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Halifax Man Injured in Car Accident Goes to Trial

Victor Lewin - Thursday, September 01, 2011

Earlier this summer, the Court of Nova Scotia released a decision in Hayward v. Young. The case stemmed from an April 5, 2003 car accident. The plaintiff was driving in Halifax when he was without warning T-boned at the driver's side door by another vehicle. He got out of the vehicle with some difficulty as the door was crushed in and the window shattered.

The collision caused him to strike his head against the window and he was subsequently disoriented and nauseous. In the days that followed, the accident victim became stiff and sore. He was going through a significant amount of pain and had difficulty moving his neck. The neck pain later developed into persistent migraine headaches.

In 2006, he underwent an MRI of the brain, which revealed some residual scarring to the inferior frontal lobe.brain_mri_sagittal_t1_001.jpg

The Plaintiff commenced a lawsuit for the car accidentagainst the driver who caused the accident. He asked for compensation for the physical injuries and also alleged that he had suffered a brain injury as a result of the car accident.

At trial, the defendant was represented by his insurance company. He admitted being at fault for the accident but denied responsibility for a brain injury.

As a teenager, the Plaintiff was assaulted on a sidewalk in downtown Halifax. He remained unconscious for a half hour. Medical records reveal that four days later he still could not remember the event. The insurance company's lawyers argued that if the Plaintiff had sustained a traumatic brain injury, it was as a result of the assault many years earlier, and not the car accident.

The Plaintiff himself testified that following the accident he had memory problems and found himself to be moody, irritable, short of temper, and chronically tired. He also said that he had difficulty meeting performing work tasks and would miss project time lines.
In determining the test to be used in assessing causation, the Judge cited the following words from the Supreme Court of Canada:

Much judicial and academic ink has been spilled over the proper test for causation in cases of negligence. It is neither necessary nor helpful to catalogue the various debates. It suffices at this juncture to simply assert the general principles that emerge from the cases.

First, the basic test for determining causation remains the "but for" test. This applies to multi-cause injuries. The plaintiff bears the burden of showing that "but for" the negligent act or omission of each defendant, the injury would not have occurred. Having done this, contributory negligence may be apportioned, as permitted by statute.

This fundamental rule has never been displaced and remains the primary test for causation in negligence actions. As stated in Athey v. Leonati, at para. 14, per Major J., "[t]he general, but not conclusive, test for causation is the 'but for' test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant". Similarly, as I noted in Blackwater v. Plint, at para. 78, "[t]he rules of causation consider generally whether 'but for' the defendant's acts, the plaintiff's damages would have been incurred on a balance of probabilities."

The "but for" test recognizes that compensation for negligent conduct should only be made "where a substantial connection between the injury and the defendant's conduct" is present. It ensures that a defendant will not be held liable for the plaintiff's injuries where they "may very well be due to factors unconnected to the defendant and not the fault of anyone": Snell v. Farrell, at p. 327, per Sopinka J.

Various medical doctors testified on the nature of the plaintiff's injuries and their views on causation. After hearing the expert opinions, the court ultimately concluded that the plaintiff had not proven that "but for" the accident he would have no brain injury. The Court found that the prior assault was deemed to be the most likely explanation for the scar tissue shown in his 2006 MRI.

However, the court did accept that Mr. Hayward suffered soft tissue injuries that developed into a chronic pain problem as a result of the accident. The Court awarded $120,000 for pain and suffering. In addition, the Court awarded the Plaintiff all his out-of-pocket expenses, $10,000 for future care, plus interest on all the awards.

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