Wolfe Lawyers Personal Injury Law
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Self- Driving Vehicles: The Good and the Bad

In today’s world many companies in the automotive industry are expending a significant amount of time and resources on self-driving vehicles.

Reports from the United States have analyzed the impact of self-driving vehicles in regards to fatal traffic accidents. The reports have shown that self-driving vehicles could reduce fatalities on the road by 90 percent. Sounds great, right? Unfortunately, there are several things that are impeding the transition to a fully self-driving road.

Recently, a self-driving Uber got into a deadly crash with a pedestrian in Arizona. This is the first known death of a pedestrian by a self-driving vehicle. The Uber vehicle was headed northbound when a 49-year-old woman was struck while pushing a bicycle across the street. She was rushed to the hospital, but sadly succumbed to her injuries and passed away. This incident has resulted in corporations slowing down their road testing and has contributed to the public’s lack of confidence in technology. To read the CTV news article, click here.

Furthermore, these self-driving vehicles have built-in algorithms which may further deter the general public. An example of a built-in algorithm is the ability the car has to avoid a group of pedestrians by driving off the road, thus putting the driver and passengers in the vehicle at risk. The general public will be hesitant on purchasing a vehicle that will put their own life at risk in order to save others.

Theoretically, self-driving vehicles will benefit the public. However, unless they are fully implemented, there will always be human error. For the reasons set out above, there is a significant amount of hesitation in fully adopting these self-driving vehicles.
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Playing Hardball May Have Its Consequences

In the last few years Court decisions have shown that insurance companies are taking stricter positions against plaintiff claims. However, recently an insurer was penalized a substantial amount of money for doing just this. Time will tell whether this decision will deter insurers from playing “hardball”.

In cases that involve a plaintiff delivering an offer to settle that is rejected by the defendant, the Courts rely on Rule 49.10(1) of the Rules of Civil Procedure in determining the amount of legal costs. Rule 49.10(1) states:

49.10 (1) Where an offer to settle,

(a) is made by a plaintiff at least seven days before the commencement of the hearing;
(b) is not withdrawn and does not expire before the commencement of the hearing; and
(c) is not accepted by the defendant,

and the plaintiff obtains a judgment as favourable as or more favourable than the terms of the offer to settle, the plaintiff is entitled to partial indemnity costs to the date the offer to settle was served and substantial indemnity costs from that date, unless the court orders otherwise.

A recent decision from the Superior Court of Justice outlined the importance of Rule 49 offers and the consequences that accompany such offers. In Persampieri v. Hobbs, the insurer, Aviva, made a tactical decision to reject a Rule 49 offer that the plaintiff ended up beating at trial.

Mrs. Persampieri was an 84-year old woman who was rear ended by a driver who was insured by Aviva. Even though liability was admitted, Aviva took a strong position on threshold under section 267.5(5) of the Insurance Act and refused to pay any damages to the plaintiff. On May 15, 2017, the plaintiff served Aviva with a Rule 49 offer to settle her claim for damages for only $10,000, without pre-judgment interest, plus partial indemnity costs. Trial was held from May 29, 2017 to June 15, 2017. Although the plaintiff was awarded only $20,414.83 for her damages, the court ordered costs of $237,000 against the insurer, payable to the plaintiff.

The main issue in regards to costs was whether the amount should reflect all reasonable costs of trial, as submitted by plaintiff’s counsel, or whether it should proportional to the ultimate verdict, as submitted by defence counsel.

Justice Sanderson held that insurers that take positions on modest claims that necessitate a trial should not be allowed to rely on a strict application of the proportionality principle in determining costs. Justice Sanderson stated that Aviva was a sophisticated insurer that made a tactical decision to reject the plaintiff's Rule 49 offer. Furthermore, Aviva knew or ought to have known that resolving issues at trial involved a lengthy hearing and costly evidence.

Justice Sanderson went on to note that when Insurers take such hardline positions on legitimate claims it can discourage plaintiffs from pursuing such actions, and that could seriously jeopardize overall access to justice. Justice Sanderson stated “even though Insurer’s are able to pursue whatever strategy option they deem fit, the use of such strategies should not be encouraged by the giving of cost breaks on foreseeable cost consequences”.

Justice Sanderson found the plaintiff's evidence to be reasonable and ordered the defendant’s to pay costs of $237,017.50 to the plaintiff.

The full decision of the Ontario Court of Justice can be read here.

An article on the decision in the Toronto Sun can be read here.
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Does being injured from spilling coffee in a car entitle you to accident benefits?

According to the Statutory Accident Benefits Schedule (SABS), in order to be entitled to statutory accident benefits, an injury has to arise from an "accident". Section 3(1) of SABS defines an “accident” as “an incident in which the use or operation of an automobile directly causes an impairment or directly causes damage to any prescription eyewear, denture, hearing aid, prosthesis or other medical or dental device”.

So, does spilling coffee in a car fall under “an incident in which the use or operation of an automobile directly causes an impairment”? The Ontario Court of Appeal has answered this question in Dittman v. Aviva.

In Dittman, the Plaintiff bought coffee from a McDonald’s drive-thru and spilled it on her thighs when attempting to transfer the coffee to the vehicle’s cup holder. It is important to note that the car remained in gear, although not in motion, and the Plaintiff was wearing her seatbelt, which limited any reflexive actions to avoid the spill. The analysis of the Court of Appeal focused on causation. Justice Gordon determined that the causation test required the consideration of two questions:

  1. Was the use or operation of the vehicle a cause of the injuries?

  1. If the use or operation of a vehicle was a cause of the injuries, was there an intervening act that resulted in the injuries that cannot be said to be part of the “ordinary course of things?” or in other words, was the use or operation of the vehicle a “direct cause” of the injuries?

Justice Gordon determined that but for the use of the vehicle, the Plaintiff’s injuries would not have occurred. Justice Gordon went on to note that if it was not for the use of the vehicle, the Plaintiff would not have been in the drive thru, would not have received or spilled coffee while sitting, and lastly, if the Plaintiff was not seated and restrained by the seatbelt, she would have been able to take evasive action to avoid or minimize the amount of coffee spilled on her thighs.

Justice Gordon then went on to determine if there was an intervening act that resulted in the injuries that cannot be said to be part of the “ordinary course of things”. Justice Gordon determined that the accidental spilling of a hot beverage is a normal incident of the risk created by the use of a vehicle at a drive-thru. Justice Gordon went on to exemplify that if the drive-thru attendant deliberately threw the coffee on the Plaintiff then that would be an intervening act and would effectively break the chain of causation.

Due to the analysis of Justice Gordon, the act of inadvertently spilling coffee was deemed to be an “accident” according to the SABS. Thus, the Plaintiff was entitled to receive accident benefits. The full decision of the Court of Appeal can be read here.
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