Calgary lawyer discusses how personal injury claims for children differ from those for an adult.

In most regards, a personal injury claim for a child is similar to one for an adult. There are a few key differences to keep in mind.

A guardian or parent will sue on the child’s behalf

Children cannot sue in their own right. This is not an obstacle, however, to launching a lawsuit. It simply means that a guardian or parent will sue on the child’s behalf and will be listed on the Statement of Claim as a ‘litigation representative’ for the injured child. The settlement of a child’s claim is governed by the Minors’ Property Act.

The Minors’ Property Act is further defined and explained through the Alberta Minors’ Property Regulations. The regulations stipulate that any claim that is awarded over $10,000 is subject to the Minors’ Property Act. If your child has been injured in an accident or due to someone’s negligence, it can be very difficult to tell how much compensation your child is entitled to without seeking the advice of a competent personal injury lawyer.

The limitations periods

It is also important to note that the limitations periods – time periods and deadlines by which you must make a claim – that govern children in an injury claim also differ from those that governs adults. The differences are defined in the Limitations Act, RSA 2000, C. L-12, specifically, Section 5.1.

Involvement of The Public Trustee

The Public Trustee is often involved with the claim of a child who has been injured when it comes time to settle. Awards and the disposition of awards will tend to involve and require the consent, procedures and policies of the Public Trustee. These laws and regulations are in place to ensure that any award of money to a child will be maintained and used properly and in the best interests of the child. The award is often held “in trust” until the child reaches the age of majority, but can also be availed of in order to obtain services and products the child may need, such as ongoing healthcare or physical therapies.

Damage or types of losses

Another way that an injury claim is different for children than for adults is that the damage or types of losses commonly claimed for adults don’t apply to children. For example, a young child is unlikely to have lost income due to their injuries. They are also unlikely to have a claim for loss of housekeeping capacity (losses due to inability to perform tasks around the home).

One type of loss that can be much larger for a child is their ‘loss of future income.’ A child has his or her entire working life ahead of them – 45 or more years. The challenge is putting a dollar figure on this loss. It can be a complicated process. The severity of the injury, the prognosis for recovery, and the child’s demonstrated abilities and interests are key factors. Estimating loss of income is even more challenging when the child is too young to have started on a particular educational or career path.

Standards of negligence

Children are held to a different standard than adults when it comes to negligence. The degree to which a person contributes to their own injury (contributory negligence) can reduce the amount of compensation that a court awards them.

Adults are generally held to an objective standard – what would a reasonable person have done in the situation, regardless of what this particular person had in their mind at the time? With children, by contrast, courts use a mixed subjective/objective test. The court considers what a child of similar age, intelligence and experience as the child in question would have done in such a situation.

It’s important to note, however, that courts tend to apply the higher, adult standard of care when a child is engaged in what is typically an adult activity, such as driving a powerboat or dirt bike.

These are just a few ways that personal injury claims are different for children than for adults. If you have any questions, please contact me.

Vladimir Zhivov answers your question: Do I need an MVA lawyer for injury claim in Alberta, Canada?

While this topic has been discussed previously on our blog, such as in this post, I feel like another post is warranted. Indeed, the simple question seems to come up time and time again:

Do I need an MVA lawyer?

This question often seems to come from people who have just been contacted by an “insurance adjuster” who works for the insurance company of the negligent driver that caused the motor vehicle accident, which led to your injuries.

The insurance adjuster often tells the victim of negligence that the maximum they can receive for their injuries is about $5,000, because of the “cap” put in place under the Minor Injury Regulation in Alberta. While the adjuster is correct in stating that there is legislation called the Minor Injury Regulation in effect in Alberta, they are misleading in stating the “maximum” you can receive for your MVA injury is $5,000.

The truth of the matter is much more complex: only “minor” MVA injuries – sprains or strains that do not cause a serious impairment – are subject to the “cap,” and you are also entitled to amounts not covered by the “cap” put in place under the Minor Injury Regulations.

The “cap” also does not apply to any tears in your muscle fibers, ligaments or tendons – these injuries are not always immediately apparent by x-ray, and may require an ultrasound, nor does the cap apply to psychological injury like anxiety, depression or PTSD that resulted from the motor vehicle accident.

(I always try to provide a short answer, but it inevitably becomes a long answer, and typically continues like the following…)

So, If you are fully recovered by the time the insurance adjuster contacts you (usually a few weeks or months after the accident), and the adjuster offers you the “cap” amount, you might not need a lawyer.

However, read this post first – you may have other injuries of which you are not aware, or you may be missing some other important issue. And remember: once you settle, you settle for good – you cannot come back and ask for more money if you discover additional injuries in the future.

If, however, you are still in pain and continue to suffer from your injuries when you receive a call from the insurance adjuster, I would advise that you tell the adjuster that you are retaining a lawyer, and contact a Calgary personal injury lawyer to assist you with your claim.

You need to make sure you are getting the compensation you deserve. Your unique situation, including not only the diagnoses of the injury, but also the effects that the injury has had and continues to have on work, life and your overall mental and physical well-being, requires a knowledgeable and experienced advocate who can argue for the appropriate amounts of compensation.

An MVA injury lawyer can also save you the time and stress involved in dealing with the insurance companies, so you can focus on what’s most important: getting better.

Calgary injury lawyer talks about expert witnesses in personal injury trials

The recent decision from the Alberta Court of Queen’s Bench, Jones v Stepanenko, 2016 ABQB 295, builds on previous case law, such as McLean v Parmar, 2015 ABQB 62, and Chisholm v. Lindsay, 2012 ABQB 81, in providing guidance on compensation for chronic pain injuries in Alberta with consideration of the Minor Injury Regulation, Alta Reg 123/2004.

In Jones v Stepanenko, the Plaintiff, Ms. Jones, suffered serious injuries and her life was greatly affected as a result of these injuries. In the words of the court:

Ms. Jones suffered from a serious soft tissue injury accompanied by various contusions, lacerations and resultant severe headaches and resultant chronic pain condition which includes fibromyalgia and myofascial pain disorder. She has required a significant amount of treatment in the form of aggressive physiotherapy, massage, various medications, and an exercise program. Ms. Jones’ career path in nursing was altered and her recreational lifestyle diminished. She did all that could reasonably have been contemplated for her and yet unfortunately she developed a chronic pain condition and fibromyalgia which she will have to manage for the rest of her life. She has fought through her issues and as a result will be able to continue to develop her career. (para 138)

In this case, Honourable Madam Justice K.M. Eidsvik also discusses the medical profession’s role and obligations in the personal injury law context. Justice Eidsvik is opinionated on the failures and shortcomings of the professionals who have examined and reported on the plaintiff’s injuries. She criticizes one doctor who testified that “he based this decision on the medical model – NOT the definitions in the Regulations”. She also appears skeptical of the doctor, and states that “in his 15 years of assessing strains and sprains (note the legislation came in 12 years ago…) he has NEVER found someone who has suffered a “serious impairment”.”(para 45) Justice Eidsvik also reminds medical professionals to mind legal definitions, not medical definitions, when participating in the medical-legal arena. She is critical of the doctor, and writes “when the legal interpretation of the Regulation definition was put to him he noted that he was aware of this but that this has not changed the way he does his “certified medical examination”.” (para 45)

Justice Eidsvik is direct in her suggestion to the members of the medical profession who participate in the Court process to report on injuries suffered by plaintiffs:

I would urge Dr. Stelmeschuk, and other doctors certified to do the Certified Medical Examinations under the Regulations, to have the law explained to them on this point. These medical legal reports are relied upon by insureds and injured parties and they need to be as accurate an opinion as possible. It is not appropriate in the legal setting for which these reports are prepared to rely on definitions and tests of disability that do not coordinate with the definitions set out by our Legislature in the Regulations. The financial consequences are significant. (para 106)

Justice Eidsvik also discusses the critical importance that medical professionals play in the early stages of treatment and assessment with regards to the coverage of treatment expenses through Section B accident benefits. Speaking of the plaintiff’s doctor, she writes: “I reject Dr. Bauman’s opinion that at this time “there was no evidence of ongoing injury”. On the stand even Dr. Bauman conceded that this meant no “objective” injury and that it did not mean that Ms. Jones could have been still suffering from pain and headaches that are outside his realm of expertise” (para 103). This concession on the stand prompted another paragraph of guidance for the medical profession from Justice Eidsvik:

I note that this concession by Dr. Bauman is a little late for Ms. Jones. Because of his “no injury” opinion, her section B benefits were cut off. Dr. Bauman may well have been using his orthopaedic way of assessing the Plaintiff’s injuries but he appears to have forgotten his audience when he is asked to what amounts to an important medical legal assessment. I would hope that in the future he will make his reports more clear and perhaps suggest assessments by other medical professionals outside his field, like in pain management and headache management here, to the extent that he does not feel qualified to opine on them. (para 104)

Justice Eidsvik also provides some insight into loss of income claims. She agrees that a loss of capacity award was appropriate in the case, and actually believed that the plaintiff was entitled to more than that which was requested by plaintiff’s counsel. She writes: “the claim made by the Plaintiff in the amount of $125,000 is conservative in my view, and accordingly I award the full amount as claimed” (para 128). Although the plaintiff was able to continue working, it was pretty clear that significant losses could be expected to be incurred over time. This is a lesson for both Plaintiff and Defense counsel that loss of income and earning capacity claims should not be minimized or downplayed, lest they not be realized to their fullest extent at trial.

Read more about claims for the loss of income and the loss of earning capacity.

In Alberta, if you are involved in a motor vehicle accident with an uninsured driver, you can seek compensation from the Province of Alberta via the Administrator of the Motor Vehicle Claims Act. The Province then later tries to get that money back from the uninsured driver. The Province encourages these uninsured drivers to pay back the money that was spent to compensate victims of their negligence by suspending their licences until the money owed is paid back to the Province. (This is pursuant to section 102 of Alberta’s Traffic Safety Act).

What if the uninsured driver later declares bankruptcy? Can the Province continue to withhold the licence until the money is paid back?

The Supreme Court of Canada, Canada’s highest court, recently decided that the driving privileges of an individual who had declared bankruptcy cannot be withheld by the Province, even if that individual has failed to pay back the Province for the money that was paid to a victim of their negligence while driving uninsured. The Court declared that the Alberta Law (section 102 of Alberta’s Traffic Safety Act) was unconstitutional and no longer valid because it conflicted with the Bankruptcy and Insolvency Act, a federal law.

In the case before the Supreme Court, “M” was uninsured and caused an accident. The Province had compensated an individual who was injured in the accident and had unsuccessfully sought to recover this money from M. M eventually declared bankruptcy and was discharged from all his debts pursuant to Section 178(2) of the Bankruptcy and Insolvency Act, and therefore did not pay the Province back the money he owed in full. Because of his failure to pay, the Province suspended his vehicle permits and driver’s licence. M contested this suspension.

The Supreme Court agreed with M, and decided that section 102 of Alberta’s Traffic Safety Act is unconstitutional as it conflicts with Section 178(2) of the Bankruptcy and Insolvency Act, which allows for the discharge of M’s debts as an effort towards financial rehabilitation. The Supreme Court decided that suspending an individual’s licence and vehicle permits because he or she failed to pay back the Province, even after declaring bankruptcy, is unconstitutional and no longer valid law.

The court asserted that this law “frustrates the financial rehabilitation of the bankrupt,” as they are unable to obtain their driving privileges even after declaring bankruptcy and looking for a fresh start. The majority of the court wrote: “The crushing burden of the Province’s claim against M was the main reason for his bankruptcy. If s. 102 is allowed to operate despite M’s discharge, he is not offered the opportunity to rehabilitate that Parliament intended to give him.”

People sometimes joke about how we as Canadians seem to apologize even when we have no real reason to apologize.

For example, if two individuals brush shoulders walking past each other on a busy street, or almost collide their shopping carts in a supermarket, it’s not uncommon to hear one or both individuals say, “I’m sorry” – even if they are not to blame for the incident.

Why do we apologize so profusely? Perhaps it is a matter of politeness and courtesy, or our way to simply express regret about the occurrence of a possibly avoidable incident.

Whatever the reason, an expressed apology is proven to reduce conflict and restore relationships between individuals following an accident or unforeseen event. Saying “I’m sorry” is a powerful way to cool overheated emotions that result from accidents.

Legislatures across Canada have recognized the importance of an apology. Several provinces and territories including Ontario and British Columbia have drafted and enacted legislation called an “Apology Act,” which changes the law to make an apology inadmissible as evidence in a lawsuit regarding the matter for which the apology was expressed.

Instead of making a new piece of legislation, Alberta chose to insert a section into the Alberta Evidence Act that has the same effect as the “Apology Act” legislation found elsewhere in Canada.

Section 26.1(2)(a) of the Alberta Evidence Act expressly states that an apology made by or on behalf of a person in connection with any matter does not constitute an express or implied admission of fault or liability by the person in connection with that matter.

Section 26.1(3) states that evidence of an apology made by or on behalf of a person in connection with any matter is not admissible in any court as evidence of the fault or liability of the person in connection with that matter.

This means that if you are involved in a motor vehicle accident, you can say, “I’m sorry” to the other driver involved without having to worry about that apology eventually affecting your lawsuit against that driver.

If you, or perhaps your passenger at the time, apologized in the past following an accident that you ultimately learned was due to the negligence of the other driver, that other driver cannot say that you or the passenger had apologized for the accident, and therefore admitted liability. The other driver cannot use the apology as evidence of anything.

While true equality between male and female earnings still eludes society at large, the courts may have showed signs of recognizing and eschewing the inequality.

A recent Alberta court decision McLean v Parmar, 2015 ABQB 62, recognized how the use of the typical male/female-specific actuarial tables for the earning capacity of the plaintiff’s job position (in this case accountants) may yield unjust and inaccurate assessments depending on the actual earning capacity trends of the plaintiff.

The court stated that using female earnings for accountants, instead of a blend of male and female earnings, or males’ earnings only, “would underestimate the loss because Ms. McLean has not followed the average earning pattern of females so far (which is far lower on average than males’ earnings). Indeed, her income pattern pre-accident was well above both the female and male earning averages since she worked at both a full-time and a part-time job”. The judge opined on the plaintiff’s established higher than average earning trends, and concluded, “I cannot condone the use of the lower earnings profile of female workers here, or ones that reflect the general pool of accountants.”

On one hand, the court affirms the fact that women can (justly) be predicted to earn the same – or more – than their male counterparts, depending on their own fact-specific earning history. At the same time, straying away from the lower, female-specific actuarial tables required evidence to rebut the presumption (or the current reality) that women will tend to make less than their male counterparts. The judge doesn’t comment on the unjustness of the reality of separate earnings calculations for men and women, but simply recognizes that there are indeed two scales which are used to predict income, and that some individuals, like the plaintiff in this case, might nonetheless be predicted to (atypically) make more than either scale would suggest.

In another case, Steinebach v. O’Brien, 2011 BCCA 302, both the British Columbia Court of Appeal and the Trial Judge, which it overturned, also addressed the issue of differences between male and female earning capacity. The trial judge accepted the fact that the average male earned $916,600 in his lifetime, while the average woman earned only $532,000, but also recognized that this gap will begin to close over the lifetime of the plaintiff – a young girl. In fact, the trial judge ultimately awarded the plaintiff 97% of the accepted male’s earning capacity. The British Columbia Court of Appeal, however, rejected that optimistic prediction of almost-gender equality within one generation, reducing the award to $750,000 – not utopian, but a favorable and somewhat progressive prediction by the courts regarding the issue of gender inequality amongst salaries.

For most motor vehicle accidents and personal injury claims involving adults who are already in the workforce, the issue of different income-earning predictions for males and females in the same role is not usually an issue because the damages awarded for the loss of future income-earning potential will depend on the facts and circumstances of each individual’s employment history and established income-earning potential.

As personal injury lawyers we see every day that accidents can happen in the best of conditions. Holidays bring additional hazards to the roads and sidewalks of our communities.

With Halloween just a few weeks away, here are some important safety considerations to keep in mind. They apply whether you have children who will be trick-or-treating or you’re just going to be driving on the roads.

Avoid costumes made of flammable materials.
Choose costumes that don’t pose a tripping hazard.
Choose brightly coloured costumes that motorists can see. You can increase a costume’s visibility by adding reflective tape.
Consider using face paint rather than masks that can impair vision.
Avoid coloured contact lenses because they can cause eye injuries.
Provide children with flashlights to take with them trick-or-treating and accompany small children.
Check all candy for hazards before they are consumed.

Drivers should stay alert for children on the streets on Halloween, especially at dusk. Not all costumes are easy to spot. Keep in mind that many costumes impair the hearing and/or vision of the wearer.

There are also Halloween hazards around the home. Keep these tips in mind:

If you’re expecting trick-or-treaters, ensure good lighting in front of your home and remove any tripping hazards.
Be careful with lit candles, especially if they’re somewhere a child or pet could knock them over. Consider using electric lights rather than candles in jack-o-lanterns.
Keep pets securely tied up or in closed rooms to avoid injuries to visitors or to the pets themselves.

For more Halloween safety tips, check out this Health Canada link: http://www.hc-sc.gc.ca/hl-vs/iyh-vsv/life-vie/halloween-eng.php

The City of Calgary has just issued a new report showing the most popular cycling locations in the city. It also reveals some interesting demographic data on the city’s cyclists. The report states that nearly 20,000 cyclists were counted at 51 locations across the city for the 2013 Bicycle Count.

The busiest count location turned out to be where Bow River Pathway meets Crowchild Trail SW. A six-hour count at that location yielded a total of 2,787 cyclists passing by. Other busy locations included Bow River Pathway at 11^th Street SW, Prince’s Island Bridge over Memorial Drive NW, and Harry Boothman Bridge over the Bow River (at Edworthy Park).

As personal injury lawyers we were glad to read that 86 per cent of cyclists were wearing helmets, according to the report. As the City notes on its website, cycling helmets can prevent up to 85 per cent of serious head injuries.

The prevalence of cycling helmets is especially encouraging when you consider that Alberta’s Traffic Safety Act does not require adult cyclists to wear helmets. Anyone under the age of 18, however, must wear a helmet while cycling. This includes a child riding as a passenger on a bike.

Perhaps surprisingly, only 21 per cent of cyclists were found to be female. In terms of age, less than three per cent of cyclists appeared to be older than 65 or younger than 18. In other words, the typical cyclist in Calgary is an adult male wearing a helmet.

To learn more about cycling injuries, and how to prevent them, check out our blog article on the topic of cycling safety.

For more information on the City of Calgary’s bike data and its cycling infrastructure planning, visit this site.

It is often a good idea to keep a ‘pain diary’ or ‘pain journal’ following an accident such as a motor vehicle collision or a slip and fall.

A pain diary, like its name suggests, is a record of your daily activities along with any discomfort or pain felt during those activities. A pain diary should also include treatment sessions and other medical care you receive so that it’s clear what impact the treatment has on your well-being. Just a few brief notes every day can be very helpful for your personal injury claim and your recovery process.

A pain diary is a record of the pain and suffering you’re experiencing due to an accident. It can provide support for the pain and suffering component of your personal injury claim. It highlights how an accident has affected your life.

Your pain diary will point to those activities that you used to do on a regular basis but which are now difficult or impossible to do. You might not even realize how much your life has been impacted without the use of a pain diary.

If you must curtail certain activities, such as mowing the lawn, and have to pay someone else to do it, that’s an additional expense for which your personal injury lawyer can seek compensation. A pain diary can be a wealth of helpful information to your personal injury lawyer as he or she seeks to determine the position that you would have been in had the accident not occurred.

A pain diary doesn’t just assist the work of your personal injury lawyer. It also assists your doctor and other medical professionals and therapists. In fact, medical professionals often ask their patients to keep a pain diary.

A pain diary will aid your memory in describing symptoms to your doctor. Your doctor and therapists may also notice patterns in the symptoms that you miss, such as the nature of activities that cause pain or the time of day at which those symptoms occur.

If you are unsure how much detail to include in your pain journal, or what items to include or exclude, ask your personal injury lawyer.

Let’s say you’re a passenger in a vehicle and your spouse or another family member is the driver. What happens if that family member makes a mistake and causes a serious accident that results in injuries to you? What are the implications for your insurance claim?

In such a situation, your family member’s car insurance provider will play a dual role.

First, in Alberta and in most other provinces, your family member’s insurer will be your Section B insurer. Section B insurers provide Section B benefits — these are no-fault accident benefits provided by insurers to their insured drivers and their passengers. Section B benefits ensure that your medical expenses are covered from day one, regardless of the eventual outcome of any personal injury litigation.

Second, your family member’s car insurance provider will also be the defendant for the purposes of your insurance claim, if it appears that your family member was indeed at fault. Although a single insurer will play dual roles, the insurer will assign a different adjuster to each role. One adjuster is there to assist you with your accident benefits, while the other investigates the accident and negotiates a settlement with you or your personal injury lawyer.

You might wonder if it’s ever worthwhile to not pursue a claim, since in a way you’re suing yourself. Aren’t you just encouraging your insurer to increase your insurance premiums?

In fact, it’s always in your interest to pursue the claim. First, if your family member was indeed at fault, their insurance rates will go up regardless of whether you pursue a claim. The insurer will determine fault regardless of anything you do. Second, the losses caused by even a minor car accident will typically exceed (and usually greatly exceed) the increased future premiums as a result of the accident.

It’s therefore likely always in your interest to pursue a claim if you’re injured due to someone else’s actions, even if that person is a family member. However, you should contact a personal injury lawyer to determine how the law applies to your particular situation.