C111 Ch 2

• 1) explaining the process
• 2) forseeing a reasonable outcome
• 3) timing; delivery of benefits to a claimant and explanation as to why benefits don't apply

• Review the following doc's:
• declaration - who is named as insured, policy period, limits of insurance
• definition of who qualifies as an insured
• insuring agreement - does the incident qualify as an occurrence
• exclusions - do any apply
• Limits of insurance 
• Endorsements
• Deductibles
• Policy condition breaches

• Notice - how was insd put on notice?
• Accident - details
• Actions - what were the actions of insd at scene
• Investigation - did insd investigate scene of accident
• Environment - weather conditions, events at the site
• Claimant - what was the claimant doing
• Witnesses
• Police - report filed?
• First responders - called/attended?

• insd's responsibility to others in a given situation
• did the insd act in a way a reasonable prudent person would or wouldn't act
• even though a reasonable/prudent would have taken action
• this will determine if the insd had a duty of care towards the claimant

• statutes may define what is the standard of care that an insd has to others
• ie. the occupier of the premises has a duty to keep those who come onto his premises free from harm
• the level of care changes with the reason the claimant comes onto the premises
• difference in standard of care for a trespasser versus an invitee (ie customer)
• in the absence of statute law, common law will provide guidance for what is the standard of care

• provide a safe workplace and proper tools to do work
• instruction to employee how to perform work safely
• warning of any inherent dangers to the work
• duty of care has broadened to include protecting employees when alcohol is served/consumed on work premises
• extends to a TP who is harmed by the employee, if such negligence was foreseeable by the employer
• worker's comp legislation indemnifies workers for the cost of injuries arising out of accidents due to their employment whether negligent or not
• most provinces provide workers comp in return the injured employee does not sue their employer under the tort law for negligence

strict liability imposed on a party who was not actually involved in the occurrence but has a special relationship with the negligent party

• originated between employer and employee's relationship where the employer could be held liable for the negligence of their employees
• the tortfeasor (employee) is not excused for their actions and the employer can bring legal action against the employee for any damages paid by the employer
• VL does not apply if an independent contractor is hired to work
• VL does apply if indep contractor was hired to do something unlawful
• VL can extend to social host who have a duty of care to their guests

• Elements of an actionable tort were not met
• Damages were remote from the breach of action
• Denial of damages or wrongful act
• An emergency action due to the situation could excuse a wrongful act
• ie. the insd had a heart attack while driving and drove into a home causing PD
• Act of God caused the damages
• ie. water tower from a business fell onto neighbor's house but was due to a tornado
• statutory defence
• contributory negligence
• volenti non-fit injuria - voluntary assumption of risk
• ie. voluntarily assuming risk of being a hockey goalie

• the most truthful story is told right after the event
• evidence and witness statements must stand up to challenges
• any scientific, technical or specialized knowledge should be delivered by an expert having credentials that will stand up to scrutiny
• experts should explain the evidence in a way that is easily understood by a lay-person

• one injury
• clmt would be able to recover for all injuries, prior, aggravated, and new

• to establish negligence on the part of the tortfeasor when there are multiple causes for an injury
• the insd could be held liable even if his act alone was not enough to cause injury but it materially contributed in the cause of the injury

• claimant is accepted as is
• the courts will not excuse the injury of the claimant bc s/he was more vulnerable to injury

• to satisfy a balance of probabilities to prove a fact
• means that a 51% chance will tip the scales of balance and the event is more likely, than not, to have occurred
• ie. a person w a pre-existing condition may have been able to function reasonable well before the accident. The injury now results in complete disability. The law allows for the clmt to recover for the disability created by the combination of pre-existing and new injury from accident

• in Canada, children under 5yo (tender age) have not been held liable for contributory negligence or liability in court
• children during the middle years to adulthood have been held liable but a comparison is made to other children of the same age, intelligence and experience 
• child acting on parent's express instructions
• child employed by parent and acting w/in scope of their employment
• allowing the child (w parental consent) to control a dangerous thing that causes BI or PD to an innocent TP

• lawyer can restrict the adjuster from contacting the claimant by invoking privilege
• adjuster can send copies of letters directly to claimant
• adjuster can make a motion to produce the information needed
• the longer a claim stays open, the likelier the evidence will weaken or disappear, and lawyer will be able to earn higher fees
• adjuster should keep in touch with clmt (if possible) on a regular basis

• age
• pre-accident health
• financial effect of injury
• education
• recreational activities
• ordinary effects of inflation
• actual wage loss
• potential wage loss
• number of dependents
• current and prior medical info
• current and prior employment info

• ie. 2 claimants. One is a R handed surgeon, the other a L handed accountant. Both are involved in an MVA and both lose function of their R arm. The impact of the same injury has a completely different result for each claimant. Surgeon will never recover to RTW, but accountant w some rehab can RTW
• Compensation varies according to how the injuries has affected the lifestyle of claimant
• Adjuster should understand the reasoning and logic behind each element of a settlement proposal

• activities inconsistent with type of injury claimed
• subjective complaints which are unable to be verified by objective findings by doctor
• excessive tx of chiro, physio, and massage
• an overwhelming amount of medical and treatment reports received for the clmt - possible "planned" injury

• Surveillance
• can either validate claimant's injuries and legitimize the claim
• or show inconsistencies revealing fraudulent activities
• should be used when the clmt least suspects it

how inflation affects a person's earnings

• the investment rate is often higher than inflation rate and will lead to a reduction in damage
• aka. Net Discount Factor and Capitalization Rate

• when the settlement amount is subject to tax
• done to compensate the claimant for the decreased award due to tax being applied

• aka in Quebec as Pre-Trial Pecuniary Loss
• Represents actual expenses resulting from the injury from the DOL to date of trial
• Divided into:
• 1) Loss of working capacity (incurred loss of earnings, calculated based on what they would have earned, not could have earned)
• 2) Cost of Care (out-of-pocket expenses for health-related issues; services like acupun or physio)
• 3) Damage to Property (damaged clothing, broken glasses)

• refers to less tangible losses
• losses that are anticipated to happen bc of injury
• includes loss of earnings and profits
• includes loss of homemaking capacity and loss of shared family income

• costs that have yet to materialize for medical expenses
• includes cost for post-accident living environment
• Divided into:
• 1) Capital expenses (one-time expense like wheelchair)
• 2) Ongoing expenses (regular services like ATC)

• damages that cannot be calculated with any mathematical precision
• includes:
• a) pain and suffering (distress caused by physical injuries, nervous shock)
• b) loss of amenities (physical or emotional injuries - inability to participate in sports, hobbies)
• c) loss of expectation of life (compensates for shortened life span)
• d) aggravated damages (award when tortfeasor intentionally caused suffering from misbehavior; ie humiliation, indignity)
• e) Care, Guidance and Compassion (loss of companionship, applies more to fatalities or permanent serious injuries; spouse, children, grandchildren, parents, siblings)

Common-law: surviving members (spouse, children, grandchildren) to recover from tortfeasor; action dies when victim dies except for funeral, travel, loss of income from surviving family

Quebec: no restriction as to who can sue for injuries caused by a wrongful act

the person needs only to prove that a "recognizable" injury and the causal link between the injury and the fault exist

• financial package designed to meet specific future payment requirements
• includes periodic payments either for a fixed period or for the life of the injured person
• Benefits:
• funded by a trust or annuities
• provides a series of payments made over time
• provides long-term medical care payments
• guarantee a continuous income for a long time
• removes stress for clmt of investing and controlling lump sum payments themselves
• periodic payments provide a secure regular income

allows the insurer to have more flexibility at a later date to argue that the claim was not the result of the insured's negligence should negotiations break down and the claim goes to court

• settlement was grossly unrealistic
• injured party needed legal advice but did not obtain it
• adjuster must not take advantage of the clmt's susceptible position and must provide full and proper explanation of the significance of the release

• minor (under 21) signing a release is non-binding
• are protected by contract law due to their vulnerability
• negotiations are taken with minor's parents/guardians and not with minor themselves
• parents/guardians need to sign an indemnifying agreement which promises to use the funds for the benefit of the minor
• In Ontario, judicial approval is required for settlements in all cases involving minors
• settlement must be approved by a judge in order for it to be binding
• In Quebec, settlements are resolved using the family council made up of parents and grandparents; settlement funds paid to members of the family council

• All of the above:
• a) There is a general duty of care owed to provide a safe workplace and the proper tools for employees;
• b) The employer must instruct the employee on how to safely perform work and must warn employees of any dangers inherent to the work;
• c) Under the common law, if the employer is negligent and breaches a duty of care to the employee resulting in injury, the employee has recourse against the employer but negligence must be proven

...a form of strict liability imposed on a party who was not actually involved in the occurrence but has a special relationship with the negligent party

...there are other parties who could be held responsible

...Pecuniary and Non-Pecuniary

• All of the above:
• a) is the final document in the life of a claim;
• b) signals closure for the claimant;
• c) must be signed by the claimant and witnessed preferably by someone independent of the claim

...that the defendant must take the victim as s/he is

...the claimant

...test the credibility of a claimant

...individuals may be responsible for the consequences of events that occur in their homes

Volenti non fit injuria - voluntary assumption of risk

...incurred loss of earnings

...damages that cannot be calculated with any precision mathematically

15 marks - 15 points required

5 marks - 5 points required

20 marks - 20 points required