New Developments in Personal Injury Cases: Fitbit Now Being Used to Prove Personal Injury Losses

New Developments in Personal Injury Cases

 Proving Damages in Personal Injury Matters Using “Fitbit”

fitbit tracker

 In Calgary, new developments in personal injury law permit personal injury lawyers to prove their client’s claims with quantifiable data.

Fitbit, a popular fitness tracker, is being used by a Calgary law firm to show a client’s diminished physical activity levels in a personal injury claim. The client was a personal trainer who suffered injuries that prevent her from being as active as she used to be. This is apparently the first time that Fitbit data will be used in a personal injury case in Canadian court, or any other case for that matter.

What does this mean for personal injury law? A more quantifiable way to prove a client’s loss due to personal injury. However, it also means that insurers may attempt to get orders for the production of this information from Fitbit’s owner, Vivametrica, in order to show that a plaintiff did not in fact suffer the personal injury to the extent they alleged.

Read more about this interesting development in personal injury law here.

If you or a loved one has suffered personal injury, whether it be from a car accident, slip and fall, or any other cause,  you have legal rights.

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    Please contact our Oakville personal injury law firm for more information about bringing a claim for personal injury damages and scheduling a free consultation.

    Beware: Social Media and the Courtroom

    Social Media can be a Plaintiff’s Enemy

    Facebook has taken over the globe in unimaginable proportions. Many people use Facebook daily, especially for posting photographs of fun nights out with friends and family vacations. Privacy settings can be set quite high; however it is important to know there might always be a way around privacy settings. As an injured party, Facebook and other social media websites may become your enemy.

    When you are involved in an accident, personal injury has been sustained, and a law suit has commenced, it is important to take into consideration that surveillance may be placed upon you. Another consideration to be made is that, after an accident, the opposing side may very well do investigating by way of social media sites too. When you have suffered personal injury from an accident, be sure to take extra precaution of what you are posting on these websites, because any inconsistencies between what you are saying and what is being shown, may be brought to light, despite those photographs not actually depicting the true extent of your pain from your accident injury that you may have most of the time.

    Counsel has not been afraid to use Facebook and other social media cases for credibility issues during questioning and in Court for people who are claiming pain and suffering from injuries sustained in an accident.  In the Ontario Superior Court of Justice case, Kourtesis v. Joris, a young woman’s photograph postings led to her claim for damages for pain and suffering to be dismissed. The young woman claimed her social life had been ruined by the accident and subsequent injuries; however Facebook photographs depicted her out partying with friends. This led to the demise of her “ruined social life” claim and in the end, undermined her claim to have suffered other problems from the accident.

    Despite irrelevant searches being looked down upon, Courts have tended to find that photographs relevant to accident injury claims on social media sites should be disclosed. For instance, if you manage to climb the tallest mountain, this should be made known. Lying and hiding those facts, even if you do have legitimate injuries, could lead to your case failing in every way. If you are on social media websites, be careful as to what you post, even if you are not part of a law suit. You never know how people may gain access to your profiles and nothing is off limits if it is relevant to your case. Always tell the truth and admit, for example, if your injuries from an accident do not cause you constant limitations and pain.

    If you have sustained personal injury from an accident, do not hesitate to contact our personal injury law firm to find out about your legal rights.


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      Personal Injuries Can Impact The Entire Family

      Family Law Claims

      When you sustain a personal injury from a car accident, slip and fall or other accident, your injury can be detrimental to your normal lifestyle. However, those close to you may also be gravely impacted due to an injury that you sustained, despite them not being physically injured. It is because of this, that close family members have the option to bring forth a claim under the Family Law Act (FLA) to receive compensation for what they too have been put through because of their loved one’s injury from a car accident, slip and fall or other accident.

      For instance, if you are in a car accident and suffer an injury which results in chronic pain, you may not have the same abilities as you once had.  In this example, your spouse may be required to take on extra responsibilities within the home. Additionally, your relationship may suffer or change due to the injuries you sustained in the car accident. If this is the case, your spouse would be able to make a claim under section 61 of the FLA, which can be summarized as follows: This section allows a spouse, children, grandchildren, parents, grandparents, brothers and sisters of the person injured to recover damages for expenses incurred by them for their loved one’s injury, travel expenses, housekeeping and nursing services and compensation for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person with the injury, if the injury from the accident had not occurred.

      In the recent case of Lee v. Toronto District School Board, et al. 2013 ONSC 3085 (CanLII), a little boy was severely injured in a school ground accident by another child. The boy’s parents and sister claimed under the family law act for an amount to compensate for the loss of guidance, care and companionship that the claimant might reasonably have expected to receive from the person if the injury from the accident had not occurred. The judge fixed the damages for the claimants at $50,000.00 for each parent and $30,000.00 for the sister.

      Another example of an FLA claim occurs in the 2009 case of Degenarro v. Oakville Trafalgar Memorial Hospital. The plaintiff suffered an injury after an accident in a hospital was caused by a faulty bed. Her condition caused stressed in her marriage and relationships with her children which were unlikely to improve. The plaintiff’s husband was awarded $65,000.00 and her two sons were awarded $25,000.00 each for loss of guidance, care and companionship

      Loss of guidance, care and companionship can mean the loss of contribution that the loved one that sustained the injury in an accident can no longer provide. It could also mean that the loved one’s relationships with his or her spouse and children have been negatively impacted. Perhaps a spouse can no longer be intimate with their partner, or a mother can no longer be attentive to their child; these are both examples of circumstances that may warrant an FLA claim. If you have questions about what your options are due to a personal injury that has befallen you or a loved one from an accident, do not hesitate to contact our personal injury law firm about your legal rights and your family members’ legal rights.


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        Plaintiff awarded $75,000.00 for a broken leg in trip over broken Oakville sidewalk.

        Oakville Lawyers $75,000 awarded to Plaintiff for Broken Leg

        sidewalk cracked ledgeA Oakville Court awarded a plaintiff, Ms. Elizabeth Ann Riehl $75,000.00, amongst other damages, for a broken tibial plateau and loosened front teeth.  The tibial plateau, or the actual diagnosis of an undisplaced fracture of the medial tibial plateau which, in common parlance, is a crack in the head of the tibia extending into the knee joint. (**Picture not actual site of occurrence)

        Elizabeth was 41 years old at the time of her trip and fall.  She lived with her husband and son on Main Street West in Oakville.  On June 19, 2007 she was scheduled to start work at 6:00 a.m.  She left her apartment at 5:45 a.m.  She was walking north along the centre of the sidewalk on the west side of Main Street West, heading for the bus stop at Osler Drive.  The weather was clear and mild, she was wearing sensible walking shoes, carrying a backpack with library books in it, and a purse which did not affect her balance or the way she fell.  There were no witnesses to the accident.

        Elizabeth tripped over an elevated crack in the sidewalk, which unfortunately neither she nor the adjuster measured.  No one knew the actual precise height of the crack by the time the case got to court.

        The plaintiff attended the hospital and was discharged with a leg cast from her groin to her ankle.

        She and a friend took pictures of the area in which she fell and provided them to the Risk Management Department at the City of Oakville.

        The City then referred the matter to independent claims adjuster Robert Phipps.

        The Oakville Court’s decision

        In these types of cases, against the municipality, the onus is on you, the plaintiff, to prove on a balance of probabilities, the state of disrepair of a roadway.  The plaintiff, you, is also required to prove on a balance of probabilities, that the non-repair of the road way was the cause of the accident in question.  Once these requirements are met, the onus then shifts to the municipality to prove, on a balance of probabilities, that the condition that the non-repair existed notwithstanding all reasonable efforts on the part of the municipality.

        The questions posed to the Court were the following:

        1. Did a state of disrepair exist?
        2. Was this state of disrepair the cause of the plaintiff’s injuries?
        3. Has the defendant met the onus of proving a defence under section 44(3) of the municipal Act?
        4. What are the damages?

        With respect to the first question, the Court found that neither party took measurements of the height differences between the two sides of the crack.  There were photos taken that were in existence.

        Have you tripped over a broken sidewalk? Please contact one of our lawyers for more information. You may be entitled to compensation.

        A project manager from Oakville’s Public Works Department was involved in analyzing information and developing work plans to invest efficiencies and, in particular, trip hazards on municipal sidewalks.  There was testimony which indicated that a grinding machine was used by the City of Oakville to smooth out trip hazards.  This grinder could be effectively used to chip of the surfaces to correct discrepancies of up to 25mm (about an inch) to eliminate tripping hazards.  That project manager than testified that the defects of 25mm or more are placed on a asphalt sheeting list.  Temporary asphalt patch would then be placed to alleviate the vertical separation by creating a ramp and making the defect safe.

        The judge found that the photographs taken show that the asphalt patch was either old or disintegrating and it was never properly applied because it did not reach the margin on the height side of the cracks.  Essentially the Judge found that the plaintiff met the onus of proving on a balance of probabilities that the sidewalk was in a state of disrepair.

        With respect to question 2, or whether or not the state of repair caused the plaintiff’s injuries, the Judge found that it was not disputed that the fracture of the tibial plateau and loosening of her front teeth were caused by the trip and fall on the sidewalk.  However, he found that she contributed to her injuries at the rate of 25%.

        With respect to question 3, or has the defendant met the onus of proving a defence under section 44(3) of the Municipal Act (the city argued that it took reasonable steps to prevent the default from arising).  The Judge found that the defendant knew the area was in a state of disrepair.  It had attempted an asphalt patch for the crack, which caused the plaintiff’s fall.  It had replaced part of the sidewalk a short distance south of the spot where she had her accident.  It had been involved in infrastructure work at the intersection of Main Street West and Osler Drive in Oakville shortly before her accident.  The Judge found that, in his view, The City of Oakville failed to establish that defence on a balance of probabilities.  The sidewalk in question is a high pedestrian traffic area, a fact acknowledged by the project manager for The City of Oakville.  The intensity of the pedestrian traffic was a factor, in the Judge’s view, in assessing the adequacy of the defendant’s response in dealing with the defects and trip hazards.

        The plaintiff suffered a fracture of the tibial plateau of the left knee extending into the knee joint.  An orthopedic surgeon testified on behalf of the plaintiff and found that she had pre-existing osteoarthritis in both knees and opined that the accident probably accelerated her osteoarthritis by five to ten years.  She would likely require surgical management in the form of a knee replacement within approximately fifteen to twenty years from the date of the injury.  She would perhaps require one or two knee replacements in her lifetime.  The plaintiff was in a full cast from groin to ankle initially and then received a removable splint afterwards.  The first six weeks of her post-accident was non-weight bearing followed by six weeks of progressive weight bearing.  The Judge assessed her compensation for pain and suffering at $75,000.00.  The Judge also awarded the plaintiff $5,324.00 for past loss of income.  The Judge did not award anything for future housekeeping given that there was no functional capacities evaluation performed.  The judge set aside $30,000.00 for future loss of income, which would be approximately one year of the plaintiff’s wages.

        These were all subject to 25% discount given the contribution to her injuries.


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