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We tend to trust our eyes first and foremost. Things do not seem real if they are not visible. Something that we can see or even touch. However, some injuries are elusive. Whiplash is a perfect example of an injury that has very few visible signs.  With its often-delayed onset of symptoms, sometimes the accident victim is not immediately aware that they have been hurt.

But what exactly is whiplash? What typically causes it? What should you look out for if you think you have sustained an injury that could lead to whiplash? And what should you do if you think someone else is responsible for your injury? Read on to find out.

What is Whiplash?

The term whiplash refers to a group of neck injuries that involve sudden distortion and extension. The mechanism of the injury, although sometimes mysterious in nature, is called cervical acceleration-deceleration syndrome (CAD). The resulting injuries and symptoms are called whiplash-associated disorders (WAD).

The injury is often associated with car accidents, especially rear-end collisions. Other common sources of injury include extreme activities such as bungee jumping, and slip and fall accidents. Insurance companies commonly report that whiplash is one of the most often claimed auto-related injuries. A 2007 study out of the United Kingdom reported 430,000 whiplash claims and that the cost of paying out such claims accounted for 14% of all insurance premiums that year.

But whiplash injuries pre-date automobiles. The condition was once known as railway spine due to its common association with train collisions.

In the medical community today, there is a broad consensus that acute whiplash is a very real condition. However, support for chronic whiplash is less forthcoming. While there are those who believe these problems can be catastrophic and long term, other academics have tried to discredit chronic whiplash sufferers by suggesting there are financial motivations at play. This is very unfortunate for those who have a lifetime of suffering ahead of them.

Signs and Symptoms of Whiplash

The most common physical symptoms reported by whiplash sufferers include:

• neck/back aches and pains
• shoulder pain
• arm/leg sensory disturbance (pins and needles)
• headaches

Although, symptoms may appear right after the injury happens, they sometimes go days before being felt. Whiplash usually impacts the neck and the middle of the spine.

Pain between the shoulder and neck is very common, suggesting a missing link toward the inside of the shoulder. This might explain why neck therapy by itself does not give lasting relief in many cases.

Whiplash may also has some associated cognitive symptoms. Patients often report being irritated and easily distracted. Severe CAD cases can lead to brain injury called a Coupcontra-coup injury. This is a result of the brain itself being accelerated back and forth as your head and neck are thrown around.

Common Causes of Whiplash

Whiplash happens when the cervical vertebrae are suddenly extended and flexed, often resulting in sprains to the nuchal ligament and the anterior longitudinal ligament. It can also be caused by impulsive retraction of the spine. This is usually caused by the head snapping forward and back, resulting in a torn or stretched anterior longitudinal ligament.

When an auto accident is involved, the resulting whiplash is usually a CAD injury. From cadaver studies, we know that the spines of vehicle occupants who are struck from behind compress and then hyper-extend at the moment of impact. Motion similar to a rear-end collision might also cause whiplash in situations such as:

• amusement park rides
• sports injuries
• airplane travel
• being hit, kicked, or shaken

Delayed Onset of Symptoms

One of the biggest problems with whiplash is that it usually takes a while before you know that it is there. If you are hurt in a car accident and feel the pain immediately, you can be treated on scene for your injury and it will be properly documented in the police report. However, the chances are that you will not even know you have whiplash while you still have emergency personnel close at hand. Most symptoms of whiplash are slow to appear, therefore you may not know that you have it for a few days.

It can be problematic if you develop signs of whiplash later. Your insurance company or the at-fault third party might use any statements that you may have made indicating that you were not in pain at the scene of an accident against you. To that end, it might be best to decline from commenting on your physical condition until after you have seen a doctor.

If You have Whiplash because of an Accident

If you develop whiplash after being hurt in an accident, you need to consult with an experienced personal injury lawyer as quickly as possible. Filing all the necessary paperwork for insurance claims and lawsuits can be an involved and complicated process. Having a well-versed legal advisor at such a time could prove invaluable. Also, depending on the circumstances, there are various time limits to consider. A good lawyer can make sure you never miss a deadline.

Personal Injury Documentation

It is not easy to prove a whiplash case. For one thing, there is the social stigma attached to it. Film and TV depictions of whiplash victims often show someone perpetrating a fraud. For another, there is no definitive medical test to diagnose the condition with. Medical imaging such as, MRIs and X-rays, do not depict whiplash. Doctor’s diagnose whiplash primarily based on reported symptoms.

For this reason, insurance companies are ready to fight tooth and nail to deny whiplash claims. According to the Whiplash Prevention Campaign, Canadian’s make two million whiplash claims every year. This reality provides incentive for insurers to deny every payout possible.

The best approach to successfully suing for whiplash is a well-documented medical history. A rich paper trail will not only establish a solid history, but it also says a lot about you as a person. When an insurance company’s lawyers are willing to do anything to cast doubt on your personal integrity, documentation can be a real saving grace. When your complaints line up with corroborating evidence provided by medical professionals, it speaks volumes about your personal integrity.

Be sure to keep track of the following in a journal:

• symptoms
• treatments
• medical appointments
• treatment progress

The High Cost of Chronic Pain

Looks can be deceiving, especially when you consider the invisible, difficult to diagnose aches and pains associated with long-term whiplash. Others may not be able to see that you are injured, and your medical team might be hard pressed to produce evidence of injury. But your suffering is real. If you are not responsible or only partially responsible for the accident that caused your injury, you could be entitled to compensation. The expense associated with medical treatments and therapy for chronic whiplash can really add up.

If you are suffering from chronic whiplash, you owe it to yourself and your loved ones to see that you get the compensation you deserve. Consult an experienced lawyer as soon as you can to see if you have a case.

Contact the Team at Mackesy Smye LLP Today

Contact the experienced personal injury lawyers at Mackesy Smye LLP today by using the form below if you or a loved one is unjustly suffering from a whiplash injury. Whether you were injured in a car accident, a slip and fall incident, or any other means, our dedicated team will offer you a free consultation on your case and advise you on the best way to get the compensation you deserve.

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It is human nature to want to show the world the best version of yourself and nothing helps us do that better than social media websites. However, if you have been injured in an accident and you are suing for damages, posting anything to social media that could give the wrong impression about your life could be all that a Defendant’s lawyer needs to torpedo your case.

If you have been hurt and intend to sue, presenting such a distorted vision of your life can thoroughly dismantle your personal injury case. The central argument of most personal injury cases is that an accident has forever changed your life for the worse. If a judge were to review your Facebook profile and see nothing but happy moments of you apparently living life to the fullest, they might conclude that your claims are inflated at best, and an outright lie at the worst.

Yes, your social media profile will be considered in evidence

In personal injury cases, the person most concerned with discovering the truth of what really happened is the judge or jury. The facts of the case, however, are not as relevant to the Defendant’s legal team or the insurance adjusters assigned to your case. Their primary concern is minimizing the amount they will have to pay out to you. The number one method of doing that is to cast doubt upon your claims.

Since the rise of social media over the past two decades, a great source of refuting a Plaintiff’s claims is the Plaintiff’s own social media posts. For instance, let’s say a car accident is responsible for causing you chronic back pain that has vastly altered your quality of life. Let’s also assume that before your case goes to trial, you post pictures of yourself showing what appears to be a great time at a friend’s birthday party. Rest assured that when the case comes to trial, the Defence will use those pictures to suggest that you are lying.

Photos only show the surface. When you smile for the camera, as we so often do, there is no telling how much pain and turmoil you are going through internally. Maybe getting to that party was a herculean effort, but the pictures tell another story. More and more often, judges and jury members are taking social media posts into consideration in personal injury cases.

What about privacy settings?

Do not assume that altering privacy settings so that only family and friends can see your social media profile effectively blocks the rest of the world and allows you to say what you want with impunity. That is simply not the case. Being invisible to random visitors and search engines is not enough to protect you from a court order.

If the Defence has reason to believe that your private social media profile tells a different story than the one, you are telling, they can ask the judge to grant them access to it. This access is often limited. For instance, the Defence often gets access to photos but not comments. Too much access is still considered a breach of privacy and being able to use private comments from social media is generally seen as a violation of the right to free speech. The pictures are usually fair game.

Relevant social media & personal injury case history

In Kourtesis v. Joris [2007], Fotini Kourtesis was injured in a serious automobile accident and made a claim for pain and suffering (including head and neck trauma, memory and concentration problems) and loss of future income. She claimed that her social life was ruined because of the accident.

During the trial, the Defendant’s lawyer saw some suspicious images on the Plaintiff’s public Facebook page and was able to convince the judge to grant additional access. Among the pictures revealed were photos of a St. Patrick’s Day party showing the Plaintiff socializing with her friends. The photos were taken after the accident, just a few months before the trial.

These pictures told a story that contradicted Kourtesis’ testimony and eventually lead to the judge summarily dismissing the pain and suffering claim.

In the case of Leduc v. Roman [2009], the judge ruled that social media posts qualify as documents under the Ontario Rules of Civil Procedure. This ruling means that any party in a civil proceeding will have to produce all relevant social media posts when asked. It was also decided that if someone had a private profile, certain inferences could be drawn from the party’s public profile. In a nutshell, this means if the Defence sees something pertinent and suspicious on your public profile (or anybody else’s) they can ask for a Court Order to see your private content arguing that there would likely be even more to see there.

In the wake of these two cases, Defence lawyers have had mixed results accessing Plaintiff’s private social media profiles. It usually comes down to the Plaintiff’s right to privacy in the eyes of the judge. On the one hand, such privileges could help them find all the documentation they need to effectively deny a Plaintiff’s claim. On the other, they could get access to a lot of private information not relevant to the case.

Either way, it is important to note that the final decision rests with the Court as to how much weight the social media evidence is to be given. Usually, these matters are decided based on the number and frequency of the posts in question.

Social media tips for personal injury Plaintiffs

There are some easy steps to take to make sure that the Defence does not use your social media activities against you. For starters, do not post anything about the case.

For instance, suppose you made a quick post the day of the accident: “OMG! Got in a car crash. Don’t worry, though—nobody got hurt.” You go about your life only to realize too late that you have a bad case of whiplash (which can take some time to become a problem). By then you have forgotten all about your post and it fades away into obscurity. That is until you go to trial and the Defendant’s legal team uses it as evidence to have your case dismissed.

Also, never accept friend requests from someone unless you are positive you know them. Otherwise, you could end up with an investigator for the Defence poking around your profile looking to dig up dirt on you.

If you think someone might investigate you, make it hard for them. Untag yourself in photos. Not just the ones you have posted but also from any photos posted by friends and family as well. You can never be sure what seemingly innocuous moment might be used to potentially deny your claim.

Investigate other ways of sharing photos and life updates that outside parties will not have access to. Email works great for sending photos digitally, or you could go old school and make prints or even a photobook to pass around. Sure, it might seem old fashioned, and if it does, just wait until you see our next suggestion.

Consider older forms of social media for sharing status updates, and by that we mean pick up the phone. Call your friends and family occasionally and swap information about your lives. Not only is it a strangely rewarding experience, but it is also private and most likely inadmissible. Getting a Judge to grant access to your social media profile is a lot easier than getting authorization for a wiretap.

While you are talking to your friends and relations, ask them not to post anything about your case either, just in case. A thorough investigator will also look at the profiles of the people you interact with the most online to see if they have said anything that could be used against you.

We are not asking you to abstain from using social media altogether, but you need to be careful. Anything you do or say online could come back to haunt you someday, and you do not want your own actions to be the reason your claim gets denied. The simple rule of thumb is this: before you post anything, ask yourself if there is any way it can be twisted to undermine your case. If the answer is yes, even if it is only a remote possibility, do not do it. It is just not worth the risk.

Think twice before sharing

Putting the best version of your life online can be a lot of fun, but it tells a skewed tale of what your life is really like. If you are suing for personal injuries, the Defence may take the online version of your life and submit it as evidence against you.

Hire the lawyer that has your best interests at heart

If you have been hurt in an accident, you need a lawyer who is on your side and will give you the best advice in any given situation. The experienced personal injury team at Mackesy Smye has years of experience doing just that. Get the best representation possible—and the compensation you deserve. Use the link below to book a free, no-obligation consultation about your case and find out what Mackesy Smye can do for you.

And while we are on the subject of social media, be sure to like our Facebook page – get updates on all sorts of personal injury related information and resources.

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When you go somewhere, whether to a business or to a private home, it’s usually safe to assume you’re not in any significant danger. That’s because we have premises liability which makes property owners responsible for unsafe conditions which may lead to visitors getting hurt. If the injuries are the result of owner negligence, then the owner will be held accountable.

Slip and fall—or trip and fall—accidents are the most common incidents involved in premises liability disputes. In Ontario, the Occupiers’ Liability Act (OLA) puts the onus for safety on the occupier of a property. They are bound to do whatever is reasonable to ensure the safety of people entering that property. Failing to do so can make them liable for any injuries that might arise from such negligence.

In this article, we’ll examine how owner/occupier liability plays out in slip and fall cases, taking care to point out the differences between accidents that happen in private residences as opposed to those that occur in commercial locations.

Responsibilities of property owners and occupiers

The OLA defines an occupier as anyone who physically possesses a property or is responsible for it. Therefore, an occupier could be an owner, landlord, tenant, or company. Private residences covered under the OLA include homes, apartments, and cottages as well as other amenities on those properties such as pools or ponds. Other types of properties include anything from stores, restaurants, amusement parks, hospitals, government buildings, roads, and parking lots.

Occupiers are responsible for maintaining their property free from dangers and providing adequate warning for any dangers that are unresolved (e.g., signs to indicate a wet floor or a loose handrail).

Where private residences are concerned, homeowners are considered occupiers. But liability is split with apartments. Here, the landlord is generally responsible for common areas of the building and the tenant takes responsibility for everything in their own apartment.

Assumed risk—where occupiers may not be liable

There are certain cases where an occupier is not liable for accidental injuries. One of these exceptions involves the voluntary assumption of risk. Situations like this usually involve a signed liability waiver stating that the property user assumes all risks so long as the occupier doesn’t act with reckless disregard for safety. Signing such a waiver never absolves the occupier completely. They can still be held accountable for any injury arising from neglect.

Occupiers are also off the hook if someone enters their property intending to commit a criminal act. Outlaws automatically assume all risk that might arise from their criminal enterprises. This covers minor criminal code violations—such as trespassing—as well.

Risk is also assumed on recreational properties where no admission is charged. In addition to public parks, this could include:

• farms
• forests
• private roads
• hiking trails
• wilderness areas
• golf courses closed for the season

Other cases where the occupier might not be liable

Besides assumed risks, occupiers may not be responsible for accidents caused by the negligence of independent contractors on their property. In cases like these, the occupier has a reasonable expectation that the contractor is competent and will complete the work in a way that doesn’t put others at risk.

Sometimes, people get injured because they’re careless or reckless even though the occupier has done everything to ensure their safety. In situations like these, the notion of contributory negligence comes into play. If the injured party should have foreseen the danger they were putting themselves in, they are at least partially responsible for their own injuries. Children, however, often cannot foresee such danger, leading many property occupiers to err on the side of caution when it comes to safety standards.

Occupiers are often not responsible for injuries where drugs and/or alcohol are involved unless they played an active role in the injured party’s intoxication. If the occupier couldn’t have reasonably foreseen the role intoxication would play in the accident, they may not be responsible for the resulting injuries. At the very least, the injured party will be found partially responsible for their own injuries.

When is the occupier liable?

The OLA’s application varies with respect to different classes of occupiers. Businesses are held to much higher standards than homeowners and renters because of the volume of people who visit their properties daily. If these establishments don’t have reasonable procedures in place to protect public safety, then they are responsible for accidents and injuries that occur if they:

• fail to clean up spills; salt, sand, or remove ice; or remove debris in a reasonable time
• leave stairways/walkways in a poor state of repair
• do not posting warning signs
• fail to inspect for potential hazards
• provide inadequate lighting
• provide too much alcohol
• fail to provide warning of drowning hazards

Private residents are most often held accountable when unsafe, reasonably foreseeable conditions arise that injure visitors to their property. The most common accidents that arise in civil suits of this nature involve:

• drowning
• slips/trips and falls
• excessive drinking

Liability for municipalities—towns and cities—is governed by the Ontario Municipal Act (OMA). Unlike businesses, municipalities need to be proven grossly negligent before they’re found liable for someone’s injuries. Many municipal cases involve slip and fall accidents due to snow and ice. The burden of proof will be harder if the defendant is a municipality.

Injured by an unsafe property—getting compensation

If you’ve been injured by the carelessness, recklessness, or negligence of a property occupier you are entitled to file a civil suit for damages. These damages could include anything from medical expenses and rehabilitation costs to lost income and pain and suffering. Even your family members—including your spouse, children, grandchildren, parents, grandparents, and siblings—may also be entitled to compensation under the Family Law Act (FLA).

Each case gets judged on its own merits, including the losses involved, the severity of your injury, and the circumstances that led to the injury. But if a landlord, business owner, homeowner, or municipality’s neglect is responsible for your injury you could be entitled to compensation for your loss. You owe it to yourself and your loved ones to consult with an experienced personal injury lawyer to discuss the merits of your case as soon as possible.

When someone undermines your expectation of safety

You have a reasonable expectation of being safe whenever you visit a business or a private home, and any injury you or your loved ones suffer as the result of occupier negligence should be compensated. If the severity of your injury and all related expenses exceed what your insurance can cover, you may be entitled to compensation through the civil courts. Depending on where the injury was sustained and who the victim was, this compensation could come from the OLA, the OMA, or the FLA.

Regardless of the circumstances, consulting with an experienced personal injury lawyer is your first step toward getting the compensation you deserve. The right lawyer will be able to review the details of your case and let you know what you could honestly expect if your case were to go to trial.

Get our team working for you

If you’ve been hurt on property belonging to an individual, a business, or a government, you could be entitled to compensation. Contact the team of expert personal injury lawyers at Mackesy Smye today for a free, no-obligation consultation about your case.

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There’s nothing like the freedom a bicycle offers. As far as lightweight maneuverability goes, you can’t beat it. But this freedom is not without its inherent risks. Cycle accidents are potentially dangerous for cyclists, especially if there’s a motor vehicle involved.

Most cyclist-motorist accidents involve a driver who failed to look properly when turning or advancing at an intersection. And with the cyclist afforded no real protection, there’s a significant chance they can suffer a serious personal injury as a result.

Let’s examine this idea further with an emphasis on sharing the road safely, what to do if you’re ever involved in a bicycle accident, and some of the time limitations that might be a crucial factor in your case.

Car vs. bike—Who’s at Fault?

Although they cause the majority of cyclist-motorist accidents, drivers can’t shoulder all the blame. Bike riders can also cause collisions by doing such things as disregarding traffic laws or failing to use safety gear like lights and reflectors.

A study at York University, however, concluded that drivers are responsible in most cases. After studying 2,572 motorist-cyclist collisions in the GTA, the research showed the top three causes for these accidents are:

• Motorist entering an intersection or turning before it’s safe
• Motorist passing too closely
• Motorist opening doors in a cyclist’s path without checking mirrors (dooring)

Similar results have been found in many other studies across North America. Still other studies show that these accidents happen less frequently when cyclist and pedestrian traffic is heavier. This suggests inattentive driving could play a factor with more accidents happening when the cyclist is more likely to be unexpected by the driver. That’s why the evidence says that more cycling fatalities happen on rural/country roads than anywhere else per cycling mile traveled.

An Ontario coroner’s report from 2012 studied cycling deaths in the province over five years and concluded that every death was preventable. In most cases, the cyclist was struck from behind by a car or truck.

Common cycling injuries

The unprotected nature of cycling means that you could sustain any number of injuries in an accident. Indeed, most non-fatal injuries are distributed all over the body, especially the arms, legs, head, and chest/abdomen.

The most common injuries suffered in fatal accidents are brain and head injuries such as craniocerebral trauma and traumatic brain injury. Such trauma accounts for three-quarters of all cycling deaths. Catastrophic crushing injuries as the result of blunt force trauma are the second most common cause of death.

These accidents are most often caused by drivers failing to look properly, failing to yield, speeding, driving recklessly, or being distracted. Sometimes, the cause of the accident is a combination of multiple factors. In 30% of cases, criminal charges are laid against the driver—usually for impaired or distracted driving.

Accidents caused by cyclists are usually the result of not looking properly, failing to yield, disregarding traffic regulations, and riding while impaired.

Safer roads, safer cyclists

In response to the coroner’s report, the province adopted the Making Ontario’s Roads Safer Act in 2015. The legislation introduced tougher penalties to promote cycle safety. For instance, dooring a cyclist now results in a $365 fine and three demerit points and failing to leave a one-meter buffer (if possible) while passing a cyclist could cost a driver $110 and two demerit points.

But the onus isn’t merely on drivers. Some fines are targeted toward cyclists to encourage better safety sense. An example of this is the $110 fine for riding with inadequate bike lights at night.

Although the new law met with much criticism—especially among drivers—it’s generally thought that municipalities like Hamilton and Toronto could achieve a more European-like driver-cyclist equilibrium with better infrastructure built around safer cycling practices. Better bike lanes and more roads closed to motor vehicles are bound to reduce the number of bicycle accidents overall. But until that happens, both cyclists and drivers need to be constantly on the lookout for each other.

If you’re involved in an accident

Cyclists involved in motor vehicle accidents have many options for covering their losses. They may be able to claim accident benefits through their own insurance policy or the insurance of a family member or the other driver. The province also has a special fund set up for hit-and-run accidents where the driver can’t be identified.

In extreme cases, it may be necessary to sue a negligent, at-fault driver. This would be the case if you were catastrophically injured—seriously and permanently—and had no other way to be compensated for expenses, lost wages, and pain and suffering.

The amount you could expect in damages depends on how severely you’ve been hurt and how much your life has been changed by the accident. In this way, someone who is unable to ever work again because of their injuries would be entitled to more compensation than someone who suffered minor soft tissue injuries.

If you find you must pursue a lawsuit because of the severity of your injuries, it’s important to hire a personal injury lawyer with plenty of experience helping cyclists rebuild their lives to make sure you do everything by the book and don’t miss any crucial deadlines—see below.

Relevant cyclist personal injury case history

White v. Aransibia (2003): Mr. White, a cyclist, suffered serious head injuries after being hit by a car. As a result, he developed serious cognitive problems and personality changes that hampered his work performance and his personal relationships. White was compensated for all financial losses from his insurance company but decided to sue the other driver for pain and suffering. He also wasn’t wearing a helmet which could’ve lessened the severity of his head trauma.

The judge awarded $100,000 in pain and suffering damages. It was determined that liability for the accident was fifty-fifty because Mr. White was cycling at excessive speed and presumably not keeping a proper lookout. He was also cycling without a light or reflectors.

Pelletier v. Ontario (2013): Mr. Pelletier was struck by a Orillia police car while cycling across an intersection. He sustained serious head and brain injuries as well as a fractured leg and vertebrae. The accident left Pelletier permanently disfigured with post-traumatic stress disorder (PTSD).

The police officer had right of way but failed to stop in time due to excessive speed, among other factors, and the judge found the officer 60% liable for the accident. Damages were awarded as follows:

• $3,195,000 – future attendant care
• $1,167,000 – attendant care
• $112,500 – loss of future earning capacity
• $250,000 – pain and suffering

Time is of the essence

A critical element in suing for damages is making sure you file all your paperwork on time. Again, an experienced personal injury lawyer can help you with this. But it’s important to contact one as soon as possible to advise you if you’re in danger of not meeting a target date. This article goes into more detail on statute of limitations for personal injury lawsuits, but it’s important to note that many bicycle accidents involve government agencies, and that’s where windows of opportunity are short-lived indeed.

A government could be named in a lawsuit for any number of reasons from negligent property upkeep (e.g., failing to repair a pothole) to a government agent being involved in the accident—see Pelletier v. Ontario above.

For example, if you intend to sue a municipality – a city or town – the Municipal Act [2001] provides that you have 10 days from the accident to notify them of your intent to sue.

Cycle safely

Riding a bike may deliver unparalleled freedom, but it’s important to ride safely. Pay attention to all traffic regulations that apply to bicycles, do everything you can to make yourself more visible to motorists, and wear a helmet—your brain is irreplaceable.

Collisions with motor vehicles are often catastrophic, sometimes resulting in death. If you or a loved one has been injured in a motor vehicle-bicycle collision, it’s important to consult with an experienced personal injury lawyer who specializes in bike accidents to make sure you make all your deadlines and get the compensation you deserve.

Have you been hurt in a cycling accident?

The experienced, dedicated personal injury team at Mackesy Smye wants to make sure you’re fairly compensated for your bicycle collision. Follow the contact link below for a free, no-obligation consultation regarding your case.

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Losing a limb has serious lifelong consequences. Suddenly, the things you took for granted are impossible. Depending on the nature and severity of your amputation, your freedom of movement will be compromised—and with each new day, you’ll have to confront the crushing reality that you may never get it back.

Doctors often perform amputations in cases of birth abnormalities or when diseases like cancer or diabetes restrict blood flow to certain parts of the body, leading to infections like gangrene. All amputations are tragic—even in extreme cases where the operation will vastly improve the patient’s quality of life—but the saddest cases are when it impacts younger people and it happens unexpectedly due to an accident.

The loss of limb caused by the recklessness or negligence of another person can have devastating effects on your life which we’ll explore further in this article. We’ll also examine amputations from the perspective of personal injury law and look at how lawsuits change when these traumatic injuries are involved.

Personal Injuries and Amputations  

Unlike ordinary personal injury cases, situations that involve amputation can be much harder for the victim to endure. Losing a limb is devastating psychologically. Unlike other injuries, there’s simply no chance for a complete recovery. And the cost of your ongoing medical expenses is also bound to be higher, as we’ll see below.

Minor amputations include loss of a finger, partial foot amputation, and ankle disarticulation—loss of the whole foot. Major amputations of the arm include forearm (transradial), above the elbow (transhumeral), and shoulder disarticulation. Where the leg is concerned, amputations can happen below, at, or above the knee, or at the hip.

Amputees often experience two problems unique to their condition—phantom limb sensations and heterotopic ossification.

Phantom limb is a side effect of the way our brains work. If the neural pathways associated with the lost limb were strong enough before the amputation, the amputee may still feel sensations as if they were whole again. Over half of all amputees experience this phenomenon, but often the experience is negative and persistent—never-ending pain, an incessant burning sensation, an itch that can never be scratched.

Heterotopic ossification is the formation of bone tissue outside the skeleton—usually in the soft tissue surrounding the severed bone. It’s a known side effect of trauma but it can be especially problematic for an amputee as it often interferes with the use of prosthetics (artificial limbs). Amputees who develop heterotopic ossification often require additional surgery—or surgeries—to deal with the situation. And most heterotopic ossification sufferers are likely to develop additional ossifications in the future.

The Long-term Effects of Amputations

The aftermath of an amputation can be catastrophic, both physically as well as emotionally. And many of these effects can often burden you for the rest of your life.

The physical effects

In addition to phantom limb and heterotopic ossification—see above—amputees can also experience a wide range of discomfort, including stump pain and other complications. It’s also not uncommon for amputation stumps to become infected, sometimes requiring further medical care and in extreme cases more surgery.

The emotional effects

There are several psychological and emotional hazards involved in amputation cases. Having a limb severed, especially as the result of trauma, can be extremely distressing and very few people can take it in stride. Anxiety and depression are two of the biggest culprits to watch out for. Anxiety can be specific—i.e., related to your accident—or general, affecting many unrelated aspects of your life. And although sadness and a sense of loss are to be expected after amputation, clinical depression is another major risk associated with the loss of a limb. Depression could cause you to withdraw from your family and friends—the people you need most at times like this.

Losing a limb limits what you can physically do, often leading to frustration, dissatisfaction and possible bouts of anger. Amputees are also at risk for post-traumatic stress disorder (PTSD)—repeated flashbacks of the trauma of the accident. The lost limb often serves as a constant reminder, making the symptoms ever more intense.

Ongoing Expenses Associated with Amputations

There are always financial burdens involved in every severe accident. Medical expenses, lost wages, and property damage are some of the most common examples. But accidents involving amputations usually have additional expenses most would never consider.

Amputees often require prosthetic hands, arms, feet, or legs to help them cope with their everyday lives. And not only are prosthetics costly and seldom fully covered by insurance, they’re also rarely a one-and-done solution. Prosthetics often need to be replaced, especially when the amputee is a growing child. And wear-and-tear can also be an issue, especially on more modern and sophisticated devices that are more versatile but also have more parts that can break down.

Physiotherapy is another common ongoing expense, especially for those who wear prosthetics.

Medication is also a factor, both for physical pain as well as emotional distress—depression and anxiety. Amputees dealing with emotional issues will likely also have counseling expenses.

Some amputees also need specialized mobility devices such as wheelchairs or modified automobiles. Modifications to the home may also be required, including ramps and chair lifts as well as modified kitchens and bathrooms.

Challenges in the Workplace

Amputees face special challenges at work depending on the nature of their job and the amputation involved. In ideal circumstances, things go on as before, but these cases are rare. Sometimes, the employer may have to make accommodations or modifications to help the employee carry on as before. Or perhaps the injured employee can be reassigned to another task where their amputation won’t be a hindrance.

But the fact remains that for many an amputation is a career-ender. Besides reducing your chances for promotion and advancement within the company, an amputation may make it impossible for you to do your job at all.

Where will the Money Come From?

Recovering the money necessary to cover all these expenses and lost wages and compensate you for intangibles such as pain and suffering can sometimes be an involved process. Your obvious first course of action is an existing insurance policy.

If you were injured in a car accident, your insurance will cover statutory accident benefits. These mandatory coverages will cover a variety of costs including medical and rehab expenses, attendant care, housekeeping, home maintenance, and lost wages. If the injury wasn’t related to a car accident, you may still have coverage under your property insurance.

But if your estimated damages run higher than your coverage—as is often the case with amputations—and you weren’t 100% to blame for the accident, there’s also the option of suing the other driver.

If your insurance claim is denied, or if you need to bring legal action against an at-fault third party, it pays to have a team of experienced personal injury lawyers in your corner. Getting the compensation you deserve, especially in an accident so severe, can be a long and involved process. Hiring representation that’s sympathetic to your circumstances and knows all the ins and outs of the legal system is your best shot of coming out on top in these complicated personal injury cases.

Get the Best Compensation Possible for Your Loss of Limb  

Though the loss of a limb will have repercussions for the rest of your life, a well-structured compensation package can be just the thing to help get your life back on track. Though the physical and emotional consequences of amputation are often more severe than those resulting from other personal injuries, there are systems in place to make sure you’re covered for all expenses, as well as pain and suffering. And with the best personal injury lawyers looking after your case, you can rest assured that all the consequences specific to amputations are also provided for.

Have You or a Loved One Suffered an Amputation?  

If someone’s recklessness, carelessness, or negligence has caused you the loss of a limb, you need an experienced, knowledgeable legal team to help you get the compensation you’re entitled to. The dedicated personal injury team at Mackesy Smye want to make sure your quality of life isn’t diminished by this loss. Use the form below to contact us for a free, no-obligation consultation.

The post Loss of Limb – Potential Impacts to Lawsuit appeared first on Mackesy Smye.

Anyone who spends time on the 400 series of highways in Ontario has witnessed at least one case of what the law would deem dangerous driving. You are just driving along, going with the flow of traffic, when suddenly another driver comes from behind, passing you on the right at high speed, out of nowhere, with virtually no warning. As they race ahead of you, they weave in and out of other cars with little regard for the safety of others.

Although television and film often glorify extreme driving, making it seem “cool”, the reality is that people who choose to imitate their adrenaline-fueled idols on public roadways are a menace to public safety. These maniacs are actually putting others at extreme risk every time they act out these scenes. The drivers and passengers they share the road with have a much higher risk of being involved in a car accident through no fault of their own. Because of the excessive speeds involved, the injuries resulting from these accidents tend to be much more serious – sometimes resulting in fatal accidents.

In this article, we will examine street racing and stunt driving in Ontario in depth, focusing on what qualifies as street racing and dangerous driving, and the penalties involved – from a legal standpoint and also from an insurance perspective. We will also look at some of the things that you might not expect to be classified as stunt driving. Finally, we will review how and why reckless driving makes vehicle collisions so much worse for all parties involved.

The Dangers of High-Speed Driving

The faster someone drives the more likely they are to cause an accident. That is just common sense. Controlling a motor vehicle requires concentration and quick reflexes, even when you are just going down the street to pick up milk and eggs. Driving faster requires more focus and even shorter reaction times, and extreme driving pushes a driver’s ability to maintain control to the absolute limit.

Recent studies show that going 50 km/h over the posted speed limit on a 100 km/h highway makes a driver five times as likely to cause a traffic accident that could seriously injure and maybe even kill an innocent person. These risks are tenfold when travelling at excessive speeds on city streets. Driving 50 km/h over a posted limit of 60 km/h or lower increases the risk of serious injury or death by a factor of eight.

To combat the risk faced by responsible drivers and passengers who have to share the road with these reckless drivers, the Ontario Government has taken action in recent years to discourage street racing and stunt driving through a combination of penalties, including immediate vehicle seizures, high fines, road-side licence suspensions, accumulation of demerit points, and even the possibility of jail time.

The Penalties for Street Racing in Ontario

Under the Highway Traffic Act, R.S.O. 1990, c. H.8, O. Reg. 455/07: Races, Contests and Stunts, street racers and stunt drivers face severe consequences. For starters, the arresting officer can impose an immediate roadside seven-day license suspension and vehicle impoundment if they have reasonable, probable grounds. The vehicle is impounded even if the driver is not the registered owner.

If the driver is convicted of racing or stunt driving, the courts can impose fines anywhere from $2,000 to $10,000. Those fines double if drugs or alcohol have played a role. The driver could lose their licence for up to two years, and if it is their second such conviction within ten years, the suspension could be for up to ten years. Guilty parties will also accumulate six demerit points, and there is also the possibility of up to six months in jail.

These are just the charges a driver risks if they do not hurt anyone else.

Dangerous Driving and Insurance

Street racing and stunt driving will also drive up the offending party’s insurance rates for years. Insurance companies always review the driving record of new customers, as well as a good percentage of those whose policies are renewing. The convictions associated with this type of driving are considered major offences. At the very least, it will drive up the price of the driver’s premium or it could result in the company refusing to insure them at all.

Insurance companies in Ontario have different levels of risk they are willing to accept, and a lot of them simply refuse to insure drivers with major convictions on their records. And why not? Such drivers have demonstrated they are a danger to themselves and others and make insurance more expensive for everyone else.

These drivers usually have to get insurance through the Facility Association. Essentially, this organization exists because all licenced vehicle owners need to carry auto insurance even if most insurers refuse to cover them. The Facility Association takes all cases, regardless of record, but it is anything but cheap.

Other Risky Behaviours that Qualify as Reckless Driving

Mention stunt driving and most people tend to associate it with street racing or other dangerous driving habits. While driving 50 km/h over the posted speed limit is indeed one of the major reasons this law exists, there are several other infractions covered under the same umbrella that might surprise you.

Many of the other offences are clearly dangerous, while others used to fall into the category of people blowing off steam or being mischievous.

Among the more obvious behaviours are preventing another vehicle from passing, intentionally cutting someone off, or tailgating – whether that be to another vehicle, a pedestrian, or a fixed object. All instances of road rage, of course, also qualify.

But it’s also considered stunt driving if you endanger others by doing donuts, driving a vehicle with someone in the trunk, or letting someone not in the driver’s seat operate the vehicle. Hold the wheel? No, thanks.

Stunt driving also includes popping wheelies on a motorcycle. Further, if a driver has a nitrous oxide system that potentially allows their engine to have more oxygen available for combustion, it is considered stunt driving just to drive while it is connected, even if they do not use it.

Lawsuits Resulting from Street Racing and Stunt Driving

As mentioned above, the high speeds and reckless behaviour associated with street racing and stunt driving often lead to accidents with more serious injuries and a great likelihood of causing death. As a result, these accidents are more likely to cross the threshold that allows an injured party to sue an at-fault third party for pain and suffering.

With Ontario’s no-fault insurance system, if you’re injured in a car crash, most of your expenses will be covered by submitting claims to your own auto insurance provider. You may also be entitled to income replacement benefits.

Under the current system, the right to sue a third party for liability only becomes an option when the accident kills someone or the injuries are permanent and serious causing disfigurement or impairment of an important physical, mental, or psychological function.

This may mean further burdens and deductions; you should, however, always see an expert so they can advise you specifically to your case. The first step is retaining a well-qualified personal injury lawyer as soon as possible to help you navigate the long road ahead of you.

To Summarize

Stunt driving and street racing puts innocent motorists at unacceptable risk and often results in serious, permanent injury or even death.

Even with increasingly stiffer punishments for such reckless and antisocial behaviour, the problems persist. Fortunately, if you are the innocent victim of such an incident, you are well within your rights to sue the at-fault party for pain and suffering if your injuries exceed the legal threshold discussed above.

Have you been Seriously Injured by a Reckless Driver?

For a consultation about your case, follow the link below to contact Mackesy Smye today. Our dedicated team of experienced personal injury lawyers will review your file and give you an honest assessment on whether you have a case or not, and if we can help.

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In today’s world of rapid advances in technology, the line between science fiction and reality gets increasingly blurred each day. Nothing typifies this change like the rise of automated and autonomous vehicles.

As advanced features such as adaptive cruise control, parking assist, and lane departure warning systems become more commonplace, the question of responsibility in the event of an accident needs to be addressed. As the car itself assumes more control of the driving experience, are automakers going to be opening themselves up to more product liability?

In this article, we examine the shifting landscape of advanced driver-assistance systems and explore some of the possible impacts they’ll have when it comes to determining fault in car accidents.

The future, today

While we’re not living in a Philip K. Dick novel just yet, the technology going into driver-assistance features is evolving at a much faster rate than the laws that regulate things such as highway safety and automobile insurance. In December 2018, the Insurance Bureau of Canada (IBC) released a paper entitled Auto Insurance for Automated Vehicles: Preparing for the Future of Mobility in order to address this issue.

This paper lays out several recommendations about how the insurance industry and Canada’s lawmakers can better address issues specific to autonomous vehicles on our roads. Widely seen by insurers and brokers as a good starting point, the paper does its best to get the ball rolling on what could be one of the more interesting debates in the coming decade.

Chief among the recommendations in the paper are the following:

• A single insurance policy that covers both driver negligence and malfunctions in automated driving technology need to be developed in order to better facilitate liability claims;
• A legislated data-sharing arrangement between car makers, owners, and/or insurers to help determine accident causes, enabling the car industry to better equip vehicles with accident prevention technology and the insurance industry with better policies;
• And a need to update the federal vehicle safety standards to address new technology and cyber security standards.

The problems with at fault determination

While no one can say for sure when autonomous vehicles will become the norm, automakers are optimistic. Companies such as Nissan, Ford, and Volvo see self-driving cars on our highways as a very real possibility in the next decade. Therefore, the need to resolve the legal issues surrounding these cares is paramount.

Assigning liability at an automobile accident under the current legal regime is quite difficult. There may be a number of factors involved, including number of drivers, road conditions, and manufacturer’s defects, to name a few.

As control of the vehicle is transferred to the advanced driver-assist systems, there is an increasing potential that an accident may be caused by a system malfunction, particularly in the early days of design and integration. This creates even more liability issues, begging the question, would system malfunctions cause an automaker to be liable for accidents?

While automakers and technology companies have coverage in place for potential liability issues, a duty of care would need to be established. In addition, the plaintiff (the injured party) and their qualified experts would be required to show that the car did in fact malfunction and that the manufacturer acted negligently in producing the automobile.

One of the major hurdles involved in automated driving litigation lies in the digital design of these systems. While software can indeed malfunction and potentially lead to a motor vehicle accident, no court has ever ruled that a coding error, or something of the sorts, constitutes a manufacturing defect.

The benefits of a single policy

Ontario’s current no fault insurance system is littered with flaws, unnecessary delays, and is far from a comprehensive, streamlined system. It is often the case that someone must be sued in order to recover the money that an injured person is owed.

Advanced driver-assist systems complicate Ontario’s insurance system, as there is the potential for an “at-fault driver” to not be at fault at all. Given a scenario where an auto-manufacturer has negligently produced a faulty driver assisted car, the lawsuit that would follow has the potential to become very complicated and expensive for an injured party.

The single policy proposed by the IBC report would bring auto manufacturers, tech companies that make advanced driver-assistance systems, and consumers under the single existing insurance structure. With such a policy, an injured driver would make a claim directly to their insurance company, and the insurer would recover costs from the vehicle manufacturer or technology provider. Again, this may not cover everything in a case of catastrophic loss, but it would do a lot to streamline the claims process for many.

Sharing is caring

An issue with incorporating a single policy system is consumer and corporate unwillingness to share data. While the data recovered from such a sharing system would inform how accidents are occurring, many consumers would view the system as an invasion of privacy.

For a single insurance policy to be effective, storing and sharing car accident data is essential. However, getting a data-sharing agreement in place will likely prove hard to legislate and implement. Canada has some of the world’s most stringent data privacy measures in effect. Under these laws, car manufacturers and technology companies producing driver assisted systems do not need to reveal data to insurer’s which may assist in establishing their own liability. Thus, these companies may lobby against the necessary changes to the privacy legislation, which would enable such a share regime to exist.

Implementing a data-sharing agreement raises a lot of questions, especially about who will host and control this data. But a well-managed system will go a long way to determining fault in such accidents.

Recent developments stateside

To date, there have already been accidents in the United States involving autonomous vehicles. In one incident, on March 18, 2019, a self-driving vehicle operated by Uber even struck and killed a pedestrian in Phoenix, Arizona. Unfortunately, all of these cases settled privately.

In the Arizona case, Uber reached a settlement with the family within 10 days. According to Agnieszka McPeak, a law professor at the University of Toledo, “That case settled pretty quickly because they [Uber] don’t want [to set a] negative precedent. As soon as there’s a case that goes against them, it opens up a Pandora’s box of liability.”

The future of autonomous vehicles in Ontario

As life continues to imitate science fiction, sharing our roadways with autonomous vehicles will become more and more commonplace. With the US National Highway Traffic Safety Administration reporting that the primary cause in over 90% of car accidents is human error, we should all be safer once smart technology is firmly and securely in place.

In the meantime, there will be a transition as autonomous vehicles and “old-fashioned” human driven cars must share the road. Hopefully, the recommendations of the IBC are implemented sooner than later, and the legal process of sorting out liability in an accident is made clear for all.

Are advanced driver-assistance systems to blame for your injuries?

If you or a loved one has been injured in a crash involving an autonomous or semi-autonomous vehicle, including your own, contact the experienced personal injury team at Mackesy Smye today by following the contact link below. We’ll review your case for free and make sure you have the best representation possible should you decide to proceed with your claim.

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Ridesharing services like Uber and Lyft have been operating in Ontario for a few years now. They’re an exciting alternative to taking a cab and a nice way for many people to make some extra cash in their free time. But, as far as insurance is concerned, they can complicate matters in the event of an accident.

To help you untangle this relatively thorny issue, we have put together this simple guide to who pays what when one of these vehicles gets into an accident. We’ll begin with a basic snapshot of how insurance covers you in the event of a typical accident, and then expand to look at how ridesharing changes things for both drivers and passengers as well as the impact for drivers of other vehicles.

Figuring out who to file an accident insurance claim with when you’re injured in an accident involving a ridesharing vehicle can be confusing. Who’s liable? This article should help clear up the most common questions people have on the subject.

The basics – Auto Insurance in Ontario

Before we can understand how ridesharing impacts insurance coverage, let’s review the basics. In Ontario, we use a no-fault insurance model. This doesn’t mean that fault isn’t assigned in accidents – trust us, it is. What it means is that everyone who carries auto insurance is entitled to certain coverages regardless of how fault is assigned in an accident.

Because of this, you can apply directly to your insurer if you’ve been injured in an accident and need to claim for certain medical expenses. The idea is to simplify and speed up the claims process while reducing the need to sue third parties for less severe injuries.

Mandatory Insurance Coverages

By law, every insurance policy must provide certain mandatory coverages. For the purposes of this discussion, the most important coverages are statutory accident benefits and third-party liability.

Statutory accident benefits cover you and the occupants of your vehicle for injuries sustained in an accident and cover things like:

• supplementary medical benefits
• rehabilitation and attendant care benefits
• caregiver benefits
• non-earner benefits
• income replacement benefits

These are the no-fault coverages you go directly to your own insurer for.

Third-party liability covers injury and property damage to another person. If you’re injured by an at-fault driver and the related expenses will exceed your statutory accident benefits coverage, you can sue the other driver. Their settlement will be covered by their third-party liability insurance.

On the other hand, if you’re at fault for the accident, the injured party might come after you for liability. And if the fault is shared, the degree to which a third party is at fault will limit the amount of damages that can be awarded.

Ridesharing in Ontario – A Quick Overview

Much to the traditional taxi industry’s chagrin, it looks like ridesharing services like Uber and Lyft are going to be around for a while. According to one news source, there were 67,000 registered rideshare drivers in Ontario in 2018, and that number keeps growing.

Ridesharing allows users to request rides from drivers connected through mobile apps. The driver drives their own vehicle, picks up the passenger, and drives them wherever they need to go for a fee.

Although some ridesharing companies were initially hesitant to share the details of their insurance coverage at first, that has since all been straightened out. The Financial Services Commission of Ontario maintains a website now detailing all there is to know about who insures vehicles being used for ridesharing.

It’s a good idea to only use ridesharing services listed on this page. If not, you could be riding at your own risk.

Insurance for Uber & Lyft Drivers

If you drive for a ridesharing company, the company’s insurance only covers you while you’re driving for them. You are only considered to be driving for a company when you are logged into their app. The moment you drop off your last ride and log off the app, you are back to your personal coverage.

If you get into an accident, you can only claim statutory accident benefits from the policy in force at the time of the accident. So, if you’re logged in to the ridesharing app, it’s the ridesharing company’s policy that covers you. If not, you would file a claim with your personal insurer.

In either case, if you suffered a serious injury and need to make a liability claim against an at-fault driver, you would file a liability claim with that driver’s insurance company.

Secondary Considerations for Uber & Lyft Drivers

You need to inform your personal insurance company if you’re going to use your vehicle for ridesharing. Sometimes, your insurer might even be able to provide additional coverage over and above the ridesharing company’s insurance plan. There may, however, be a fee involved for this.

You should note that your insurer is not obligated to let you use your vehicle for ridesharing. Be prepared for them to attempt to cancel or refuse to renew your policy.

Also, if you lease or rent your vehicle, chances are you may be unable to participate in ridesharing as per the terms of your agreement.

Finally, some drivers drive for more than one ridesharing company at the same time. This tempts fate by involving more than one insurance company in a claim, something which has yet been tested in the courts. Uber is insured through Intact, while Lyft is underwritten by Aviva. Should you be logged in as a driver for both companies at the time of your accident, it might take a while to sort out who will pay what (if anything).

Insurance for Rideshare Passengers

If you’re injured as a passenger in a ridesharing vehicle, your claims process will be determined by the following factors:

• whether you have your own vehicle insurance (or are covered under another policy)
• whether a third party is at fault

If you have your own insurance, they’ll be the ones to call to cover statutory accident benefits claims. If you don’t, you can claim those coverages through the ridesharing company’s insurance.

If your injuries are serious and you require more than what your statutory accident benefits will cover, you have the option of suing the at-fault party. Since you weren’t driving, the rules of fault determination will not apply to you. If fault is split between the ridesharing driver and a third party, you would seek compensation from both insurance companies.

If the ridesharing driver is at fault, don’t worry. The third-party driver can’t come after you for liability.

Insurance for Third Parties

If you’re driving a vehicle that gets involved in an accident with a ridesharing vehicle, the claims process is relatively simple.

If you require coverage for medical expenses, go to your insurance company and apply for statutory accident benefits. If your injuries are more serious and the ridesharing driver is at fault, you can claim third-party liability from the ridesharing driver’s insurance – whichever one is covering them at the time of the accident.

Keep in mind that it all depends on whether the driver was logged in to the ridesharing app when the accident happens (see above). If they were driving for the ridesharing company at the time, then the company’s policy will cover your liability claim. If the driver is logged out, then their personal auto insurance will cover you.

Personal Injury Process – Ride Sharing Accidents

Making a personal injury claim is usually a confusing process. And adding ridesharing into the mix muddies the waters that much more. But going through the steps outlined above should give you a better understanding of who’s responsible for covering damages arising from your accident.

It’s always a good idea to talk to a qualified personal injury lawyer if you have any questions about such a serious, complicated matter. A personal injury lawyer can help you make sure you get the compensation you deserve by getting your claims filed with the right parties in a timely manner.

Have you been Injured by an Uber or Lyft driver?

Use the form below to request a free, no-obligation consultation with Mackesy Smye if you’ve been hurt in an accident with a ridesharing vehicle. Whether you were driving the vehicle, a passenger in the vehicle, or a third party involved in the accident, we’ll help you figure out who’s responsible for your losses and help you recover the compensation you deserve.

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Part of being human is being connected. It’s our nature to form deep bonds with our loved ones, our happiness and well-being intertwined with the happiness and well-being of those we are closest to. And when someone is in pain, that burden is jointly shouldered by those closest to them, helping to make it a little more bearable.

But when our injuries are catastrophic, the hurt experienced by our loved ones can be especially difficult. Watching someone you care about suffer needlessly is one of the hardest trials many of us ever endure. And the toll — both emotional and financial — although shared can still be enormous.

Being hurt — whether in a car accident or a slip and fall incident — can have a tremendous impact on your life and the lives of those around you. This is especially true when a third party is responsible for the accident through malice or negligence. For this reason, there is a provision in Ontario law to not only help the injury victim but also their loved ones.

Protection for your loved ones

In Ontario, the Family Law Act (FLA) of 1990 stipulates the rights of parents, grandparents, spouses, and dependents in matters of family law such as:

• property
• support
• inheritance
• prenuptial agreements
• separation agreements

But the Act — under Part V — also deals with family matters in personal injury cases. Specifically, it allows for an injured person’s close family to sue the at-fault party in certain cases.

Often, an Ontario tort claim will not only cover the injured party but also members of their family under this provision. As we said above, an injury to one can hurt many. This statue allows for an entire family to get the justice they deserve after a loved one is injured.

What the law allows

The FLA states that if a person is injured or killed by an at-fault party, the family members of the victim have a right to be compensated for their loss. This extends to cover:

• the spouse
• children
• grandchildren
• parents
• grandparents
• brothers and sisters

These family members can sue for monetary damages as well as non-pecuniary damages, both of which we’ll discuss later.

Who can sue and when?

Under the FLA, qualifying family members can claim damages if:

• the family member in question has been injured or killed due to another person’s fault or neglect
• if the injured person is also entitled to damages or would have been if they survived
• the person suing is one of the qualifying family members listed above (in relation to the injured party)

Of course, the definition of “family” is constantly broadening these days, especially in Canada, a development the FLA does its best to keep abreast of. For instance, the parent/child dynamic allows for any situation where an adult demonstrates a “settled intention” to treat a child as their own (with the notable exception of foster children). The formality of a legal adoption isn’t always necessary.

Likewise, the term spouse can be broadly defined.

What damages can be claimed?

Under the FLA, the family members of an injured person have the right to claim from a non-exhaustive list of damages that includes:

• reasonable expenses incurred for the benefit of the injured party
• reasonable funeral expenses in the case of wrongful death
• reasonable travel expenses for visiting the injured party during treatment and recovery
• reasonable income losses
• the reasonable value of services for nursing, housekeeping, etc., personally provided for the injured party
• compensation for non-pecuniary losses such as guidance, care, and companionship resulting from injury or death

Hypothetically, if a person is killed in an automobile accident, the non-pecuniary losses could apply to all members of their family who relied on that person for companionship (e.g., spouse), guidance (e.g., children), or care (e.g., parents).

Limitations

There are three important limitations that will impact the amount of damages that can be awarded through the FLA:

• contributory negligence
• non-pecuniary damages cap
• deductible for non-pecuniary damages in motor vehicle accidents

Contributory negligence

If a person is found to be partially at fault for their accident, family members can only sue to the extent the other party was at fault. For example, if your sibling was injured and you incurred a $10,000 loss as a result, but your sibling was 50% at fault for the accident, you would only be able to recover half your loss — $5,000.

Non-pecuniary damages cap

Following guidelines set by the Supreme Court of Canada, the Ontario Court of Appeal has placed a cap on the amount of damages a family member can claim for non-pecuniary damages in a lawsuit filed under the FLA. As of 2001, the cap was set at $100,000. Subject to inflation, it’s now set at $138,000.

Deductible for non-pecuniary damages in motor vehicle accidents

The Insurance Act sets a deductible for certain non-pecuniary damages (i.e., pain and suffering) that result from automobile accidents. This deductible, as of 2018, is set at $18,991.67. Any FLA-related non-pecuniary damages awarded would have to be reduced by this amount.

The deductible will not be applied in particularly serious cases, including when:

• damages exceed $63,304.51
• the injured party died because of the accident

Apportionment

Sometimes an FLA lawsuit has multiple claimants. In cases like this, the at-fault party can specify on settlement how these damages are to be split up — or apportioned — to all concerned. If they opt not to specify, which they have every right to do, it then falls to the court to decide how each family member is to be compensated. If you’re one of multiple claimants in a case like this, you may not get much say in how the settlement is paid out.

Accident benefits

Outside of the FLA, there are also provisions for family members who provide attendant care, housekeeping, or home maintenance services for the victims of a car accident. This claim is filed directly with the injured party’s auto insurance provider.

For non-catastrophic injuries, Attendant Care Benefits can pay up to $1,500 per month with Housekeeping/Home Maintenance Benefits paying up to $100 per week.

In the event of a catastrophic injury, the Attendant Care Benefits double to $3,000 per month.

Protect your loved ones

The FLA makes sure that your meaningful family connections won’t result in financial hardship for your loved ones in the event of accidental injury or death. But to make an FLA claim, at least one family member — if not more — will have to be named as a plaintiff in the suit. If the case isn’t settled out of court, this could lead to your family members being put through the discovery process and maybe even testifying at trial.

This could put an unfair burden or strain on your family that could be seen as outweighing any benefit that could be gained by winning an FLA suit. That’s why it’s always a good idea to consult with an experienced personal injury lawyer as a family before deciding if you want to pursue justice through the FLA. The right lawyer will be able to help you and your loved ones examine the case from all angles and figure out your best, most effective course of action.

Let Mackesy Smye help you and your family

Our firm has over 200 years’ worth of combined experience helping injury victims and their families get the compensation they deserve. If you or a member of your family has been injured due to another person’s negligence or wrongful act, follow the link below to book a free, no-obligation consultation.

We’ll review your case and give you a good overview of how Ontario law in general — and the FLA in particular — apply to your circumstances. And we’ll do everything in our power to help you recover your losses.

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