In Hennessy v. Tyson, 2022 ONSC 6194, a recent case from the Ontario Supreme Court, the court was asked to determine the appropriate amount of damages for a woman injured in a jet ski accident.
The Plaintiff’s Jet Ski Accident
Before the accident, the plaintiff was employed as a medical administrator for a neurologist. She is divorced and has two adult children.
On June 20, 2015, the plaintiff was involved in a jet ski accident while visiting a friend at the Maitland Gorge Trailer Park. The plaintiff and her daughter were passengers on a jet ski owned and operated by the defendant. The plaintiff and her daughter were thrown from the jet ski after the friend proceeded to drive in circles.
After getting back on the jet ski, the plaintiff and her daughter were thrown from the jet ski again after the defendant drove across the wake of another boat, wherein the plaintiff was injured.
The Plaintiff’s Injuries
The plaintiff hit the water on her left-hand side and reported considerable pain. After being taken to the emergency department of a nearby hospital, the plaintiff found out that she had suffered three fractured ribs and a punctured lung.
Following the jet ski accident, the plaintiff also suffered from several psychological and emotional impacts, including:
- Breathing problems, resulting in insomnia
- Post-traumatic stress disorder (including fear of jet skis)
- Fear and lack of motivation
The Plaintiff’s Recovery
Following the jet ski accident, the plaintiff experienced significant pain on her left side and difficulty breathing. Her severe pain lasted for eight months and eventually decreased, though she reported ongoing intermittent pain.
As a result of her punctured lung, the plaintiff experienced a decrease in lung volume, which impacted her job performance and public speaking hobby. She also had to take precautions regarding lung infections, a heightened concern due to the COVID-19 pandemic.
At trial, the plaintiff’s psychological and emotional impacts were ongoing, and she continued to use Tylenol daily for pain management.
The Impact of the Jet Ski Accident on the Plaintiff’s Life
Following the accident, the plaintiff was unable to perform many daily tasks, including personal care and housekeeping, for up to one year. Her daughter assisted her with many of these tasks.
While the plaintiff could return to work, thanks to an accommodating employer, she felt unable to meet her job duties. The plaintiff was let go in 2019 for reasons unrelated to the accident and obtained a casual position at a local hospital. However, given the impact of the jet ski accident, the plaintiff had concerns about her ability to continue working in her field.
Court Awarded Damages for Injuries Sustained in the Jet Ski Accident
As the defendant failed to file a statement of defence, the court’s analysis was limited to the amount of the plaintiff’s damages.
Non-Pecuniary Damages for Physical Injuries
In the Court’s decision regarding damages, it noted that the plaintiff had suffered serious injuries in the jet ski accident. Concerning her physical injuries, the Court found that the injuries were “significant for eight months, moderate for the next thirty and with some residual difficulty to the present.” The Court awarded the plaintiff $75,000 for her physical injuries based on similar cases.
Non-Pecuniary Damages for Psychological Injuries
The Court acknowledged that assessing psychological injuries was more difficult in this case, as the plaintiff had not obtained medical reports and opinion evidence documenting her injuries. Nonetheless, the Court found that there was evidence of psychological injury, given the nature of the plaintiff’s physical trauma and the limitations on her daily life.
Given the limited evidence to rely on, the Court awarded the plaintiff $15,000 for her psychological injuries.
Pecuniary Damages for Housekeeping and Personal Care
The plaintiff put forward calculations for a personal care award based on
- the eight months after the jet ski accident when she was unable to perform personal care and housekeeping tasks;
- the three years after the accident when she was limited in her personal care and housekeeping activities;
- the last couple of years (after the initial three years) when she was slightly restricted in her personal care and housekeeping activities; and
- future personal care and housekeeping assistance to the age of 65
The Court was satisfied that the plaintiff had required housekeeping and personal assistance for the first three years following the accident. However, in the absence of medical evidence and evaluations, the court declined to make an award for the latter two categories.
The plaintiff was awarded $25,000 for personal care and housekeeping services.
Pecuniary Damages for Future Medical Care Expenses
The plaintiff put forward calculations for future medical care – specifically, future sessions allegedly recommended by her doctor for therapeutic counselling, in the range of $12,000 to $24,000. The Court noted that the doctor’s records did not reflect this recommendation, but in any event, they noted that such referral would be “common practice” in the plaintiff’s situation.
As a result, the court awarded $12,000 for future medical care expenses.
Damages for Loss of Income no Awarded
The plaintiff sought $14,400 for future loss of income, based on her concerns regarding her future ability to work. The Court declined to make an award for future loss of income on the basis that the plaintiff had not put forward any evidence regarding the likelihood of future loss of income.
Implications for Personal Injury Plaintiffs
This case is a critical reminder of the importance of documentation and evidence in personal injury cases. As the decision shows, the plaintiff’s award – while substantial – was significantly limited by the Court due to a lack of evidence in certain areas (and, in the case of her claim for loss of income, no award was granted). Seeking treatment early is critical for personal injury claimants during their recovery and can also have significant impacts on any future damages awards. Furthermore, obtaining the appropriate expert evidence is critical for any personal injury case (another evidentiary area lacking in this case).
Contact the Personal Injury Lawyers at Campbell Litigation for Advice on your Personal Injury Claim
For those engaging in recreational activities such as boating, snowmobiling and jet skiing, accidents sometimes unfortunately occur. A whiplash injury, soft tissue injury, brain injury, spinal cord injury, or even death can result from these recreational vehicle accidents. Depending on the severity of the injuries, physical and mental health, mobility, and earning capacity may be affected. After an accident, it is important to seek legal advice as soon as possible to preserve evidence and establish the strongest possible case for compensation.
Campbell Litigation is a respected Southern Ontario law firm serving Kitchener, Waterloo, Cambridge, Guelph, Stratford and surrounding areas. Seasoned personal injury lawyer and litigator Richard Campbell is a skillful advocate who works tirelessly to ensure his clients are fairly compensated for their injuries. To speak with a member of our firm, call us at 519-886-1204 or contact us online.