Personal Injury Lawsuits Don’t Always End with the First Court Decision

The first court decision in a personal injury lawsuit isn’t always the final one. When a personal injury lawyer takes on a client, it’s their job to secure the full amount of compensation to which that client is legally entitled. Often, this doesn’t require stepping foot in the courtroom – many disputes can be solved through mediation and negotiation. Sometimes, however, your personal injury lawyer must argue your case in front of a judge and/or jury. If your case is sound and the judge or jury makes an appropriate decision, your legal journey will end here. In some situations, though, your case will require one or more subsequent decisions to arrive at its final outcome.

Finding for the Defence

In the case Girao v. Cunningham, for example, the plaintiff, Girao, sought compensation for non-pecuniary general damages stemming from an automobile accident in 2002. She claimed to have suffered whiplash to the neck, back, and shoulders; tempo mandibular joint (TMJ) dysfunction, an injury affecting the ligaments around the jaw joints; and mental health injuries including depression, anxiety, and PTSD as a result of the accident. The jury sided with Girao and awarded her $40,000 in compensation, according to Canadian Lawyer.

However, the defendant, Cunningham, filed for Girao’s claim to be dismissed. Cunningham claimed that Girao was unable to prove that her injuries were caused by the accident. The court agreed, in part. It found that the evidence showed Girao likely had an underlying medical issue causing the TMJ dysfunction. It also found that Girao had a “significant pre-accident history of depression, anxiety and PTSD,” including a “diagnosis of major depression with psychotic symptoms in partial remission” just months before the accident.

The court agreed with Girao that the accident caused her whiplash, and agreed that the condition was permanent. However, it did not conclude that the injury had significantly hindered her ability to perform usual activities. Rather, it found that her pre-accident mental health issues were chiefly to blame for her impairment. As a result of these findings, the court reversed the jury’s award and dismissed Girao’s claim.

Finding for the Plaintiff

Not all secondary decisions favour the defence. In the British Columbia lawsuit Lo v. Vos, the Court of Appeal found in favour of a teacher who appealed a decision from the provincial Supreme Court.

The calculation of loss of future earning capacity was at the heart of this dispute. The plaintiff in the original action sought compensation for a variety of physical and psychological injuries stemming from a car accident, as well as compensation for loss of future earning capacity as a teacher. The Supreme Court trial judge agreed with many of the plaintiff’s arguments, including the fact that she was owed compensation for loss of future earnings and that the compensation should be calculated based on her potential earnings as a teacher.

However, they differed on a key point: the plaintiff alleged that her ability to earn an income was permanently impaired; the judge disagreed, finding instead that there was a ‘real and substantial possibility that the appellant would experience indefinite impact on her future earning capacity,’ according to Canadian Lawyer.

The Supreme Court awarded the plaintiff $300,000 in damages, a figure that was reduced to $240,000 based on a contingency deduction. The plaintiff appealed the decision, claiming that it was “a wholly erroneous estimate of her damages and inordinately low.”

The Court of Appeal sided with the plaintiff and their personal injury lawyer. It found, in particular, that the Supreme Court judge had failed to correctly calculate the likely extent of the damages suffered by the plaintiff. Writing for the Court of Appeal, Justice Christopher Gauer said that the trial judge “was reasonable to expect the [appellant] to be off work in the short-term, which she later set at four years. That conclusion, in my opinion, was open to [the Supreme Court judge], but given the real and substantial possibility she found, it was necessarily a starting point, not the end of the analysis.”

In a win for the plaintiff, the Court of Appeal revised their award from $240,000 to $810,000.

Contact Will Davidson LLP

If you’ve been injured in an accident, contact Will Davidson LLP today to schedule a free, no-obligation consultation. Personal injury disputes are often complex, and when a court fails to decide in your favour you will need the expertise of a seasoned legal representative to help you pursue the compensation you deserve. The team at Will Davidson LLP has represented seriously injured accident victims from across Ontario at every level of court for decades. If you need representation you can trust, contact us today.

Image: Unsplash


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