Personal Injury Accident ClaimsJan 26th, 2016 | By admin | Category: Personal Injury
We are human beings and in any area of life there is a chance that one somehow and somewhere could be involved in an accident that causes personal injury. Some people get hurt in amusement parks, whereas others get a dog bite from pets. It is not as difficult as often described to file a compensation claim for your personal injury. Have you thought about this? More likely, that you are eligible to file a claim. If the injured person is not able to make decisions on their own because of their mental incapacity (for example, if the person suffers from a severe brain injury or is in a coma). In that case, a family member may be appointed to act as a guardian and make decisions for the injured person.
- Slip and fall accidents
- Criminal injury compensation
- Occupier’s’ liability
- Animal owners liability
- Product liability
- Nursing home negligence
- Medical malpractice
Slip and Fall Accidents
Thousands of claims are made each year for “slip and fall” accidents. If you fell down and got injured in a supermarket because someone dropped banana on the floor, or you slipped on the wet floor and hit your head in the washroom in the office building, you may file a lawsuit against the owner of the property for injuries suffered. Slip and fall is a tort, which is based on a claim that the property owner was negligent.
Most Common Causes
- Slippery surfaces
- Seasonal trip hazards (snow and ice)
- Spills of wet or dry substances
- Changes of level and slopes of walkways
- Unsecured mats
- Debris and items stored in pedestrian walkways
- Trailing cables in pedestrian walkways
- Smoke, steam or dust obscuring view
- Unsuitable footwear
- Poor lighting
This list presents some common hazards but there are many others.
After a slip and fall accidents
- Take pictures of the accident scene and of yourself if you can. If it is appropriate, follow up with pictures a few days later (when bruises become apparent, etc).
- If someone witnesses your fall, try to get their name, address and phone number.
- Report your accident immediately or as soon as possible.
- See a doctor
All these evidences can be of great help to identify responsible for the accident parties.
Important Time Limits
- If you suffer injury you have to file an accident report immediately or as soon as possible.
- You have 2 years from the date of the accident to file a lawsuit against the owner of the property.
CRIMINAL INJURY COMPENSATION
If you have become a victim of a violent crime and got injured, you are more likely eligible for financial compensation. Call us to talk about your situation. Our lawyers have a great experience in helping people who were injured as a result of a violent crime to get full compensation.
Innocent victims of crimes of violence that have occurred in the Province of Ontario may be compensated in accordance with the Compensation for Victims of Crime Act. Do you know that you do not need to be a resident of Ontario, to apply for “victim of a crime” compensation?
Eligibility for Compensation
Violent crimes may include murder, attempted murder, firearm offenses, poisoning, arson and other offences such as assault, sexual assault, domestic assault (e.g. abuse by a spouse/partner), child physical assault, child sexual abuse, etc. The injuries may either be physical or psychological. However, the injuries must be more than merely transient or trifling in nature in order to be awarded compensation. A person can also apply for compensation if he/she witnessed or came upon the scene of a crime that resulted in a death and meets the criteria for a finding of “mental or nervous shock.”
- Individuals who have been injured as a result of a crime of violence committed in Ontario. Criminal Code offences include: assault, sexual assault, criminal harassment,
- etc. Injuries received from a motor vehicle accident (hit and run or drunk driving) are excluded, unless the vehicle is used as a weapon.
- Individuals who are responsible for the care of a victim of crime and suffered a loss of income or had expenses as a result of the victim’s injury or death
- Individuals who are the dependants of a deceased victim (in the case of murder)
- Individuals who were injured while trying to prevent a crime or while helping a police officer
In Ontario, anyone injured as a result of violent crime can apply for compensation. This includes those hurt or affected while making an arrest or assisting a peace officer with law enforcement duties, or while trying to prevent a crime. If a person died as a result of violent crime in Ontario, any family members that were dependent on the deceased person or who paid expenses as a result of the death (including expenses to care for one or more children of the deceased person or expenses for bereavement counseling) can apply for compensation.
Compensation may be awarded regardless of whether a person has been prosecuted or convicted of the offence giving rise to the injury or death. Accordingly, you may still be eligible for compensation if no charges were laid or if there was no conviction in a criminal proceeding. If a victim/claimant is under the age of 18, or unable to manage his/her personal affairs, a legal guardian must make the application.
The following items are not awarded for compensation:
- Crimes committed outside the Province of Ontario
- Damaged or stolen property
- An accident involving a motor vehicle (i.e. drunk driving or hit and run)
- Legal fees for criminal court and/or civil suits
- Distress of attending criminal court
- Workplace accidents (claims should be filed with the Workplace Safety and Insurance Board)
- deaths resulting from suicide
- negligence by an institution/organization
- pain and suffering for grief and sorrow
An application for compensation must be made within two years of the date of the incident. However, the two-year limitation period could be extended when it is warranted. Our lawyers can request such an extension and explain your reason(s) for the delay in the application form.
Types of Compensation
You may be awarded the following types of compensation for physical injuries and/or psychological harm that resulted from a violent crime in Ontario. In order to be awarded compensation, your injuries must be more than merely transient or trifling in nature.
- Pain and Suffering: Awards are based on several factors, including:
- the nature of the crime/abuse,
- any breach of trust or abuse of power,
- the age and vulnerability of the victim,
- the degree of violence involved,
- the seriousness of the injuries sustained or the extent of the harm caused,
- the recovery period,
- the possibility of a continuing disability,
- the impact the crime/abuse had on the victim’s life.
- Treatment Expenses: May be awarded for ambulance fees, hospital charges, prosthetics, eyeglasses, prescriptions, dental expenses, counseling expenses etc. Only expenses not payable by any other source will be considered.
- Travel to Treatment Expenses: May be awarded if you are required to travel more than 40km each way from your residence for treatment.
- Loss of Income: May be awarded to you (or a person responsible for your care) if you were unable to work because of injuries arising from the incident. We may award up to a maximum of $1,000 per month for lost income. Generally, this is paid out to a maximum of $50 per day or $250 per week. Any benefits received from other sources will be considered and possibly deducted from this amount.
- Loss of Support: May be awarded to the dependants who relied on the deceased victim for financial support at the time of the crime.
- Funeral and Burial Expenses: This includes the cost of a funeral director, clergyman, casket, cemetery plot, grave marker, newspaper notices, death and birth certificates.
- Other: Costs associated with the support of a child born as a result of a sexual assault.
Occupier’s’ liability comes into effect when the injured party sues the property owner under common law based on negligence and/or personal injury. Occupier liability cases could be complicated and there are many factors to be considered. Contact us and we will explain you the law and the options you have.
There are not too many types of claims and most of them include the following:
- slips and falls
- stress and anxiety due to elevator malfunction
- falling objects
- falls on defective stairwells
- fall from a defective terrace or balcony
- parking ramp falls
According to the Occupiers’ Liability Act, “occupier” includes:
- a person who is in physical possession of premises, or
- a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises
“Premises” means lands and structures, or either of them, and also includes:
- ships and vessels
- trailers and portable structures designed or used for residence, business or shelter
- trains, railway cars, vehicles and aircraft
Tenants, Licensees, and Independent Contractors
Both tenants and licensees will be occupiers of property where they live. Licensees will usually share the status of occupier with the owner. Owners of let property will be occupiers of those areas which they have not let by demise and over which they have retained control (such as the common staircase in flat building). If the tenancy agreement imposes upon the owner the duty to carry out repairs, he will be co-responsible with the tenant for the conditions of the premises as occupier. Independent contractors working on the property may also be covered by the concept of “occupier” if they exercise sufficient control over the premises.
“Occupiers’ liability” is a field of tort law, codified in statute, which concerns the duty of care that those who occupy (through ownership or lease) real property owe to people who visit or trespass. It deals with liability that may arise from accidents caused by the defective or dangerous condition of the premises.
An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that persons entering on the premises, and the property brought on the premises by those persons are reasonably safe while on the premises. The duty of care applies whether the danger is caused by the condition of the premises or by an activity carried on on the premises.
Where premises are occupied or used by virtue of a tenancy under which the landlord is responsible for the maintenance or repair of the premises, it is the duty of the landlord to show towards any person or the property brought on the premises by those persons, the same duty of care in respect of dangers arising from any failure on the landlord’s part in carrying out the landlord’s responsibility as is required by the Act to be shown by an occupier of the premises.
Where injury to any person is caused by the negligence of an independent contractor employed by the occupier, the occupier is not on that account liable if in all the circumstances the occupier had acted reasonably in entrusting the work to the independent contractor.
Property owners are liable for slip and fall accidents that caused injuries. Claims are usually successful if it can be proved that the owner/occupier breached their “duty of care”, in other words, a person has to be treated right whilst he or she is in the care of another person. Once a property owner’s negligence has been established, a court would most likely award a financial compensation.
The occupier will not normally be liable for damage caused by the negligence of persons who were carrying out work on his premises, such as independent contractors. So, if damage was caused by a faulty maintenance of lifts, the occupier will not be liable because this damage was the result of other persons’ negligence. Nevertheless, the occupier may still be liable for an injury if:
- was not reasonable in employing the contractor;
- did not make sure that the contractor was sufficiently competent; or
- did not properly supervise the contractor’s work,
A warning will only serve to discharge the occupier’s duty with respect to the danger if it enables the person to whom the duty is owed to be reasonably safe. The warning must therefore be sufficiently clear about the danger and ways of avoiding the danger must be readily available. In determining this, the courts will consider the following factors:
- How specific was the warning? Did it make the nature of the danger clear? A simple “do not touch” or “enter at your own risk” may not be sufficient warning, since it does not put people in notice of any danger to themselves.
- The nature of the danger. Was it hidden or apparent? A warning of a hidden dangers must clearly be more express.
- The type of visitor? Not all visitors may be able to understand the warning, as may be the case with small children or foreign tourists who do not read English.
Animal Owner Liability
In plain English, the owner of a dog is liable for damages resulting from a bite or attack by the dog on another person or domestic animal. If you are injured as a result of an attack by a dog, a claim may be brought against a dog’s owner for causing your injuries. An owner is defined as either having possession or harbouring a dog.
Information on the Dog Owners’ Liability Act and Public Safety Related to Dogs Statute Law Amendment Act, 2005
- On October 26, 2004 Ontario government introduced Bill 132 to amend the Dog Owners’ Liability Act (DOLA) that was passed by the Legislative Assembly and received Royal Assent by March 9, 2005.
- The legislation bans pit bulls in Ontario, places restrictions on existing pit bulls, and toughens the penalties for the owners of any dog that poses a danger to the public.
- Ontario’s pit bull ban took effect on August 29, 2005.
- All dog owners must comply with the amended requirements of DOLA and other provisions of law.
- Pit bull owners may keep their existing dogs, as long as they comply with certain requirements.
- DOLA also introduced new penalties for the owners of all potentially dangerous dogs, regardless of breed or type.
Grandfathered/Restricted Pit Bulls – Owners’ Responsibilities
- Pit bull owners are required to ensure their pit bulls are in compliance with the amendments and regulations.
- Pit bull owners have to have their pit bulls leashed and muzzled in public and comply with sterilization requirements.
- The regulations stipulate that restricted pit bulls be muzzled and leashed unless the dogs are on their owners’ enclosed property or on enclosed property occupied by another person who consents to the pit bull being without a muzzle or leash.
- A leash may be a maximum of 1.8m.
- Muzzles should be humane, but strong enough and well-fitted enough to prevent the pit bull from biting, without interfering with the breathing, panting, or vision of the pit bull or with the pit bull’s ability to drink.
- All pit bulls must be sterilized.
“Pit Bull” includes,
- a pit bull terrier,
- a Staffordshire bull terrier,
- an American Staffordshire terrier,
- an American pit bull terrier,
- a dog that has an appearance and physical characteristics that are substantially similar to those mentioned above
Dog Owners’ Liability Act (DOLA) Proceedings
If a dog bites you, you may bring a civil action against the dog’s owner for damages.
- The Act states that the owner of a dog is liable for damages resulting from a bite or attack and that liability does not depend on the owner’s fault, negligence or knowledge of the propensity of the dog to bite or attack.
- Any individual can start a court proceeding under Part IX of the Provincial Offences Act (POA).
- Violations of various Ontario statutes, including DOLA, constitute provincial offences and may be prosecuted under the Provincial Offences Act.
All Dangerous Dogs
A dangerous dog’s owner is liable when:
- Another dog has been bitten or attacked
- The dog has behaved in a manner that poses a menace to the safety of persons or domestic animals
- An owner did not exercise reasonable precautions to prevent a dog from biting or attacking or posing a menace to the safety of persons or domestic animals
- A dog owner did not take specified control measures
Penalties for Offences:
- $10,000 fine ($60,000 for corporations); and/or
- Six months imprisonment; and/or
- In addition to any other penalties, the court will be able to make restitution orders requiring convicted persons to make compensation or restitution to victims.
If you have been harmed by dangerous or defective products you may be eligible for financial compensation. Product liability cases are challenging, very complicated from the legal point of view and require special technical knowledge. Very often product liability cases require investigation and authoritative testimony from the experts. Product liability is the area of law in which manufacturers, distributors, suppliers, and retailers are liable for the injuries those products cause. To be successful, each product liability claim requires its own specific expertise.
Types of Defective Product
There are three major types of product liability claims:
- manufacturing defect (that occur during the production process: usage of low quality materials, poor skills of workmen, etc.)
- design defect (a failure to match safety requirements and it has nothing in common with the manufacturing defect)
- marketing defects (a failure to warn that a product has non-obvious dangers)
The most common product defects are the following:
- Defective auto parts, including seat back, air bags, seat belts, and gas pedals
- Defective products for children, including cribs, strollers and car seats
- Dangerous toys, that contain lead or other toxic substances or can cause choking, cutting, and pocking.
- Defective devices, machinery or equipment
- Dangerous drugs and medical devices
Strict Liability Claims
Strict liability claims focus on the product itself. It means that if the product is defective, the manufacturer is liable for it. However, by putting liability for the injuries caused by a product on its manufacturer, one has to be sure that a misuse did not take place. Also we have to remember that all warnings designed for the reasonable persons (for example, we should not expect “do not drink” inscription on a shampoo’s label). That is one of the reasons why defective product cases are so challenging.
The Canadian Motor Vehicle Arbitration Plan
The Canadian Motor Vehicle Arbitration Plan (CAMVAP) is the largest consumer product arbitration plan in Canada that can help you resolve disputes with an automobile manufacturer. CAMVAP covers new or used owned or leased vehicles that are from the current model year and up to an additional 4 model years old. CAMVAP is free to consumers and most of them can handle their own case without a lawyer. Hearings are held in the consumer’s home community. The process usually takes about 70 days from start to finish. An inspection of the vehicle normally is part of an arbitration hearing and the arbitrator can order a technical inspection of the vehicle at the program’s expense if doing so is required. CAMVAP arbitrators can order the manufacturer to buy the vehicle back; repair it at the manufacturer’s expense; pay for repairs already completed; pay out of pocket expenses for items such as towing, diagnostic testing, rental cars and accommodation related to the problem with the vehicle. The arbitrator can also order that the manufacturer has no liability.
You are free to choose: to go to court or to go to CAMVAP, but you are not allowed to do both. Think carefully, weigh the pros and cons of each option and choose what is best for your situation. It is always a good idea to talk to us before making decision.
Food Processor Liability Insurance
Food processors should be covered for product liability and completed operations liability. This will give them protection against claims by customers who have incurred damages or become ill through eating your food product. Much of the regulation aimed at protecting consumers is designed to reduce the risk that they will eat a spoiled or tainted product. But food-borne illness is a continuing concern. A single lawsuit in this area can bankrupt even the biggest company. Personal assets such as a house or car can also be seized.
NURSING HOME NEGLIGENCE
In Ontario, there is a legal document that regulates retirement homes: An Act to regulate retirement homes. There is also governmental institution called Ontario Seniors’ Secretariat that deals with nursing home negligence and elder abuse and injuries. Ontario government’s total investment in elder abuse prevention since 2003 has reached to more than $4.2 million.
One of the definitions of elder abuse accepted by the World Health Organization is “a single, or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person.” Elder abuse can take many forms, including physical, mental or financial abuse, or neglect. Research suggests that between 4-10% (65,000 to 130,000) of Ontario seniors suffer from some form of elder abuse. Many forms of elder abuse are recognized as types of nursing home or domestic violence. There are several types of elder abuse:
- Physical: hitting, punching, slapping, burning, pushing, kicking, restraining, false imprisonment/confinement, or giving excessive or improper medication
- Psychological/Emotional: shouting, swearing, frightening, or humiliating a person.
- Financial abuse: illegal or unauthorized use of a person’s property, money, pension book or other valuables (including changing the person’s will to name the abuser as heir).
- Sexual: forcing a person to take part in any sexual activity without his or her consent
- Neglect: depriving a person of food, heat, clothing or comfort or essential medication and depriving a person of needed services to force certain kinds of actions, financial and otherwise. The deprivation may be intentional (active neglect) or happen out of lack of knowledge or resources (passive neglect).
Signs of Abuse
The signs of abuse vary considerably among older people and with the type of harm being experienced. An older person who is being abused may:
- Say she or he is being harmed
- Seem depressed and withdrawn; signs of depression in elders are not getting dressed, not performing basic care of themselves that they are able to do, never going out even if they can, inability to sleep or sleeping too much
- Not accepting invitations to spend time away from their family or a caregiver
- Seem afraid to make their own decisions
- Seem to be hiding something about a caregiver
- Not have any spending money
- Put off going to the doctor
- Feel anxious and fearful
- Try to “run away,” leaving their place of residence and not wishing to return
- Seem to have too many household “accidents”
Nursing Home Negligence
In nursing homes abuse can occur for a variety of reasons. Some abuse is the willful act of cruelty inflicted by a single individual upon an older person. More commonly, institutional abuses or neglect may reflect lack of knowledge, lack of training, lack of support, or insufficient resources. Nursing home abuse and neglect can include but not limited to the following:
- Physical assault
- Malnutrition or dehydration
- Failure to prevent wandering and elopement
- Improper use of restraints
- Medication and prescription errors
- Failure to develop a fall prevention plan
- Failure to refer residents for medical treatment
Medical malpractice occurs when a health professional fails to follow established standard procedures and causes injury or death to the patient. The majority of malpractice claims involve medical errors, the most common of them are:
- Misdiagnosis of an illness, failure to diagnose or delay of a diagnosis.
- Giving the wrong drug
- Giving two or more drugs that interact unfavorably or cause poisonous metabolic byproducts
- Retained surgical instruments (for example, a surgical sponge) inside the patient after surgery
- Using race as a diagnosis, not a factor
- Incorrect record-keeping
What is Medical Malpractice?
Medical malpractice is professional negligence by act or omission by a health care provider in which care provided deviates from accepted standards of practice in the medical community and causes injury or death to the patient, with most cases involving medical error. Medical malpractice occurs when a health professional fails to follow established standard procedures. Nursing home abuse, failure to follow proper diagnostic procedures, misdiagnosing, prescription errors, surgical errors, birth injuries and hospital or nursing negligence, and lower tier health care provider negligence, e.g. family doctors, mid wives, physician’s assistants, medical assistants are common areas in which medical malpractice can occur.
Medical professionals may obtain professional liability insurances to offset the risk and costs of lawsuits based on medical malpractice. Each year, Ontario physicians pay fees to medical liability protection providers for professional liability protection. The Ministry of Health and Long-Term Care Medical Liability Protection Reimbursement Program provides a partial reimbursement to physicians who are eligible to benefit from the Program. Physicians have the option to become members of the Canadian Medical Protective Association, or to obtain protection from other providers.
The majority of malpractice claims involve medical error. The most common errors are:
- Misdiagnosis of an illness, failure to diagnose or delay of a diagnosis. This type of error could be a direct mistake of a doctor or caused when the doctor is acting on incorrect information supplied by some other person.
- Giving the wrong drug (wrong patient, wrong chemical, wrong dose, wrong time, wrong route)
- Giving two or more drugs that interact unfavorably or cause poisonous metabolic byproducts
- Wrong-site surgery, such as amputating the wrong limb
- Retained surgical instruments. In particular, gossypiboma, resulting from a surgical sponge being left behind inside the patient after surgery
- Patients’ implementation of drugs and treatments
- Using race as a diagnosis, not a factor
- Transplanting organs of the wrong blood type
- Incorrect record-keeping
A 2006 study published in the New England Journal of Medicine concluded that claims without evidence of error “are not uncommon, but most (72%) are denied compensation. The vast majority of expenditures (54%) go toward litigation over errors and payment of them. The overhead costs of malpractice litigation are exorbitant.” Physicians examined the records of 1452 closed malpractice claims. Ninety-seven percent were associated with injury; of them, 73% got compensation. Three percent of the claims were not associated with injuries; of them, 16% got compensation. 63% were associated with errors; of them, 73% got compensation (average $521,560). Thirty-seven percent were not associated with errors; of them, 28% got compensation (average $313,205). Claims not associated with errors accounted for 13 to 16% percent of the total costs. For every dollar spent on compensation, 54 cents went to administrative expenses (including lawyers, experts, and courts). Claims involving errors accounted for 78 percent of administrative costs.(Claims, Errors, and Compensation Payments in Medical Malpractice Litigation, New England Journal of Medicine, May 11, 2006.)
The parties in the medical malpractice claim
The plaintiff is or was the patient, or a legally designated party acting on behalf of the patient, or – in the case of a wrongful-death suit – the executor or administrator of a deceased patient’s estate.
The defendant is the health care provider. Although a ‘health care provider’ usually refers to a physician, the term includes any medical care provider, including dentists, nurses, and therapists.
Elements of the case
A plaintiff has the burden of proof to prove all the elements by a preponderance of evidence and must establish the following elements of the tort of negligence for a successful medical malpractice claim:
- A duty was owed: a legal duty exists whenever a hospital or health care provider undertakes care or treatment of a patient.
- A duty was breached: the provider failed to conform to the relevant standard of care. The standard of care is proved by expert testimony or by obvious errors (the doctrine of res ipsa loquitur or the thing speaks for itself).
- The breach caused an injury: The breach of duty was a proximate cause of the injury.
- Damages: Without damages (losses which may be pecuniary or emotional), there is no basis for a claim, regardless of whether the medical provider was negligent. Likewise, damages can occur without negligence, for example, when someone dies from a fatal disease.
There is only a limited time during which a medical malpractice lawsuit can be filed.
Like all other tort cases, the plaintiff or their lawyer files a lawsuit in a court. Between the filing of suit and the trial, the parties are required to share information through discovery. Such information includes interrogatories, requests for documents and depositions. If both parties agree, the case may be settled pre-trial on negotiated terms. If the parties cannot agree, the case will proceed to trial. At trial, both parties will usually present experts to testify as to the standard of care required, and other technical issues. The judge or jury must then weigh all the evidence and determine which side is the most credible and render a verdict.
Expert witnesses must be qualified by the court, based on the prospective experts qualifications and the standards set from legal precedent. To be qualified as an expert in a medical malpractice case, a person must have a sufficient knowledge, education, training, or experience regarding the specific issue before the court to qualify the expert to give a reliable opinion on a relevant issue. In addition to appropriate qualifications of the expert, the proposed testimony must meet certain criteria for reliability.
The plaintiff’s damages may include compensatory and punitive damages. Compensatory damages are both economic and non-economic. Economic damages include financial losses such as lost wages, medical expenses and life care expenses. These damages may be assessed for past and future losses. Non-economic damages are assessed for the injury itself: physical and psychological harm, such as loss of vision, loss of a limb or organ, the reduced enjoyment of life due to a disability or loss of a loved one, severe pain and emotional distress. Punitive damages are only awarded in the event of wanton and reckless conduct.
For more information and legal references you can visit “Accidents” page in “Self-help” section and “Accident Benefits” in “FAQ” section.