Pratt v. Cameron, 2021 NSSC 129

Supreme Court of Nova Scotia Citation: Pratt v. Cameron , 2021 NSSC 129 Date: 20210713 Docket: Tru No. 471087 Registry: Truro Between: Robert Matthew Pratt Plaintiff v. David Samuel Cameron and D & T Heating & Plumbing Ltd. Defendants Library Heading Judge: The Honourable Justice Mona Lynch Heard: March 15, 16, 17, 18, 19 and 22, 2021, in Truro, Nova Scotia Final Written Submissions: June 15, 2021 Subject: Causation and Damages from MVA Onus for minor injury cap

Summary: Plaintiff was driving a motorcycle and struck the side of van driven by one defendant and owned by the other. Issues: Which injuries were caused by the accident? Who bears the onus to show that the injuries are under the minor injury cap? What is the appropriate award of damages? Result: Various strains and sprains caused by the accident as well as broken ribs, a mild traumatic brain injury and a severe left knee injury. Defendants bear the onus, on a balance of probabilities, to show that the injuries are under the minor injury cap.

Total damages for pain and suffering, prejudgment interest, lost future income, cost of future care, diminished earning capacity, and loss of valuable services awarded in the amount of $119,239. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION. QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF Nova Scotia Citation: Pratt v. Cameron , 2021 NSSC 129 Date: 20210713 Docket: Tru No. 471087 Registry: Truro Between: Robert Matthew Pratt Plaintiff v. David Samuel Cameron and D & T Heating & Plumbing Ltd. Defendants

D E C I S I O N Judge: The Honourable Justice Mona Lynch Heard: March 15, 16, 17, 18, 19 and 22, 2021, in Truro, Nova Scotia Final Written Submissions: June 15, 2021 Counsel: Angeli Swinamer and Lathia Stubbs, for the Plaintiff Michelle M. Kelly, QC and Colin Gale, for the Defendants By the Court: Background [ 1 ] On August 3, 2017, the Plaintiff, Robert Pratt (“Mr. Pratt”), was driving a motorcycle in Truro, Nova Scotia, when a van pulled out in front of him. He struck the van. The van was driven by the Defendant, David Cameron and was owned by the Defendant, D & T Heating and Plumbing Ltd. Mr.

Pratt was taken by ambulance to the emergency department of the Colchester Regional Hospital where he was examined and CAT scans of his head, cervical spine, chest, abdomen, and pelvis were taken. [ 2 ] At the time of the accident Mr. Pratt had been working as a truck driver in Alberta. He started working in Alberta in 2016 after his own trucking business with three trucks and employees ceased operations. [ 3 ] After the accident, on September 5, 2017, Mr.

Pratt started an electrician course at Nova Scotia Community College (“NSCC”) which he continued until April of 2018 followed by a four to five-week work placement. He did not find work as an electrician in Nova Scotia. [ 4 ] In the summer of 2018, Mr. Pratt and his family were in a serious financial situation and he returned to Alberta to look for work as an electrician. He was unable to find work as an electrician in Alberta. In August 2018, Mr. Pratt was offered work for a month with Alta Fuel Distributors (“AFD”), his former employer, and he worked for them for about four weeks. In November 2018, Mr.

Pratt returned to work with AFD on his usual 28 days on 14 days off rotation. [ 5 ] In January 2019, at the end of his 28-day rotation, Mr. Pratt had a workplace accident which resulted in two crushed vertebrae in his mid-back. He has been unable to return to work since January 2019 and is receiving benefits through the Alberta Workers’ Compensation system. [ 6 ] Mr. Pratt filed a Notice of Action on December 5, 2017 and a Notice of Defence was filed on March 25, 2019. Mr.

Pratt seeks general damages for pain and suffering; loss of earning capacity or loss of future wages; loss of valuable services; cost of care; special damages for medical expenses and past lost wages; prejudgment interest; and costs. [ 7 ] The Defendants have admitted liability but not causation and damages. Issues: 1. Which of Mr. Pratt's injuries were caused by the accident of August 3, 2017? 2. What amount of damages should be awarded to Mr. Pratt? Credibility: [ 8 ] As Justice Warner discussed in his recent decision Blenus v.

Fraser , 2021 NSSC 79 , there is a difference between credibility and reliability (paras. 88-89). There is no doubt in my mind that Mr. Pratt was a very credible witness. He did indicate on some issues that he could not remember. [ 9 ] The Defendants asked that I question Mr. Pratt’s credibility because of the difference between the medical records and Mr. Pratt’s testimony. I accept the evidence of Mr. Pratt in relation to the medical record notes about alcohol consumption and about his weight. [ 10 ] The amount of alcohol consumption varied greatly in the medical records from Dr. Masoumi, Mr.

Pratt's family physician. Mr. Pratt explained that Dr. Masoumi was concerned about his liver enzymes and asked him on each visit how much alcohol he had to drink that week. Mr. Pratt would see Dr. Masoumi when he was home from Alberta and some of those weeks he would be at various parties and some of those weeks he was not. The variation, which I accept, is based on the number of units of alcohol that Mr. Pratt reported he had consumed that particular week. [ 11 ] Mr. Pratt reported to a specialist that he had gained 50 pounds since the accident. When questioned about the weights recorded in Dr.

Masoumi’s chart, Mr. Pratt testified that he could only recall being weighed once in Dr. Masoumi's office when a student doctor was present and weighed him. All the recorded weights, except for one, were Mr. Pratt's subjective statement of his weight. Mr. Pratt did not weigh himself and his responses were what he thought he weighed on that day. Mr. Pratt's pants size had increased from 36 at the time of the accident to size 40, which he estimated as a gain of 50 pounds. Mr. Pratt's explanation accounts for the wild fluctuations

in the reported weights in Dr. Masoumi's chart. On August 10, 2017, Mr. Pratt was recorded as weighing 265 lbs or 120.2 kg. Four days later, on August 14, 2017, Mr. Pratt was recorded as weighing 253 lbs or 114.76 kgs. I do not find the conversion of the weight to or from kilograms to be significant as some people are accustomed to pounds, others to kilograms. Causation: [ 12 ] Mr. Pratt has the burden of proving on a balance of probabilities that the Defendants caused or materially contributed to his injuries. Former Chief Justice McLachlin summarized the onus on the Plaintiff in Clements v. Clements , 2012 SCC 32 at para. 46 as: C.

Summary [46] The foregoing discussion leads me to the following conclusions as to the present state of the law in Canada:

(1) As a general rule, a plaintiff cannot succeed unless she shows as a matter of fact that she would not have suffered the loss "but for" the negligent act or acts of the defendant. A trial judge is to take a robust and pragmatic approach to determining if a plaintiff has established that the defendant's negligence caused her loss. Scientific proof of causation is not required.

(2) Exceptionally, a plaintiff may succeed by showing that the defendant's conduct materially contributed to risk of the plaintiff's injury, where (

a) the plaintiff has established that her loss would not have occurred "but for" the negligence of two or more tortfeasors, each possibly in fact responsible for the loss; and (

b) the plaintiff, through no fault of her own, is unable to show that any one of the possible tortfeasors in fact was the necessary or "but for" cause of her injury, because each can point to one another as the possible "but for" cause of the injury, defeating a finding of causation on a balance of probabilities against anyone. In the present case there were two accidents in which Mr. Pratt suffered injuries. There is the accident of August 3, 2017, (“this accident”) which is the subject of this case, and the accident in January 2019. [ 13 ] The Defendants acknowledge that Mr. Pratt suffered the following injuries as a result of this accident: (

a) Various abrasions and bruising; (

b) Broken ribs; (

c) Soft tissue injuries of the neck and back; and (

d) A sprain to the lateral collateral ligament of his left knee. The Defendants dispute any further injuries were caused by this accident, in particular, any other injuries to Mr. Pratt's knees, more serious injuries to his neck and back, and a concussion. Knees and Ankle: [ 14 ] Mr. Pratt testified that his knee, particularly his left knee, has caused him pain and has been "giving out" since this accident. Dr. Hayward, the treating orthopaedic surgeon for Mr. Pratt testified, as did Dr. Masoumi, Mr. Pratt's family physician. Two experts, Dr. Karabatsos for Mr. Pratt, and Dr.

Stanish for the Defendants provided expert evidence and reports on orthopaedics. [ 15 ] The medical records from the emergency department of the Colchester Regional Hospital on August 3, 2017 show that Mr. Pratt was suffering from lateral chest pain, multiple abrasions, pain in both legs, mid-back pain and there was a note regarding a head injury. The nursing notes indicate no loss of consciousness, but the doctor's notes indicate a loss of consciousness. Mr. Pratt was given fentanyl, dilaudid and toradol for pain and inflammation. Mr.

Pratt left the ER, after approximately five hours, with a prescription for fentanyl. [ 16 ] Mr. Pratt, reattended the emergency department on August 5, 2017 where the records note pain in the left knee and his knee "giving way." The records show that he had swelling in his left knee and laxity in his left lateral collateral ligament (“LCL”). They note a 25-year-old anterior cruciate ligament injury (“ACL”) and found that the examination of the knee is consistent with the old ACL injury.

This is but one of many references to the 25-year-old injury from a prior motorcycle accident which resulted in an ACL tear or injury. [ 17 ] Mr. Pratt explained the notes regarding an old ACL injury. Mr. Pratt was told, 25 years ago, that he had an injury to the bone close to the ACL and he repeated that when asked about prior injuries. He was not told 25 years ago that he had an ACL tear, partial or full. The records from the prior accident were not placed in evidence. [ 18 ] Mr. Pratt's medical history show prior complaints of injury to his knees. In 2010, Mr.

Pratt, slipped in water and hit his right knee on an old piece of a wharf with a nail in it causing swelling of his right knee and requiring a tetanus shot. [ 19 ] Mr. Pratt became Dr. Masoumi's patient in 2010 and the first record is from February 2, 2010 where Dr. Masoumi records Mr. Pratt's history and notes the prior ACL injury or tear. [ 20 ] In 2011, Dr. Masoumi notes that Mr. Pratt complained of painful knees and that there was swelling of the left knee which had settled spontaneously. [ 21 ] On September 13, 2016, Mr.

Pratt went to the ER complaining of injury to his left knee from hitting his knee falling out of his truck. Significant swelling of the left knee was noted and that he had full range of motion in his left leg and foot. A worker's compensation report prepared by Dr. Masoumi for this injury recommends a return to work after approximately five weeks with modified hours and a full return to work after approximately seven weeks.

[ 22 ] The experts did not agree on the extent of the left knee injury from this accident. Dr. Hayward, an orthopaedic surgeon in New Glasgow, examined Mr. Pratt on August 22, 2017, two-and-one-half weeks after this accident. The referral to him was from the ER doctor at the Colchester Regional Hospital and noted left knee pain following a motorcycle accident and that the knee keeps giving out. It also notes that an old ACL injury was missed at the time of another accident 25 years earlier. Dr.

Hayward noted that there was no swelling in either knee, the knee pain was mostly on the right side, the right ankle had pain and swelling, and Mr. Pratt's left knee would give out but was not painful. Dr. Hayward noted left knee discomfort and increased laxity while testing the ACL but otherwise the ligaments where stable and there was a full range of motion. There was also tenderness in the right ankle, full range of motion in his right foot and ankle and a tender right knee but no laxity. Dr. Hayward sent Mr. Pratt for an MRI on both knees.

The MRI noted a partial tear of the ACL which was considered to be mild to moderate in grade, a tear to the LCL and grade 2 sprain of the left knee. Dr. Hayward noted that the injuries to the ACL and LCL were described differently in the MRI report and he could not infer whether the ACL was a recent injury. He noted that the ACL provides stability to the knee and laxity or looseness was consistent with an injured ACL. [ 23 ] Dr. Hayward saw Mr. Pratt again on September 15, 2017 and noted a lot of improvement in Mr. Pratt's condition. He noted that Mr.

Pratt's knees "don't give him much trouble and his range of motion is improving and his swelling is improving." He noted that the MRI showed partial tearing of the ACL and LCL on the left and a lot of bone bruising in both knees. Dr. Hayward closed his report by noting that the injuries should settle down but would take months and he suggested an ACL brace on the left side. Dr. Hayward noted in his testimony that soft tissue injuries do not equate to injuries not being serious. [ 24 ] Dr.

Karabatsos, an orthopaedic surgeon, performed an orthopaedic assessment for an independent medical examination, provided a written report and testified. Dr. Karabatsos examined Mr. Pratt on September 10, 2019, after the second accident. Mr. Pratt reported pain and instability in his knees and noted that he had fallen numerous times due to instability. His examination of Mr. Pratt showed full range of motion on the right knee and ankle, but limited range of motion of the left knee. Dr. Karabatsos diagnosed Mr.

Pratt with soft tissue injuries of his cervicothoracic spine, both shoulders, lumbar spine, and right knee as well as fractures of his right 4th to 6ths ribs. While Mr. Pratt's left knee is not noted in the diagnosis

section of his report, later in his report Dr. Karabatsos notes that "Mr. Pratt sustained a severe left knee injury." Dr. Karabatsos also recommended a functional assessment, a weight loss program, a chronic pain evaluation, none of which were done. [ 25 ] Dr. Karabatsos noted that there was nothing in Mr. Pratt's medical records, prior to this accident showing symptoms consistent with a tear of the ACL. Dr. Karabatsos testified that if he had suffered a significant tear of the ACL prior to August 3, 2017, Mr. Pratt would have had difficulty in function and would have had difficulty doing recreational activities.

Dr. Karabatsos testified, that based on what Mr. Pratt reported and from the medical records, prior to the accident Mr. Pratt's left knee was not a source of significant disability to him. Dr. Karabatsos noted that there were no reports of significant instability of the knee prior to this accident. Any knee complaints prior to this accident Dr. Karabatsos described as fleeting and not disabling. If there was a significant ACL tear, there would be chronic instability, chronic pain, and interruption in Mr. Pratt's life. Dr.

Karabatsos noted very clear significant instability in his left knee after this accident. [ 26 ] Dr. Stanish provided a report and testified. Dr. Stanish did not examine Mr. Pratt. He prepared the report after reviewing Mr. Pratt's medical records. Dr. Stanish's opinion in relation to Mr. Pratt's left knee was that the injury occurred many years prior to this accident. Dr. Stanish testified that the instability or laxity in Mr. Pratt's knee was well documented in the medical records prior to this accident.

However, when asked to point to the medical records where laxity or instability was noted prior to this accident, Dr. Stanish pointed to Dr. Masoumi's record of February 22, 2010. This was the first appointment for Mr. Pratt with Dr. Masoumi as a family physician. While Dr. Stanish interpreted the note as Dr. Masoumi diagnosing an ACL tear, both Dr. Masoumi and Mr. Pratt testified that Dr. Masoumi was taking a history from Mr. Pratt on his first visit. As stated above, Mr. Pratt understood that he had a prior injury, somewhere around his ACL, from a prior motorcycle accident. Dr.

Stanish also pointed to the 2011 record from Dr. Masoumi which indicated that Mr. Pratt reported swelling of his left knee which had settled spontaneously. The medical records do not support Dr. Stanish's claim of reports of laxity or instability prior to this accident. The only references to Mr. Pratt's left ACL were reports Mr. Pratt himself provided. [ 27 ] While Dr. Karabatsos was missing information important to Mr. Pratt's work history and involvement in the electrician program after this accident, I prefer and accept his diagnosis of a severe left knee injury. Dr.

Karabatsos's diagnosis is more consistent with Mr. Pratt's reporting of the effects after the accident, particularly the reports of instability and pain. Dr. Stanish did not examine Mr. Pratt and he misunderstood some of the medical records he relied upon. [ 28 ] While Dr. Stanish said he would have expected more swelling to the left knee when Dr. Hayward saw Mr. Pratt on August 22, 2017 if the ACL injury was new, the ER report of August 5, 2017 notes swelling of his left knee. The physiotherapy report of August 18, 2017 notes swelling in Mr. Pratt's left knee. Dr.

Stanish's diagnosis does not account for the frequent and persistent reports by Mr. Pratt of instability in his knee which only started after this accident. The recommendation that Mr. Pratt use a brace on his left knee for stability was only made after this accident. Dr. Karabatsos counted between 30 and 50 reports of left knee instability or giving out after this accident and none prior to this accident. [ 29 ] Prior to this accident Mr. Pratt was very active. He skied, he drove his ski doo, he skated, he participated in water sports. He has been unable to do any of those things since this accident.

I accept Dr. Karabatsos's opinion that the left knee injury suffered by Mr. Pratt would have interfered with his recreational activities, which it did, but only after this accident. [ 30 ] Mr. Pratt was able to complete his electrician course at NSCC, but accommodations had to be made for him for things such as his inability to crouch because of his knee. [ 31 ] Mr. Pratt suffered a severe left knee injury, a torn LCL and a torn ACL ligament, which would not have occurred but for the negligence of the Defendants. I accept Dr. Karabatsos's opinion that Mr.

Pratt sustained a significant sprain and intra-articular injuries of his left knee from this accident. [ 32 ] The right knee and ankle injuries were mentioned often shortly after this accident and infrequently thereafter. Dr. Karabatsos

opinion, which I accept, was that Mr. Pratt sustained a soft tissue injury of his right knee and right ankle as a result of this accident. I am satisfied that Mr. Pratt suffered abrasions to his right knee and sprain of his right ankle in the accident caused by the Defendants. These injuries have resolved. Neck, Shoulder and Back: [ 33 ] The first medical and physiotherapy reports after this accident show Mr. Pratt was complaining of pain in his mid to upper back. The physiotherapy records and massage therapy records of October and November of 2017 show he was also complaining about his low back.

In May 2018, the physiotherapy report shows that the low back is an area of concern and the massage therapist records show that Mr. Pratt continued to complain of low back pain before and after the January 2019 accident. The ER records from Alberta after the January 2019 accident show that Mr. Pratt reported low back pain unresolved from this accident but increased by the January 2019 accident. Dr. Karabatsos testified that Mr. Pratt had chronic low back pain from this accident which was exacerbated by the second accident. [ 34 ] Mr.

Pratt continued to suffer low back pain from the time of the accident to the present. It is difficult to determine the cause and degree of the low back pain. In the accident report from his January 2019 accident, Mr. Pratt noted that he had a bit of stiffness in his back since this accident. Dr. Karabatsos testified that the low back pain felt by Mr. Pratt was made worse by the January 2019 accident. Although the injuries in January 2019 were not to the low back, the low back would have to compensate for the compression injuries to the mid-back suffered in the January 2019 accident.

The March 2017 accident materially contributed to Mr. Pratt’s low back pain. [ 35 ] In relation to Mr. Pratt's shoulders, the medical records clearly show that he had complaints in relation to his shoulders, particularly his left shoulder, months after this accident. Mr. Pratt went to the ER in June 2018 in relation to such pain and numbness in the hands. Dr. Masoumi provided pain medication and cortisone injections for his shoulder pain between June and November 2018. Mr.

Pratt was reluctant to take pain medication when he was working as a truck driver as he was tested for drugs. [ 36 ] The medical records also show that Mr. Pratt suffered injuries to his neck as well as his mid and upper back. [ 37 ] Mr. Pratt suffered injuries to his low back, left shoulder, neck and mid to upper back as a result of this accident. As Dr. Karabatsos found, which I accept, Mr. Pratt sustained soft tissue injuries of his cervicothoracic spine, both shoulders and lumber spine as a result of the August 3, 2017 accident.

Ribs: [ 38 ] The records are clear that this accident caused fractures to his right 4 th to 6 th ribs. The medical records satisfy me that those injuries have healed. Concussion: [ 39 ] While in the hospital on August 3, 2017, Mr. Pratt complained of light-headedness and nausea which resolved prior to him being released from the hospital. While there are no medical records where Mr. Pratt complained of concussion symptoms again prior to September 2018, both Mr. Pratt and his wife testified that he was having symptoms.

They both testified that he was experiencing dizziness, blurry vision, nausea, memory lapses and headaches soon after this accident. Both Mr. Pratt and Sally Pratt, (“Ms. Pratt”) indicated that, at first, they thought that the dizziness, memory lapses and headaches resulted from the pain medication prescribed to Mr. Pratt, but the symptoms continued after he was no longer taking the medication. Ms. Pratt testified that Mr. Pratt complained of dizziness right after this accident.

She testified that the memory loss was apparent a month later, when he could not remember things and had to write things down, something he did not have to do before the accident. Mr. Pratt testified that he was unable to remember physiotherapy appointments, so the clinic arranged to call him to remind him of appointments. Ms. Pratt and Mr. Pratt also testified that Mr. Pratt's personality changed after the accident. He went from being easy-going to irritable. [ 40 ] Mr. Pratt reported receiving his helmet from the police and it was broken into three pieces. Mr.

Pratt testified that he has intermittent memory right after the accident, at the scene and in the ambulance on the way to the hospital. [ 41 ] When Mr. Pratt met with the insurance adjuster in October 2017, he did not mention dizziness or other symptoms of a head injury. [ 42 ] There were two notes in Mr. Pratt's medical records where he complained of dizziness prior to this accident but as Dr. Dale Robinson, the neurologist, noted, the complaints were nonspecific. The incident in 2010 was thought to be an inner ear issue. [ 43 ] Both Ms. Pratt and Mr.

Pratt remember reports of dizziness and headaches being made to Dr. Masoumi prior to the first recorded report in September 2018. Mr. Pratt said that he had reported symptoms from the date of this accident to the present. Mr. Pratt testified that it was a memory lapse in August/September 2018 of two hours while driving a truck in Alberta that really scared him and caused him to make an appointment to specifically discuss his symptoms with Dr. Masoumi. [ 44 ] Beginning on September 26, 2018 forward there are many reports in Dr.

Masoumi's records of dizziness, headaches, blurry vision, memory losses, sensitivity to light, and problems concentrating. He attended a concussion clinic to assist with his symptoms and was placed on Prozac to assist with his mood. [ 45 ] Dr. Dale Robinson saw Mr. Pratt for an independent medical evaluation, provided an expert report and testified at the trial. In Dr. Robinson's opinion, Mr. Pratt sustained a mild traumatic brain injury from this accident and the prognosis is poor for him to return to his pre-indexed collision level of function. Dr.

Robinson based his opinion on the mechanism of the collision and the reports from Mr. Pratt. Dr. Robinson found that his opinion was supported by the ER record from the day of the accident where the ER physician noted a head injury and loss of consciousness. Other parts of the ER record indicate that there was no loss of consciousness and no head injury, but Dr. Robinson noted that these notes were not made by a physician. Dr. Robinson also noted that a CT scan of Mr. Pratt’s head was

ordered which was also an indication of a head injury. [46] Dr. Robinson testified that there is a general underreporting of head injuries in ERs after an accident and in other medicalrecords. According to Dr. Robinson, the physical ailments are noted but often the indicators of a head injury are not. [47] Dr. Robinson also based his opinion on Mr. Pratt's report of his helmet breaking into three pieces. Dr.

Robinson testified thathitting the side of a van while on a motorcycle travelling 50 to 55 kms per hour, as occurred in this accident, would cause very significantacceleration and deceleration of the brain. [48] Dr. Robinson noted that the later onset of some of Mr. Pratt's symptoms and the worsening of some symptoms were atypical. Dr. Robinson attributed some of Mr. Pratt’s symptoms to the totality of Mr. Pratt’s injuries, including lack of sleep and chronic pain. Dr.Robinson noted that Mr. Pratt exhibited memory problems a month after the accident. [49] Dr. Robinson noted that Mr.

Pratt returned to work after the NSCC course not out of choice but because of his financialsituation. [50] Dr. Masoumi sent Mr. Pratt to see an optometrist regarding his concussion symptoms. Dr. Travis Robertson examined Mr.Pratt on October 11, 2020 and noted exophoria which he testified was consistent with post-concussion. [51] While the late onset of symptoms is not typical for a brain injury, I am satisfied that Mr. Pratt suffered a mild traumatic braininjury in this accident. I base that finding on all of the evidence, particularly the opinion of Dr. Robinson and the finding of Dr.Robertson.

An expert witness in neurology was not called by the Defendants. Mr. Pratt would not have suffered the mild traumaticbrain injury but for the negligence of the Defendants. What amount of damages should be awarded to Mr. Pratt? [52] Mr. Pratt has asked for non-pecuniary damages of $145,000 for pain and suffering from his injuries. The Defendants submitthat all the injuries except for the fractured ribs fall under the minor injury cap and the fractured ribs would attract a further $10,000 for atotal general damages award of $18,486.

If the injuries fall outside the minor injury cap, the Defendants submit that the general damagesshould be at the low end of the range in Smith v. Stubbert (1992), (NS CA), 117 N.S.R. (2d) 118 (NSCA) or $50,000. Onus for Minor Injury Cap: [53] The Defendants submit that Mr. Pratt's injuries are captured by the minor injury cap pursuant to s. 113E of the Insurance Act,R.S.N.S. 1989, c. 231 (the “Act”) and s. 13 of the Automobile Accident Minor Injury Regulations, N.S. Reg. 94/2010 (the“Regulations”). If Mr.

Pratt's injuries fall under this section, any award for pain and suffering or other non-monetary loss from bodilyinjury or death is limited to the amount prescribed in the regulation or $7,500, increased yearly by the Consumer Price Index from thetime of this accident to $8,486. [54] The sections of the Act and Regulations dealing with accidents occurring on or after April 28, 2010 apply in this case. Therefore, the definition of minor injury under s. 113E of the Act is: (d) "minor injury", with respect to an accident, means (

i) a sprain, (ii) a strain, or (iii) a whiplash-associated disorder injury, caused by that accident that does not result in a serious impairment

Section 8 of the Regulations defines serious impairment, sprain, strain, and whiplash-associated disorder injury:

(2) In

Section 113E of the Act and this Part, "serious impairment", in respect of a claimant, means an impairment of a physical or cognitive function that meets all of the following: (

i) the impairment results in a substantial inability to perform any or all of the following: (

A) the essential tasks of the claimant's regular employment, occupation or profession, despite reasonable efforts to accommodatethe claimant's impairment and the claimant's reasonable efforts to use the accommodation to allow the claimant to continue the claimant'semployment, occupation or profession, (

B) the essential tasks of the claimant's training or education in a program or course that the claimant was enrolled in or had beenaccepted for enrolment in at the time of the accident, despite reasonable efforts to accommodate the claimant's impairment and theclaimant's reasonable efforts to use the accommodation to allow the claimant to continue the claimant's training or education, (

C) the normal activities of the claimant's daily living, (ii) the impairment has been ongoing since the accident, and (iii) the impairment is expected not to improve substantially, "sprain" means an injury to one or more tendons, to one or more ligaments, or to both tendons and ligaments;

"strain" means an injury to one or more muscles; "whiplash-associated disorder injury" means a whiplash-associated disorder other than one that exhibits one or all of the following: (

i) neurological signs that are objective, demonstrable, definable and clinically relevant, (ii) a fracture to the spine or a dislocation of the spine. Sections 9-11 of the Regulations provide further guidance: Injuries must be assessed separately 9 If a claimant suffers more than one injury as a result of an accident, each injury must be assessed separately to determine whetherthe injury is or is not a minor injury.

Injury must be primary contributing factor 10 For a sprain, strain or whiplash-associated disorder injury to be considered to have resulted in a serious impairment, the sprain,strain or whiplash-associated disorder injury must be the primary factor contributing to the impairment. Determination of minor injury 11

(1) The determination as to whether an injury suffered by a claimant as a result of an accident is or is not a minor injury must bebased on the following: (

a) a determination as to whether the injury is a sprain, strain or whiplash-associated disorder injury; and (

b) if the injury is determined to be a sprain, strain or whiplash-associated disorder injury, a determination as to whether thesprain, strain or whiplash-associated disorder injury results in a serious impairment. [55] Under the former minor injury regulations, applicable to accidents before April 28, 2010, the onus was explicitly stated to be onthe injured party to prove that the injury was not a minor injury (former s. 6 of the Regulations). That provision was removed from theRegulations for accidents occurring on or after April 28, 2010. [56] In Gibson v.

Julian, 2016 NSSC 15, Chipman J. found that despite the removal of the provision which placed the onus on theinjured person, the onus remained on the injured person: [77] Whereas it is correct that the Old Cap overtly states that the plaintiff bears the onus (Regulation 6) and the New Cap has no suchlanguage, I do not accept it therefore follows that the defendant must prove whether a plaintiff has sustained a minor injury.

Indeed, theNew Cap states that the Governor-in-Council may make regulations respecting the onus of proof relating to minor injuries (s.113E(7)(g)); no such regulation has been made. [78] Absent specific reverse onus wording from the Legislature, I am not prepared to accept that it is for a defendant to marshalevidence to, in effect, prove a negative. Rather, it is my determination that when it comes to the New Cap the standard remains the same.That is to say, she who asserts must prove (on a balance of probabilities). Robertson, J. came to the same conclusion in Warnell v. Cumby, 2017 NSSC 88.

Recognizing that judges should generally be bound by adecision of another judge of this Court (Giffin v. Soontiens, 2010 NSSC 438 para. 59) and with great respect to the learned judges inGibson and Warnell, I cannot come to the same conclusion. [57] Legislative debates and speeches can be used to determine the background, context, and purpose of legislation (R. v.Morgentaler, (SCC), [1993] 3 S.C.R. 463).

When the Act was amended in 2010, the removal of explicit reference to theburden of proof was referred to in the Nova Scotia Legislative Assembly, Debates, 30 April 2010, at 1727: We also propose to remove explicit reference to the burden of proof from the regulations. The 2003 regulations put the burden of proofon the plaintiff. By removing this provision from the regulations, it is the intention of the government that ordinary common-law rulesrespecting onus should apply.

The Legislature removed the provision placing the burden of proof on the injured person and expressed the intention that “the ordinarycommon-law rules respecting onus should apply.” The ordinary rules respecting the burden or onus are set out by Fichaud J.A. inMacNeil v. Kajetanowicz, 2019 NSCA 35: [47] In Snell v. Farrell, (SCC), [1990] 2 S.C.R. 311, at p. 321, Justice Sopinka for the Court stated two principles forassigning the legal burden of proof: ...

The legal or ultimate burden of proof is determined by the substantive law “upon broad reasons of experience and fairness”: 9Wigmore on Evidence, # 2486, at p. 292. In a civil case, the two broad principles are: 1. that the onus is on the party who asserts a proposition, usually the plaintiff; 2. that where the subject matter of the allegation lies particularly within the knowledge of one party, that party may be required to proveit. This remains the test: e.g., see Braile v. Calgary Police Service, 2018 ABCA 109, para. 23.

[ 58 ] It is the Defendants who assert that the Plaintiff’s injuries fall under the minor injuries cap. The ordinary common law rule, as set out in MacNeil and Snell, supra, would place the burden on the Defendants (principle 1 in Snell ) . The former s. 6 of the Regulations contained a reverse onus by requiring the Plaintiff to prove that the injury was not a minor injury. [ 59 ] Is this a case where the subject matter of the allegation lies particularly within the knowledge of one party? The Plaintiff bears the burden of proving the extent of his injuries and damages.

The question is whether the Plaintiff has particular knowledge of whether his injuries fall under the minor injuries cap? He does not. Placing the onus on the injured party or Plaintiff puts him in a position to prove a negative – that his injuries do not fall under the cap. The Defendants have been provided with all of the medical records of the Plaintiff. The Defendants can have an independent medical assessment of the Plaintiff.

Therefore, I do not find that the subject matter of the minor injury cap lies particularly within the knowledge of the Plaintiff, requiring him to prove that his injuries are not minor injuries. [ 60 ] It is the Defendants who assert and rely on the minor injury cap under s. 113E of the Act , not the Plaintiff. I therefore find that the ordinary common law rule or principle applies. The onus is on the Defendants to prove, on a balance of probabilities, that the Plaintiff’s injuries fall under the minor injury cap.

Pain and Suffering/General Damages: [ 61 ] Under s. 113E of the Act I am satisfied that the incident on August 3, 2017 was an accident (s. (1)(a)). Mr. Pratt is a claimant (s. (1)(c)) and made an accident claim (s. (1)(b). The Regulations require that I assess Mr. Pratt's injuries separately. I must determine whether Mr. Pratt's injuries with respect to the accident are (

i) a sprain, (ii) a strain, or (iii) a whiplash-associated disorder injury (s. 113E(1)(d)). If I do find the injuries were a sprain, strain, or whiplash-associated disorder injury I must determine whether those injuries resulted in a serious impairment or not. If a serious impairment did not result, the injuries fall within the minor injury cap. [ 62 ] Some of Mr. Pratt's physical injuries can be classified as a sprain, strain, or whiplash-associated disorder injury.

Injuries such as the sprain to his right ankle, strain to his right knee, pain in his mid to upper back and neck, as well as the low back pain from this accident would fall into that category. After the 2019 accident Mr. Pratt reported both chronic back pain from this accident and later that he had a bit of stiffness in his low back since the 2017 accident. The latter description is a description of a strain that was not a serious impairment.

These injuries did not result in a serious impairment in that they did not result in a substantial inability to perform the essential tasks of his employment, the essential tasks of an education program or the normal activities of his daily living. These injuries have largely resolved. The sprain to Mr. Pratt's right ankle, strain to his right knee and pain in his back, shoulders and neck would all be subject to the minor injury cap. [ 63 ] Mr. Pratt’s LCL and ACL in his left knee were torn. On first consideration, there would appear to be significant and serious injuries to his left knee.

However, the determination of a minor injury under s. 11 of the regulations requires the use of the Automobile Accident Diagnostic and Treatment Protocols Regulations , N.S. Reg. 20/2013. Section 10(3) of those regulations include “all fibres of ligament torn” in the defining the degree of sprain as a third-degree sprain. Therefore, the tearing of Mr. Pratt’s LCL and ACL are categorized as a sprain.

Having found the ligament tears to be a sprain, I have to consider under the minor injury cap regulations whether the sprain results in a serious impairment (s.11(1). [ 64 ] A serious impairment requires: “serious impairment”, in respect of a claimant, means an impairment of a physical or cognitive function that meets all of the following: (

i) the impairment results in a substantial inability to perform any or all of the following: (

A) the essential tasks of the claimant’s regular employment, occupation or profession, despite reasonable efforts to accommodate the claimant’s impairment and the claimant’s reasonable efforts to use the accommodation to allow the claimant to continue the claimant’s employment, occupation or profession, (

B) the essential tasks of the claimant’s training or education in a program or course that the claimant was enrolled in or had been accepted for enrolment in at the time of the accident, despite reasonable efforts to accommodate the claimant’s impairment and the claimant’s reasonable efforts to use the accommodation to allow the claimant to continue the claimant’s training or education, (

C) the normal activities of the claimant’s daily living, (ii) the impairment has been ongoing since the accident, and (iii) the impairment is expected not to improve substantially, [ 65 ] Mr. Pratt started the electrician course at NSCC a month after this accident and he completed the course. Mr. Pratt returned to his regular employment in the fall of 2018 and worked for about a month in August to September 2018. Mr. Pratt was able to perform the activities of his daily living.

I cannot find that the left knee injury resulted in a substantial inability to perform the essential tasks of his regular employment, the essential tasks of his education program or the normal activities of his daily living. Therefore, I cannot find

that the left knee injury resulted in a serious impairment as defined in s. 113E of the Regulations . [ 66 ] Some of Mr. Pratt's physical injuries would not be described as a sprain, strain, or whiplash-associated disorder injury. His ribs were fractured. He suffered a traumatic brain injury. These injuries do not fall under the definition of sprain, strain or whiplash- associated disorder and do not fall under the minor injury cap. Dr. Karabatsos's opinion, which I accept, is that Mr. Pratt's impairments are permanent and his prognosis for complete recovery is poor. In Dr.

Robinson's opinion, which I accept, the prognosis is poor for Mr. Pratt to return to his pre-indexed collision baseline level of function. [ 67 ] Mr. Pratt did not suffer a head injury in the 2019 accident and the 2017 injuries did not contribute to the crush injuries to his spine suffered in the 2019 accident. [ 68 ] On September 5, 2017, Mr. Pratt commenced an electrician course at NSCC. He completed that course and he then completed a four to five-week work placement. He was given accommodations, such as a special chair and accommodations for the labs he had to complete. Prior to attending the course, Mr.

Pratt contacted the college to explain his limitations and to ask if he should attend the course. Mr. Pratt testified that he was uncomfortable but was able to complete the course. His discomfort in sitting in class is noted in the physiotherapy notes in October of 2017. For the work placement, Mr. Pratt testified that he was unable to complete some of the work. He was unable to climb ladders and he was unable to crouch down to pull wires. These limitations made his work slow. From the testimony of Mr. Pratt, I understand his limitations to be associated with his physical injuries. [ 69 ] Both Ms. Pratt and Mr.

Pratt described Mr. Pratt as a very active man prior to this accident. Since the accident Mr. Pratt is described by Ms. Pratt as not moving from the coach/recliner and doing nothing but watching television. Since this accident Mr. Pratt has slept on the coach/recliner as the pain and discomfort from his injuries wake him up. Intimacy between Ms. Pratt and Mr. Pratt has been very infrequent since this accident. Mr. Pratt has dizzy spells, headaches, and memory loss from his brain injury. [ 70 ] The non-minor injuries suffered by Mr.

Pratt would result in an award for non-monetary loss of more than the minor injury amount. Regulation 14(2)(

b) requires me to:

(2) If a claimant suffers one or more minor injuries and one or more non-minor injuries as a result of an accident, the assessment of damages for non-monetary loss for all injuries suffered by the claimant is subject to the following rules: … (

b) if the non-minor injury or injuries, when assessed separately from the minor injury or injuries, would result in an award for non- monetary loss of more than the minor injury amount, the total amount recoverable as damages for non-monetary loss for all injuries suffered by the claimant must be calculated as the total of all of the following: (

i) the amount of damages assessed for non-monetary loss for the non-minor injury or injuries, (ii) subject to

Section 13, the amount of damages assessed for non-monetary loss for the minor injury or injuries. [ 71 ] Mr. Pratt has provided caselaw with a range of general damages from approximately $45,000 to $147,000. The Defendants have provided one case with general damages in the amount of $34,000. [ 72 ] When the course and work placement finished Mr. Pratt was in a financial crisis and was worried about losing his house. Mr. Pratt had always been the primary earner in the home. Ms. Pratt was a homemaker, mother and then worked part-time. In the summer of 2018 Mr. Pratt needed to earn an income.

He and his son drove to Alberta where Mr. Pratt looked for work in the electrical field. Unable to find work in the electrical field, he was hired to drive a truck by his former employer AFD. He worked for a month in August and September of 2018 for AFD. It was during this time that he realized that he could not account for over two hours when driving a truck. This loss of time or "black out", as described by Mr. Pratt, resulted in his visit to Dr. Masoumi on returning to Nova Scotia. [ 73 ] He returned to work full time in November 2018 on his regular 28 days on 14 days off rotation for AFD.

On his second 28-day rotation he suffered the injuries in the January 2019 accident and has been unable to return to work since that time. [ 74 ] Mr. Pratt's evidence, which I accept, was that he able to perform his duties for AFD in 2018. In his view, he had no choice but to continue working or lose his home because he could not pay the mortgage otherwise. [ 75 ] I find that Mr. Pratt's injuries were "persistently troubling but not totally disabling" ( Smith v. Stubbert , supra ) prior to his January 2019 accident. Mr. Pratt still suffers the effects of this accident in his post-concussion syndrome.

This has had a significant impact on his life, both professional and personal. While Smith v. Stubbert related to soft tissue injuries the range has been used for other types of injuries (for example: Mawdsley v. McCarthy's Towing & Recovery Ltd , 2010 NSSC 168 and Tibbetts v Murphy , 2017 NSCA 35 ). I find that Mr. Pratt's injuries are at the high end of the Smith v. Stubbert , supra, range and award him $55,000 in general damages. [ 76 ] Mr. Pratt's non-monetary loss for the minor injuries would be $8,486. Therefore, pursuant to Regulation 14(2)(

b) the total general damages award is $63,486. Pre-Judgment Interest: [ 77 ] Both counsels agree that the rate of pre-judgment interest should be 2.5%. Lost Past Income [ 78 ] The Defendants’ position is that Mr. Pratt did not lose any income prior to the January 2019 workplace accident. Mr. Pratt submits that he had not decided whether he was going to the electrician course at NSCC in the fall of 2017. Mr. Pratt had not quit AFD and had left open the option of returning to that work once the ground was firm enough for work to recommence in the fall of 2017. Mr.

Pratt also testified that he had been offered a position with Scotty's Piping which was to start the week after the accident, but he wasunable to accept that position due to the accident. [79] Mr. Pratt was self-employed for many years. He had three different trucks working in Alberta until the drop in oil prices in2015. With the downturn, Mr. Pratt declared bankruptcy in 2016 and lost two of the trucks.

The last truck worked for awhile in NovaScotia but there was not much money to be made in the trucking business on the east coast and he sold the last truck in March of 2019. [80] After his business closed in 2016, Mr. Pratt began working in Alberta, driving trucks. In 2017 he started driving a truck forAFD in Fort McMurray. That job involved working 70 hours a week and was 28 days on and 14 days off. Mr. Pratt worked that rotationwhile the camp was accessible but was laid off in either April or May for "spring breakup" when the ground was too soft to enter thecamp. Mr.

Pratt would then collect employment insurance until called back to work in the late fall when the ground firmed up. In 2017,Mr. Pratt was laid off in April but was called back to work in Alberta for AFD for a few weeks in May 2017. [81] After this accident, Mr. Prat attended NSCC for the electrician course. He completed that course and the four to five-weekwork placement in May 2018. While at NSCC Mr. Pratt collected employment insurance. After EI ran out, he was able to receive thesame amount through a program for skills development until the end of the work placement. After the work placement Mr.

Pratt did nothave any income from employment and could not find a job in the electrical field. In the summer of 2018, Mr. Pratt drove to Albertawith his son. After not finding electrical work, he drove a truck for AFD for one month, 10 hours a day. [82] In November 2018, once work started again in Fort McMurray, Mr. Pratt started his regular 28 days on 14 days off rotationwith AFD. He struggled to do the work, but he did it. Mr. Pratt was home for his 14 days off and Christmas. He returned to Alberta inJanuary 2019 and was injured. [83] Mr.

Pratt claims that he would have likely gone back to work in the fall of 2017 except for this accident. Mr. Pratt testified thathe had enrolled in the electrician course previously but had never actually taken the course. However, in 2017 Mr. Pratt not onlyenrolled in the course, he had also arranged for training benefits which would start after his EI benefits ended. On the day of thisaccident, Mr. Pratt was on his way to his brother's home to borrow a tool he would need for the electrician course. Mr. Pratt testified thathe had followed the money to Alberta and had worked there for seven years.

He wanted to be home, to stop flying back and forth, and tostop being away from family. Although Mr. Pratt indicates he was keeping his options open for the fall of 2017, the evidence persuadesme he was planning to attend NSCC for the electrician course and that is what he did. [84] There was insufficient evidence provided about the job with Scotty's Piping in 2017, even though the principal is a neighbourof Mr. Pratt. Mr. Pratt testified that he believes he was not kept at his work placement because he was slow and unable to perform someof the work due to his 2017 accident injuries.

No evidence was provided to support that. The only evidence was that Mr. Pratt was toldto call the company when he had healed. [85] Therefore, the evidence shows that Mr. Pratt did what he expected to do from September 2017 until May 2018. He collected EIand the training benefits. Mr. Pratt did not find work in Nova Scotia in the electrical field, but I am not persuaded that was due to theaccident. Prior to taking the NSCC course, Mr. Pratt would have been aware that he would be finishing just at "spring breakup" inAlberta.

He knew he would not be able to return to his regular work until the fall of 2018 if he did not find work as an apprenticeelectrician. [86] While working for AFD Mr. Pratt would have collected EI during the time he was off from May to November. In 2017 hedecided to take the electrician course. Any income lost in 2017 and 2018 was part of the risk Mr. Pratt took when he decided to attendthe electrician course. Mr. Pratt also received

Section B benefits from August 2017 to July 2018. [87] Mr. Pratt worked up to the January 2019 accident, but he has been unable to return to work since that accident. Any incomeloss after the January 2019 accident is due to that accident. He has collected Workers’ Compensation benefits since that time. [88] Based on the evidence provided, I cannot find that Mr. Pratt is entitled to an award of damages for past lost income. Future Income/Diminished Earning Capacity [89] Mr.

Pratt is still suffering from the severe left knee injury and the post-concussion symptoms that I find are unrelated to theJanuary 2019 accident. While Mr. Pratt returned to work after this accident, he did so with great discomfort and due to his dire financialsituation. [90] Mr. Pratt has the onus to prove his diminished earning capacity but as was noted in Leddicote v. Nova Scotia (AttorneyGeneral), 2002 NSCA 47 at para. 57, the burden is not as stringent as losses that occurred in the past.

Diminished earning capacitycannot be measured precisely, and it could be compensation for a loss which may never occur (Newman v. LaMarche, 1994 NSCA193). In many cases the Plaintiff will not be able to show, on the balance of probabilities, the extent of the loss and it is impossible todetermine with arithmetic precision the extent of the loss. It is considered as a loss of an asset (Gaudet (by his Guardian Ad Litem) v.Doucet et al., (NSSC)). The principle of full compensation applies. [91] Mr.

Pratt asks that I find that his future lost income or diminished earning capacity is the difference between his averagemonthly net income when he was working and the Workers’ Compensation benefits until he reaches the age of 65. This results in arange after discount of $239, 000 to $219,000. [92] The Defendants’ position is that Mr. Pratt is not under any limitation as a result of this accident and that any diminished earningcapacity is the result of the 2019 accident. [93] In Athey v.

Leonati, (SCC), [1996] 3 S.C.R. 458, the principles that apply where there is an intervening orunrelated event after the Plaintiff is injured were examined.

31 The respondents also sought to draw an analogy with cases where an unrelated event, such as a disease or non-tortious accident,occurs after the plaintiff is injured. One such case was Jobling v. Associated Dairies Ltd., [1981] 2 All E.R. 752 (H.L.), in which thedefendant negligently caused the plaintiff to suffer a back injury. Before the trial took place, it was discovered that the plaintiff had acondition, completely unrelated to the accident, which would have proved totally disabling in a few years. Damages were reducedaccordingly. In Penner v. Mitchell (1978), 1978 ALTASCAD 201 , 89 D.L.R. (3d) 343 (Alta.

C.A.), damages for loss ofincome for 13 months were reduced because the plaintiff had a heart condition, unrelated to the accident, which would have caused herto miss three months of work in any event. 32 To understand these cases, and to see why they are not applicable to the present situation, one need only consider first principles. The essential purpose and most basic principle of tort law is that the plaintiff must be placed in the position he or she would have beenin absent the defendant’s negligence (the “original position”).

However, the plaintiff is not to be placed in a position better than his orher original one. It is therefore necessary not only to determine the plaintiff’s position after the tort but also to assess what the “originalposition” would have been. It is the difference between these positions, the “original position” and the “injured position”, which is theplaintiff’s loss. In the cases referred to above, the intervening event was unrelated to the tort and therefore affected the plaintiff’s“original position”.

The net loss was therefore not as great as it might have otherwise seemed, so damages were reduced to reflect this. 33 In the present case, there was a finding of fact that the accident caused or contributed to the disc herniation. The disc herniationwas not an independent intervening event. The disc herniation was a product of the accidents, so it does not affect the assessment of theplaintiff’s “original position” and thereby reduce the net loss experienced by the plaintiff.

The Court in Athey reiterated the principle that a defendant is liable for any injuries caused or contributed to by his negligence (para. 12)and that it is not necessary for the Plaintiff to establish that the defendant’s negligence was the sole cause of the injury (para. 17). [94] The Court of Appeal considered the principles in Athey and McNaughton v. Ward, 2007 NSCA 81 where there had been amotor vehicle accident and a workplace injury. They upheld the trial judge’s finding that the motor vehicle accident had not caused orcontributed to her present condition.

Saunders J.A. stated that the trial judge had to decide the effect of the appellant’s pre-existingmedical history and her subsequent workplace injury on her present circumstances (para 63). The Court upheld the trial judge’s findingthat the motor vehicle accident was not responsible for any of the Plaintiff’s present medical problems or ongoing complaints. [95] Here the injuries suffered by Mr. Pratt in the 2019 workplace accident were crush injuries to vertebrae in his thoracic spine. The ongoing injuries from this accident are the effects of his concussion and his knee injury.

These injuries were caused by theDefendants and not the workplace accident. [96] If I am to place Mr. Pratt in the position he was if this accident had not occurred, Mr. Pratt would still have suffered the crushinjuries to his thoracic spine. [97] Dr. Robinson’s opinion, which I accept is that Mr. Pratt’s concussion effects do not substantially make him unable to performthe tasks of his employment. Mr. Pratt’s knee injury, I find, did diminish his ability to earn income. Mr.

Pratt described his knee givingout, an inability to crouch to pull wires and difficulty performing other work tasks. [98] From 2013 to 2015, Mr. Pratt was running his own business and had a net business income of $78,209, $46,305, and $47,829per year. In 2016, at the time of the downturn in the oil industry, Mr. Pratt had both business income and had T-4 earnings totaling$31,291. In 2017, Mr. Pratt earned $50,378 from his employment income and employment insurance. [99] Mr. Pratt experienced dizziness, and pain in his hips, back, shoulders and knees when he returned to work.

I also accept hisevidence that he had gone through all of his savings and was in danger of losing his home due to his financial situation. Mr. Pratt hadlittle choice but to return to work despite his health issues. [100] Mr. Pratt continues to suffer the effects of his knee injury. I accept Dr. Karabatsos' evidence that Mr. Pratt has reached hismaximum recovery, is a high risk for developing osteoarthritis, and is likely to need knee replacement surgery in the next 10 to 15 years. [101] I find that Mr. Pratt’s severe knee injury suffered in this accident has diminished his earning capacity. [102] Mr.

Pratt is currently receiving Workers' Compensation benefits from the January 2019 accident. It is unclear how long thosebenefits will last and whether he will return to work. Currently Mr. Pratt is receiving approximately $4,000 per month. He is not losingany income and will not unless his Workers’ Compensation benefits stop. [103] It is not clear from the evidence whether the accident of 2019 will preclude Mr. Pratt from working in the future. If theworkplace accident does not preclude Mr. Pratt from working, he should be compensated for his diminished earning capacity due to hisseverely injured left knee.

I award Mr. Pratt $25,000 for his diminished earning capacity. Loss of Housekeeping/Valuable Services [104] Mr. Pratt asks that I award damages under this heading for completion of the renovations that he started prior to the accident buthas been unable to finish. The evidence is clear that Mr. Pratt started renovations such as ripping out carpets, installing hardwood floors,taking out walls and expanding the deck prior to this accident. This work has never been completed. Mr. Pratt's father did completesome of the hardwood floor work in the living room in 2017 to allow the family to have a Christmas tree.

I have not been provided anyevidence of the cost to complete these repairs. [105] Mr. Pratt also asks for damages for the cost of vehicle maintenance. Prior to this accident, Mr. Pratt did all the maintenance onthe family vehicles. Mr. Pratt built a large garage with a hoist. He did the oil changes, tire rotations, brake work, etc. Mr. Pratt has beenunable to do this work since this accident and the family must pay for that work to be done. I was not provided with an estimate of thecost of that work.

[ 106 ] Mr. Pratt has also been unable to assist with other household chores. Ms. Pratt testified that prior to this accident, Mr. Pratt helped with cooking and chores, did the heavy lifting, did the lawn maintenance and snow clearing. While Mr. Pratt was working his 28 days rotation in Alberta these chores were done by other family members or other arrangements were made. [ 107 ] In Awalt v.

Blanchard , 2013 NSCA 11 , the court found at para. 47: Loss of Valuable Services: [47] Loss of valuable services can only be recovered if direct economic loss can be proved: [50] The question becomes to what extent, if at all, have the injuries impaired the claimant's ability to fulfill homemaking duties in the future?

Thus, in order to sustain a claim for lost housekeeping services one must offer evidence capable of persuading the trier of fact that the claimant has suffered a direct economic loss, in that his or her ability or capacity to perform pre-accident duties and functions around the home has been impaired. Only upon proper proof that this capital asset, that is the person's physical capacity to perform such functions, has been diminished will damages be awarded to compensate for such impairment. For an excellent and comprehensive analysis of this subject see the paper presented by W.

Augustus Richardson to the Nova Scotia CLE Society in January, 2001. [Leddicote, 50] [48] It is not necessary that expenditure be incurred, provided there is an impairment of one's physical capacity to perform pre-accident services and functions. [49] Ms. Awalt sought $30,000.00 for loss of valuable services. Such a sum warrants a sound evidentiary foundation. The trial judge was unpersuaded. Certainly the evidence was very modest. Here the Defendants claim that there is no evidence to support a loss of valuable services claim. They say that Mr. Pratt was away for long periods of time and Ms.

Pratt did the majority of the duties even when Mr. Pratt was home. [ 108 ] An actual financial loss need not be established to make out a claim ( Awalt , supra, para 48 ). As Justice Brothers said in Gale v. Purcell , 2018 NSSC 319 , "loss of valuable services is often dealt with in a global way as a loss or an impairment of an asset" (para. 202). In that case, the Plaintiff was found to have some impairment, for a period of time and $10,000 was awarded.

Justice Warner in Blenus , supra, awarded $25,000 for loss of housekeeping capacity and valuable services where the Plaintiff required assistance to do chores he had been able to do prior to the accident. Justice Warner reviewed cases where losses for valuable services were between $5,715 and $12,015 but awarded $25,000 placing emphasis on the loss of ability to perform the heavier outdoor chores. In Leslie v. S&B Apartment Holding Ltd ., 2011 NSSC 48 , Justice Scaravelli awarded $35,000 based on the ability to perform duties being impaired and the continued need for assistance in the future. In Warnell v.

Cumby , 2017 NSSC 88 , Justice Robertson awarded the Plaintiff $15,000 although she was able to resume most of her housekeeping duties and injuries in that case fell under the minor injury cap. [ 109 ] I do find that Mr. Pratt's capacity to perform the functions that he did prior to this accident has been diminished The renovations need to be finished and I accept that Mr. Pratt is unable to crouch to complete the floors. Mr. Pratt continues to be impaired. There will be costs for vehicle repairs and maintenance.

With emphasis on the vehicle repairs and maintenance and the inability to complete the renovations, I will award Mr. Pratt $15,000 for loss of valuable services. Future Care: [ 110 ] There is no report on the cost of future care. In the fall of 2018, Mr. Pratt was not taking prescription medication or over the counter medication for pain from this accident. Dr. Karabatsos provided some estimates in his report on cost of future care, but he was not qualified as an expert in that area and it is unclear from his report on what Dr. Karabatsos based the cost estimates.

There is no evidence as to the cost for a functional assessment, supportive care, a weight loss program, or a chronic pain evaluation, all of which were recommended by Dr. Karabatsos. [ 111 ] Mr. Pratt testified that he was attending for craniosacral massage and finding some relief for his post-concussion symptoms. The funding was in place for this treatment twice a week in January and February 2021, but it ended. Mr. Pratt has been paying the $93.00 per session since that time. Mr. Pratt was unable to afford this treatment twice per week, so he cut it back to once a week.

While I do not have evidence of how long this treatment should last, I accept that it is giving Mr. Pratt some relief and he should continue to attend. [ 112 ] I will award Mr. Pratt $10,000 to continue to pay for craniosacral massage and toward the assessments, care and programs recommended by Dr. Karabatsos. Out of Pocket Expenses : [ 113 ] There is no evidence of out of pocket expenses.

SUMMARY AND CONCLUSIONS [ 114 ] I find that the August 3, 2017 accident caused both minor injuries and more serious injuries to Mr. Pratt. The Defendants are liable to Mr. Pratt for the following: General Damages: $ 63,486

Pre-Judgment Interest (43.5 months): $ 5,753 Cost of Future Care $ 10,000 Future Income/Diminished Earning Capacity $ 25,000 Loss of Valuable Services $ 15,000 TOTAL: $119,239 Lynch, J.