Every single thing about the Joellan Huntley story is tragic. In 1996, a car swerved to avoid a dog and hit a power pole in Centreville, Nova Scotia. There were four kids in the car, the oldest the 16 year old driver. The driver lived, but his eight-year-old sister and 15-year-old friend were killed. His girlfriend Joeallan, was irreparably injured. She cannot move or speak.
Her family endured eight years of litigation against two insurance companies to receive two settlements, one for a million dollars and one for half a million dollars. Of the first settlement, the parents have spent about a third on Joellan for therapeutic care not covered by MSI. They have budgeted the funds to last the rest of her life and have offered to give the province what's left when she dies. The second award went to the province.
That half million dollar settlement the province received is tapped out, so after eight years of doing absolutely nothing in pursuit of the other settlement, the province has the parents back in court. A 2003 law change, I'm assuming the same one that absorbed the second settlement, says the province has the authority to recoup costs for care from insurance settlements.*
The province went after the other settlement, but public outcry has caused the government to call for a review of the policy (a law) that landed them there. The premiers promise that changes to the policy (still a law) will be compassionate and “reflect the values of Nova Scotians”.
I'm hoping the values of Nova Scotians includes the right to receive compensation for injury, in particular, in cases of catastrophic injury. The purpose of damages is to place the injured party to the position they were in before the injury occurred. It's impossible to put Joellan in the position she was before the accident, so the settlement reflects the cost of human life earnings plus loss and suffering. The tally of that is capped at a million dollars in Nova Scotia. The second settlement was from the insurance of the dog owner for not securing their dog.
That the province is reviewing the law is of little comfort to the family, whose case is due back in court on January 9th. They want the case put on hold until the review is complete.
I am torn about the review. When the province is being an asshole, I want them to stop being an asshole, but at the same time, I really do want the courts to scrutinize this law. There is no case law on it that I could find in the NS courts database, Canlii.or, or the newspapers.
The judge is breaking his own trail and his comments so far have given me hope.
The best was when he questioned why anyone would hire a lawyer in cases of catastrophic injury if the awards would be taken by the province. He was right, why would any family subject themselves to year after year of reliving a tragic event to achieve the exact same result of doing nothing?
You wouldn't. This is why this law is wrong. Each and every one of us has the right to be compensated for the injuries we receive should we choose to pursue them. Damages are a enduring legal concept. Any law that claws back compensation for the catastrophically injured takes away their right to compensation. It negates every reason to pursue compensation. It deprives them, the most helpless among us, to the same rights to which we are all entitled.
* In the case of automobile accidents, the province collects a levy on every insured vehicle to pay for situations like this.
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