind eye to abuse, make Scouts Canada potentially liable for civil claims brought on behalf of the abuse victims. Abuse victims often suffer lifetime emotional damages. Where an organization like Scouts Canada turns a blind eye or fails to report a known abusers (thereby permitting the abuse to continue), it is liable for the harms ultimately suffered.

Wagners Law Firm is actively investigating such claims on behalf of abuse victims.

Personal injury lawyers for an injured car accident victim successfully argued that correctness of a trial decision awarding damages for his brain injury.

The injured man was involved in a car accident several years ago. He unfortunately suffered a brain injury resulting in cognitive decline. On his behalf, personal injury lawyers in Nova Scotia brought an action against the individual whose negligence caused the car accident. The amount of damages was contested. The injured man argued that his brain injury resulted in a diminished capacity to earning future income.

He argued that he would be less marketable to future employers and that his career opportunities were more limited. Lawyers for the defendant's insurance company argued that his work capacity (and future income) was not affected by the car accident. The parties were unable to settle the claim before trial.

After a five day trial in Nova Scotia, the trial judge agreed with the injured man. He summed up the factual background as follows:

Richard Vogler, a very bright and popular twenty year old from Halifax, was asleep in the back seat with his seatbelt unbuckled when the gust from a passing tractor trailer sent the mobile home into a fishtail. The driver could not keep control. Mr. Vogler was hurled from the car as it crashed.

Mr. Vogler hit the ground with the kind of violence that causes the brain to bang against the inside of the skull. Also, the skull was fractured, and his brain suffered blunt trauma from that. The flesh of Mr. Vogler's right forearm was horribly torn, and one eye was badly damaged. His right chest was punctured and his lung bruised. Ribs and the pelvis were fractured.

For a time the question was whether Mr. Vogler would die. He lived. Then, the main question was what would be left of his faculties. He made a remarkable recovery thanks to good hospital care in the United States and Canada, to his parents' intense campaign of treatment involving professionals, family, and friends, to Mr. Vogler's own intellectual and spiritual strengths, and to sheer luck.

That much said, Mr. Vogler suffered brain injuries that were severe in the beginning, and there are some lasting effects. The extent and consequences of those losses are the most controversial issues for assessing Mr. Vogler's damages.

On these facts, the trial judge awarded the injured man general non-pecuniary damages (pain and suffering) at $150,000.00. He assessed damages for loss of income earning capacity at $180,000.00. The defendants appealed these awards to the Nova Scotia Court of Appeal.

The Court of Appeal found in favour of the injured man and dismissed the appeal. The Court reasoned as follows:

The trial judge had very extensive medical and other evidence before him, and was in an ideal position to determine the severity of the injuries for assessment purposes. His assessment was $150,000.00, for the combination of brain inury and loss of vision - each of which would alone command a significant award - and for the other injuries suffered. The appellants say this award is too high. We disagree. It is within the range of reasonable outcomes for the severe injuries suffered by the respondent.

Regarding the assessment of damages for loss of future income, or income earning capacity, the trial judge acknowledged the challenging task and noted that it involved making educated guesses about the life trajectory that Mr. Vogler would have enjoyed, but for the accident, and comparing this to the life that he is currently living.

On the basis of considerable evidence it was the trial judge's conclusion that the injuries have led to "information processing and memory deficits", and that but for the accident, Mr. Vogler would have been capable of "meaningful work". The result being that his injuries would probably translate into lower earnings in the future. Consistent with the case law, he opted to use a "global" rather than an actuarial approach and arrived at a figure for loss of future income earning capacity of $180,000.00. The appellants argue that this assessment is contrary to the evidence. Again we disagree. There was more than ample evidence to support the trial judge's findings and conclusions in making his award of loss of future earning capacity.

Essentially, lawyers for the defendant's insurance company tried to argue that there was not enough evidence to support an award for diminished future earning capacity. The Courts disagreed. It is impossible to know what an injured person's work situation would have been "but for" the injuries. However the Courts observed in this case that judges must make an "educated guess". If this "guess" leads to the conclusion that the life trajectory has been altered by the accident, and therefore future income loss is "probable", a loss of future earning capacity award will be granted.

In this case, the car accident caused "information processing deficits". It is impossible to know whether these deficits would result in a loss of future income, but the judge ultimately used an "educated guess" to conclude that they would. This case is an important affirmation from the Nova Scotia Court of Appeal of on the threshold required for a future earning capacity award.

Personal injury comes in many forms. Victims of intentional or unintentional wrongs can suffer a range of physical and emotional harms. Where such harms are suffered, the law permits compensation. For example, when a pedestrian is hit by a car while crossing a crosswalk, and is injured, he or she can seek damages from the driver. A victim of a sexual assault, who suffers emotional consequences like depression, is entitled to compensation from his or her attacker.

Entitlement to compensation for some injuries is less obvious. One such example is an invasion of privacy. Victims of privacy breaches often suffer emotional consequences, such as embarrassment, loss of confidence and degradation. A couple of months ago, the Ontario Court of Appeal released a decision that clarified whether such injuries, stemming from a breach of privacy, are compensable under law.

The defendant was a bank employee. Over a four year period she accessed the plaintiff's banking records more than 174 times. The accessed information included not only transaction details, but also address, date of birth, and marital status. No information had been published, distributed, or recorded by the defendant in any way. Other than the defendant being in a relationship with the plaintiff's ex-husband, it was not clear why she was viewing these records. She acted in breach of bank policy.

The plaintiff brought a claim for invasion of privacy and sought general and exemplary damages.

The Ontario Court of Appeal concluded that the plaintiff was entitled to damages for having suffered an invasion of privacy. The Court of Appeal confirmed the existence of a right of action for intrusion upon seclusion, stating:

For over one hundred years, technological change has motivated the legal protection of the individual's right to privacy. In modern times, the pace of technological change has accelerated exponentially. Legal scholars such as Peter Burns have written of "the pressing need to preserve 'privacy' which is being threatened by science and technology to the point of surrender" ... The internet and digital technology have brought an enormous change in the way we communicate and in our capacity to capture, store and retrieve information. As the facts of this case indicate, routinely kept electronic data bases render our most personal financial information vulnerable. Sensitive information as to our health is similarly available, as are records of the books we have borrowed or bought, the movies we have rented or downloaded, where we have shopped, where we have travelled, and the nature of our communications by cell phone, e-mail or text message.

The Court described the analysis that must be entered into in assessing the viability of a claim for intrusion upon seclusion:

I would essentially adopt as the elements of the action for intrusion upon seclusion the Restatement (Second) of Torts(2010) formulation which, for the sake of convenience, I repeat here:

One who intentionally intrudes, physically or otherwise, upon the seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the invasion would be highly offensive to a reasonable person.

The key features of this cause of action are, first, that the defendant's conduct must be intentional, within which I would include reckless; second that the defendant must have invaded, without lawful justification, the plaintiff's private affairs or concerns; and third, that a reasonable person would regard the invasion as highly offensive causing distress, humiliation or anguish. However, proof of harm to a recognized economic interest is not an element of the cause of action. I return below to the question of damages, but state here that I believe it important to emphasize that given the intangible nature of the interest protected, damages for intrusion upon seclusion will ordinarily be measured by a modest conventional sum.

The Court found, on the facts of the case, the claim was made out - the intrusion was intention and it would be highly offensive to the reasonable person. In determining the level of damages the Court said:

Favouring a higher award is the fact that Tsige's actions were deliberate and repeated and arose from a complex web of domestic arrangements likely to provoke strong feelings and animosity. Jones was understandably very upset by the intrusion into her private financial affairs. On the other hand, Jones suffered no public embarrassment or harm to her health, welfare, social, business or financial position and Tsige has apologized for her conduct and made genuine attempts to make amends. On balance, I would place this case at the mid-point of the range I have identified and award damages in the amount of $10,000.

This recent decision is expected to have wide-reaching consequences in civil litigation, particularly in the area of class actions where company decisions can have privacy implications for large populations of people. The case represents the recognition of a common law privacy tort in Canada's largest province and is significant milestone in the development of this area of the common law.

The claims involving the former residents of the Nova Scotia Home for Colored Children are, after 10 years, starting to be noticed by the media.

A series of articles were published in Frank Magazine in early 2011 dealing with the litigation, the allegations and the lengthy time that this litigation has been before the Courts.

Bethany Horne produced a documentary called "The Colored Home" for CBC Radio's Maritime Magazine which aired on November 29, 2011. It was later replayed on the CBC Radio show In the Field on January 17, 2012.

There have also been a number of articles published in the Chronicle Herald during the week of February 13th relating to the abuse which occurred at the NSHCC. Followup articles have also been published.

These articles and documentaries are giving a voice to the victims who were abused while they were residents at the NSHCC.

Now, after many years of struggle in pursuing the individual claims through the court system, a new chapter in the NSHCC litigation is about to unfold.

On Friday, February 17, 2012, the law firm of Wagners filed its Notice of Motion and supporting affidavits to have its proposed class proceeding certified as a class action pursuant to Nova Scotia's Class Proceedings Act. The filing of these documents represents a significant milestone for the victims of abuse at the NSHCC after many years of ongoing litigation in their individual claims. The filing of the certification motion documents is the first step towards bringing closure for these victims of abuse.

One of the individuals who signed an affidavit in support of the certification motion is Jane Earle, former executive director of the NSHCC. Ms. Earle was interviewed for CBC Radio's Mainstreet on February 15, 2012.

The Plaintiffs' Certification motion will be heard in the Nova Scotia Supreme Court at 1815 Upper Water Street, Halifax, before the Honourable Justice Arthur LeBlanc during the week of October 22, 2012.

Two institutions. Both opened in the 1920s. Both funded by the Province. Both with poor conditions and unqualified staff. And both with allegations of serious abuse perpetrated by staff members. But the similarities end there.

When one juxtaposes the situations between the two institutions, the differences in how the allegations have been handled are startling and readily apparent.

In relation to Shelburne, after a few victims came forward, the Province quickly decided to fund an investigation into the abuse. The investigation revealed that residents were abused and the Province quickly agreed to compensate the victims, approximately 5 years after the original complaint was brought with the RCMP.

In relation to the NSHCC, no funds for an investigation were provided, no inquires into the merits of the abuse claims were made and no compensation has ever been provided.

Rather, unlike the Shelburne situation, the sole focal point of the Defendants in the NSHCC claims were to repeatedly apply to the Court to deny the claims on the basis that the victims should have brought their actions sooner. Not to dispute the claims but to use Nova Scotia's antiquated limitations laws to stop the claims. In addition, the abuse victims have had to undergo emotionally painful discovery examinations and answer questions of an invasive nature.

There is another difference between the NSHCC and Shelburne which can be distinguished. The majority of the Shelburne victims were white. The vast majority of the Colored Home victims are black.

The stark contrast between the way that the allegations of abuse at the Nova Scotia Home for Colored Children and Shelburne have been handled lead to serious questions.
Why did the Province fund an investigation for victims in Shelburne but not for the victims of the NSHCC?

Why were people charged in relation to abuse at Shelburne but not in relation to the NSHCC?

What makes the Colored Home abuse victims any different from the Shelburne abuse victims?

Why did the Province agree to compensate Shelburne victims 5 year after the complaint was brought while it continues to deny justice to Colored Home victims almost 10 years after the complaints were brought?

The victims of abuse at the NSHCC believe it is time for the Province to answer these questions.

It is now closing in on 10 years since Wagners commenced litigation against the Nova Scotia Home for Colored Children, the Province of Nova Scotia and various Children's Aid Societies. The Home was established in 1917 and served primarily disadvantaged and unwanted children of African-Canadian descent.

The claims we filed back in 2003 and 2004 were individual lawsuits on behalf of more than 60 former residents of the Home, or NSHCC. From the time that we filed those initial claims up to and continuing today, the Defendants have continued to force our clients to go through obtrusive examinations, submit to providing answers to interrogatories and demands for particulars, motions for summary judgment and other procedures that have only served to delay our efforts to give our clients their day in court.

One must ask themselves why the Defendants are subjecting these victims of abuse to the lengthy and costly litigation process. What makes this case different?

Similar institutional abuse cases, such as Shelburne, were resolved only 4 or 5 years after the first allegations of abuse came to light. A number of victims of the pedophile, Cesar Lalo, have had their cases heard in Court. However the victims of abuse suffered in the NSHCC continue to be embroiled in litigation nearly 10 years after their claims first came to light.

When reviewing the Shelburne situation, which came to light in 1991, it was approximately one year after the first allegations came to the public forefront that the RCMP investigated and, in fact, laid charges against a former staff member. Compare that to the situation involving the NSHCC when, after the initial claims were filed, the Defendants filed documents which required the NSHCC victims to respond to extensive written questions. Even now, after 10 years has transpired since the first NSHCC claims were filed, there has never been an investigation into the abuse allegations, much less a criminal charge being laid. All these allegations, very strong and very powerful allegations of systemic sexual abuse of the most horrific variety is well documented in the court record and no police department, no police agency, no government agency, nobody in the Department of Community Services, no welfare protection people--did anything, or are doing anything to investigate the case. And you have to ask yourself, why?

In 1993, the Shelburne staff member who was charged was found guilty and was convicted of indecent assault and gross indecency. Within 2-3 years of the first allegations of abuse at Shelburne, a pedophile was convicted. Yet in the NSHCC cases, within 2-3 years, the Defendants chose to contest the claims.

In 1995, more former residents of Shelburne started to come forward with allegations of abuse. Immediately, the Province announced that they would investigate these allegations and, if proven, a method would be put in place to provide justice to those who were wronged. However, the NSHCC victims continue to be mired in litigation, with the Defendants' using all the litigation tools to frustrate the fair and final determination of the truth.

Later in 1995 the investigative report dealing with the allegations of abuse at Shelburne was released. This Provincially funded report found approximately 90 allegations of abuse and the blame was placed with the Government for inadequate practices including funding and hiring. Shortly thereafter, the Province commenced discussions with the lawyers for the victims of the abuse at Shelburne to attempt to redress the wrongdoings. All this occurred within 5 years of the first allegations being made. In the NSHCC cases, the claimants were being subjected to intrusive, invasive and lengthy discovery examinations after 5 years. Why did the Province take the allegations of abuse in Shelburne much more seriously and with more compassion than it has done for the victims of abuse at the NSHCC?

In 1996, 5 years after the first Shelburne allegations became public, a compensation package was put in place for the victims. With the NSHCC, the Defendants continue to use the litigation tools to deny access to justice.

Car accident victims often become injured as a result of the negligence of a driver who cannot be identified. Fortunately, Nova Scotia, like New Brunswick and PEI, has an insurance regime which grants compensation to such injured car accident victims. When a person is injured as a result of the negligence of an unidentified driver, the person's "Section D" insurance policy becomes engaged.

The relevant insurance provision reads:

The insurer agrees to pay all sums that: (a) A person insured under this policy is legally entitled to recover from the owner or driver of an uninsured automobile or unidentified automobile as damages for bodily injuries resulting from an accident involving an automobile.

The typical scenario under which this insurance provision is triggered is a "hit and run", where the victim is injured by a driver who then drives away and cannot later be identified. These situations are relatively straight-forward.

A more complex scenario occurs when a victim is injured as a result of a foreign object lying loose on a roadway and flying into the victim's vehicle (usually being projected from the tires of another vehicle). These scenarios are usually highly contested, with insurance companies arguing that the mere existence of the foreign object on the roadway is no evidence of negligence of an unidentified driver.

In such situations, the case law maintains that the car accident victim has an onus to establish facts from which the Court may reasonably draw the inference that the negligence of the driver of an unidentified vehicle was the probable cause of foreign object lying loose on the highway. The burden of proof is whether it is more likely than not that the driver of an unidentified vehicle's negligence constituted the cause of the plaintiff's injury.

As is the case in every claim involving debris lying on a roadway, the procurement of direct evidence of negligence is impossible. In circumstances such as this, plaintiffs must prove their claim using circumstantial evidence. The principles are well-established for assessing liability where the evidence is circumstantial.

In the oft-cited decision of the Supreme Court of Canada in Montreal Tramways Co. v. Léveillé, [1933] S.C.R. 456 (S.C.C.), the Court considered the role circumstantial evidence plays in meeting the burden of proof and stated at para. 35:

The general principle in accordance with which in cases like the present the sufficiency of the evidence is to be determined was stated by Lord Chancellor Loreburn in Richard Evans & Co., Limited v. Astley, [1911] A.C. 678 as follows:

It is, of course, impossible to lay down in words any scale or standard by which you can measure the degree of proof which will suffice to support a particular conclusion of fact. The applicant must prove his case. This does not mean that he must demonstrate his case. If the more probable conclusion is that for which he contends, and there is anything pointing to it, then there is evidence for a court to act upon. Any conclusion short of certainty may be miscalled conjecture or surmise but courts, like individuals, habitually act upon a balance of probabilities.

Once the Plaintiff has established that it likely came from the undercarriage of a motor vehicle, the fact that the car part fell off the vehicle and onto the highway will be sufficient to justify the a prima facie case of negligence against an "unidentified driver". A similar ruling was made by the British Columbia Court of Appeal in Lee v. Insurance Corp. of British Columbia, 1986 CarswellBC 111.

The deceased driver in Lee, supra, was driving on a highway when witnesses say he suddenly plunged over an embankment. The cause of the accident was unknown. The initial theory was that the deceased had fallen asleep at the wheel. Days later, police discovered a foreign car part (a detached trailer hitch) on the floor of the deceased's car.

Based on the presence of this foreign car part in the deceased's car, the family of the deceased surmised "that the wheels of the eastbound semi-trailer truck had thrown up the trailer hitch from the road surface and that this projectile had penetrated the windshield striking Kelly in the face." They brought a claim against the Insurance Corporation of British Columbia and argued that the accident resulted from the negligence of an "unidentified driver".

Insurance company denied the claim. There remained alternate explanations for the cause of the accident: the deceased could have fallen asleep, he could have simply lost control of his vehicle, etc. Furthermore, the insurance company argued that even if it was accepted that the car part likely caused the accident, there was no evidence of negligence on the part of an unidentified driver. It was argued that the car part could have fallen on the road due to vandalism, for example. This argument was rejected by the Court of Appeal.

Discussing whether the existence of the foreign car part in the deceased's car (likely previously on the road) established a prima facie case of negligence, the Court stated at para. 11:

In my view, in the absence of an explanation, the fact of its falling off the vehicle and onto the roadway is sufficient to justify the conclusion that most probably the driver was negligent. That does not happen " 'if those who have the management use proper care' " and " 'it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care'

A personal injury lawyer experienced in these complex fact scenarios is best able to advance a claim for damages on behalf of injured victims. The lawyers at Wagners routinely achieve successful result for victims of car accident involving an "unidentified driver".

The Supreme Court of Nova Scotia recently released a decision which underlines the importance of consent to the availability of insurance following a car accident in which someone is injured.

In the case of Deveraux v. Dixon, the son of an insured driver caused a car accident. Two passengers of the car he struck were injured. They started a law suit against the son and his mother (as the owner of the car).

The mother's insurance company did not defend the case, arguing that an exclusion clause in the insurance policy did not require them to defend the driver of an insured car when that driver is driving the car without consent. The relevant provisions in the insurance contract and the Insurance Act read, respectively:

The insurer agrees to indemnify the insured and, in the same manner and to the same extent as if named herein as the insured, every other person who with his consent personally drives the automobile, or personally operates any part thereof, against the liability imposed by law upon the insured or upon any such other person for loss or damages arising from the ownership, use or operation of the automobile.

...

114 (1) Every contract evidenced by an owner's policy insures the person named therein, and every other person who with his consent personally drives an automobile owned by the insured named in the contract and within the description or definition thereof in the contract, against liability imposed by law upon the insured named in the contract or that other person for loss or damage

(a) arising from the ownership, use or operation of any such automobile; and

(b) resulting from bodily injury to or the death of any person, and damage to property.
The mother and son did not have the financial resources to pay for the victim's damages on their own. Therefore, in the event the insurance company was absolved from having to defend the mother and son, personal injury lawyers for the victims included the victims' insurance company (Aviva) to the claim. In the event a person is struck by an uninsured driver, the victim's insurance company is statutorily required to compensate their insured.

In this case Aviva argued that implied consent was given and that, therefore, the mother and son were not uninsured.

The person that caused the accident was a 24-year-old son of the insured owner of the car. He lived with his mother. His mother bought the car, insured it, but did not register it. She said she was unemployed and was receiving a disability payment, and did not have the money to register the vehicle until the end of the month. She was holding off on the registration until then.

Though trained to drive, the son was not licensed at the time of the car accident. He therefore never drove any of his mother's cars.

On the day of the car accident, the mother went out to dinner. She left her car (and its keys) at home. The son had been drinking at a friend's house. He returned home sometime in the evening. He was intoxicated when he then decided to take the truck. He did not contact his mother to ask permission, and did not discuss it with anyone else. It was the first time he had driven the truck.

The Court noted the following test for determining whether implied consent was given for the son to drive the car:

The test for implied consent has been stated more recently by Stewart, J. of this Court as "whether upon analysing all the surrounding circumstances objectively, a reasonable person observing the situation would conclude that [the driver] had the implied consent of [the owner] to drive the truck... The state of mind of the owner and driver are strong factors in determining the issue of implied consent".

The Court found that there was no evidence that there had been consent, express or implied, for the son Emerson to drive the insured mother's vehicles. She was aware that he did not have a driver's license. As such, she did not find it necessary to explicitly tell him he could not drive her vehicles. He was not listed on her automobile insurance, and, as far as she knew, he had not driven her vehicles in the past.

This case is important to victims of car accidents in Nova Scotia, New Brunswick and PEI. The availability of an insurance company to be able to provide appropriate compensation is often necessary. Where the issue of consent is brought up by an insurance company to deny coverage, it is possible that car accident victims can be denied recourse. In such cases it takes experienced lawyers, specializing in the field of personal injury litigation to navigate the course required to ensure that an insurance company will be mandated to respond to a claim for damages.

Lawyers for a young man tragically injured in a car accident many years ago finally achieved justice on his behalf following a recent trial.

The case stemmed from a serious car accident which took place in Wyoming in 2000. The victim was a 20-year-old who was a passenger in a car driven by his friend. The vehicle was towing a mobile home. With the victim asleep in the back seat of the car, the mobile home fishtailed after being passed by a large truck. The driver lost control of the car and the victim was hurled from the vehicle as it crashed.

The victim's head banged against the pavement. His brain suffered blunt trauma by violently hitting the inside of his skull. His eye was badly damaged, his right chest and lungs punctured and his ribs and pelvis were fractured. He was taken to Hospital where he remained for a long time during a difficult period of recovery. Many of his injuries healed. Unfortunately, he continues to suffer from personal injuries, the most significant of which is a lasting brain injury. His cognitive injuries were described as follows:

Attention: Mr. Vogler showed reduced focus on specific topics (staying with a specific visual, auditory or motor activity), reduced sustaining attention (completing a schedule, organizing papers such as his portfolio). Mr. Vogler showed intermittent "shutter effect" or "blanking out" during the task in which he "forgot" what we were working on, mild distractability, mild reduction in shifting attention (alternating between two tasks) and reduced divided attention (doing two things at once).

Memory: Mr. Vogler had difficulty recalling what was said to him and did not use rehearsal strategies on a consistent basis. He had intermittent lapses in information processing specifically during the middle of the message and at times of fatigue. Immediate, recent and prospective memory (forward planning) were reduced as was task planning, initiation, execution, speed, organization of information and time management.

Word Retrieval: Mr. Vogler showed borderline-mild word retrieval difficulty. He used circumlocution, verbal mazing or word substitution occasionally. This became exaccerbated [sic] during fatigue.

Thought formulation: Mr. Vogler showed reduced information processing through reduced speed of responding, reduced accuracy and reduced problem solving skills. This was not apparent when asked to problem solve neutral topics such as what would you do if you lost your keys but did not show strategic problem solving during personal experiences such as losing a bag that had his scarf and assignment in it at the hospital. Identification of alternate solutions (flexability) [sic] was reduced.

Social communication: Mr. Vogler showed a borderline-mild degree of redundancy, tangential humor/comment and reduced awareness of others' perspective.

After hearing evidence from a variety of medical experts and hearing from the victim, his friends and his family, the Court awarded him damages. In assessing pain and suffering, the Court favoured the "functional approach", where the purchase of comforts to balance the loss of vision, brain impediments, stiffness and sufferings inform the analysis. The Court considered the cost of a college education under the functional analysis. It awarded $150,000 to provide some solace related to the victim's intellectual impairments.

The young man did not have a long history of pre-injury earnings to definitively inform the Court what his income would have been "but for" the accident. The Court then used its "best estimate" to "attempt to put the injured party in the position the party would have enjoyed if the accident had not occurred."

The Court accepted that the victim would earn less over this lifetime due to his injuries. In quantifying this loss, the Court hypothesized what he would have done but for the accident. The Court then awarded a global sum of $180,000.

Halifax personal injury lawyers for the victim successfully argued for other heads of damage. In the end, the insurance company defending the claim was ordered to pay a total judgment of $485,972, plus costs.

We see this as a great result for a heartbreaking set of circumstances. Unhappy with having to pay the permanently injured young man the awarded level of compensation, the insurance company is appealing the ruling. We will update on the outcome of the appeal.

Earlier this summer, a New Brunswick Court, in Wawanesa Mutual Insurance Company v. Johnston assessed and awarded damages to the victim of a serious car accident.

The car accident victim is a New Brunswick resident. She and her son were struck by an uninsured driver in 2006. She suffered serious physical injuries as a result of the accident. She was diagnosed with right and left wrist fractures; right pelvic fractures; right hip fractures, right and left tibia fractures and a laceration of the left scalp. She underwent several surgeries as a result of her injuries. It was also determined that she suffered a closed head injury as a result of this accident. She suffered a severe traumatic brain injury.

Lawyers commenced actions on their behalf against their insurance company to recover insurance benefits pursuant to Section D, uninsured automobile coverage of their standard policy. This protects drivers in the event they are harmed by an insured or unidentified driver.

Lawyers presented the expert opinions of the accident victim's doctors. Among the more relevant opinions, her doctors stated:

"At the time of the motor vehicle accident of 2006, [she] was reported by her treating caregivers to be in a state of remission from psychotic symptomatology, and was, at the time, compliant with suggested treatment. Whether or not compliance would have ensued, is also moot, given her previous history of non-compliance, even when "things were going well." Independent living for [her] would have been somewhat precarious, although possible, with close outpatient supervision prior t the accident of 2006."

"...the motor vehicle accident of November 15, 2006 dramatically changed [her] life. ...She has greatly reduced function at this point and requires supervision to ensure that she does not inadvertently harm herself. This may be the situation for the prolonged future or even for the remainder of her life. She will be unable to return to work."

"This woman sustained severe injuries in the accident in question. She had a severe traumatic brain injury. She has been left with residua from this in the form of mental fatigue, slowing of information processing and problems with divide attention. Language is generally intact, calculating ability is intact. She has some difficulties with changes in set and maintaining set. The Wisconsin Card Storing Test showed a number of errors of failure to maintain set....

Her memory is significantly affected, both for verbal and visual information....

There are significant compromises of her functional capacity...."

The victim's lawyers researched many cases across Canada where people were regrettably similarly severely injured. They presented the Court with results of the research to help the judge decide the appropriate quantum of damages.

After hearing the totality of the evidence and submissions, the Judge awarded this unfortunate car accident victim $200,000 for pain and suffering, $40,000 for income loss and $565,570 to contribute to her cost of future care together with her costs and disbursements.

The insurance company was ordered to pay the car accident victim a total award of $805,570.

As a result of another driver's negligence, this lady suffered life-altering injuries. The injuries are permanent. While financial compensation will not heal her injuries, it is the way the Canadian legal system recompense injury victims. This New Brunswick lady hired personal injury lawyers. They did the necessary research and made appropriate submissions to the New Brunswick Court to guide the decision-making process. The circumstances of this case were unfortunate but it is hoped that the Court award will provide this injured lady with the means necessary to continue to treat her injuries and improve her altered lifestyle.