Month: March 2009

The U.S. Food and Drug Administration released the following recall:

Kroger Recalls Shelled Pistachios Due to Possible Health Risk (March 27)

The pistachios were sold in The Kroger Co.'s family of stores in the following states: Alaska, Alabama, Arizona, Arkansas, California, Colorado, Georgia, Idaho, Illinois, Indiana, Kansas, Kentucky, Louisiana, Michigan, Missouri, Mississippi, Montana, Nebraska, Nevada, New Mexico, North Carolina, Ohio, Oregon, South Carolina, Tennessee, Texas, Utah, Virginia, Washington, West Virginia and Wyoming.

Last week the Globe and Mail reported, “a jolt from a taser could trigger a seizure in certain circumstances, according to a new report by Canadian researchers.”

In Canada, law enforcement authorities are the only ones permitted to use tasers. However, the use of tasers is now being questioned seriously. Particularly, after the death of an unarmed Polish immigrant after being tasered multiple times by RCMP officers.

Just a short while ago a police officer in his thirties was accidentally struck by his colleague with a taser. The officer:

…fell to the ground and began foaming at the mouth with his eyes rolling back in his head. His movements and behaviour were consistent with a generalized seizure. He returned to work five days later.

If I were a police officer I would not feel comfortable using an item that could cause such harm to others or myself.  Adequate policy and safeguards must be implemented towards the use of tasers or a team should be assembled to examine whether the taser should be abolished.

Rest assured, that if the use of tasers continues and harm is inflicted a number of civil lawsuits will be commenced against the law enforcement agency, the police officers who committed the harm, the provincial government and federal government to name but a few.

In regards to the peanut outbreak in the US Yahoo News reported:

WASHINGTON – The food industry's private inspection system failed to catch filthy conditions at a peanut company blamed for a nationwide salmonella outbreak because the firm itself hired the inspectors, lawmakers said Thursday.

Of course this is an obvious conflict of interest.

The article describes how:

Last summer, Peanut Corp.'s private inspector, a company called AIB, awarded the peanut processer a certificate in 2008 for "superior" quality at its Plainview, Texas, plant.

Peanut Corp is the company in the US that has caused the biggest salmonella outbreak ever.

The article can be found here.

Sekhon v. RBC General Insurance Co. 93 O.R. (3d) 472, November 28, 2008

This is an interesting appeal decision by the Divisional Court of Ontario. Here the insured’s daughter was involved in a single vehicle accident where she went through a fence and struck a tree.

After the accident the daughter stated the accident happened because she wanted "to test her mortality" among other statements.

One of the issues at trial was whether her admission would preclude recovery for the insured based on the auto policy section:

7.1.1 Coverage for Loss of or Damage to Your Automobile We agree to pay for direct and accidental loss of, or damage to, a described automobile and its equipment caused by a peril such as fire, theft, or collision if the automobile is insured against these perils.

The trial judge found that it was an accident despite the daughters statements.

The Divisional Court upheld the trial judges decision and ruled:

"Accident" is a non-technical term that is to be understood in its popular and ordinary sense as denoting an unlooked-for mishap or an untoward event which is not expected or designed. There was evidence upon which the trial judge could conclude on a balance of probabilities that the insured's daughter had no conscious or deliberate physical control of the vehicle, despite her comments immediately following the event that she intended to test her mortality. It was open to the trial judge to conclude that the daughter did not understand the nature and consequences of her actions when she drifted off the road and that the collision was "accidental". In any event, the insured, as the innocent owner of the damaged vehicle, was entitled to coverage as the accident [page473] occurred without her foresight or expectation and was not a reasonably foreseeable consequence of any action or inaction on her part.

No surprises here, the Mississauga tattoo shop I discussed just a few days ago is being sued along with Peel Region in a $20 million dollar class action.

The lawyers representing the Plaintiff’s are the same ones who have brought suit against a Durham tattoo parlour.

The Toronto Star reported:

The suit alleges that Peel health officials failed in their duty to warn the public of any potential health risk. Peel maintains it doesn't have enough inspectors and blames the lack of provincial funding.

The Toronto Star article can be found here.

Another interesting fact about the Richardson case is that she wasn’t wearing a helmet. If a civil law suit is commenced for damages against the resort you can bet that will become an issue i.e., is there a duty on the resort to have told her to wear a helmet? What safety precautions were in place? Also, in the alternative should Richardson having been an avid skier known better than to venture out without a helmet?

I remember a story from grade 8 where a really nice teacher of mine who looked exactly like Gargamele had his son completely paralyzed from a skiing accident. That teacher was never the same. He changed completely in his attitude and the attention he gave to his students waned considerably. Eventually, he passed away and many said it was due to the grief. His son was never the same and required 24 hour assistance.

Such accidents can have a profound impact on families and loved ones.

Many are already aware that actress Natasha Richardson was seriously injured in a skiing accident in Canada. Today, CNN reported some interesting findings about brain injuries:

A blow to the head that at first seems minor and does not result in immediate pain or other symptoms can in fact turn out to be a life-threatening brain injury, experts tell CNN.

Immediate treatment is essential after a brain injury because damage caused by swelling is often irreversible.

It''s very common for someone who''s had a fall or been in a car accident to appear perfectly lucid just after the impact but then to suddenly, rapidly deteriorate, Dr. Carmelo Graffagnino, director of Duke University Medical Center's Neurosciences Critical Care Unit, told CNN.

The article refers to this as epidural hemorrhage.

Early investigations are key as the article states:

If an individual isn't medically evaluated after a car accident, sports injury, or just a slip in the driveway, recognizing the signs brain injury early is critical.

Therefore, it’s crucial that accident victims seek medical assistance immediately. Moreover, additional investigations should be pursued.

Bravo to a Spain court for punishing a repeated noise offender with a jail term. Although, I feel the five year sentence was  excessive it’s nice to see a court acknowledge the harm that can be caused by repeated excessive noise.

The BBC reported that:

Ms Ahijado, who was also fined more than 17,000 euros ($22,000), had ignored several previous orders to turn the music down.

The judges described the noise, played from early morning until half-way through the night, as a form of torture. One neighbour had to seek treatment for anxiety, depression and insomnia.

Chapter 591 of Toronto’s By-Laws deal with noise.

Noise itself is defined as unwanted sound.

The general prohibition is:

No, person shall make, cause or permit noise or vibration, at any time, which is likely to disturb the peace, rest, enjoyment, comfort or convenience of the inhabitants of the City.

Noise can encompass a great deal of things such as, motor vehicles racing, causing your tires to squeal, construction equipment just to name a few.

The time periods for the noise prohibition are listed in 591-4 (A) and (B) Prohibitions by time and place.

For example, playing music is prohibited at all times in a quiet zone and in a residential area between 11:00 pm to 7:00 am on regular days and 9:00 am on Sunday’s and statutory holidays.

Generally, a quiet zone is one where any property within the municipality used as a hospital, retirement home, nursing home, senior citizens residence, or other similar use.

Therefore, keep in mind that quiet zones might not necessary be applicable to your neighbourhood. In fact, its very likely that you fall into residential category. Unless, your home has a senior citizen residing.

It is important to know and be aware of your local noise by-laws. In this case, always ensure you keep a journal specifying the time, and the duration of the loud noise before filing a complaint.

The makers of babies' bottles in the US are to remove a controversial chemical from their products, amid growing concern over its possible effects.

http://news.bbc.co.uk/2/hi/uk_news/7943200.stm

The Ontario Court of Appeal upheld a trial judge decision where the railway company was found 75 percent liable. The Court of Appeal commented on the 25 percent contributory negligence on the Plaintiff as attributed by the trial judge as excessive. The trial judge had based this number on the lack of seat belts.

With respect to the railway companies liability it rested primarily on a failure to do routine inspections. Despite, the fact that the trial judge agreed that it did follow industry regulations.

The Ontario Reports has summarized the case as follows:

Zsoldos v. Canadian Pacific Railway Co. 93 O.R. (3d) 321, Court of Appeal for Ontario

The plaintiff was seriously injured in 1994 when his motorcycle struck a train at a rural railway crossing at night. There was an advance warning sign 290 feet before the crossing, which alerted motorists to the presence of the crossing and advised them to reduce their speed. There was no active warning system such as lights, bells or gates to warn a motorist that a train was in the crossing, and there was no artificial illumination of the crossing by street lights. The road approached the tracks at an acute angle of 45 degrees, and sightlines could be obscured by crops. The plaintiff did not reduce his speed. His blood alcohol content at the time of the collision was just below the legal limit. The plaintiff brought an action against the railway company for damages for negligence. The trial judge noted that the applicable government regulations did not mandate any level of warning beyond the passive system in place at the crossing. She concluded, however, that given the amount of discretion the defendant had in determining what safety measures should be established at level crossings, mere compliance with the regulatory framework did not necessarily relieve the defendant of liability. She found that the plaintiff could not have stopped before the crossing, even had he begun to reduce his speed at the advance warning sign. She found that the defendant was negligent in failing to carry out any inspections of the crossing at night and in making no attempt to determine whether the passive system was sufficient to protect motorists using the crossing at night. She further found that had the defendant conducted a nighttime inspection, it would have concluded that additional protection was necessary, the technology for which clearly existed and the cost of which would not be an impediment. She found the defendant 75 per cent negligent. Although she found that the accident would have occurred even if the plaintiff were not impaired, she concluded that his impairment and the fact that he was driving too quickly given the dark conditions both contributed to the accident. She found the plaintiff 25 per cent contributorily negligent. The defendant appealed.

Held, the appeal should be dismissed.

It was open to the trial judge to find that the defendant''s failure to carry out nighttime inspections of the crossing was negligent. While the defendant did not fall below industry standards, even a common practice may be negligent if it is fraught with obvious risk. The failure to carry out nighttime inspections was fraught with obvious risk. It was also open to the trial judge to find that the defendant''s failure to take additional measures constituted negligence. She was not required to deal with each proposed measure individually and consider the feasibility, including cost, of each measure. It was sufficient that she found that measures were available in 1994 that a reasonable railway operator could have employed to meet the standard of care.

The trial judge did not fail to properly address the issue of causation. She found that with additional protection, the plaintiff would have received sufficient warning of the presence of the train in the crossing, thereby allowing him to avoid the collision. There was evidence to support that finding.

The trial judge erred in fixing the amount of contributory negligence on the basis of an analogy to seatbelt cases. She did not identify any precautionary measures that the plaintiff should have taken that would have reduced the severity of his injuries. The only conduct by the plaintiff that contributed to the accident was excessive speed. In those circumstances, the 25 per cent assessment of responsibility to the plaintiff may have been somewhat excessive, but there was no cross-appeal by the plaintiff.

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