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WARNELL V. CUMBY – NEW NOVA SCOTIA CAP CASE

Victor Lewin - Saturday, May 06, 2017

The Supreme Court of Nova Scotia has had the opportunity to apply the new “CAP” legislation in Nova Scotia. In Nova Scotia, legislation provides that if you are injured in a motor vehicle accident on or after April 28, 2010 and you suffer injuries deemed to be minor, pain and suffering is limited to $7,500.00 (adjusted annually for inflation). A minor injury is one that is classified as a sprain, strain or whiplash injury that does not result in a serious impairment and does not cause a substantial inability to perform the essential tasks of one’s work, education or activities of daily living.

In Warnell v. Cumby, the husband and wife Plaintiffs were driving home from their camp on July 16, 2010 on Highway 10 near New Germany, Nova Scotia. The defendant David Cumby was driving above the posted speed in an oncoming lane of traffic when he failed to negotiate a sharp turn and hit the Plaintiffs’ vehicle head-on.

The main issue to be decided at trial was whether the Plaintiffs injuries were minor and fell under the CAP legislation.

Mr. Warnell’s initial complaints to his family doctor following the collision were left shoulder, left neck and left shoulder pain.

On July 27, 2010, Mr. Warnell had attended South Shore Regional Emergency stating that he had tripped while getting up from a chair and fell over a fire pit into a wood pile. Complaints at this visit were a cut elbow, sore right leg and both wrists. He had no complaints of wrist pain in his medical records until this emergency visit. On August 24, 2010, Mr. Warnell was diagnosed with Tendonitis of both wrists.

Justice Robertson found that Mr. Warnell’s injuries were soft tissue injuries in nature and did not result in serious impairment. Mr. Warnell returned to work deemed as medium to heavy nine months following the accident. As of the date of trial, he continued to work full time. Justice Robertson also found that the wrist injury was likely a pre-existing medical issue and that the fall into the fire and possibly the MVA re-aggravated his wrist condition. Lastly, the Judge found that Mr. Warnell refused surgical intervention, got along fine with a wrist splint and was in a more senior position at work than at the time of the collision leading her to the conclusion that the wrist injury was minor.

Based on these findings, Justice Robertson found Mr. Warnell’s case fell within the CAP legislation.

Mrs. Warnell, the second Plaintiff in the action, attended the South Shore Regional Hospital Emergency Department following the collision. At this time, she complained of neck, shoulder and back pain following the collision. She took five months off work initially from her job as a Personal Care Worker. She eventually retired in October 2011 due to hip pain. Mrs. Warnell did not complain of hip pain until July 20, 2011. Over a year following the collision, a labral tear was discovered in Ms. Warnell’s hip.

The only expert called at trial to give opinion evidence was Dr. Michael Gross, orthopaedic surgeon. It was Dr. Gross’ opinion that Mrs. Warnell’s neck and back pain resolved within a year of the collision. Dr. Gross felt that Mrs. Warnell’s hip injury was a degenerative condition not caused by the accident.

Given the above, Justice Robertson found Mrs. Warnell’s hip pain was not related to the accident. Mrs. Warnell was awarded the Cap amount at $7,500.00 for her pain and suffering. Mrs. Warnell was however, awarded $15,000.00 for valuable services.

The court has reiterated it is the injured party’s responsibility to convince a judge that it is more likely than not the Defendant caused the Plaintiff’s injuries. It should be noted that no expert was called on behalf of the Plaintiffs in this case to provide an opinion on whether the injuries at issue were caused by the motor vehicle accident.

If you or a loved one have been injured in a motor vehicle accident and are unsure what you can claim for, our lawyers at Wagners can help you. Call us at 902-425-7330 or 1-800-465-8794. 

 

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