Beware those quick emails - you can be sued!

How many times have we all pressed the send button and then wished we hadn't!

The reasons for wishing you could grab back an email are likely to be personal. For example, you suddenly realize you might have hurt someone's feelings, or that you gave out information that might not have been yours to give out. There is another very practical reason why you should think twice before you press send - the increasing risk of being sued if your email is forwarded to a large number of people.

Two years ago, a dispute arose on Salt Spring Island. A 'bubble' was proposed to go over one or two outdoor tennis courts. A public forum was proposed. Someone strongly opposed to the public forum wrote an email to six friends. In the email, he criticized another individual who was organizing the public forum. He made a number of personal remarks about this individual - for example, he stated that the forum was being organized as a platform for the other individual to express his 'personal rantings', that the individual did not represent anyone but himself, and that he had no credibility but his own 'overactive verbiage'. The email ended with a quote from Shakespeare calling the person an idiot, full of sound and fury. One of the people who received the email forwarded it to all of the members of the Salt Spring Island Tennis Association - which at that time numbered over one hundred.

The individual referred to in the email, sued. The lawsuit was not successful - but only because the judge ruled that although the email had been rude, insulting and unfair, mere insult or abuse is not defamation. Had the judge found that the email damaged the reputation of the individual who sued, the lawsuit would have been successful - even more so, given the large number of people it had been forwarded to. Moral of the story: it's not just what you say in an email but also how many people that email gets sent to.

Motor vehicle accidents and medical examinations!

If you are involved in a motor vehicle accident lawsuit and are suing for your injuries, you may or may not be surprised to know that ICBC is entitled to request you to be examined by a medical doctor of their choice. This is to assist them in their attempt to minimize your claim for injuries.

ICBC typically selects from a small group of doctors. Every one of these doctors claims to be “independent” of ICBC and to exercise their best medical judgment. However, lawyers who act for injured parties believe that these doctors tend to be selected by ICBC because the attitudes and values which the doctors hold make it more likely that they will view your injuries to be less serious than the average doctor would.

In many cases, the doctor selected by ICBC for “independent” medical examinations derives a major portion of their income by preparing these reports. With rare exceptions, these doctors are not considered leaders in their field - though in most cases they are considered very knowledgeable. You can decide for yourself why ICBC would insist on using a small group of doctors to perform most of their “independent” medical examinations when these doctors are not considered to be the top experts in their field.

So, here are my nine top tips to prepare you for your ICBC "independent" medical examination:
1. Review your medical records. Your lawyer will have received a copy of these from your doctor.

2. Make an appointment with your own physician for a week before the independent medical examination to have your physician explain your medical condition to you as fully as possible.

3. Be prepared to give your complete medical history in a concise way. The independent medical examination doctor will likely spend the greatest amount of time in the examination taking this history and will usually only take a few moments to examine you.

4. This doctor will expect you to act like a patient. Be candid, honest, thorough and co-operative. Any hesitations on your part will probably to interpreted as a lack of honesty.

5. If the doctor asks you to do something which you feel you are not capable of doing, attempt to do it and stop only when the activity causes you discomfort or pain. Tell the doctor when it causes you this discomfort or pain. If you simply refuse to do something that the doctor asks you to do, the report will likely say that you were uncooperative and that the doctor found no “objective” indications of injury.

6. Always state during the examination that you don’t really care about the money, you would rather have your health back and get better.

7. Always ask the doctor what you can do in order to get better more completely or quickly. It is not the role of a Defence medical examiner to provide this advice to patients, but most will offer some suggestions. Most will form a good impression of you from your request.

8. When you leave the appointment, find a restaurant or nearby location to sit down. Write out all questions and answers that you can recall from the examination. The doctor will be doing the same thing with his dictaphone at that time. It is not uncommon for the doctor’s medical report to quote the patient inaccurately. You will only be able to correct the errors if you have notes made at the time or shortly after your examination.

9. Book an appointment with your physician for a complete examination as soon after the Defence medical examination as you can. When you see your physician describe the examination conducted by the “independant” medical examiner so that your own doctor, who will likely be called as a witness on your behalf, may comment on and conduct the same examinations. This will give a very useful comparison between the reports of the “independent” medical examiner and your doctor - who can be expected to know you much better.

Next week, I'll talk about the process of Discoveries.

FACEBOOK and ICBC!

Most people would be surprised to learn that pictures posted on Facebook can be very damaging evidence in a lawsuit.

A recent client of mine, a young woman, had been involved in a very serious motor vehicle accident. ICBC had admitted liability for the accident so we didn't need to prove who was at fault. The only issue left on the table was the worth of her injuries. In addition to her physical injuries, during the months following the accident this young woman had changed from being a very outgoing, socially active person to being very socially withdrawn. She no longer gained pleasure from being with her circle of friends. Both of her parents described her as 'a changed person'. Expert reports by psychiatrists and other professionals confirmed a personality change. As is normally the case, these expert reports were based in part on self-reports and reports by others who knew my client well.

Prior to going to trial, ICBC agreed to try mediation to settle the case out of court. [BTW, mediation is being used by injured parties more and more these days to avoid the cost and risk of going to trial.] At the mediation ICBC disclosed pictures my client had posted on her Facebook site showing her at parties with friends, engaged in activities typical of individuals her age. These pictures showed her to be anything but withdrawn! The pictures told a strong and different story from the words in the written reports. They were very damaging to her case.

You might be thinking that my client could have avoided this problem by using her security settings on her Facebook site to limit access to trusted individuals. Unfortunately, ICBC has been successful lately in getting a court order requiring the injured party to give ICBC access to the injured party's entire Facebook site.

Moral of the story? If you are involved in a lawsuit because you were injured, and you are now seeking compensation for those injuries - physical or otherwise, be very careful what you post on your Facebook site. You may think you're safe by using security settings, but this is not the case.

Sound legal advice is worth it!

One of the changes I've noticed in my law practice over the years is the increase in the number of people suffering stress-related injuries from motor vehicle accidents. No longer is it a question of just the pure physical injuries such as broken bones, whiplash etc. that brings them to my office.

There was a time when the Courts were not sympathetic to these types of claims in motor vehicle accidents except in the most horrific of cases. Post Traumatic Stress Disorder [PTSD] was accepted as an outcome for soldiers returning from the battlefield but not associated with motor vehicle accidents. This is no longer the case. There is a growing recognition in the Courts that this very disabling condition can just as easily result from motor vehicle accidents. I have many recent cases where psychiatrists have been called upon to give expert evidence at trial on this very possibility.

Because it is an invisible disability, initially it may be missed by your family doctor and your lawyer. I recently had a case where the client's physical injuries were quite minor and my client was prepared to accept ICBC's offer based on these physical injuries alone. Given my sensitivity to the potential for PTSD in motor vehicle accidents, I have become alert to cues that signal the possible existance of this condition. In this case, I referred my client to a psychiatrist who diagnosed PTSD. This diagnosis opened the door to a claim for future loss of income as there are much longerterm effects of PTSD which can affect a person's ability to work.

My client's claim without the diagnosis of PTSD was worth approximately $30,000.00. With the recognition of the impacts of PTSD, his claim was worth approximately $300,000.00.

Invisibile disabilities are easily overlooked. This is just one more reason why you should never accept ICBC's offer without very careful consideration and sound legal advice.

It's risky to take a 'do-it-yourself' approach to Wills

Just this week I received a letter from a client of mine. She was heading off on vacation and wanted to make certain that the things of value and sentiment to her [her estate] would be left to the individuals to whom she wanted them to go - should she die during her vacation. Her letter was addressed "To whom it may concern", clearly stated what she wanted to have happen, and was signed by her. She may have thought her letter was a Will but it certainly wasn't. You can imagine my distress when I was couldn't reach her to let her know this. Since it wasn't a Will, her letter would have absolutely no effect: The mere giving of instructions to a lawyer will not have any effect on your estate. Even though my client signed her letter, and she clearly stated what she wanted to have happen, what is important is that her signature had not been witnessed - by not just one but two individuals.

Now, witnessing is not that straightforward either. Many years ago an elderly woman took her handwritten instructions to her bank and asked if two tellers could witness her signature. One teller witnessed her signature and then went into the back room and asked a second teller to go out front to be the second witness. The second person then signed as a witness and the elderly woman left the bank believing that she had put her affairs in order. Many years later she died and the court decided that the Will had not been adequately witnessed as both witnesses were not present at the same time - as required by law. They must be present at the same time so that they can witness each other's signature - not just that of the person making the Will.

One final example of another wrinkle: If either of your two witnesses is married to any of the beneficiaries in your Will, that beneficiary will lose his/her inheritance.

The above illustrates just a few of the pitfalls of doing your own Will.

A typical, uncomplicated Will should cost approximately $300. This is well worth the expense to ensure that your estate goes where you want it to go.

Repression in Honduras

My good friend Wilson Munoz sent me these pictures of what's been going on in Honduras. Wilson is a strong supporter of progressive causes in the Latin American community.

Slip and Falls - not quite as simple as you might think

If you should slip and fall and become injured, you might assume that so long as you could prove you did fall, and you did suffer some physical injury, you would automatically be entitled to compensation from the owner or renter of the property where you fell. In fact this is not always the case. In order to succeed in a lawsuit against the owner or renter of the property, you must show fault of some sort on their part.

Let me give an example: Every year, many people slip and fall in supermarkets, such as Safeway, IGA etc. People drop produce and other items on the floor and later someone else slips on that item or on the resulting slippery floor. In such a case, the court will hold the supermarket blameless if the store had a policy requiring sweeping of the floor frequently enough and if the store was following that policy. Typically, the store keeps a log to record all sweeps. The same would apply to any spills or water on the floor. Such logs are ample evidence in Court to prove the store was following their policy. In the absence of such a log, your lawyer may decide to hire someone, perhaps a university student, to go to the store as a 'shopper' and to watch and record the frequency of the sweeping. This evidence can be used to counter the store's statement, where they have no log of their own, that 'we meticulously follow our sweeping policy'.

My first example above described a situation in which the slip and fall was the result of something on the floor which caused you to fall. Here is a slightly different situation: the stairway. If you are using someone else's stairway and you slip and fall, once again, you must prove some fault on the part of the tenant or landlord. In this type of case, your lawyer will typically hire an engineer to inspect the stairway. The engineer will confirm whether or not the stairway was built according to code - Was the run/rise ratio according to code? Were hand rails required? Did it require lighting? etc.

Even if the owner or renter are at fault for some reason, you may not have a complete victory. The owner or renter, usually represented by a lawyer paid for by their insurance company, will attempt to shift part of the blame, or liability, onto you. What type of shoes were you wearing? Had you been drinking? Did you willingly choose to walk down the stairway knowing that it was so dark as to be unsafe?

Now that you can see that a 'simple slip and fall' is not necessarily a 'simple slip and fall', it is important that you see a lawyer before making a claim or being interviewed by the owner or renter's lawyer or insurance adjuster.