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									Volume 29                                                                                                                 Fall 2006


                                    Fatal Accidents: The Deductible
When a person is the innocent victim          access the court. That summer just be-       An unpleasant but necessary job of our
of a car crash, whether as driver, pas-       fore the last provincial election, the in-   courts has always been to place a value
senger or pedestrian, it stands to rea-       surance industry was able to cajole the      on human life. In ascertaining the ap-
son that the person should be compen-         Tory Government to pass Regulation           propriate value, courts have recognized
sated for his or her injuries. However,       312/03.                                      that death in an auto crash can be sud-
that is not the case in Ontario.                                                           den and will result in family members
                                              Essentially, the Eves government dealt       experiencing confusion, anxiety, bewil-
Background                                    the industry two “get out of court free      derment, self reproach and overwhelm-
An individual injured in a car accident       cards”, in an attempt to appease the         ing states of psychological shock. Sur-
in Ontario must meet a verbal thresh-         industry and reduce premiums. The            viving family members have a great
old test before he or she can sue for         first allowed insurers to keep the first     sense of helplessness, feelings of vul-
damages. In other words, the victim           $30,000 (up from $15,000) of every           nerability and insecurity. They can be-
must show that the injury is a qualify-       crash claim or settlement for harm and       come pre-occupied with coping if the
ing injury. In Ontario an injured per-        loss of enjoyment of a normal life due       crash was preventable and will experi-
son must prove that he or she has suf-        to serious and permanent injury. The         ence feelings of unfairness and injus-
fered a permanent serious impairment          second allowed them to keep the first        tice when a death is utterly senseless
of an important physical, mental or psy-      $15,000 (up from $7,500) of claims           and unnecessary. Sudden unexpected
chological function or a serious perma-       arising out of an innocent death.            death in an auto crash can precipitate a
nent disfigurement. If the injury suf-                                                     post-traumatic stress response that will
fered is something less than this, the        Regulation 312/03, together with Regu-       intensify the experience of loss.
person is out of luck.                        lation 381/03 which defines what is a
                                              serious and permanent injury, has al-        The courts must decide the value of a
The Insurance Companies                       lowed the insurance industry to escape       life based on relationships with surviv-
As the solution to its escalating costs       paying for so called “minor” injuries.       ing family members. What is the life
and shrinking profits, the insurance          The Insurance Bureau of Canada has           of a daughter or a son or parents worth?
industry in 2003 touted further restric-      stated that “minor injuries account for
tions to an innocent victim’s right to        over 80% of auto insurance claims”.          By placing an arbitrary deduction on
                                                                                           the value of life is to treat each of us as
                                              The new verbal threshold barrier defi-       things, not people. In applying a one-
                                              nition, together with the increased mon-     size-fits-all deduction of $15,000 to fa-
                                              etary deductible apply to all accidents      tality claims, insurers have succeeded
 In this issue                                after October 1, 2003.                       in effectively taking away from most
                                                                                           consumers the right to have the courts
 Opposing Secrecy. . . . . . . . . . . p. 2   Deductibles for Fatalities                   decide what an individual’s life, wrong-
                                              While the increased monetary deduct-         fully taken, is worth. The real value of
 Occupiers’ Liability. . . . . . . . . p. 3   ible for harm and loss of enjoyment of       human life should be determined in the
                                              life may be harsh, applying any deduct-      sanctity of the courtroom where impor-
 Cooligan Ryan News .. . . . . . . . p. 4     ible to fatality claims is illogical. How    tant issues effecting people have been
                                              is death ever “minor”? There has been        decided for decades.
 The articles in Perspective are neces-       no flood of fatality claims that need to
 sarily of a general nature, and cannot       be kept in check and in fact court           The following cases help to illustrate
 be regarded as legal advice. Our firm        awards for fatality claims have histori-     the callousness of applying a deduct-
 will be pleased to provide additional de-    cally been unduly modest, if not out-        ible of $15,000 to fatality claims.
 tails on request.                            right stingy.
                                                                                                     see FATAL on page 2
Volume 29                                                                                                                 Fall 2006


    FATAL continued from page 1              found by the jury to be twenty-five per-      percentage of liability attributed to the
                                             cent liable for his own death. If this case   deceased. The result could be that the
  Macartney v. Warner, 2000                  had been an automobile fatality case          family member is awarded a sum within
The Plaintiffs’ 19-year old son was          and the $15,000 deductible had been           the $10,000 jurisdictional limit of the
killed in a car crash near his home. The     applicable in 2001, the surviving sister      Small Claims Court, if at all. And this
mother was awarded $25,000 for loss          would have received $3,750 for the loss       can result in costs penalties for improp-
of guidance, care and companionship.         of her brother.                               erly proceeding in the Superior Court.
The father was awarded $15,000. On
appeal, the Ontario Court of Appeal          The appellate court held that non-pe-         Fairness
refused to increase the awards.              cuniary damages must be assessed in           There is some consolation to be found
                                             an objective and unemotional way and          in Bill 198 to this dilemma of
These sums can only be characterized         that the Appeal court would not lightly       deductibles. Bill 198 amended the In-
as miserly. If the $15,000 deductible        interfere with a jury’s assessment if it      surance Act to provide that there be no
had been in existence in 2000 the fa-        was properly instructed. But the Court        deductible for non-pecuniary damages
ther would have been awarded nothing         went on to state that the reasonableness      in fatality claims assessed in excess of
for the loss of his son.                     of a jury’s assessment must be viewed         $50,000. Of course the question re-
                                             by comparing it with range of assess-         mains - is it fair and rational to have a
To v. Toronto Board of Education, 2001       ments established in other cases.             deductible of $15,000 applied to fatal-
A 14-year boy of Chinese decent was                                                        ity cases assessed below $50,000 and
killed in a school gym. His family re-       The Court of Appeal has demonstrated          no deductible for those assessed above
lied upon him as the first born son to       its unwillingness to dramatically in-         $50,000?
eventually provide social and financial      crease the level of damages for loss of
support for them. At trial the jury as-      care, guidance and companionship and          Fairness is an intuitive but elusive con-
sessed the damages of the parents for        now with the $15,000 deductible the           cept that varies according to the con-
loss of guidance, care and companion-        ability of families to advance and settle     text. We know it when we see it, but
ship at $100,000 for each parent. The        fatality claims has been severely re-         have trouble defining it. But by any-
awards were upheld on appeal, al-            stricted.                                     one’s definition a substantive legislated
though the Ontario Court of Appeal                                                         rule requiring the arbitrary deduction
determined that the awards were at the       As illustrated by the To case, the de-        of $15,000 is not rational.
high end of the range.                       ductible is particularly insensitive to
                                             families where a deceased loved one           To allow the continuance of any deduct-
At trial the jury awarded the sister the     may have been responsible in part for         ible to be applied to fatality cases is the
sum of $50,000. In her case, the Court       the crash. In those particular cases, the     abdication of any sense of rational de-
of Appeal held that sum was out of line      damages are assessed and the deduct-          cision-making in the regulation of in-
with prior decided cases and reduced it      ible subtracted from that amount, and         surers selling compulsory automobile
to $25,000. The deceased boy was             the resulting sum is then reduced by the      insurance to the people of Ontario.



                 Why Canadians Should Oppose Secrecy in Litigation
Since at least the mid-1970s, a disturb-     ties, remain confidential. For instance,      injuries--and less litigation. Secrecy
ing practice of secrecy has taken root       such an agreement may prohibit dis-           orders and agreements prevent consum-
in our system of litigation. Defendants      closure of the cause of injury, the terms     ers from making informed decisions.
in civil actions, as a condition to dis-     of settlement, or even the fact that a        Secrecy permits defendants to bury
covery or settlement, often seek to keep     claim was ever filed.                         “smoking gun” evidence and limit pub-
private the information that emerges                                                       lic debate on real hazards.
from litigation and the fact liability has   The most effective way to prevent inju-
been admitted and funds paid.                ries and deaths, and the resulting tort       Secrecy in our courts undermines the
                                             claims, is to ensure that consumers have      right of every citizen to know about
A common form of secrecy in litiga-          adequate information about the safety         dangers to their health and safety. If we
tion is the use of confidentiality agree-    of products and services. The free flow       change anything in our civil justice sys-
ments. A typical confidentiality agree-      of information can lead to more aware-        tem, it should be this practice, which
ment can require that certain matters,       ness about hazards and opportunities          leads to increased legal costs.
once discussed or agreed to by the par-      to avoid harm. The result will be fewer


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Volume 29                                                                                                              Fall 2006



                                          Occupiers’ Liability
A customer slips and falls at the grocery store. A child falls    When is an occupier not responsible?
off the monkey bars at a city park. A teenager is injured         An occupier may not be responsible for damages suffered by
during gym class.                                                 persons on the premises if the occupier has restricted, modi-
                                                                  fied or excluded its duty. However, the occupier is under an
The legal issue in each of these instances is the liability of    obligation to bring any restriction, modification or exclusion
the occupier for their visitors’ injuries. In Ontario, an occu-   to the attention of its visitors.
pier’s obligations are set out in the Occupiers’ Liability Act.
In essence, an occupier of premises has a legal duty to those     In addition, an occupier will not be responsible in respect of
coming onto its premises to take reasonable care for their        risks willingly assumed by visitors to the premises.
safety. Although the focus of this article is on the duty of
commercial establishments, it is important to know that oc-       The Occupiers’ Liability Act is binding on Public institu-
cupiers’ liability legislation applies equally to homeowners.     tions and government authorities and it is not open to them
                                                                  to make policy decisions to absolve themselves or reduce their
The following is an overview of occupiers’ liability.             statutory obligations.

Who is an occupier?                                               We have chosen several relevant court cases to help illustrate
An occupier is a person                                           the obligations of an occupier,
• who is in physical possession of premises, or
                                                                  The School Gym
• who has responsibility for and control over the condition       Occupier - School Board
   of the premises or the activities taking place, or             Visitor - Student
• who has control over the persons entering the premises.         Facts - The 16-year old student suffered a dislocated elbow
                                                                  when he hit the floor after the protective mats separated dur-
What is the occupier’s responsibility?                            ing a wrestling match. The mats separating during wrestling
An occupier owes a duty of care, as in all the circumstances      exercises was not uncommon. The only precaution taken was
of the case is reasonable, to see that visitors entering on the   a standing instruction to the non-participating students to sit
premises are reasonably safe while on the premises. This duty     around the perimeter of the mats with their feet pressed against
applies to risks caused by the condition of the premises as       the edges of the outside mats.
well as by the activities carried out on the premises.            Result - The student successfully sued the school board.
                                                                  Reasons - The judge concluded that the school board had
What recourse does an injured visitor have against an             failed to discharge the burden of proving that it had adopted
occupier?                                                         the best safety precautions reasonably possible for the pro-
A person, who is injured on another’s property, may be enti-      tection of students taking part in physical education courses.
tled to recover monetary damages if it can be established that    He found that the so-called perimeter system was a danger-
the occupier was liable for the damages that were sustained.      ous one when the wrestling reached the competitive stage,
In making this determination, a court will take a number of       particularly since the separation of mats was foreseeable.
factors into account in assessing reasonable care, including:
                                                                  The Municipal Tennis Court
• The inherent or unusual danger at the premises.                 Occupier - Municipality leased court from local paper mill
• The reasonable likelihood of a particular incident occur-       Visitor - Competitive Tennis Player
   ring.                                                          Facts - The 33-year old tennis player suffered torn ligaments
                                                                  in his knee when, during a competitive tennis match, his toe
• The sufficiency of the occupier’s program of care and           got lodged in a crack on the court. The tennis player played
   maintenance.                                                   on these particular courts regularly and was aware of the state
• The visitor’s willingness to assume a foreseeable risk.         of disrepair. The municipality inspected the courts each spring
                                                                  and was aware of the numerous cracks. It did not want to
• The age and status of the visitor.                              resurface the court before obtaining a Wintario grant.
• The nature and extent of any warnings or waivers of li-         Result - The tennis player’s lawsuit was dismissed.
   ability on the part of the occupier.                           Reasons - The tennis courts were dangerous premises keep-
• The sufficiency of the connection between the accident          ing in mind the purpose for which they were constructed.
   and the alleged breach by the occupier.                                          see OCCUPIER on page 4



                                                                                                                                3
Volume 29                                                                                                     Fall 2006



                                     OCCUPIER continued from page 3             stances or any more hazardous than the
                                                                                structure itself.
                                   The municipality had an obligation to
    200 Elgin Street, Suite 1100   provide facilities that could be used        The School Parking Lot
    Ottawa, Ontario K2P 1L5        safely and it was insufficient for the mu-   Occupier - The Public School Board
    Phone: (613) 236-0735          nicipality to simply make an on-site in-     Visitor - Grade 13 student
    Fax:     (613) 238-3501        spection in the spring. However, the         Facts - The student lost control of his
                                   tennis player was aware of the dangers       motorcycle while driving too fast in the
    www.cooliganryan.com           and notwithstanding that knowledge, he       school parking lot. He flew off and hit
                                   chose to play anyway and therefore vol-      his head on a bollard situated on a grass
    LAWYERS                        untarily incurred the risk.                  area of the school. The school had re-
                                                                                moved the chains between the bollards
    Garret J. Cooligan             The Municipal Playground                     but for policy reasons did not remove
    cooligang@cooliganryan.com     Occupier - Municipality                      the bollards.
                                   Visitor - Child                              Result - The school board was held 25%
    Murray E. Ryan
                                   Facts - The two-year old child suffered      liable for the student’s head injuries.
    ryanm@cooliganryan.com
                                   a skull fracture when she fell from the      Reasons - The presence of the bollard
    Harold R. McNeely              playground structure. She hit her head       made the premises unsafe. A policy de-
    mcneelyh@cooliganryan.com      on the concrete foundation used to an-       cision by the school board not to remove
                                   chor the structure. The municipality         the bollards did not relieve it from li-
    Robert J. Montague
    montaguer@cooliganryan.com     maintained a regular system of inspec-       ability for breach of its duty.
                                   tion and repair of equipment and parks.
    Thomas P. Connolly             Result - The mother’s lawsuit on be-         Depending on where the injury occurs,
    connollyt@cooliganryan.com     half of the child was dismissed.             the limitation period for commencing
    Roxanne G. Cooligan            Reasons - The municipality’s inspec-         legal action might be very short. There-
    cooliganr@cooliganryan.com     tion program with respect to parks and       fore if you have been injured while on
                                   playgrounds was entirely reasonable.         another’s premises, it is important to
    Joseph Y. Obagi                The existence of the concrete founda-        promptly seek legal advice.
    obagij@cooliganryan.com        tion was not hazardous in the circum-
    Elizabeth A. Quigley
    quigleyb@cooliganryan.com
                                                       COOLIGAN RYAN NEWS
    Amanda M. Hall
    halla@cooliganryan.com
                                   We are pleased to announce that              We welcome Jennifer and Chelsea to our
    Jennifer L. Guth               Jennifer Guth has joined the firm as         firm.
    guthj@cooliganryan.com         an associate. Jennifer was called to
                                   the Ontario Bar in 2002. She has                    Joseph Obagi has been ap-
    Lisa A. Neil
                                   been practicing law in Ottawa                         pointed to the Planning Com-
    neill@cooliganryan.com
                                   in the area of civil litiga-                           mittee for the Carleton
                                   tion with a particular                                   County Law Association
    AREAS OF PRACTICE              focus on personal in-                                    Civil Litigation Confer-
    • Dispute Resolution           jury, product liability                                 ence which is held annually
    • Personal Injury Litigation   and professional liability                           in Montebello, Quebec.
                                   claims. She will continue
    • Medical Malpractice
                                   to practice as a civil litiga-                Beth Quigley, with the assistance of
    • Insurance Claims             tor, with a particular emphasis as a         Christopher Obagi, published an arti-
    • Civil Litigation             plaintiff’s advocate.                        cle entitled “The Intermingling of La-
    • Family Law                                                                bour and Employment Law: Represent-
    • Employment Matters           Chelsea Gilder has joined the firm as        ing Unionized Employees in the Civil
                                   an articling student. Chelsea, who is        Courts” in the Summer 2006 issue of
    • Wills & Powers of Attorney
                                   originally from Vancouver, received her      The Litigator.
    • Incorporations               LLB, with distinction, from the Univer-
    • Home Purchases               sity of Saskatchewan.



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