Nova Scotia has long had caps on the amount of damages that accident victims can recover for injuries sustained in personal injury accidents. If you are in an accident, it is vital to understand how these caps work, how they can limit your recovery, and how to ensure that you do not hurt your own case by failing to get proper medical attention after an accident.
Remember that these special rules apply only to car accidents. They do not apply to other kinds of injuries, such as falls, malpractice, or other injury cases.
Damages Affected and Limited by Caps
Nova Scotia laws define the types of injuries that are considered minor, and limit what a victim can recover in cases in which only a minor injury is sustained. These limitations are called “caps.”
A cap is a maximum limit that can be legally awarded to a victim. The compensation that someone can receive for what are known as non-pecuniary damages (sometimes also called non-monetary damages) are now capped at $8,579, although the maximum amount changes regularly.
These are damages that generally cannot be counted numerically, or damages for which there is no out-of-pocket expense attached.
Non-monetary damages can include suffering, pain, anxiety, mental distress, and loss of the quality of or enjoyment of life. These all have a value but not a specific dollar attached to them. They are open to greater interpretation by a jury. It may be fair to think of them as “qualitative” damages, as opposed to damages that are “quantitative.”
Because there is no obvious “price tag” attached to these kinds of damages and no agreed upon way to count them, it can be hard to speculate what a jury or court will or will not award. If a victim shows that because of her injury she no longer can ever jog in the morning the way that she used to, and she has anxiety every time she is at an intersection in her car, one court may find these losses worth $10,000 and another worth $1 million.
Governments (and lobbyists for businesses and insurance companies) often seek to cap damages on these kinds of losses, to avoid inconsistent verdicts, or those that are considered to be “runaway juries,” a term used to describe jurors who award more than what businesses and insurance companies want to pay.
Contrast non-monetary damages with monetary damages, which can be counted or quantified. For example, things like medical bills, lost wages, or even the cost of future medical procedures are monetary.
Definitions of Minor Injury
As a general rule, anything related to whiplash will be considered a minor injury. Medically, this can include muscle strains and sprains, which are common injuries that result from car accidents (although these injuries can occur in the lower back as well as the upper back).
This, however, is not the end of the analysis because even these whiplash type injuries can be considered more than minor if they result in what is known as a “serious impairment.” Nova Scotia law provides some guidance as to what serious impairment is and how it is evaluated.
To be a serious impairment, the victim must show a “substantial inability” to perform any or all of the following:
- The tasks of someone’s employment, even after efforts are made by the employer to accommodate the victim’s injuries
- The tasks of someone’s training or education even after efforts are made to accommodate the victim’s injuries.
- The activities of the victim’s daily living
First, it is important to note that the law specifies that “any or all” of these categories must be met. That means that to qualify as a non-minor injury, only one of these three categories needs to be proven.
The first two categories are often documented by employers or in employee files (or by an educational institution).
In some cases, it may be obvious that someone cannot return to his or her previous employment. For example, someone who was a truck driver and has sustained a serious lower back strain would likely be considered to have a substantial inability to perform his or her job. Sitting for so many hours in the cabin of a truck may not be physically possible for that person, and there are no accommodations an employer can make in such a situation.
The third category can be more difficult to prove. Activities of daily living include the ability to manage one’s own finances, shop, maintain a home in a safe and sanitary way, take care of personal finances, and take care of one’s own medical needs.
Victims may need to be very careful to document how their daily lives are affected by their injuries, and the testimony of friends and family members will become important. Remember that the statute says there must be a “substantial inability” to perform these activities. This does not mean they have to be impossible to do by the victim, but it is still a high threshold.
Practical questions that victims may want to ask themselves are whether they are able to do laundry, make the bed, walk the dog, sweep the floor, cook dinner, and do the regular activities of their lives on a day to day basis.
Victims should always give truthful testimony when discussing how injuries affect their ability to do daily chores or perform their jobs, and refrain from exaggeration. Insurance companies routinely will put surveillance on victims to see if they are going to work, walking the dog, carrying groceries, or doing anything that the victim is claiming that he or she is incapable of doing.
If someone has suffered a whiplash type injury that is so serious that he or she cannot work or perform the activities of daily life, the injury sounds like it is non-minor, and thus, the damage cap will not apply. However, there is yet another step in the legal analysis: The whiplash injury must be a primary cause of the substantial inability to work or perform the activities of daily life.
This sounds like it would be obvious, but causation can present problems for people with injuries that pre-date the accident or people with pre-existing disability or disease. In our example of the truck driver, assume he or she had a herniation in the lower back many years before the current accident, or has a history of arthritis. The insurance company will argue that the reason why the truck driver cannot drive has nothing to do with the sprain/strain sustained in the accident, but rather is caused by the pre-existing problems.
In people who allege that they cannot perform the activities of daily life, the insurance company will argue that the victim may not have been able to perform those activities even before the accident, and thus, it is not the sprain/strain causing the inability to perform the victim’s daily activities.
This does not mean that someone with a pre-existing injury, or pre-existing disability or disease can never recover damages if they suffer a whiplash or sprain/strain. It just means that their injury lawyer must do a careful job demonstrating that the victim’s problems were caused by the accident.
Some things that a diligent injury law firm can do include gathering medical evidence and records not just from the current accident, but from the accidents the victim suffered in the past.
Nova Scotia courts have held that a victim’s belief that injuries were caused by an accident, and that the injuries did not pre-date the accident, is not sufficient evidence by itself to show causation.
Minor and Non-Minor Injuries Combined
As anybody who has been in an accident knows, a large percentage of car accident victims do not suffer just one type of injury. They may have multiple injuries, and some of those injuries may be minor and non-minor. For example, someone may have both a cervical strain, which is minor, and a torn rotator cuff in the shoulder, a non-minor injury.
Nova Scotia law says that these injuries need to be considered separately. If a victim suffers both minor and non-minor injuries, the victim can only recover the capped damages for the minor injury, but can, in addition to the cap, recover additional damages for the non-minor injury.
The Nova Scotia Insurance Act contains additional definitions that help determine whether an injury is considered minor or not. One area where an injury will not be considered minor is when there is “permanent serious disfigurement.”
This can be a difficult category to fully define. For example, some types of disfigurement may not be readily observable, but can still be considered to detract from someone’s appearance.
Take someone who has a finger severed. A hand with four fingers may not be readily observable to everyone, and may not even be considered to detract from someone’s overall physical appearance. However, the loss of a finger is certainly permanent and serious.
Contrast this with someone who suffers only a minor small scar on his or her finger, which certainly is not serious, and may not even qualify as a disfigurement. Of course, many definitions depend on circumstances. What if the person who has a small hand scar is a beauty queen or fashion model? What if the loss of a finger causes someone to lose the inability to pick up their infant?
The Obligation to Seek Treatment
Many people delay, do not follow doctor’s orders and recommendations, do not attend therapy sessions, or otherwise disobey or ignore a doctor’s recommendations after an accident. Some may think they are OK, or just do not want to deal with the “hassle” of getting medical treatment. Nova Scotia’s injury laws punish victims who make these errors.
If a victim has an injury that is otherwise considered major, but the victim did not seek treatment or follow medical recommendations, the injury will be considered minor if the injury was made worse (that is, made into a major injury) because of the failure to follow medical recommendations.
This means that many court cases may hinge on hypothetical situations when victims do not get the treatment they need. Experts may be needed to testify as to what injuries or disabilities could have been avoided and which would have happened anyway, had the victim obtained medical treatment.
Treatment is also important because in many cases, injuries that seem minor at first may end up being non-minor. For example, the definition of a minor injury (which will mean the damage cap applies), clearly includes a sprain/strain to the neck after a whiplash-type injury. However, a herniated disc, an associated but more serious injury, is often confused with a sprain/strain, and in fact, many people initially diagnosed with sprains in the cervical or lumbar region of the back end up in fact having injuries to the discs in the spine.
Someone who does not get medical care may never discover that they in fact have a herniation, and not just a strain. Because a herniated disc could take an injury out of the category of “minor injury,” the distinction between these injuries in a given victim becomes very important in an automobile accident case.
Burdens and the Courts That Hear Minor Injury Cases
Parties can agree before a case is even filed that injuries are minor. However, in most cases, accident victims can expect to get disagreement from the other side if they allege that their injuries are major or significant.
In cases where the parties dispute whether the injury is minor or not, or where there may be disputes over the victim’s diligent pursuit of medical care, the default legal position is that the victim’s injuries are minor. This means it is assumed that the injury is minor until and unless the victim demonstrates that the injury is not minor. This puts the burden on the plaintiff to demonstrate that the injuries are not minor.
Victims must be diligent about pursuing treatment, and getting the medical attention they need as soon as possible after an accident. Victims also may have to be patient, to see if an otherwise minor injury becomes something major down the line, if the injuries do not heal as anticipated.
Effects of Minor Injury Laws
Victims can anticipate constant challenges not just to the severity of injuries, but to whether the injuries pre-dated the accident, in efforts to cap damages, and many liable parties will try to argue that major injuries are in fact minor. Victims may have to wage legal war on two fronts—one to determine whether the injury is minor, and the other to determine the common issues in any injury case, such as who is negligent.
Do not navigate Nova Scotia’s injury system by yourself. The lawyers at Preszler Injury Lawyers can help explain what you can expect, and can assist you in obtaining the damages that you deserve if you are injured in any kind of accident. Call today to speak with one of our lawyers.