Darryl Legal In the News

Assessing Damages in a Personal Injury Lawsuit More Art than Science

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When choosing a personal injury lawyer, you may be tempted to select the lawyer who promises to get you the most money in the least amount of time. Resist the temptation to make your choice in that manner, as you will surely be disappointed.

The two most common questions I am asked by potential new personal injury clients (and my answers) are:

• How much money is my case worth? (I don’t know).
• How long will it take until we settle? (I don’t know).

You may advise me that another lawyer — or worse, your friend who had his own personal injury case — told you your case was worth a particular amount, and you want to know if I will get you that or more.

I will tell you, without knowing any of the facts, that the other lawyer (or your friend) is wrong. At the initial client interview, it is impossible to know. And you should be wary of any lawyer prepared to answer those questions with any certainty.

I will only know at the beginning of your case what you tell me. I will not have heard the position of the other party you wish to sue. I will not have reviewed your medical history. I will not have had the benefit of reviewing your income tax returns or other supporting basis. What you tell me is less important than what the actual documents prove.

There are many factors that go into determining the value of a personal injury case. Assessing damages in a personal injury case is more art than science and oftentimes it appears to be abstract art at that.

Here are just some of the factors at play in determining the value of your lawsuit:

1. The nature and extent of your injuries — Under the Insurance Act in Ontario, not all injuries are compensable. The law expects that some injuries, or some level of pain, is something you will simply have to live with and for which nobody has to compensate you. Recent case law from the Superior Court of Justice indicates the level to which your injuries must rise to in order for you to be compensated is on an upward trend. This is good news for insurers, but bad news for you when you show up at my office and think your sore neck and back pain is worth six figures when your income has not been affected.

2. What your own medical practitioners write in their notes about your injuries — For example, you may feel constant pain, but your family doctor may use words such as “minor” in her clinical notes. This will definitely hurt your case. Sadly, soft tissue injuries that cause real pain do not show up on diagnostic imaging or other objective tests.

3. How often you attend treatment — Many of my clients stop going to doctors and rehab clinics after a few months either because (i) the treatments are no longer effective; (ii) they simply do not have time; or (iii) they can no longer afford to cover the out of pocket cost of non-OHIP covered treatments, such as physiotherapy and massage therapy. Your failure to continue treatments for whatever reason may impact what an insurer has to pay at a later stage in the proceeding.

4. If you are claiming lost income, the amount of income you filed for tax purposes in previous years — This is especially important if you are in the service industry, as a large portion of your real income is derived from tips, yet your income tax returns rarely reflect this. Similarly, the true income of self-employed small business owners is significantly less than would appear from the pre-accident income tax returns.

5. The statutory deductible — The Insurance Act mandates that if your personal injury case arises from a car accident (as opposed to a slip and fall), the first $37,000 (approximate) in damages for pain and suffering is deductible. This means simply that the insurance company does not have to pay any amounts up to the deductible. Since the majority of soft tissue injury cases are worth less than $50,000 for the pain and suffering component, you can see how this deductible has a very real impact, often to the point of deserving parties obtaining nothing more than a negligible amount.

6. Your own evidence — What you tell me is less important than what you eventually state “on the record” at examination for discovery or trial or in statements given to doctors or insurers.

For all those reasons, you can understand why it is almost impossible to give you an accurate picture of how your case will shake out when we first meet

As such, resist the urge to hire the lawyer who promises the largest payout. Instead, make sure your lawyer seems like he or she will empathize with your situation while also having the experience to give you the right advice at the right time.

Read the Full Article on Advocate Daily

Accident Victims Left in Lurch by Changes to Ontario's Auto Insurance

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People who insurers deem not seriously injured in motor vehicle accidents are finding it increasingly difficult to find lawyers to take on their cases, says Toronto personal injury lawyer Darryl Singer.

Singer knows because he’s one of those lawyers, he says.

“I used to take almost every file that came through my office, but now I probably take one out of every five,” says Singer, principal of Singer Barristers Professional Corporation.

“Five years ago, if someone had a real injury I could put money in the client’s pocket and it would be worth my time and out-of-pocket disbursements. But now, even genuine injuries that are at the lower end of the spectrum are not only not profitable but will costs me money to run. As such I can’t take their file.”

The selective nature of choosing files by most Ontario personal injury lawyers is a result of sweeping changes to Ontario’s no-fault accident benefits system as of April 1, 2016, with all accident benefit disputes now being heard by the Licence Appeal Tribunal (LAT) rather than the Financial Services Commission of Ontario.

The previous system was “loser-pay,” meaning if the injured party was successful at arbitration, the insurance company covered their lawyer’s legal fees. Now, the client must cover all legal fees — leaving little incentive for the lawyer to take on such cases, and leaving clients to either back down or represent themselves against an insurance company’s experienced lawyer.

Additionally, the reduction in benefits means that even if the client wins the case, there simply isn’t enough of an upside to justify the time and cost of disputing the matter through the LAT.

Singer says he is worried about the impact these changes will have on accident victims. He frequently sees people who need legal help but he knows they will have trouble finding it.

“It’s now been several months since these changes came into effect, but the issues aren’t going away, and they will only get worse with every passing day and every accident on the road,” Singer tells AdvocateDaily.com.

The difficulty finding legal representation combined with clawed-back benefits under the Statutory Accident Benefits Schedule (SABS) as of June 1, 2016, have a double-whammy effect for clients he says.

“Now, because of the maximum cap on treatments, many clinics where people would seek treatment with the understanding they would be paid by insurance companies either aren’t in business anymore, or are requiring the client to pay as they go. Even where the insurer is paying for the rehab treatments, the maximums under the SABS simply aren’t sufficient ” he says.

“Insurance companies understood full well that by driving down the benefits, it would correspondingly drive down incentive for paralegals and lawyers to pick up files and make it more difficult for people to get represented and get treatment.”

Read the Full Article on Advocate Daily

Salmon Tartare Allergy Incident Best Handled by the Civil Courts

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Criminal charges are unlikely in the case of a Quebec waiter who was arrested after serving salmon tartare to a man with severe allergies, says Toronto personal injury lawyer Darryl Singer.

“I can’t see charges being laid — there’s no possible way a criminal charge would survive,” Singer, principal of Singer Barristers Professional Corporation, tells AdvocateDaily.com.

The man, who ordered beef tartare, was served the fish even after the waiter was allegedly told several times about the customer’s severe seafood allergy, the Canadian Press reports. The man was sent to hospital and fell into a coma for two days.

Singer says there are two parts to any criminal charge: actus reus, meaning “guilty act,” and mens rea, which means “guilty mind.”

“We can assume that giving the poisonous thing is the alleged assault, but there has to be a mental intent to have done so,” he says.

“In this case, if it was clearly an accident, then there is no criminal charge.

“He could pursue a civil case in negligence, but I can’t possibly see how a criminal charge could be sustained.”

In civil law, however, negligence means there was a mistake, but you are still at fault and must pay damages, Singer says.

According to the news story, police said the 22-year-old waiter allegedly didn’t write down the man’s order even though he was apparently warned repeatedly about the allergy to ensure there wasn’t any cross-contamination in the kitchen.

The waiter was arrested and later released on a promise to appear in court at a later date.

The Toronto Star reports that the diner says he “has sent letters to the restaurant warning the owners that he intends to sue for damages.”

In Singer’s opinion, civil court is the right place for this kind of dispute.

“If it was a purely accidental situation, then it can’t possibly survive a criminal charge,” he says.

Read the Full Article on Advocate Daily

Toronto Street Hockey Ban 'Nothing Short of Stupid'

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Toronto personal injury lawyer Darryl Singer is echoing calls for dropping Toronto’s ban on street hockey, urging politicians to “let kids be kids.” Ontario Trial Lawyers Association Blog

“The prohibition is nothing short of stupid,” says Singer, principal of Singer Barristers Professional Corporation. “Street hockey gets kids outside and promotes a sense of community and fitness.”

Society spends too much time worrying about legal issues such as liability, he tells AdvocateDaily.com.

“We are over-lawyered and over-legislated at the municipal level. This is an issue where we should leave the legalities out and just let kids be kids.”

Ontario’s Minister of Children and Youth Services, Michael Coteau, recently took the unusual step of intervening in municipal politics to take a stand on the issue, the Toronto Star reports.

Coteau is urging city politicians to amend the Municipal Codes to remove the prohibition of portable basketball and hockey nets on the public right of way, the newspaper says.

In a letter to Toronto City Council, Coteau pointed to the many benefits of outdoor play that go well beyond the physical and health gains: “Things such as communication and social skills, an understanding of social rules, relationship building, learning how to compromise with others, patience and perseverance, teamwork and a sense of belonging.”

Singer, a father of three, says he doesn’t see how the city could be held liable if children are accidentally hurt while playing street hockey.

“It would be a stretch to tie it in with the city,” he says.

“If the prohibition stands, why not ban any sort of physical activity in the city? I am not usually one for the slippery slope argument, but this a good place to say ‘let’s not open the floodgates.”

Read the Article on Advocate Daily

Understanding Liability in Personal Injury Cases

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If you are hurt in a slip and fall in a bank or from spilled hot coffee from a restaurant, that doesn’t necessarily mean you have a viable lawsuit, says Toronto personal injury lawyer Darryl Singer.

“Just because you’re hurt doesn’t mean you can sue the place where it happened,” says Singer, principal of Singer Barristers Professional Corporation. “Somebody other than you has to be at fault for the accident. There has to be an element of liability.”

It may seem like a simple concept, but Singer regularly receives inquiries from people who are eager to sue — even if they were injured as a result of their own clumsiness.

For example, Singer recently tried to help a man who slipped at a bank, resulting in very serious injuries. The man told Singer he fell because he thought there was spilled liquid on the floor.
Singer issued a notice of lawsuit to the bank, and an insurance adjuster contacted him a short time later, saying they had security camera footage showing the man’s fall.

After viewing the footage, Singer could see there was no spill or other reason for the fall. The man simply tripped over himself when he turned around.

“I explained to him that the bank was not at fault, notwithstanding the fact you had an unfortunate accident that caused you to have an injury,” Singer tells AdvocateDaily.com. “But there’s no possible way it’s the bank’s fault. You can’t sue the bank.”

It was difficult for the man to accept, he says. He believed the bank should pay for his medical rehabilitation, since that’s where the injury occurred.

“This is constant,” Singer says of the misconception around liability and slip and falls.

In another example, a woman tried to get his help after falling outside of a private building. But when his associate viewed the area, she couldn’t find any physical issues with the site. There was no construction at the time of the fall, the weather was fine and the sidewalk in good repair.

Singer believes the confusion around liability is exacerbated by stories coming from the U.S., such as the woman who sued McDonald’s and won a $2.86 million jury award (later reduced to $500,000) after suffering from third-degree burns in her pelvic area from a coffee spill.

In fact, Singer also has a client who was also burned by McDonald’s coffee. He says while she has a good case, she could never dream of winning millions in damages.

“Since the scale of damage awards in Canada is not the same as in the U.S., the case is not worth $2.86 million or even $500,000. It is worth significantly less.”

Singer says people need to realize there is a big difference between hurting yourself because of an accident and as a result of someone’s negligence.

“If you come to my house and fall down my stairs because you’re clumsy, you can’t sue me,” Singer says. “If you’re leaving, it’s winter and you slip because I didn’t salt the stairs, yes, you have a case.

“It’s all about liability.”

Read the Article on Advocate Daily

Appeal Court Ruling Ensures Client Receives Assessment

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The Ontario Court of Appeal’s decision to have an injured appellant’s fee agreements with two law firms reassessed shows that the court felt a need to step in and ensure the client was not deprived of his right to an assessment, even though he urgently needed the money, Toronto personal injury lawyer Darryl Singer tells Legal Feeds.

Clatney v. Quinn Thiele Mineault Grodzki LLP centred around the 2013 settlement of a man’s personal injury claim for $800,000, after he had been seriously injured in a 2008 crash, Legal Feeds reports.

The appellant originally pursued the claim with Bertschi Orth Solicitors and Barristers, but later switched to Quinn Thiele Moneault Grodzki LLP.

The first firm billed the man more than $117,000 for its work on the file, and the second firm initially told him it was owed more than $305,000, the article notes.

According to the ruling, the appellant ran into problems after asking for a release of $50,000 from his settlement, and ended up paying Quinn Thiele $210,000 and Bertschi Orth $100,000.

In the ruling, Justice Gloria Epstein said the appellant was “vulnerable” when he entered into the fee agreements with the firms, and “was permanently impaired by the brain injury he suffered in the car accident. He was under intense financial pressure. The appellant did not have independent legal advice when such was clearly called for. He expressed his dissatisfaction with the legal services rendered by both firms,” said the ruling.

The court ruled that all costs, fees, charges, and disbursements relating to the case be assessed and ordered $10,000 be paid to the appellant for costs of the initial application and $15,000 for the appeal, the article notes.

Singer, principal of Singer Barristers Professional Corporation, who was not involved in the case, tells Legal Feeds that;

“It appears that the Thiel firm used the client’s financial desperation to extract a settlement for itself, and the appeal court appears to have felt that it needed to step in and ensure that the client was not deprived of his right to an assessment just because he was in dire need of the money.”

Read the Article on Advocate Daily

Criminal Conviction Can Help Plaintiff Prove Civil Liability

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While a finding of guilt in a criminal proceeding doesn’t guarantee a win for the plaintiff’s counsel in a civil case, it does make things easier as the burden of proof has already been met, Toronto personal injury lawyer Darryl Singer tells Recovery magazine.

“If you’re already convicted it’s unlikely that you’d be able to successfully argue that you weren’t liable and your lawyer’s strategy at that point in the civil case would be to shift to limiting the amount by saying, ‘Yes, he committed an assault and we admit the liability but we don’t think the damages are as high as the plaintiff says,’” explains Singer, principal of Singer Barristers Professional Corporation.

Singer, who typically acts for plaintiffs who are bringing a suit against a convicted drunk driver or for a person who has been assaulted and the perpetrator has been convicted, explains that a conviction under the Criminal Code doesn’t automatically mean that he will win civilly.

He adds, however, that, “it certainly helps me get over the liability hurdle.

“The key is because the test to convict in criminal court is higher than the test to prove liability in the civil court.”

In a criminal matter, he says, the court has to be satisfied beyond a reasonable doubt that the person has committed an offence. In civil court, it only has to be satisfied that on the balance of probabilities the defendant is responsible.

Singer says in the article that it doesn’t bother him if someone he’s suing in civil court is found not guilty at a criminal trial — the mere fact there is a charge is helpful.

“Obviously if there’s a conviction then proving liability is much easier in a civil case because I’ve already got a precedent.”

There are a number of reasons why a person may escape conviction on a criminal charge, he explains, including the Crown deciding to drop the charge if they feel the case is not worth pursuing, or allowing an accused who is a first-time offender to enter into a peace bond.

If a defendant is found not guilty in criminal court, this means the defendant’s lawyer can argue in civil court that the person is not responsible for an act, says Singer, “however it doesn’t mean that we’re down and out on the liability.”

Read this Article on Advocate Daily

No Interest on Litigation Loan for Injured Woman

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A woman who suffered a brain injury in a car crash will not have to pay the interest on a litigation loan made by the wife of her former personal injury lawyer after the Divisional Court declared the agreement “unconscionable.”

Marta Narbutt was 17 when she hired Niagara Falls, Ont. lawyer Ashley Gnyś’ firm Sharpe Beresh Gnyś on a contingency fee agreement shortly after the 2004 accident that killed her boyfriend when their car was struck by another vehicle. According to the Divisional Court, between 2008 and 2009, Gnyś arranged three loans for his client totalling $13,500 with a company called Health Services Recovery Network.

However, Gnyś did not tell Narbutt that HSRN was owned and operated by his wife Valerie Gnyś, who, according to the firm’s web site, has worked as a paralegal there since 1986, and had done work on Narbutt’s file. Nor did he explain that Timothy Beresh, the man who talked Narbutt through the loan documentation, was actually working for both the law firm and the litigation loan company and not for her.

Narbutt switched lawyers in 2009, and settled for $306,000, but she didn’t repay the loans, so HSRN launched a court action in 2012 to get her to pay up. By June 2015, when a superior court judge granted HSRN’s motion for summary judgment, Narbutt’s bill had ballooned to $41,649, including about $28,000 in interest alone on the loans, which had an effective annual interest rate of 19.5 per cent. After losing the motion, she paid back the entire $13,500 she had originally borrowed, but continued her fight over the interest owed.

On April 29, a 2-1 majority of the Divisional Court granted Narbutt’s appeal, rescinded the loan agreement, and dismissed HSRN’s claim, expressing concern about the way the identity of the lender was concealed from Narbutt, and the lack of independent legal advice offered to her.

“I find that these agreements are unconscionable because there was an imbalance of power, the Respondent took unfair advantage of the imbalance of power and the bargain was improvident.

“Furthermore, the Appellant had every reason to believe that everyone who spoke with her about the loans was representing her interests,” wrote Ontario Superior Court Justice Julie Thorburn in the Divisional Court decision, with Justice Graeme Mew concurring.

“The Appellant dealt with the lender in the belief that the lender was independent of her lawyer, who had been instrumental in the arrangement of the loan and choice of lender. She reasonably understood her law firm as assisting her in borrowing what was for her a substantial sum of money when in fact the Respondent, Valerie Gnyś, was the lender, her lawyer was the lender’s husband and employer and Mr. Beresh, who did accident benefits work for her lawyers, was in fact acting for the lender,” they added.

In a dissent, Justice James Kent, the third member of the panel, saw no reason to interfere with the decision of the motion judge, who found the lack of disclosure around the loan agreement was “irrelevant” because Narbutt could not have got a better deal elsewhere than HSRN gave her, and had, therefore, suffered no loss.

“My client is delighted,” says Margaret Hoy, another Niagara Falls, Ont. lawyer who took over Narbutt’s personal injury case and also acted for her in the loan dispute. “She was always prepared to pay back the principal. The problem was the interest they were charging her. When you have a young vulnerable person, it’s important to get them to realize how much this kind of borrowing will actually cost them.”

In an interview, Ashley Gnyś, who represented his wife at the Divisional Court, tells Law Times they will not appeal the majority verdict. Even in the event of a victory at the Court of Appeal, he says the most likely outcome would be an order for a full trial of the matter.

“A full trial is what we were trying to avoid in the first place with the summary judgment motion. It would be a little bit like winning the battle and losing the war,” he says. “The amount of money at stake in the grand scheme of things is not such a huge amount that you would want to devote those kinds of resources to it.”

Gnyś says his wife continues to offer litigation loans, but they have adjusted their practice to respond to the concerns raised in the judgment.

“We have learned from this case and made changes,” he says. “All we can hope is to make new mistakes, and not repeat old ones.”

Darryl Singer, a Markham, Ont. personal injury lawyer, says the decision highlights the importance of disclosure by lawyers in cases where they have an interest in a litigation lender.

“I’m not aware of any lawyers who are involved to that extent in loans, but if they are, the lesson is that they need to disclose their connection to the lender, and then send the client down the street to another lawyer for independent legal advice. It’s hard at that point for them to come back later and say they didn’t understand the agreement,” Singer says.

Alison Burrison, a partner at personal injury firm McLeish Orlando LLP, says her firm views litigation loans as a last resort. She says Narbutt got a competitive interest rate, since typical annual rates are currently around 24 per cent. However, she adds that Gnyś may have got more sympathy from the judges if the law firm had explored other options apart from a litigation loan, such as an advance from the tort insurer or a personal line of credit.

“The average case takes at least three to four years, so a loan at 24 per cent compounding monthly is going to add up pretty quickly. You don’t want clients incurring that kind of rate if you can avoid it,” Burrison says. “At the same time, a litigation loan can be important for access to justice. If one side is forced into settling prematurely because they are running out of funds, that puts them in an unfair position.”

Hoy says she was stunned to find out the hidden identity behind HSRN in 2012, soon after negotiating Narbutt’s final settlement.

The revelation prompted her to file a complaint with the Law Society of Upper Canada about Ashley Gnyś’ conduct, which in turn prompted HSRN to seek costs against Hoy personally after its original success at the summary judgment motion.

However, Ontario Superior Court Justice Robert Nightingale wrote in his Sept, 30, 2015 judgment on costs that the claim was undermined by the fact that the LSUC investigation concluded that the law firm was in an actual or potential conflict of interest regarding the loan situation.

According to the Divisional Court, the law society concluded no disciplinary action was required, deeming the failures matters of “best practice.”

Read this Article on Law Times

Adverse Cost Protection Helps Plaintiffs Move Case Forward

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Given that an adverse cost award for a two-week long personal injury trial could be as high as $100,000, it is hard to argue against purchasing a cost protection product for clients, Toronto personal injury lawyer Darryl Singer tells Recovery magazine.

Adverse cost protection products — which cover the risk that a trial might result in an adverse cost award — is a concept imported from Britain, which is now being marketed to personal injury plaintiffs and lawyers in Canada, the article explains.

Recovery notes that personal injury lawyers who have incorporated these products into their practices say mitigating the risk of an adverse cost order helps clients feel comfortable rejecting an unsatisfactory settlement offer.

“We have insurance for everything else,” Singer, principal of Singer Barristers Professional Corporation, explains. “This is just a form of insurance, and it’s relatively inexpensive if you buy it early enough in the process.”

“It allows people to say, ‘I think I have a meritorious case; my lawyer thinks I have a meritorious case. Let’s go to trial,’” he adds.

Singer has purchased BridgePoint protection to cover all his files and eliminate the risk of having clients frightened into settling suits or walking away from their cases, he says in the article. He bills clients for the premium as part of his disbursements.

Read This Article on Advocate Daily