N.S. Court of Appeal Upholds “Minor Injury” Cap award: Awalt v. Blanchard

by John McKiggan

Almost two years ago I wrote about the trial decision in Awalt v. Blanchard: Accident Victim’s Claim Capped by Nova Scotia’s “Minor Injury” Law

Ms. Awalt was injured in a car accident in 2004. She returned to work shortly after the accident. A few years later she underwent surgery to repair a torn rotator cuff which she claimed was injured in the car accident.

The trial judge, Justice Coady found no causal connection between the shoulder injury and accident. He classified Ms. Awalt’s injuries as falling under the minor injury cap, which limited her general damages to $2,500.

Ms. Awalt appealed.

Issues on Appeal

The issues in the appeal were:

(1) Did the trial judge err in determining the accident did not cause the shoulder injury?

(2) Was Ms. Awalt’s injury a “minor injury” under the Insurance Act? and
(3) Was Ms. Awalt entitled to more damages for her loss of housekeeping services?


Ms. Awalt’s appeal was dismissed. The Court of Appeal held that the trial judge’s review of the evidence was appropriate. Coady J. relied on the medical evidence from Dr. Stanish who testified that he did not see any compelling evidence linking the 2004 accident to the 2009 rotator cuff injury. The Court of Appeal concurred with this finding.

The trial judge, after deciding that the accident did not cause the subsequent rotator cuff injury, also decided that Ms. Awalt suffered a soft tissue whiplash injury in the car accident that was mild to moderate in severity. The Court of Appeal agreed.

With respect to the final issue, the Court of Appeal begins by noting that the “loss of valuable services can only be recovered if direct economic loss can be proved.” Ms. Awalt sought $30,000.00 for loss of services, the trial judge disagreed. The trial judge noted that Ms. Awalt only provided evidence showing that, following the accident, she needed help with cleaning the Jacuzzi and washing windows. The trial judged found that this was not enough to sustain a claim of $30,000.00. Again, the Court of Appeal agreed.

In total the trial judge awarded $10,478.00. The Court of Appeal did not find grounds on which to increase this amount.

Changes to Nova Scotia’s “Minor Injury” Cap

It should be noted that Ms. Awalt’s injuries occurred before amendments to the Insurance Act in 2010 changed the definition of “minor injuries”.

Since the amendments, an injury that does not classify as a strain, a sprain, or a category 1 or 2 Whiplash injury does not fall under the minor injury cap. You can read more about the “new” minor injury cap definition here.

If you would like more information about this, please feel free to contact us or you can order a copy of my book “Crash Course: The Consumer’s Guide to Car Accident Claims in Nova Scotia”.

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