Tort law allows various types of compensation for personal injuries sustained in motor vehicle accidents (see “Pecuniary Damages vs. Non-Pecuniary Damages”). Losses of income, medical expenditures, valuable services, etc., are all pecuniary types of damages that courts will indemnify when suffered by the victim. Pain, suffering and loss of amenities of life, or non-pecuniary damages, will also be assessed and compensated where they are demonstrated. The Supreme Court of Canada has already addressed the challenges associated with non-pecuniary general damages and explained why it capped them at $100,000 in January 1978 (see “Pecuniary Damages vs. Non-Pecuniary Damages”).
Minor Injury Cap – 2003
In 2003, the New Brunswick Legislature enacted provisions to extend a similar philosophy to physical conditions felt to be of minor effect in relation of motor vehicle accidents, allowing the capping of damages in certain situations (Insurance Act, RSNB 1973, c. I-12, s. 265.21):
265.21 (1) In this section “soft tissue injury” and “minor personal injury” shall be as prescribed and defined in the regulations.
(3) In an action for damages arising out of an accident, the amount recoverable as damages for the non-pecuniary loss of the plaintiff for minor personal injury shall not exceed the amount set out in the regulations.
(4) This section applies only to accidents occurring on or after the commencement of this section.
As can be quickly gleaned from the text, the authority is limited to ‘non-pecuniary loss’ sustained after 2003. Thus, the authority of the Lieutenant-Governor does not extend to heads of damages that are pecuniary and courts would continue to apply the principles as already formulated (see “Pecuniary Damages vs. Non-Pecuniary Damages”).
As provided in the Act, a regulation was adopted shortly thereafter (Injury Regulation — Insurance Act, NB Reg. 2003-20) limiting the amount recoverable as non-pecuniary damages in relation to minor personal injuries sustained in motor vehicle accidents. It defined ‘minor personal injury’ and capped the recoverable amount to $2,500. Although tribunals regularly awarded amounts of non-pecuniary general damages below the threshold prior where injuries had little to no effect on the victims (see Martin v. LeBlanc (1991), 117 NBR (2d) 436 (QB—$2,000); Basin v. Plourde, 1993 CanLII 3303 (QB—$1,500); Kelloway (Litigation Guardian) v. Landry (1994), 155 NBR (2d) 326 (QB—$1,000); Chiasson v. LeBreton, 2007 NBQB 104 ($1,000)), the regulatory changes rationalized and generalized the practice.
In 2003, the Injury Regulation, supra, defined ‘minor personal injury’ as “an injury that does not result in (a) permanent serious disfigurement, or (b) permanent serious impairment of an important bodily function caused by continuing injury which is physical in nature”. A ‘serious impairment’ was also defined as “an impairment that causes substantial interference with a person’s ability to perform their usual daily activities or their regular employment”. Thus, except to limit its application to injuries that are ‘physical in nature’, the Injury Regulation, supra, did not expressly identify a pathology, speaking of the effect of an injury on ‘usual daily activities’ or ‘regular employment’. Arguably, psychiatric injuries were not captured by the definition.
From a quick glance at the case law, we know that a minor personal injury can be a soft tissue injury (LeBlanc v. Bulmer, 2007 NBCA 35) and that the burden rests on the defendant to show that a victim’s injury is captured by the Injury Regulation, supra (Fraser v. Haines, 2008 NBCA 59 paras 25 & 27). The test for assessing whether an injury is capped has been stated in Fraser, supra para 27:
(1) Has the victim sustained permanent impairment of a bodily function caused by continuing injury which is physical in nature?
(2) If so, is the permanently impaired bodily function an important one?
(3) If so, is the impairment of the important bodily function serious?
In Fraser, supra para 33, the unanimous bench of the NB Court of Appeal specifies that the “seriousness of the impairment is assessed on a case-by-case basis”. The evidence needs to show that there is a substantial interference with either the victim’s ability to perform his or her daily activities or the ability to continue his or her regular employment (paras 28 & 31). Where the injured party is able to return to work, the Injury Regulation, supra, still does not apply if he or she is not able to continue the pre-accident employment (para 28). Furthermore, the impairment is assessed in relation to the injured party; a bodily function’s importance may be different for everyone. The little finger is considerably more important to the pianist than to the roofer. These are issues of fact not law (para 35).
The Injury Regulation, supra, was applied in cases dealing with a broken jaw and knee sprain (Burpee v. Johnston, 2011 NBQB 114), a broken leg (Rossignol v. Rubidge, 2007 NBQB 89), a broken wrist (Wood v. Zhao et al., 2019 NBQB 125), chronic pain (Presti v. Davey, 2007 NBQB 115; Fraser, supra; Savoie v. Robichaud, 2011 NBQB 337; LeBouthillier v. J.M. Bastille Inc., 2015 NBQB 190) and a concussion (Douthwright v. Duffy, 2017 NBCA 60). It is worth noting that the credibility of the plaintiff was central in most cases. The regulation was not applied in other cases involving chronic pain (Richard v. Ward, 2013 NBQB 107; Chiasson v. Thériault, 2018 NBQB 177) or a combination of chronic pain and concussion (Matthews v. McIntyre, 2019 NBQB 127). The Injury Regulation, supra, was revised considerably in 2013 to restrict its application and several of those cases would not likely be captured anymore. The regulation was amended to provide a new definition to ‘minor personal injury’ and increase the cap to $7,500 plus a cost-of-living adjustment.
Minor Personal Injury-Cap 2013 to Date
Contrary to the 2003 Injury Regulation, supra, the new regulation provides a list of specific ‘minor personal injuries’. They are: abrasions, contusions, lacerations, sprains, strains and whiplash associated disorders, “including any clinically associated sequelae” for each, “that do not result in serious impairment or in permanent serious disfigurement”. A ‘sprain’ is “an injury to … tendons or ligaments” while a ‘strain’ is “an injury to … muscles”. A ‘whiplash associated disorder’ is limited to injuries that (a) do “not exhibit objective, demonstrable, definable and clinically relevant neurological signs, and (b) [do] not exhibit a fracture in or dislocation of the spine”. Arguably, the specific injuries listed in the Injury Regulation, supra, would receive a narrow interpretation (see “Deductibility of Section B Weekly Indemnity Benefits” and “Deductibility of Benefits in Insurance Contracts”).
The injury definition in the regulations reflect the classifications in the Quebec Study Task Force on Whiplash Adjustment Disorder. Namely the classifications are as follows:
- WAD Grade Zero: No complaint or physical signs;
- WAD Grade One: Indicates neck complaints, but no physical signs;
- WAD Grade Two: Indicates neck complaints and musculoskeletal signs (common complaints are a dull ache);
- WAD Grade Three: Neck complaints and neurological signs (symptoms include radiating pain, tingling sensations, pins and needles, and sharp pain);
- WAD Grade Four: Neck complaints and fracture/dislocation.
Under our legislation, WAD Grade Three and Four are over the minor injury cap and the injured person would be entitled to full general damages. If the injured person suffers a WAD One or Two, the general damages would be capped unless the injury substantially interfered with their employability or activities of daily living.
In addition, the the cap does not apply to what is not referred to in the Injury Regulation, supra. Namely, broken bones, broken teeth, concussion, herniated discs, injuries to cartilage, neurological injuries and psychiatric injuries (like post-traumatic stress disorder) are prima facie excluded from the regulation. However, the listed injuries are also excluded if they lead to serious impairments or permanent serious disfigurement. The previously quoted impairment test formulated under the 2003 regulation, with necessary adjustments, likely extends to this aspect of the 2013 regulation.
The 2013 regulation is more explicit as to what is a ‘serious impairment’, referring to “ongoing” “substantial inability to perform” (1) the essential tasks of regular employment, (2) the essential tasks of training or education, or (3) the normal activities of daily living, that are “not expected to improve substantially”. The performance of the employment and education tasks need to account for “reasonable efforts to use any accommodation provided”. The impairment is no longer limited to physical, but extends also to “cognitive function”. Hence, listed injuries that have a significant psychological overlay will be excluded, even if physical functions are restored.
Is Chronic Pain Syndrome a Capped Minor Injury?
According to the Institute for Chronic Pain, Chronic Pain Syndrome is the combination of chronic pain and the secondary complications that are making the original pain worse. Once pain becomes chronic, the mind and body begin to manifest changes which tend to imprint both pain sensations and what clinicians call “pain behaviour” on the Central Nervous System. Typical chronic pain characteristics are as follows:
- Severe pain, constant or waxing and waning;
- Requirement for long-term pain medication;
- Limitations in activity and mobility;
- Effects on social relationships;
- Effects on sexual drive, function, or both;
- Feelings of helplessness;
- Decrease job performance;
- Frustration with doctors;
- Altered sleep;
- Physical tension;
- Changes in appetite;
- Alterations in bowel habits;
- Focusing on blame on self, family and/or the system.
Certain chronic pain clinics use the newer physiological approach to classify chronic pain patients according to their underlying pain mechanism. This diagnosis system is referred to as the PMS classification and subdivides chronic pain into 6 groups:
- Nociceptive Mechanical (joints, ligaments, muscles);
- Nociceptive Inflammatory (pain because of inflammation like arthritis);
- Peripheral Neuropathic (nerve pain);
- Central Sensitization (amplification of al pains signals by the nerve system);
- Affective: which is used when psychological or psychiatric conditions are felt to play a major part in the patient’s chronic pain.
- Motor/Autonomic: which is a classification when a patient’s present symptoms compatible with an overreaction of the autonomic system and a change in the body’s perception of body image.
In conclusion, it is our opinion chronic pain syndrome is not captured by the minor injury cap legislation.
What is the Valued Amount for a Minor Injury Capped Case?
The 2013 regulation has increased the cap for general damages from $2,500 to $7,500. It provides for yearly cost-of-living adjustments on the basis of the Consumer Price Index for the preceding 12 months. The adjusted value is then applicable to the accidents “that occurred in that year”. The value has to be published by the Superintendent of Insurance. Since July 1, 2013, the yearly values of the cap are as follows:
|July 1, 2013 to December 31, 2014||$7,500.00|
|January 1, 2015 to December 31, 2015||$7,612.50|
|January 1, 2016 to December 31, 2016||$7,650.56|
|January 1, 2017 to December 31, 2017||$7,818.87|
|January 1, 2018 to December 31, 2018||$7,998.70|
|January 1, 2019 to December 31, 2019||$8,166.67|
|January 1, 2020 to December 31, 2020||$8,305.50|
Accounting for inflation is certainly consistent with the state of the law (see “Pecuniary Damages vs. Non-Pecuniary Damages”).