"This barrier in our legal system has taken the humanity out of our interactions with one another at times when our best traits - compassion, understanding, empathy and sympathy - are most needed," said Liberal MPP David Orazietti.

If the legislation passes, Ontario will become the fourth province to enact apology legislation, joining British Columbia, Saskatchewan and Manitoba. There are 35 U.S. states that currently have some form of apology legislation in place.

You can read more on this at

http://www.http://www.attorneygeneral.jus.gov.on.ca/english/news/2008/20081007-apology-qt.asp.

After checking the damage and exchanging insurance information with the other driver, Young drove to a friend's house, where he began to feel disoriented. He was able to make his way to a walk-in clinic, where he was treated and prescribed anti-inflammatory and pain medication.

Over the next five years, he was treated for tinnitus (ringing in the ears), depression and soft-tissue pain. He was found to be suffering from a mild traumatic brain injury and severe depression, as a result of which he was no longer able to work or enjoy most of his previous activities.

The court agreed that his brain injury and ensuing symptoms were causally connected to the automobile accident and awarded $885,654 in damages. The award included $200,000 in non-pecuniary damages and $400,000 for future loss of income. Including the cost of the 30-day trial, this claim will likely cost more than $1 million. You can read this verdict at http://www.http://www.courts.gov.bc.ca/jdb-txt/sc/08/13/2008bcsc1306.htm.

After enduring several months of pain, the doctor told Frazer that a hairline fracture on the right ankle had been overlooked.

Frazer later developed a severe anxiety disorder that resulted in a legitimate disability with a poor prognosis. The possibility that he will ever return to his teaching job is remote.

After a 20-day trial, the court was persuaded that the psychiatric problems were at least somewhat related to the extreme pain caused by the missed fracture and that the psychiatric disorder arose because of the actions of the defendant doctor.

The award included $1.6 million for past and future loss of income and $150,000 in general damages. You can read this verdict at http://www.http://www.canlii.org/en/on/onsc/doc/2008/2008canlii42207/2008canlii42207.html.

By comparison, our business model has been to spread our programs among several insurers, to avoid an excessive dependence on any individual insurer. It's a bit more work, but we believe it improves the quality of the security we offer to our clients.

We believe that AIG's difficulties in particular will likely reverse the reliance on a single insurer, toward a more prudent spread of risk, especially for big towers of excess casualty and property capacity.

There is plenty of capacity available now, and layered alternatives using multiple insurers may be available for most risks, at terms similar to those expiring.

Why should this be a concern right now?

Throughout the year, financial markets have been roiled by concerns about the sub-prime scandal, bank security and the extent of a worldwide economic slowdown - what ex-Chairman of the U.S. Federal Reserve Alan Greenspan calls "the economic tsunami."

There has been a lot of bad news for P&C insurers and more is expected to follow.

After two relatively benign years, the 2008 storm season was much worse than forecast. Preliminary estimates of around US$21 billion for Hurricane Ike have shocked the industry. At this level, Ike will be the third most expensive storm ever, after Hurricanes Andrew and Katrina.

The consulting firm Towers Perrin has estimated that U.S. P&C insurers experienced a third-quarter drop in statutory surplus in the order of eight per cent, or $42 billion, as a result of the storms and the meltdown in the capital markets. Worse, if the stock market doesn't recover substantially from the October low point, the surplus decline could be in the order of $80 billion, or 15 per cent.

Some insurers have been directly impacted by the sub-prime debacle. AIG, one of the biggest financial institutions in the world, was saved only by a US$85-billion capital infusion by the Federal Reserve. Within four weeks, the $85 billion was spent and the Fed provided another $46 billion in capital. On November 10, the Fed announced that it will replace the entire previous package with a larger, longer-term $152.5-billion program.

Commercial lines pricing is at or close to rock-bottom. The U.S. industry projects a combined ratio of 116.6 per cent for the third quarter, or an underwriting loss of $18.5 billion.

A.M. Best and the other rating agencies are surely scrambling to reassess insurers' ratings, which will likely face a round of downgrades.

Many brokers worry that regulators and rating agencies, typically reactive rather than proactive, won't be able to predict the failure of a weak insurer in a timely manner. That was what happened when Reliance failed-it went from an A rating to bankruptcy in just one quarter!

So brokers can't rely solely on the rating agencies, and they don't have independent means to analyze their markets effectively.

Credit concerns are increasing by the day. Some of our clients have already been burned by asset-backed commercial paper investments, so they are justifiably wary of financial risk. Now they also have fears about their receivables and whether they will be able to renew their existing credit lines. They certainly don't want to be worried about the solvency of their insurers.

Where will the P&C industry go from here?

Overall, the P&C industry remains well capitalized. While most insurers have incurred substantial investment losses, few will find their survival at risk. On the other hand, raising new capital won't be easy for insurers, especially if stock markets continue to roil.

The AIG saga and recent investment losses will likely drive us toward a price correction for commercial lines business. We don't expect this correction to be of the magnitude we saw in 2002, but a breakout from the market cycle toward a more critical view of risk is probable.

All eyes are currently on the reinsurance market. As this newsletter is being published, insurers are negotiating with their reinsurers for 2009 terms. The cost of reinsurance is an excellent indicator for the future cost of insurance. If reinsurance capacity declines and costs rise this December, then insurance premiums are likely to increase next year.

The future for commercial lines looks less certain than just a few months ago

There is a good deal of uncertainty going forward, both within the P&C insurance market and in the economy as a whole. Our advice:

• Stay alert to changes in market conditions.
  
  
• Reduce each client's reliance on any individual insurer.
  
  
• As a precaution, ask your commercial lines marketers to dust off their hard-market strategies. Young marketers, who haven't seen a hard market before, may need additional help from old hands.
  
  
• Communicate changes in market conditions to your key clients on a regular basis.

By the time he was treated, an epidural hemorrhage had caused his brain to swell and he was bleeding from the ears. He was rushed to Sunnybrook hospital in Toronto, where he underwent emergency neurosurgery. He remained in a coma for six months and suffered severe permanent injuries. He will never walk or talk again.

"We settled for the limits of the hospital's insurance policy," said his lawyer. "It's a huge victory."

Turton's assailant, Michael Abbott, would later admit in court that it was a case of mistaken identity and that he "hit the wrong man." In 2003, he was sentenced to five years in prison but was released on early parole about two years later.

After a 23-day jury trial, which resulted in a verdict for the defendants, the action was dropped. The employer applied for costs against the plaintiff for $170,000; the police sought $199,000, which they subsequently reduced to $113,000. The court declined to award costs against an apparently impecunious plaintiff. Unusually, the defendants also applied for a separate order for costs, this time against plaintiff's counsel. The court declined to grant such an order. The case was referred to the Ontario Court of Appeal, which declined to revisit the jury's findings or the judge's rulings on costs.

You can read this verdict at http://http://www.ontariocourts.on. ca/decisions/2008/may/2008ONCA0405.htm.

The defendant employer provided the tapes to the police, and six employees, including the plaintiff, were arrested and charged. The plaintiff was dismissed from his employment, and an arbitrator subsequently upheld the dismissal.

The employer was aware that the videotape showed money being removed from the till and then being returned later the same day. Nonetheless, the inculpatory segments (indicating guilt) were shown to the police but the exculpatory segments (indicating innocence) were never disclosed. The plaintiff was convicted of one charge of theft in 1993. The exculpatory segments of the tapes were revealed at a grievance hearing in 1997, and the conviction was later overturned on appeal.

Following a 17-day jury trial in 2006, the plaintiff was awarded $2.1 million, including $500,000 in punitive damages and $225,000 in legal expenses. Both parties appealed, and the appeal court upheld the jury award, 13 years after the original offence.

You can read this verdict at http://http://www.ontariocourts.on. ca/decisions/2008/may/2008ONCA0405.htm.

• Our in-house programs are supported by first-class, licensed Canadian insurers. The programs are reliable and proven over time.
• Our staff are top-notch liability insurance professionals.
• Our first-class covers are backed up by excellent claim-handling service and litigation defence expertise.
• We have $25-million limits available in-house for most risks and access to even higher limits.
• For most risks, we can also handle the property covers.

• Blasting, demolition, tunnelling and other high-hazard construction risks
• Cosmetics, skin and hair-care products
• Day care centres
• Fireworks makers, vendors and display operators
• Machine shops
• Pesticide applicators
• Private and trade schools
• Short-line or tourist railways
• Specialty food products
• Tanning beds
• Tough product liability risks
• Vacant premises and other premises risks
• Water systems and well drillers.

• Air and water purification systems
• Automotive parts
• Building materials and products
• Chemical manufacture and distribution
• Cosmetic, skin-care and hair products
• Exercise equipment
• Farm machinery
• Industrial pumps
• Material-handling equipment
• Medical and scientific equipment, hospital and surgical supplies
• Mining supplies
• Precision machine parts and machine tooling
• Restaurant fire protection equipment
• Safety belts and harnesses for the construction industry
• Service work and training in the U.S.
• Sports equipment
• Toys and children's furniture.

• Asbestos, lead and mould removal contractors
• Disposal, recycling and transportation of wastes
• Emergency response services such as vacuum trucks
• Incineration, encapsulation and other waste disposal techniques
• Medical and other specialty wastes
• Site remediation and decontamination
• Product liability and other risks with an elevated pollution hazard.

Other recent recalls

Magnets and lead paint prompt massive toy recalls

Mattel, Inc.'s August 14, 2007 recall of more than 18 million toys worldwide was the third-and by far the largest-recall of Chinese-made toys in just over two months.

Most of the Mattel recall involved magnetic toys manufactured between January 2002 and January 2007, including dolls, figures, play sets and accessories that may release small, powerful magnets. If more than one magnet is swallowed, they can attach to each other and cause intestinal perforation, infection or blockage, which can be fatal.

A smaller recall of almost 500,000 die-cast toy cars resulted from the use of lead paint, the cause of two earlier huge recalls.

On July 31, 2007, Fisher-Price® recalled almost a million Nickelodeon and Sesame Street toys.

That scandal followed a June 13, 2007 recall of 1.5 million Thomas & Friends^TM Wooden Railway Toys sold by RC2 Corporation of Chicago.

In all three cases, Chinese subcontractors had used lead paint, contrary to the specifications of the U.S-based toy companies.

Lead paint has been all but banned in the U.S. since 1978. Children's products found to contain more than .06 per cent lead accessible to users are subject to recall. If ingested, lead can damage brain cells and the nervous system, and may cause hearing loss, stunted growth, reduced IQ and delayed development.

Light truck tire recall

In June, the U.S. National Highway Traffic Safety Administration ordered the recall of 450,000 light truck radial tires imported from a Chinese manufacturer. The tires, sold under the Westlake, Compass, Telluride and YKS brands, have been linked to two deaths in the U.S.

The tires were found to be missing a gum strip between the steel bands that prevents the treads from separating. The cost of the gum strip is approximately $1 US.

According to an article in The Globe and Mail, the same tires have not been recalled in Canada. Apparently, Canadian authorities cannot order a recall of the tires until they receive a notice of defect from the manufacturer.

Unsafe conditions reported in Chinese food industry

Right after the Menu Foods recall came shocking news reports on conditions in the food production chain in China, and we learned how reliant we have become on China for much of the daily food on our tables.

China's overall food safety record is very poor, and the FDA has warned that repeated meetings with their Chinese counterparts have failed to produce any improvement. The FDA has reported heavy use of chemical fertilizers and toxic pesticides as well as unsafe storage of fish and poultry. However, the FDA is able to inspect or intercept only one per cent of all imported grocery items and food ingredients, excluding meat and poultry products.

China's first reaction to public U.S. complaints about food safety was to shove back. In June, it impounded U.S. shipments, citing high levels of mould and bacteria. However, later that month China announced a crackdown that has yielded 23,000 violations and 180 closed factories. According to the International Herald Tribune, "Regulators said 33,000 law enforcement officials had combed the nation and turned up illegal food-making dens, counterfeit bottled water, fake soy sauce, banned food additives and illegal meat processing plants. China Daily, the country's English-language newspaper, said that industrial chemicals-including dyes, mineral oils, paraffin wax, formaldehyde and malachite green-had been found in the production of candy, pickles, biscuits, and seafood."

China has become the world's leading supplier of many food flavourings, vitamins and preservatives. It is now the predominant maker of vanilla flavouring, citric acid and varieties of vitamin B such as thiamine, riboflavin and folic acid-nutrients commonly added to processed foods typically labelled as produced in Canada or the U.S.

Many packaged foods contain dozens of items from around the world, acquired through complex networks of traders and brokers, before they get processed at manufacturing plants where companies have more direct oversight.

"Until now, companies just didn't care about commodity additives," said Laszlo Somogyi, a retired senior consultant at SRI International, a non-profit research institute in Menlo Park, California. "But that might be changing now. This was a warning," he said, referring to the pet food debacle.

Toxic pharmaceuticals

In July, China executed its former director of food and drug safety, who was convicted of approving untested medicines in return for bribes. Abroad, the quick, harsh punishment was seen as China's effort to prove that it is serious about controlling dangerous exports as well as restoring domestic confidence in its drug industry.

A little over a decade ago, 88 Haitian children were killed after taking fever medication that contained toxic syrup manufactured in China. More recently, 100 people have been confirmed dead in Panama after taking a cold medication. The culprit in both instances was toxic diethylene glycol (DEG), an industrial solvent and the prime ingredient in antifreeze. It is a cheaper chemical cousin of glycerin, commonly used in medicine.

Over the years, counterfeiters have been profiting significantly by substituting the inexpensive DEG for glycerin, with devastating results.

The Panamanian government unwittingly mixed DEG into 260,000 bottles of cold medication. The DEG, labelled as being 99.5-per-cent pure glycerin, passed through three trading companies on three continents, and not one tested the product to confirm the accuracy of the label. Each trader had relabelled the product with its own certificate, eliminating the name of the manufacturer and the previous owner-a trick commonly used to keep purchasers from bypassing the trader and going straight to the source on future orders. As a result, the Panamanian government did not know that the product came from China.

In the global economy, ingredients for drugs and foods are routinely bought and sold many times in different countries, often without proper paperwork, increasing the risk of fraud and potential for disaster.

According to The New York Times, toxic syrup has figured in at least eight mass poisonings around the world in the past two decades, including China. Researchers estimate the death toll to be in the thousands. In many cases, the precise origin of the poison was never determined, but records and interviews show that in three of the last four cases, it was traced back to China.

Counterfeit toothpaste

Two people in the U.S. were hospitalized for nausea and abdominal pain after brushing their teeth with counterfeit Colgate brand toothpaste, which contained the chemical DEG.

Health Canada is now investigating the matter as well, after tubes of the suspect toothpaste were discovered in a Southern Ontario dollar store.

Steve Janke of Cambridge, Ontario said he was surprised to find the mysteriously labelled packages in the first dollar store he looked into after reading about the U.S. scare.

China's manufacturing capacity is huge but of variable quality

In a few short years, China has become a powerful trading nation upon which most of the world relies to some extent, but we are learning that manufacturing standards in Asia vary considerably. While some manufacturers are the best in class, others fall far short of an adequate quality standard:

• Goods from Asia are competitively priced, but of mixed quality.
• Some manufacturers have poor quality control.
• Some copy or counterfeit brand name goods.
• Some even counterfeit safety stamps such as CSA or ULC labels.

• Damage to brand and/or loss of business reputation
• Loss of key customers
• Product recall costs, often profoundly underinsured
• Loss of profits and risk of shareholder or customer litigation
• Risk of harm to customers and resultant product liability lawsuits
• Reduced ability to refinance.

• More frequent and more detailed domestic quality control
• Quality control at the manufacturing location-it may make sense to arrange independent inspection of a product for quality assurance purposes before it is packaged or shipped, especially if goods are shipped directly to retailers or others and the importer will have no further opportunity for quality assurance inspection
• Regular and/or continuous inspection of manufacturing locations
• Assurance that suppliers have their own internal checks and balances to ensure that manufacturing standards are kept
• Pre- and post-delivery inspections
• Strict contractual language, including evidence of product liability insurance.

• Our in-house programs are supported by first-class, licensed Canadian insurers. The programs are reliable and proven over time.
• Our staff are top-notch liability insurance professionals.
• Our first-class covers are backed up by excellent claim-handling service and litigation defence expertise.
• We have $25-million limits available in-house for most risks and access to even higher limits.
• For most risks, we can also handle the property covers.

Canadian Liability Insurers

We introduced our Canadian Liability Insurers (CLI) program in 1988 to offer you a market for GL covers that most insurers can't or won't write.

We write a wide range of risks, including:

• Blasting, demolition, tunnelling and other high-hazard construction risks
• Cosmetic, skin and hair-care products
• Day-care centres
• Fireworks makers, vendors and display operators
• Machine shops
• Pesticide applicators
• Private and trade schools
• Short-line or tourist railways
• Specialty food products
• Tanning beds
• Tough product liability risks
• Vacant premises and other premises risks
• Water systems and well drillers.

Canadian Exporters Program

Our Canadian Exporters Program (CEP) was introduced in 1995 to write the kind of U.S. product liability covers that most insurers just can't handle.

We write a wide range of manufacturing and distribution risks, such as:

• Air and water purification systems
• Automotive parts
• Building materials and products
• Chemical manufacture and distribution
• Cosmetic, skin-care and hair products
• Exercise equipment
• Farm machinery
• Industrial pumps
• Material-handling equipment
• Medical and scientific equipment, hospital and surgical supplies
• Mining supplies
• Precision machine parts and machine tooling
• Restaurant fire protection equipment
• Safety belts and harnesses for the construction industry
• Service work and training in the U.S.
• Sports equipment
• Toys and children's furniture.

Recycling and waste management industry

We can write GL and property covers on a stand-alone basis or in conjunction with our Environmental Insurance program for clients in the waste management and recycling industry, including:

• Asbestos, lead and mould removal contractors
• Disposal, recycling and transportation of wastes
• Emergency response services such as vacuum trucks
• Incineration, encapsulation and other waste disposal techniques
• Medical and other specialty wastes
• Site remediation and decontamination
• Product liability and other risks with an elevated pollution hazard.

• Off-site limit (third party)-up to $2 million
• On-site limit-up to $250,000 gradual
• Self-insured retention-minimum $5,000
• Minimum premium:
  • $1 million for $3,500
  • $2 million for $5,000.

• Current application (available on website)
• Current pressure tests on tanks and lines
• Cathodic testing if applicable
• May require site survey
• Tanks less than 20 years old only
• Territory-Canada only
• Gradual cover-no time element required
• No underground exclusion
• Other business exposures may also be included.

• Investigate and identify all your client's advertising and publishing activities. Make sure you include all websites, newsgroups and internal or external message boards.
• Disclose all exposures to your general liability (GL) and umbrella carriers.
• For clients presenting a low or moderate risk, the basic GL cover may be adequate, and the GL carrier may be willing to write these risks back into the GL policy.
• For other clients, an advertising liability cover extension to the GL or umbrella cover may be suitable.
• For risks with higher or more complex exposures, consider recommending a separate media liability policy. Ideally, your client’s web, published and advertising material can all be covered under a single policy.
• Be aware that publishing and advertising may not be clearly distinguishable. For example, our quarterly newsletter, News Board, is a typical mixture of news stories and opinion. Opinion, editorial commentary and linked websites are not automatically included in advertising liability coverage. It is not desirable to have the courts determine whether a libellous web page is advertising or merely opinion.
• Good risk management practice, including appropriate legal advice, is also important. For example, clients with websites should be aware that publishing the opinions of others may attract significant defence costs and legal liability. Consider incorporating a suitable publisher's disclaimer to reduce this exposure.

The 13-year-old was playing hide and seek with some friends at a Halifax-area KFC restaurant in October 1997. He climbed up onto the roof of the loading dock and fell through onto a concrete surface below. He suffered permanent brain injuries, leaving him with unpredictable, uncontrollable behaviour that made it impossible for his family to care for him.

Mediators for the parties agreed on an amount of $4,055,153 for total damages. In November 2004, seven years after the accident, the parties obtained court consent to the $1.2-million all-inclusive settlement amount. The court record indicates that the award will be further reduced about 25 per cent by a contingency fee agreement with the plaintiff's lawyer.

You can read this verdict at:

http://www.canlii.org/ns/cas/nssc/2004/2004nssc224.html

The plaintiff, Waddah (Martin) Mustapha, said that as he was lifting a clear plastic container of water onto his kitchen dispenser, he and his wife, who was seven months pregnant, saw a fly floating in the water.

Mrs. Mustapha was immediately sick and Mr. Mustapha subsequently suffered physical and psychological conditions which were both persistent and pronounced. During this period his business suffered financial losses, which he attributed to the heightened state of anxiety induced by the sight of the fly.

The plaintiffs didn't open the container, nor did they consume any unsafe water-they merely saw the fly floating in the water.

During the seven-day trial, the court heard detailed medical evidence of the effects on the plaintiffs.

Culligan Canada, the water supplier, did not deny that the water was contaminated but argued that the damages sought were excessive. The court found for the plaintiff on liability and on most headings of damages. This verdict will almost certainly be appealed. In the meantime, you can read the verdict at:

http://www.canlii.org/on/cas/onsc/2005/2005onsc13488.html.

In March of 1999, Michael Vytlingham was driving along a highway in North Carolina when he was struck by a boulder dropped from an overpass by two local men. They had loaded three rocks into the trunk of their car with the intention of dropping them from the bridge. Two of the rocks hit vehicles below. One hit a tractor trailer unit, but the driver was uninjured. The other hit Vytlingham's vehicle and smashed through the windshield, causing him terrible and permanent injuries.

The culprits got back in their car and twice drove down the highway past the scene of the accident without stopping to help.

The two were convicted of assault and received lengthy sentences. Vytlingham commenced an action against them, but their auto policy had limits of just $25,000-the statutory limit in North Carolina.

Citadel General Insurance Company admitted that Vytlingham was an "insured person" and an "eligible claimant" under an automobile policy issued by Citadel to his mother. Accordingly, he received accident benefits, medical and rehabilitation expenses from that policy.

In May 2004, Citadel filed for a motion of dismissal for summary judgment against the Vytlinghams or a determination as to whether Vytlingham was entitled to coverage under the policy. The trial judge ruled in favour of the Vytlinghams, and Citadel appealed that verdict.

In the same week in June 2005 that the Herbison hunting verdict was handed down, the Ontario Court of Appeal ruled on the appeal of this coverage issue. In another two-to-one split verdict, the court found in favour of coverage. The plaintiff was awarded the remainder of the applicable policy limit, or $960,000, plus post-judgment interest.

In addition, the Vytlingham family has already received about $1.5 million in accident benefits.

Auto insurers are exercised by the Herbison and Vytlingham split rulings because both represent significant interpretative advances-perhaps the most advanced pro-policyholder rulings since the Supreme Court of Canada ruling in Amos. We believe that either or both of these verdicts will likely be appealed to the Supreme Court. You can read this verdict at:

http://www.ontariocourts.on.ca/decisions/2005/june/c42343.htm.

Just before sunrise, Herbison began to walk across a farmer's field that led to the hunting area. He was dressed in an orange safety vest with a fluorescent yellow cross on the back.

Soon after, Fred Wolfe drove his pick-up truck along a rough roadway in the field, toward his assigned hunting station. Because of poor health, he was unable to readily walk across the field. It was still dark outside and the headlights of the truck were on.

As Wolfe drove across the field, he saw movement in the distance that he assumed was a deer. He stopped his truck, leaving the engine running.

He got out of the truck, reached into the back of the cab and removed his hunting rifle from its case. He loaded the gun and moved about a metre away from the vehicle. He looked through the scope, saw a flash of white that he thought was a white-tailed deer lifting its tail up in preparation for flight, and fired.

Wolfe's rifle shot struck Herbison in the upper thigh, resulting in serious injury and making it unlikely that he will ever work again. Herbison commenced a tort action in March 2000.

Wolfe initiated a coverage application action against his auto insurer for defence of the tort action. In August 2001, Justice Power of Ontario's Superior Court of Justice heard the coverage application. Wolfe testified that although he was not intentionally trying to illuminate a target with his headlights, he would not have "taken the shot" but for the illumination provided by the truck's headlights.

The trial court ruled that the hunting accident did not give rise to an obligation to defend under the policy. We assume that there was no other personal liability policy that might have provided coverage for the action.

The tort action was also heard by Justice Power, who awarded Herbison more than $832,000, plus post-judgment interest and costs, in February 2002.

In June 2005, the Ontario Court of Appeal ruled on the appeal of the coverage application and in a two-to-one split verdict, ruled in favour of coverage.

You can read this verdict at:

http://www.ontariocourts.on.ca/decisions/2005/june/c40602.htm.

The Mount Orab, Ohio family was roasting marshmallows at a Tennessee campsite when the girl's 10-year-old brother set fire to his marshmallow. When he shook the barbecue fork vigorously to extinguish the flames, the metal tines separated from the handle, flew several metres and hit his sister in the back of her head. The impact pierced her skull and she died as a result of her injuries.

The barbecue forks were manufactured in the far east. They were imported by a Canadian distributor and sold in the U.S. through a national retail chain. Under the terms of the purchase order, the retailer looked to the manufacturer and the distributor to defend the loss.

Unfortunately, the manufacturer carried no product liability insurance, so it fell to the Canadian distributor to defend the loss. The distributor's insurer secured the settlement with the family in June 2004.

Most insurers use the Insurance Bureau of Canada (IBC) standard GL environmental exclusion. Usually, this exclusion doesn't apply to the products hazard. However, some carriers have introduced non-standard forms that exclude all pollution exposures, including this one.

We suggest that you examine this coverage feature carefully, especially for clients with an elevated pollution risk within the products hazard, such as the manufacture of storage equipment or control valves for industrial liquids or other pollution-sensitive products or services.

For such clients, the standard GL provides generous cover for the products hazard. Of course, the environmental exclusion still applies to premises liability and other hazards.

For risks with a higher than average products hazard, we suggest:

• Verify that the GL carrier has used the standard exclusion, rather than a non-standard form.



• Be sure that your underwriter agrees with your coverage interpretation, preferably in writing. Some claim examiners have little experience in pollution losses, so it's preferable to address this issue when placing the risk, rather than after the first loss has been reported. If the claim examiner elects to deny the loss or obtain a legal opinion on coverage issues, the defence of the third party claim may fall to your client.


Environmental losses are usually complex and can be very costly to defend.
• The "wastes" exclusion in your GL may also apply to the products hazard.



• Most GL policies cover only bodily injury (BI) and property damage (PD) losses. Government-ordered cleanup costs may be expressly excluded, even in the products hazard.



• New IBC environmental exclusions have been amended recently. These new wordings further reduce pollution coverage with respect to the products hazard. Watch carefully for the implementation of these wordings.



• If suitable cover isn't available from your GL carrier, consider our specialty Environmental Impairment Liability cover, which we can extend to include the products hazard. We can provide limits up to $10 million for most risks.

In February 1999, just around midnight, the 32-year-old man was knocked down by a tractor-trailer. The rig, which was based in Lanoraie, Quebec, rolled right over him and dragged him across the lot before the driver realized something was wrong.

The victim suffered a broken leg and serious injuries to his hip and back--he required six weeks of hospital treatment, including hip replacement surgery. Persistent pain forced him to sell his rig, and he is unlikely to work as a truck driver again.

Seven exchange students attending school in British Columbia were in a rented minivan when it flipped over. One occupant suffered permanent brain injuries and another was rendered paraplegic. The other occupants suffered minor injuries.

The insurer initially took the position that no cover was available because the person who signed the rental agreement was not driving the van. At discovery, the rental company agent said it was their practice not to rent to drivers under 25 years of age. In this case, the rental agreement required that other drivers be scheduled. Accordingly, the contract did not permit the driver at the time of the accident to operate the vehicle.

During examination for discovery, the student who signed the rental agreement testified that the rental company agent had not warned them about the rules. Indeed, another person drove the minivan off the rental company lot. The students had limited English, and although the rental company had a Korean-speaking agent, she was not made available for this transaction.

Rather than pursue the denial, the insurer elected to settle. The $2,180,611 settlement was finalized in January 2002.

Last year, the Ontario Court of Appeal upheld two separate trial verdicts that found the broadcaster liable for damages arising from a story about drugs for heart attacks broadcast on the CBC news program "the fifth estate" in February 1996. The court agreed that the investigative program was malicious, unfair and defamatory.

Dr. Frans Leenen and Dr. Martin Myers were awarded more than $1.3 million in damages. Together these awards and associated legal expenses will likely exceed $4 million.

As is its practice, the Supreme Court offered no explanation for declining to hear the CBC's appeal, but the court's action means that the CBC has now exhausted all legal avenues by which these judgments might be contested.

We featured the Ontario Court of Appeal ruling of these cases in the autumn 2001 edition of News Board.

All the skiers were from the U.K. and Germany except for Mr. Ochoa, a Mexican national. All were experienced skiers and had signed CMH's standard contract, which included a liability waiver.

Mr. Ochoa's family sued CMH and their guides, alleging that they were negligent in choosing to ski at the site where the avalanche occurred and asking the court to set aside the signed liability waiver.

The case went to trial in Vancouver in September 1995 and lasted six months.

In September 1996 the court ruled that neither CMH nor its guides were negligent, and upheld the plaintiffs assumption of risk and the liability waiver. This is probably the most expensive defence expense ever incurred by a Canadian insurer for an individual bodily injury lawsuit.

This time, the Ontario Superior Court has awarded him $230,000 in damages for his wrongful conviction.

The court concluded that an officer of the Halton Police Department wilfully concealed from prosecutors and the defence evidence that had the effect of denying a fair trial to an innocent man.

As a result, the plaintiff spent 20 months in prison. He was exonerated from the criminal convictions and released from prison by the Ontario Court of Appeal in 1990. He started the civil suit later that year.

She became clearly intoxicated at the party. Her boss offered to call her husband to make sure she got home safely.

She drove home, stopping at a neighbourhood pub with some other office friends on the way.

When she left the pub, the weather conditions had deteriorated. She lost control of her car and collided with another vehicle. As a result of the accident, she suffered severe physical injuries and permanent brain damage and will never walk again.

Her blood-alcohol level was calculated at twice the legal limit. She sued both her employer and the pub for damages.

Justice Claire Marchand ruled that she bore 75 per cent of the blame for her injuries, but her employer must pay 25 per cent of the damages, which were determined at $1,200,000.

Because the pub is now out of business, an action against it was discontinued, and the employer must pay the total $288,000. Legal fees will also be considerable--with interest and court costs, this case will cost more than $500,000. Insurers for the employer have indicated that they will appeal this verdict.

The woman was working alone in a store in January 1998 when she was raped and robbed.

Her assailant was serving a nine-year sentence for armed robbery. He was on day parole and living at a nearby halfway house.

Her lawsuit alleged that the man was a career criminal with more than 60 convictions, and that Corrections Canada had failed to properly evaluate the man's propensity for violent crimes before he was released to day parole.

The settlement was reached on the day her trial against Corrections Canada was to commence. Half of the settlement will go to the provincial Workers' Compensation Board to reimburse them for benefits she received.

A troop of 50 army cadet was using the facilities of the Ecole Arpege in the Montreal suburb of Sainte-Julie for a day of training in November 1989. An emotionally disturbed cadet started the fire.

The Army Cadet League, the Department of National Defence, the town of Sainte-Julie, and the insurers of the boy and his mother contributed to the settlement.

The boy had been doing pull ups before gym class began at Toronto's Harbord Collegiate Institute using the cross piece of a metal frame that served as a goal for handball. The frame, which was not anchored to the floor, fell and crushed the boy's head. The family sued the Toronto Board of Education and the vendor of the sports equipment.

After a six-week jury trial in 1998, the Ontario Provincial Court awarded $261,000 to the boys family. The family's lawyer argued that according to the custom of filial piety in the Chinese community, it is a son's responsibility to look after his parents in their old age. The family was originally from Viet Nam. They immigrated to Canada from Hong Kong.

The jury recommended the large award because "the boy was just an unbelievable child. He was a straight-A student and very responsible. He always looked after his sister". The jury allocated 75% of the blame for the boy's death to the Board and 25% to the boy himself.

The Toronto Board of Education appeal the trial court award. The appeal court upheld the verdict but reduced the award to $225,000.

Chester Lam was seriously injured while sparring after judo class in September 1996. He sued several defendants — his sparring partner; the judo instructor who organized the classes; the assistant instructor; and the University of Windsor, in whose multipurpose room the accident occurred.

Lam's lawyer won a $2.75-million settlement from various defendants at mediation in March 2000. When Lam received counsel's statement of account for $550,000, he asked the court to reassess or modify the contingency fee agreement.

The trial court concluded that the fee was unenforceable and excessive, and ordered it to be halved. The appeal court reversed the lower court ruling, saying that the fee was fair and reasonable, given the complex issues of liability and negligence posed by the case, the high risk of contributory negligence, and the outstanding results achieved by the litigation team.

The appeal court upheld the $550,000 contingency fee agreement.

In December 2002, the Ontario government introduced legislation to permit contingency fee compensation — the last province in Canada to do so.

More than 12,000 people are parties to individual or class action lawsuits alleging mistreatment, including physical and sexual abuse, in native residential schools prior to 1980. The number of plaintiffs could grow to 18,000 over the next few years, according to federal government estimates, and total damages may exceed $1.7 billion.

After two years of negotiations, the Anglican Church agreed in November 2002 to pay 30 per cent of all settlements for lawsuits to which it is a defendant, up to $25 million in the aggregate. The federal government will negotiate settlements and pay the remainder of any damages.

In December 2002, the Presbyterian Church announced that it has entered into a similar agreement for an aggregate of $2.1 million.

Including legal expenses incurred to date, this litigation will likely cost the Anglican and Presbyterian churches more than $35 million.

The Roman Catholic Church and the United Church of Canada have been invited to a similar settlement mechanism, but no agreement with those churches has yet been reached.

It is not clear what share of these settlements, if any, will be funded by general liability (GL) insurance, but insurers are usually reluctant to contribute to such arrangements.

In December 2002, the Globe and Mail reported that Nova Scotia has paid out more than $61 million to settle claims by 1,400 inmates and ex-employees of residential youth training centres.

Nova Scotia has commenced legal proceedings against insurers who provided GL cover to the province during the period that the institutions were in operation, but according to the Globe and Mail, the insurers have denied any liability and have entered a vigorous statement of defence to Nova Scotia's claims.

Ryan Eichmanis accompanied Ryan Prystay to the home of Prystay's father, James. The father was away from home at an addiction treatment centre and had left his son in the care of his aunt and uncle.

The house was unoccupied but contained several firearms and live ammunition. The boys were handling the guns when a shotgun in the hands of Prystay discharged, injuring Eichmanis in the abdomen. He spent six weeks in hospital and suffered serious permanent injuries.

The trial judge set damages at $1,066,500. Eichmanis and his family conceded contributory damages to the extent of 25 per cent, so he will receive about $799,875 plus prejudgment interest. The trial judge apportioned the remaining 75 per cent liability to Ryan Prystay at 50 per cent and the father at 25 per cent. The action also named Ryan Prystay's estranged mother and the aunt and uncle, but the trial court found no liability against these defendants.

The plaintiffs appealed the trial court's apportionment of liability. In a majority ruling, the appeal court determined that the father knew of or ought to have known of his son's interest in guns. In his absence, he ought to have secured the guns and ammunition. The father's duty of care exceeded that of his son, and the court reallocated liability 25 per cent against the plaintiff, 30 per cent against Ryan Prystay and 45 per cent against James Prystay.

The local newspaper picked up on an incident at the restaurant, when a customer threw up on the buffet table. Although the restaurant cleaned up the area, the customer was carrying the Norwalk virus, and at least 13 other people became ill.

The impact of publication on the restaurant was immediate. Sales fell by 50 per cent the week after the article was published and remained at that level until the restaurant closed permanently.

The restaurant owner sued the newspaper and the Regional Board of Health. The action against the board was dismissed.

The newspaper did print a retraction, but Justice Goepel said in his ruling, "The submission that reasonable customers would have returned to the restaurant over time fails to take into account that individuals do not always react reasonably in making decisions as to how to spend their discretionary income. In this case, the customers did not return even after the true facts were published.

"One can only conclude that they could not shake the graphic image of the restaurant as a place that left vomit on its buffet. To paraphrase Jay Leno, 'Call me Mr. Finicky — I'd rather go elsewhere.' "

Harvey Duke owned a pharmacy in the small community of Broadview, Saskatchewan, about 200 kilometres east of Regina. Soon after moving to Broadview, Dr. Marc Puts became frustrated with his shortage of patients and began a campaign of allegations that Duke, who had worked in the town for 18 years, and another doctor were conspiring to defraud federal and provincial health plans.

Investigations by the Saskatchewan College of Physicians and Surgeons and the Saskatchewan Pharmaceutical Association concluded that Puts's allegations were unfounded. However, the accusations took a terrible toll on Duke and his family. He finally left the town and sold his business for about half its appraised value.

The trial court awarded Duke $750,000 in damages. Puts appealed the verdict, but the appeal court upheld the trial court verdict. Duke's counsel told Lawyers Weekly that with prejudgment interest and legal costs, the total award to his client is about $800,000.

The seven-week jury trial heard that the driver's blood-alcohol level was nearly three times the legal limit. Accordingly, the driver was held 70-per-cent to blame for the September 1996 accident.

McMaster Students Union, which operated the campus pub where the driver had been drinking, must pay the remaining 30 per cent of the damages.

The award included $100,000 for aggravated damages exclusively against the driver and a further $100,000 in punitive damages. The auto policy has no exclusion for non-compensatory damages, so the driver will be fully indemnified for his share of this award. To our knowledge, this is the first time a punitive award has been awarded in the context of an automobile accident.

Rob Jenkins worked at Legoland, the theme park owned by the makers of Lego building blocks.

As a long-service gift, he was given a Lego model of himself, complete with disfigured arm in a sling. He was very upset by the depiction, became depressed and missed more than nine months of work.

His claim was originally rejected by an employment tribunal, but the judgment was overturned on appeal, and Jenkins was awarded £20,000 (Cdn$48,400) in damages.

A spokesperson for Legoland said, "The Lego company accepts the ruling of the court.

"The company has always maintained that the model of Mr. Jenkins, like dozens of others made for colleagues, was created in good faith.

"However, we regret that this particular model caused distress.

"As a consequence of this case, we no longer make models of our employees as long-service gifts."

A Cook County, Illinois jury awarded the couple US$10,000 in compensatory damages plus US$372,000 in punitive damages.

The trial court jury heard that much of the hotel was infested and that guests were routinely assigned to affected rooms even though the reservation computer flagged the rooms as not to be rented.

Another couple who complained was moved to another room, but it was infested as well.

The jury also heard that the hotel manager had known about the infestation for years and had refused to close or decontaminate rooms.

The hotel operators appealed the punitive verdict, citing a recent U.S. Supreme Court ruling that punitive damages should not exceed a sensible multiple of the basic damages award. The appeal court upheld the verdict, arguing that there was sufficient evidence of wilful and wanton conduct by the defendant corporation to justify a punitive award of this magnitude relative to the compensatory award.

The two-car accident occurred on the Alaska Highway a few kilometers south of Fort Nelson, B.C. The driver of the pickup in which the plaintiff was a passenger lost control on a slippery area, crossed the centre line and collided with an oncoming vehicle.

The victim commenced a lawsuit against the drivers of the pickup and the other vehicle. ICBC, which insured both vehicles, paid the limits of the policy on the pickup into court before the trial started.

The plaintiff argued that the driver of the oncoming vehicle should have done more to avoid the collision.

The driver of the pickup had consumed a large quantity of alcohol over the 24-hour period leading up to the accident and was convicted for impaired driving. During part of the day of the accident and the prior evening, the plaintiff and the driver had been drinking together. The defendant argued that the plaintiff must have been aware that the driver was intoxicated and that as a result, he voluntarily assumed a risk of injury when he entered the car. The court also heard that the plaintiff was not wearing a seat belt.

The court absolved the driver of the oncoming vehicle of any blame and ruled that the driver of the

pickup was solely at fault for the accident. The court also rejected any arguments that the plaintiff should bear part of the blame for his injuries.

Prior to the commencement of the trial, the plaintiff also settled with two other defendants, although the nature of these settlements is not known.

The written judgment provides no details of injuries sustained by other parties in this accident. This plaintiff was awarded $4.2 million. With interest, defence expenses and the cost of a 10-day trial, the final value of the award will be much higher, but it is unlikely that the available insurance limits will be sufficient to satisfy this judgment.

Under B.C.'s Negligence Act, a finding of just one-per-cent liability against the oncoming motorist would find her liable for the unsatisfied portion of the judgment against the driver of the pickup as well. This verdict may be appealed.

Her lawsuit alleged that Ontario's Ministry of Transportation, which was responsible for the highway, should have foreseen that an Environment Canada weather warning presented an increased risk of bridge icing.

In June 1998, a trial court judge ruled that the Province of Ontario was not responsible for MacMillan's injuries. The trial court fixed damages at $3,866,000.

The appeal court heard the case in December 2000 and overturned the lower court ruling. The appeal court concluded that the week leading up to the date of the crash had been unseasonably cold. Weather warnings had accurately forecast precisely the type of conditions that were likely to cause bridge icing. The court ruled that it would have taken maintenance crews no more than 20 minutes to inspect the five highway bridges in their patrol area, so the bridges should have been salted and sanded before the plaintiff arrived at the bridge.

With legal expenses and 12 years of pre- and post-judgment interest, we expect that this verdict will cost the defendant more than $6 million.

The suit alleged that concrete foundations, mainly residential, are crumbling prematurely because unsuitable fly-ash was mixed into the cement.

Lafarge, which provided the cement, will pay 80 per cent of the damages and Bertrand & Frère, the ready-mix supplier, will pay 20 per cent.

With interest and legal expenses, the award will exceed $20 million. A further hearing will determine how the awards will be shared between insurers for the cement companies.

The court heard that shortly after Dr. Marc Puts moved to Broadview, he became frustrated with his shortage of patients and began a campaign of allegations that Mr. Duke, who had worked in the town for 18 years, and another doctor were conspiring to defraud federal and provincial health plans.

Investigations by the Saskatchewan College of Physicians and Surgeons and the Saskatchewan Pharmaceutical Association concluded that Dr. Puts's allegations were unfounded. However, the accusations took a terrible toll on Mr. Duke and his family. He finally left the town and sold his business for about half its appraised value.

The court awarded Mr. Duke $750,000 in damages. Dr. Puts said he plans to appeal the verdict.

By coincidence, both of the rigs were Canadian. One vehicle was registered in New Brunswick and the other was registered in Ontario.

The collision caused major damage to both vehicles and their loads. A considerable amount of diesel fuel was spilled and the cost of the cleanup was nearly Cdn$60,000.

The family of the dead man commenced a lawsuit for damages in Michigan. Following a hearing by a panel of mediators, who held the driver of the Ontario-based vehicle solely at fault, the claim was settled in November 2000 for Cdn$1,190,000, plus legal expenses.

Twenty-four year-old Chris Creasor of Orillia, Ontario was already paralyzed from the shoulders down when he was injured at Cadillac Fairview's Georgian Mall in Barrie in December 1994. He had become quadriplegic at the age of 18 when he suffered a spinal injury in a diving accident.

With only limited use of his arms, Creasor went on to earn a degree in math and computer science at the University of Waterloo. He was halfway through a post-graduate degree at the University of Ottawa when, during a visit to the mall, his wheelchair flipped after it jammed against the curb of a ramp. Creasor's brain injuries forced him to give up his schooling and rendered him unemployable.

In October 1999, after a four-week trial, a jury ruled that the ramp was one-third narrower than required by the Ontario Building Code and was responsible for Creasor's injuries.

In November 2000, the Ontario Court of Appeal dismissed an appeal by the mall owners. With interest and the costs of the appeal hearing, this cost of this has risen to $2.7 million.

An agricultural co-operative owned the warehouse and leased it to a company that collected waste newsprint for recyclers. The newsprint was baled and stacked until shipment. An adjacent building was occupied as a cold-storage warehouse.

In June 1994, the building owner agreed to install a steel guard rail inside the building to reduce damage from the operation of the recycler's fork-lift trucks. Rather than purchase a prefabricated unit, the building owner permitted two employees to install a guard rail from stock steel.

The work required the use of welding equipment, although neither employee was a licensed welder. They had little training and took insufficient provisions to watch for or prevent a fire. Sparks from their welding torch ignited a fire in a nearby bale of newsprint. Because of construction deficiencies, the fire quickly spread past the firewall to the adjacent property.

The local fire department could do little to control the fire, which caused extensive damage to the structures and contents. The cold-storage warehouse contained frozen blueberries worth about $2 million, from which no salvage was secured. Property insurers for the tenants and nearby businesses commenced legal actions to recover almost $7 million in losses.

In January 2000, shortly before the trial date, the main parties to the lawsuits agreed to settle by compromise for about $3.4 million. With legal expenses, the cost of this claim will likely be more than $4 million.

In October 1991, John Kresz, a resident of Canada, was ordered to pay Loren Girsberger Cdn$778,056 in damages for tortious interference with contract and defamation in the state of Illinois. The Appellate Court of Illinois confirmed the judgment in 1993. It is not clear whether Kresz defended either of the proceedings in Illinois, but the judgment went unsatisfied.

In 1997, Girsberger discovered that Kresz had assets in Ontario and commenced an action in Ontario to enforce the Illinois judgments. In May 1998, Justice Epstein declared the Illinois judgment valid and enforceable in Ontario and granted summary judgment.

In the six years between the date of the Illinois judgment and the date of the Ontario action, the value of the Canadian dollar fell sharply, so the court adjusted the damages to $889,862 to reflect the currency conversion.

The Ontario judgment was registered against Kresz's properties in Ontario, Manitoba and B.C.

Kresz appealed, but the appeal court upheld both the lower court ruling enforcing the Illinois judgments and the adjustment for currency conversion.

At the time of the fire, a contractor was performing a major repair and restoration project on the wharf. The work included the use of welding torches to cut the large metal pins that held the structure together.

The fire was detected in the early evening, about three hours after the contractor's employees had left the site. The fire spread quickly under the deck of the wharf, and the fire department struggled to control the fire for more than 16 hours.

The lower court determined damages at $1,525,520. The court ruled that the contractor's welding operations and poor safety practices were the likely cause of the fire, but the plaintiff's automatic fire protection system was poorly designed and was largely ineffective in retarding the progress of the fire. the lower court ruled that the contractor was 75-percent to blame and the plaintiff, 25 percent responsible.

The appeal court was unwilling to find either party more blameworthy than the other. Accordingly, the court reapportioned damages and ruled that blame should be shared equally between both parties. The appeal court was not asked to rule on damages, but we estimate that the cost of the two trials and interest on the judgment will exceed $500,000, in addition to the damages determined by the lower court.

Shortly after the 31-year-old plaintiff and two friends arrived at the bar in May 1995, a brawl began between them and three other men. The plaintiff fell to the floor and received a vicious kick to the head. As a result, he is permanently brain-damaged and will never work again.

Witnesses said the fight broke out with little or no warning. Doormen broke up the brawl, but not before the plaintiff had sustained his injury. Evidence indicated that the plaintiff had been served only one or two rounds at the nightclub, but a toxicology report showed that he had consumed the equivalent of 17 beers. Plaintiff 's counsel argued that because the plaintiff was heavily intoxicated when he arrived at the bar, he and his party ought not to have been served at all.

Police charged the assailant but at the criminal trial, witnesses were unable to properly identify him and he was acquitted. As a result, the nightclub was the sole defendant. Under Ontario's contributory negligence rule, a defendant who is held just one per cent liable for a plaintiff 's injuries may also have to pay the share of any other defendant who cannot afford to pay.

To avoid the expense of a trial, insurers for the bar agreed to settle for $1.3 million as well as $80,000 in legal expenses.

He fell 24 metres to his death before an audience of 16,000 fans and countless cable television viewers.

The parties would not confirm details of the settlement, but a Kansas City newspaper estimated it at US$18 million (Cdn$27 million). The settlement will be paid by insurers for the WWF and the City of Kansas City, whose workers set up the rigging for the event.

He was one of several men who were helping to build a roof on a barn. Most of the men knew each other, either through their local Mennonite church or as neighbours or friends. None of the men were paid for their efforts.

The plaintiff was climbing a ladder that had been erected on a pile of wet manure. The ladder slipped and the man fell almost five metres to the ground. He sustained serious permanent injuries. He sued the farmer and another man who was helping with the roofing project.

Tragically, the farmer's father, who was the plaintiff's father-in-law, had fallen to his death from the same roof the previous weekend.

B.C. Supreme Court Justice Romilly said, "Apart from the tragic circumstances of this case, this court action has had the effect of dividing a small religious community and causing a rift between what was previously a close-knit family."

The court ruled that the accident was caused because the ladder had been unsafely erected on ground that was covered in loose, wet compost. The plaintiff was found to be partly responsible for his injuries, so the award will be reduced by 30 per cent. The remainder of the award will be paid by the two defendants--the farmer must pay 40 per cent and the man who erected the ladder must pay 30 per cent.

Defendants in the suit included the Province of Ontario, the former Region of Hamilton-Wentworth, the former City of Hamilton, landowner Frank Levy, Plastimet, Plastimet's owner Jack Lieberman and various tenants and former tenants of the Wellington Street North plant.

Superior Court Justice David Crane approved the settlement in May 2001, following several months of negotiation among the parties involved. The 9,400 individual claims were capped at $200 per person. The settlement also provides a contingency fund for individuals with extraordinary claims and sets aside money for business losses, according to the June edition of Swiss Re Review.

• They must prove that they took reasonable care to ensure that such material was not published;
• Once alerted to a problem, they must prove that they took steps to resolve it.

A talented photographer who A developed symptoms of Parkinson's disease after being struck by a van has been awarded more than $6 million. The award is said ro he the largest personal injury lawsuit against British Columbia's provincial auto insurer.

Dan Heringa won the award after a four-week trial in June 2000. His lawyers argued that the condition arose from head injuries sustained in the accident.

Heringa was 38 years old and happily married when he was struck by a van as he crossed a busy Vancouver street in 1995, said his lawyer, Mike Slater, Heringa had been called one of Canada's most promising young photographers.

Today, he cannot work and lives alone&emdash;his wife left him shortly after the accident. He shakes like a leaf and is starting to stumble when he walks.

Slater said the award is only fair for a young, talented man whose career was destroyed by a careless driver. "He needs it to live the rest of his life with the dignity he deserves."

The award includes $588,035 for past income loss, $3.86 million for future income loss, $1.3 million for future cost of care and $253,000 for pain and suffering.

The Insurance Corporation of British Columbia (ICBC) called four expert witnesses to dispute the theory that the crash and resulting head injury were responsible for the onset of Parkinsonism, a condition with symptoms identical to Parkinson's disease. It is a progressive disorder characterized by tremors, muscular rigidity and slowness of movement. There is no cure.

ICBC will appeal the award, but the plaintiff's lawyer is looking for a way to collect more than the $ 2-million coverage available from the auto insurer. Slater said he does not know yet what assets the driver of the van or the company that owns it may have, or whether other coverage might be available to the vehicle's owners.

• The commercial insurance was quoted by telephone—no broker had ever visited the client.
• The broker's note-keeping was incomplete, and there was no explanation on the file as to why employee dishonesty cover was not placed.
• The property section of the policy contained an exclusion relating to theft by a person to whom the property had been entrusted. This exclusion had been added to the policy several years prior to the loss. The plaintiff argued that the exclusion had not been drawn to his attention, nor had other more suitable covers been offered. The plaintiff's expert witnesses gave evidence that suitable employee dishonesty cover could have been put in place for both employees and independent contractors.
• The consultant was convicted and sentenced, but was financially unable to make restitution.