Cavillations

Lahay v. Henderson arose out of an MVA which left the plaintiff with soft tissue injuries, principally to his back. Liability was admitted.

The trial judge ruled that the plaintiff, a manual labourer before the accident, would never be able to return to that sort of work. He found that the plaintiff’s injuries met the threshold and he assessed general damages at $90,000 before the Insurance Act deductible. Future income loss was assessed at $265,213, based on a finding that the plaintiff had residual earning capacity of $25,000 per annum. In addition, the trial judge applied to the future income loss a contingency reduction of 30%, principally becuase of various pre-existing health problems from which the plaintiff had suffered. Continue reading →

Two decisions of importance to the personal injury bar and the insurance industry were released by the Court of Appeal this afternoon. They are Vollick v. Sheard and Walker v. Ritchie. Both cases involved the issue of whether an owner of a car, who happens also to be the employer of the driver, is a “protected defendant” within the meaning of s. 267.5 of the Insurance Act. In Vollick, that was the only issue. The Walker case involved a number of other issues as well. Vollick v. Sheard In the Vollick decision, the Court ruled that “a defendant otherwise enjoying protected defendant status as owner of a motor vehicle is nevertheless liable to an injured party for the negligence of its employee”. (It reached the same conclusion in Walker .) In so ruling, the Court of Appeal overruled the decision of Justice Nordheimer in Hechavarria v. Reale. So, where the owner of the vehicle is also the employer of the driver, he, she or does not gain the protection of the threshold, the deductibles, the collateral benefits deductions, etc. under the Insurance Act.  Continue reading →