Erin Best and Kara Harrington

“This case is about pain, how it was caused, by what accident and the opinions of dueling experts.”¹

“In this case, like so many, the assessment of the evidence depends upon findings of credibility“²

On December 14, 2018, Justice Christa Brothers, of the Supreme Court of Nova Scotia, released a 52-page decision in the recent case of Gale v. Purcell, 2018 NSSC 319.

The Plaintiff, Angela Gale, sued the Defendant, alleging she sustained personal injuries and damages in a rear-end motor vehicle accident, which occurred on March 23, 2010 (the “2010 MVA”). More specifically, she alleged the 2010 MVA resulted in a chronic pain condition, which left her partially disabled. She testified she was unable to pursue her previous career as a Dental Assistant (being relegated to working part-time as a Dental Receptionist), unable to participate in camping, driving, or any other activities, and otherwise having “no life”.

The Defendant, represented by Chad Horton of Intact Insurance, argued that (a) any disability, impairment, or limitations experienced by the Plaintiff arose in connection with previous, unrelated MVA(s), or were otherwise unconnected to the 2010 MVA, and (b) any injuries sustained as a result of the 2010 MVA were “minor injuries”, subject to the legislative cap imposed under Section 113B of Nova Scotia’s Insurance Act and Automobile Insurance Tort Recovery Limitation Regulations (colloquially referred to the Bill 1 Cap), limiting the Plaintiff’s entitlement to General Damages to $2,500.

Cross-examination revealed that the Plaintiff had been involved in no less than four (4) unrelated MVAs prior to the 2010 MVA. She had retained counsel and commenced lawsuits in connection with each of them. The Defendant argued that the most serious of these prior MVAs occurred in 2006 (the “2006 MVA”) and that any ongoing injuries or conditions were attributable to the 2006 MVA.

The evidence at trial confirmed that the Plaintiff had eventually stopped working as a Dental Assistant on account of pain and anxiety experienced in the aftermath of the 2006 MVA. Furthermore, the Plaintiff’s assertion that she had partially returned to work as a Dental Assistant for a specific Endodontist prior to the 2010 MVA was shown to be false. This was found to be “significant” and “erode[d] her reliability as a witness”.

The Plaintiff’s assertions regarding the effect of the 2010 MVA on her personal life were similarly challenged. On cross-examination, she “admitted to some exaggerations”. She admitted to driving to Montreal to attend a concert, going camping, spending time with friends and attending vacations to Jamaica, Cancun, Las Vegas, Newfoundland (George Street Festival), and New York City. Justice Brothers found there were times when “her evidence was strategic, inconsistent with the reporting as contained in the medical documents, and inconsistent with her own documents.”

The Plaintiff presented her own Family Physician and an Anesthesiologist as her medical experts at trial. The Defendant presented Dr. Edvin Koshi (Physiatrist).

On cross-examination, the Plaintiff’s Family Physician conceded she did not perform Functional Capacity Evaluations and that any commentary she provided regarding same was based on the Plaintiff’s subjective reporting. This physician eventually conceded that she would defer to Dr. Koshi’s opinion(s) on the diagnosis and treatment of musculoskeletal and chronic pain, and functional capacity.

On cross-examination, the Plaintiff’s Anesthesiologist similarly conceded he did not perform Functional Capacity Evaluations and agreed he could not provide an opinion regarding how many hours per week the Plaintiff could work. On redirect, the Anesthesiologist was asked if various information he had been provided throughout his cross-examination would change his medical opinion of the Plaintiff’s condition. He candidly responded that he had been provided with information he had never seen before and would have to review same in detail and consider any additional elements of which he had been previously unaware (when he authored his expert’s report) before he could effectively comment. This was found to be significant.

Conversely, Dr. Koshi’s report was found to be predicated on a “thorough review” of all relevant information and documentation. His opinion was that the Plaintiff’s current complaints were not causally related to the 2010 MVA, which had only “temporarily exacerbated” pre-existing neck and shoulder pain. He found “no basis” for any medical restrictions attributable to the 2010 MVA that would restrict the Plaintiff’s employment in any way.

The Plaintiff argued she suffered chronic pain as a result of the 2010 MVA and urged the Court to follow authority from the Ontario Courts (Brak v. Walsh, 2008 ONCA 221 and Sasso v. Copeland, 2005 O.R. (3d) 263), which found that where a plaintiff’s pain continued beyond the allowable timeframe, they would be taken outside the purview of minor injury legislation. The Ontario authorities were distinguished on the basis of different legislative language and the fact that despite her alleged pain, the Plaintiff’s MVA-related injuries largely resolved within a couple of months.

Justice Brothers’s relied on the seminal Nova Scotia decision of Farrell v. Casavant, 2009 NSSC 233, in finding the Plaintiff’s claim for General Damages was limited to $2,500 by the Bill 1 Cap. She also awarded $10,000 for Loss of Valuable Services, on the basis that “the Plaintiff has proven that she did have some impairment, for a period of time, of her ability to carry out household tasks”, including grocery shopping, laundry, dusting, making beds and gardening. No further damages were awarded.

¹ _{Gale, para. 1}
² _{Gale, para. 70}

This update is intended for general information only. If you have questions about the above, please contact a member of our Insurance group.