– Hayward v. Young, 2013 NSCA 64.

Hayward was injured in a car accident in 2003. The defendant, Young, admitted liability, and the trial was confined to an assessment of damages. Hayward claimed damages exceeding $1 million and argued that he’d sustained both soft tissue and brain injuries. Following a nine-day trial, Justice Robertson found that Hayward had succeeded in establishing that the car accident had caused soft tissue injury, but failed to establish that it had caused brain injury. She awarded $120,000 in general damages for pain and suffering. Hayward appealed and Young cross-appealed.

Hayward’s appeal was dismissed. The Court of Appeal found no reason to disturb Justice Robertson’s conclusion that Hayward had failed to prove that the car accident caused brain injury. However, Young’s cross-appeal was allowed. The Court of Appeal found that Justice Robertson had made a reversible error when she awarded $120,000 to Hayward for general damages, after concluding that his injuries were within the Smith v. Stubbert range. Smith v. Stubbert is a 1992 decision of the Nova Scotia Court of Appeal which held that the range for non-pecuniary damage awards for “persistently troubling but not totally disabling” injuries is from $18,000 to $40,000 (117 N.S.R. (2d) 118). This has remained the law in Nova Scotia for the past 20 years, with adjustments for inflation. The Court of Appeal found that, since $40,000 in 1992 translates into $57,150 in 2011 (the year the judge filed the decision), Justice Robertson had awarded more than double the upper limit set in Smith v. Stubbert. This was a reversible error. The court reduced Hayward’s general damages to $57,500, thereby confirming that plaintiffs who fail to bring their injuries outside the scope of Smith v. Stubbert will be confined to maximum general damages awards of roughly $58,500 in 2013.