Canada: "Irreconcilable Incongruity" In Plaintiff's Reporting Disallows Claim For Loss Of Future Income, Section B Setoff Avoids Recovery Of Any Damages

In Bent v. MacFarlane¹, contradictions in Bent's self-reporting and her lack of attempt to seek a medical resolution to an alleged chronic pain syndrome proved extremely limiting to her claim for damages.  The case is remarkable for the severity of its result as well as for the blunt deconstruction by the New Brunswick Court of Appeal ("NBCA") of the argument that the trial judge's denial of future loss of earnings is inconsistent with the award of non-capped general damages.  The case also reinforces that in New Brunswick, Section B benefits are deductible from all heads of damages.

In a March 2010 motor vehicle accident, Bent suffered bruises, contusions and a fracture in her right knee which required surgery and hospitalization.  Bent claimed damages against MacFarlane for future loss of income to age 67, as well as damages for pain and suffering, loss of valuable services and cost of care.

Prior to the accident, Bent had been diagnosed with multiple sclerosis ("MS").  Despite her MS, she had been able to work, but her symptoms caused her at times to withdraw from the workforce.  At the time of the accident, Bent had recently started part-time work as a cashier.  She was expected to have full-time hours shortly and her claim reflected this. 

Bent claimed that residual knee pain as well as a chronic pain syndrome from the accident prevented her from resuming employment as a cashier.  

There was evidence from an orthopedic surgeon that the knee fracture had resolved and that Bent was pain free about three months post-accident, which she disputed.  She was discharged from physiotherapy well before the first anniversary of the accident.  Bent's own family physician felt that at the two year mark, there was little contribution of the accident injury to her inability to work.  In the accident aftermath, the family physician had seen her through a flare up of her MS symptoms, and she felt that MS and other conditions (obesity, depression) were more likely factors contributing to her disability. 

During the MS flare up in February 2011, Bent applied for Canada Pension Plan ("CPP") disability benefits on the basis that her MS was a "prolonged and severe" condition.  She received the benefits and when her MS abated shortly after, she did not alert CPP that her MS ceased to be disabling.

Against this backdrop, in late 2012 and early 2013, Bent was referred to various experts to build her claim.  An occupational therapist positioned her work day tolerance at a maximum of four hours a day, less if unable to sit and stand at will.   An orthopedic surgeon hired by Bent's lawyer concluded that as a result of the accident, Bent had an impairment to both knees, right ankle and left shoulder, and that she was permanently disabled from working as a cashier.  A neurologist concluded that the MS was no more disabling than it had been pre-accident. 

During that same period, she was examined on behalf of her Section B insurer, and failed to report pain in areas other than her right knee.  Further, none of her twenty subsequent visits to her new family physician were related to the accident injuries.

At trial, MacFarlane led defence evidence by an orthopedic surgeon, who disagreed that Bent was impaired and that the chronic pain she was reporting was attributable to the accident.  He also opined that the right knee injury was not contributing to Bent's inability to work. 

Based on all the evidence, at trial, damages for pain and suffering were not limited to the Injury Regulation cap, on the basis that Bent's impaired ability to walk met the relevant test of a "permanent serious impairment of an important bodily function caused by continuing injury which is physical in nature". 

The claim for loss of income, however, was accepted only up to the time at which Bent declared to CPP that her MS was preventing her from working.  The trial judge characterized the continued receipt of CPP benefits on the basis of MS as an "irreconcilable incongruity" with the position advanced at trial that her MS was not disabling.  The trial judge did not conclude that Bent was disabled from MS; he however felt that she lacked the credibility to convince the court that her reports were reliable, and she fell short of establishing by other means that she was disabled from all employment by reason of her chronic pain syndrome.   The court was concerned by her failure to seek treatment for her chronic pain syndrome and therefore remained unconvinced it was disabling.

On cross-appeal by MacFarlane, the NBCA confirmed that section 263 of the Insurance Act²  unambiguously provides that Section B payments are a release "of any claim against the person liable to the claimant" and that the law in New Brunswick continues to be that Section B benefits can be set off against claims under any head of damages.  Bent's damages, assessed at $72,202 at trial, were fully offset by the Section B benefits she received such that as a result of the appeal, she was entitled to nothing from MacFarlane.

Footnotes

1 Bent v. MacFarlane, 2018 NBCA 17, affirming 2016 NBQB 157, 2016 CarswellNB 651.

2 RSNB 1973 c. I-12.

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