Slip and Falls - not quite as simple as you might think

If you should slip and fall and become injured, you might assume that so long as you could prove you did fall, and you did suffer some physical injury, you would automatically be entitled to compensation from the owner or renter of the property where you fell. In fact this is not always the case. In order to succeed in a lawsuit against the owner or renter of the property, you must show fault of some sort on their part.

Let me give an example: Every year, many people slip and fall in supermarkets, such as Safeway, IGA etc. People drop produce and other items on the floor and later someone else slips on that item or on the resulting slippery floor. In such a case, the court will hold the supermarket blameless if the store had a policy requiring sweeping of the floor frequently enough and if the store was following that policy. Typically, the store keeps a log to record all sweeps. The same would apply to any spills or water on the floor. Such logs are ample evidence in Court to prove the store was following their policy. In the absence of such a log, your lawyer may decide to hire someone, perhaps a university student, to go to the store as a 'shopper' and to watch and record the frequency of the sweeping. This evidence can be used to counter the store's statement, where they have no log of their own, that 'we meticulously follow our sweeping policy'.

My first example above described a situation in which the slip and fall was the result of something on the floor which caused you to fall. Here is a slightly different situation: the stairway. If you are using someone else's stairway and you slip and fall, once again, you must prove some fault on the part of the tenant or landlord. In this type of case, your lawyer will typically hire an engineer to inspect the stairway. The engineer will confirm whether or not the stairway was built according to code - Was the run/rise ratio according to code? Were hand rails required? Did it require lighting? etc.

Even if the owner or renter are at fault for some reason, you may not have a complete victory. The owner or renter, usually represented by a lawyer paid for by their insurance company, will attempt to shift part of the blame, or liability, onto you. What type of shoes were you wearing? Had you been drinking? Did you willingly choose to walk down the stairway knowing that it was so dark as to be unsafe?

Now that you can see that a 'simple slip and fall' is not necessarily a 'simple slip and fall', it is important that you see a lawyer before making a claim or being interviewed by the owner or renter's lawyer or insurance adjuster.

ICBC claims - What is Loss of a Capital Asset?

If you have been involved in a motor vehicle accident where you were not at fault, you likely know that you are entitled to be compensated for your pain and suffering and for any out-of-pocket expenses, such as medication costs, costs for treatments from physiotherapists, etc.

What you are also likely clear about is that you can claim the money you will lose if you are unable to go back to your job. What you may not be aware of is that even if you are able to go back to your job, you can still make a claim for compensation if you have been left less capable of some types of work.

The Courts have developed a four-part test to determine whether or not you are entitled to financial compensation in those cases where you have returned to your previous job. This type of claim is sometimes referred to as 'Loss of a Capital Asset'. The four parts of the test are:
1. Are you less capable? 2. Are you less marketable, or less attractive as an employee? 3. Have you lost the ability to take advantage of all job opportunities which might otherwise have been open to you? 4. Are you less valuable to yourself as a person capable of earning income in a competitive labour market?

Let me give you an example:
I was recently retained by a fellow who was walking across the street with the walk sign and was hit by a car making a left-hand turn. The car was clearly in the wrong. My client's knee was badly broken but one of Vancouver's best surgeons was on call that night and did such a good job of repairing the knee that six months of rehab later, he was able to return to his previous job. It was a unionized position, which meant he had good job security and the company he worked for was very large, so unlikely to go out of business any time soon. On the face of it, my client had only a claim for pain and suffering and for out-of-pocket expenses. In looking at the four part test, we determined that: 1. he was less capable - he had been unable to regain full range of motion in his knee; 2. he was less marketable - some employers would be less likely to hire him with this permanent restriction; 3. he would be unable to take advantage of some job opportunities in the future - e.g. he would be unable to apply for jobs that were physically demanding; 4. with all of the proceeding, it was clear that he would feel less valuable and less confident in the competitive labor market. We argued that in addition to compensation for pain and suffering and out-of-pocket expenses, he was entitled to compensation for Loss of a Capital of Asset. At mediation, we were successful in obtaining $200,000 for just this part of his claim.

So, remember - even if you are able to return to your pre-accident job, you may be entitled to compensation for Loss of a Capital Asset.

Longterm Disability Lawsuits and the need for Lay Witnesses

In my last blog on disability insurance companies, I took them to task for their delaying tactics. Now, I want to talk about what to do once your lawsuit is underway and the insurance company has hired an expert who says you are not disabled.

Insurance companies have deep pockets. They have a list of doctors they regularly go to for expert reports - where they know in advance the expert's report will support the insurance company's position that you are not disabled and are employable. Hopefully, you also have a number of expert reports from doctors that support your disability.

With the insurance company's experts in one corner of the ring and your experts in another corner of the ring, we have what might be described as a "Battle of the Experts". In such a case, it may be very difficult for the court to decide whether or not you are in fact disabled and unable to work.

In my practice, I have found it very effective to break this logjam by preparing and relying upon a number of lay witnesses. For example, many years ago, I had a client who was suffering from Chronic Fatigue Syndrome. As is so often the case with this condition, my client had good days and bad days. A good day was like a "gift from heaven" - he would be as active as possible. This helped break the monotony of his many bad days - where he would typically be in bed all day. On one of his good days, he was out for a drive in his vehicle. His vehicle was an older rundown vehicle because the insurance company had terminated his disability benefits quite some time ago and, as such, my client was of very limited financial means. On his way up a hill his vehicle stalled. My client got out of the car and pushed it up the hill! Little did my client know that he was under video surveillance by the insurance company!! Now, many people might have thought that this would be the end of his lawsuit. How could my client claim to be so disabled by his chronic fatigue syndrome that he was unable to work, if in fact, he was physically capable of pushing his car up a hill? I have to admit that even I had some concerns about the strength of his case. As is so often the case, a lay witness - not an expert, proved to be key.

I set about developing a list of potential lay witnesses. I asked my client to give me the names and contact particulars for any friends, neighbors, relatives and others that he thought might be of benefit to his case. I carefully interviewed all of these witnesses, witness by witness, until I came upon the landlord. He was a very credible individual - a retired RCMP officer. I was so impressed with what he had to say about my client - he confirmed from eyewitness evidence that my client did spend days on end bedridden and that on many occasions he, the landlord, had to provide assistance such as meal preparation and running of errands. Clearly, my client was not capable of employment. I thoroughly prepared this witness and then contacted the insurance company's lawyer to arrange for mediation. I suspect that the insurance company only agreed so quickly thinking that we were ready to 'throw in the towel', given the video surveillance.

I brought the lay witness, the landlord, to the mediation and kept him in the waiting room. After each side had done their best to convince the other of the strength of their case, I let everyone know that if we did not settle that day, I had a retired RCMP officer, my client's landlord, as a lay witness who I would be bringing to trial. I then did something rather unusual -- I invited the insurance company's lawyer to interview the landlord 'then and there' in my presence. They took me up on my offer. They were so impressed by the evidence of this witness that the file did settle that day for a third of a million dollars!

The point is: while you should never ignore or underestimate the need for experts, it's also very important to invest the time necessary to develop your lay witnesses. This will almost certainly give you an unbeatable advantage over the insurance company! You have much better access to lay witnesses.

Your right to go to court is about to disappear

One of my most memorable conversations, from when I was an articling student working for the late Harry Rankin, involved a client concerned about the cost of litigation. She wasn't concerned about Harry's fee -- he was always more than fair and would work on a contingency fee basis whenever the client requested -- it was the potential Court costs - such as Court filing fees, trial hearing day fees, and jury fees, that worried her. Her comment was "This is not the way a justice system should be run". Harry's response was quick and to the point "We have a legal system not a justice system."

As expensive as the court system was then, it has become even worse over the last number of years. Just recently, in a well-publicized case, victims of the B.C. Queen of the North Ferry sinking had to abandon their lawsuit on the eve of the trial because they could not afford the exorbitant jury fees. Their lawyer, to his credit, held a press conference to publicize this fact.

All of the above is not just to complain about the current state of affairs, that is, that it is costly to go to court. I am writing this article because --believe it or not -- Gordon Campbell and the provincial Liberal government are about to make it far far worse.

A full new set of Court Rules are currently under consideration and appear to be on the verge of being approved by the provincial government without even bringing the matter before the Legislature for a vote. These new rules will significantly increase the costs of going to court.

Even more disturbing is a proposal to prevent any case from going to court where you do not have the proof in advance. Let me explain:

While in many cases you have the evidence you need -proof such as a broken arm as a result of an assault or a damaged fender as a result of a motor vehicle accident, there are many cases where you do not have the evidence to prove your case when you start your lawsuit. A perfect example would be the case referred to above -- the sinking of the B.C. ferry Queen of the North. The fact that the ferry had sunk was without dispute but why it sank was open to question. For example, was there negligence on the part of BC Ferries either in the navigation of the ferry or in proper mechanical maintenance? The question of why certainly could not be established prior to the lawsuit being commenced. What you had was deceased and injured passengers and a 'sunk boat'. What you didn't have was proof that explained the sinking. In our present system, you can start your lawsuit -even though you don't have the proof. After you start the lawsuit, you have the right to examine the defendant under oath to get to the truth/proof. In this case, the defendant would be BC Ferries employees. The new rules no longer will allow you to do this. You will be stopped from even starting a lawsuit unless you have the proof first.

For more information about the proposed new rules, I highly recommend you visit protectingjusticeforbc.org

Worker Rights to Severance Pay

With our economy in free fall, unfortunately many people will see their jobs disappear. The number of unemployed is increasing at one of the fastest rates on record. At times like this, workers need to have a clear understanding of their right to severance pay.

Many people are under the misunderstanding that an employer is allowed to lay off employees - without any compensation for the lay-off, for economic reasons if times are tough. This is not the case. If the employer can justify the termination - that is, can point to some action on your part such as poor work performance, you are not entitled to severance pay. This situation is referred to as 'termination with cause'. Where the employer cannot point to some action on your part that would justify termination, this is called 'termination without cause'. The fact that a business has fallen on hard times and can no longer "afford" all of its employees, does not let the employer off the hook. The employer can lay you off but must provide adequate severance pay.

The longer you have worked for your employer, the greater the amount of severance pay you are entitled to. Many workers are under the mistaken impression that the amount of severance pay described in the Employment Standards Act [ESA] is all that they are entitled to. You should know that the ESA only sets out the minimum amount, the 'floor', of severance pay to which you are entitled. What many workers are not aware of is that a dismissed employee, terminated without cause, is generally entitled to severance pay in excess of what is spelled out in the Employment Standards Act. Above this minimum is something referred to as Common Law -- the body of cases that have previously come before the courts which act as a precedent. A court will look at these previous decisions to determine how much severance pay you are entitled to. As a very rough rule of thumb, you are entitled to between four weeks and six weeks severance pay for every year you have worked for your employer. For example if you have worked for a company for 10 years, you should be entitled to something between 40 weeks and 60 weeks of severance pay. This would be significantly more than what the Employment Standards Act would require your employer to pay you.

If you decide that you have not been offered adequate severance pay, and you take your employer to court, and the court decides that you were terminated without cause, you should know that the employer is able to deduct any income that you earned or received during the notice period from the severance pay you are entitled to. Let's go back to the example above. Suppose the court awarded you severance pay of 50 weeks. You would be entitled to an amount of money equivalent to 50 weeks worth of pay, with a reduction of an amount equal to all income you earned or received during the first 50 weeks after you were terminated. This would include any employment insurance benefits. One other fact to keep in mind is that any monies paid by your employer to you, either as a result of the court judgment or as a result of an out-of-court settlement, are taxable. You will have to pay income taxes on these monies.

I hope you have found this helpful. As always I welcome any questions or topics you'd like to see me blog about.

Accidents, Trusts and Diability Benefits

For most people involved in a motor vehicle accident, once their lawsuit has come to an end, either by winning in court or by reaching a settlement out-of-court, that would be the end of the matter. For people involved in a motor vehicle accident who are also receiving disability benefits from the provincial government, there is yet one more step to consider.

Individuals in receipt of disability benefits from the provincial government cannot have more than $3000 in their bank account. If they exceed this amout, their benefits are terminated. So, if the individual gets a settlement over this amount, they are at risk of losing their benefits. Until a few years ago this meant that individuals in receipt of disability benefits achieved a somewhat "hollow victory" at the end of a long litigation process. On the one hand they would receive money from ICBC; on the other hand their monthly benefits would be terminated. The good news is that it is now possible for individuals in this situation to establish a Disability Trust. So long as the trust is created properly, the individual can put all of the settlement monies into the trust and still retain their disability benefits. Although the trust will limit, to some degree, what the monies can be used for, it allows a person to keep receiving their benefits.

Another option, just recently available, is a Registered Disability Savings Plan. Money placed in an RDSP is also not considered to be an asset by the provincial government. Therefore, the individual will remain eligible for disability benefits. The extra benefit of an RDSP is that any interest earned is tax-free. A further benefit is that the federal government will match contributions to the RDSP each year. The first $500 is matched three to one for a total of $2000. The next $1000 is matched two to one to a maximum of $3000.

Fighting Insurance Companies!

For those of you who saw Michael Moore's movie, Sicko, it will come as no surprise to be told that insurance companies deliberately turn down valid claims. By doing so, they reduce the amount of money they pay out which increases their profit. They know that a significant percentage of claimants who have been turned down will not start a legal action to claim their benefits.

One method many insurance companies use is to hold off on an outright denial at first. Instead, they simply request additional information. The claimant [you] gathers all the information requested, sends it to the insurance company, and waits for an answer. Eventually, the insurance company provides a response which is still not a 'yes' or 'no'. Instead, you, the claimant, receives yet a request for further information. This process continues for many months if not years. In the meantime, the claimant is at risk of passing the limitation period. [The limitation peiod is the period of time within which a lawsuit must be started. After this time, no lawsuit can be started. For most insurance claims, the limitation period is one year.]When the outright denial finally comes, the claimant either gives up or decides to sue and hires a lawyer. From the time a lawyer is hired, it is not uncommon for two years to go by before the trial date arrives. Had the claimant hired a lawyer when the insurance company made their first request for information, and not been fooled into taking part in the insurance company's information-seeking charade, the two year wait for a trial date would have begun right away.

If your insurance company does not approve your benefits at the time you apply, you should seriously consider hiring a lawyer immediately.