CHRONIC PAIN SYNDROME - THE DEFENDANT'S DILEMMA Defending chronic pain syndrome cases is perhaps the most difficult task a personal injury defence la...
14 downloads 0 Views 475KB Size

Defending chronic pain syndrome cases is perhaps the most difficult task a personal injury defence lawyer may be asked to undertake. The absence of objective medical evidence to verify the validity of the plaintiff's complaints, combined with the nebulous and controversial nature of the diagnosis itself, provide very little upon which counsel can base a defence. I know of no case in recent memory that brings into sharper focus the difficulties and disagreements that chronic pain syndrome cases provide than the Appeal Court's recent decision in MacLeod v. Keigan and Burrage [1999], N.S.J.23. The majority opinion written by Justice Freeman and

concurred with by Justice Roscoe contrasts starkly with the dissenting opinion of Justice Chipman.

The majority decision describes a happy, well-adjusted woman previously in good health, with a stable and happy marriage, in love with her work, suddenly stricken down in her prime years as a result of a motor vehicle accident which led to the development of chronic pain syndrome. On the other hand, is Justice Chipman's description of a woman with a myriad of health problems prior to and after the accident, in an unhappy relationship marred by alcoholism, combined with frequent absences from work to the point where Mrs. MacLeod's career may have been in jeopardy. Whereas the majority describes the effects of the accident as leading to virtually total and permanent disability from the pain alone, Justice Chipman describes her as a woman far from totally disabled. Frankly, reading the two opinions about the same woman, one could well be excused for thinking that two separate people are being described. A review of the pertinent background facts is warranted, keeping in mind that these are presented from the


perspective of what defence counsel would ordinarily view as the most relevant features of the claim.

Mrs. Macleod was a passenger in a motor vehicle driven by a friend on the May long weekend when the vehicle they were travelling in was forced off the road into a ditch through the negligence of the defendants. Mrs. Macleod's initial injuries were not so serious that she sought immediate medical attention and in fact she first saw a doctor some three to four days later. Of interest in this particular case and something that I suspect was of some importance in Mrs. Macleod's eventual development of chronic pain syndrome, was the fact that her long time family physician, Dr. MacKenzie, had recently retired. Mrs. Macleod had selected Theresa MacNeil as her new doctor, but had not had occasion to see her prior to the accident. Therefore, at trial Dr. MacNeil was unable to comment from first hand knowledge about Mrs. Macleod's pre-accident health and in fact admitted that most of what she knew came from Mrs. Macleod herself and not from the medical records which for one reason or another she had not bothered to read prior to the trial. Whether or not Dr. MacNeil's prescribed course of treatment would have been different had Mrs. Macleod been a longstanding patient will never be known.

During the initial visit, Dr. MacNeil diagnosed a soft tissue injury to Mrs. Macleod's upper back and neck area of the type often associated with motor vehicle accidents. At the time, she did not have any expectations that it would constitute a long term or permanent health problem


for Mrs. MacLeod. Subsequent tests confirmed the diagnosis of soft tissue injury and no other objective signs of physical impairment have ever been found relating to the accident.

Other than a short appearance at the hospital where she worked on the Tuesday after the long weekend ended, Mrs. Macleod was never able to work again.

From this point on, Mrs. Macleod's development of chronic pain was similar to that seen in many other cases. There appears to be not much doubt that Mrs. Macleod's injuries were treated in the same manner that virtually 100 percent of other patients with similar symptoms would be treated.

She was prescribed anti-inflammatory medications, regular and diverse

physiotherapy, and referred to musculoskeletal and neurological specialists, etc. No matter what treatment was prescribed and followed by Mrs. Macleod, instead of making her better, it either didn't help or made things worse.

It is one of the great mysteries of .. medical-legal science" as to why the very treatment that is prescribed to alleviate and repair the effects of soft tissue injuries for the vast majority of the population seems to have an opposite effect on a small number of patients who go on to develop chronic pain.

Eventually, Mrs. Macleod was diagnosed with chronic pain by both Dr. MacNeil and the specialist Dr. Watt. It is important to keep in mind that a diagnosis of chronic pain is simply


nothing more than a pain that persists for more than six months. There is absolutely no magic whatsoever in the term chronic pain. Cancer patients who suffers from the effects of their disease for a period in excess of six months would be considered to be in chronic pain, as would a person suffering from arthritis. What makes chronic pain associated with soft tissue injuries different from most other sources of chronic pain is that there is no universally accepted reason as to why the pain persists long after physical healing has actually occurred.

This was

particularly brought into focus in Mrs. MacLeod's case when the Trial Judge's decision referred to Mrs. MacLeod's pain as coming from "an unidentifiable source." Leaving aside the issue of whether this begs the question on whether or not the plaintiff has proven their case because, having failed to identify the cause and source of the pain, they could hardly then have made a direct link between the tortious act and the pain; it does indicate the difficulty with the diagnosis of chronic pain syndrome. The majority decision of the Appeal Court refers to myofascial pain and fibromyalgia, both terms that are used with great frequency by physicians treating chronic pain sufferers, but neither really do more than put a name on an unidentifiable and unprovable condition.

Having concluded that Mrs. MacLeod was suffering from chronic pain syndrome, brought on solely by the accident, the Trial Judge then concluded that she was totally and permanently disabled and thus entitled to the type of pecuniary award that would flow from such a finding. For the first time in Nova Scotia, we have a finding and an award well in excess of $600,000.00 as a result of what at first glance appears to have been a very minor whiplash type injury.



of the Award

The question must be asked - what entitles a claimant to an award of the magnitude of Mrs. MacLeod's and separates her from the literally thousands of other claimants who suffer soft tissue injuries from motor vehicle accidents? The answer in a nutshell is credibility. There simply is no objective evidence and probably never will be to support permanent disability arising from chronic pain. The fact of disability is in the plaintiff's mind and is entirely tied to the patient's perception of the pain. In Mrs. MacLeod's case, her doctors did not contest the fact that the soft tissue injuries which she had suffered would have long since healed by the time of trial.

They also conceded that Mrs. MacLeod appeared to have a full range of motion in

virtually all her joints. However, because of the unidentified pain source, virtually all of Mrs. MacLeod's movements were associated with pain. It was not contested by the defence that the pain was not real to Mrs. MacLeod. Nobody suggested that she was an out and out malingerer, besides the chances of successfully defending a chronic pain case on the basis of malingering are virtually nil in Nova Scotia.

The fact of the matter was that Mrs. MacLeod believed the pain disabled her from virtually all her normal functions and most particularly her ability to work as a nurse. The sole issue for the Trial Judge then became whether he believed her when she stated that the pain was disabling. Unquestionably, Justice Moir did and the trial decision is replete with references to Mrs.


MacLeod's credibility. This was further enhanced by a number of family and friends who testified on her behalf as to her condition before and after the accident.

There is little doubt that the Trial Judge placed tremendous weight on the plaintiff's and associated witnesses' credibility even though at many points it clearly contradicted what would ordinarily be considered objective medical and other documented evidence to the contrary. In fact, the contradictions in some areas were so great that Justice Chipman went so far as to state that he had lost a degree of confidence in the Trial Judge's findings regarding credibility because of his failure to address the objective evidence.

Up until the MacLeod decision, defence counsel could usually be confident that objective medical or work-related documentation prepared in the normal course of business would be given at least as much weight as the plaintiff's subjective recollections about past events. Common sense tells us that persons inevitably will present a rosier picture of their past health and other negative experiences than may well be the case when they attribute their current problems to a compensatory event. Defence counsel could usually be confident that the medical records would rule the day where there was a direct conflict between the plaintiff's evidence and the written medical records. Not so now.

There is little point reviewing Mrs. MacLeod's extensive list of medical problems prior to the accident. They are set out and discussed in Justice Chipman' s dissenting opinion. The point is


that both the Trial Judge and the majority of the Appeal Court found that none of these had any bearing whatsoever on the plaintiff's chronic pain. Her verbal protestations of good health under oath overrode to a large extent the written medical record. Of particular concern to the defence was a finding that a written entry in Dr. MacKenzie's notes was in fact an error and the Trial Judge would not take cognizance of the condition diagnosed in those notes.

Dr. MacKenzie had diagnosed Mrs. MacLeod with potential arthritis only a few years prior to the accident. His chart contained a notation that Mrs. MacLeod had come to him complaining that she had suffered aches and pains in virtually all of the joints of her body for over a year prior to her consultation. He prescribed ASA (aspirin) for treatment and a subsequent chart note seemed to indicate that it was having a positive effect. Naturally, to defence counsel, complaints of joint pain all over the body for a period in excess of a year, (therefore well past the six month period to be classified as chronic pain) was something that appeared to be of great relevance. If Mrs. MacLeod was in fact suffering from chronic pain prior to the accident, how could the tortfeasor be responsible for the subsequent development of a condition which already existed?

The Trial Judge's answer was simply to rule that the note was wrong despite the fact that no evidence whatsoever was presented to dispute that fact other than Mrs. MacLeod's denial of a recollection of seeing Dr. MacKenzie for that complaint.


The Trial Judge did not make any reference to the Supreme Court of Canada decision in Aves v. Venner, (1971) 14 D.L.R. (3d) 4 S.C.C., which establishes the prima facie validity of such

medical records, nor did the Appeal Court majority. Justice Chipman made reference to the case and the fact that the diagnosis of arthritis would have to be taken into account in determining Mrs. Macleod's overall condition. However, his opinion did not rule the day.

The fact is, the MacLeod case now stands as a precedent in our courts for the proposition that a Trial Judge is entitled to dismiss written medical records, or presumably any other type of objective evidence, on the sole basis of the denial of the validity of the records by the plaintiff. Frankly, this could potentially create a tremendous problem for defence counsel in any personal injury case. If the records are not sacrosanct in their accuracy, or at the very least their prima facie validity, then what foundation can a defence be based upon? More on that later.

It appears that the reason Mrs. Macleod's past and post-accident medical history was not deemed of any relevance was the court's interpretation of Athey v. Leonati, 140 D.L.R. (4th) 235. That decision, which by now should be well known to every defence counsel in Canada, essentially upheld or extended, depending on your point of view, the proposition that a tortfeasor is responsible for all of the damages a plaintiff suffers, not only as a result of the tort itself, but as a result of the tort and/or any number of multiple other non-tortious causes. Justice Freeman quoted from Athey as follows:


It has long been established that a defendant is liable for any injuries caused or contributed to by his or her negligence. If the defendant's conduct is found to be a cause of the injury, the presence of other non-tortious contributing causes does not reduce the extent of the defendant's liability.

In other words, the fact that Mrs. Macleod had a number of other conditions was not a consideration since none of these had led, or in the Appeal Court's opinion was likely to lead, to permanent disability for Mrs. Macleod. Therefore, they could safely be ignored.

With respect, the Athey v. Leonati decision is not as clear as the majority of the Appeal Court purports it to be. There is no doubt that it can be interpreted to provide the liberal approach suggested by the Court and one must conclude that that is the interpretation that will be applied in Nova Scotia from here on in; however, as Justice Chipman points out in his dissent, the Supreme Court also included in the Athey case a lengthy analysis of how to apply the "but for" test. In other words, in assessing damages, one does not simply determine whether or not the tort was II cause of some of the plaintiff's problems and then assess damages on the basis of the totality of the plaintiff's situation. Justice Chipman focused on another quote from Athey in his dissent, wherein it is stated:

The essential purpose and most basic principle of tort law is that the plaintiff must be placed in the position he or she would have been in absent the defendant's negligence (the "original position"). However, the plaintiff is not to be placed in a position better than his or her original one. It is therefore necessary not only to determine the plaintiff's position after the tort, but also assess what the "original position" would have been. It is the

- 10-

difference between these positions, the "original position" and the "injured position", which is the plaintiff's loss.

In Justice Chipman's dissenting decision, he undertook the analysis of both the original position and injured position and concluded that Mrs. MacLeod's pre- and post-health problems, as well as marital and other work-related problems, had to be taken into consideration in determining what would have happened in her life, absent the accident. With respect to the majority of the court, I believe that Justice Chipman's position most accurately reflects Athey. It is simply not enough to dismiss non-tortious causes altogether on the basis that they are irrelevant because the tort caused some of the damage. However, it does appear that the law, at least in Nova Scotia, is that such information can safety be ignored as long as the Trial Judge makes the finding that the tort was a contributing cause.

If the Appeal Court's decision in MacLeod is troublesome for defence counsel in relation to its

findings regarding disability arising from chronic pain, it is at least equally as troubling in its analysis and award of general damages arising from chronic pain.

Perhaps no case has been quoted as often in Nova Scotia courts as Smith v. Stubbert, 117 N.S.R. (2d) 118, a decision written by Justice Chipman and concurred by Justice Roscoe, with a dissent by Justice Jones. In that case, an award of $100,000.00 for general damages for chronic pain was reduced to $40,000.00. The most controversial aspect of that case was whether or not it

- 11 -

attempted to set out a definitive ceiling for awards in chronic pain cases. Justice Chipman stated at p.127:

I have considered a number of recent cases involving damage awards for injuries not unlike those sustained by the respondent. Most are cases dealing with that small percentage of people who do not recover from soft tissue injuries of the neck but suffer long-term discomfort which almost invariably brings on emotional problems. Some of the cases dealt with other injuries in addition, and others dealt with injuries of a different nature but having the common feature of long-term chronic pain. No two cases are alike and even similar injuries will impact differently on different people. In the cases reviewed, the symptoms persisted and usually many doctors were involved in the treatment and/or assessment of the injuries. Each case was decided by a different court at a different time and a precise range of awards cannot, with precision, be laid down. In broad terms for such persistently troubling but not totally disabling injury is from $18,000.00 to $40,000.00.

The argument from plaintiff's counsel with respect to Smith v. Stubbert was inevitably that it did not apply in cases where there was severe or total disability as a result of chronic pain. However, in White v. Slawter 149 N.S.R. (2d) 321, the Appeal Court was confronted with this issue head-on. In that case, $100,000.00 had been awarded by the Trial Judge on the basis that the injuries for Mr. White were much more serious and that he was permanently disabled.

Justice Freeman, concurred in by Justices Roscoe and Pugsley, in discussing the issue of permanent disability and chronic pain, stated as follows at p.339:

- 12 -

As noted below, findings of total and permanent disability in the context of chronic pain syndrome are not absolute and can be considered little more than findings that the respondent is at the more serious end of the scale.

And later at p.349 in discussing the applicability of Smith v. Stubbert:

In Smith v. Stubbert, the initial injuries suffered by Mr. Smith, and his reaction to them, were generally similar to those of Mr. White. With respect, they were "not much more serious." In both cases, the soft tissue injuries had ceased to be a material factor in any long term disability. The issue in this case is, therefore, the same issue dealt with by Justice Chipman in Smith v. Stubbert: chronic pain syndrome. (Emphasis added). In any event, the terms "permanent" and "total" with respect to chronic pain syndrome lack the absolute quality they would have, for example, in the case of a spinal cord injury resulting in paralysis. Chronic pain syndrome in itself, when it is actually disabling, implies long term disability which may be substantial. A further finding of permanent total disability therefore adds little. Mr. White's chronic pain syndrome is similar to that suffered by Mr. Smith; in my view the cases cannot be distinguished on this basis. That is to say. the general damages suffered by Mr. White for pain and suffering and loss of amenities resulting from chronic pain syndrome should be considered within the range of non-pecuniary damages set forth in Smith v. Stubbert. The uPJ,Jer end of the range would contemplate severely disablin& pain and a prognosis that it would continue indefinitely. (Emphasis added).

With respect, this case could not be clearer that there was to be a cap for general damages for chronic pain syndrome regardless of the severity of that syndrome.

- 13 -

The ink was hardly dry on the White v. Slawter decision when the Appeal Court seemed to take a completely different tact in Dillon v. Kelly, 150 N.S.R. (2d) 102. Despite the fact that two of the three judges were the same as in White (Justices Roscoe and Pugsley), the decision with respect to general damages for chronic pain was completely different. Apparently ignoring the decision in White v. Slawter, Justice Pugsley proceeded to analyze Smith v. Stubbert on the basis that it dealt with severely troubling, but not totally disabling injuries and held that if the injury was disabling, the cap did not apply.

Justice Moir in his trial decision awarded Mrs. MacLeod $80,000.00 for general damages relying (quite rightly) on Dillon v. Kelly as authority that the cap did not apply to injuries of the type suffered by Mrs. MacLeod.

The majority decision of the Appeal Court upheld the award but with potentially troubling consequences. Justice Freeman stated:

More problematical is the $80,000.00 award for non-pecuniary damages. In Smith v. Stubbert (1993), 117 N.S.R. (2d) 118, this court held that the range for non-pecuniary general damages and chronic pain cases involving soft tissue injuries not considered permanent was $18,000.00 to $40,000.00.

No reference at all appears to White v. Slawter even though Justice Freeman wrote that decision as well. There can be little doubt that as of today, the Appeal Court has retroactively interpreted

- 14 -

Smith v. Stubbert as referring only to the less serious types of chronic pain. Justice Freeman upheld the award and stated:

However, it is not uncommon for future care or household assistance to be provided for under separate heads of damages in cases in which nonpecuniary awards appear low. No separate allowance was made for these factors in the present case.

This is indeed a troubling statement. It infers that one head of damages can be increased, perhaps beyond what precedent would allow, on the basis that other potentially allowable heads of damages were not claimed by the plaintiff. This raises the issue of how the Appeal Court or a Trial Judge could know whether these other claims were valid if they were never argued. With respect to cost of future care, the claim was not presented, one suspects, because Mrs. MacLeod had very little projected cost of future care. Being covered by a medical plan through her work, she was not faced with any long term bills for drugs or physiotherapy. Considering that the case was presented by very experienced counsel, one must assume that if there had been a valid claim, it would have been presented.

The reference to the housekeeping claim is clearly meant to anticipate Carter v. Anderson,

S.424/30, a judgment of the Appeal Court which specifically endorsed loss of housekeeping services as a separate head of damages. The difficulty is that the decision was made subsequent to Justice Moir's ruling in the MacLeod case. Plaintiff's counsel could hardly be expected to

- 15 -

have advanced a claim for a head of damages that was not recognized in law at the time the claim was made. The endorsement of the $80,000.00 award as being reasonable in light of subsequent events provides little assistance to defence counsel attempting to rely upon precedent as a basis for general damage awards.

Justice Chipman took a completely different point of view with respect to the general damage claim and would have reduced it significantly. In fact, he felt that the award was inordinately out of line and stated:

To allow this award to stand would sanction a process whereby trial judges could simply arrive at an award on a subjective basis without any regard for like cases.

Strong words; however, regretfully they appear to be accurate.

The MacLeod case will

unquestionably stand for the proposition that in determining general damage awards, the judge need not look so much at the actual physical injuries suffered by the plaintiff, but rather the manner in which the plaintiff reacted to those injuries. In other words, the plaintiff's subjective reaction to pain appears to be at least, if not more, important than the actual physical injuries themselves.

At the appeal, defence placed great reliance on the recent decision in MacPhail v. Desrosiers, (1997) 166 N.S.R. (2d) 81. The unfortunate Mrs. MacPhail's injuries are described in detail:

- 16 -

[120] In his report filed with the court Dr. David Petrie who treated the plaintiff outlined her injuries: ·She received a number of injuries, the most major being a compound fracture of her right patella and proximal right tibia, a right pneumothorax, a number of rib fractures, a significant head injury with a laceration to her forehead along with a fracture of the right fourth metacarpal. • After initial resuscitation in the Emergency Department, she was taken to the Surgical Intensive Care Unit for monitoring and to the operating room where a patellectomy was performed because of the extensive comminution of her knee cap. The extensor mechanism was repaired. The other injuries were attended to as indicated in the discharge summary. She also had plastic surgery by Doctor W. Caines to her face and right fourth metacarpal. She has been seen and followed through the clinic, and is managing reasonably well considering the nature of her trauma. She has an extremely stiff knee unfortunately, and I did manipulate it under anaesthesia in an attempt to regain a better range of activity. She was seen June 9, 1993 and her manipUlation was carried out a few days later.· [121] She spent 10 days in the hospital and then returned home where family members tended to her nursing needs. In May 1993, she started an extensive physiotherapy program along with an exercise program at home. [122] The plaintiff described to the court some serious difficulty she has had since the accident in regard to her memory. She said that she misses appointments, makes mistakes in dealing with everyday activities such as when to pick up her children or where to drop them off if taking them somewhere. She said her children have learned to deal with her memory problems and she has learned to frequently make notes to herself of things she must do. This has only happened since the accident. [123] The plaintiff also described the constant pain she has had in her right knee. She said that she is always in pain and that the more activity she does the more pain she gets.

- 17 -

Justice Maclellan awarded Mrs. MacPhail $75,000.00.

It was the defence's contention that if the precedent system means anything, that Mrs. Macleod's award would have to be reduced in the face of what Mrs. MacPhail received. No reasonable person looking at both sets of injuries could conclude that Mrs. Macleod's were worth more than Mrs. MacPhail's, or even as much. It was a perfect opportunity for the Appeal Court to abandon Dillon v. Kelly in favour of Smith v. Stubbert and White v. Slawter. Instead, they clearly abandoned Smith v. Stubbert. The Appeal Court has also inadvertently elevated pain and suffering as the most important element in awarding general damages.

Defending Chronic Pain Cases

The potential removal of objective medical and work-related information as a tool to reduce awards for chronic pain leaves very little in the defence arsenal. Essentially, each and every case can really be said to come down to credibility and not in the sense that lawyers generally think of it. Ordinarily, even if a person appears credible and believable to a trial judge, they will still take into account contradictory objective evidence in assessing the plaintiff's overall evidence. In fact, Justice Chipman went as far as to say the failure to do so constitutes an error so great that it would allow an Appeal Court to disregard findings of credibility, something rarely ever done by Appeal Courts. However, findings of credibility, as now endorsed by the majority

- 18 -

decision in the Appeal Court, would permit trial judges to place the believability of the plaintiff or other witnesses over and above any other objective evidence.

About the only way to attack the plaintiff's credibility would be to obtain uncontrovertible evidence of deceit. The most usual source for this is surreptitious videotape, although it can also be obtained through other lay witnesses. However, it must be kept in mind that if medical charts and doctor's notes can be ruled incorrect, then a trial judge could probably also easily explain away even the most damning videotapes - if the plaintiff was found to be credible.

The MacLeod case is interesting for another point which I will briefly touch on - the use of physicians to bolster credibility. Up until the MacLeod case, courts have consistently held that the trial judge is the sole determiner of a plaintiff's credibility and that a physician's opinion as to whether the client is telling the truth about their subjective pain is irrelevant. MacLeod appears to specifically overrule that and now endorses the role of family physicians and specialists. Justice Freeman states at p.23:

The credibility of the complainant, whose testimony is necessarily subjective, assumes a duel role, both in testimony before the trial judge and as a major source of the facts upon which the expert opinions may be based. Techniques for assessing the complainant's evidence must be employed by the expert as well as the trial judge who must evaluate the effectiveness of the expert's methods.

- 19 -

In Mrs. MacLeod's case, the doctors readily admitted that they were relying entirely on her assessment of her pain in determining that she was disabled. Defence counsel pointed out that the fact that a patient stated that they believed they were unable to work could not constitute medical proof of same when the doctors simply repeated that in a medical report. However, it appears that the acceptance by the doctor of the sincerity of the patient's complaint in this regard now may constitute "objective" evidence on its own. With respect, this constitutes a vast retreat from the usual treatment of medical evidence before the courts and stretches the definition of what constitutes true medical evidence to its very limits.

The ability of the plaintiff to rely upon their physician's belief in the genuineness of their subjective complaints may allow defence counsel to use much broader techniques in independent medical examinations for determining credibility. In the case of chronic pain and soft tissue injuries, instead of focussing on the physical, it may be more appropriate to have the examining physician put the plaintiff through a battery of tests specifically designed to look for valid or invalid indications of pain behaviour.

- 20-

Consequences of the MacLeod Decision

Every time there is a major increase in awards for plaintiff's, the insurance industry inevitably speaks out, usually accused of crying wolf. However, I believe that the MacLeod decision and others which will inevitably follow do present certain inherent difficulties, not only to insurers, but to the purchasers of insurance - you, me and everybody else. The first and most obvious is that there are going to be more and more under-insured motorists. While the ordinary person on the street has no difficulty envisaging a major award for a head-on collision that causes brain damage or paraplegia, they do have great difficulty envisaging awards of the same magnitude for what, to them, are simply minor fender-benders resulting in no visible physical damage to the plaintiff. If these types of minor collisions are going to lead to major awards, consideration perhaps should be given to raising the minimum limits to $500,000.00 or even $1,000,000.00. A failure to do so could result in catastrophic consequences to certain individuals. Nobody has any particular sympathy for an insurance company paying out $600,000.00 or $700,000.00 for a chronic pain award, but the position might not be the same if the award arose in the context of a family carrying only $200,000.00 in insurance, who lost their home and life savings as a result of such an award.

A second potential consequence of large awards for soft tissue injuries is the inevitable cry for no-fault insurance. If Mrs. MacLeod had been injured in almost half of the Canadian provinces, she would have been entitled to very little or nothing for her claim. It hardly seems fair that by

- 21 -

simply crossing an invisible provincial boundary that a plaintiff can go from having no claim to a large one.

Undoubtedly, if the MacLeod decision results in a spate of half million dollar plus awards arising from whiplash type injuries, there will be renewed discussion of no fault and an often related topic, collateral benefits. Mrs. MacLeod, as a nurse, was covered for loss of income through a disability plan in place at work. She is currently pursuing payment under this policy. If she is successful, she will not only recover a great extent of her losses through the disability plan, but will have received double payment from the courts who have long held that collateral benefits are not to be taken into account in determining damage awards. However, the reality is that society does bear the costs of double recovery in paying increased premiums, both for the disability insurance and for private auto insurance. While moving to a no fault system might not be in the cards in the immediate future, legislation to prevent double recovery might well be.

The MacLeod decision must be considered in the context of other recent decisions from the Appeal Court. These include Carter v. Anderson, which clearly laid out an entirely new head of damage for loss of housekeeping services which potentially could be claimed in almost every personal injury case. A second decision of note is Tlwmpson v. Nova Scotia (Registrar of Motor

Vehicles), C.A. #126240, wherein the Appeal Court raised a trial judge's $12,000.00 award for a soft tissue injury to $25,000.00, thus effectively doubling general damage awards for mild to moderate injuries. Finally, one must consider that the Appeal Court has not reduced a single

- 22 -

personal injury damage award since White v. SlawteT. It has raised awards in the Thompson case as noted and in Dillon v. Kelly (by way of a cross appeal).

The message by now should be clear to defence counsel and insurers - Nova Scotia can now be considered among the most liberal and generous jurisdictions in Canada when it comes to damage awards for personal injury cases.

Suggest Documents