Erin Best

The decision of Justice Handrigan in Ryan v. Curlew is the first motor vehicle accident personal injury decision to come out of the Newfoundland and Labrador courts in quite some time. The case is a win for the insurance industry in many respects.

The accident occurred on Pitts Memorial Drive in 2010. At that time, Ryan was a 27 year old Ship’s Clerk with no pre-existing injuries. Her claim for over $3 million was for total disability due to chronic headaches, persistent neck, back and shoulder pain with depression, anxiety and PTSD. The Defendant was found liable for the accident and Handrigan J. awarded $803,420 in damages, broken down as follows:

The Court awarded $100,000 in general damages, less than was expected for a total disability. This was largely due to issues with Ms. Ryan’s credibility, with the Court finding her claim of total disability to be “disingenuous and unconvincing.” Handrigan J. emphasized the importance of a Plaintiff’s credibility in soft tissue injury cases where much of the evidence must come from the Plaintiff. The medical evidence that merely regurgitated Ms. Ryan’s subjective complaints appears to have been given less weight than the objective evidence which, on the whole, failed to support Ms. Ryan’s claim of injury below the neck-shoulder girdle.

The Court allowed Ms. Ryan’s family doctor to be called as an expert, but, after hearing her testimony, doubted her impartiality.

In regards to the calculation of lost earnings, the Court found the actuarial evidence “decidedly unhelpful.” An amount of $252,732 was awarded for seven years of past lost earnings, reflecting an annual salary of $60,000 – $65,000 (gross). Perhaps the most significant aspect of this decision is the Court’s interpretation of s.26 of the Automobile Insurance Act which was interpreted to support the deduction of CPP disability benefits, Section B indemnity and the Manulife past and future disability benefits.

The Court did not believe that Ms. Ryan would never work again. $575,000 was calculated for loss of future earning capacity but this amount was deducted to reflect a $200,000 settlement Ms. Ryan received from Manulife, for a total award of $375,000.

$2,000 per year was awarded for past housekeeping and $13,957 for past cost of care. The awards for future housekeeping at $35,000 and $100,000 for future cost of care were on the high side, considering the past cost of care and Ms. Ryan’s credibility issues.

The entire award was reduced by 10 per cent due to Ms. Ryan’s failure to mitigate. Handrigan J. summarized the law of mitigation as follows:

• There is an obligation to mitigate;
• You cannot claim you failed to mitigate because you could not afford to mitigate;
• You are only required to act reasonably when mitigating;
• Whether one acts reasonable is a question of fact; and,
• The Defendant has the onus of proving a failure to mitigate.

Ms. Ryan’s failure to consult a psychologist or psychiatrist despite recommendations, her failure to take prescribed medications, her failure to continue with the recommended exercises and her decision to discontinue physio and aqua therapy were satisfactory to support a failure to mitigate.

This decision is significant in that it definitively condones the deduction of CPP, section B and private disability benefits from lost earnings, past and future. It also reminds us when it is appropriate to reduce an award for a failure to mitigate. Lastly, it sends a strong message to plaintiffs not to exaggerate their claims.

The above summary was prepared on April 8, 2018