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.