Wagners Serious Injury Lawyer Blog

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.

Earlier this summer, the Court of Nova Scotia released a decision in Hayward v. Young. The case stemmed from an April 5, 2003 car accident. The plaintiff was driving in Halifax when he was without warning T-boned at the driver's side door by another vehicle. He got out of the vehicle with some difficulty as the door was crushed in and the window shattered.

The collision caused him to strike his head against the window and he was subsequently disoriented and nauseous. In the days that followed, the accident victim became stiff and sore. He was going through a significant amount of pain and had difficulty moving his neck. The neck pain later developed into persistent migraine headaches.

In 2006, he underwent an MRI of the brain, which revealed some residual scarring to the inferior frontal lobe.

The Plaintiff commenced a lawsuit for the car accident against the driver who caused the accident. He asked for compensation for the physical injuries and also alleged that he had suffered a brain injury as a result of the car accident.

At trial, the defendant was represented by his insurance company. He admitted being at fault for the accident but denied responsibility for a brain injury.

As a teenager, the Plaintiff was assaulted on a sidewalk in downtown Halifax. He remained unconscious for a half hour. Medical records reveal that four days later he still could not remember the event. The insurance company's lawyers argued that if the Plaintiff had sustained a traumatic brain injury, it was as a result of the assault many years earlier, and not the car accident.

The Plaintiff himself testified that following the accident he had memory problems and found himself to be moody, irritable, short of temper, and chronically tired. He also said that he had difficulty meeting performing work tasks and would miss project time lines.
In determining the test to be used in assessing causation, the Judge cited the following words from the Supreme Court of Canada:

Much judicial and academic ink has been spilled over the proper test for causation in cases of negligence. It is neither necessary nor helpful to catalogue the various debates. It suffices at this juncture to simply assert the general principles that emerge from the cases.

First, the basic test for determining causation remains the "but for" test. This applies to multi-cause injuries. The plaintiff bears the burden of showing that "but for" the negligent act or omission of each defendant, the injury would not have occurred. Having done this, contributory negligence may be apportioned, as permitted by statute.

This fundamental rule has never been displaced and remains the primary test for causation in negligence actions. As stated in Athey v. Leonati, at para. 14, per Major J., "[t]he general, but not conclusive, test for causation is the 'but for' test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant". Similarly, as I noted in Blackwater v. Plint, at para. 78, "[t]he rules of causation consider generally whether 'but for' the defendant's acts, the plaintiff's damages would have been incurred on a balance of probabilities."

The "but for" test recognizes that compensation for negligent conduct should only be made "where a substantial connection between the injury and the defendant's conduct" is present. It ensures that a defendant will not be held liable for the plaintiff's injuries where they "may very well be due to factors unconnected to the defendant and not the fault of anyone": Snell v. Farrell, at p. 327, per Sopinka J.

Various medical doctors testified on the nature of the plaintiff's injuries and their views on causation. After hearing the expert opinions, the court ultimately concluded that the plaintiff had not proven that "but for" the accident he would have no brain injury. The Court found that the prior assault was deemed to be the most likely explanation for the scar tissue shown in his 2006 MRI.

However, the court did accept that Mr. Hayward suffered soft tissue injuries that developed into a chronic pain problem as a result of the accident. The Court awarded $120,000 for pain and suffering. In addition, the Court awarded the Plaintiff all his out-of-pocket expenses, $10,000 for future care, plus interest on all the awards.

It is welcome news to victims of car accidents, and other cases of negligence, in Nova Scotia, New Brunswick and PEI that the Supreme Court of Canada recently denied leave to hear the Defendant appeal of the appellate decision in Bradley v. Groves. The Court of Appeal in that case made it easier for individuals to recover damages for "indivisible" injuries. Where an accident victim suffers injury in multiple events (like two different car accidents) and it is impossible for a judge to separate the injuries arising from the events, the victim is said to have an "indivisible" injury. In the car accident example, the acts of two negligent defendant drivers will have combined to create an injury that is not attributable to one particular defendant. Whereas, in a divisible injury case, multiple parties will contribute only to specific discrete injuries and each party is only responsible for the harm they personally cause.

Victims of an "indivisible" injury deserve compensation. The seminal question is in the case of multiple accidents is: which negligent party liable for paying the damages? Bradley v. Groves is a welcome decision in that it makes it easier for accident victims to recover damages for "indivisible" injuries. Summarized, the Court of Appeal ruled that if multiple parties contribute to one indivisible injury they are all 100% responsible for the indivisible injury regardless of the fact that each party only contributed to causing the injury to some degree. The Court confirmed that if two or more incidents caused an indivisible injury the victim can sue any of the parties responsible for causing the harm and recover the whole of the loss.

The plaintiff in Bradley v. Groves was involved in two car accidents several months apart. She claimed damages against the driver who caused the first accident. His insurer argued that the plaintiff's ongoing injuries were the result of the second accident. After hearing all the evidence, the judge was unable to parse out to what degree each accident had injured the plaintiff. He found that she had sustained an "indivisible" injury. Stemming from the finding, the judge ordered that the first defendant pay the entirety of the plaintiff's damages. On appeal, the Court found no error in this logic, stating:

[32] There can be no question that Athey requires joint and several liability for indivisible injuries. Once a trial judge has concluded as a fact that an injury is indivisible, then the tortfeasors are jointly liable to the plaintiff. They can still seek apportionment (contribution and indemnity) from each other, but absent contributory negligence, the plaintiff can claim the entire amount from any of them.

[33] The approach to apportionment in Long v. Thiessen is therefore no longer applicable to indivisible injuries. The reason is that Long v. Thiessen pre-supposes divisibility: Long requires courts to take a single injury and divide it up into constituent causes or points in time, and assess damages twice; once on the day before the second tort, and once at trial. Each defendant is responsible only for their share of the injury and the plaintiff can recover only the appropriate portion from each tortfeasor.

[34] That approach is logically incompatible with the concept of an indivisible injury. If an injury cannot be divided into distinct parts, then joint liability to the plaintiff cannot be apportioned either. It is clear that tortfeasors causing or contributing to a single, indivisible injury are jointly liable to the plaintiff. This in no way restricts the tortfeasors' right to apportionment as between themselves under the Negligence Act, but it is a matter of indifference to the plaintiff, who may claim the entire amount from any defendant.

[35] This is not a case of this Court overturning itself, because aspects of Long v. Thiessen were necessarily overruled by the Supreme Court of Canada's decisions in Athey, E.D.G., and Blackwater. Other courts have also come to this same conclusion: see Misko v. Doe, 2007 ONCA 660, 286 D.L.R. (4th) 304 at para. 17.

[36] It may be that this represents an extension of pecuniary liability for consecutive or concurrent tortfeasors who contribute to an indivisible injury. We do not think it can be said that the Supreme Court of Canada was unmindful of that consequence. Moreover, apportionment legislation can potentially remedy injustice to defendants by letting them claim contribution and indemnity as against one another.

[37] We are also unable to accept the appellant's submission that "aggravation" and "indivisibility" are qualitatively different, and require different legal approaches. If a trial judge finds on the facts of a particular case that subsequent tortious action has merged with prior tortious action to create an injury that is not attributable to one particular tortfeasor, then a finding of indivisibility is inevitable. That one tort made worse what another tort created does not automatically implicate a thin or crumbling skull approach (as in Blackwater), if the injuries cannot be distinguished from one another on the facts. Those doctrines deal with finding the plaintiff's original position, not with apportioning liability. The first accident remains a cause of the entire indivisible injury suffered by the plaintiff under the "but for" approach to causation endorsed by the Supreme Court of Canada in Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333. As noted by McLachlin C.J.C. in that case, showing that there are multiple causes for an injury will not excuse any particular tortfeasor found to have caused an injury on a "but-for" test, as "there is more than one potential cause in virtually all litigated cases of negligence" (at para. 19). It may be that in some cases, earlier injury and later injury to the same region of the body are divisible. While it will lie for the trial judge to decide in the circumstances of each case, it is difficult to see how the worsening of a single injury could be divided up.

The only possible downside to the benefits of Bradley v. Groves is this: If you suffer an indivisible injury and receive compensation for it from one negligent person a subsequent defendant may be able to reduce his/her liability by the amount of the previous settlement or judgement.

This drawback highlights the importance of speaking to an experienced lawyer prior to settling any claim for damages with an insurance company.

Car accidents, slip and falls and medical errors are daily occurrences in Nova Scotia, New Brunswick and P.E.I. They are often the result of someone's negligence and the victims of such incidents will usually suffer injuries of some sort.

Tragically some will suffer injuries of a catastrophic nature. Some of these severe injuries can include brain damage, spinal cord injuries, quadriplegia, and birthing damage like cerebral palsy.

Victims who suffer such injuries as a result of another's negligence are, under law, entitled to compensation for the "pain and suffering" they will endure over the course of their lifetime. Such awards are referred to as "non-pecuniary damages" and are intended to compensate the victim for the loss of enjoyment of life he or she will go through as a result of the debilitating injury.

The monetary evaluation of a victim's pain and suffering cannot be done using a calculator. The evaluation is a philosophical one. While understanding that no amount of money will adequately compensate for a catastrophic, debilitating injury, judges and juries are nonetheless tasked with making the assessment. Logic says that the greater a person's suffering, the greater the damages. However, this is not the case.

In 1978, the Supreme Court of Canada in the seminal case of Andrews v. Grand & Toy adopted as the appropriate award in the case of a young adult quadriplegic, the amount of $100,000 in general damages. The Court stated that this should be regarded as an upper limit of non-pecuniary loss in catastrophic cases (later, in In Lindal v. Lindal, the Supreme Court of Canada confirmed that this cap amount should be allowed to grow with inflation). Presently, the cap is a little over $300,000.

On the surface, this may sound like a lot of money. However, for a young man who is rendered paralyzed in a car accident and who has to spend the rest of his life in a wheelchair, or a young girl who suffers brain damages as a result of a doctor's negligence, this amount is small consolation.

The imposed upper limit has been the subject of much criticism from the members of the public, lawyers and various lower courts, particularly in the context of jury awards. It is felt by many that it is time for the Supreme Court of Canada to revisit the "upper limit".

The 2006 case of Lee v. Dawson presented a good opportunity. The plaintiff in that case was a 17 year old boy who was injured in a car accident as a result of another driver's negligence. As a result, he sustained permanent brain injury which caused severe depression, a permanently impaired psychological growth and a facial disfigurement. After hearing all of the evidence, a jury of his peers awarded him $2 million dollars for his pain and suffering. This was reduced by the judge to the "upper limit". The boy appealed and advanced the following arguments:

(i) The language used to describe the rough upper limit in the trilogy referred to the rough upper limit not as a strict rule of law, but as a guideline, the purpose of which was to set a "rough upper parameter" on non-pecuniary loss;

(ii) Time and judicial experience with the rough upper limit have demonstrated that it has been converted into a strict rule of law, which is a role that ought to have been left to the legislature. The fact that the guideline has been converted into a strict rule of law is demonstrated by the fact that since the trilogy, no court has awarded or upheld a non-pecuniary award that exceeds the guideline amount;

(iii) Twenty-five years have passed since the trilogy set out the upper limit. The policy reasons that justified its adoption no longer exist, and the continued imposition of the rough upper limit is not justified;

(iv) In the trilogy, the Supreme Court noted that the possibility of having an extravagant claim was higher with respect to non-pecuniary damages because of the difficulties with quantification of the injuries for which non-pecuniary damages compensate. In the plaintiff's submission, difficulty in quantification does not relieve the court of its obligation to determine the issue;

(v) In the trilogy, the Supreme Court was concerned that non-pecuniary damages might be awarded on the basis of improper considerations such as sympathy for the plaintiff, a desire to punish the defendant, or a perception of the defendant's "deep pockets". The plaintiff submits that a solution that is more rationally connected to this potential problem than an upper limit is a jury instruction that warns of the impropriety of these considerations;

(vi) The Supreme Court in the trilogy expressed concern that non-pecuniary awards were increasing but that conclusion was not arrived at on the basis of any empirical evidence. Subsequent studies have demonstrated that the notion of sky-rocketing non-pecuniary awards is a false perception;

(vii) A further policy consideration that was contemplated in the trilogy was that pecuniary awards provide the plaintiff with full compensation, and non-pecuniary awards should, therefore, be modest. The plaintiff argues that that conclusion assumes perfect compensation with respect to other heads of damage, and ignores other costs that might impair the ability of pecuniary awards to provide perfect compensation. Additionally, each head of damages is intended to address a specific loss, and non-pecuniary losses are not unique in this regard. The amount of non-pecuniary loss that is suffered is not contingent on the pecuniary losses the plaintiff has sustained;

(viii) In the trilogy, the Supreme Court was concerned with the high social impact of high non-pecuniary awards. It highlighted increased insurance premiums as an example. The plaintiff submits that again, the Court made an assumption in the absence of evidence capable of supporting it;

(ix) The rough upper limit disregards juries, and the importance of juries outweighs any hypothetical benefits that the guideline might bestow. The plaintiff argues that the jury is the only trier of fact capable of keeping up with the rapid pace of social, economic and technological change in our society. The imposition of the rough upper limit precludes juries from addressing these questions, with the result that the values of the community, as represented by the jury, are ignored. Moreover, the limit forces this Court to apply different standards to low jury awards and high jury awards. When reviewing a low award, the Court of Appeal applies the palpable or overriding error standard, on the assumption there is some evidentiary basis for the low award whereas a high award is reviewed on the comparative approach, thus ignoring the deference which ought to be shown to the factual findings of juries;

The Court of Appeal found these arguments compelling but stated that they were not in a position to overturn the upper limit imposed by the Supreme Court of Canada. When the accident victim asked for his case to be heard by the Supreme Court of Canada, he was refused.

It is difficult to reconcile the deference Judges and Appellate Courts must give to a jury's decision with a rule that automatically replaces their award if it's deemed too high. This serves to undercut the basic value of the jury.

What good is a body that supposedly uniquely qualified to assess the damages suffered by an injured victim (because they are members of the victim's community) when their award is subsequently reviewed and modified by judges (who are usually not members of that community)?

The lawyers at Wagners have seen first hand the prejudice caused by imposing an upper limit the damages that can be awarded to a severely accident victim. It is believed that with time, progress will be made and the law modified such that it can be better reflective of community values. In today's society, with rising athlete salaries and CEO bonuses, the community conscious (reflective in a jury award) would award a far greater sum of money than $300,000 for a young disabled victim of a tragic accident. It is time for the Courts to appreciate this change in the community conscious and get ride of, or raise, the upper limit on general damages.

After polluting the air, soils and waters of Sydney for decades, despite their best efforts to deny the pollution victims access to the Courts, the Canadian and Nova Scotian Governments will have to face the merits of the class action against them after all. This is important for the pollution victims and vital to the development of environmental class actions in Canadian law.

On Wednesday, July 6, 2011, the Honourable Justice John D. Murphy rendered his oral decision in relation to Wagners' motion to certify the proposed class proceeding concerning the contamination caused by the operation of the Steel Plant and Coke Ovens facilities which were located in Sydney, Nova Scotia.

Wagners, in cooperation with Siskinds LLP who are based in London, Ontario, are pleased to advise that the decision was in favour of certification of the class action. This monumental decision recognizes that the Sydney Tar Ponds class action grants access to justice for those impacted the pollution caused by the operations of the Governments of Canada and Nova Scotia.

Recognizing that there are merit-related issues which many people in Sydney share in common against the defendants, the class action will allow similarly situated individuals to have their cases heard together at one time. Access to justice, judicial economy and behaviour modification are the cornerstones of class proceedings and the decision in this case is indeed a significant victory for the many individuals who have been wronged by the actions of others and who have common issues and causes of action against the defendants.

The class proceeding, originally filed by Wagners Law Firm in March of 2004, has gone through numerous court motions, appeals, examinations, discoveries and other initiatives and refinements over the last 7 years. The action was launched on behalf of a class of people who live or have lived in the neighbourhoods immediately surrounding the site of the Sydney steel plant, former coke ovens operations, and Tar Ponds. Neila Catherine MacQueen, Joseph M. Petitpas, Ann Marie Ross, and Kathleen Iris Crawford - all life-long residents of the Whitney Pier or Ashby areas are the Representative Plaintiffs of the Classes.

The action seeks compensation for property damage, for funds to establish a medical monitoring mechanism to monitor the risks posed by the toxic emissions and compensation for the nuisance caused to the residents. Raymond F. Wagner, of Wagners, and C. Scott Ritchie, Q.C., of Siskinds LLP, are Co-Counsel for the residents of Sydney who have sought justice and redress for so long.

The Representative Plaintiffs and the Class Members will still need to prove their case at the common issues trial. However, the successful certification decision now allows those individuals who have the same or a similar case to be heard together at one time. Procedurally, certification of a proposed class proceeding is a significant factor in facilitating the resolution of the lawsuit. A successful certification will also provide access to justice to those who could not afford to seek justice on their own and it may also serve as a deterrent for future unlawful behaviour, spoiled environments and harsh government actions.

The oral certification decision is quite detailed and written reasons may follow. If you have an interest in learning more about Justice Murphy's decision, which was streamed live over the world wide web from the Law Courts in Halifax, it has been archived as Session #22 on the Nova Scotia Court's website and may be viewed at the following url:

http://www.courts.ns.ca/nssc_webcasting/nssc_video_archives.htm

Hundreds of people across Canada have sustained tendon injury as a result of taking a popular prescription medication called Levaquin.

Levaquin is a prescription antibotic generally prescribed for the treatment of numerous bacterial infections. Many people use Levaquin to help combat ear infections, bronchitis, pneumonia and chlamydia. Levaquin is a fluoroquinolone antibiotic. It is concentration-dependent, so bacteria are killed most efficiently when the right amount of medicine is absorbed into the body.

Levaquin is the most prescribed fluoroquinolone antibiotic in the world. The drug is a product of Johnson and Johnson. It was approved by Health Canada in 1997 for the treatment of bacterial infections in adults.

Since that time, a growing number of injuries have been reported. In fact, over 450 reports of injury have been submitted to Health Canada in association with Levaquin. Many of these complaints relate to tendon ruptures and related injuries. The FDA has received notice of even more complaints. According to the FDA database: at least 262 reported case of tendon ruptures have been reported, 274 cases of other tendon disorders, 259 cases of tendonitis, and 61% of these tendon ruptures were caused by Levaquin.

Although prior epidemiological studies indicated that Levaquin was associated with an increased risk of tendonitis and tendon rupture, the drug manufacturers chose not to adequately warn the public and the consumers of this risk. Ultimately, they were forced to. On July 8, 2008, the FDA ordered the manufacturers to add a Black Box warning to Levaquin. A Black Box warning is the strongest warning available for prescription drugs. These blackbox warnings apply to pills, tables, capsules and injectable formulas. The FDA also required that a guidebook be provided to patients warning about the possible side effects.

A black box warning is a type of warning that appears on the package insert for prescription drugs that may cause serious adverse effects. It is named for the black border that usually surrounds the text of the warning. A black box warning will typically indicate that medical studies reveal that the drug carries a significant risk of serious or even life-threatening adverse effects.

A black box warning is the most severe and urgent warning possible. Through its mandatory black box warning, the FDA declared that the evidence suggested that use of Levaquin could lead to tendon rupture and other similar injuries. The FDA also claimed that these types of injuries could lead to extensive surgery to repair.

This type of warning was necessary because the manufacturers and distributors of Levaquin had previously decided to "hide" any caution within the small print of an exceedingly long Levaquin label. Compared to the severity and probability of the injuries, this was felt to be an inadequate warning to both doctors and patients.

Patients and their doctors must be able to rely on drug manufacturers to provide fair and adequate warnings on any safety issues associated with the use of the drug. It is only when all risks are sufficiently disclosed that a patient can make a proper determination of whether to take the drug.

In the pharmaceutical business, sometimes full disclosure will take a back seat to the pursuit of higher profits. When this happens, the patients and consumers suffer. Wagners Law Firm has commenced a class action lawsuit against the manufacturers and distributors of Levaquin. The class action seeks to include all Canadians who have been harmed by the drug and the defendants' choice to provide inadequate warnings in the face of known risks.

The purpose of the class action is two-fold: provide an efficient means of providing justice for those wronged by the wrong-doings of the pharmaceutical companies and promote behaviour modification by holding these companies accountable.

Civil litigation can be costly and time consuming. These costs can make civil justice unaffordable to many victims injured in car accidents, medical malpractice, slips and falls, etc. Parties to civil litigation are obligated to disclose all relevant documents. The more that a party is required to produce, the more costly and time consuming the litigation will be. Insurance companies understand this and it is not uncommon for them to demand production of large volumes of materials with the effect of increasing costs to injured victims (and making access to justice inaccessible). Courts in Nova Scotia have routinely allowed this to take place. Insurance companies were allowed to go on "fishing expeditions". Production would be ordered so long as the materials produced may be helpful. Often times, injured victims - at their own cost - would have to produce materials that ultimately had no relevance. This approach drove up the cost of litigation and mainly benefited insurance companies.

Thankfully, change is coming. A judge in a recent slip and fall case ordered that the injured victim produce materials that would allow the defendant to go on a 'fishing expedition" in hopes of finding something that may be relevant. The lawyers at Wagners appealed this decision to the Nova Scotia Court of Appeal and were successful.

In a seminal decision released early April 2011, the Court of Appeal reined in the disclosure obligations of parties in civil litigation. No longer do injured victims - at their own cost - have to disclose things that may ultimately be irrelevant. From now on, only absolutely relevant materials have to be produced. "Fishing expeditions" are no longer permitted. The Court of Appeal accepted Wagners' argument and found that the restricted disclosure requirements will save parties time and expense.

The importance of a judicial system that fosters access to justice cannot be overstated. The lawyers at Wagners are proud to be at the forefront of a change in the law; a change that will result in victims, injured as a result of someone's negligence, receiving justice and compensation quicker and at less cost to themselves.

A link to the decision can be found here:

http://www.canlii.org/en/ns/nsca/doc/2011/2011nsca32/2011nsca32.html