March 8, 2022 - 

John McMullin, Associate Lawyer, LETOURNEAU LLP

On October 21, 2015, Papa Jackson was driving home from work on an ordinary day when Julie Cooper accelerated through a stop sign and smashed into his car.

This began a long journey through the Courts, culminating in the decision in Jackson v Cooper, 2022 ABKB 609. The Court had to address two particular points:

1)     What kind of interest was payable on Mr. Jackson’s award?

2)     Were Mr. Jackson’s injuries minor?

Interest

When you are hurt in a personal injury accident, interest on your damages is something you need to deal with. The main issue is interest on your pain and suffering. It used to be that there was interest at 4% a year from the date of the accident.

However, on December 9, 2020, a new law went into effect that stated interest was payable from the time the insurance company was made aware that there was a potential claim. Interest was also tied to the rate on ATB Financial Guaranteed Interest Certificates (GICs), then reduced. This number is historically less than 4%; in the last twenty years, only 2002 and 2003 had rates higher than 4%.

Since Mr. Jackson’s injury occurred before the change in the law, but his case was heard after the change in the law, the justice hearing the case, Justice Kraus, had to determine what interest was payable. He found that interest was payable at 4% to the date the law changed, and then payable at the lesser floating rate on December 9, 2020, rather than the lesser variable rate the insurance company wanted. Justice Kraus found there was no specific wording in the legislation that meant insurance rates were supposed to change before December 9, 2020.

Minor Injuries

The Court found that the test in Sparrowhawk v Zapoltinsky, 2012 ABQB 34, was the appropriate way to figure out if an injury was minor, as follows:

1.     Is a physical or cognitive function impaired?

2.     Is the sprain, strain, or WAD injury "the primary factor contributing to the impairment"?

3.     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"?

4.     Has the impairment has been "ongoing since the accident"? and

5.     Is the impairment not expected to "improve substantially"?

Physical or Cognitive Impairment

This factor is a low bar; is there actually an injury? Neither party seriously disputed whether there was an injury so this requirement was met.

Primary Factor

The Court found that Mr. Jackson was credible, and that he described having an injury, so his subjective complaints about the accident were enough to confirm the Accident was their cause.

Substantial Inability

The Court did not find that Mr. Jackson’s essential work tasks were affected by the accident, as he continued in his normal work before and after the accident.

However, as Mr. Jackson no longer played soccer, had restricted ability to play other sports, had reduced ability to play with his children, and affected his sexual relationship with his wife, the Court agreed that Mr. Jackson’s normal activities of daily living had been affected by the accident.

Ongoing Since the Accident

Mr. Jackson was discharged from physiotherapy and the insurance company argued that his injuries resolved at that time. The Court found that Mr. Jackson’s pain improved at some points but went through ups and downs.

No Substantial Improvement

In order to “get out of” the minor injury designation, an injured person has to show that the injury is not going to get better. As the experts stated that Mr. Jackson’s injuries were ongoing, the Court confirmed there was no substantial improvement expected.

After the justice considered all the factors, the justice awarded:

·        $55,000.00 for pain and suffering;

·        $10,660.00 for loss of earning capacity;

·        $10,000.00 for past loss of housekeeping capacity;

·        future cost of care of $31,808.00; and

·        Interest, including 4% before December 9, 2020.

Jackson was a win for people hurt in a car accident. It shows that ongoing injuries are recognized by the Courts and individuals with injuries that occurred before changes to interest rates are given the rights they deserve under the law.

Jackson is currently under appeal and we will update this article when the appeal decision is released.

If you have been in a car accident, it's a great idea to speak to a personal injury lawyer about your rights and responsibilities.

Learn more about John McMullin, our Personal Injury Lawyer.

Learn more about Personal Injury Law from our website.

This article is for information purposes only and does not constitute legal advice.