Executive Summary: Key Legal and Evidentiary Issues

• The court had to determine the proper quantum of damages arising from a 2021 hit-and-run accident, since liability was not in dispute.
   
• Two neurologists agreed on the nature of Jennifer Morris's traumatic brain injury but disagreed on its long-term severity, cause, and prognosis.
   
• Primmum argued that several of the claimed future care costs were exaggerated or lacked a supporting medical opinion.
   
• Justice Keith found that Ms. Morris's early and sustained return to full-time work compromised her recovery without amounting to a failure to mitigate.
   
• Occupational therapy and actuarial evidence proposing extensive lifelong care costs were largely rejected as unsupported by the medical record.
   
• Pre-judgment interest became a secondary dispute, with the parties proposing significantly different rates based on competing lines of authority.
   

Facts of the case

Jennifer Ann Morris was struck by an unidentified vehicle at about 8:35 p.m. on November 13, 2021, while walking through a marked crosswalk in a retail parking lot in Bedford South, Halifax. The driver fled and was never identified. At the time, Ms. Morris was 41, raising two sons with minimal support from their father, and working full-time as a supervisor and server at "The Terrace" restaurant in the Prince George Hotel. Because the responsible vehicle and driver were never found, she advanced a claim against her own insurer, Primmum, for injuries caused by an uninsured and unidentified automobile. The parties agreed the unidentified driver bore full liability, leaving damages and causation as the only issues. Ms. Morris suffered a serious traumatic brain injury, including a basilar skull fracture, bilateral frontal and temporal lobe contusions, occipital lobe contrecoup injuries, and intracranial hemorrhaging, along with permanent loss of smell, impaired taste, prolonged amnesia, a sigmoid sinus thrombosis, ear and petrous bone injuries, temporary vision problems, and minor leg injuries with scarring. She was hospitalized for ten days and returned to part-time work on February 27, 2022, then to full-time work by May 1, 2022. Her income grew in the years following the accident, but the court found this growth reflected an unsustainable, recovery-compromising work schedule rather than a return to her pre-accident baseline.

Policy and legislative provisions at issue

Ms. Morris's claim proceeded under Section D of her own automobile insurance policy with Primmum, the provision covering injuries caused by an uninsured or unidentified motorist; the terms of Section D capped Primmum's exposure at $500,000. Separately, Section B of the same policy entitled her to $50,000 in approved expenses, including psychiatric treatment and physiotherapy, though she had accessed only $662.27 in reimbursements (primarily for sertraline and the cost of blue prism glasses) and $1,314.56 in disability benefits as of March 2025. Primmum relied on this limited uptake to argue that awarding damages for future psychiatric and physiotherapy treatment risked "squandering" money, invoking the reasonableness standard discussed in Pelletier v. Ontario, 2013 ONSC 6898. On pre-judgment interest, the parties agreed the award was discretionary under section 41(i) of the Judicature Act, R.S.N.S. 1989, c. 240, but disputed the appropriate rate.

Reasoning and analysis

Justice Keith accepted the substantial areas of agreement between the two neurologists, Dr. Leckey (for the Plaintiff) and Dr. Robinson (for the Defendant), while noting they diverged on the severity and treatment of Ms. Morris's ongoing cognitive and emotional symptoms. He found that her early, sustained full-time work schedule created a "missed opportunity" for optimal healing, as described by Dr. Robinson, but declined to treat this as a failure to mitigate, since no medical advice had directed her to stop working and she was motivated by genuine financial need. On general damages, the court reviewed comparable brain-injury awards, including Vogler v. Szendroi, 2010 NSSC 390, and found Ms. Morris's injuries serious and persistent, though less catastrophic than several comparator cases involving comas or permanent disability. For lost income-earning capacity, the court characterized the loss as compensation for a diminished capital asset, per Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, applying the "real and substantial possibility" evidentiary standard confirmed in Vigneault v. Mitchell, 2025 NSSC 9, and adopted a "global" rather than mathematical approach to quantification, consistent with the four-factor framework from Brown v. Golaiy, [1985] BCJ No. 31. On future care costs, the court rejected much of the methodology in the occupational therapist's and actuary's reports as based on inflated or medically unsupported assumptions, including case management costs and vision therapy that no medical expert had recommended. The court accepted a more limited, evidence-based need for anxiety and headache medication for life, alongside temporary psychological treatment and physiotherapy. The claim for loss of valuable services was similarly reduced from the amount sought, given that Ms. Morris remained able to perform some household tasks, only more slowly and less frequently. On pre-judgment interest, the court preferred Primmum's proposed range, finding it more consistent with recent Nova Scotia jurisprudence than the higher, often older or agreement-based rates cited by Ms. Morris.

Ruling and overall outcome

Justice Keith ruled in favour of the Plaintiff, Jennifer Ann Morris, awarding a total of $435,000 in damages, excluding pre-judgment interest, broken down as $175,000 in general damages, $200,000 for diminished earning capacity, $35,000 for cost of future care, and $25,000 for loss of valuable services. Pre-judgment interest was ordered to accrue on these amounts at a simple rate of 3% per annum, running from the date the cause of action arose on November 13, 2021. The decision left the issue of costs unresolved, with the court inviting brief written submissions if the parties could not reach agreement within a month of the decision's release.