Gibson v. Julian, (2016) 368 N.S.R.(2d) 358 (SC)

• Judge: Chipman, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: January 12, 2016
• Jurisdiction: Nova Scotia
• Citations: (2016), 368 N.S.R.(2d) 358 (SC);2016 NSSC 15

Gibson v. Julian (2016), 368 N.S.R.(2d) 358 (SC);

    1160 A.P.R. 358

MLB headnote and full text

Temp. Cite: [2016] N.S.R.(2d) TBEd. JA.021

Debra Gibson (plaintiff) v. Mary R. Julian (defendant)

(Hfx. No. 425438; 2016 NSSC 15)

Indexed As: Gibson v. Julian

Nova Scotia Supreme Court

Chipman, J.

January 12, 2016.

Summary:

The parties' were each the sole driver\occupant of their respective vans, which were involved in a low speed accident in an intersection. Liability and damages were in issue.

The Nova Scotia Supreme Court found the defendant 100% liable for the accident. The court held that the plaintiff had sustained a "minor injury" and awarded her the "Cap" amount of $7,956 general damages, plus special damages of $2,275.03 (damages to her van), $7,500 for loss of valuable services and $1,850 in prejudgment interest.

Damage Awards - Topic 491

Injury and death - General damage awards - Loss of valuable services - [See third Damages - Topic 1501 ].

Damages - Topic 106

General principles - Evidence and proof - Onus of proof - [See second Damages - Topic 1501 ].

Damages - Topic 1501

General damages - General principles - General (incl. cap or ceiling on) - The Nova Scotia Supreme Court stated that "When I examine the legislation, I note the most significant changes between the Old Cap and New Cap as follows: 1. An increase in general damages for 'minor' injuries to $7,500 (with indexing this amount is currently $8352); 2. The presumption that an injury is 'minor' has been removed; 3. The definition of 'minor injury' has been narrowed to only include sprains, strains, or whiplash-associated disorder injuries caused by the accident, that do not result in 'a serious impairment'; and 4. Serious impairment is now defined as an impairment of a physical or cognitive function, ongoing since the accident and not expected to improve substantially, resulting in the substantial inability to perform any or all of the following: a. the essential tasks of one's regular employment, occupation, or profession, despite reasonable attempts at accommodation; b. training or education (either enrolled or accepted) despite reasonable attempts at accommodation; or, c. the normal activities of the claimant's daily living." - See paragraph 73.

Damages - Topic 1501

General damages - General principles - General (incl. cap or ceiling on) - The Nova Scotia Supreme Court stated that "Whereas ... the Old Cap overtly states that the plaintiff bears the onus (Regulation 6) and the New Cap has no such language, I do not accept it therefore follows that the defendant must prove whether a plaintiff has sustained a minor injury. Indeed, the New Cap states that the Governor-in-Council may make regulations respecting the onus of proof relating to minor injuries (s.113E(7)(g)); no such regulation has been made. Absent specific reverse onus wording from the Legislature, I am not prepared to accept that it is for a defendant to marshal evidence to, in effect, prove a negative. Rather, it is my determination that when it comes to the New Cap the standard remains the same. That is to say, she who asserts must prove (on a balance of probabilities)." - See paragraphs 75 to 77.

Damages - Topic 1501

General damages - General principles - General (incl. cap or ceiling on) - The parties were involved in a low speed accident in an intersection - The Nova Scotia Supreme Court found that: the plaintiff suffered a whiplash injury and cervical sprain as a result of the accident; she was off work for six weeks on account of her accident related injuries; and, since she had returned to work, she had significantly recovered from her accident related injuries - The court found that while she continued to experience flare-ups of headaches, her chronic headaches were not related to the motor vehicle accident but arose from stress related issues - This was a "crumbling skull" situation - It was not shown that, but for the accident, the headaches would not have occurred - Rather, the plaintiff's headaches were present before the accident and would have continued (in the manner they had) without the accident having occurred - Furthermore, the plaintiff's headaches did not constitute a "serious impairment" as contemplated by s. 113E(1) of the Insurance Act (the New Cap) - Having regard to the applicable regulations, the headaches did not result in a substantial inability of the plaintiff to perform the essential tasks of her regular employment, or normal activities of daily life - In the result, her injuries were a "minor injury" as defined by the New Cap and the applicable regulations, such that the maximum recoverable at the time of the accident was $7,956 - The court was also satisfied that the plaintiff had endured a modest loss of valuable services, which it quantified in the amount of $7,500 - See paragraphs 78 to 91.

Damages - Topic 1549

General damages - General damages for personal injury - Impairment of earning capacity - The parties' were each the sole driver\occupant of their respective vans, which were involved in a low speed accident in an intersection - The Nova Scotia Supreme Court did not find that the plaintiff had sustained a loss of earning capacity - She continued to work at the same library in the same capacity (library assistant 3) as she did before the accident - To the extent that she had aspirations to move up within the library system but could not do so, the impediment related to her lack of relative seniority and not accident related sequelae - See paragraphs 94 to 96.

Insurance - Topic 5010.4

Automobile insurance - Compulsory government schemes - General - Nonpecuniary loss - Limitations on - [See all Damages - Topic 1501 ].

Torts - Topic 438

Negligence - Motor vehicle - Rules of the road - Intersections - Entering - Yield or stop sign - The parties were involved in a "T-bone" collision at an intersection - The front of the plaintiff's vehicle struck the passenger side of the defendant's vehicle - The Nova Scotia Supreme Court found that both parties were attempting to drive straight through the intersection when the accident occurred - At the time, the defendant was disoriented and confused - She had missed her intended exit and found herself at an unfamiliar intersection - The court held that the defendant had compromised peripheral vision and she drove through the intersection without regard to her stop sign or the plaintiff's van - The plaintiff's van arrived at the intersection first and the plaintiff was slowly beginning to drive through the intersection when the collision occurred - The defendant proceeded through the intersection without properly checking to her right (where the plaintiff was situated) - Her compromised peripheral vision let her down and she was struck by the plaintiff, who had come to a proper stop at her sign and was slowly beginning to drive through the intersection when the accident happened - The court found the defendant 100% liable - See paragraphs 23 to 28.

Cases Noticed:

B.M.G. v. Nova Scotia (Attorney General) (2007), 260 N.S.R.(2d) 257; 831 A.P.R. 257; 2007 NSCA 120, refd to. [para. 82].

Clements v. Clements, [2012] 2 S.C.R. 181; 431 N.R. 198; 331 B.C.A.C. 1; 565 W.A.C. 1; 2012 SCC 32, refd to. [para. 83].

Sparrowhawk v. Zapoltinsky (2012), 531 A.R. 10; 2012 ABQB 34, refd to. [para. 86].

Benc et al. v. Parker et al. (2012), 536 A.R. 145; 559 W.A.C. 145; 2012 ABCA 249, refd to. [para. 86].

Monk v. Duffy (2008), 273 N.S.R.(2d) 106; 872 A.P.R. 106; 2008 NSSC 359, refd to. [para. 90].

Mawdsley v. McCarthy's Towing & Recovery Ltd. et al. (2010), 291 N.S.R.(2d) 229; 922 A.P.R. 229; 2010 NSSC 168, refd to. [para. 95].

Newman et al. v. LaMarche and Black (1994), 134 N.S.R.(2d) 127; 383 A.P.R. 127 (C.A.), refd to. [para. 95].

Statutes Noticed:

Insurance Act, R.S.N.S. 1989, c. 231, sect. 113E [para. 69].

Motor Vehicle Act, R.S.N.S. 1989, c. 293, sect. 122 [para. 22].

Counsel:

Glenn E. Jones, for the plaintiff;

Donald V. Keenan, for the defendant.

This case was heard in Halifax, N.S., on December 1 and 2, 2015, by Chipman, J., of the Nova Scotia Supreme Court, who delivered the following decision on January 12, 2016.