Blog – Neinstein Personal Injury Lawyers
How to make a claim against uninsured drivers
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You sit in the driver’s seat of your car, buckle up your seatbelt, adjust your mirrors and insert the key into the ignition. In turning that key and pulling out onto the road, hopefully you are signalling that you are legally able to drive in Ontario.
Before you can take your car for a spin on Ontario roads, you have to have a valid licence and licence plate, a permit stating the owner of the vehicle (likely you) and an insured car. The Compulsory Automobile Insurance Act is the Ontario law stating that all vehicles on the roads must be insured. According to our province’s website, if a driver is caught without insurance, they can be fined up to $25,000 on the first offence. If the driver continues to drive without insurance, they can be fined $50,000 the second time around and have their licence suspended and the vehicle impounded.
Aside from the fines though, you drive insured so that you are protected in case of an accident. Consider the accident benefits that you will most likely need if you get in a collision. Your benefits will be provided by your insurance company and they will get you medical treatment and income replacement depending on how severe your injuries are. Then there is “Third Party Liability”. This is when the person who is not at fault has the right to sue the driver who did cause the collision. When your benefits from your company don’t cover you for everything you need, you can get additional compensation this way. Depending on how serious your injuries are, this might include economic loss. Every province in Canada has rules and works differently. In Ontario, you can benefit from both the accident benefits as well as the “Third Party Liability”.
If you are making a claim, your written declaration proving your loss needs to be submitted within 90 days (usually) of the accident. Ontario drivers that don’t have insurance cannot be reimbursed for their damages. Under your insurance policy, there is something called “Mandatory Uninsured Motorist Coverage”. This is what you will need to refer to if the other vehicle in the accident is not insured and if the driver of that vehicle was the one who caused the collision. You must be able to identify the driver first. The golden rule here is that you can collect only to the extent that you were not at fault. In other words, if you were 30 per cent responsible for the accident, you would only be able to collect 70 per cent of the costs of damages.
The personal injury and accident lawyers at Neinstein Personal Injury Lawyers have been handling accident injuries for clients throughout Ontario for over 45 years. We know how to get you what you need after you have been in an accident. We understand the impacts injuries can have on your life and know how to help you. Call us at 416-920-4242. Set up a free consultation and come talk with us.
Is your child’s daycare licensed?
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This summer we wrote about negligent supervision of children after a two year-old died at a Vaughan daycare. Since then, more has come out about this case.
To refresh your mind on what we told you:
Not all unlicensed daycares are bad and it’s not illegal to run one a daycare without a license in Ontario. A responsible child care provider running this kind of service has to take care of a maximum of five children under ten not including their own kids. It doesn’t matter how many staff they have employed. Since these daycares are not registered, the government doesn’t check that they are meeting provincial standards unless someone files a complaint. Parents have to be mindful of this when looking for a safe place to send their child during the hours when they have to be apart. If a daycare is licensed, The Ministry of Education visits yearly.
This makes the licensed centres seem like the safest choice. But the safe choice isn’t exactly feasible for most parents. Spots are so limited that only 20 percent of children under the age of 12 have access to this kind of care. Even if they are, cost can be an issue (21,000 Torontonian parents are waiting on subsidies). The bottom line here is this: parents know their options but they often don’t get their first, second, or even third choice. Many just end up settling.
Unlicensed Ontario daycares have been a subject of scrutiny since the deaths of three Toronto children in the past three years. Duy-An Nguyen died in January of 2011 allegedly from a head trauma. This summer, Allison Tucker and Eva Ravikovich also died in unregulated daycares.
More about Eva’s case has surfaced since we wrote about the case in August. As is reported in The Globe and Mail, the Vaughan house where she was cared for also had 35 other children registered and was found to have health hazards and unclean conditions. Garbage and dirty diapers were left in the kitchen and listeria was found in three different foods. The hand washing stations were reported to be inadequate. On top of this, there were 14 dogs in the house.
Unsurprisingly, the parents are involved in a lawsuit. They are suing the daycare and The Ministry of Education for $3.5 million. According to a statement from Liz Sandals, Minister of Education, between January 2012 and July 12, 2013, there were 448 daycare complaints. Of these, 25 were not followed up with a site visit. This includes four out of five complaints about the Vaughan daycare.
The personal injury and accident lawyers at Neinstein Personal Injury Lawyers have been handling all types of injuries and wrongful death cases for over 43 years including those arising from negligent supervision of your children. We understand the impacts injuries can have on you and your family’s life and we know how to help you. Call us at 416-920-4242. Set up a free consultation and come talk with us.
Head injuries
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Our head is the director of everything we do. It is the main conductor of every body movement, every twitch, every thought and every word we speak. The head injury is probably the injury we are most scared of, and rightly so – without the full use of our brains our personality, movement, voice and ability to ponder would all be compromised. We should be extra careful to always protect ourselves against hurting our heads, but sometimes accidents happen anyways.
The high risk group for head injuries are people between the ages of 15 and 24 who either drive a motorized vehicle, play sports, or ride a bike. Men are twice more likely to get a brain injury than women. The most vulnerable area of our heads is also where our brain’s most fragile region is. It’s the prefrontal cortex which is just behind the forehead. Damaging this area will severely impact the ability to process information, remember, concentrate, problem solve, and learn.
Children and teens also have been seen to suffer frequently from head traumas. The causes: playground falls, bicycling, and playing rough sports. Falls are the most common cause of playground injuries and unfortunately, these falls during recess or after-school playtimes sometimes result in death. About 75 percent of deaths from playground injuries came from brain trauma. Close to half a million kids ages 14 and under are seen in U.S. emergency rooms for brain injuries each year. A recent Reuters report said that that there was an unusually high amount of students between grades seven and 12 who reported having suffered from a head trauma injury, about 20 percent. (8,900 students were surveyed).
As far as prevention goes though, there is good news. Ontario adopted a law forcing all cyclists ages 17 and under to either wear a helmet, or pay a fine. Since this law was introduced in 1995, the number of bicycle related fatalities for this group decreased 52 percent.
Apparently, gender and age are both have a say in the outcome of a brain trauma. Girls under 10 are four times more likely than boys to die of a severe head injury and as men and women enter early adulthood, men still have an advantage: higher testosterone levels protect the brain. However, as older age sets in, women are twice as likely to survive a serious brain injury.
If you think you have a brain injury, you should see a doctor. Signs of brain trauma could be dizziness, confusion, vomiting, loss of consciousness, ringing in the ears, sleeping problems, and others. These signs should not be taken lightly. Serious head injuries can alter your personality and cause depression and sometimes aggressive behaviour.
If you have had an accident and are now coping with a brain injury, your life might have been significantly changed. Neinstein Personal Injury Lawyers are here for you and have been handling all types of injuries for over 40 years. We understand the impacts they can have on you and we can help fight your case. Call us at 416-920-4242. Set up a free consultation and come chat with us.
Medical negligence
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If a doctor or medical care worker’s negligence causes you injury, they can be held liable. As is the case with any injury, you can get compensation for lost earnings, medical or other expenses related to your injury, pain and suffering, and loss of the enjoyment of your life.
Proving that a doctor has been negligent in caring for you can be complicated in the Canadian healthcare system. Generally, the rules are this: a doctor is negligent if he or she fails to give you the care that any reasonable doctor would have provided. A hospital can also be found to be negligent. They are responsible for providing up-to-standard care, employing competent staff, making sure that their staff are doing their jobs, and preventing infection from other patients.
Those are the overall responsibilities of doctors and health care workers. But there are still common malpractice mistakes. Negligence and failure to get consent are perhaps the two most frequent issues.
Negligence is the broad term that covers failing to: tend to a patient, make a diagnosis, communicate with other physicians, make referrals, or report abuse. If a doctor exercises poor judgement in your case but should have known better, they might be negligent. A doctor can’t claim ignorance in a situation where there were clear steps that should have been taken – and would have been taken by any other doctor— but for whatever reason, were not. For example, if you come in with a complaint and a doctor ignores it or doesn’t order the right tests or give you a proper check, this is negligence. However in medicine, there is still room for error. If a doctor follows all the procedures necessary and misjudges something, this is not malpractice but simply an error.
Failing to get consent or properly inform a patient of a procedure or medical plan is also malpractice. A person must be told about their condition and the details of the proposed treatment. This includes providing the patient with knowledge of the risks that go with the procedure and other options that they may want to consider. When informing them about the risks, a doctor has to include to risks that are most probable. Say a person goes to the hospital and needs an immediate surgery. Before being taken to the OR, their surgeon has to explain what the surgery is for, why they need it, and give them a basic understanding of what will happen during the operation. The patient will then have to confirm that they understand this procedure and that they give consent before the surgeon can go ahead.
The personal injury and accident lawyers at Neinstein Personal Injury Lawyers have been handling all types of injuries for over 40 years including injuries from negligent medical workers. We understand the impacts injuries can have on your life and we know how to help you. Call us at 416-920-4242. Set up a free consultation and come talk with us.
Social media in litigation: A follow up
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The rules on using social media in courts are clearly defined but there is still room left for moral quandary. The key indicators on whether your delving into Pandora’s Box of Facebook and Twitter messages is justified are: do you have knowledge that there is information on there that directly relates to the case and will sifting through this person’s account do more harm than good?
With all rules considered, when is it appropriate to barge into the plaintiff or defendant’s social accounts and at what point can this be considered just plain and simple snooping?
We told you your Facebook and Twitter accounts can be considered by the judge and used against you since after all, it’s great evidence and information that you have chosen to post on the internet. However, we also told you that it can only be used if it’s relevant. The Litigator story outlined a case that illustrates this rule well. In the 2012 Stewart v. Kempster case, there was debate on whether or not the plaintiff’s accounts should be used— in particular, photos from recent vacations. The plaintiff had suffered an injury and, as is the case with several personal injury lawsuits, part of her case was the loss of enjoyment of life.
The issue was whether or not to use her vacation photos as evidence against her claim. Upon reviewing the photos though, the judge saw her walking, sitting, or leaning and never doing anything demanding of her body. He decided that the photos would have been relevant had she been physically exerting herself like rock climbing or skiing (i.e. things a badly injured person couldn’t realistically do). He decided her Facebook was not useful in disproving her case and therefore irrelevant.
We told you that your Facebook and Twitter is inherently providing online documentation of your lives as they unfold. This is an incredibly powerful tool in court. How could you just ignore that altogether? The golden rule to consider is if the privacy of the account holder is more important than the probable value of the evidence. If the user has restricted access to their account and applied strict privacy settings, they are showing that they protect their own privacy. If they haven’t bothered to make their content private at all, can they really claim to have a privacy issue?
The Litigator brings a crucial argument to this conversation. It says that action online should be justified only if the offline equivalent is widely considered appropriate and if it follows the reasonable expectations of past eras. For example, going through inboxes, news feeds and message threads is equivalent to going through a filing cabinet which wouldn’t be done. Furthermore, combing through correspondence online is the same as demanding to go through every piece of personal mail since the accident. This would not have been done in past eras, so why should we do it now when only the platform has changed?
Our means of communication has significantly shifted onto the internet. Before we decide whether or not to hack into these sources, consider whether or not this shift should indicate a change in ethical values. Consider whether or not you know that there is useful information or if you are just participating in a fishing expedition.
What is an e-trial?
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Lately there has been some buzz about the “e-trial”. So, what is it exactly? It is a trial where technology is employed in order to make the process easier, quicker, and more efficient. The amount of technology used or the type of equipment installed depends entirely on the judge, the lawyers, and the case at hand. It might be that lawyers use laptops and monitors to show documents to the judge and witness, or it could be that documents and/ or evidence is received and stored electronically.
Other trends in e-trials are entering exhibits, using digitally recorded testimonies, keeping court records on laptops, accessing the internet, producing real-time transcriptions, or hyperlinking transcriptions, testimonies or exhibits. Currently there is no single model, thus all litigators involved are permitted to use one or many of these procedures.
E-trials are rare in Ontario but last year a team of lawyers managed to conduct an e-trial dealing with Aboriginal rights that went back as far as 1994. The trial, which went before Justice Arthur Gans, had a database consisting of almost 14,000 documents. Before this, none of the lawyers representing this case had any official e-trial experience. The courtroom was wired and the lawyers learned specific software to conduct proceedings. Each counsel had their own monitor and so did the judge, court clerk, witnesses and the viewing gallery which displayed what was being shown on the main computer.
This is an example of a dedicated Ontario legal team working together to make the e-trial occur despite their lack of experience. Even though Ontario’s is the largest court system in Canada, we are very behind when it comes to bringing technology into our courtrooms. There is hope though. Courtroom 807 in Toronto has been wired since 1997 and features flat-screened monitors on each desk as well as the witness box. One of the most notable perks of the e-trial has been seen within the walls of this courtroom; the ability to have people testify from afar. Because they did not have to be physically present, people are able to testify from as far as China, Pakistan, Australia, and even from within the confines of penal cells.
E-trials are overall praised for being more efficient and easier on lawyers and other resources. They are estimated to reduce the total time for each case presented to the judge by about 25 percent – at least. Not only are they praised for being more convenient, but they are also seen as completely necessary. Consider the negative impacts of using the traditional means in the courthouse. Lawyers, like most people, are used to working with documents on computers and corresponding electronically. If they are in the habit of using paperless methods, they will have to convert everything to the hardcopy paper version prior to the case.
Another bump in the road is that lawyers are unable to access legal databases during the trial. So if they want to refer to a particular case, instead of looking it up in the courtroom, everything has to be put on pause and they have to research in a library and make hard copies to distribute before resuming— a process that cannot be considered time effective.
Now with all of this said, why aren’t all of our trials electronic to some extent? Currently in Ontario lawyers must request an e-trial. Since many courtrooms are not equipped and since there are many lawyers who are used to doing things the traditional way, the switch can be very intimidating. Not to mention, this would be a lot of additional work added to the lawyer’s already heavy workload. There are also financial considerations. Outfitting each and every courthouse with the necessary equipment and wiring is a draw on resources. However even though the change is gradual, it is coming.
New film explores dangers of texting & driving
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In From One Second to the Next a mother describes her pain at not being able to tell her son, now eight years old, left paralyzed after a texting driver hit him, to go play outside.
In another scene the perpetrator talks about the day he killed two men when he sent a text message he doesn’t even remember. Seven years later he still wrestles with overwhelming guilt.
Most people would never dream of getting behind the wheel while drunk. However, those same people don’t often persuade themselves that typing a quick text message while driving is a big deal. In fact, texting while driving may be equally, if not more risk, that impaired driving.
Car and Driver magazine compared the driver reaction times of two staff members. Both drivers sped around a closed track at high speed. One had a blood-alcohol content of 0.08, while the other was texting. The impaired driver managed to bring his car to a halt within 4 feet of where he stopped when he was sober. The other driver tried to brake while reading a text message. His vehicle stopped 36 feet beyond where he stopped when he was not distracted.
In Ontario, the fine for texting while driving is from $155-$500 plus that conviction sends a signal to your insurance company that you are not a dependable driver. In turn that will cause your insurance premium to soar.
To avoid temptation, put your cell phone out of reach—-perhaps in your briefcase, or even in the car trunk—-so you are not compelled to act on the sound of an incoming text message. If you absolutely must send or read a text, pull over— don’t do it while driving!
Neinstein Personal Injury Lawyers on Daytime Toronto
Greg Neinstein is the Chair of the annual charity fundraiser called BIST/OBIA Mix and Mingle.
For almost a decade, the Brain Injury Society of Toronto (BIST) and the Ontario Brain Injury Association (OBIA) have co-hosted a special gathering to celebrate those who work in the field of Acquired Brain Injury (ABI) and to support those in the community who are living with the effects of ABI.
The 9th Annual BIST/OBIA Mix and Mingle brings together rehabilitation professionals, caregivers, family & friends and legal professionals whose goal is to shine the spotlight on Acquired Brain Injury. As a way to raise awareness on this very important matter Neinstein Personal Injury Lawyers is appearing on Rogers Daytime Toronto speaking about the fundraiser and the impact of Acquired Brain Injury on our community. The show airs on Channels 10 and 63 at 10 a.m., 3 p.m., and midnight.
Depression and Personal Injury: There’s a Link
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People with chronic pain have an incredibly high risk of developing depression. People with brain injuries are eight times more likely to become depressed than the general public. A study done by San Diego State University on 400 injured youths found that at discharge, 41 percent were depressed. It also revealed that severely injured people were twice more likely to be depressed than those with moderate injuries.
Depression is a mood condition where sufferers experience severe despair beyond your typical “blues”. The mental health condition affects emotions, physical health, relationships, and work performance and is quite common. About 10 percent of Canadians experience a mood disorder at some time and The World Health Organization estimates that by 2020, depression will be the biggest medical health burden. Depression is just that common, yet only half of us would admit to a friend that a family member had mental health issues. Take a major injury, add severe depression, then tack on the stigma that goes with it, and you have yourself too much on one plate.
Then there is Post-Traumatic Stress Disorder, (PTSD) the mental health issue often experienced by people with major injuries. PTSD sufferers have flashbacks and nightmares where they relive the traumatic event. They often experience emotional numbing soon after the event which later leads to social withdrawal, and they can even have dissociative states where they believe they are actually reliving the scenario. PTSD affects one in ten and usually begins within three months after the event. The San Diego State University study said that teens with PTSD have high chances of later developing acute stress disorder.
There has also been a study on the correlation between brain injuries and depression. A group of 559 people with brain injuries were followed for the first year after their injury and 53% of this group were found to have major depression.
Fortunately there is an upside to all of this. As explained by Psychology Today, Rational Emotive Behaviour Therapy (REBT) is more than positive thinking. It’s a way of thinking that is logical and realistic that can get patients to recognize that their injury is not their fault, and that they are not the only one overcoming an injury.
The personal injury and accident lawyers at Neinstein Personal Injury Lawyers have been handling accident injuries for clients throughout Ontario for over 40 years. We understand the impacts injuries can have on your life and know how to help you. Call us at 416-920-4242. Set up a free consultation and come talk with us.
Motorcycle collisions
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If you ride a motorcycle, you have a great risk of getting injured while biking. Motorcyclist injuries account for almost 12 percent of all those received from vehicle collisions. In Canada, if you are one of the 670,000 licensed motorcyclists, you are 15 times more likely to be killed in a collision than the car and truck drivers you share the road with. The bad news for motorcyclists doesn’t stop there. In 2010, road accidents resulted in 1,692 injuries for either motorcycle drivers or their passengers— a number that has climbed 14 percent from 2001.
Canadians aged 25 to 34 should be especially aware of their risks of getting injured. They have tracked the highest number of injuries from road accidents overall. In 2010, this group received 170,629 injuries from traffic accidents. Out of those, 11,226 were serious injuries—and that’s just from one age group of the population. About 23 percent of motorcyclists killed in accidents fell into this age category.
Numbers like these are often dismissed because of the stigma that motorcyclists are just reckless and speed obsessed. However, a 2012 report revealed that almost 60 percent of those who had been seriously injured from accidents were actually driving in urban zones where the speed limit was 70km/h at the absolute fastest, suggesting that the injuries were not a result of speeding on open roads but other factors. While motorcyclists can wear protective gear to increase their safety, there are always factors that are out of their control.
Since motorcycles only account for a small percentage of vehicles on the road, other drivers might not be accustomed to watching out for them which increases their chances of getting into collisions. Then there is the actual event of a collision where a car/truck crashes with the motorcycle which is smaller, weighs less, and is uncovered. The bottom line is this: in the event of a crash, the motorcycle offers little protection for the rider or passenger. In the event where another driver’s carelessness lands you with an injury, you can sue for personal injury.
Personal injury law protects you for any kind of physical or psychological injuries. Reasons why a person may sue for personal injury might be if the damage done has resulted in any pain, suffering, health consequences, or loss of earning, etc. Specifically speaking of accidents in Ontario, you could even file a claim and see 80 percent of your income being replaced starting as early as one week after the accident happened. Depending on the severity of the injury, your total income could be replaced until you are fit to work again.
So you decide to take action. Your first step would be to find yourself a personal injury lawyer to represent you. These lawyers work specifically on cases where their client is seeking compensation for an injury— and they have been doing it for years. It is probably in your best interest to seek out these lawyers because of their unique knowledge. If you live in a city, you will find that lawyers often work in one specific area of law anyways and if you approach a different kind of lawyer, they might not have an extensive background in this area. It’s sort of like going to your family doctor to ask about a toothache: she might be able to help you, but you’re probably better off just going to the dentist.
When looking for someone to represent you, ask around or look at reviews. This will ensure that they have done good work in the past and will put your mind at ease. Make sure they have relevant experience for what you need them for. Finally, book a consultation or interview so you can get a feel for their fees and how they propose dealing with your situation!
If you have been injured in a motorcycle accident, the personal injury lawyers at Neinstein Personal Injury Lawyers are here to help fight your case. Our trusted legal team is experienced in handling tort claims and helping victims receive the maximum accident and disability benefits that they are entitled to. Set up a consultation by calling our Toronto office at 416- 920-4242.
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