A Falling Mirror at a Thrift Store Changed Our Clients Life
Our client was at a thrift shop in Brockville as a customer. All of the sudden, a large mirror unexpectedly fell from where it had been placed and struck her on the head. Our client was left with a concussion. She also has had significant ongoing symptoms as a result that affects her daily life.
Before the incident, she was working, living independently and participating in activities.
After the mirror fell on her, she was no longer able to work or enjoy many of the activities that had been a part of her life prior to.
Liability Was Not the Main Issue
Unlike many premises liability claims, the central issue was not whether the store was responsible for the incident or not. At the thrift store, the store manager admitted that the mirror “wasn’t supposed to be there”
Therefore, the litigation focused less so on liability. It was more focused on causation and damages. Some of the focuses included:
- Determining whether the falling mirror caused our client’s ongoing injuries, or something else
- How severe our clients concussion and related symptoms are
- A deep delve in the treatment she required
- Discussions regarding how the concussion and related symptoms affected her ability to work, manage her daily life and maintain her independence
The Main Dispute: Did the Mirror Cause the Ongoing Symptoms?
The defendant argued that our client’s ongoing difficulties were not caused by the mirror strike. They pointed to her pre-existing psychological history and suggested that those issues explained her ongoing symptoms and inability to work.
Although our client did have some pre-existing psychological issues, they had not prevented her from:
- working
- maintaining her independence
- participating in recreational activities before the incident.
Expert Evidence Was Critical
To address this issue, we obtained expert reports to assess:
- the nature and extent of her injuries;
- the impact of the concussion and related symptoms;
- her future treatment needs;
- her housekeeping and home maintenance limitations; and
- the connection between the incident and her inability to return to work.
These reports were important in responding to the defence argument that her losses were unrelated to the incident.
Understanding the Long-Term Disability Insurer’s Subrogated Claim
A complicating issue was the involvement of the long-term disability (LTD) insurer. Because our client had received LTD benefits, the insurer had a subrogated claim.
A subrogated claim means that when an insurer pays benefits to an injured person, the insurer may have the right to recover some or all of those payments from the party legally responsible for the injury.
In practical terms, this meant that any settlement had to account not only for our client’s damages, but also for the LTD insurer’s repayment claim.
Managing that issue required careful coordination so that the claim could be resolved in a way that addressed the insurer’s legal interest while still protecting our client’s recovery.
How This Case Was Solved
The parties attempted to resolve the case at mediation and again at pre-trial. However, the defendant did not come to those steps with enough money to fairly resolve the claim. Rather than accept an inadequate offer, we continued preparing the case for trial.
As trial approached, the pressure on the defence increased. With liability effectively admitted, expert evidence supporting the injury claim, and the causation issues properly developed, we were able to resolve the case before trial.
The settlement brought the litigation to an end without requiring our client to go through the stress and uncertainty of a trial, while addressing the injury claim and the LTD insurer’s subrogated interest.
In Conclusion
Even when liability is clearly defined, oftentimes, personal injury cases turn to medical evidence, causation and the extent of a person’s losses to best reach a good settlement. Carefully preparation is essential for demonstrating how an incident has affected a person’s life.
If you or a loved one has been injured in a store, shopping centre or elsewhere in Eastern Ontario we here at Bergeron Clifford are here to help. Contact us for a free consultation today.
