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Read Issue Seven of
The Quill
BOYNECLARKE LLP
Personal Injury Newsletter
* Pedestrians -
Know Your Rights
* Government commits to
improving pedestrian safety
* and more...
read The Quill
Dear Mr. Napier:
Now that we have reached the
official closing of our Personal
Injury Case I would like to thank
you and your staff. At the outset
when my husband and I were
still shaken up and emotionally
fragile, you displayed great
understanding and tact. We
both felt we were dealing with
a warm caring human being.
You and your staff guided us
through the necessary forms
and procedures, efficiently and
expertly. I particularly appre-
ciated being able to email Erin
or Ashley about my concerns
and get a response from them
by email or phone. They were
unfailingly helpful and consid-
erate. I am left with a strong
sense that yours is a happy-
positive office culture.
Last but not least, my husband
and I are very pleased with the
financial settlement you were
able to get for us. Thank-you.
Yours truly,
Suzanne Schuurman
read testimonials
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Recent judgment is of interest to personal injury claims dealing with cap legislation
Farrel v. Casavant, [2009] N.S.J. No. 351
All will find the judgment handed down on Farrel v. Casavant, [2009] N.S.J. No. 351 on 31 July 2009 of particular interest with regard to personal injury claims. The judgment deals with the cap legislation at length, and a copy of the decision is attached.
As a follow up to this judgment, it is clear that it is important to secure information/witness evidence from family, friends and employers that will serve to address the importance of those activities which the client can no longer pursue and the serious consequences going forward of the loss of the ability to carry out those activities. This judgment shows the importance of such lay witness evidence and the strategic importance of such evidence to the claim.
Of course, counsel should not introduce evidence from a lay witness unless their evidence (which means all of it) will be helpful. Cross examination of lay witnesses holds peril to any claim so it is crucial to ensure that there is no down side to the evidence they will give, and if there is, then counsel should not put forward that evidence.
It is clear that the Regulation surrounding the term "Resolves" really means that the "impairments" to function that are found to be "serious" do not resolve within a year from the date of loss. This judgment affirms that the Legislature "intended" to include plaintiffs who suffer permanent symptoms for which they cannot sue for more than $2,500; that conclusion was reached in Ontario jurisprudence (Myers v. Bright) and now is confirmed in Nova Scotia. Thus, it will not be enough for symptoms and treatment to continue past a year; rather the focus has to be on "impairments" and whether "serious" consequences arise from them (not that the impairments themselves are "serious").
It is also clear and affirmed by this judgment that legislative verbiage is to be applied to each case on its own merits which means that broad brush strokes from case to case are inappropriate. It will be important to differentiate each case using specific fact as to the "seriousness" of the consequences arising out of the impairments and the impact on each individual plaintiff. As the judgment noted, what is serious to one person is not necessarily important to another person (i.e.: the harp player example used). (read decision)
(posted September 17, 2009)
The Napier Legal Team, part of the BOYNECLARKE LLP law firm - www.boyneclarke.ns.ca - is located at 33 Alderney Drive, Suite #600, Dartmouth, N.S. Canada B2Y 3Z5 P.O. Box 876
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