Study finds; as zip line popularity soars, so do injuries

By Lindsey Tanner

THE ASSOCIATED PRESS

CHICAGO _ Injuries from zip line accidents have soared along with the popularity of an activity that hurtles riders through the air, sometimes at dizzying heights above ground, a study of U.S. emergency room data shows.

Over 16 years, nearly 17,000 people were treated for zip line-related injuries including broken bones, cuts and sprains; most occurred in the last four years of the 1997-2012 study. It’s the first national look at zip line injuries and highlights a need for better regulation and uniform safety standards, the researchers say.

The study was published Monday in the American Journal of Emergency Medicine. Deaths were not included _ there have been at least six nationwide this year, most from falls.

THE STUDY

The researchers analyzed a national injury database operated by the Consumer Product Safety Commission. Their study covers the early years of commercial zip lines, which now number more than 200 nationwide. There are thousands more “amateur” zip lines, located in backyards, summer camps and schools.

Most injuries occurred at commercial courses, camps and other non-residential places. About 30 per cent were from zip lines in backyards or farms. These are sometimes do-it-yourself kits bought online, may be improperly installed and should be avoided, the researchers said.

The annual injury rate for all zip lines climbed from almost 8 per 1 million U.S. residents in 2009 to nearly 12 per 1 million in 2012. Causes included falls, collisions and slamming into objects at the end of the course. Injuries were most common in children and teens.

Almost 12 per cent of injuries resulted in hospital stays, a worrisome rate much higher than more conventional sports, said co-author Tracy Mehan of the Research Institute at Nationwide Children’s Hospital in Columbus, Ohio.

STANDARDS & REGULATION

Industry groups have adopted voluntary safety standards typically involving equipment, maintenance and worker training, but they vary and are not uniformly followed. Insurance providers generally require operators to adhere to some of these standards, and several states have adopted safety regulations. But Mehan said a uniform set of safety standards and effective oversight is needed.

INDUSTRY RESPONSE

Industry representatives say the study is alarmist and that zip lines are safer than driving a car.

Mike Barker, vice-president of the Professional Ropes Course Association, said his group has strict safety standards that recommend that courses be routinely examined by independent inspectors. He said reasons for injuries and deaths include user or operator error and equipment malfunction.

James Borishade, executive director of the Association for Challenge Course Technology, said no activity is risk-free and that zip line operators “are working to minimize that risk.”

SAFETY TIPS

_Check the Better Business Bureau and online reviews to find a reputable operator

_Ask operators if they follow any industry safety standards and avoid those that don’t.

_Ask to see inspection or maintenance reports, and inquire about staff training.

_Always wear safety equipment provided including body harnesses, helmets and gloves.

_Don’t readjust harnesses after guides have secured them.

_Listen closely and follow guides’ instructions.

canada-press

 

$70,000 Non-Pecuniary Assessment For Largely Recovered but “Vulnerable” Soft Tissue Injuries

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for injuries sustained in a collision.

In today’s case (Boysen-Barstow v. ICBC) the Plaintiff was injured in a 2011 collision caused by an unidentified motorist. ICBC accepted statutory fault for the collision.  The Plaintiff sustained various soft tissue injuries which enjoyed significant recovery but remained susceptible to aggravation.  In assessing non-pecuniary damages at $70,000 Mr. Justice Williams provided the following reasons:

25]         My conclusion is that the plaintiff sustained moderate soft tissue injuries in the accident, causing her neck and back pain and headaches. The headaches resolved within a few months, and the other physical discomfort gradually resolved to the point that, by taking appropriate care, Ms. Barstow was substantially pain free by the end of 2013. I accept that she has a certain vulnerability to back discomfort with prolonged sitting and that requires some management; that is a condition which has not fully resolved, although it is certainly not characterizable as an acute disability. It is a relatively minor artefact of the accident requiring some accommodation.

[26]         It follows that I am not fully able to accept the opinion of Dr. le Nobel as an accurate view of Ms. Barstow’s condition and prognosis. With respect, it simply does not accord with the substantial body of evidence that is before me.

[27]         As for the psychological aspect of the effects of the accident, the phobia experienced while travelling in a motor vehicle, both as a passenger and a driver, I accept that was, certainly initially, a problem that caused serious difficulties for the plaintiff. It contributed to her difficulties in carrying out her duties at work when she returned and was, I am sure, a factor in her decision to end that employment. However, I am also satisfied that by the time of trial, that has substantially resolved and whatever lingering unease she may have in an automobile is of a quite minor magnitude.

[28]         I accept the evidence of the plaintiff and Mr. Barstow that the plaintiff’s disposition and temperament was adversely affected to an extent by the accident, though that has diminished over time. I also acknowledge that the plaintiff’s marriage was, during that time, made more difficult as a result.

[29]         In terms of determining the appropriate quantum of damages to compensate the plaintiff for her pain, suffering, and loss of enjoyment of life, the role of the court is to arrive at a sum which is fair to both the plaintiff and the defendant, and which provides a full and proper one-time compensation for all of the effects that have been caused by the defendants’ negligence—effects past, present, and future…

[35]         In my respectful view, when the circumstances are considered in their totality, together with the cases relied upon, the quantum of the award sought by the plaintiff is excessive. I find that an appropriate award for pain, suffering, and loss of enjoyment of life is $70,000.

A Plaintiff Not Recovering Insufficient To Allow Late Defence Medical Exam

Today’s guest post comes from B.C. injury claims lawyer Erik Magraken

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, finding that a Plaintiff’s failure to recover from injuries is not enough for a Defendant to secure a late defence medical exam.

In today’s case (Dzumhur v. Davoody) the Plaintiff was injured in a a collision and sued for damages.  In the course of the lawsuit the Plaintiff served an expert report opining that the Plaintiff ought to recovery provided the injuries are responsive to recommended treatments.  The Defendant did not obtain a defence medical report and as the deadline approached for exchange or expert evidence the Plaintiff served an updated report suggesting the Plaintiff’s prognosis was poor.  The Defendant argued they ought to be entitled to a late exam in these circumstances but the Court disagreed noting the defence should have been alive to this possibility earlier.  In dismissing the requested late exam Master Muir provided the following reasons:

[13]         Further, I am not satisfied that the defendants can properly say they shall have been truly taken by surprise by the medical condition of the plaintiff. Dr. Caillier’s initial report was in 2013. It is couched in careful terms that said in essence: provided the plaintiff responds to the treatments prescribed, he should fully recover. Well, that is the very nub of the matter: will he or will he not respond to the treatments? Did he or did he not respond to the treatments? Obviously Dr. Caillier’s second report indicates that he did not

[14]         The defendant then had an opportunity to discover the plaintiff in May of this year, two weeks before the plaintiff saw his doctor. At the discovery, I am advised it was evident that the plaintiff was still playing soccer, but counsel was not able to say whether the plaintiff claimed to be pain free.

[15]         There is no basis that I can see on the evidence for the assertion that the second report of Dr. Caillier took them or should have taken them, perhaps more to the point, completely by surprise. The possibility existed that the treatments would not be successful. The defendant must be seen to have chosen to accept that risk without obtaining an IME before the 84-day deadline.

[16]         One of the important factors in these cases, as noted in Timar at para. 21, is whether the party can claim to be truly surprised by the condition of the plaintiff. Here it is my view that that is not the case. There is nothing that satisfies me that Dr. Bishop cannot do a responsive report to the report of Dr. Caillier without a complete IME of the plaintiff. As a result, the application is dismissed.

$100,000 Non-Pecuniary Assessment For Pelvic Fractures With Lingering Pain

Today’s guest post comes from B.C. injury claims lawyer Erik Magraken

Adding to this site’s archived ICBC cases assessing damages for pelvic injuries, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry assessing damages for a pelvic fracture.

In today’s case (Ackley v. Audette) the Plaintiff pedestrian was struck by the Defendant’s vehicle after a verbal altercation.  The Plaintiff was found negligent for careless driving as was the Defendant who instigated an altercation.  The Defendant suffered pelvic fractures which posed lingering problems at the time of trial (some 5 years later).  In assessing non-pecuniary damages at $100,000 prior to the liability split Mr. Justice Skolrood provided the following reasons:

[146]     There is no question that Mr. Ackley suffered significant injuries as a result of the Incident. While the most serious of those injuries, the pelvic fractures, healed over the course of the following months, the evidence uniformly established that Mr. Ackley continues to experience pain in his hips, pelvis and low back some five years after the Incident. It is also apparent that he continues to experience some emotional and psychological difficulties. I am satisfied on the evidence that these ongoing issues were caused by the Incident.

[147]     I accept that the Incident has had a significant impact on Mr. Ackley’s enjoyment of life as well as on his future employment opportunities. However, I do not find that the impacts are as extensive as he claims. For example, it is clear that he returned to playing hockey relatively soon after the Incident and his attempt to explain away the apparent number of games played was unconvincing. Similarly, his evidence about his work history after the accident was vague and he has offered no explanation as to why he has not sought alternate employment since leaving DNA in May of 2014…

[150]     I do not propose to review the facts of the cases relied on by the parties but I have read and considered them, along with the general principles governing awards of non-pecuniary damages established by the authorities: see Stapley v. Hejslet, 2006 BCCA 34 at paras. 45-46.

[151]     Applying those principles to my findings as set out in paras. 146 and 147, I conclude that an appropriate award on non-pecuniary damages is $100,000.

Saskatchewan Court of Appeal Dramatically Reduces Punitive Damages Award Against Insurers

The Saskatchewan Court of Appeal recently allowed appeals by both Zurich and AIG in a claim advanced by an injured worker, reducing the punitive damages awards made against the insurers from $4.5 million to $675,000.

The plaintiff was a Canadian citizen living in Portugal. He was injured while working for Kumtor, a Saskatchewan mining company, in Kyrgyzstan in 2000. He was insured through two group insurance policies issued to Kumtor. The AIG policy provided workers’ compensation-type benefits and the  Zurich policy provided long-term disability  coverage. The plaintiff applied for benefits and eventually commenced a claim for damages against both insurers.

AIG made intermittent disability payments to the plaintiff for four years, denying or suspending them several times and ultimately terminating benefits in 2004. Under Zurich’s policy, the plaintiff would be entitled to benefits for the first 24 months following his injury if he was incapable of performing his “own occupation” and beyond 24 months if he was incapable of performing “any occupation”. Zurich approved the plaintiff’s claim in 2002, but did not pay the plaintiff any benefits until 2009. Both insurers offered to settle the plaintiff’s claims for benefits for amounts that the trial judge referred to as “ridiculously low.” The plaintiff went without income for several years, had to move back in with his mother, was forced to rely on the financial support of his family, separated from his wife and developed mental health issues.

Trial Decision

At trial, the Court held that both AIG and Zurich breached their obligations to the plaintiff and had acted in bad faith. The trial judge awarded mental distress and aggravated damages for breaching the insurance contracts, and then made the largest punitive damages award in Canadian history, $3 million against Zurich and $1.5 million against AIG. According to the trial judge, the $1 million punitive damages award in Whiten v. PilotInsurance, 2002 SCC 18, previously the highest punitive damages award made against an insurer for a claim of bad faith, was insufficient to “catch the attention of the insurance industry.” Both insurers appealed.

Court of Appeal Decision

The Court of Appeal found that AIG acted improperly in suspending the plaintiff’s benefits knowing that he was incapable of working at his original job, and as a result the plaintiff went approximately 24 months in total without the support that the AIG policy was designed to provide. The Court of Appeal also found that AIG’s offer to settle of $25,000 was an attempt to force the plaintiff to accept an unfairly low settlement of his global claim. This was a serious violation of an insurer’s “most basic obligations.” Despite the fact that significant punitive damages were appropriate, the Court of Appeal reduced the punitive damages award against AIG from $1.5 million to $175,000. This amount was proportionate to the blameworthiness of the defendant, the vulnerability of the plaintiff, the specific harm caused to the plaintiff and the need for deterrence, all factors to be considered in the assessment of punitive damages as set out by the Supreme Court in Whiten.

With respect to Zurich, the Court of Appeal found that Zurich’s administration of the “own occupation” benefits was a “dramatic transgression of the bounds of good faith” warranting an award of punitive damages. Among other things, although Zurich determined that the plaintiff was entitled to 24 months of “own occupation” benefits in 2002, it did not pay those benefits, did not tell the plaintiff his claim had been approved, made an “unconscionable effort” to settle all claims under any kind of policy for about $60,000, and did not actually pay the “own occupation” benefits until 2009, 7 years after approving them.

Despite Zurich’s wrongdoing, the Court of Appeal found that the punitive damages award was so dramatically high that it was “irrational”, was out of line with precedent and should be set aside. The Court of Appeal ultimately reduced the punitive damages award against Zurich from $3 million to $500,000, again taking into account the factors set out in Whiten.

The Court of Appeal also reduced the trial judge’s award of damages for mental distress from $150,000 to $15,000 as against AIG and from $300,000 to $30,000 as against Zurich. Although the plaintiff was entitled to mental distress damages for the manner in which his claims were handled, the award made by the trial judge was “simply too extravagant to be sustained.”

This decision brings awards for punitive damages against insurers in line with the existing case law while recognizing that bad faith on the part of insurers may well result in significant punitive damages awards. The Court of Appeal noted, however, that insurers cannot be held to a standard of perfection, and not every improper denial or suspension of benefits will result in a finding of bad faith.

Authors

Andrew Harrison
AHarrison@blg.com
416.367.6046

Adriana De Marco
ADeMarco@blg.com
416.367.6725

In today’s case Hendry v. Ellis the Plaintiff was injured in a collision and sued for damages.

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