The person I meant to hit ducked! What now?

So this article is a bit of fun to discuss a hypothetical situation that seems, often enough, to be real.  Imagine two people arguing with each other.  One of those two people gets upset enough that he or she tries to throw something at the other person.  Either through bad aim or the other person ducking, the thrown projectile--whether a beer bottle, shoe, fist, or other object--instead of making contact with the intended target ends up hitting an uninvolved innocent by-stander.   This scenario is more common that you might expect and I know in my firm we have had this kind of case several times in the circumstance of bar patios and thrown beer bottles.

So, the question I want to address today is what is the legal position of the person who intended to hit a particular victim but unintentionally, or without intent, hit another person and caused them injury.   Does intent matter in a civil context?  Should the person who threw the projectile be liable for the injuries or damages caused regardless of what they meant to do?

The answer, or at least an answer, comes to us from the case of Carnes v. Thompson (1932), 48 S.W. 2d 903.  In that case a farmer was trying to evict a former employee and his wife from a house that was located on the farm property.  The farmer and the former employee became angry and at one

point the farmer threw a pair of pliers that he had handy at the former employee.  The ex-employee, seeing the pliers coming ducked.  The pliers then flew through the air and struck the ex-exmployee's wife who was standing near her husband.  The facts are clear that the farmer did not intend to strike the wife and that he had no desire to cause her harm. In fact the farmer testified that he was never even close enough to the ex-employee to strike him.

The case proceeded to a jury and the finding was ultimately for the wife/plaintiff and the defendant farmer appealed.  The Court in reviewing the facts made this finding and stated this general principle of law.  "That if one person intentionally stirkes at, throws at, or shoots at another, and unintentionally strikes a third person, he is not excused, on the ground that it was a mere accident, but it is an assault and battery of the third person.  The defendant's intention, in such a case, is to strike an unlawful blow, to injure some person by his act, and it is not essential that the injury be to the one intended ... ."

This case is interesting as it deals with the issue of intent and in the context of an intended illegal act it is clear that intent does not matter.  I wonder, if the case might be useful in the context of a "friendly tussle" or rough housing or even a consensual fight between two people.  If in the context of that interaction, something gets thrown or another person is injured when the intended "victim" ducks is there still liability on the part of the person who caused the injury?  Or is it possible that the person who caused the injury could escape liability because it was an accident?  Certainly, I would expect that liability would follow even in such a case but it is interesting that in this precedent that the underlying intention to commit an illegal act factors so prominently in visiting civil liability on the farmer.

Michael K. E. Thiele
Ottawa Lawyers
 

Ontario Residents: Car Accident Outside of Ontario?

 

The fact is that Ontario insureds, involved in a car accident or collission outside of Ontario but somewhere in Canada or the United States of America, can choose to receive from their own insurance company the Accident Benefits available under their own insurance policy or the equaivalent of the benefits that are available to the residents who live in the jurisdiction where the accident or collision happened.

That Ontarians travel outside of Ontario, either to other provinces or the United States, is a fairly common thing.  With travel outside of the province or travel to the United States comes the risk of a motor vehicle accident.  Have you ever wondered what your rights would be if you were in a car accident outside in Ontario? 

 

 

If you find yourself in a situation where you have suffered injuries in an accident outside of Ontario you should not automatically presume that the "rights" you have in Ontario do not apply outside of the province.   In some cases you will find that accessing your Accident Benefits, under your own policy, is the best course of action in recovering from your injuries.

Accident benefits include such things as income replacement, medical and rehabilitation coverages, attendant care, death and funeral benefits.  These are the benefits that you have the right to access without having to prove fault or start what is commonly understood to be a lawsuit.  

 

www.Ottawalawyers.com

 

Michael K. E. Thiele

Money for Injuries: The Nature of a Personal Injury Claim

Imagine that you are walking down the aisle in a big box store when all of a sudden a shelving unit collapses and the items on the shelves tumble onto you. Your leg is broken.  Or perhaps you were walking carefully in a store or in a parking lot and you trip on some protrusion thereby falling forward onto your hands breaking both wrists or elbows.  Or what if you are a passenger in a car when the driver made an unsafe left turn and you were t-boned in an intersection thereby suffering catastrophic injuries.



Mikolaj Grodzki
Partner at Quinn Thiele Mineault Grodzki LLP

The foregoing are just three rather common ways that people suffer rather serious injuries.  There are of course countless other ways that people can be hurt and those other ways may,like these exampales, also entitle them to compensation.  The common thread, in each of these scenarios, is that someone, other than the injured person, was negligent and thereby caused the person to suffer the injury.

The area of law that deals with personal injury cases is called "tort" law.  The word tort derives from the Latin torquere.  It is defined as a private or civil wrong or injury ... as a violation of a duty imposed by general law or otherwise upon all persons occupying a relation to each other.   Where there is a tort there is always a violation of some duty owing to the victim and generally speaking the duty must arise by operation of law.   From these defining words comes the concept of negligence and it is defined as consisting of the existence of a legal duty owed to the victim by the perpetrator, a breach of that duty, a proximate causal relationship between the breach and the plaintiff's injury, and damages.

THE POINT OF TORT LAW

Hopefully the definitions provided help you understand that Tort law concerns itself with injuries caused by people/companies/legal entities against other people in circumstances where the people who are doing the injuring (intentionally or through inadvertence or negligence) had a duty to protect or behave in a way or do something that would prevent the injury to the victim. 

The law recognizes such situations being circumstances that society has an interest in addressing through the legal system.  One of the best descriptions I have ever heard on the purpose of tort law that speaks to why it exists comes from C.A. Wright in Introduction to Cases on the Law of Torts (4th Edition 1967) where he states: 

 Arising out of the various and ever increasing clashes of the activities of persons living in a common society, carrying on business in competition with fellow members of that society, owning property which may in any of a thousand ways affect the person or property of others---in short doing all the things that constitute modern living---there must of necessity be losses, or injuries of many kinds sustained as a result of the activities of others.  The purpose of the law of torts is to adjust these losses and to afford compensation for injuries sustained by one person as the result of the conduct of another.

ARE ALL INJURIES COMPENSABLE?

A further way to appreciate the purpose of Tort law is to understand that not all injuries that a person suffers are compensable.  If a person falls down their own stairs because they did not shovel, or crashes their own car because they fell asleep at the wheel, or in some other way suffered misfortune through their own fault, society does not have a system for delivering compensation (for those injuries) to that person even though the injuries sustained may be quite serious.  What this fact highlights is that tort law exists to compensate injuries caused by others where the victim is not at fault or not entirely at fault for the incident.

THE FIRST CONSIDERATIONS FOR PERSONAL INJURY LAWYERS (Tort Lawyers)

Now that you have a working definition of tort law and understand the concept of negligence, you will appreciate that lawyers who work for injured persons must always analyze the context of the injury.  They have to try to determine if there is a "tort" present in the fact scenario and whether there is anything in the facts that the law recognizes as being compensable.  No matter how tragic or sad a case may be, if the injury arose out of circumstances where there is no "tort" then there is quite likely no case to pursue.

You would think that the question of whether there is or isn't a case would be immediately obvious.  In some situations that is true and it is quickly clear that there is, prima facie, a case (for example:  a passenger in a car accident in Ontario is virtually guaranteed to have a claim).  However, there are many situations and unusual circumstances that call into question whether there is a claim or not or whether the facts are such that a duty of care and a breach thereof can be established in the circumstances (for example: a person walking along in a store falls and breaks a leg but there is no explanation for how the fall happened).

In Ontario, there are also many laws that limit liability and claims against persons who would otherwise be liable for injuries.  An obvious example is the Workplace Safety Insurance Act (WSIBoard) where certain employers are immune from being sued for injuries sustained by their employees or the employees of other employers.  An example of limiting the right to sue is in the motor-vehicle accident law where the right to sue has been restricted to cases that are serious enough to meet a certain legal threshold.  Those people who suffer injuries in an accident, and who were not at fault, may find that they can not sue because the law says their injuries are not serious enough.  Interestingly, car insurance law also provides some health and financial benefits to injured persons involved in a car accident without needing to prove a "tort"--these are called accident benefits.

The point, which I hope you understand, is that the lawyer's first task is to determine if the injured person suffered their injuries in the context of a tort that the law recognizes.

THE CASE ITSELF

The articles that will follow in this blog will discuss how a case is developed and some of the considerations that go into pursuing a case.  If you have read this far, and are looking for specific answers I invite you to post comments with general questions.  I will be happy to answer them, in a general sense, without actually providing specific legal advice.  Blogs and articles like this will never be a substitue for actual legal advice.

The best news is, if you've read the first article in this blog you will know, getting legal advice for personal injury matters is fairly easy.  Given the advent of contingency fees there are many lawyers who are quite happy to provide you with free first consultations to answer your questions and to gain an insight into whether or not you have a case.

Mikolaj Grodzki
Ottawa Lawyer
www.ottawalawyers.com

Ontario Personal Injury Lawyers: Where do they come from?

It seems these days that wherever you turn there are advertisements by personal injury lawyers looking to find clients who have been injured in an accident.  My lawfirm, Quinn Thiele Mineault Grodzki LLP, is a personal injury lawfirm in Ottawa, Ontario, and we too are always looking to assist new clients.  The firm itself was formed in 2001 by myself and two others.  After working at other lawfirms, we decided it was time to strike out on our own to create the kind of law-practice that truly served the individual.



Michael K. E. Thiele

In 2001, the three partners of Plant Quinn Thiele LLP had each been practicing for 5 years. The focus was on Family Law, General Insurance Litigation, Personal Injury Law, Residential Landlord and Tenant Law, Workplace Accidents, and all sorts of cases arising from contract disputes.  In this sense it was a general practice that gave each of the partners a broad background in the law that would, over time, become invaluable in assisting clients with whatever the unique circumstances of the case were.

Somewhere along the way, we increasingly focused our practice on personal injury cases and slowly away from the traditional areas of law such as real estate, family law, and general litigation.  The reason for that shift ultimatley boils down to one factor and that is the affordability of legal services.  While my partners and I were running a very lean practice and our costs were tightly controlled there was unavoidable over-head that kept pushing fees up at a rate that exceeded the public's ability to pay.

Plant Quinn Thiele LLP operated out of space in a lower class office tower near the Courthouse so that we could run over without delay or cost of parking etc..  We invested in the latest technology to promote efficiency and limited our staff to one superhuman receptionist/clerk/office manager (Thank you April L.), along with a part-time bookkeeper.  We didn't invest in marble, fancy artwork, or exotic furnishing as typifies the large law firms  as we heard from our clients that they didn't want to pay for that kind of environment.  We (the partners) worked very long hours and did everything ourselves, thereby in the process learning the ins and outs of every aspect of litigation.  In those days, we noted that it was impossible for any one of the three of us to ever come to the office 24/7, 365 days of the year without seeing at least one of the other partners during that attendance.  The sense of dedication and committment to our team was thereby profound.   When you are guaranteed to see another partner in the office (or know they were just there) whatever time you go to the office you know that you are working with people who are driven to succeed.

As a result of how we operated, we spent heavily from the capital of our relative youth.  The rewards however were there and we were successful from day 1.  We quickly paid out a start-up bank loan and committed to operating in the black without loans or dipping into an emergency line of credit.  This we did for many many years.  Running lean on expenses also meant that the hourly rates we charged could be lower as our revenue was not consumed by interest charges or other expenses.

Our clients have always been regular people and not large corporate entities.  We actively sought to represent regular individuals, as opposed to larger clients as we never wanted to be beholden to any one client.  For that reason we turned down retainers from larger corporations and insurers who would have consumed all of our time with their work.  The idea that one client could break us, or make demands to which we could not afford to say no, was concerning to us and we actively sought to avoid that danger.

Being so close to "regular people" with legal problems it became increasingly apparent in the early 1990's that the ability of people to pay for traditional legal services was becoming more difficult.  There has never been a shortage of clients just an increasing shortage of clients with sufficient income to afford going through the legal system with their matters.  The profound expense of legal services is not an issue that has gone away, even today.  We have clearly passed the tipping point of people stretching to afford legal services to them realizing that hiring a lawyer is just not an option.  Out of necessity and a lack of alternatives, many more people are representing themselves today than ever before in litigation proceedings.

I do believe that there are many reasons why access to legal services and the dispute resolution mechanism of the Court system is out of reach of regular people.  One of those reasons is that the law, in relation to the types of matters that concern regular folks, has become unduly complex.   The increasing complexity is driven in part by bureaucratic regulation and also by lawyers' concerns over their professional liability.   Rule books have gotten thicker, professional duties have become more complex, and administrative burdens have substantially increased from decades ago.  Each of these changes, to be sure, was intended to improve the delivery of legal services.  Unfortunately, what I see in the end is that all of these changes amount to a very expensive burden that is being passed on to clients.

In conversations with many senior (as in "old") lawyers about the number of trials that younger lawyers have today, as well as conversations with a few retired judges about young lawyers and their opportunity to go to trial, one can see that what once resulted in the efficient meting out of justice has slowed dramatically.  The fact is that it is rare today for matters to go to trial and it is rare for trial work to be a regular part of a litigators practice.  I've wondered why this is the case (it's as true in my office as it is in any other law office) and I've often recieved the answer that trials today are much more complicated and hence unduly expensive.  There are more expert witnesses, more comprehensive disclosure of documentation, more paper, more process and more complicated evidence.  Claims today, as fashioned by plaintiffs, are also more in that the heads of damages have been expanded to capture many different heads of damages--all of which have not always been typical claims. The "more" of course is relative to how it once was in Ontario.   Whereas the very senior counsel today can recall doing more than 2 civil trials a week in their early law practices the idea of  regularly doing two or more civil trials a week today is simply unfathomable.  The reasons for why this is inconceivable partly explains why legal services today are so expensive.

That the lower end of the range of our clients couldn't afford to hire us and that we couldn't afford to be hired by them within their available budgets was terribly disconcerting.  The affordability of pursuing a claim, or defending one, increasingly became the primary consideration in whether clients would engage in the legal system with the help of a lawyer.   This change, frankly, took a lot of the satisfaction out of being a lawyer.  Whether justice is pursued, whether claims are compromised or even abandoned, became less about the "justice" and more about affordability of continuing.  The inability to afford the work that needs to be done to properly bring about the conclusion of a case on the "merits" is like asking a contractor to build a house with only half of the materials or for a surgeon to complete a surgery without all of his instruments.

THE CHANGE

The trend I noted above applied to all areas of the law.  However, the area of personal injury law was a little bit different before becoming radically different.  Prior to the advent of contingency fees, lawyers would often undertake personal injury cases using "result billing" as the basis for their accounts.  Fees would be deferred so that the work could be done, and if successful, the fees would be paid from the winnings with an added charge for the result.  If there was no success then often the fees would be waived, or only disbursements charged, as it would be apparent that the client could not afford to pay.  The problem with the result billing manner of proceeding was that it operated in a bit of a gray area.  It is only with the advent of contingency fees in Ontario that the law clearly allowed a lawyer to work and charge based on "results".


Contingency fees, in my view, were akin to a quiet revolution in the practice of law.   All of the problems that prospective clients were facing in affording legal fees were done away with in the context of cases that could be pursued on a contingent fee basis.  Contingency fee agreements allow clients to access the law and the full dispute resolution mechanisms of the Court because they are not required to pay fees on an ongoing basis.  Where retainer agreements are based on contingency fees, the financial risk of a file shifts from the client to to the lawyer.  The lawyer only gets paid if there is success in the file.  Further, in true contingency fee matters, the lawyers will also assume the cost of funding disbursements including everything from stamps to expert medical reports.


QUINN THIELE MINEAULT GRODZKI LLP

In 2010, Plant Quinn Thiele LLP, admitted new partners (Mineault & Grodzki), and the firm made a serious committment to restricting its practice to only personal injury work.  Personal injury work is particularly well suited to contingency fee work as the goal of the litigation is compensation.  This work was attractive to us as the unfortunate conversation about "affording" legal services is a conversation that we now rarely have with a client.  The focus in a personal injury action today is simply on the merits of the case and not on whether a client can afford to pursue it.

Since 2001, we have handled hundreds of personal injury actions and the awards that our clients have received reach into the multi-tens of millions of dollars.  While the awards we win don't restore the health that has been lost; it certainly is true that the compensation we get for our clients makes their lives significantly better.

THE FUTURE

At QTMG LLP today we continue to take on new personal injury lawyers and we seek out clients who are in need of help in relation to their personal injury claims.  Ability to pay legal fees is not a factor as we carry all litigation from beginning to end.  Further, we have invested in our ability to carry disbursements and have even made arrangements with various funding organizations to have money loaned to our clients pending resolution of the claims.  Relieving financial stress, as soon as possible, is an effective way to ensure that a client will pursue a claim until it is fairly resolved.

I hope the foregoing gives you some insight on Quinn Thiele Mineault Grodzki LLP, where we come from, and why we do what we do.  The lawyers here are passionate about helping regular people get the compensation they deserve.  If you, or someone you know needs our help, please give us a call or email.  There is no charge to talk and we would be pleased to get you the information you need.


Michael K. E. Thiele
Quinn Thiele Mineault Grodzki LLP
www.ottawalawyers.com
mthiele@pqtlaw.com