A CASE COMMENT ON JACKSON V COOPER 2022 ABKB 609
Facts & Issues:
In this matter the Plaintiff, Mr. Jackson, claimed damages for injuries sustained in a motor vehicle accident on October 21, 2015. Liability was not an issue before the Court. As a result of the collision, Mr. Jackson sustained injuries to his neck, shoulders, back, chest, and ribs. The issues before the Court were: whether the Plaintiff’s injuries were “minor” under the Minor Injury Regulation (MIR), hence capped; if not, then what would be a fair quantum of damages under each head of damage claimed. In addition, the Court also had to resolve the long-standing issue related to retrospective or prospective application of s 585.2(2) of the Insurance Act to calculate post-judgment interest on general damages.
Analysis:
The Court relied on the expert report by Dr. Boucher submitted by the Plaintiff, wherein the expert assessed Mr. Jackson’s post-collision injuries, including chronic myofascial pain. The Court accordingly held the Plaintiff’s injuries resulted in “serious impairment” and was beyond the definition of “minor” under the Regulation, hence not capped. The Court relied upon the 5 – step test defined in Sparrowhawk v Zapoltinsky, 2012 ABQB 34 para 96, for the assessment of serious impairment, which is:
- Is a physical or cognitive function impaired?
- Is the sprain, strain, or WAD injury “the primary factor contributing to the impairment”?
- Does the impairment cause substantial inability to perform:
a. Essential work tasks,
b. Essential facets of training or education, or
c. “Normal activities of the claimant’s daily living”? - Has the impairment been “ongoing since the accident”? and
- Is the impairment not expected to “improve substantially”??
The Court also noted that the Defendants did not argue the issue of substantial improvement, however continued its analysis on the issue. The Court admitted Dr. Boucher’s opinion that the Plaintiff’s dysfunction cannot be expected to improve soon to remove Plaintiff’s injuries beyond the definition of serious impairment. Applying the above test, the Court held that the Plaintiff experienced serious impairment. Which has resulted in a substantial inability to perform normal activities of his daily life. This has been ongoing since the accident and is not expected to improve substantially.
Damages:
In assessing general damages, the Court noted that Mr. Jackson attended treatments for 7 months post-collision when his insurance company closed his file. The Court also noted Dr. Boucher’s assessment of the Plaintiff’s 10% whole person impairment rating under the 4th edition of the AMA Guidelines. On cross-examination, the Court accepted the Whole Person Impairment under the 6th edition of the AMA Guidelines, which would be 4-6%. The Court then reviewed the quantum provided in old Alberta cases and noted that the quantum in each historical case must be increased to reflect current inflation rates. The Court assessed General Damages in the amount of $55,000.
The Court found that the Plaintiff’s earning capacity was limited to the 6 months where he was unable to work for 20 hours/week @$20.49/hr due to his injuries and assessed the past loss of income as $10,660. The Court declined the Plaintiff’s loss of earning capacity in future, being speculative under the given circumstances.
The Court awarded $10,000 towards Mr. Jackson’s past loss of housekeeping claim as it noted that he was responsible for 60% of the housekeeping before the accident and was able to perform only 40% post accident. In addition, the Court granted $31,808 for the Plaintiff’s costs for treatments in future.
Pre-judgement Interest Calculations:
The significance of this decision lies in clearing the fog surrounding the application of s 585.2(2) to the Insurance Act, RSA 2000, c I-3. The defendants argued for retrospective application of the provision, whereas the Plaintiff claims that the provision must be applied prospectively. The Court divided its analysis of s 585.2(2) into 4 parts:
- the correct terminology
- whether pre-judgment interest rights is procedural or substantive
- whether pre-judgment interest is a vested right
- whether the amendments to the Insurance Act were for the protection of the public
Firstly, the Court noted that the provision does not use any terminology to suggest that it should be applied retroactively. Secondly, the legislative intent for retroactive application of s 585.2(2) is unclear. Going deeper into the rabbit hole, the Court further analysed the nature of pre-judgment interest rights –procedural or substantive? The Court held that the pre-judgment interest rights recognize the value of the damages awarded, particularly when that amount of money could be used since the claim arose. The rights are substantive in nature as it goes to the substance of the cause of action asserted. This also supports the presumption against a retroactive application. Thirdly, the Court noted that the pre-judgment interest rights are not vested rights as the pre-judgment interest does not vest until a determination is made by the trial judge. Lastly, the Court rejected the defendants’ argument that retroactive application of the provision would reduce costs of claims for insurance companies, and in doing so, reduce the insurance premiums paid by individuals, protecting public interest. The Court also noted that direct language or necessary implication is required to displace the strong presumption against retroactivity.
The Court concluded that the pre-judgement interest on general damages must be calculated as follows:
- Date of Loss to December 8, 2020 – PJI to be calculated at 4% under s 4(2) of the Judgement Interest Act; and
- December 9, 2020, thereafter – PJI to be calculated in accordance with s 585.2 of the Insurance Act.
Link to decision: Jackson v Cooper, 2022 ABKB 609
Crash Lawyers has significant experience advancing bodily injury claims arising from motor vehicle accidents on behalf of injured Albertans. If you have a question about the application of the Insurance (Enhancing Driver Affordability And Care) Amendment Act or Minor Injury Regulation, please contact any member of the Crash Lawyers team and we will be happy to assist you.
Article by: Veeren Bagga (Summer Student) and Nitin (Nick) Srivastava (Senior Counsel) – Crash Lawyers