There has been great debate about whether Australia should align
with other countries which currently have a Bill of Rights.
However, this Canadian case shows how a Bill of Rights may impact
on other legislation. The case also raises the question: would an
Australian Bill of Rights mean the abolition of compensation
On June 12, 2009, the Alberta Court of Appeal released its
decision in Morrow v Zhang  ABCA 215, determining
that the Minor Injury Regulation, A.R. 123/2004 (MIR) was
constitutionally valid. The MIR imposes a $4,000 cap on
non-pecuniary damages for 'minor injuries'.
The plaintiffs, Morrow and Pedersen, had suffered personal
injury in a car accident and their injuries fell within the scope
of the MIR. At the trial, Justice Wittman determined that their
respective non-pecuniary damages exceeded $4,000 and that the MIR
cap would apply. However, he considered that the provisions of the
MIR were discriminatory to persons suffering minor injuries and
held that such regulations violated the rights of Morrow and
Petersen under section 15(1) of the Canadian Charter of Rights
and Freedoms (Charter).
The Alberta Government and the Insurance Bureau of Canada
appealed this decision. In a unanimous judgment, Justices
Rowbotham, McFadyen and O'Brien allowed the appeals, and set
aside the decision of the trial judge.
The Court of Appeal concluded that the trial judge failed to
analyse the insurance reforms enacted by the Alberta Government in
2004 and erred in concluding that the insurance reforms
disadvantaged individuals suffering minor soft tissue injuries.
Considering the entire scheme, which included protocols for
diagnosing and treating minor injuries, increases in certain
medical benefits and caps on car insurance premiums, the Court of
Appeal concluded that the legislation 'as a whole'
responded to the needs and circumstances of those suffering from
minor soft tissue injuries.
The Court of Appeal acknowledged that the provisions of the MIR
made a distinction on the basis of disability. However, it held
that the distinction between the minor injury claimants and those
suffering other injuries from motor vehicle accidents did not
amount to discrimination and did not infringe section 15 of the
As a result of the Appeal decision, the cap under the MIR is
immediately operative (adjusted to $4,504 to account for
inflation). The Insurance Bureau of Canada contends the latest
court decision will mean 'affordable rates' for Alberta
Morrow and Pederson intend to appeal the case to the Supreme
Court of Canada and have until mid-September 2009 to file the
DLA Phillips Fox is one of the largest legal firms in
Australasia and a member of DLA Piper Group, an alliance of
independent legal practices. It is a separate and distinct legal
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This publication is intended as a first point of reference and
should not be relied on as a substitute for professional advice.
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The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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