Interpreting Warnell v. Cumby: What Does it Mean for Minor Injury Cap Cases?
In March 2017 the Nova Scotia Supreme Court delivered their judgement on the case of Warnell v. Cumby. This case provided an opportunity for the court to apply Nova Scotia Minor Injury Cap legislation to a fairly typical motor vehicle accident (MVA) claim. However, what distinguishes this decision is the significant amount that was awarded for Valuable Services. If you have a claim that falls under the Minor Injury Cap, this decision could impact how you value your claim.
What is the Minor Injury Cap?
The minor injury cap is imposed by legislation in Nova Scotia. It imposes a maximum award for General Damages. The compensation available under the 2019 Minor Injury Cap is $8768. For more information on the Nova Scotia Minor Injury Cap, check out this blog post.
Even if your injury falls under the legal category of “minor injury” and your damages are capped, there are several other heads of loss under which you can claim. Warnell v Cumby demonstrates how important these categories are to the value of your claim. You should not overlook injury-associated losses in those areas.
Loss of Valuable Services and other Heads of Damage
Beyond compensation for General Damages which cover pain and suffering, a non-exclusive list of additional heads of damage to consider are Wage Loss, Diminished Earning Capacity, Cost of Future Care, and Loss of Valuable Services.
While some of the damages claimed in a personal injury action are straightforward, valuable services may be the most unclear head of loss for most first-time claimants. Compensation for lost wages and care costs are easily calculated in many cases. For wage loss, tax documents and employment records can be used. For care costs, an opinion can be gathered from a treating physician, physiotherapist, or other treatment professional about future treatment needs.
Loss of Valuable Services is a head of damage that looks at the informal household duties each person performs in their day-to-day life to maintain their home, property, and family. If your accident has impacted your ability to do chores like cleaning or yard work, you can make a claim to be compensated for the cost of hiring someone to perform those services. This is precisely what occurred in Warnell v Cumby.
Warnell v. Cumby
The plaintiffs, Mr. and Mrs. Warnell, were a husband and wife pair who developed minor injuries to their necks and backs following an MVA. Both Mr. and Mrs. Warnell’s injuries were determined to fall under the Minor Injury Cap. However, claims were made under additional heads of damage for Past Wage Loss, and Loss of Valuable Services.
Cap claim general damages compensation
While the Warnell’s each received the 2010 Cap amount of $7500 for General Damages, they were able to recover significantly more under the other heads of damage. The $7500 loss for general damages was the top award available based on the year of their accident for injuries that were deemed to be "minor" by the judge. This is an unfortunate result for the Plaintiffs as they were limited by what many see as an arbitrary cap imposed on injury victims. This outcome is much to the delight of the insurance industry who lobbied the Nova Scotian government aggressively to limit their liabilities to injured Nova Scotians.
Thankfully, Mr. Warnell was able to obtain compensation for his loss of wages. But what about his wife's inabiltiy to complete housework as she had prior to the accident?
Winning Compensation for Valuable Services
Mrs. Warnell was awarded $15,000 for the Loss of Valuable Services. This award was made because she had completed snow removal and lawn maintenance at the home before the accident. Mrs. Warnell was concerned that she would no longer be able to complete snow removal and lawn maintenance due to her accident-related injuries.
This was a significant award for the Warnell's. It will provide their family with compensation to ensure that they are able to obtain replacement services (contracted labour) to complete the tasks that can no longer be completed.
What Does Warnell v Cumby Mean for Injury Victims with Capped Claims?
Warnell v Cumby demonstrates the importance of assessing all the ways that your injury has impacted your life, beyond pain and suffering. Even in cases where injuries are determined to be minor, courts recognize the significant impact they can have on your life. So long as the injury claim is properly constructed and evidence is gathered, the court should be in a position to award compensation for valuable services losses.
The major challenge many self-represented litigants face is gathering proof to explain their limitations that arose due to the accident. Many injury victims turn to an experienced personal injury lawyer for assistance to ensure that they are fully compensated for their losses.
If you have a claim that has been categorized as a minor injury, this does not mean that you will not be able to recover damages beyond the minor injury cap amount. Looking beyond this decision, consider injuries more temporarily debilitating than those suffered by Mrs. Warnell, that still may fall under the Minor Injury Cap. This decision has opened the door for even greater recovery under Loss of Valuable Services for those who have been injured.
If you have questions regarding Warnell v Cumby and how you can apply the case to your claim, it is best to speak to a personal injury lawyer directly.
Speak to a Lawyer about your injury claim
Jeff Mitchell is the Principal Lawyer and Founder of NOVA Injury Law. Jeff has dedicated his practice to the area of personal injury, accident, and disability benefits law. Contact 1.800.262.8104 or firstname.lastname@example.org to arrange for a free case review today.