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How do I File a Claim if I Have Been Injured in a Car Accident in Nova Scotia?

August 7, 2019 by Kamila Philip

file a claim

Car accidents have gotten especially worse as distracted driving and speeding are on the rise, as well. Some of the most frequently observed scenarios responsible for crashes in Nova Scotia include, but are not limited to:

Drunk and drugged driving
Failure to react appropriately to changes in weather/road conditions
Failure to heed traffic signals
Texting while driving
Traveling at excessive speeds
Ill-advised lane changes
Motorist fatigue
Errors in judgment
Inattentive/distracted driving
Improper loading of cargo in large trucks
Defectively designed or manufactured vehicles and/or components

Being involved in a car accident can leave you shaken, confused, and devastated, especially if you suffered any injuries as a result. The first thing on your mind is likely how to make sure you and your loved ones are taken care of, and where to begin in addressing property damage to your car; in other words, how can you become whole again?

Filing a claim is sometimes the furthest thing from your mind in these circumstances. And yet, that is sometimes the only way to ensure that you receive what you need in order to address your medical bills, any lost wages, and any pain and suffering you have endured.

If You Have Been in an Accident

If you are involved in a collision, make sure that you and everyone else involved are OK and seek medical attention in case you incurred any injuries. In addition:

Exchange information for everyone involved and any witnesses. That not only includes insurance information but driver’s license information, license plate numbers, contact information, etc.
Take pictures of the accident scene, vehicles involved, injuries, etc.
Contact the police to obtain a police report
Contact an experienced accident lawyer to obtain assistance to ensure that you receive the maximum compensation you deserve
Do not talk about your claim with those involved in the accident—remember that insurance companies are trying to minimize payouts
Track your injuries and medical conditions and expenses, including anything that is worsening or getting better. This also includes any ways in which your life has been affected—events you had to miss, every day activity you can no longer participate in, etc. This also includes a record of any missed days at work due to your injuries
Do not settle your claim until you understand the full extent of any injuries you have experienced. This can include full recovery and/or understanding the full extent of any injuries and disabilities involved
Ultimately, be patient. Claims, when properly resolved, can take years

You May Need to File a Claim and Not Know it: Understanding Concussions

As anyone who has suffered from one will tell you, you have no idea how bad it is to suffer from a concussion until you have one. Concussions are mild traumatic brain injuries that can result from whiplash-type injuries or a blow to the head, altering the brain’s ability to function normally by affecting the nerves. As a result, even simple tasks can become extremely difficult because the brain itself is not producing enough energy to meet these basic demands. For example, driving a car, going grocery shopping, and exercising can become dangerous and involve nausea and dizziness.

Specifically, some of the common symptoms of concussions include:

Adversity to light and noise;
Inability to work;
Fatigue;
Nausea;
Vestibular dizziness;
Mental fogginess; an inability to focus and concentrate; and sometimes read/remember what you read;
Lack of memory skills;
Headaches;
Memory and emotional issues, such as anxiety and depression;
Migraines; and
Sleep disturbances; sometimes even severe insomnia.

Concussions are also unfortunately common: According to some estimates, close to 3,000 new brain injuries occur every year in Nova Scotia alone. Many people are unaware of the deadliest issue of all — someone experiencing a second blow to the head after already having experienced a concussion. A certain percentage of concussions develop into post-concussion syndrome, which can last for years and is often a hidden condition.

As a result, if you have experienced a concussion in a car accident, do not rush the healing process; instead, speak with an experienced personal injury lawyer here in Nova Scotia to obtain information about your rights and options.

Filing for the Canada Pension Plan (CPP) Disability

Many who have been involved in debilitating car accidents apply for CPP disability, believing that their injuries and years of paying into the program have earned them the right to receive those benefits. However, CPP will often turn applicants down, claiming that their injuries are not “severe” or” prolonged” enough unless they work with a lawyer to ensure that justice is done.

If you have been turned down for CPP benefits, you have the right to request reconsideration, as well as file an appeal so that a review tribunal will hear your case. You also have the option of taking the case to Federal Court, as well as the appeal division of the Social Security Tribunal of Canada, which makes decisions on CPP.

If you have been denied CPP benefits as a result of a car or slip and fall accident, contact our experienced personal injury lawyers here in Nova Scotia to find out more about your options.

The Process of Filing

As part of your claim, you and your lawyer will:

Notify the individual and/or the insurance company that you are filing a claim. You want to make sure that you work with an experienced accident lawyer in doing so so that you are not taken advantage of by any insurance companies, which will likely try to lowball any estimates and try to convince you that your entire claim is capped;
Your lawyer may file a Notice of Action and Statement of Claim, outlining the facts of your case, such as what injuries you sustained and a description of your losses;
You and your lawyer will also supplement any filing with additional information, such as medical expenses, police reports, loss of income documentation, and other relevant evidence; and
You and your lawyer may also engage in settlement discussions.

Understanding Damages

In Canada and Nova Scotia the types of damages you can recover include:

Compensatory (or “actual”) damages for pecuniary loss: These include consequential and expectation damages;
General (“non-pecuniary”) damages: for non-monetary losses that are difficult to assess. These include losses related to disfigurement, loss of enjoyment of life, pain, suffering, etc.;
Pecuniary (“special”) damages: those that can be financially measured, such as medical expenses;

Some of the most common damages that people recover as a result of car accidents include those related to cost of care, emotional distress, loss of enjoyment in life, future earning capacity, income and valuable services, medical bills, and pain and suffering.

You are Not Alone: Contact Our Car Accident Lawyers Today

Assessing damages in personal injury claims can be challenging when you are dealing with injuries that cannot necessarily always be measured with a number, such as those suffering from chronic pain and other conditions where the issue is persistent. The personal injury lawyers at Preszler Injury Lawyers have helped countless clients throughout Nova Scotia and surrounding areas to obtain the compensation that they need to get back on the road to recovery. We have been assisting victims of car accidents, slip and fall accidents, long term disability claims, as well as other injury matters since 1959. Our national presence across numerous provinces in Canada has resulted in thousands of claims being settled. Our clients are never treated like file numbers, and instead, we devote an entire legal team to each and every one of their claims, ensuring constant communication and updates as claims progress. We also make sure to treat our clients like family, where our lawyers are not paid unless you are, and we will come to you when your injuries prevent you from traveling to our offices.

If you or a loved one has been involved in an accident here in Nova Scotia or surrounding areas, contact our personal injury lawyers today for a free consultation to find out how we can help. Regardless of how severe your injuries are; we are ready to fight on your behalf to obtain the compensation you need to get back on the road to recovery. We also help clients with disability benefits, bicycle accidents, dog bite injuries, wrongful death, motorcycle accidents, sexual abuse, medical malpractice, slip, trip and fall accidents, birth injuries, truck accidents, premises liability, snowmobile and ATV accidents, defective products, and more.

What is the Minor Injury Cap in Nova Scotia?

August 7, 2019 by Kamila Philip

minor injury

In Nova Scotia, the law (the Nova Scotia Insurance Act) limits an injured victim’s ability to receive compensation related to pain and suffering that is considered to be a “minor injury” to $8,768* as of 2019 (*indexed to inflation each year; starting at $7,500 in 2010). However, it is important to note that there is no cap on the victim’s ability to receive compensation for other actual financial claims such as medical expenses, property damage, loss of income, and related expenses.

What is Considered Minor?

Based on Legislation, the following questions are often asked in determining whether a plaintiff has suffered a minor injury:

Was there a personal injury involved?
If yes, did it result in permanent, serious disfigurement?
Did the injury result in any permanent, serious impairment of an important body function?
Did the injury resolve within 12 months after the accident?

The law imposes this limitation when the injuries include sprains, strains, and certain levels of whiplash (levels one and two, not levels three and four, which include fractures and/or dislocations of the spine, as well as tendon and/or reflex issues, as well as neurological damage; i.e. “serious impairment”).

However, whether or not your injury can technically be considered “minor” is something that is best to discuss with your lawyer, as relying on your own judgment can be dangerous and result in seriously undervaluing what you are owed.

How Can Whiplash be a Minor Injury?

Whiplash is a neck injury that occurs when your head moves forcefully and rapidly back and forth, almost like a “whip.” These types of injuries usually occur as a result of being rear-ended in an auto accident, but can also result from any action that mimics this type of accident, such as physical abuse, aggressive shaking, certain types of sports, etc.

When it comes to figuring out just how serious your whiplash injury is, we always suggest getting multiple medical opinions right away because these types of injuries can quickly escalate; initially feeling minor, while quickly turning into something overwhelming and long-lasting; sometimes even permanent. Some whiplash symptoms include:

Dizziness;
Fatigue;
Headaches;
Loss of range of motion in the neck area;
Neck pain; and/or
Tenderness, tingling, and/or loss of feeling in the arms, upper back, and/or shoulders.

In addition, some people also experience:

Blurred vision;
Depression;
Difficulty concentrating;
Irritability;
Memory issues;
Ringing in the ears (“tinnitus”); and/or
Problems sleeping.

While these symptoms can resolve within a few weeks, sometimes they become chronic and long-lasting. In particular, if you are older or have suffered from related injuries before (not only including whiplash but also neck or back pain), this can result in a more serious outcome.

The Nova Scotia Insurance Act defines a “minor” injury as a sprain, strain, or category 1 or 2 whiplash, which covers basic neck pain, stiffness, tenderness, and decreased range of motion. Anything beyond that constitutes a more severe injury (meaning pain and suffering damages are not capped).

What Injuries are Arguably Automatically “Major”?

Some of the most serious injuries that can result from car accidents include those to the:

Bones (fractures)
Brain
Face
Head
Neck fracture
Spinal cord injuries
Disc (herniation)
Ligaments (torn)
Skin (burns potentially leading to permanent disfigurement)
Vital organs

These can also include amputations, blindness, deep lacerations, chronic pain, internal bleeding, cognitive disabilities, and/or wrongful death.

Damages in Canada: How Much is My Claim Worth?

In Canada, the types of damages you can recover include:

General (“non-pecuniary”) damages: for non-monetary losses that are difficult to assess. These include losses related to disfigurement, loss of enjoyment of life, pain, suffering, etc.;
Pecuniary (“special”) damages: those that can be financially measured, such as medical expenses;

There are certain categories of loss for which it is relatively easy to determine fair monetary value — medical bills, property damage repair bills, wage loss and the like can be ascertained by reviewing records, invoices and employment information to determine proper compensation levels. However, there are other areas in which the true harm sustained is far more difficult to calculate. Financial calculations related to physical pain and emotional distress common to tort claims require detailed analysis of the types of professional treatment needed to address them, the probable impact on the victim’s previous lifestyle, employment prospects and relationships, and other factors.

Still, establishing damages in the aftermath of an auto accident is an essential part of ensuring full and fair compensation. Collecting and assembling vital documentation is perhaps the most important task involved in obtaining maximum financial recovery, and it is useful for victims to understand some of the categories of evidence that can prove essential to their success.

What to do if You Have Been in an Accident

First and foremost, make sure that everyone involved in the accident is OK and all vehicles are out of the way of oncoming traffic so as to avoid creating a hazard. This will require that you receive medical attention right away, even if you do not think that you have a serious injury, as some injuries are not obvious at first. Also know that contacting the police can be helpful in documenting exactly what happened. Make sure that you refrain from making any potentially incriminating statements to the other driver and document everything – take pictures, take down information from the driver and witnesses, take notes on locations and what happened, etc.

Accidents in Nova Scotia and Surrounding Areas

Auto accidents can unfold under a seemingly endless array of circumstances. Some of the most frequently observed scenarios responsible for crashes in Nova Scotia include, but are not limited to:

Drunk and/or drugged driving
Failure to react appropriately to changes in weather/road conditions
Failure to heed traffic signals
Texting while driving
Traveling at excessive speeds
Inappropriate lane changes
Motorist fatigue
Errors in judgment
Inattentive/distracted driving
Improper loading of cargo in large trucks
Defectively designed or manufactured vehicles and/or components

Choosing the Right Personal Injury Lawyer

In choosing your lawyer, you want to make sure that you not only work with someone who is in the right location, but who has been practicing in the legal area related to your injury for a significant amount of time.

At Preszler Law, we have been assisting victims of car accidents, slip and fall accidents, long term disability claims, as well as other injury matters since 1959. Our national presence across numerous provinces in Canada has resulted in thousands of claims being settled. Our clients are never treated like file numbers; we devote an entire legal team to each and every one of our client’s claims, ensuring constant communication and updates as your claim progresses. Our lawyers are not paid unless our clients are. We will come to you when your injuries prevent you from traveling to our offices.

How Injury Lawyers Assist in Dog Bite Cases

August 6, 2019 by Kamila Philip

How Injury Lawyers Assist in Dog Bite Cases

Dog bites can result in serious injuries. At the very least, they will result in a trip to the hospital. You may need shots to clear up potential infections and you will likely have to live with at least some discomfort for a period of time. In some cases, you end up missing time from work because you cannot do your job while you are recovering. People can also sometimes die from dog attacks.

While it seems like one of those incidences that should be trending downward, each year insurance companies see more claims regarding dog bite lawsuits. In most of these cases, a dog has been allowed to escape the property and attacked a neighbor. In other cases, the dog was in a public place and lost its cool. No matter what the situation, you deserve to be compensated for pain and suffering related to your injuries and any other damages that result from the injury.

Should I File a Dog Bite Lawsuit?

That depends. In cases in which there is substantial scarring and medical issues that persist, it is in your best interests to recover damages.

A dog bite can cause major damage. The dog not only draws blood but tears into the muscles and nerves. This can result in permanent scarring and permanently reduced function due to nerve damage. Additionally, any time you miss from work due to your injury deserves to be compensated as does extensive pain and other kinds of suffering.

What Does a Personal Injury Lawyer do?

In the event that you are bitten by another person’s dog, a personal injury lawyer prepares a file collecting all of the evidence and the medical consequences of your injuries. We then file a claim against the at-fault party or the insurance company that provides the policy for their property. This can get complicated. Determining whether there is insurance coverage is always important.

Laws Regarding Dangerous Dogs in Nova Scotia

It is important to understand that civil liability in dog bite cases is governed by the common law and can be governed by governmental bodies.

In Halifax, for example, an owner can be held liable for financial penalties if a dog has been deemed dangerous. For a dog to be labeled dangerous, the dog must have previously bitten another person and or demonstrated other dangerous tendencies. The dog is then registered as dangerous and the owner is subject to penalties if the dog attacks another person.

There are limits, however, to when a dog can be deemed dangerous. For instance, a dog that was defending itself or its property would not be deemed dangerous for attacking a trespasser. Additionally, if someone provoked the dog, the dog might not be considered dangerous by the court.

Nova Scotia does not have a specific statute regarding dog owner liability in personal injury lawsuits. Provisions issued under the Provincial Occupier’s Liability Act does hold owners to a reasonable standard of safety and obligations while the dog is on their property. The common Law principles apply when the dog is not on their property but is in their control

Proof and Liability for a Dog Bite in Nova Scotia

The question of liability must be established. In a dog bite lawsuit, a plaintiff alleges that as a result of the defendant’s negligence, the dog owner allowed the dog to injure the victim. In the past, the plaintiff needed to prove that the defendant knew the dog had a propensity for aggression or violence and failed to take the proper precautions to restrain the dog. That is no longer the case.

Today, the burden of proof in a dog bite case is much lower. In Nova Scotia, it is sufficient to prove that the dog did, in fact, cause the injury. The question that must be answered in a modern dog bite case is: Did the owner take reasonable measures to ensure the safety of others/his neighbors? If the owner’s failure to take these reasonable measures resulted in injuries to the plaintiff, then the owner of the dog is liable under the law.

Nonetheless, the plaintiff must be able to prove that the dog owner either knew or should have known that the dog presented a danger to others.

Provocation as a Bar to Recovery

Provocation does not necessarily bar a dog bite victim from recovering damages related to his or her injuries. However, it may reduce the amount of damages if it can be successfully argued that the victim instigated the situation. A dog bite lawyer can help you determine whether or not a dog owner is liable in the event that you are partly responsible for the incident.

Homeowner’s Insurance and Dog Liability Insurance

Since there are a number of homeowner’s insurance providers that will not insure certain breeds of dogs, insurance companies now offer dog liability insurance to those that have “more aggressive” or larger breeds of dog.

The Role of Your Personal Injury Lawyer in Filing a Claim

One of the first tactics that insurance company will employ is to blame you, at least in part, for instigating the dog bite. In cases in which the owner can be said to have taken reasonable precautions in securing the dog or ensuring the safety of neighbors, the insurance company may be able to get the claim tossed completely. This is much more difficult if you have a personal injury lawyer representing your interests.

Your lawyer will look for corroborating testimony and talk to other neighbors who can attest that the dog was, in fact, a danger to other people. This shifts the burden of proof back to the defendant to prove that he or she acted reasonably to secure the dog. If the defendant cannot prove that he or she acted reasonably to secure the dog, and your injuries were a result of that failure, the dog’s owner is liable under the law.

Talk to a Nova Scotia Dog Bite Lawyer

If you have been injured by an aggressive dog, the lawyers at Preszler Law Firm can help you recover damages related to your injuries. Give us a call at 1-800-JUSTICE or talk to us online for a free consultation.

Boating Laws and Safety in Nova Scotia

July 12, 2019 by Kamila Philip

The beautiful summer is upon us and, once again, boaters will be taking to Nova Scotia’s lakes and rivers to enjoy themselves. Whether you are new to boating or have been doing it for years, you need to be aware of the rules regulating the safe operation of boats. These rules are no less stringent than the ones that govern cars. They must be followed, and when they are not, you can not only be ticketed, but you can also be sued by anyone who is injured due to your negligence.

In this article, we will discuss boating laws and why they exist and how you can operate your boat more safely this summer to avoid legal problems.

Pleasure Craft Operator Card

If you plan on boating on any boat with a motor anywhere in Nova Scotia, you will need to carry your Pleasure Craft Operator Card (PCOC) at all times. Failure to do so will itself result in a fine. The law does not permit grandfather clauses.

The PCOC’s aim was to reduce the number of boating accidents and deaths. With over seven million people taking to the waters each year, many pleasure craft operators expressed concern that just about anyone of any age was allowed to operate these boats on Canadian waters.

If you have a pleasure craft license, you should not confuse that with the PCOC. The license does not apply to boat operators, only the boat itself.

Boating Accident Statistics

Each year, there are around 6,000 boating-accident-related injuries and 200 fatalities in this country. The Canadian Red Cross conducted a 20-year study that spanned 1991 to 2010. During that period, there were 10,511 water-related deaths with the majority (9,961) of these individuals either drowning or dying of hypothermia. The study showed that, had boaters been wearing PFDs (or life jackets) about 50% of these deaths could have been avoided. Capsizing, swamping, or falling overboard accounted for 75% of deaths. In 43% of cases, alcohol was shown to have played a major role.

In cases in which trauma resulted in death, personal watercraft were almost always implicated and trauma to the head made up 41% of trauma-related fatalities.

Age and Operator Restrictions on Boating

You must be 16 years of age or older to operate a pleasure craft without supervision. Those between the ages of 12 and 16 can operate pleasure craft with motors under 40 hp while under the supervision of someone 16 years of age or older who holds a PCOC license. Anyone under 12 years of age can only operate a boat with 10 hp or less with supervision.

Common Offenses Related to Boating

The most common offense related to boating is violating regulations requiring a specific amount of life jackets aboard the vessel. Since the Red Cross study, Canadian officials have recognized that there are about 5,000 people who would still be alive if they were either wearing their life jackets or had sufficient life jackets aboard.

Others include:

Careless operation of a boat
Speeding
Underage operation of a boat
Operating a boat without a muffler
Towing someone without a spotter

What Constitutes Careless Operation of a Boat?

Any boater in operation of a pleasure craft has a duty to ensure the safety of others on the water. This includes:

The pleasure craft must stay clear of swimmers and properties
The pleasure craft operator is responsible for the boat’s wash and is responsible for injuries caused to people or properties
The pleasure craft operator must abide collision regulations
The pleasure craft operator must use courtesy and common sense to avoid dangerous situations

Further, a pleasure craft operator is responsible for maintaining a safe speed. Instead of having a set speed limit, operators are required to use their best judgment. In cases in which they are within 100 ft of shore, it is illegal to travel more than 10 km/h. In addition, there will be speed zones for particular areas. Where this is no speed zone, pleasure craft operators are required to consider the following:

Visibility
Traffic
Wind
Sea and current
Proximity of navigational aids

In other words, if you are boating in less-than-friendly weather, you can be held responsible for operating your boat unsafely if your speed is considered too high for the current and weather conditions. Why? The faster you are going, the slower you will be able to come to a stop.

Careless operation is also specifically defined as the operation of a small vessel without due care or reasonable consideration for other persons. This includes (but is not limited to) how your wash affects the shortline, other boaters, and others occupying the water. It is imperative to operate your vessel with due consideration for others.

This includes only operating your boat while sober. Some statistics show that roughly one-third of all boating accidents are related to drunk boating. You may not operate your boat under the influence of alcohol or any other drug. This includes drugs that you may have a prescription for and yet compromise your ability to operate your boat safely.

Keeping Those Aboard Your Vessel Safe

You have a duty to ensure not only the safety of other boaters, swimmers, and anyone else on the water, you also have a duty to those who are inside your boat with you. If you fail in that duty, you can be held liable for both civil and criminal penalties. This requires that you maintain a proper look-out by both sight and hearing around your vessel. In case of an emergency, you should have an escape route planned out in your mind.

Consider the Weather

If you drive a car, you do have to consider the weather. Rain and snow are among the obstacles that drivers face. For boats, wind and fog are the two major concerns. Boats are also more susceptible to sudden storms and squalls. A careful boater will check the weather before leaving the dock.

You should have a barometer on your boat and you should know how to use it. The barometer can successfully predict sudden storms and even hurricanes. Familiarize yourself with the use of a barometer and you can avoid sailing into a storm.

Tips for Dealing with Storms

If you are in a storm, you can avoid tragedy by taking a number of simple measures.

Ensure all passengers are wearing life jackets
Reduce your speed and proceed to shore
Close hatches and ports to avoid swamping
Passengers should be low in the boat and near the centerline
Secure loose items to prevent them from becoming hazards
Release bilge to keep boat higher in the water

The best way to deal with a storm is to avoid sailing into one in the first place. A number of boaters are injured or killed each year by failing to make accommodations for inclement weather.

Waterskiing

A number of folks end up getting ticketed because they do not know the law when it comes to waterskiing (or towing). There must be at least two people on the vessel if there is a third waterskiing: One person to operate the boat and another person to watch the skier. Water skiers are required to wear life jackets. Additionally, it is illegal to waterski between the hours of sunset and dawn.

Boating While Intoxicated

Boating with a blood alcohol concentration of .08 or greater is a crime in Nova Scotia and most other Canadian provinces. If you are caught, you can face penalties of up to $600 for a first offense and subsequent prison sentences if this is your second or third offense.

It is unlawful for your passengers to drink onboard unless your boat meets specific requirements. These requirements include:

Permanent cooking facilities
Permanent sleeping areas
A permanent toilet

Most yachts and houseboats meet these basic criteria. However, even on these boats, it is unlawful to drink while the boat is in motion. Boat owners can be held liable even when their passengers are drinking aboard their vessels. In other words, you can be held liable for the injuries that a drunken passenger causes to him or herself. It is your responsibility to know the law and operate your boat safely.

Negligence in Boating Accidents

If one of your passengers or another individual is injured, you can be held liable and sued as a result of your negligence.

This means that if you do not have the proper number of life jackets or other safety equipment and one of your passengers dies as a result of the accident, you are legally responsible under the law. If you are found to have been operating your boat under the influence of drugs and alcohol, you are legally responsible under the law. If you do not take a safety measure that was covered in your PCOC course or otherwise operate your boat unsafely, you are legally responsible under the law.

Under the law, anyone who is injured aboard a boat can file a lawsuit against the boat’s owner and operator. The success of this lawsuit depends on what specific laws were violated in the process. Every year, lawsuits get filed against boat owners who have either injured their own passengers, a swimmer, or another boater. In cases where someone is killed in the accident, the family may file a wrongful death claim against the negligent party.

In most boating accidents, negligence is easy to prove. The operator of the boat is expected to take a safe boating class during which they are exposed to courtesy and safety requirements. Failure to abide by these requirements results in the majority of injuries you will see. These injuries are preventable. Because they are preventable, the boat’s operator and owner is responsible for them. That means they are liable for medical expenses, pain and suffering, lost time from work, and more.

So, what happens if one of your passengers gets drunk and falls off your boat? Again, you are liable. You are expected to know that the law prohibits such behavior in certain instances. Even though they contributed to their own injuries or even death, it is your boat, it is your property, and you could have prevented the accident by prohibiting the alcohol aboard your boat.

Common Types of Boating Accident Lawsuits

Boating lawsuits are commonly filed in a number of situations. These include:

Pleasure boating
Yachting
Jet skiing
Scuba diving
Water skiing
Fishing
Motorboating
Speed boating

What Should I do if I Have Been Injured in a Nova Scotia Boating Accident?

You should get help immediately. Afterward, you will probably want to file a police report and notify the Transport Safety Board of Canada. In cases where you intend on filing a lawsuit against an allegedly at-fault party, you will need a personal injury lawyer to help you file that claim.

During that period, you will want to keep very good records of your medical reports, surgeries, and types of discomfort and pain suffered. Under the Marine Liability Act, you are entitled to compensation of $1 million.

The Marine Liability Act

The Marine Liability Act delineates all of the rules and regulations of liability that a boater has toward his or her passengers and those with whom he or she shares the water. If someone with children is killed by the negligence of another party, the children and spouse can recover damages related to their loss of companionship and guidance. This is apportioned based on the degree of fault of the boat operator. That determination will be made by a jury.

What Causes Boating Accidents?

The majority of boating accidents have some component of alcohol involved. If you are operating a small pleasure craft, you should not even have alcohol aboard the vessel. Other common causes include:

Inexperienced operator error
Distracted boating
Bad weather conditions
Equipment failure
Speeding
Congested waters
Overloaded vessels
Poor handling of fuel

Talk to a Nova Scotia Personal Injury Lawyer Today

If you have been injured by a negligent boater, Preszler Injury Lawyers can help you recover damages related to your injuries. Our attorneys offer free consultations and we will not collect a dime unless you win your lawsuit. Give us a call at 1-800-JUSTICE or talk to us online for more details.

Can I Still File a Claim if I am Partially at Fault for My Accident or Injuries?

July 12, 2019 by Kamila Philip

Were you partially at fault in a motor vehicle collision? Movies and TV have made the general public believe that trials involve asking whether someone is responsible for an injury or an accident, and then asking how much damage was caused. But in real life, injury trials can be much more complex than just two parties battling it out in court.

Many injury cases involve multiple defendants pointing the finger at and blaming each other—as well as defendants trying to blame the victim for causing or contributing to his or her own injuries.

Many injury victims are shocked when a defendant or an insurance company’s first reaction is to blame them for their own injuries. For people already struggling with disability, lost work, and seemingly endless medical procedures, being blamed seems like adding insult to injury.

Understanding how Nova Scotia injury law treats victims who are partially responsible for their own injuries, and understanding what happens if you are indeed responsible, will help you handle these common defence tactics.

What is Contributory Negligence?

Contributory Negligence, as the name suggests, is the extent to which a victim “contributed” to his or her own injuries by his or her own negligence—that is, by doing or failing to do something that the victim should have done. Some examples of situations in which an otherwise innocent victim can be blamed for contributing to their injuries may include:

A driver who is distracted by an in-car infotainment system, and thus fails to avoid another driver who has run a stop sign
A consumer who is injured by a product because the victim failed to read or pay attention to usage instructions on packaging
A motorcyclist who is hit by a negligent driver, but the cyclist is not wearing a helmet (and the same logic would apply to someone in a car who was not using a seat belt)
Someone who falls on a substance on the floor, but the victim was looking elsewhere, or was not paying attention to his or her surroundings before falling

The law recognizes that just because a victim may have contributed to his or her own injuries—or at least, because the victim could have lessened (mitigated) the injuries that were sustained—that does not mean that victims should recover nothing.

Instead, Nova Scotia’s contributory negligence laws provide that a court must determine what percent of the accident or the injuries were caused by the victim’s own negligence. The victim will then not be permitted to recover for that percentage of the total verdict.

How Contributory Negligence Works in Court

Take for example a motorcyclist who is hit by a driver that ran a stop sign. The cyclist was not wearing a helmet. He sustains a torn rotator cuff in the accident. The court determines that the victim’s damages, including bills, future medical care, lost wages, and pain and suffering, are $100,000. The court also finds that the failure to wear the helmet made the victim 10% responsible (contributorily negligent) for his or her own injuries. That means that the most the victim could recover would be $90,000.

The amount the victim is responsible for his or her own injuries changes depending on the facts. For example, assume that our motorcyclist did not suffer a rotator cuff injury, but rather sustained a traumatic brain injury when his head hit the pavement. The court might now find that wearing a helmet would have greatly decreased the injuries the victim sustained. In this scenario, the percentages may be reversed—a court could find the motorcyclist 90% liable for his or her injuries, and the driver that ran the stop sign only 10% liable. Now, the victim’s recovery is limited to only $10,000.

Getting Medical Treatment

One area in which many victims end up being liable for their own injuries, is in the failure to get proper medical attention or the failure to follow medical advice. In many cases, injuries or disabilities are made worse when people do not get medical attention.

Nova Scotia law allows a court to find a victim partially responsible for his or her own injuries, to the extent that the failure to obtain medical treatment caused or made the injuries worse than they would have been.

This failure to get proper medical attention opens the door for defendants to use their own experts to give their own medical testimony about how the victim’s injuries came about. Instead of a court hearing an otherwise clear-cut case about someone who fell on a dangerous surface, the court now hears medical experts testifying about whether the victim’s injuries were caused by the fall or caused by the failure to get appropriate medical treatment. The victim is seemingly “on trial” for his or her medical decisions, which is not a good situation in which to be.

Multiple Defendants

Of course, not every accident involves just a victim and a single negligent defendant (person or business). In many cases, there may be multiple defendants responsible in part for the accident or inquiries sustained by an accident victim. Contributory negligence plays a role in these kinds of cases, as well.

Let us assume that in a car accident, a victim is hit from the side in an intersection in a car accident. The negligent driver runs a red light or other traffic signal. However, in addition to this illegal and careless driving by the negligent driver, the airbag in the victim’s car also fails to deploy. The victim suffers serious head injuries and, uncertain of exactly who is responsible for his injuries, sues both the driver and the car manufacturer.

There are two ways that these defendants can be liable to the victim if a verdict is entered in court.

Joint and Several Liability

The first way is called joint and several liability. This means that if one defendant could not pay the verdict (the total amount of the victim’s damages as determined by the court) the victim could go after either defendant to pay the total of the verdict.

Let us pretend that the court found the victim’s damages in our hypothetical to be $100,000. The Court also found the driver to be 80% liable and the car manufacturer 20% liable.

What if the driver of the vehicle were uninsured? What if the driver of the vehicle drove off after the accident, never to be found? How would the victim recover the 80% of $100,000 that the drover owed pursuant to the verdict?

If there were joint and several liability, the victim would be able to force the manufacturer of the defective airbag to pay the total $100,000, even though the manufacturer was only 20% liable (the law would then allow the manufacturer to sue the negligent defendant driver for the excess amount the manufacturer paid, but that lawsuit would not directly involve the victim).

Joint and several liability is helpful to victims because it is a type of security to ensure that if a defendant cannot or will not pay a verdict, the victim will at least get the entirety of his or her verdict. As long as at least one defendant is insured, or is large enough to satisfy a judgment, there is a good chance of complete recovery of a verdict by a victim.

Apportionment of Liability

The other way that the defendants would be liable, as opposed to joint and several liability, would simply be in proportion to their percentage of fault.

That apportionment of liability as between these two actors in our example was 80% for the driver and 20% for the car manufacturer with the defective airbag, but it does not matter what the division between the two parties ends up being. Whatever the division—whatever the apportionment of liability—is, if there is no joint and several liability, the defendants will only be liable to pay for the percentage of the total damages that their liability caused. There is no way to force one defendant to pay 100% of the verdict if another defendant cannot or will not pay.

Again, let us assume that a court finds that the victim’s total damages to amount to $100,000. If we pretend that a court finds that the driver was responsible for 80% of the victim’s injury, and the defective airbag manufacturer was responsible for 20%, the driver would have a verdict of $80,000 entered against him or her, and the manufacturer would have a verdict of $20,000 entered.

This type of division makes things difficult for a plaintiff because if the driver could not be found, or was not able to pay for damages, the only damages the victim could recover would be from the manufacturer, for $20,000. Which is one of the reasons why joint and several liability exists.

The Effect of Contributory Negligence

This is where contributory negligence has a significant impact on victim’s cases when there are multiple defendants.

If there is any finding that the Plaintiff caused or contributed to his or her own injuries in the accident, the victim can no longer utilize joint and several liability if there are multiple defendants. The victim can only hold each defendant liable for the percentage that the court finds them responsible for the accident or injuries.

This can be a huge problem in cases in which defendants cannot be found or when suing smaller defendants that may not have the means to pay a large verdict. In situations in which one defendant has a “large pocket,” and the other does not, or where the other defendant is not known, the large pocket defendant can not only point the finger at the other, smaller defendant, but also has the ability to point the finger at the victim, knowing that if the victim is only 1% liable, then the large pocket defendant only needs to pay the amount for which the large defendant is ultimately found to be liable.

Let us look at a hypothetical slip and fall case to see how this would work. Assume a victim falls on a wet floor in a large office complex. The office complex (the biggest pocket in this scenario) blames the cleaning company, which is really just a sole, self-employed worker—clearly someone unable to pay a large verdict. The victim sues both the office complex and the cleaning company.

The office complex’s strategy will be to put as much responsibility on the cleaning company, but also to show that the victim failed to look down, or failed to observe the wet condition.

Assume the victim sustained $100,000 in damages, but is held to be 5% responsible for his own injuries. The cleaning company is held 75% responsible and the office complex 20% responsible.

First, contributory negligence prevents the victim from ever recovering part of his recovery—specifically, $5,000 (5% of $100,000).

Worse, the victim now may not be able to ever get paid 75% of his verdict ($75,000) because the cleaning company is just a single person who may not have assets, or insurance to pay a judgment. He cannot force the office complex to pay the full $100,000 the way he could have done had he not been 5% contributorily negligent.

Be Aware of Contributory Negligence Issues

None of this means that someone who may be partially responsible for his or her own injures cannot sue, or that you should ever refrain from holding parties responsible for their own actions in court. It just means that some common sense can go a long way in helping your injury case.

Be wary of your surroundings, and heed safety advice, such as wearing seat belts, maintaining your vehicles, reading instructions on products, getting medical attention when needed, or being aware of your surroundings.

Remember that savvy defendants will do anything to try to second guess ordinary every day

behavior, which is why you should never take an insurance company’s “advice” on settling a case, even if they say that you caused or contributed to your own injuries. A good injury law firm can counteract these attempts to coerce you to settle your case, and help you convince a court that you did nothing out of the ordinary that would have contributed to your accident or your injuries.

Make sure you have someone by your side to handle the defences and arguments that insurance companies and negligent parties will make. The lawyers s at Preszler Injury Lawyers can help explain how to combat the most common defence tactics to help you in your injury case. Call today to speak with one of our lawyers.

How Compensation Works for Victims of Sexual Assault

July 12, 2019 by Kamila Philip

Every year there are over 460,000 incidents of sexual assault in Canada. For every 1,000 sexual assaults, only 33 are reported to the police. 12 of those 33 result in charges against the suspect. Only half of those will end up being prosecuted and only half of those six will end up in convictions. In other words, for every 1,000 sexual assaults in Canada, 997 perpetrators go free.

For a variety of reasons, sexual assault victims struggle to find justice for their claims. While the criminal courts are required to convict an assailant on the highest standard of proof, civil courts can find a defendant at fault on a balance of probabilities. We will discuss what that means and more issues related to sexual assault lawsuits below.

Types of Damages in Sexual Assault Lawsuits

In civil sexual assault lawsuits, which we discuss in greater detail below, there are different types of damages for which a victim can acquire compensation. These include:

Pecuniary,
Non-pecuniary, and
Punitive damages.

Pecuniary damages are generally understood as economic losses. These include loss of earning capacity and expenses related to past and future care related to the sexual assault.

Non-pecuniary damages are generally heavily awarded in sexual assault lawsuits. These include elements such as emotional trauma, pain and suffering, loss of enjoyment of life, problems with relationships and so on.

Punitive damages are not meant to compensate the victim but rather punish the offender. These are meant to express society’s condemnation of their conduct and discourage future misconduct. The court must find that the defendant’s behavior was extraordinarily malicious, cruel, or vindictive.

Beyond a Reasonable Doubt vs. A Balance of Probabilities

In a criminal case, the prosecution is required to prove a defendant’s guilt beyond a reasonable doubt. This is by far the highest standard of proof you will find in a courtroom. It requires that a jury not have any doubts within the realm of reason that a defendant did, in fact, commit the crime the prosecutor said he or she did.

In terms of sexual assault cases, this can be tricky. In the majority of sexual assaults, you do not have a lone wolf attacking victims on a bike path or jumping out of a blind alley. You have two individuals who knew each other. One of these individuals is claiming that he or she did not consent to sex, while the other individual is claiming that he or she did. The jury is asked to decide whether or not the prosecution has proven that there was a lack of consent. The jury is advised that they may only convict a defendant if they are not possessed of any reasonable doubts.

For this reason, 99.7% of all sexual assaults do not result in convictions, and assailants end up going free.

A balance of probabilities is the standard of proof used in civil trials.

Balance of Probabilities

Essentially, a plaintiff in a tort case must prove that his or her accusations are more probable than not. This is a considerably lower standard of proof than a criminal case. When sexual assault victims are not satisfied by the results of a criminal trial, they can still take their case before a jury and receive compensation on that basis.

Advantages of Civil Sexual Assault Claims

Today, more sexual assault victims are turning to the civil courts for justice. In cases in which prosecutors do not feel that they have enough evidence to pursue charges or juries acquit based on reasonable doubts, victims can sue perpetrators on the basis that they suffered severe physical and emotional trauma. These types of cases are part of a greater class known as intentional torts.

In this case, the plaintiff is claiming that a defendant committed sexual battery. Like any form of battery, there are two requirements that must be proven in a court of law. Those are:

That the unwanted physical touching was intentional; and
The touching was unwanted.

These two elements constitute battery. The battery is sexual when there is a third sexual element to the unwanted touching. For those who have experienced such unwanted sexual contact, turning to the civil courts can be an empowering means of having their voice heard and holding their attacker accountable for his or her actions.

On the other hand, the only remedy in a civil lawsuit is money. Compensation for various damages is paid for by the individual who committed the assault and others who may have been culpable through negligence. It acts as a deterrent for other perpetrators and may help reduce the number of sexual assaults overall.

Damages in Sexual Assault Lawsuits

In cases in which a plaintiff sues a perpetrator for committing a sexual assault, jurors are asked to decide on what the damages are and the extent that the victim should be compensated. Typical damages include things like:

Psychological distress,
Emotional trauma,
Interference with personal relationships, and
Difficulty sustaining employment.

While sometimes the scars left behind by a sexual assault are visible, the vast majority and perhaps the most upsetting are those that are not. Thus civil litigation against the perpetrator of sexual assault focuses on the emotional harm caused to the victim and the way that it impacts his or her life.

Intentional Torts and Sexual Assault Lawsuits

In an injury or tort lawsuit, there are two bases for liability. Those are intentional torts like sexual battery and negligence actions that attempt to prove that a defendant is liable for something he or she failed to do or something that was done recklessly. In a negligence action, the plaintiff must prove that the defendant owed a duty of care and failed that duty of care. Sexual assault cases involve both types of lawsuits.

The perpetrator of a sexual assault is alleged to have committed battery and assault against a plaintiff. In the case of a sexual assault, the plaintiff alleges that the defendant used some kind of intentional application of force that violated the plaintiff’s sexual integrity. The act was taken without the plaintiff’s consent. Sexual battery can range from unwanted groping to violent forcible rape.

Assault, on the other hand, has a different meaning entirely. In fact, it does not require violence or touching at all. It involves one person threatening or gesturing in an obscene way so as to make the victim feel afraid. Assault and battery are often charged together.

If the individual who committed the sexual assault was a coach, priest, teacher, or parent, this individual may be sued on the grounds that he or she breached a fiduciary duty to the plaintiff. Additionally, the institution that allowed them to perpetrate the sexual assault may be sued on the grounds of negligence. There is more on that below.

Negligence Claims in Sexual Assault Torts

It is assumed that an organization has a duty of care to safeguard the health and wellbeing of staff or those within the broader community. This means that they must not put others in harm’s way and are held to a specific standard to safeguard others. This is especially true when the broader vulnerable community is composed of children.

One very popular example of this would be the Catholic Church. The Catholic Church has settled billions of dollars in negligence claims because, instead of turning sexually abusive priests in to authorities, they instead moved them from one place to another, putting more children in harm’s way. Not only can the individual priests be sued for sexual battery, but the institution that allowed them to victimize people can, as well. This is because they knew of the threat and did nothing about it.

Another type of sexual assault or battery lawsuit that is common is workplace sexual harassment. In cases in which an employer does not respond to an employee’s concerns of sexual harassment, the company itself can be sued.

Victims are not limited in who can be named as a defendant in a sexual assault civil lawsuit. The company that facilitated the sexual misconduct as well as the individual who carried it out can both be sued.

What Happens When a Victim Files Criminal and Civil Charges?

A victim can file both criminal and civil charges against a perpetrator of sexual assault, but the criminal prosecution will proceed first. In the event that a criminal proceeding results in a conviction, it can be used as a very strong indicator against the defendant in a civil trial.

Logistically, prosecutors will discourage victims from filing civil charges while there is a criminal case underway. The reason for this is simple. It makes the victim appear as though he or she is only after money. Defence counsel will routinely use this information against the victim during the criminal trial. In other words, filing a simultaneously civil motion may compromise the integrity of the criminal action.

How Litigation Works in Sexual Assault Lawsuits

The initial stage of the litigation process involves hiring a lawyer who will represent your interests in the matter. Your lawyer will draft a demand letter that outlines the allegations against the perpetrator and suggests a monetary award to settle the matter. Typically, the perpetrator is concerned with preserving their public reputation. In these cases, agreeing not to discuss the matter (signing a non-disclosure agreement) can be a bartering chip during negotiations. While this will likely increase a victim’s monetary award, many victims do not find this a satisfactory remedy and would prefer for the matter to go before a jury.

Court proceedings are the next stage of the litigation process. When the plaintiff and the defendant cannot agree to terms, the plaintiff will file a Statement of Claim with the court. The discovery process will begin shortly thereafter. Each party is questioned under oath and, if one or both parties still do not agree to a settlement, the lawsuit will proceed to trial.

The discovery process involves testimony given under oath by both plaintiff and defendant and the presentation of evidence pertinent to the allegations. Experts are called to discuss the extent of harm to the victim and quantify any losses (such as work-related problems) that resulted from the assault.

After these have been completed, the case will move to trial. The court will be asked to decide:

If the alleged sexual abuse occurred;
The extent to which the abuse harmed the plaintiff; and
Whether those harms resulted in losses to the plaintiff.

Confidentiality

Sexual assault victims often suffer from feelings of shame and guilt concerning the incident. As a result, their lawyers often file motions to protect their names in court proceedings by using pseudonyms or banning the publication of the matter. In this case, the victim’s allegations would not be a matter of public record.

Should I Settle?

It is true that the vast majority of sexual assault lawsuits are settled before they reach a jury. The victim is not forced to relive the trauma and the defendant is not forced to publicly admit wrongdoing. Additionally, there are major costs to be factored in to a trial for the plaintiff.

These types of settlements almost always include confidentiality agreements. Such statements generally allow victims to discuss the matter with professional health care providers and family members. However, the may not permit the victim to discuss the details of the matter in public or over social media in a way that names the defendant.

In determining whether or not you should settle your lawsuit, it is important to question what your motivations are for filing the lawsuit. Preszler Law Firm can take you through the pros and cons of each choice you make.

Talk to a Nova Scotia Sexual Assault Lawyer Today

If you have been harmed by a perpetrator of a sexual assault or an institution that turned a blind eye while you were assaulted, the lawyers at Preszler Injury Lawyers can help you find justice where the criminal courts failed. Sexual assault is a serious crime that leaves permanent scars. Yet those who perpetrate the assaults are seldom brought to justice by the criminal justice system. Our lawyers can help you find the justice that you have been denied. Give us a call at 1-800-JUSTICE or talk to us online for more details.

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