Diane Power Plaintiff And: Jeremy White Defendant, 2022 NLSC 20

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Power v. White , 2022 NLSC 20 Date : February 11, 2022 Docket : 201501G4244 Between: Diane Power Plaintiff And: Jeremy White Defendant Before: Justice Katherine O'Brien Place of Hearing: St. John’s, Newfoundland and Labrador Dates of Hearing: April 20, 2021; May 4, 2021; October 22, 2021; January 18, 2022

Summary: The plaintiff was injured in a motor vehicle accident. The defendant, an uninsured driver, was at fault. The plaintiff settled her claim with her insurer, under Sections D and B of her automobile insurance policy. In this application, the insurer sought to recover damages from the defendant in an amount equal to the settlement amount. The defendant did not defend the application. The Court considered the nature of subrogated

Section D claims. The Court concluded that the onus was on the insurer to establish that the settlement amount was reasonable and reflected the plaintiff’s likely recovery had she gone to trial. The Court found that the insurer did that, and allowed the application. No costs were ordered.

Appearances: Christopher D. Goodridge Appearing on behalf of the Plaintiff Jeremy White Appearing on his own behalf Authorities Cited: CASES CONSIDERED: MacKean v. Royal & Sun Alliance Insurance Company of Canada, 2015 NSCA 33; Caithesan v. Amjad, 2016ONSC 5720; Bell v. Chatri, 2019 ONSC 251; Hryniak v. Mauldin, 2014 SCC 7; Gosse v. CBS Taxi Ltd., 2000 NFCA 16; Allen v. Wal-Mart Canada Inc., 2009 NLTD 79; Gordon v. Sexton, 2013 NLTD(G) 127; Furlong v. Sexton Trucking Limited, 2019 NLSC 202; Ryanv. Curlew, 2018 NLSC 72; Morgan Estate v. Newfoundland, 2007 NLCA 39; Treberg v. Jarvis, 2009 NLCA 51; Cochrane v.

O’Brien(2000), (NL SC), 190 Nfld. & P.E.I.R. 8, 96 A.C.W.S. (3d) 783 (Nfld. S.C. (T.D.)) STATUTES CONSIDERED: Automobile Insurance Act, R.S.N.L. 1990, c. A-22; Judgment Interest Act, R.S.N.L. 1990, c. J-2;Insurance Act, R.S.N.S. 1989, c. 231; Automobile Insurance Regulations, N.L.R. 56/19 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c.42, Sch. D REASONS FOR JUDGMENT O'Brien, J: INTRODUCTION [1] Diane Power (“Ms. Power”) was injured in a rear-end motor vehicle accident on January 21, 2014. Jeremy White (“Mr.White”) was at fault. Ms. Power started this action against Mr.

White on August 7, 2015 seeking damages for her injuries. [2] Mr. White was an uninsured driver. The Personal Insurance Company (the “Personal”) insured Ms. White under a StandardAutomobile Policy that included:

Section B Coverage for medical and rehabilitation expenses and wage loss,

Section D Coverage forinjuries caused by an uninsured motorist, and an SEF 44 Family Protection Endorsement, which provided excess coverage for claimsinvolving under-insured motorists. [3] Ms. Power started two legal actions against the Personal: action number 2015 01G 4242 claiming indemnity for

Section D andSEF 44 coverage, and action number 2017 01 G1281 claiming indemnity for

Section B coverage. Those claims were mediated andresolved. The Personal settled Ms. Power’s claims in December 2019 for the global amount of $500,000.00, inclusive of costs andinterest. [4] Ms. Power executed a Final Release and an Assignment of Action in favour of the Personal. These documents authorized thePersonal to exercise subrogation rights under the insurance policy and the Automobile Insurance Act, R.S.N.L. 1990, c. A-22, and to seekrecovery of its damages from Mr. White. It has done so in the present action. Because this is a subrogated claim, the Personal is actinglegally through Ms. Power.

However, for ease of reference in these reasons, I refer to the Personal as making the claim. [5] On January 11, 2019, a Default Order was entered against Mr. White pursuant to Rule 44 of the Rules of the Supreme Court,1986, S.N.L. 1986, c. 42, Sch. D (the “Rules”), with damages to be assessed. The Personal filed this Interlocutory Application to havedamages assessed on March 23, 2021. It seeks damages in the amount of $500,000.00, judgment interest pursuant to the JudgmentInterest Act, R.S.N.L. 1990, c. J-2, and costs pursuant to Column 3 of the Scale of Costs in the Appendix to the Rules. [6] Mr.

White had notice of this application and attended each time it was called in court. Although given the opportunity, hechose not to file any evidence or other material. I advised Mr. White that he could seek to test or challenge the Personal’s evidence bycross-examination or other means, but he chose not to do so. Mr. White acknowledged that he had been in error, both in causing theaccident and in driving uninsured. He said that he was prepared to face the consequences of his actions.

[ 7 ] For the reasons that follow, I have allowed the application and awarded the Personal damages in the amount sought. ISSUE [ 8 ] I must decide what damages the Personal is entitled to from Mr. White. LAW [ 9 ] In MacKean v. Royal & Sun Alliance Insurance Company of Canada , 2015 NSCA 33 , the Nova Scotia Court of Appeal held that the settlement between a

Section D insurer and its insured is relevant to the assessment of damages in a subrogated claim against the tortfeasor. In so concluding, the court considered the unique nature of

Section D coverage and the concern that factors other than the plaintiff’s damages may influence settlement: [ 26 ] Both as a matter of contract and as a matter of statute, the liability of the insurer to its insured under

Section D coverage is linked to the third party tortfeasor’s conduct. The insurer has no obligation to pay anything to its insured other than an amount reflecting damages caused to its insured, by the third party wrongdoer, up to the limits of coverage. This statutorily mandated contractual obligation of the insurer connects the amount paid to the plaintiff insured by his insurer with the damage caused by the third party wrongdoer. [27] The foregoing addresses the motion judge’s concern that contractual terms may afford coverage to an insured for which the third party is not responsible.

Section D coverage is limited to what the insured “…is legally entitled to recover…” from an uninsured driver, (s. 139(2) of the Insurance Act , para. 24 above). This coverage links the insurer’s obligation of indemnification to the fault of Mr. Goodall. [28] As for concerns about economic and other factors that might influence the insurer to settle with its insured – they should not affect assessment of the reasonableness of settlement, which is dependent upon the likelihood of recovering damages in the range of the settled amount.

In any event, such considerations will not prevail if the settlement is not reasonable because it fails to reflect what the plaintiff is likely to recover. ... [ 10 ] The statutory scheme for

section D coverage in Nova Scotia mirrors that in this province. Section 139(2) of the Nova Scotia Insurance Act , R.S.N.S. 1989, c. 231 , is the same as section 33(2) of the Automobile Insurance Act . [ 11 ] In MacKean , the court of appeal concluded that there must be enough evidence before the court to allow it to assess whether the settlement was reasonable and reflects the plaintiff’s likely recovery at trial ( MacKean , para. 29 ).

It also addressed whether this could be done by way of application or motion, as opposed to a full trial: [41] As Justice Wright makes clear in Colbourne , a party who does not defend a claim may still challenge an assessment of damages and is entitled to all of the procedural protection associated with resisting any amount claimed and the calculations therefor. But that is not this case. An assessment of damages may go forward by way of motion or full trial.

It is hard to imagine any circumstance where a full trial would be required in the case of an undefended assessment of damages. [42] In cases such as this, the loss has been quantified once already, by the party responsible for paying it, on the basis of what the plaintiffs were “legally entitled to recover” from Mr. Goodall. Automobile insurers are very experienced personal injury litigants, whose routine business is to evaluate accident claims. They are not in the business of liberally distributing largesse to undeserving claimants.

The Court should not defer to the insurer’s calculation, but because the principle by which settlement is effected is the same as that by which the Court would calculate damages, it is relevant. [ 12 ] In MacKean , the court of appeal also held that the assessment of damages should usually be done as of the date of the application, although specific types of damages, such as property loss, may be calculated as of a particular date ( MacKean para. 60 ).

When the plaintiff has settled a general damages claim a considerable time before the assessment, the court may need more contemporary evidence to assess the reasonableness of settlement ( MacKean , para. 61 ). [ 13 ] MacKean has been followed in Ontario ( Caithesan v. Amjad , 2016 ONSC 5720 , Bell v. Chatri , 2019 ONSC 251 ). I did not find any reported decision from this province that considered the issue. ANALYSIS [ 14 ] I have decided to adopt the test from MacKean , which means that I will determine whether the Personal has established that the amount it paid Ms.

Power was reasonable and reflects her likely recovery had she gone to trial. I have also decided that I will do this by application, based on affidavits that include statements of information and belief. [ 15 ] Such an approach is consistent with principles of proportionality, timeliness, and accessibility. In Hryniak v. Mauldin , 2014 SCC 7 , the Supreme Court of Canada urged lower courts towards a culture shift to promote resolving legal disputes by methods other than a full trial, where possible (see paras. 2, 24-25, and 32). [ 16 ] I agree with the reasoning in MacKean that the unique nature of

Section D claims, and the adversarial interests that must be reconciled to result in a settlement, means that people experienced in evaluating personal injury claims have already quantified the damages. Under Rule 44 of the Rules , the Court has discretion as to the procedure for assessing damages. Although a trial may be

appropriate in some circumstances to achieve fairness and justice for the parties, requiring a full trial when the tortfeasor does not challenge the damage amount would be contrary to the Supreme Court of Canada’s direction in Hryniak . [ 17 ] This does not mean that the

Section D insurer gets a rubber stamp from the court. It must present enough evidence to the court to establish on a balance of probabilities that the damages sought reflect the plaintiff’s likely recovery. This will normally require medical evidence of the plaintiff’s injuries and evidence of the plaintiff’s lifestyle and employment. It may also require expert opinion on the plaintiff’s prognosis and functional capacity. The application should provide detail of the heads of damages the plaintiff claimed and an apportionment of the settlement among those heads of damages.

The insurer applicant should address how that apportionment reflects the plaintiff’s likely recovery had the matter gone to trial. I do not intend to give a list of what will be required in any given case. Rather, I want to make the point that there will be rigor to the court’s evaluation. [ 18 ] The Personal submitted that $500,000.00 is an appropriate award of damages based on an assessment of each of the following heads of damage Ms. Power claimed: a. General damages b. Loss of income c. Loss of housekeeping capacity d. Cost of future care e. Special expenses (paid pursuant to

Section

B) f. Pre-judgment interest Evidence of injury [ 19 ] The Personal filed two affidavits of Wendy Dalley, a Recovery Analyst with the company. Attached to Ms. Dalley’s first affidavit are medical records and reports that describe Ms. Power’s injuries, medical condition and personal circumstances. This evidence is uncontested. [ 20 ] Ms. Power was 57 years old when the accident occurred. She lived with her husband and was employed full-time as a sales representative. Immediately following the accident, she was off work due to her injuries.

She started easing back to duties in April and returned to work full-time from May 2014 to August 2016. In September 2016, she left work again due to her injuries, which had never fully resolved. She has remained off work since and has been supported by long-term disability benefits since November 2017. [ 21 ] A report dated September 10, 2016 from Ms. Power’s family doctor, Dr. Christine Bassler, gives a detailed account of her symptoms and the treatments she had received to that date. Dr. Bassler’s report concludes: In

summary, Mrs. Diane Power has been significantly affected with chronic pain, mostly involving the neck and back, since being involved in a motor vehicle accident in January 2014. She did not have a history of similar symptoms prior to the MVA. The first year she improved and was able to return to a busy work

schedule with full duties. However, she has never been fully pain free; her pain has frequently flared with minimal activity increase, and for the past few months she is markedly worse with concurrent significant depressive symptoms and is currently unable to work. She has always been eager to try different medications, therapies, and see specialists. She has consistently been attending numerous therapies including physiotherapy, massage therapy, acupuncture, osteopathy, kinesiology, and personal training.

She has had trials of numerous medications including Toradol, Naprosyn, Flexeril, Cymbalta, Tramacet, Lyrica, Atasol 30, Elavil, and Zoloft. She has been assessed by several specialist, including Dr. Tong, Dr. Bautista and Dr. Pryce-Philipps, who have diagnosed chronic myofascial pain, fibromyalgia and greater occipital neuralgia, and whiplash associated disorder type II respectively. With respect to future prognosis, it is guarded because of her worsening this year with no known cause. The upcoming chronic pain program may be valuable in helping Mrs.

Power increase her coping skills for living with chronic pain and functioning at the highest level possible. [ 22 ] The Personal also filed reports of Dr. Amy Tong, Dr. Michael Bautista and Dr. William Pryce-Phillips containing the diagnoses Dr. Bassler summarized. In an updated report on January 30, 2017, Dr. Tong, an internal medicine physician, concluded that Ms. Power continued to suffer from chronic myofascial pain and fibromyalgia and that she was totally incapacitated by her pain and unable to return to any kind of gainful employment. [ 23 ] Dr. Keegan Au conducted an independent medical evaluation of Ms.

Power in August 2016 at the Personal’s request, which was filed. Dr. Au diagnosed Ms. Power with whiplash associated disorder type II caused by the accident. He recommended on-going pharmacological treatment for flares in symptoms, acupuncture as Dr. Tong recommended for symptom and chronic pain control, and an on-going trainer and gym membership. He also encouraged the use of some form of psychologic intervention. Dr. Au concluded that Ms.

Power had reached maximum medical recovery and should expect some ongoing subjective symptoms without the risk of structural harm. [ 24 ] Jane Simmons, an occupational therapist with Integrated Occupational Health Services, authored a Functional Capacity Evaluation Report dated May 9, 2017, which was also filed (the “FCE”). The FCE concluded that Ms. Power was not competitively employable because she did not have the capacity to engage in dependable sustained activity performance over three to four hours on a daily basis as part-time work would require. General damages

[ 25 ] General non-pecuniary damages are often referred to as damages for pain and suffering. They compensate a plaintiff by providing the opportunity to replace aspects of life and happiness lost to injury. Each case must be assessed on its particular facts, considering the injuries suffered and the impact of those injuries on the plaintiff.

However, courts are usually guided by previously decided cases of plaintiffs with similar injuries and circumstances. [ 26 ] The Personal submits that general damages of $80,000 are appropriate in this case, being the mid-point of a range of likely recovery of $70,000 to $90,000. In support of its position, the Personal filed several cases from this jurisdiction. [ 27 ] In Gosse v. CBS Taxi Ltd. , 2000 NFCA 16 at paras. 42 and 43 , the Newfoundland and Labrador Court of Appeal established the range for general damages for whiplash or soft tissue injuries in this jurisdiction as $20,000 to $80,000.

The Personal filed cases that demonstrate that range, considering the passage of time since Gosse was decided and the time-value of money. The cases I found to be most comparable to the present one are: a. Allen v. Wal-Mart Canada Inc. , 2009 NLTD 79 . A 45-year-old plaintiff was trapped between her shopping cart and an escalator- like device. She suffered soft-tissue damage along the length of her spine, which the judge described as disabling with little hope the symptoms would resolve. Ten years after the accident, the plaintiff could not tend to her regular duties and suffered from Chronic Pain Syndrome.

She was awarded $90,000 for general damages. b. Gordon v. Sexton , 2013 NLTD(G) 127 . A 42-year-old plaintiff was in a rear-end collision. His injury led to chronic myofascial pain, occipital neuralgia, a grade II whiplash-associated disorder, and lingering symptoms of depression that met the criteria of a major depressive disorder. The accident caused a profound change in every aspect of his life. He was awarded $75,000 for general damages. c. Furlong v. Sexton Trucking Limited , 2019 NLSC 202 .

A 38-year-old plaintiff was injured in a motor vehicle accident and suffered soft tissue injuries affecting her neck, shoulders, and lower back. She also experienced headaches on a regular basis. Regardless of whether or not the injuries had resolved, the plaintiff continued to suffer continuing perceptions of pain that were disabling to her. The judge found that she suffered from chronic pain that affected every aspect of her life and she was no longer able to work in her pre-injury employment as a fisher.

Although the judge found that she could have returned to work within a couple of years of the accident, she had not done that and at the time of trial was not competitively employable. She was awarded $72,500 for general damages, net of the $2,500 statutory deductible under the Automobile Insurance Act . [ 28 ] Ms. Power has been diagnosed with chronic myofascial pain, fibromyalgia and greater occipital neuralgia, and whiplash associated disorder type II. Despite participating in numerous therapies and medication regimes, she continued to suffer chronic pain and could not work.

In November 2017, she was approved for long-term disability coverage. Although, approximately two years passed between the settlement and the hearing of this application, I did not require updated medical evidence. I am satisfied that the accident has significantly affected Ms. Power’s life. Based on the above precedents and the evidence before me, I find that general damages of $80,000 is within the range of her likely recovery had she gone to trial. Loss of income [ 29 ] At the initial hearing of this application, I posed some questions about the Personal’s assessment of Ms. Power’s lost income damages.

As a result, the Personal filed a further affidavit of Wendy Dalley and a second brief. Insofar as they differed from the materials initially filed, the Personal relied on the submissions made in those later filings. [ 30 ] To assess Ms. Power’s lost income, the Personal assumed the following: a. For 2014 and 2016, years when Ms. Power worked for part of the year only, she would have earned the same average amount in the months that she did not work, as she did in the months that she did work. b. For 2017 onward, Ms.

Power would have earned annual employment income equivalent to the average of her earnings over the three years 2014, 2015 and 2016. c. Ms. Power would have worked until the end of 2021, the year in which she turned 65. [ 31 ] The Personal explained why it estimated Ms. Power’s income from 2017 onward using the average of her prior three years’ earnings. First, as a sales representative, Ms. Power earned commission income that caused her total income to fluctuate from year to year. Justice Boone took a similar approach in Furlong to assess income from the fishery that fluctuated yearly. Second, changes in Ms.

Power’s work environment and pay structure in 2014 increased her income. The changes were anticipated to be permanent and made earning years before 2014 less reliably predictive of future earnings. [ 32 ] The Personal deducted amounts that Ms. Power either did, or would have, paid for income tax, contributions to the Canada Pension Plan (“CPP”), and premiums for Employment Insurance (“EI”) from her actual and imputed income. This is consistent with

section 5 of the Automobile Insurance Regulations , N.L.R. 56/19 . [ 33 ] The Personal filed Tax Return Summaries for Ms. Power from 2009 to 2016 to establish her employment earnings. It also filed evidence to support the deductions it made for income tax, CPP and EI. [ 34 ] Finally, the Personal subtracted amounts that Ms. Power received for CPP disability benefits, commencing in 2017. This is consistent with

section 26.5 of the Automobile Insurance Act and case authority, including Ryan v. Curlew , 2018 NLSC 72 , at paras. 181-186 . [ 35 ] In the result, the Personal submits that Ms. Power’s lost income as a result of the accident was $363,903.77. Attached to Ms. Dalley’s second affidavit is a spreadsheet that details how that amount was calculated. It uses the information and assumptions that I have already outlined.

[36] I find that the Personal has established $363,903.77 as a reasonable amount for Ms. Power’s lost income claim and within therange of her likely recovery had she gone to trial. I am satisfied with the evidence presented. I also find the assumptions the Personalmade to be reasonable, consistent with case authority, and in accordance with the Automobile Insurance Act and Regulations. Diminished housekeeping capacity [37] The FCE anticipated that Ms. Power’s participation in household chores would be affected on a long-term basis.

The FCErecommended continued assistance for heavier household chores from her spouse or an outside source. [38] The Personal filed portions of the transcript of Ms. Power’s examination for discovery on July 31, 2018. In discovery, Ms.Power described her inability to do cleaning as she did before the accident. After the accident, she could only do one task at a time withbreaks in between.

She stated that her husband did some tasks and others were left undone. [39] However, by the time of her discovery, about two and a half years post-accident, when asked if there were any householdduties that she absolutely could not do, she replied, “I don’t know that there’s anything that I can’t do at all. It’s a matter of if you docertain tasks, how much are you going to pay for that.

How much pain are you going to be in afterwards, and how much, you know, isare – is it going to flare.” (Discovery Transcript, page July 31, 2018, page 109.) [40] The Newfoundland and Labrador Court of Appeal addressed the law regarding damages for lost housekeeping capacity inMorgan Estate v. Newfoundland, 2007 NLCA 39. At paragraph 73, the court wrote: It is now clear that a plaintiff can be compensated for loss of capacity to do housework, even though someone else may be performingthe household tasks and may not be paid for doing so. Indeed, that is not in dispute.

It is not necessary for the plaintiff to establish thatshe will hire someone to perform housekeeping tasks in the future (Fobel v. Dean (1991), (SK CA), 83 D.L.R. (4th)385 (Sask. C.A.); Beam v. Pittman, supra). Loss of housekeeping will be awarded whether the tasks are not done at all, or done by thefamily or by a person hired for the purpose. [41] The court went on to observe at paragraph 75: The determination of the proper award for loss of housekeeping capacity is not a simple task.

Housekeeping is generally considered toinvolve direct labour and management (Personal Injury Damages in Canada, supra, note 2 at 325.). Not everyone's standards are thesame. Not every household shares tasks in the same way. Further there is a distinction to be made between tasks which can no longer bedone by a plaintiff and those which a plaintiff may do but take longer time to do or are done with pain. If a plaintiff can still dohousekeeping but with pain, or taking longer time, that is an item of general damages, not an item under loss of housekeeping capacity(McCallum v.

Ritter (1990), (SK CA), 72 D.L.R. (4th) 49 (Sask. C.A.); and Beam v. Pittman, supra.). [42] The Personal submitted that $10,000 is fair compensation for Ms. Power’s diminished past and future housekeeping capacity. Itrelied on the following cases as comparable authorities: a. Treberg v. Jarvis, 2009 NLCA 51. A 30-year-old plaintiff who suffered injury, particularly to his leg, was awarded $10,250 fordiminished future housekeeping capacity to compensate for loss of his ability to complete heavier household indoor and outdoor chores,repairs and improvements to his home. The award was upheld on appeal. b. Ryan v.

Curlew. A plaintiff who could not perform more strenuous tasks such as snow clearing and lawn mowing and could onlydo some lighter tasks periodically, was awarded $2,000 per year for past loss of housekeeping capacity. She was 35 years old at the timeof trial and was awarded a global amount of $35,000 for loss of future housekeeping capacity. [43] I am satisfied that Ms. Power’s injuries affected her ability to do household tasks for a period of time after the accident,however, the evidence does not establish that she continued to have any deficit as of July 2018.

As noted in Morgan Estate, if a plaintiffcan still do housekeeping but with pain, or taking longer time, that is an item of general damages, not an item under loss of housekeepingcapacity [44] It is often difficult to quantify damages for diminished housekeeping capacity with any degree of precision (Gosse at para. 60).However, based on the evidence filed, I cannot conclude that $10,000 is a reasonable estimate within Ms. Power’s likely range ofrecovery for damages for diminished housekeeping capacity, as the Personal suggests.

Despite the recommendations of the FCE, Ms.Power’s evidence was that she had resumed doing all of her former household tasks by at least two and a half years post-accident. Therewas no evidence that she incurred any housekeeping replacement expense and Ms. Power is considerably older than the plaintiff inTreberg. [45] My role is to assess the reasonableness of the global settlement. To do that, I am not required to determine Ms. Power’sentitlement under any particular head of damage.

However, assessing reasonableness of the global amount requires me to consider therange of likely recovery under each head of damage. To ensure that my assessment is fair to Mr. White, I prefer to take a conservativeapproach. Had there been a trial, Ms. Power may have established a greater entitlement. However, based on the evidence before me, Iam only willing to consider a maximum of $5000 for diminished housekeeping capacity.

Cost of Future Care [46] The Court of Appeal addressed damages for the cost of future care in Morgan Estate: [56] 1) General Principles Damages for cost of future care are a matter of prediction. No one knows the future. Yet the rule that damages must be assessed once

and for all at the time of trial (subject to modification on appeal) requires courts to peer into the future and fix the damages for futurecare as best they can. In doing so, courts rely on the evidence as to what care is likely to be in the injured person’s best interest. Thenthey calculate the present cost of providing that care and may make an adjustment for the contingency that the future may differ fromwhat the evidence at trial indicates. Krangle (Guardian Ad Litem of ) v.

Brisco, 2002 SCC 9, 1 S.C.R. 205, para. 21. [57] There must be medical justification for claims for cost of future care and claims must be reasonable (Milina v. Bartsch). Anaward for future care must be moderate and fair to both parties (Andrews v. Grand & Toy). Fairness to the defendant is achieved byassuring that the claims raised against him are legitimate and justifiable (Andrews v. Grand & Toy). [47] Ms. Power availed of numerous therapies and treatments following her accident, including acupuncture, physiotherapy andmassage therapy.

However, at the time of her discovery in July 2018, she was not undergoing any therapies other than using the servicesof a personal trainer. She was taking Atasol 30s regularly to manage her pain. Dr. Bautista and at least one other specialist were stilltreating her (Discovery Transcript, page July 31, 2018, page 122-124.) [48] As noted above, Dr. Au, who conducted an independent medical evaluation of Ms. Power, recommended on-goingpharmacological treatment, acupuncture as recommended, and an on-going trainer and gym membership. He also encouraged the use ofsome form of psychologic intervention.

He did not find any indication for further passive treatments such as massage therapy orchiropractic manipulations. [49] In the FCE, Ms. Simmons concluded that Ms. Power’s participation in her gym/exercise and swimming program was criticallyrequired to maintaining her mobility, flexibility and strength. Although she acknowledged that exercises could contribute to symptomaggravation, Ms. Simmons felt a professional familiar with Ms. Power’s trigger points and soft tissue injuries, such as a physiotherapist,could review those. Ms.

Simmons also believed that continued participation at the Centre for Pain and Disability Management at EasternHealth and a concentrated cognitive behavioral pain management program would help Ms. Power reduce pain and disability. [50] The Personal submitted that $15,000 is fair compensation for Ms. Power’s cost of future care. It relied on Cochrane v. O’Brien(2000), (NL SC), 190 Nfld. & P.E.I.R. 8, 96 A.C.W.S. (3d) 783 (Nfld. S.C. (T.D.)), a case in which a plaintiff, whowas 26 years old at the time of the accident and 32 years old at the time of trial, had not undertaken much in the way of therapy.

Thejudge found that there was no evidence that she had undertaken regular physiotherapy or massage therapy since the year of the accident.Although, he considered it reasonably likely that occasional physiotherapy would be required from time to time in the future for severeepisodes of pain and discomfort. The judge found that the possibility of a future surgery to address the plaintiff’s injuries was remote,but still possible given her relatively young age. The plaintiff took medications for pain relief and the judge found that she wouldcontinue to do so from time to time.

No evidence had been presented about the costs of those medications. In the result, the judgeordered $5000 for future care damages. [51] The Personal submitted that the established future needs of Ms. Power are considerably greater than those of the plaintiff inCochrane. [52] Again, based on the evidence filed, I cannot conclude $15,000 is within the range of Ms. Power’s likely recovery for the cost offuture care, as the Personal suggests. Keeping in mind the direction from Morgan Estate, fairness to Mr. White requires that amountsclaimed are legitimate, moderate and justifiable.

There was little evidence before me to establish what future care expenses would be.Moreover, two-and-a-half years post-accident, Ms. Power stated that she was not undergoing any therapies, other than using the servicesof a personal trainer, and not taking any medications, other than Atasol 30s. [53] Yet, I find that Ms. Power’s future care needs have been established as greater than those of the plaintiff in Cochrane.Additionally, I accept that had there been a trial Ms. Power may have established a greater entitlement.

However, based on the evidencebefore me, to assess the reasonableness of the global damages claimed, I am only willing to consider a maximum of $10,000 for futurecare. Special expenses (paid pursuant to

Section B) [54] The Personal paid $20,625.60 under

Section B accident benefits for expenses related to the accident. It filed an accounting ofthese expenses. Most payments were for treatments or physical therapies for Ms. Power. Others were for reports from treating careproviders. I find that these out-of-pocket expenses are related to Ms. Power’s injuries and she would have recovered them had she goneto trial. Pre-judgment interest [55] The Personal calculated pre-judgment interest up to the date of settlement with Ms. Power at $58,931.51. It did not claim anyfurther pre-judgment interest. [56] Unfortunately, the calculation the Personal provided to substantiate its claim does not accord with section 4(2) of the JudgmentInterest Act:

(2) Where a judgment includes damages for expenses incurred or income lost, the court shall

(

a) determine the total of those damages sustained within the 3 month period beginning on the day the cause of action arose and within each subsequent 3 month period; and (

b) calculate interest from the last day of each 3 month period described in paragraph (

a) to the day of judgment, on the total of the damages sustained within the 3 month period, at the interest rate in effect on the last day of the 3 month period. [ 57 ] The Personal has assumed that all damages, including special expenses and lost income, arose on the date of the accident. The result is that they have overestimated the pre-judgment interest claim. [ 58 ] I cannot calculate pre-judgment interest entitlement with precision because section 4(2) of the Judgment Interest Act requires details about when damages for expenses were incurred and when income loss arose.

However, there is no question that Ms. Power was entitled to pre-judgment interest. To evaluate the Personal’s global claim, I have assumed pre-judgment interest of $25,000. I am satisfied that this is a reasonable estimate of the amount Ms. Power would likely have recovered.

Summary [ 59 ] The Personal claims from Mr. White damages of $500,000.00. Based on my analysis set forth above, Ms. Power’s likely recovery at trial can be reasonably estimated as follows: General damages $ 80,000.00 Loss of income $ 363,903.77 Diminished housekeeping capacity $ 5,000.00 Future care $ 10,000.00

Section B payments $ 20,615.60 Prejudgment interest $ 25,000.00 Total $ 504,519.37 [ 60 ] This analysis results in a lower total than what the Personal proposed as Ms. Power’s likely recovery. However, it remains in excess of what the Personal has claimed from Mr. White. I am satisfied that the settlement the Personal paid to Ms. Power was reasonable, meaning that it was within the range of Ms. Power’s likely recovery had she gone to trial. As a result, I accept the Personal’s claimed damages of $500,000. COSTS [ 61 ] The Personal has been successful in this application.

However, I am exercising my discretion not to award costs. Although the Personal had to prepare comprehensive affidavits and briefs in support of the application, the supplemental brief and affidavit were only required because the initial filings were not adequate to respond to my concerns. Additionally, Mr. White did not oppose the application or file any responding material and, as a result, the matter was not as complex or time consuming as it could have been. DISPOSITION [ 62 ] I allow the application and award the Personal damages of $500,000.00.

I am not awarding pre-judgment interest because pre- judgment interest was included in the settlement paid to Ms. Power and the Personal sought no further amount. I make no order as to costs. __________________________ Katherine O'Brien Justice