Blog – Neinstein Personal Injury Lawyers
When is government liable for car accident injuries?
As we discussed recently, and as most car accident lawyers in Ontario are aware, 2017 was a deadly year on the province’s roads. Statistics released by the Ontario Provincial Police (OPP) indicated significant increases in fatal traffic collisions, particularly those involving transport trucks and motorcycles.
In a statement, the OPP blamed dangerous driver behaviours for the spike in serious accidents, noting that fatal crashes involving distracted driving, speeding, and not wearing a seatbelt had all increased year-over-year. Human error undoubtedly contributes to many accidents, but as car accident lawyers understand, other factors, like poor road design, can come into play. In some instances where poor road design contributes to an injury, the Province of Ontario may be held liable.
Highway 3
Highway 3 in Essex County, Ontario, connects some of Canada’s southernmost municipalities, including Windsor and Leamington. Between 1993 and 2015, a five-kilometre, two-lane stretch of the road has been the site of 11 fatal car accidents, according to the CBC. Local community members, including NDP MPP Taras Natyshak, have been lobbying the province to widen the deadly stretch for years.
“If [the Liberals] really wanted to do it, they would have done it six years ago, eight years ago, 20 years ago,” Natyshak told the CBC. “There’s no project more shovel-ready in the province of Ontario than the expansion and third phase of Highway 3.”
An environmental study of the project was completed in 2006, and design work is well underway, but the project remains in queue for the Southern Highways Program for Planning for the Future, meaning construction won’t begin for at least five years.
In an effort to exert pressure on the province, some survivors of Highway 3 accidents are considering legal action. The risks associated with the stretch of the road are irrefutable, and victims believe the province’s unwillingness to make safety improvements makes it liable for their injuries. If the roadway had been widened, they say, the accidents could have been avoided or, at the very less, might have been less severe.
In an email to the CBC, Transportation Minister Kathryn McGarry promised that the Liberal government remains “committed to widening the remaining two-lane section of Highway 3 between Leamington and Windsor.” Community members are unlikely to be encouraged by the vow, considering the province’s history of inaction on the issue.
If you or a member of your family has been injured in an automotive accident in Ontario, contact Neinstein Personal Injury Lawyers today to arrange a free, no-obligation. Our team of experienced car accident lawyers can help you access compensation for your injuries.
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OPP releases disheartening traffic data
On April 9, the Ontario Provincial Police (OPP) released 2017 traffic data which showed a “dramatic increase” in fatalities from traffic, boating, and snowmobile accidents. Any Ontario personal injury lawyer that represents traffic injury victims understands the potentially devastating impacts of these types of accidents.
The OPP responded to 68,794 traffic collisions resulting in 343 fatalities in 2017; in 2016, 307 people died in 67,450 crashes. Disappointingly, the OPP saw an increase in three of what it calls the ‘Big Four’ causal factors: inattention while driving, excessive speed, not wearing a seatbelt, and alcohol or drug impairment. Twenty-one more deaths were attributed to excessive speed in 2017 than 2016, and 19 more were attributed to inattention. One less death was attributed to drug or alcohol impairment.
Transport trucks were involved in 76 collisions resulting in 91 deaths last year, a ten-year high. Of those 91 fatalities, just 18 were occupants of the trucks, while 76 were in another vehicle and four were pedestrians.
Fatalities among motorcyclists, snowmobilers, and boaters also hit unfortunate peaks last year. Forty-eight motorcyclists were killed on Ontario’s roads, including 27 who were not at fault; both numbers mark ten-year highs.
Twenty-nine snowmobilers died in crashes, the most ever recorded in Ontario. Excessive speed and driver inattention were common factors in these accidents, just as they were in road collisions.
Marine fatalities hit an eight-year high of 31 last year, with many deaths caused by falling overboard while not wearing a life jacket.
Twenty-two people were killed in off-road vehicle accidents, the same number as in 2016.
Somewhat surprisingly given the current state of road safety in the provincial capital, fewer pedestrians were killed on Ontario’s road in 2017 (27) than in 2016 (39).
Not released by the OPP were the number of individuals seriously injured in road, off-road, and boating accidents in 2017. These individuals can seek compensation with the help of an Ontario personal injury lawyer.
“The OPP is saddened and disappointed to see 2017 mark one of the worst years in recent history for fatalities on and off the road,” OPP Commissioner J.V.N. Hawkes said in the release. “As is the case every year, the majority of these deaths were preventable and attributed to poor driving behaviours. Until all drivers respect and observe road, off-road and marine laws that are designed to keep us all safe, these tragic deaths will continue.”
If you or a member of your family has been injured in a traffic accident, contact Neinstein Personal Injury Lawyers today to arrange a free, no-obligation consultation with an experienced Ontario personal injury lawyer. Our team can assess the validity of your claim and help you on your road to recovery.
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Could legal cannabis mitigate the opioid crisis?
Marijuana legalization is a pressing and contentious issue in Canada. From an injury lawyer’s perspective, there are obvious concerns about the impacts of legal cannabis on road safety. We’ve discussed the risks associated with driving while high before, and touched on the complications surrounding accurate and reliable road-side testing.
But legalization isn’t a one-dimensional issue, even for a car accident or personal injury lawyer. Take, for example the many challenges faced by injury victims who suffer from chronic pain. As we’ve written, chronic pain patients are often misunderstood by juries and face an uphill path to compensation. To make matters worse, aggressive prescribing methods have made them disproportionately at risk of falling victim to North America’s opioid epidemic.
Canada is currently the second-largest per capita prescriber of opioid painkillers in the world, and the rate at which these powerful pills are distributed has contributed to a national health emergency. Last year, Canada set a new national record for the number of deaths linked to opioids, with those occurring between January and September surpassing the total number from 2016.
Legal marijuana could be part of the solution. Two American studies published in early April in the journal JAMA Internal Medicine linked the availability of medical and recreational marijuana with lower rates of opioid prescription.
One study, led by University of Georgia researchers Ashley Bradford, David Bradford, and Amanda Abraham, showed that states with medical marijuana laws filled 8.5 per cent fewer daily opioid doses than states without. The gap was even larger – 14.4 per cent – in states with medical marijuana dispensaries.
The second study, written by the University of Kentucky’s Hefei Wen and Emory University’s Jason Hockenberry, linked the passage of medical marijuana laws with a 5.88 per cent reduction in opioid prescription rates, and the passage of recreational marijuana laws with 6.38 per cent reduction.
“Marijuana liberalization may serve as a component of a comprehensive package to tackle the opioid epidemic,” the research duo wrote.
Former British Columbia Health Minister Terry Lake, who is now the vice-president of a marijuana company, recently told Global News that legal marijuana can contribute to easing the opioid epidemic in Canada.
“I’m not saying it’s the answer to the opioid crisis,” Lake said. “I’m saying it’s one of the options we should explore. It’s very promising and deserving of further research.”
With Canada’s tentative date to legalize recreational marijuana just months away, experts of all stripes continue to dispute the potential benefits and harms to society. While road safety worries are absolutely legitimate, the loosening of marijuana laws could be a blessing for injury victims suffering from chronic pain.
If you or a member of your family has suffered from a serious injury, contact Neinstein Personal Injury Lawyers today to arrange a no-obligation consultation with an experienced and understanding injury lawyer. We can help you understand the validity of your claim and guide you on your path to recovery.
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Canadian Seniors Disproportionately Injured in Traffic Accidents
Senior citizens – both drivers and pedestrians – are much more likely to be killed or seriously injured in traffic accidents than younger Canadians. The issue, which is of major concern to personal injury and car accident lawyers, can be linked to a variety of factors, including sub-par pedestrian infrastructure and cognitive decline.
In December 2016, following the death of an 81-year-old woman who was struck by a car in North York, the Toronto Star reported that individuals aged 65 and older accounted for roughly 60 per cent of all pedestrian deaths in Canada’s largest city. A provincial coroner’s report on pedestrian deaths, published in 2012, found that 36 per cent of all pedestrians killed in Ontario were seniors, even though they made up just 13 per cent of the population.
National data from Transport Canada shows that an average of 447 senior citizens per year died in serious car accidents from 2000 to 2015, the most of any age group. Individuals aged 25 to 34 accounted for an average of 379 fatalities per year, the second highest number.
The trend has worsened recently: seniors never accounted for the most traffic deaths in Canada between 2000 and 2007, but accounted for the most traffic deaths in seven of the eight years between 2008 and 2015.
Some traffic safety experts and car accident lawyers believe the trend may be related to Canada’s aging population. If this is the case, we can expect to see many more serious injuries and fatalities in the coming years as the Baby Boomers become senior citizens. As people age, it becomes more likely that serious injuries become fatal injuries.
However, precautionary measures to limit traffic fatalities among seniors can be taken at the state and personal levels. Many safety analysts believe that infrastructure improvements could diminish pedestrian deaths overall, and those involving seniors, in particular. For example, Marie Smith, the former president of the United Senior Citizens of Ontario, told the Star that increased crossing times could reduce injuries.
“The lights aren’t long enough for older people with walkers or even someone in a wheelchair,” she said. “Everybody’s in such a rush that nobody stops to be careful anymore.”
Other suggestions endorsed by safety analysts include reducing speed limits on residential and arterial roads and adding more mid-block pedestrian crossings.
Strategies to reduce injuries among senior drivers are less clear. Some road safety advocates have endorsed increased testing for seniors, while others believe children should initiate talks about ‘driving retirement’ with their elderly parents.
If you or someone you love has been involved in a serious traffic accident, contact the car accident lawyers at Neinstein Personal Injury Lawyers today to learn how we can help.
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Optional accident benefits coverage is a necessity for Ontario’s motorists
In June 2016, the Province of Ontario significantly reduced the automobile insurance benefits available to accident victims. Despite a massive outcry from car accident lawyers and victims’ rights advocates, 58 per cent of consumers were unaware of the changes, according to a survey of 1,000 Ontarians conducted on behalf of the Insurance Brokers Association of Ontario (IBAO). Of the roughly 40 per cent of consumers who did know about the changes, under 20 per cent could describe what they entailed.
Under the old benefits schedule, non-catastrophic injury victims were eligible to receive up to $50,000 in medical and rehabilitation (med-rehab) benefits and $36,000 in attendant care benefits. Today, non-catastrophic injury victims can receive up to $65,000 for med-rehab and attendant care benefits, combined.
The situation for catastrophic injury victims is even more dire. Under the old system they were eligible to receive $1-million in med-rehab benefits and $1-million in attendant care. Today, they may receive a maximum of $1-milllion for medical, rehabilitation, and attendant care, combined.
These are substantial changes that, as car accident lawyers know, can seriously hinder the success of accident victims’ recoveries. Non-catastrophic coverage was essentially cut by $20,000, while catastrophic coverage was cut by $1-million.
However, by purchasing “optional benefits,” drivers today can access equal or greater accident benefits coverage than prior to June 2016. According to the Ontario Trial Lawyers Association (OTLA) Blog, customers can purchase $130,000 of coverage for non-catastrophic med-rehab and attendant care; a combined $1-million of coverage for all injuries; or a combined $3-million for catastrophic injuries, all for a small added investment.
Unfortunately, many Ontarians have not been informed that they are able to purchase optional benefits, just as many customers were unaware of the June 2016 changes to the auto insurance system. In a separate OTLA Blog post, the author insists that following the 2016 benefits cuts, “optional benefits are now a necessity if you drive a car in Ontario.”
“Because accident benefits coverage was slashed by the government in 2016,” the author writes, “the coverage now found in most Ontario auto insurance policies is inadequate and can leave an injured victim without the funds necessary for their recovery.”
If you’ve been injured in an automobile accident, contact the car accident lawyers at Neinstein Personal Injury Lawyers to arrange a free, no-obligation consultation. Our experienced, dedicated team will fight to ensure that you receive the full accident benefits to which you are entitled.
Ontario Passes Precedent-Setting Legislation to Protect Young Athletes
On March 6, the Province of Ontario announced the passage of Rowan’s Law, a piece of “ground-breaking” legislation that aims to protect the province’s young athletes from head injuries and educate coaches, parents, and teachers on the dangers of concussions. The law, which has received enthusiastic backing from Ontario brain injury lawyers, is named in honour of Rowan Stringer, a 17-year-old Ottawa girl who died in 2013 from a head injury in a high school rugby game.
According to a provincial release, Rowan’s Law mandates: an annual review of concussion prevention, identification, and management resources that coaches and educators would be required to engage with prior to registering in a sport; strict removal-from-sport and return-to-sport protocols that ensure athletes are removed from harm’s way and allowed ample time to recover if a concussion is suspected; and a code of conduct for athletes that will minimize behaviours that cause concussions.
To the delight of safety advocates and brain injury lawyers in Ontario, Rowan’s Law is a precedent-setting piece of legislation that places the province in a leadership position. Lawmakers consulted with medical experts, researchers, and members of the Rowan’s Law Advisory Committee, which laid out 21 recommendations for improved concussion protocols in its September 2017 report.
“With this legislation now in place, amateur athletes in Ontario – and the coaches and families that support them – will have the safe sport system that they want and deserve,” said Minister of Tourism, Culture and Sport Daiene Vernile. “Through increasing awareness, and changing conversations on the field, at school and in our homes, Ontario is creating a world class amateur sport system where athletes and Ontarians can participate safely.”
“As Chair of the Rowan’s Law Committee, and on behalf of its members, we are so pleased that Ontario not only has demonstrated its commitment to protecting our young people playing sport, but also set a new standard for concussion prevention and management for Canada,” said Rowan’s Law Advisory Committee Chair and Chief Medical Executive at Sunnybrook Health Sciences Centre Dr. Dan Cass. “I believe that Rowan’s Law will change the culture of amateur sport, where everyone can participate safely and speak up if they or a teammate might have a concussion.”
Rowan’s Law will likely reduce instances of concussion in youth sports in Ontario, which is an important achievement. Unfortunately, brain injuries of other varieties will remain commonplace in the province. If you, a friend, or a member of your family has suffered a blow to the head, contact the brain injury lawyers at Neinstein Personal Injury Lawyers today to learn how we can help.
Toronto’s mayor and former chief planner call pedestrian fatalities a ‘crisis’
In 2016, the City of Toronto established a goal of eliminating pedestrian fatalities and serious injuries within five years. The ambitious initiative was lauded by safety advocates and Toronto personal injury lawyers who had witnessed a troubling rise in motor vehicle accidents involving vulnerable road users.
Nearly two years later, little progress has been made. Despite reduced speed limits, rebuilt intersections, and new safety zones for seniors and school children, the first two months of 2018 were among the deadliest in recent memory. As of mid-March, approximately one pedestrian per week had been killed on the streets of Toronto. During a February panel discussion at the University of Toronto, the city’s former chief planner Jennifer Keesmaat said the situation was approaching a crisis point.
“Our streets are unsafe,” Keesmaat told the CBC. “Children and elderly people … are at risk going about their daily lives because of the design of our streets. It’s something we can change. It’s within our power to change it.”
Mayor John Tory echoed Keesmaat’s remarks less than a week later following the death of an 11-year-old boy in Scarborough.
“We cannot have this carnage continue,” Tory told reporters. “I think when you have deaths taking place like this, that’s a crisis.”
Toronto personal injury lawyers are likely to agree with the mayor’s sentiment, but advocates aren’t convinced that he’s serious about change.
“It’s horrendous. So many people are getting killed it’s hard to keep up,” Michael Black, a member of Walk Toronto’s steering committee, told the Globe and Mail. “John Tory keeps talking about congestion and the message that sends to motorists is our No. 1 … problem is motorists can’t go as fast as they want.”
In other words, Black is accusing Tory of being more concerned about avoiding an “anti-car” label than he is about protecting pedestrians. The accusation is at least somewhat warranted; Tory has been careful to qualify support for road safety measures with vocal opposition to the so-called war on the car. Unfortunately, many experts believe that that war may be necessary to effectively protect other road users.
“It may be time for Mr. Tory to face a difficult truth: Drivers have to slow down,” wrote the Globe and Mail’s editorial board on March 1.
“There’s no sugar coating it: We can only make our streets safer for pedestrians and cyclists when road space is taken away from cars,” added Brian Doucet, an associate professor in the School of Planning at the University of Waterloo in a March 11 opinion piece for the Globe.
Toronto personal injury lawyers know that cars moving at lower speeds are significantly less dangerous to pedestrians. The U.S. Department of Transportation reports that an individual struck by a vehicle moving at 30 kilometres per hour has a 95 per cent chance of survival, while someone struck by a vehicle moving at 60 kilometres per hour will almost certainly die. The numbers are clear; the challenge for Toronto’s municipal government is to enact common-sense policy that protects vulnerable road users.
If you’ve been injured in a car accident, contact the Toronto personal injury lawyers at Neinstein Personal Injury Lawyers today. Our team has decades of experience helping injured Ontarians access fair and reasonable compensation for their injuries.
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Chronic pain victims face difficult path to compensation
Over the course of a career, a motor vehicle accident lawyer will be asked to represent clients with a wide range of injuries. In cases where a person loses a limb or becomes paralyzed, the impacts are obvious. Other cases are more nuanced. For example, many motor vehicle accident victims suffer from “invisible” injuries such as chronic pain, PTSD, or subtle cognitive disfunctions. In these situations, injury lawyers often find it challenging to prove that their clients are seriously impaired as defined by Ontario’s insurance Act.
The Act states that damages for non-pecuniary loss are only owed if the injured individual has died, has suffered “permanent serious disfigurement,” or has suffered “permanent serious impairment of an important physical, mental or psychological function.”
Last month, Law Times’ Shannon Kari wrote about two recent Ontario Superior Court rulings that show how difficult it can be for chronic pain sufferers to access compensation. In Grieves v. Parsons, the plaintiff, a truck driver injured in a motorcycle accident, claimed that his acquired chronic pain prevented him from working. He and his motor vehicle accident lawyer sought upwards of $1-million in damages.
While the judge accepted that Grieves’s chronic pain may prevent him from driving a truck, he was unconvinced that the motorcycle accident was directly to blame. Rather, he concluded that the plaintiff’s preexisting osteoarthritis significantly contributed to the impairment.
In Nadarajah v. Aviva Canada Inc., Justice Patrick Monahan found that the plaintiff’s injuries, while “no doubt unpleasant and perhaps frustrating,” could not be defined as “serious.”
In his decision, Justice Monahan wrote that a physical, mental or psychological function must “play a major role in the health, general well-being and way of life of the particular injured plaintiff” if it is to be considered “important.” He ruled that Mr. Nadarajah’s injuries did not meet this standard.
“Mr. Nadarajah did not explain how the limitations resulting from his accident-related injuries have limited his ability to cook, to do groceries, or to attend social gatherings, none of which would necessarily involve heavy lifting, overhead activity or repetitive or forceful use of the left upper extremity against resistance,” Justice Monahan wrote.
Serious brain or spinal injuries are universally acknowledged as catastrophic events for good reason. However, the serious nature of those injuries should not prevent victims of less traumatic but still devastating afflictions from accessing fair and reasonable compensation.
If you or a member of your family has been injured in a traffic accident, contact a motor vehicle accident lawyer at Neinstein Personal Injury Lawyers today to learn how we can help. Our experienced team will assess your claim and explain your legal options.
Diagnostic test for brain injuries given approval
Brain injuries are a global health issue and a major concern to personal injury lawyers in Ontario. Approximately 10 million people suffer brain injuries each year, including at least 2 million in the United States and as many as 100,000 in Canada. Brain injuries come in all shapes and sizes, from minor concussions to major traumas. While a brain injury lawyer can help individuals with clearly defined traumatic brain injuries (TBIs) pursue civil claims, smaller injuries present challenges.
On February 19, the Associated Press reported that for the first time a diagnostic blood test for TBIs had been approved by the U.S. government. A number of research and development teams are currently studying blood-based tests, which could revolutionize the way large and small brain injuries are diagnosed.
According to the Associated Press, the test works by detecting two proteins in brain cells that tend to enter the bloodstream following a head injury. It is designed to be administered quickly; the proteins, which indicate internal bleeding and other serious afflictions, can be detected up to 12 hours after the injury. Patients who test positive will require a subsequent CT scan to confirm the diagnosis and determine treatment strategies.
The blood test, which was developed by Banyan Biomarkers, doesn’t detect concussions and is unlikely to change the way brain injury victims are currently diagnosed and treated. But its approval will open the door for further innovation and accelerate the maturation of the technology. The hope is that a simple blood test will soon be able to identify concussions and provide insight on treatment options. From a brain injury lawyer’s perspective, quick and accurate diagnoses could make it easier to determine the extent of clients’ injuries and estimate how the injuries could affect clients’ lives.
As Dr. Walter Koroshetz, director of the National Institute of Neurological Disorders and Strokes, made clear to the Associated Press, Banyan Biomarkers’ newly approved test should be treated as a starting point for further development.
“This may be the beginning. It’s not the pot of gold at the end of the rainbow,” he said.
If you or a member of your family has suffered a head injury in an accident, contact Neinstein Personal Injury Lawyers today to arrange a consultation with an experienced brain injury lawyer. Our team can assess the validity of your claim and offer advice on how to proceed. If you choose to retain us, Neinstein will do everything in our power to ensure that you are fairly compensated for your injury.
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Injuries increase as trampoline parks become more popular
Trampoline parks are enjoying a popularity boom. According to the International Association of Trampoline Parks (IATP), there were more than 1,000 trampoline parks open around the world at the end of 2017; in 2009, there were just three. Featuring party rooms, foam pits, and basketball hoops, trampoline parks are now sought-after venues for birthday parties, staff trips, and other group outings. However, more than one personal injury lawyer is now voicing concerns about the safety of the parks.
As trampoline parks have multiplied around North America, so too have personal injuries. American researcher Dr. Kathryn Kasmiure discovered that in the U.S.A., trampoline park injuries jumped from 581 in 2010 to 6,932 in 2015.
“The trend … is alarming,” Dr. Kasmire’s 2016 study reads. “Particularly concerning was the occurrence of severe and debilitating injuries such as spinal injuries.”
Other possible outcomes include brain injuries, shattered or severely broken bones, and serious ligament damage. In rare cases, trips to trampoline parks can be deadly.
This January, 46-year-old Jay Greenwood, a father of two, died at Extreme Air Park in Richmond, B.C. His death has sparked calls for regulation of these sometimes dangerous facilities.
“You don’t need to have professional experience working at these places. Or even to own a place like this,” said Victoria’s Sylvie Gilbert to the CBC. Last April, Gilbert’s eight-year-old daughter broke her back at a trampoline park.
“I just hope that this is going to push the municipal and the federal bodies to start to regulate these places, because they are very dangerous,” she said.
Currently, individuals who have been injured at trampoline parks have few options. While seriously injured accident victims should immediately contact a personal injury lawyer for guidance, many trampoline parks distribute liability waivers that substantially limit the duty of reasonable care they owe to their patrons.
In Ontario, liability waivers are generally enforceable, meaning civil lawsuits launched against trampoline parks are unlikely to succeed. However, recent changes to the province’s Consumer Protection Act (CPA) seek to prevent waiver providers from contracting out of the ‘implied warranty that all services be provided within a “reasonably acceptable quality,”’ AdvocateDaily.com reports. While no case to date has established a clear definition of “reasonably acceptable quality” for trampoline parks, the new CPA’s new provisions may lead to improved consumer safety in the future.
In the meantime, a good personal injury lawyer will advise clients to carefully read any liability waiver they sign, and to exercise caution when visiting a trampoline park.
If you or a member of your family has suffered a serious injury, contact Neinstein Personal Injury Lawyers today to speak with an accomplished personal injury lawyer. For the past 45 years, our team has represented injured clients from across the Province of Ontario. Call us today to learn how we can help.
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