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Minor Injury Cap: Still the Plaintiff’s Onus

Published:

January 9, 2024

Author(s):

• Robert Mroz
• Jillian M. Kean

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In a decision that will be helpful in future assessments of damages for soft tissue injuries, on December 21, 2023, the Nova Scotia Court of Appeal issued its decision in Cameron v. Pratt, clarifying and confirming both the minor injury cap onus of proof and the scope of the Smith v. Stubbert range for “persistently troubling but not totally disabling” injuries.

The Case. The plaintiff was driving a motorcycle when a van pulled out in front of them, resulting in a collision. The plaintiff sustained injuries to their neck, back, knees, and right ankle in the accident. The left knee injuries were severe: tears to both the LCL and ACL. The plaintiff also suffered two rib fractures and a mild traumatic brain injury. Despite those injuries, the plaintiff completed an electrician course after the accident, had returned to the workforce, and was able to complete their activities of daily living.

The Trial Decision. In its July 2021 trial decision, the N.S Supreme Court (among other things)  determined the neck, back, knee and ankle injuries were “minor injuries” subject to the minor injury cap, relying on section 10(3) of the N.S. Automobile Accident Diagnostic and Treatment Protocols Regulations and:

• Smith v. Stubbert Assessed the rib fractures and brain injury separately from the (capped) minor injuries and awarded $55,000 in general damages for these injuries, relying on the range of roughly $33,750 to $75,000 in 2023 dollars established in the N.S. Court of Appeal’s 1992 decision in Smith v. Stubbert for persistently troubling but not totally disabling injuries.

• Onus of Minor Injury Cap Proof. Placed the onus on the defendant to prove the minor injury cap should apply, based on the general principle that the onus is to be placed on the party that asserts a proposition (though this didn’t affect the outcome).

Both parties appealed the trial decision on various grounds.

The Appeal Decision. A unanimous N.S. Court of Appeal, among other rulings, clarified two issues of general significance: 

• Minor Injury Cap Onus of Proof on Plaintiff. The Court found the trial court erred in placing the onus on a defendant to prove the minor injury cap applies. Its reasoning is straightforward: the subject matter of the claim was the nature and extent of the plaintiff’s injuries – not the minor injury cap. This decision affirms the earlier decisions of the N.S. Supreme Court’s 2016 decision in Gibson v. Julian and its 2017 decision in Warnell v. Cumby. As a result, the “asserting party” was the plaintiff and they had the onus to lead evidence to “prove the nature and extent of [their] injuries are not capped”.
• Smith v. Stubbert Scope Confined. The Court held the Smith v. Stubbert range does not apply to concussions or other traumatic brain injuries even if they otherwise meet the criteria of “persistently troubling but not totally disabling.” After reviewing Smith v. Stubbert and subsequent cases applying it, the Court determined Smith was intended to only apply to damages for soft tissue injuries and was never intended to become a “universal standard for all persistently troubling, non-totally disabling injuries in personal injury cases”.  In its analysis, the Court also confirmed that while Smith v. Stubbert was intended to be confined to cases involving soft tissue injuries, that can include both chronic pain and psychological injuries. As a result, the Court increased the general damages award for the rib fractures and concussion by $15,000 to a combined $70,000.

Please contact your McInnes Cooper lawyer or any member of our Insurance Defence Team @ McInnes Cooper to discuss the impact of the Court’s decision in Cameron v. Pratt on your claims.

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