General Damages for Whiplash and Neck Injuries

General damages for whiplash are decided under a different set of rules than any other injury in the region, because three of the four Atlantic provinces cap what a defined minor injury can recover after a motor vehicle collision. Whether a neck injury falls inside that definition is usually the whole argument. This chapter states how the grading works and where the cap stops, and the series index is the general damages guide.

Whiplash Is Graded by What It Does

Clinicians describe whiplash associated disorder in grades. The lowest is neck complaint with no physical sign, the next adds restricted movement and tenderness, the next adds a neurological finding such as weakness or altered reflexes, and the highest involves fracture or dislocation. The grade matters legally because the caps in New Brunswick, Nova Scotia and Prince Edward Island are written around sprains, strains and the lower whiplash grades. A neurological finding is often what moves a claim out of the capped category.

Three Provinces Cap Minor Injury Awards From Car Crashes

New Brunswick, Nova Scotia and Prince Edward Island each limit general damages for injuries that meet a regulatory definition of minor and arise from the use or operation of a motor vehicle. The definitions are close but not identical, each sets its own indexed maximum, and each is published by the province rather than fixed by a judge. Newfoundland and Labrador has taken a different route and does not apply the same minor injury cap. Current wording for the Nova Scotia regulations is available through the Nova Scotia legislature.

Serious Impairment Is What Takes a Neck Claim Outside the Cap

The regulations exempt an injury that causes a serious impairment of an important bodily function. In practice that means showing the neck injury stopped the person doing something substantial in their work or their household, that the limitation is ongoing, and that it is not expected to resolve. Evidence of the person’s life before the crash supports this comparison, because the comparison is against their own baseline rather than an average.

General Damages for Whiplash the Cap Never Reached

A cap argument does not arise at all where the neck injury is a disc herniation with radiating symptoms, a fracture, or nerve damage, or where the collision was not a motor vehicle collision. Those claims are valued on ordinary comparison with decided cases, and awards for permanent neck injury with lasting restriction run well into the higher five figures and above in the reported cases. Pain that persists long after the tissue healed is covered in the chapter on chronic pain, and the neighbouring chapter on the back covers disc injury lower down the spine. The firm argues cap exemptions on most of its car accident files.