– Awalt v Blanchard, 2013 NSCA 11
Michelle Kelly, a partner in Cox & Palmer’s Halifax office, was recently successful in arguing to uphold a trial judge’s finding that the plaintiff had suffered a minor injury in a motor vehicle accident, limiting her general damages to $2,500.00 (the minor injury cap in place at the time).
The plaintiff, Awalt, was a personal care worker who sought damages arising from a motor vehicle accident caused by the defendant, Blanchard. Liability was not
in dispute. Immediately following the accident, Awalt was diagnosed with mild whiplash and tenderness was noted on the left side of her neck and shoulder. She returned to work approximately one week after the accident. Awalt alleged that her shoulder pain persisted and further investigation of her left shoulder almost two years after the accident revealed a rotator cuff injury which required surgery. Following the surgery, Awalt was off work for eight months. Although Awalt had a pre-existing history of work-related injuries to her shoulder, she alleged that the rotator cuff injury was the result of the accident.
At trial, a number of physicians and specialists gave evidence. The plaintiff’s orthopaedic expert testified that the shoulder injury was caused by the motor vehicle accident. However, on cross examination he conceded that he had not been aware of Awalt’s previous workplace injuries when he authored his report. The defence orthopaedic expert performed a paper review of Awalt’s entire medical and occupational files and testified that Awalt suffered a whiplash injury in the motor vehicle accident and that her left shoulder injury was caused by a series of injuries incurred at work over a number of years. The trial judge preferred the evidence of the defence expert and found no causal connection between the accident and the rotator cuff injury. As a result, the trial judge held that the injuries caused by the motor vehicle accident fell within the minor injury cap of $2,500.00.
On appeal, Awalt took issue with the trial judge’s assessment of causation and the medical evidence. The Court of Appeal upheld the trial judge’s decision, finding that he did consider all the evidence but was simply not satisfied that Awalt had established causation. The Court of Appeal found that the trial judge preferred the opinion of the defence expert to the plaintiff’s experts and that there was “more than adequate evidentiary foundation for the trial judge’s conclusions”.
Awalt also disputed the trial judge’s interpretation of the minor injury legislation. The trial judge endorsed the Nova Scotia Supreme Court’s previous minor injury cap decision in Farrell v Casavant (2009). Looking at the Farrell criteria, the Court of Appeal confirmed that:
1. There was an admitted personal injury.
- There was no issue about a permanent personal disfigurement.
- There was no evidence of a permanent serious impairment of an important bodily function caused by a continuing injury which is physical in nature (Awalt returned to work about a week after the accident).
- Awalt was not “seriously impaired” in either her usual daily activities or her regular employment.
The Court of Appeal noted that, although the trial judge may not have articulated a detailed minor injury analysis, it is clear from his endorsement of Farrell and his careful review of the medical evidence that he applied that law.
