Posts Tagged ‘Marc Spivak’

Thin Skulled Plaintiffs may be able to Collect on Chronic Pain

November 14th, 2011

When someone gets injured in an accident, any claim for damages must stem from injuries that resulted from the accident in question. In Heyward v. Young, a Nova Scotia Supreme Court case decided in 2011, the Plaintiff, who was injured after the defendant driver t-boned his car, suffered from severe migraine headaches, and an MRI of his head post-accident revealed residual scarring to the inferior frontal lobe. At trial, the Defendant produced evidence to support, on a balance of probabilities, the fact that the sustained brain injury had resulted from an unrelated assault on the Plaintiff 15 years prior to the accident.

The Plaintiff’s pre-existing susceptibility to brain injury, making him a “thin-skulled” plaintiff in legal jargon, removed the causation element required to prove that, but-for the motor vehicle accident, he would not have suffered the brain injury. However, the Plaintiff’s migraine headaches, which did materialize after the accident, and developed into long-term chronic pain syndrome, were recognized to be directly attributed to the accident in question. Despite the fact that a pre-existing condition may have exacerbated the chronic pain, the Plaintiff was still awarded a sizeable general damage award, as well as a modest future care award.

Court of Appeal Upholds Damages for Mental Distress Against Insurer

November 4th, 2011

The Ontario Court of appeal in McQueen v. Echelon recently upheld a Jury’s award of $25,000.00 in damages for mental distress arising from the insurer’s improper handling of an insured’s Accident Benefits.

The Court of Appeal confirmed as follows:

…People purchase motor vehicle liability policies to protect themselves from financial and emotional stress and insecurity. An object of such contracts is to secure a psychological benefit that brought the prospect of mental distress upon breach within the reasonable contemplation of the parties at the time the contract was made….Ms. McQueen was entitled to that peace of mind and to damages when she suffered mental distress on breach.

At Devry Smith Frank we carefully consider what the Court of Appeal looks for in a claim for mental distress against an insurer such as: the number of denials, lack of information about reasons for the denials, reliance on inadequate Insurance Examinations, strong evidence of medical need for the benefits and the adversarial approach taken by the insurer in adjusting the file.

Teachers and Schools Beware – Kids are owed a duty of care

November 2nd, 2011

While physical education has been and will continue to be a critical part of grade school, teachers and administrators mustn’t forget their responsibility to care for their students beyond the boundaries of the classroom. In a 2009 Supreme Court of British Columbia case, Hussak v. School District No. 33 (Chilliwack), the court found that a gym teacher had failed to ensure that the injured plaintiff, one of his students, had been adequately trained in a sport that he was forced to participate in as part of the school curriculum. The plaintiff was partaking in a field hockey game, with no prior training in the sport, and was unintentionally struck in the face by another player. The plaintiff suffered a concussion, soft tissue bruising and swelling, and lacerations to several parts of his face. Unfortunately, these injuries persisted for years, and the plaintiff developed a serious chronic pain disorder, which included ongoing migraines, distorted vision, body tremors, muscle aches, and severe chest pain.

The main finding of this case was the establishment of a four-part test for determining whether or not a teacher meets a standard of care threshold:

a) whether the activity was suitable to the age and mental and physical condition of the student;
b) whether the student was progressively trained and coached to do the activity properly and to avoid the danger;
c) whether the equipment was adequate and suitably arranged; and
d) whether the performance, having regard to its inherently dangerous nature, was properly supervised.

The court found that the plaintiff student, having missed all the classes related to field hockey training, lacked the essentials skills necessary to participate in the sport, and that the gym teacher should have prevented him from participating with the class that afternoon.

As negligence on the part of the plaintiff was ruled out, and the injuries were found to be caused by the field hockey incident, the plaintiff was awarded substantial damages for pain and suffering, past and future income loss, and future care costs.

While school yard sports aim to be inclusive, and provide the opportunity for all students, regardless of athletic ability or interest, to participate, schools and teachers must remember their obligation to prevent students from falling behind and suffering the consequences.