November 23, 2016

Serious and Temporarily Disabling Injuries Satisfy Definition of Minor Personal Injury

Related Services

In the decision of Douthwright v. Duffy, 2015 NBQB 224, the 43 year old Douthwright was injured in a serious roll-over accident. Liability was admitted, but the parties differed on damages.

Background

Douthwright alleged the accident caused soft-tissue injuries, chronic pain, traumatic brain injury (TBI), PTSD, sleep problems, and worsened her pre-existing headaches, anxiety and joint pain. Relying on Athey v. Leonati, [1996] 3 S.C.R. 458, she argued the accident materially contributed to her injuries, claiming $823,323 in damages ($150,000 in general damages, $143,140 for past loss of homemaking capacity, $388,351.00 for future loss of homemaking capacity, and $141,832.00 for cost of future care).

The defendant, Duffy, argued that Douthwright’s injuries fell squarely within the definition of "minor personal injury", capping her claim at $2,500 in general damages, plus $500 in valuable services. Duffy contended that there was no objective evidence of many of the alleged injuries and that Douthwright had refused recommended physiotherapy and psychotherapy. Duffy further argued that the $1,459.01 Douthwright had received in Section B benefits was much more indicative of the true severity of her damages.

Decision

The court concluded that the plaintiff’s pre-existing conditions were exacerbated in the months after the accident and that she exhibited some symptoms of PTSD. However, it also held that the medical evidence (particularly the family physicians’ charts) showed a “complete lack of evidence to establish the presence or ongoing sequelae of a traumatic brain injury”, and that the “gold standard” neuropsychological tests were inconclusive, possibly due to “suboptimal effort”.

Although the injuries Douthwright did sustain were “serious and temporarily disabling”, it was held that none met the test in Rossignol v. Rubridge (2007), 317 NBR (2d) 105. Once TBI was excluded, the court found it very difficult to identify the accident as the source of her current complaints. The court took particular notice of the fact that all but one of Douthwright’s medications were exactly the same at the time of trial as before the accident, a fact described as “extremely striking”.

With respect to housekeeping capacity, the court accepted that Douthwright relied heavily on her husband in the months immediately following the accident and was entitled to compensation. However, over time, her impairments were less and less related to the accident. Thus, the court held that it was inappropriate to use the cost of replacement services to calculate past loss of valuable services. The Court refused to accept the evidence of Douthwright’s expert and instead awarded a lump sum of $15,000 for past losses and $7,500 for future losses.

The court noted similar difficulties with respect to calculating costs of future care and reiterated that Douthwright should be compensated only for costs that were causally related to the accident. Given Douthwright’s previous refusal to participate in treatment, the court was also unconvinced that she would participate to any significant extent in the future. The award for cost of future care was limited to the cost of six months of psychotherapy and travel expenses, plus the cost of sleeping medication.

Final judgment was $37,631.65 plus costs and disbursements.

cover

Get a PDF version of this article

Serious and Temporarily Disabling Injuries Satisfy Definition of Minor Personal Injury

Download PDF


Cox & Palmer publications are intended to provide information of a general nature only and not legal advice. The information presented is current to the date of publication and may be subject to change following the publication date.