Damages for minor injuries in Nova Scotia: a new case on the new cap
Damages for pain and suffering are capped for Nova Scotians who are injured in motor vehicle accidents if their injuries are considered “minor.” The cap was amended for accidents occurring on or after April 28, 2010. In a recent decision about an accident that occurred in July 2010, Justice Robertson of the Nova Scotia Supreme Court agreed with the Defendant that the Plaintiffs’ injuries were minor, applied the new cap, and limited the Plaintiffs’ damages for pain and suffering to $7,500 each.
The case is Warnell v Cumby, 2017 NSSC 88. The Plaintiffs, a wife and husband, were injured in a head-on collision near New Germany, Nova Scotia, when the Defendant driver “failed to negotiate” a sharp turn and collided head-on with the Plaintiffs’ truck. Liability was not at issue, but Justice Robertson still had to determine whether the Plaintiffs’ injuries were caused by the Defendant’s negligent driving, and the amount of damages to which they were entitled.
The Plaintiff wife suffered neck, shoulder, and back injuries. She gradually returned to work as a personal care worker a few months after the accident, but stopped working about 15 months post-accident because of hip pain (a labral tear). She claimed $100,000 in general damages for pain and suffering.
The Plaintiff husband suffered neck and back injuries, and subsequently complained of wrist pain. He had gone back to his job as a tool pusher on international oil rigs within a year of the accident and was still working full-time at the time of trial in October 2016. His general damages claim was for $65,000.
It was up to the Plaintiffs to prove their injuries were not minor, in order to be awarded damages beyond the capped amount of $7,500 (the 2010 amount; since then, the cap has been adjusted every year for inflation). Justice Robertson, relying on Justice Chipman’s 2016 decision in Gibson v Julian for the law on the cap, reviewed the Plaintiffs’ treating physicians’ narratives in detail to assess whether their injuries met the criteria of “minor injury” in Nova Scotia’s Insurance Act and Automobile Accident Minor Injury Regulations. A “minor injury” is defined as a sprain, strain, or whiplash-associated disorder injury “that does not result in a serious impairment” making the claimant substantially unable to perform their essential tasks at work, school, or home.
There was no expert evidence to support the Plaintiffs’ claims that their injuries were a “serious impairment.”
The Plaintiffs tried to introduce a report from Dr. Ivan Wong, an orthopedic surgeon, about the labral tear in the wife’s hip and whether it was caused by the accident (Dr. Wong was not called as a witness at trial despite initially being on the Plaintiffs’ witness list). Justice Robertson refused to admit this report. It did not qualify as a treating physician’s narrative, and it did not meet the criteria for a proper expert’s report under the Nova Scotia Civil Procedure Rules.
Neither were the Plaintiffs permitted to introduce Dr. Wong’s report as rebuttal evidence, because that would have constituted improper case-splitting. (See paragraph 9 of the trial decision, and the mid-trial motions decision reported as Warnell v Cumby, 2016 NSSC 356.)
Dr. Michael Gross, an orthopedic surgeon retained by the Defendant, was the only expert witness before the Court. Justice Robertson accepted Dr. Gross’s evidence that the Plaintiff wife’s hip trouble was degenerative and not caused by the accident, explaining that: “A labral tear upon impact from a motor vehicle accident would have been felt immediately, impaired her mobility immediately and resulted in a complaint about her hip pain at the emergency department. This did not occur.”
According to Dr. Gross, the Plaintiff’s neck and low back pain from the accident were resolved several months before she stopped working. The hip pain that caused her to stop working was unrelated to the accident.
In the end, Justice Robertson found that both Plaintiffs’ injuries were “minor.” (The husband’s wrist injury may have been pre-existing, but even if it was caused by the accident it was not a serious impairment.)
As a result of these findings, the Plaintiffs’ general damages were limited to $7,500 each. There were some other damages awarded as well: $52,000 to the husband for loss of income to cover his time off work post-accident, and $15,000 to the wife for loss of housekeeping / valuable services (she did not get damages for past loss of income; the income replacement benefits from her insurer exceeded what she lost from not working for a brief period after the accident).
This will be an important case for defendants and their automobile insurers when relying on the new cap on general damages. Even though plaintiffs bear the burden of showing their injuries are not minor, defendants can retain medical experts to rebut the plaintiffs’ case (as was done here). Defendants can also rely on evidence from the plaintiffs’ own doctors to demonstrate that their injuries were minor and not a serious impairment in their daily lives.
Stewart McKelvey partners Christa Brothers, QC and Chris Madill, with associate Sara Nicholson, successfully represented the Defendant in this matter. If you have questions about how this case may affect you, please contact a member of our Insurance practice group.
Tauna Staniland, Andrea Shakespeare, Kimberly Bungay and Alycia Novacefski The federal government has introduced new record keeping requirements for private, federally formed corporations governed by the Canada Business Corporations Act (“CBCA”). The amendments to the…Read More
Health Group, Christopher Goodridge, Matthew Jacobs The Ontario Court of Appeal confirmed in a decision released on May 15, 2019 that doctors must provide an ‘effective referral’ where they are unwilling to provide care on…Read More
Level Chan and Dante Manna The Province of Nova Scotia is soliciting stakeholder input on significant regulatory changes to the Pension Benefits Act (“PBA”) and Pension Benefits Regulations (“PBR”). The solicitation is accompanied by a…Read More
Andrea Shakespeare, Kevin Landry, Divya Subramanian and Matthew Jacobs The main asset of innovation is Intellectual Property. Applicants looking to participate in the Innovation Superclusters Initiative must be vigilant of their Intellectual Property. This article…Read More
Kevin Landry Health Canada has announced changes to the cannabis licensing regime. These changes come ahead of the release of the cannabis edibles, extracts, and topicals amendments to the Cannabis Regulations expected to be released…Read More
Grant Machum Last week’s Nova Scotia Court of Appeal’s decision in Halifax Herald Limited v. Clarke, 2019 NSCA 31, is good news for employers. The Court overturned the trial judge’s determinations that an employee had…Read More
Rick Dunlop On April 24, 2019, the Nova Scotia Government created the Trade Union Act General Regulations so that the Labour Board will no longer consider a Saturday, Sunday, or holiday as the date of…Read More
Rodney Zdebiak and Anthony Granville On Monday, April 15, 2019, the Newfoundland and Labrador legislature passed a number of changes to the Automobile Insurance Act (“Act”) stating that the intent is to help stabilize insurance rates,…Read More
Andrea Shakespeare, Kevin Landry and Matthew Jacobs The Canadian government has placed itself in the “global innovation race”. In response to the demands for innovation, the Canadian government has established the Innovation Superclusters Initiative which…Read More
Andrea Shakespeare, Kevin Landry and Matthew Jacobs Canada’s Ocean Supercluster is a co-investment initiative between Canada’s federal government and the private sector that is part of the Innovation Superclusters Initiative. As we wrote about in…Read More