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ASSESSMENT OF DAMAGES - Limiting factors - Pre-existing conditions 

Monday, September 14, 2020 @ 9:30 AM | By John Chunn

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Appeal by the defendant from the damages award of $628,978 against her in the plaintiff’s personal injury action. The defendant was the at-fault driver in a 2011 motor vehicle accident. She did not admit liability until five years after the action was filed. The plaintiff sustained injuries in the accident including neck pain and a concussion. She had pre-existing chronic pain from a workplace injury. She developed an adjustment disorder with depressed mood post-accident. She did not return to work as a baker after the accident. She took out loans to pay for medication. The trial judge found the plaintiff was credible. He awarded the plaintiff $75,000 in non-pecuniary damages, $111,265 in past loss of income, $218,413 for future loss of income, $18,676 for past medication, $135,761 for future medication, $1,800 for future psychotherapy treatment, $12,270 for past loss of valuable services, $25,069 for future loss of valuable services, and interest of $30,723. The trial judge made a Cox v. Carter order in favour of the defendant, which provided that all Section B weekly indemnity benefits for loss of income already received, or yet to be received, by the plaintiff were to be held in trust and paid to the defendant but only up to the amount awarded for future loss of income.

HELD: Appeal allowed in part. The trial judge did not err in finding it was reasonable for the plaintiff to fund the cost of her medications with loans and in awarding half the interest charges related to those loans. The trial judge’s assessment of damages was entirely consistent with the evidence that the plaintiff was a thin skull plaintiff and not a crumbling skull, which entitled her to be fully indemnified for all her damages by the defendant. The award of general damages was consistent with awards made in similar cases. All other heads of damage were based on either proven losses or losses based on acceptable and unchallenged actuarial evidence. The trial judge’s award was affirmed except with respect to the terms of the Cox v. Carter order. Future Section B weekly indemnity benefits were to be applied against the entire award of damages for purposes of the trust in favour of the defendant and not solely against the award for future loss of income.

McIntyre v. Matthews, [2020] N.B.J. No. 177, New Brunswick Court of Appeal, K.A. Quigg, B.V. Green and C.A. LeBlond JJ.A., July 30, 2020. Digest No. TLD-September142020001