Accident Victim’s Claim Capped by Nova Scotia’s “Minor Injury” Law – Awalt v. Blanchard

by John McKiggan

The $2,500.00 cap on so called “minor injuries” that was introduced in Nova Scotia in 2003 is still having ramifications to innocent victims 7 years later.

The recent decision of Awalt v. Blanchard is a case in point.

Linda Awalt is a 52 year old personal care worker who was injured in a car accident in September 2004.

Mr. Awalt claimed that, as a result of her injuries from the accident, she suffered a tear to the rotator cuff in her left shoulder. She required surgery to repair the injury which prevented her from being able to work for 9 months after her shoulder surgery.

The defendants claimed that the impact of the collision was insignificant and not severe enough to have caused the rotator cuff injury to Ms. Awalt’s shoulder.

In his reasons, Justice Coady stated at paragraph 68:

“I have carefully reviewed all the evidence of the 2004 accident and the events that followed. When Mr. Blanchards truck entered the intersection Ms.
Awalt followed and stopped. He turned left and she started to follow him. He suddenly stopped and backed up into her vehicle. The evidence clearly establishes that Ms. Awalt was moving slowly (10km) when contact occurred. While the speed of the truck is not in evidence, I have concluded that its speed was relatively slow. The damage to Ms. Awalt’s vehicle was minimal. The truck had only limited space to pick up speed. Ms. Awalt’s vehicle was pushed back one car length. At no time was Ms. Awalt subjected to a forceful or jarring impact with the interior of her vehicle. In making these remarks I am well aware that serious injuries can result from low speed collisions.”

Justice Coady went on to determine that Ms. Awalt did indeed suffer “whiplash” injuries in the car acident. But the injuries were not serious enough to get over the “minor injury” threshold.

Justice Coady concluded that:

“Ms. Awalt’s whiplash injury is caught by the minor injury regulations which were enforced on September 20, 2004.”

As a result, Justice Coady concluded that the plaintiff’s injuries caused by the accident were minor and that her award for compensation for non-pecuniary damages (pain and suffering) should be capped at $2,500.00.

MIST Defence

What Ms. Awalt ran up against is what is commonly referred to as the “Minor Injury Soft Tissue” (MIST) defence.

Essentially the defence argues that the impact of the motor vehicle collision was so insignificant that the forces involved could not have possibly caused the injuries suffered by the plaintiff. Some jurisdictions also refer to this as the “no crash, no cash” defence.

How to Prove MIST Claims

In light of Justice Coady’s decision I think it might be useful to provide some comments on how to deal with MIST cases:

Know the scientific and medical literature: Insurance companies will argue that the force of the impact was not sufficient to have caused the type of injury that the plaintiff suffered. We need to be familiar with the medical literature and scientific literature that has conclusively established that even comparatively insignificant collisions can cause serious lasting and significant injuries.

Inspect the Vehicles: An insurance company’s estimate of the physical damages may not be an accurate estimate of the true force involved in the collision because of “hidden damage”. (In other words, damages to the vehicle that cannot be seen without the car being pulled apart, the bumper being taken off etc.)

Sometimes insurance estimates are low because the plaintiff was driving an older car that is a total loss. Make sure the client gets an independent estimate from a body shop to confirm that you have an accurate picture of the full extent of the damages to the vehicle.

Talk to the Family Doctor: In MIST cases the treating physician, usually the family doctor, is going to be the most important witness. The doctor needs to know what type of defence the insurance company is going to raise and the types of arguments that are going to be made to limit the injured victim’s compensation.

Family doctors are all extremely busy but it is worth while paying the doctor for an appointment to discuss the client’s claim and to specifically educate the doctor about the minor injury legislation and the threshold that the plaintiff is going to need to meet in order to receive full and fair compensation.

Further Resources:
Common errors in determining impact speed and occupant injury propensity.

Settling and Trying MIST Cases

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I have been representing victims of serious personal injuries for 18 years. I wrote Crash Course:The Consumers Guide to Car Accident Claims in Nova Scotia to help educate car accident victims and their familes so they can have a better chance of receiving full and fair compensation.

Crash Course is available for sale on Amazon.

But if you live in Atlantic Canada, you can get a free copy of the book by contacting me through this blog, visiting my website at www.apmlawyers.com or by calling me toll free in Atlantic Canada at 1-877-891-1664.

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