McLellan, Brennan is a leading independent Prince Edward Island Law Firm, and is one of the few firms with Trial and Appeal Court experience in personal injury cases.

Our practice includes serious personal injuries, paraplegic, quadriplegic, brain injury, and significant malpractice claims. Whether you have became a victim of malpractice, a slip and fall, a motor vehicle or motor cycle accident, or some other form of accident, the PEI lawyers at McLellan Brennan are here to help you.

With over 80 years of combined experience, the Summerside lawyers at McLellan Brennan can help you with almost any serious litigation from injuries to malpractice.

If you have been injured, call Bloyce V. McLellan, Q.C., or John A Brennan for a FREE consultation.

Our objective is to ensure you receive fair treatment and get just compensation. You do not pay fees on contingency cases until your case is resolved. In the event that your disability prevents you from visiting us, call us, we will visit you.

McLellan, Brennan has a strong reputation for helping clients receive fair treatment under the law. Most injured people are not in a position themselves to fight the "big interests", so let us, with our Court experience, level the playing field for you.

Whether you are injured by a car, truck, motorcycle, dirtbike, skidoo, tractor, snow plough, snow blower, sprayer, or other vehicle, as a pedestrian, on a bicycle, a trip or slip and fall, make an appointment for a free consultation with the PEI Trial Lawyers at McLellan, Brennan. Free consultations are also provided for medical problems that occur as a result of medical negligence committed by a medical provider such as a Doctor or Nurse or other Health Care Professional or other Professional or non-professional negligence.

McLellan, Brennan can also represent your interests well regarding various other litigation claims including homeowner, commercial, insurance, fire, environmental, securities and a wide array of litigation claims.

McLellan, Brennan's clients are likely to be more fairly treated with representation from the Summerside lawyers at McLellan, Brennan, whether through negotiation, mediation, or at trial, because McLellan, Brennan has extensive Trial and Appeal Court experience which may not be the case with all lawyers. Our firm has appeared on many mediations, and Civil and Criminal cases conducted at the Trial and Appeal levels.

Contingency fee agreements can be drawn for all appropriate cases.

Soft Tissue Injuries

You may be informed due to the Insurance Cap Legislation by an adjuster or a well intended friend or citizen that you do not have a claim for over $2,500.00 if you have soft tissue injuries. This, of course, is very misleading and is far from accurate.

While there is yet no published Prince Edward Island case regarding the Insurance Cap Legislation the following Ontario Court of Appeal decision addresses three important questions in dealing with Cap Legislation and chronic pain. These three questions would be similar under our legislation:

1. Has the injured person sustained permanent impairment of a physical, mental or psychological function?
2. If yes, is the function which is permanently impaired an important one?
3. If yes, is the impairment of the important function serious?

While the case is very worth while reading, I will quote the headnote only for your review for the sake of brevity:

Plaintiff suffered injuries in motor vehicle accident Defendant brought motion for determination that plaintiff did not meet threshold required under s. 267.5(5) of Insurance Act of suffering permanent serious impairment of important physical, mental or psychological function Trial judge granted motion Trail judge found that plaintiff suffered low back injury as result of accident, but that she did not suffer permanent impairment and that impairment was not serious Plaintiff appealed Appeal allowed Matter remitted for reconsideration by different judge Trial judge erred in standard he applied both with respect to permanency and seriousness of plaintiffs injuries There was no evidence that plaintiffs pain would clear up Only evidence was that her pain would decrease with time Neither expert offered date by which plaintiff would be pain free Trial judges focus was too narrow in determining whether plaintiffs injury was serious Requirement that impairment be serious may be satisfied even though plaintiff resumes activities of employment and responsibilities of household but continues to experience pain In such cases it must also be considered whether continuing pain seriously affects plaintiffs enjoyment of life, ability to socialize with others, have intimate relations, enjoy children, and engage in recreational pursuits Trial judge did not indicate he considered anything other than that plaintiff carried on with her full range of activities Trial judge also failed to allude to evidence of lay witnesses, which was important in assessing plaintiffs claim that continuing pain affected her overall enjoyment of life Together these omissions undermined conclusion he reached. (Underlining mine)

Relying on an adjuster or insurance company, or a well intentioned friend could lead you down the garden path. Consult the trial lawyers at McLellan, Brennan.

MITIGATION OF LOSS

By Bloyce V. McLellan, Q.C.

I am a senior personal injury counsel. It is important to note that victims of motor vehicle accidents can’t sit back, but must act reasonably in mitigating their loss, but are not held to a standard of perfection. A victim need only act reasonably and if he or she follows the advice of their family doctor, their actions can seldom be held against them.

Wilson J. In Janiak v. Ippolito [1985] 1 S.C.R. 146 at paragraph 26, quoted the conclusion of Professors Cooper-Stephenson and Saunders that "a plaintiff in Canada may not be held to an objective standard of reasonableness which is beyond his capacity to obtain".

A victim’s actions and decisions are based on his unique situation and on the advice of his family doctor and "ought not to be weighed in nice scales".

Wilson J. In Janiak quoted Lord MacMillan from the Banco de Portugal v. Waterlow and Sons, Ltd., [1932] A.C. 452 case as follows:

(The steps (the plaintiff) takes ought not to be weighed in nice scales) at the instance of the party whose breach of K has occasioned the difficulty. The law is satisfied if the party placed in a difficult situation by reason of the breach of a duty owed to him has acted reasonably in the adoption of remedial measures, and he will not be held disentitled to recover the cost of such measures merely because the party in breach can suggest that other measures less burdensome to him might have been taken.

In Forshaw v. Aluminex Extrusions Ltd. [1989] B.C.J. No. 1527, this view is reflected some 55 years later:

The duty to "act reasonably", in seeking and accepting alternate employment, cannot be a duty to take such steps as will reduce the claim against the defaulting former employer, but must be a duty to take such steps as a reasonable person in the dismissed employee’s position would take in his own interest - to maintain his income and his position in his industry, trade or profession. The question whether or not the employee has acted reasonably must be judged in relation to his own position, and not in relation to that of the employer who has wrongfully dismissed him.

A victim of a motor vehicle accident, or other accident, does not have the burden of proof that his actions constitute reasonable mitigation. Rather the burden of proof to demonstrate the contrary, lies with the Defendant. In Janiak, Wilson J. elaborates on the burdens of proof for the Plaintiff and the Defendant:

While a plaintiff has the burden of proving both the fact that he has suffered damage and the quantum of that damage, the burden of proof moves to the defendant if he alleges that the plaintiff could have and should have mitigated his loss. That this is the law in Canada has been clearly stated by this Court in Red Deer College v. Michaels, [1976] 2 S.C.R. 324, and more recently reaffirmed by Estey J. in the Asemara Oil case, supra.

For example, if a victim leaves his or her job and this is well supported by medical evidence, and given the risk posed to the victim’s health by remaining in his position, the defendant will be unable to satisfy the evidentary burden that it is reasonable for the victim to stay in his or her job. In the case of Just v. British Columbia (1991) B.C.J. No. 3328, a 50 year old plaintiff with chronic pain and permanent disability failed in an attempt to return to his 27 year employment. The following is an extract from the Judgment:

The plaintiff testified that he made an attempt to return to work, but found that he could not do the job. A representative of his former employer said that the company gave him a generous opportunity to demonstrate his ability to work in recognition of his long service but he was unable to do the work. The plaintiff said that he has not refused any offer of alternate employment and that at I.C.B.C.’s request he went to a rehabilitation and vocational consultant to explore alternatives. None were proposed to him.

I find the mitigation argument must fail. The plaintiff’s work record stands as eloquent testimony of his general motivation to work. He tried to take up his old job despite pain and physical restrictions. He is not suited by age, language skills, training, or experience to do any of the jobs suggested by the defendant’s expert. Even if he were, I cannot find that it would be unreasonable of him to decline such occupations.

As in the Just case, a victim’s work record can stand as eloquent testimony of his or her general motivation to work.

In conclusion, it is important to understand that a victim has a duty to act reasonably, but he or she is not required by law to take unreasonable steps which could reinjure the victim, or require him to work at a job for which he is unsuited by skill, training, or experience. As each case has its own circumstances and peculiar facts, a lawyer should be consulted.