This is the first of two parts concerning a recent Nova Scotia Court of Appeal Decision.
The recent decision of the Nova Scotia Supreme Court in Tibbetts v. Murphy, 2015 NSSC 280, upheld on appeal by the Nova Scotia Court of Appeal in Tibbetts v. Murphy, 2017 NSCA 35, will have a harsh impact on permanently disabled injury plaintiffs who are in receipt of Canada Pension Disability Benefits.
Background
On July 19, 2011, Shirley Tibbetts and her partner, Joseph Joyce, were out enjoying a motorcycle cruise from their home in Durham, Pictou County, to Antigonish. Both were new to motorcycling and chose a route avoiding heavy traffic. Deciding to take a detour to take advantage of some of the scenery, they turned down a side road and travelled down to the Livingstone Cove Wharf.
On their return, Joyce drove ahead on the Livingstone Cove Wharf Road with Tibbetts following behind. The road was a narrow gravel road with no marked centre line. Coming around a turn, Joyce encountered a truck being driven by the Defendant, Reginald Murphy. Both Joyce and Murphy swerved to avoid contact, but Tibbetts, travelling a short distance behind, was not as lucky and collided with Murphy’s truck.
The injuries suffered by Ms. Tibbetts were severe. She had a dislocated and fractured hip, fractured tibia and fractured fibula. Her injuries required eleven days in hospital and multiple surgeries. In the months following her accident, she had severely limited functioning, requiring assistance for even the most basic tasks such as bathing and using the toilet. Ms. Tibbetts also gave evidence that she suffered from severe, ongoing pain, experienced regular swelling in her foot and leg that made it difficult to find suitable footwear, and had permanent functional limitations that affected her ability to engage in and enjoy her pre-accident leisure activities. She also found it difficult to carry out household tasks, relying heavily on her spouse to either take over or assist with these activities.
Trial Decision
Liability
Both liability for the accident, and the appropriate quantification of Ms. Tibbetts’ injuries were at issue in this trial. Taking all of the relevant facts into consideration, the trial judge found that the Defendant, Murphy, was 2/3 liable for the accident, and Ms. Tibbetts 1/3 liable for the accident occurring. This liability split was determined as a result of the trial judge’s finding that Ms. Tibbetts’ attention was focused on the road surface as opposed to oncoming traffic in the moments before the collision.
General Damages
In addition to liability, the Court had to consider how Ms. Tibbetts’ injuries should be compensated. Looking at all of her injuries, and the long-term effects of them, the trial judge took a somewhat unusual approach, applying the decision in Smith v. Stubbert (1992), 117 N.S.R. (2d) 118 (C.A.) to the facts, holding that Ms. Tibbetts’ injuries were “persistently troubling” but not disabling, and therefore awarding general damages in the amount of $30,000. We refer to this approach as unusual as Smith v. Stubbert is longstanding legal authority with respect to how soft tissue injuries with permanent, persistently troubling effects should be treated by the law. This is not the typical approach to a Plaintiff with multiple, serious orthopaedic injuries and has, in our assessment, resulted in an inappropriately low general damages award given Ms. Tibbetts’ injuries.
Part 2 of this blog feature will be posted on June 21, 2017.