Month: April 2009

With the summer season approaching the number of swimming pool accidents rise, no surprise. In the case of Pioneer Family Pools (Hamilton) Inc. v. Walford [2007] S.C.C.A. No. 599, leave to appeal was dismissed by the Supreme Court of Canada. Walford was a case where the Plaintiff had purchased a slide for their swimming pool. Walford consulted with the pool company employees as to whether it was okay to install the slide and whether it was safe. The pool employees advised her that it was fine. The day after the installation Walford's, fifteen year old daughter went down the slide and hit her head on the bottom of the pool. She was rendered a quadriplegic and now requires care for the rest of life.

The trial Judge dismissed the Plaintiff's action against all Defendant's. The trial Judge based his decision on the fact that the pool company employees had been truthful and not misleading because the slide was safe to use if certain conditions were followed.

The Ontario Court of Appeal, Walford v. Pioneer Family Pools (Hamilton) Inc., (2007) 87 O.R. 3d 281 (Ont. C.A.) allowed the Plaintiff's appeal in a 2 to 1 decision and reversed the trial Judge's findings. The Court of Appeal held that the trial judge, "had made an error in finding no breach of duty by Pioneer (pool company) for failure to warn and negligent misrepresentation. It further held that the trial judge had misapplied the standard of care."

Finally, the Court found that Pioneer's negligence caused the Plaintiff's injuries due to the fact that Walford had testified at trial that, "she would not have used the slide if Pioneer had warned her of the dangers of using the slide, " Furthermore, that the pool company, "was an expert in it's field" and that Walford, "relied on it's expertise." The pool employees, "failed to give her adequate warning about the dangers of her new slide."

This case has expanded possible Defendants in swimming pool cases. While traditionally a cause of action would typically be pursuant to the Occupiers Liability Act. In this case the Plaintiff was successful in her cause of action against the Defenant's for shoddy advice.

Hospitals are notorious for keeping patients waiting in the emergency room for hours. Just take a trip down to a local hospital and you will soon understand what I am talking about. People have ended up waiting in emergency rooms from 2 to 8 hours. Only then to be attended to by a rude nurse or medical doctor who dismisses your concern with little regard. This seems to be the state of the current Ontario health system.

However, nothing can be as worse as the story out of Montreal reported by the Globe and Mail on Thursday April 23, 2009.

A 77 year old man attended at a private medical clinic in Montreal and was told to wait his turn. While waiting his heart stopped and his dentures fell out onto the floor. The doctor came out performed a simple check up, realized he had died and simply left him. The doctor made no attempt to revive the patient and instead instructed the nurse to call 911 and walked away as patients in the waiting room looked on with horror.

The Toronto Star reported today one of the largest personal injury settlements for a motor vehicle accident ever. A seriously brain injured Plaintiff was awarded $17 million dollars in a Jury trial. One of the reasons the Plaintiff was able to collect such a large award was that the accident was with a leased furniture truck company belonging to Ford Motor Credit. The policy that Ford held had almost $20 to $25 million dollars.

Such a verdict does not usually occur since the vast majority of people in Ontario only carry an auto insurance policy with $1 million dollar limits and only some have $2 million dollars.

In this case the verdict was based on a finding of 61 percent liability on the Defendant truck when making the left turn and 39 percent on the Plaintiff for speeding up and attempting to cross the amber light versus stopping.

I suspect given the large sum of money the Defendant might appeal. However, given the fact that the Jury decided on the $17 million dollars it seems the Defendant would have a high hurdle to cross to satisfy even leave to appeal.

A new report by the union representing inspectors in the Maple Leaf food scandal places blame on the Canadian Food Inspection Agency.

The Toronto Star reported:

Inadequate resources, staff shortages and overtime bans on federal inspectors have prevented the mandatory annual safety audits from being completed, says the union, which has sent its briefing note to members of a federal subcommittee investigating the listeria outbreak.

The note by the union rep stated that to meet the requirements set by CIFA is, “mission impossible.”

Apparently, many overworked inspectors simply didn’t have the time to ensure adequate reviews and a great deal of the inspection was left to plant staff. The inspector responsible for Maple Leaf was also, “responsible for seven facilities at the time of the listeriosis outbreak.”

The Toronto Star also reported:

Cost-cutting measures at the food inspection agency included banning overtime for inspectors before last summer's tragedy, the note says. "As a result, CFIA inspectors were unable to verify that pre-operation and sanitation inspections at ready-to-eat meat processing plants in Ontario and Quebec were properly conducted by plant employees, including at the Maple Leaf plant."

In a civil action CIFA might also have to be named if not already done so in light of this new note by the union representative. While CIFA might set industry standards they are rendered useless if their own personnel are unable to comply.

This story will continue for sometime.

The Toronto Star article can be found here: http://www.thestar.com/article/621085

Neck pain, intermittent occipital headaches, pain in the left shoulder, low back pain, depression, lack of sleep - while she can work and attend to her personal needs and grooming, she more often than not returns home from work effectively unable to do anything but lie down as a result of the pain - her usual activities of daily living outside of work, such as they were, have been curtailed markedly.

The Motion’s Judge found that the Plaintiff sustained a permanent serious impairment of an important physical, mental or psychological function. Section 267.5(5) of the Insurance Act reads as follows:
The owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for damages for non-pecuniary loss… from bodily injury or death arising directly or indirectly from the use or operation of the automobile, unless as a result of the use or operation of the automobile the injured person has died or has sustained,

(a) permanent serious disfigurement; or

(b) permanent serious impairment of an important physical, mental or psychological function.

Therefore, the Plaintiff passed threshold. Damages were assessed at $22, 500.

Rio v. Lawrence

http://www.canlii.org/en/on/onsc/doc/2009/2009canlii6833/2009canlii6833.html

A Microbiologist tells the BBC that children under five should not touch animals at petting farms due to the recent outbreak of e-coli in the UK. If you are planning on visiting a petting farm good hand hygiene should always be a safety priority.

The article can be found here.

This is just one of the most bizarre things ever. The Associated Press reported:

BIRMINGHAM, Ala. – A Mississippi woman who was shot in the head not only survived but made herself tea and offered an astonished deputy something to drink, authorities said Friday. Tammy Sexton, 47, remained hospitalized three days after being wounded by her husband, who killed himself after he shot his wife. A bullet struck her squarely in the forehead, passed through her skull and exited through the back of her head, authorities said. She is expected to fully recover.

The full article can be found at the following link:

http://news.yahoo.com/s/ap/20090417/ap_on_fe_st/odd_head_shot_survivor

The BBC reported that investigations have revealed that showerheads have significant levels of a bug that causes lung disease. The article stated, “levels of Mycobacterium avium were 100 times higher than those found in typical household water supplies.” Furthermore,  “M. avium forms a biofilm that clings to the inside of the shower head, reports the National Academy of Science.”

The article can be located here.

Many are familiar with the tragic case of Louise Russo who was shot in a parking lot in North York on April 21, 2004 and rendered a paraplegic. The assailants were tied to the mob and were eventually arrested and pled guilty.

The vehicle used by the assailants had no insurance. Therefore, Russo started a civil action against her own insurance company pursuant to a specific endorsement in Ontario policies that allows coverage for under/uninsured coverage in accidents.

However, the crux of the matter in this law suit was whether or not Russo’s injuries could be defined as being caused by the assailants use or operation of the motor vehicle.

The Defendant insurance company made a Motion before the court to decide this question of law i.e., whether this was the result of the use or operation of a motor vehicle accident.

The Insurance companies Motion was allowed. This meant that Russo’s own insurance company was not liable as per her insurance policy. The Motions Judge made this decision based on the recent precedent regarding the use or operation of a motor vehicle.

Russo’s case had caught the attention and sympathy of many in Toronto. Despite, finding the insurance company not liable the Motions Judge commented:

One can feel nothing but intense sadness and regret for an innocent person like Russo who was unsuspectingly in the wrong place at the wrong time and became the victim of a violent crime. It is certainly not through indifference that the Court arrives at its decision. The profound emotional, social and financial impact the injury has had on Russo's life and health and on her family is not lost on the Court. The Court's flexibility in these matters must be tempered by a consideration best expressed by the Ontario Court of Appeal: "As liberally as one may choose to interpret legislation which provides benefits to those who are injured, it must be remembered that this is automobile legislation. [Alchimowicz v. Continental Insurance Co. of Canada (1996), 36 C.C.L.I. (284) at para. 9].

Russo v. John Doe [2008] O.J. No. 2230 paragraph 38

An e-coli outbreak at a Vancouver zoo has left 13 ill including a toddler who remains in a hospital according to the Vancouver Sun . The Sun also reported that public health authorities may have known about the outbreak earlier but did not issue any advisory alert.