An accident at home
A 10 year old boy falls from a ladder at his home. His father allowed him to climb the ladder, but had forgotten that a few of the rungs at the top were rotted through. The boy breaks an ankle and leg in the fall and, because he has missed so much school, is left back in the first grade. His injuries heal, but the long term prospects for his ankle are not good. The ankle may have to be permanently fixated at a later stage. The family has both accident and liability insurance. They seek advice from Uncle Gerry, who is a juridical advisor at a home care facility.
Thanks to Uncle Gerry, the family make a claim on the accident insurance, but not on the liability insurance. According to Uncle Gerry, there is liability only on the part of the father and his liability toward a family member is not covered.
Ten years later the ankle does have to be permanently fixated. Uncle Gerry advises the family that any claim of liability on the part of the father has now passed the statute of limitations, even if it was originally covered. The statute of limitations in such cases would be 3 years according to Uncle Gerry.
Wildeboer AVS would have given the family different advice than Uncle Gerry did. After the accident, the family needed a lawyer with expert knowledge of both personal injury law and insurance law. A specialist personal injury attorney is experienced at solving problems that others ignore or don’t even recognise. The family didn’t engage an expert lawyer in this case. And that’s a shame.
Whiplash
- Is a neurologist the right specialist for this case?
- Should a pain specialist, a rehabilitation physician or a psychiatrist also have been consulted?
- Were the questions asked of the medical expert the right questions, especially when trying to determine a causal link between the accident and the permanent injury?
- Did the expert use the appropriate criteria in evaluating the objective presence of the client’s injuries?
Work-related injury
A self-employed man works on assignment for a third party client. There is a fire in the hall of the building where the man is working for that client. Both the man and the client’s own employees sustain burn injuries as a result of the fire. The liability insurer on behalf of the client is willing to cover damages sustained by the client’s own employees but declines to cover the man’s damages. Their argument is that their insured did not breach any work regulations with respect to the man. Additionally, they point out that there is no labour contract between the man and the client. The insurance company also claims that the man is partly injured through his own negligence and so he should anyway bear part of the costs of his injury himself.
In this case, it is not labour law, but the law of torts that is of primary importance. Liability law in this case will be influenced and supplemented by principles flowing from labour law. The precise nature of that supplementation and the balance of the two areas of law can only be determined by an expert advocate. As far as the man’s own negligence goes, if the man is truly partially responsible for his own injuries, he should use his own disability insurance to first compensate the part of the damages that he has to bear himself. The man should not allow such benefit to be deducted from any settlement amount before using such benefit to cover damages that remain for his own account. That will only cost him money needlessly.
A personal injury case may seem simple at first glance. You will only discover all the complexities – and recover the maximum damages – when you hire a true legal expert, one who is able to see the difficulties before they become problems or cost you needless aggravation and money. Expertise is of prime importance when you choose your representation and is always in your best interest. Don’t sell yourself short. Choose your advocate wisely.
Medical error
A man dies as a result of a medical error. The hospital admits liability but contests that the widow and her minor children have incurred damages as a result of the death. The advocate for the family is having difficulty convincing the hospital otherwise due to a lack of knowledge and the kind of insight and creativity that come with experience.
In calculating the damages for loss of life, things like substitute care for children (and the resulting fewer working hours for the widow) should have been taken into account.
The (hypothetical) career path of the victim should also be considered when determining damages due to loss of income, and not only the status quo of the victim’s career at the time of death. The extent of the fixed and variable financial burdens on the family should be carefully considered and determined and should be judiciously divided between the widow and the children as well. Eventual costs for future university studies for the children should be considered, if current indications are present. Further, any life insurance benefits paid should not be automatically and in full deducted from the settlement amount. There may well be reason to use them for non-recoverable damages first.
Did you find the above information a bit difficult to follow? For the attorneys at Wildeboer AVS, it is part of their daily routine. We are there to make sure that the damages of both the widow and children are adequately and fairly compensated.
