The plaintiff suffered a whiplash injury and was absent from work for several weeks following what the Court described as “a relatively minor rear end collision” in February 2009. The main issue in dispute was whether the plaintiff’s chronic pain condition resulted from the motor vehicle accident.
After approximately three weeks of trial, the jury returned a verdict and awarded $42,500 for general damages, $76,121 for lost income prior to trial, and $0 for loss of future income. The Court noted that it was evident from the decision that the jury had accepted the arguments advanced by the defence.
The Court noted that
The Court noted that “the
As a result of the reduction for the statutory deductible, the net general damages award totalled $4,266.67 ($5,760 with
Past Loss of Income
On the issue of past loss of income, due to the Court’s determination that the defendants were entitled to $76,200 in collateral benefits credits against the amount awarded by the jury, the award was reduced to zero, as the credits exceeded the sum of the jury award. Specifically, credits were provided for Income Replacement Benefits, LTD monies and the income earned by the plaintiff in the first year after the accident.
The Court stated that the outcome was “disastrous” for the plaintiff and would “only have been worse had [it] granted the threshold motion.” Notably, the Court commented that the outcome illustrated the legislative intention for only the most significant tort claims not be eliminated and “injured motorists be largely confined to claiming no fault benefits under their own insurance policies.” Moreover, this case provides an example of “how annual indexing of the monetary threshold for unreduced general damages and annual indexing of the deductible” may, at first glance, result in unreduced general damages being mostly unattainable. Interestingly, the Court noted that over the past several years, jury awards of general damages greater than $130,000.00 are the exception in this jurisdiction.
As noted above, reference was made to the Court of Appeal’s decision El-Khodr v. Lackie, which is the subject of a leave to appeal application before the Supreme Court, as well as the upcoming five-judge Court of Appeal panel in