$100 nominal award
In a surprise winning decision this personal injury claimant succeeds in his appeal against the dismissal of his injury claim. Failing to file a medical-legal report is not a grounds for dismissal and the claimant was not provided with adequate notice.
However, given the scant evidence he was only awarded $100.00. for his personal injury claim by the Court of Appeal. This case reinforces the need to have a legal advocate hired and legal advice to pursue a personal injury claim.
This personal injury case appeal arises as a result of an assault by the night manager at a restaurant. Evidently, the night manager was under the mistaken impression that the claimant had left the café without paying his bill.
The claimant said he was tackled on the sidewalk by the night manager and was badly injured as a result. He commenced his lawsuit against the defendants in January 1996, but being unrepresented without a lawyer, he has faced challenges and delays in navigating the court system. (Read my review of the trial decision Claimant Without Lawyer Bungles Injury Case )
The Court of Appeal focused on the Judges insistence on being provided with a medical report in allowing the appeal this way
[11] First, there is no legal rule to the effect that in order to have damages for personal injury assessed, a plaintiff must adduce a medical-legal report into evidence: see Reible v. Hughes [1980] 2 S.C.R. 880. There is no doubt that such reports are very helpful and that without one, it is difficult for a judge to assess damages. In this case, for example, Mr. J told the Court that he had suffered a broken clavicle and a “banged up knee” as a result of the assault, but had no details of the injuries or the financial consequences he had suffered. At this point in time, several years after the assault, it would appear no further information is likely to be brought forward.
However, the Court of Appeal went on to explain why a nominal amount should be awarded if no medical opinion is provided:
[12] However, since the plaintiff obtained judgment for assault, an intentional tort, it was open to the Court to award a nominal sum. Even if the tort had been negligence, the Court could have given an award of damages that would at least give some recognition of Mr. J’s injuries.
[13] I also agree with counsel that the chambers judge should not have dismissed Mr. J’s claim on his own motion and without prior notice to Mr. J. The plaintiff was taken by surprise and, being unrepresented, was not able to make a meaningful attempt to forestall such an order. Finally, since Mr. J had already obtained judgments against the defendants, it was simply not possible to dismiss “the claim”. The claims had been reduced to judgments years ago and those judgments could not be reversed or nullified except under Rule 3-8 of the Supreme Court Civil Rules or by this court on appeal.
[14] In all the circumstances, then, the appeal must be allowed and the chambers judge’s order set aside. Since this matter has dragged on long enough, I would also assess Mr. J’s damages at $100.(Jalava v. Webster,2017 BCCA 378)
I think the message is that claimants are open to go to court without medical-legal reports, but should expect only nominal damages such as the $100.00 in this case.
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Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.