Month: September 2009

A deadly outbreak of E-Coli at a farm in the UK has caused twin boys to become infected and receive kidney dialysis. Worse, is the alarm that a number of people could also be infected.

The Independent UK has reported that:

Thirty-six cases of the E.Coli O157 bacterial infection have been confirmed linked with the farm, of which 12 are in children, all under 10. The O157 strain, although rare, is one of the nastiest, particularly in young children, causing diarrhoea, vomiting, and in extreme cases kidney failure and death. The outbreak is believed to have started on August 8 and around 2,000 people a day visit the farm, implying tens of thousands may have been put at risk.

The Health Protection Agency became aware of the problem as early as August 27, 2009 but the decision to officially close the farm happened on September 11, 2009. This has left victims and their families very angry.

A British oil trading company, Trafigura will pay out billions in compensation in a class action suit brought by over 30,000 people from the Ivory Coast who fell ill in what has been described as the worst pollution incident in decades involving the dumping of toxic waste.

The claimants who endured short term illness that included, diahorrhea, vomiting and breathing difficulties will receive, “several hundred pounds.” However, there still isn’t word yet on those that suffered life threatening effects and death.

The settlement seems to have been provoked by a United Nations report that suggested as reported by the Independent a “strong prima facie evidence that, the reported deaths and adverse health consequences are related to the dumping.”

The dumping was the result of a sub-contractor, Compagnie Tommy who disposed of tonnes of sludge waste inappropriately. The UN report also stated, that Trafigura, “failed to check the ability of its local contractor to deal properly with the waste.

Here is an interesting blog post on the topic.

Tort reform in the United States has been a long standing issue. During his second campaign for re-election President Bush spoke frequently of tort reform and the dire consequences of hefty judgements.

In fact, President Bush even favoured a capping on non-economic malpractice damages at $250,000. Malpractice reform was discussed by President Obama in his recent speech on health care reform. There is no indication yet, whether Obama would also support a cap on damages.

Interesting Op-Ed in the New York Times entitled Big Food vs. Big Insurance discussing the enormous cost of taking care of unhealthy people largely caused by poor diet, excessive junk food and lack of exercise. How would the United States begin to tackle the food industry when it can't deal with it's health insurance dilemma?

In the alternative, the regulation of the food industry is definitely something that has gained attention in Canada.

In the United States a lawyer who criticized a Judge on his blog was fined. Similar stories are taking place as a result of Facebook and Twitter. The New York Times article can be found here.

All too often, lawyers return from court or discoveries and openly rant about the other lawyer, party or Judge.

Lawyers who blog or use social sites should begin to smarten up based on what has been happening in the United States. The New York Times article cites a legal professor who states, “when you become an officer of the court, you lose the full ability to criticize the court”.

It’s foreseeable that such incidents will rise as it is apparent more lawyers are tech friendly and many between the ages of 25-45 are using blogs and Facebook.

The Guardian UK reported that uranium was linked to a high increase in birth defects, physical and mental abnormalities and cancer in local children in the Punjab district. Worse, is that the Indian government has been doing everything possible to ensure the story isn’t leaked.

The story describes that in one case the level of uranium was 60 times greater than the maximum limit. While the Indian authorities did next to nothing to determine the cause the investigation by the paper found the cause of the uranium was likely coal fired power plant stations. Fine fly ash produced when coal is burned contain concentrated levels of uranium. A Russian report cautions that people who live near coal fired plants are at greater risk for radiation hazard.

Water tests conducted near the plants show that the level of uranium around the Punjabi plants were 15 times the World Health Organisation’s maximum safe limits.

You can read the article here. This article is from the Guardian Weekly and unfortunately, there is no HTML version.

Click here.

The Court of Appeal decided in Liu v. 1226071 Ontario Inc., [2009] O.J. No. 3014 the interpretation of the section dealing with catastrophic impairment, section 267.5(3) of the Insurance Act.

At the lower court the Plaintiff was not defined as catastrophic therefore, unable to access the $2,000,000 in additional accident benefits. At the scene of the accident his Glasgow Coma Scale (GCS) was 3 out of 15. A few moments later it was 8 out of 15 and then within 40 minutes it was 12. Under the Act a reading of 9 or under deems an individual as catastrophically impaired.

The Plaintiff did regain consciousness and suffered a period of amnesia. At the lower court the Judge stated the Plaintiff had also made a good recovery as he was able to make complex decisions including his two trips to China. The Judge did accept the Plaintiff had suffered a brain impairment.

The Court of Appeal stated in Liu that provided there was a brain impairment, all that is required is one GCS score of 9 or less within a reasonable time following the accident. It is a legal definition to be met by a claimant and not a medical test.

Therefore, if the test is administered by a trained individual within a reasonable time following a car accident and the GCS score is under 9 an individual would meet the legal test for a catastrophic impairment as long as the depressed score is related to a brain impairment. The Court of Appeal also indicated that a Plaintiff’s recovery is irrelevant.

September 9 is International Fetal Alcohol Spectrum Disorder Awareness Day, which presents all Canadians with an opportunity to consider the risks, consequences, and life-long challenges associated with drinking alcohol during pregnancy.

Fetal Alcohol Spectrum Disorder (FASD) is an umbrella term used to describe a range of disabilities that may affect children of mothers who drink alcohol during pregnancy. The affected children may experience a range of cognitive, medical, physical, and mental health challenges throughout their lifetimes.

Canada has finally started to take steps with regards to chemical pollutants. Many international countries including the United States have already passed legislation that limit the amount of various harmful pollutants.

In Canada information regarding this project can be found at the Chemicals Substances Website.

Also, see Environment Canada's Management of Toxic Substances.

Here is another case in the United States that really puts a new twist on employment law. It seems like any other ordinary suit, the Hard Rock Cafe in Las Vegas was sued for the death of a girl. However, the girl was the girlfriend of the CEO of Hard Rock. The claim alleges that Hard Rock consented to the CEO’s “hedonistic lifestyle” of drugs and sex.

The girlfriend, Michelle Hatchel, 23, died of a drug overdose Aug. 29, 2007 while staying at a Las Vegas condominium with Ed Scheetz, who was then the chief executive officer of Morgans Hotel Group.

Members of Hatchel's family filed a wrongful-death suit last week that names both Scheetz and Morgans as Defendants.

Hatchel was flown on a private jet provided by the CEO to Las Vegas where they then engaged in an orgy of drugs and sex. The CEO claims that he found Hatchel dead when he returned home from a very long work day.

Apparently, the CEO has settled a wrongful death suit with the father of Hatchel already so this suit is on behalf of the mother, grandmother, brother and aunt.  The claim alleges that Scheetz was a living example of the hotels hedonistic brand image:

A part of the Hard Rock marketing’s strategy its target demographic patrons included hedonistic sexually permissive and promiscuous lifestyle which also included use of illegal and/or illegally obtained ... controlled substances including but not limited to cocaine and oxycodone and as CEO of said named corporate defendants, defendant Scheetz's own lifestyle ... was a living example of said Hard Rock image and all of his actions, inactions, and/or omissions herein were within the course and scope of his employment.

Furthermore, the claim alleges that Morgans Hotel subsidized Scheetz’s partying by paying for his Vegas condo and private jet, that were examples of excess contributed to Hatchel’s death. The claim is seeking 645 million dollars in damages.

According to a popular blog, under the doctrine of respondeat superior, an employer is vicariously liable for an employee’s torts committed within the scope of employment.

The hotel will have two options quietly settle the suit and avoid what might be a prolonged litigation process. Or defend the suit whereby it’s likely the hotel chain would argue the girlfriend voluntarily attended and engaged in the mass intoxication of illegal drugs.