2018 NBCA 17, 2018 NBCA 17

COURT OF APPEAL OF NEW BRUNSWICK COUR D’APPEL DU NOUVEAU-BRUNSWICK 73-16-CA MONICA NOREEN BENT APPELLANT MONICA NOREEN BENT APPELANTE - and - - et - RONALD EUGENE MACFARLANE RESPONDENT RONALD EUGENE MACFARLANE INTIMÉ Bent v. MacFarlane, 2018 NBCA 17 Bent c.

MacFarlane, 2018 NBCA 17 CORAM: The Honourable Justice Richard The Honourable Justice Green The Honourable Justice French CORAM : l’honorable juge Richard l’honorable juge Green l’honorable juge French Appeal from a decision of the Court of Queen’s Bench: September 7, 2016 Appel d’une décision de la Cour du Banc de la Reine : le 7 septembre 2016 History of case: Decision under appeal: Unreported Preliminary or incidental proceedings: Historique de la cause : Décision frappée d’appel : inédite Procédures préliminaires ou accessoires : Appeal heard: June 21, 2017 Appel entendu : le 21 juin 2017

Judgment rendered: March 15, 2018 Reasons for judgment by: The Honourable Justice French Concurred in by: The Honourable Justice Richard The Honourable Justice Green Jugement rendu : le 15 mars 2018 Motifs de jugement : l’honorable juge French Souscrivent aux motifs : l’honorable juge Richard l’honorable juge Green Counsel at hearing: For the appellant: Gaétan Migneault For the respondent: Rémy Mathieu Boudreau THE COURT The appeal is dismissed, the cross-appeal is allowed and costs of $2,500 are payable by the appellant.

Avocats à l’audience : Pour l’appelante : Gaétan Migneault Pour l’intimé : Rémy Mathieu Boudreau LA COUR L’appel est rejeté, l’appel reconventionnel est accueilli et l’appelante est condamnée aux dépens qui sont fixés à 2 500 $. The judgment of the Court was delivered by FRENCH, J.A. I. Introduction [ 1 ] In March 2010, Monica N. Bent was injured in a serious automobile accident. Ms. Bent suffered a break at her right knee – a fracture of her right lateral tibial plateau – and a variety of bruises and contusions, including a left shoulder hematoma caused by the seatbelt. Ms.

Bent has not worked since the accident, alleging these injuries and a resulting chronic pain syndrome continue to prevent her from doing so. Roland E. MacFarlane admits liability for the accident; however, he disputes Ms. Bent’s accident related injuries are as extensive as she claims or that they caused her to be unable to work, except during a relatively brief period following the accident. After a four-day trial, a judge of the Court of Queen’s Bench denied the largest of Ms. Bent’s claims, namely, loss of future earnings to age 67.

That head of damage accounted for approximately $380,000, out of a total claim in excess of $550,000. Ms. Bent appeals that and other decisions made by the judge.

[ 2 ] Ms. Bent’s allegations of error by the trial judge centre largely on what she describes is an obvious contradiction between his finding that the injuries she suffered left her with a “permanent serious impairment of an important bodily function” (and, as a consequence, her general damages claim was not limited to the $2,500 statutory cap for minor personal injuries) and his finding that she did not establish her injuries prevented her from working after February 2011, less than one year following the accident. In particular, Ms.

Bent claims the findings the judge made regarding her inability to walk, stand or sit for any length of time, as well as her pain and other limitations, are incompatible with his finding that she did not establish these injuries render her permanently disabled – especially in view of an uncontradicted Functional Capacity Evaluation which opined, as of 2012, that Ms. Bent could only work 2½ to 3 hours a day and it was unlikely she could find employment which would accommodate her limitations. [ 3 ] The trial judge awarded Ms.

Bent non-pecuniary general damages of $35,000, as well as damages for the loss of valuable services ($8,000 past and $8,000 future) and the cost of future care ($5,000). He also awarded damages for past loss of earnings, from the time of the accident until February 2011. That is the month when Ms. Bent applied for Canada Pension Plan disability benefits, claiming to be disabled as a consequence of a flare-up of her Multiple Sclerosis (“MS”). However, the trial judge denied Ms. Bent’s claim for past loss of income after February 2011 (to the time of trial) and her claim for future loss of income (to age 67).

The judge concluded Ms. Bent did not establish the injuries she suffered in the accident were a cause of any disability, beyond February 2011, or that, for any reason, she had an ongoing inability to be employed. [ 4 ] Ms. Bent’s appeal also asserts the judge erred in arbitrarily fixing the quantum of damages awarded for loss of valuable services and the cost of future care at amounts which are less than the evidence justifies. [ 5 ] Since the accident, Ms. Bent has been receiving

Section B loss of income benefits of $250 per week and, since 2011, she also has been receiving CPP disability benefits. In his cross-appeal, Mr. MacFarlane maintains the judge erred in his application of s. 263(2) of the Insurance Act , R.S.N.B. 1973, c. I-12, by failing to set off the

Section B benefits Ms. Bent has received against the aggregate of all damages awarded to her, including, the general damage award and damages awarded for loss of valuable services and the cost of future care. Ms. Bent submits the judge was correct to only set off the

Section B benefits she received against the amount he awarded for past loss of income (from March 2010 to February 2011). [ 6 ] For the reasons that follow, I would dismiss Ms. Bent’s appeal and allow the cross-appeal. II. Background [ 7 ] Before reviewing the background, it is helpful to know the basis upon which Mr. MacFarlane vigorously disputed Ms. Bent’s damages claim, particularly her claim for loss of income. Mr. MacFarlane’s position is summed up in his pretrial submission: “[…] the injuries sustained in the accident are not preventing the plaintiff’s ability to work.

Rather, her MS symptoms, depression, obesity and lack of motivation to work in the light of her current sources of income are all factors which contribute to her unemployment.” This submission also captures his underlying position on appeal. Ms. Bent’s position at trial was, and on appeal is, that, while the fracture of her knee may have healed relatively quickly, the accident left her with a chronic pain syndrome which continues to prevent her from performing many basic tasks for any amount of time – and resulted in her being permanently and totally disabled from work.

Naturally, the parties differing positions are reflected in both the evidence led at trial and the analysis of the trial judge. Given the issues raised on appeal, a fairly full appreciation of the factual background and evidence before the judge is essential. [ 8 ] Born in April 1972, Ms. Bent was nearly 38 years of age at the time of the accident in 2010. She graduated from Campobello High School in 1991. She is married and has a daughter, who was born in 1994. [ 9 ] Before the accident, Ms. Bent had been diagnosed as having MS, high blood pressure and depression. Ms.

Bent’s bodyweight has also been relevant to her medical care. While it has varied, the medical evidence indicates that, for the most part, it has been in the area of 300 pounds. At the time of the accident Ms. Bent weighed 320 pounds; at the time of the trial she was 268 pounds. She is 5’4” tall. [ 10 ] In 2002, when Ms. Bent was 30 years old, she was diagnosed with MS. During the 15 years since then, she has been treated by the same neurologist, Dr. Gregg MacLean. At trial, Dr. MacLean explained that Ms. Bent has relapsing/remitting MS. During a flare-up, living with the disease becomes very difficult.

Following the initial diagnosis, Ms. Bent had a further flare-up in early 2003 but, as Dr. MacLean reported, Ms. Bent’s MS was stable for number of years after that, being well managed by medication. The

next flare-up occurred in late 2010, almost 9 months after the accident. More will be said about this below. After the 2003 flare-up, Dr. MacLean continued to see Ms. Bent, more or less annually. During their meetings, Ms. Bent would report on health related issues, some of which were related to MS, while others were not. During the time Ms. Bent was followed by Dr. MacLean, there were changes made to her MS medication and, on occasion, she reported to him that she had experienced headaches and migraines. These were treated with medication. [ 11 ] In 2002 or 2003, when receiving medical care after a dog bite, Ms.

Bent discovered she had high blood pressure. Ms. Bent indicates she takes a blood pressure pill and a fluid pill. [ 12 ] Not long after being diagnosed with MS, Ms. Bent was diagnosed as having depression. She estimates it was around 2004 or 2005. Paxil was prescribed by her family doctor and she has been taking it since. Dr. MacLean’s evidence was that depression is common amongst MS patients. Ms. Bent’s depression was not diagnosed by Dr. MacLean and it has not been attributed solely to her MS. However, it was not uncommon for Ms. Bent to discuss her depression with Dr. MacLean.

On occasion, he made recommendations regarding the medication she takes for depression and after the accident he changed the medication. [ 13 ] In advancing the claim the accident has caused her inability to work, Ms. Bent emphasizes that none of these pre-existing medical issues prevented her from working prior to the accident and maintains they do not presently prevent her from working. Similarly, others, who opine the accident injuries prevent Ms. Bent from returning to work, observe that she worked before the accident notwithstanding her pre-existing conditions. [ 14 ] In 2002, about the same time Ms.

Bent was diagnosed with MS, she re-entered the workforce after spending a number of years at home with her young daughter. She worked at Charlotte Shellfish and, in 2003, she began working at Tim Hortons. Initially, Ms. Bent was as a front-line worker. Soon after, she became a supervisor and later a manager. She remained at Tim Hortons for about six years, with the exception of a 15 week period of time in 2008 when she was out on leave due to stress. Stress was also a factor in her ultimately leaving Tim Hortons for good in June 2009. [ 15 ] Ms. Bent found the position of manager very stressful.

It was quite a burden to manage a large number of staff and she often had to cover for employees who did not show up for their shifts. At times, she worked 60 hours a week. Not surprisingly, she found such work very taxing. This was recognized by Dr. MacLean. His written reports to Ms. Bent’s family physician between 2004 and 2008 note that she reported being fatigued and, in a May 19, 2004 report, he noted that if she works too much she experiences an increase in left-sided sensory symptoms. In May 2006, he reported Ms. Bent having generalized aches and pains. A report from February 6, 2007, noted Ms.

Bent was working at least 60 hours per week and was completely exhausted. He indicated her work was definitely contributing to her severe fatigue. The same thing is reported in November 2007, along with left arm symptoms, which Dr. MacLean felt might be related to repetitive strain at work. At the time, he expressed the view that Ms. Bent was working too much and finding it taxing. Dr. MacLean explained that fatigue is common amongst MS patients but that Ms. Bent’s long hours at work were a significant factor in her fatigue. [ 16 ] In 2008, Ms. Bent was “off work” on sick/medical leave.

The particulars are not clear from the record. She received employment insurance sick benefits for a period of 15 weeks, spanning at least part of the summer. Ms. Bent’s evidence was that she was suffering burnout from the stress at work. The occupational therapist, whose reports include the Functional Capacity Evaluation and Home Maintenance Evaluation, upon which Ms. Bent relies, understood from her meeting with Ms. Bent that she was on leave because of depression. An entry on the chart of Ms. Bent’s family doctor, Dr. Kay, for July 18, 2008, indicates Ms.

Bent complained to him of peripheral edema affecting her feet, ankles and hands. [ 17 ] Not long after returning to work in late 2008, Ms. Bent again began to find her job stressful. In addition to the usual factors, there was a new owner, which added to the stress. While there was some discussion of changing her

schedule to assume only daytime shifts, this did not come to fruition. By June 2009, she stopped working and again received employment insurance benefits. Her intention was to not return to Tim Hortons but to look for a new job, one without supervisory responsibilities. [ 18 ] On February 17, 2010, Ms. Bent began working as a cashier at a Petro Canada service station/convenience store in Lepreau, New Brunswick. During the three weeks Ms. Bent was employed before the accident on March 12, 2010, she worked 75.25 hours. Although Ms.

Bent was working part-time, she was expected to become full-time later in the spring. This expectation was confirmed by Ms. Bent’s employer and accepted by the trial judge who awarded Ms. Bent damages for past loss of income based on full- time employment (from March 2010 to February 2011). [ 19 ] Two days before the accident, Ms. Bent met with her family doctor, Dr. Kay. He was not called as a witness

but by consent his chart notes were admitted as evidence. The notes indicate Ms. Bent complained during this visit of increased stress at home, with heightened symptoms of depression, and, in relation to her MS, increasing fatigue and pain. Ms. Bent does not recall making these complaints to her doctor but does not dispute having done so. The dosage of the medication prescribed for her depression was increased. [ 20 ] The motor vehicle accident occurred on March 12, 2010. The collision occurred with such force it pushed her car off the road, down into the ditch and up onto the other side. Ms.

Bent’s legs were trapped under the dash of her car, which collapsed in on her. Ms. Bent had to be cut out of the vehicle using the Jaws of Life. She was taken by ambulance to the Saint John Regional Hospital. The fact that she had a fracture of her right lateral tibial plateau was not immediately recognized, despite an x-ray having been taken. After some discussion about releasing her from the hospital entirely, Ms. Bent was transferred by ambulance to the hospital in St. Stephen for recovery. The extreme level of pain experienced by Ms.

Bent when efforts were made at the Charlotte County Hospital to help her walk led to a second x-ray. The fracture was identified and Ms. Bent was sent back to the Saint John Regional Hospital for remedial surgery. On March 15, 2010, the surgery was performed, using a plate and three screws – all of which remain in place today. Not surprisingly, Ms. Bent also had other injuries from the accident. In addition to various cuts and bruises, Ms. Bent had a large hematoma over her left shoulder, caused by the seatbelt, and her right ankle was sore/injured. Ms. Bent was hospitalized for two weeks.

Following the surgery on her knee, Ms. Bent was in a wheelchair, before later progressing to a walker and then a cane. By June/July 2010, she was walking with no aids. [ 21 ] On June 9, 2010, Dr. Andrew Trenholm, the orthopedic surgeon who repaired Ms. Bent’s fracture, saw her for the last time. Being satisfied with Ms. Bent’s progress, he discharged her from further follow-up. Dr. Trenholm’s letter to her family doctor states: This 38 year old had a common tibial plateau fracture on the right side which [was] treated surgically on 03/15/10. She has returned today for a recheck. She is doing very well.

She has 0 to 110 degrees of motion. She is ambulating with no aids. She is in no discomfort in the knee. Her x-rays show a healed fracture. I have discharged her from follow-up. [Emphasis added.] At trial, Ms. Bent disagreed with the statement in Dr. Trenholm’s letter that she had no discomfort in her knee. Her evidence was that she had pain in her knee and she believed she was still using a cane. Dr. Trenholm no longer practices in New Brunswick and he was not called to testify. [ 22 ] Following surgery, Ms. Bent was referred for physiotherapy treatment at the Charlotte County Hospital.

The evidence does not indicate when Ms. Bent began physiotherapy or how often she went. Ms. Bent believed it was a couple of months. The physiotherapist’s report indicates Ms. Bent’s initial assessment and the date of discharge were both July 16, 2010. Regardless, the report notes that Ms. Bent “is very active and will continue to progress with ambulation.” [ 23 ] Significant to his ultimate findings, the trial judge notes that following discharge from physiotherapy in July 2010, Ms. Bent did not receive or seek further medical treatment for her accident related injuries and, since that time, Ms.

Bent has managed the ongoing pain which forms the basis for her claims with non-prescription Advil and Tylenol. [ 24 ] In November 2010, Ms. Bent experienced the first flare-up of her MS since 2003. As will be explained below, Ms. Bent does not suggest the motor vehicle accident caused or contributed to the flare-up nor does the medical evidence suggest the accident in any way triggered the flare-up. Dr. MacLean testified that a few months earlier Ms. Bent had a recent spontaneous abortion (a miscarriage) which may have played a role in the flare-up, as her immune system may have been weakened.

This flare-up was a challenge to manage and there was a further flare-up in February 2011. Without a doubt, this was a difficult time for Ms. Bent. [ 25 ] During the flare-up(s), Ms. Bent applied for CPP disability benefits. The judge concluded she applied for and received benefits on the basis of her MS. He considered Ms. Bent’s ongoing receipt of CPP disability benefits, after the flare-up abated, as a factor in assessing her credibility. Since the judge’s findings are the focus of one of Ms. Bent’s grounds of appeal, it is necessary to touch on the key elements of this evidence. [ 26 ] Ms.

Bent testified she applied for CPP disability benefits on the suggestion of her father. Her Application (dated January 17, 2011) and Questionnaire for Disability Benefits (dated February 2, 2011) were received by Service Canada on February 7, 2011. In answering a question in the Questionnaire, in relation to why she stopped working, Ms. Bent indicated “Car accident/MS” and she advised that her last day on the job was March 11, 2010. In response to a request to “[s]tate the illnesses or impairments that prevent you from working,” Ms.

Bent answered “I am applying due to my MS.” In responding to a variety of specific questions related to explaining her “difficulties/functional limitations,” Ms. Bent’s responses include “very painful to sit or stand for long

periods, approx. 1 hour,” “I get very fatigued and legs start to give out after short periods” and “[v]ery hard for me to do a lot of household chores. Painful and tires me out very fast.” [ 27 ] A supporting CPP Medical Report form was completed by Dr. MacLean (dated February 25, 2011). In responding to the request for information respecting the “[r]elevant/significant medical history relating to the main medical condition” Dr. MacLean answered, “Multiple Sclerosis had been stable until past year. Now, neuropathic pain and decreased motor function in upper limbs.” In describing Ms.

Bent’s physical limitations, Dr. MacLean indicated there was decreased motor function in both hands and pain, which “combine[d] for significant functional limitation.” After describing Ms. Bent’s medication and treatment, including “recent I.V. steroids for exacerbation,” Dr. MacLean characterized Ms. Bent’s prognosis as: “guarded prognosis with incomplete response of exacerbations to treatment unable to work.” [ 28 ] A report by CPP medical adjudicator (a registered nurse) includes notes made following a telephone conversation with Ms. Bent on June 8, 2011.

They state: Client states last saw neurologist March 2011, had 2 flare-ups in one month and recent MRI shows disease progression. Client states main reason she cannot work is fatigue and loss of use of and pain in her hands which started after an MVA last year in which she suffered a break of her right tibia. She has not worked last couple of years in the summer as her fatigue is worsened with heat.

The report’s analysis concluded with: Considering her limitations of fatigue and bilateral hand weakness, and the lack of response to treatment and the medical condition’s progressive nature, it is reasonable to conclude, that the client is more likely than not, disabled from all work. The report concludes Ms. Bent’s condition is “severe and prolonged.” [ 29 ] At trial, Ms. Bent maintained she was not disabled from employment by MS. Mr. MacFarlane argued Ms.

Bent’s credibility was impaired, not only by taking a different position at trial than she had taken in connection with her application for CPP disability benefits, but also by her failure to report to CPP the flare-up of her MS had passed and her MS ceased to be a reason she was unable to work. Indeed, he pointed out Ms. Bent’s CPP application provides that she is to report any changes or improvements in the condition upon which her claim is based and benefits are paid. The trial judge recognized the dichotomy, describing it as an “irreconcilable incongruity” in Ms.

Bent’s submission at trial that her MS has not been and is not a factor in her inability to work. [ 30 ] The November 2010 – February 2011 flare-ups settled down over time and Ms. Bent’s MS was once again well managed. On March 28, 2011, Dr. MacLean saw Ms. Bent as a follow-up to his treatment of the flare-ups. She had some improvement but he reported she had a prominent Lhermitte’s symptom – a tingling sensation in her hands. It was described as quite annoying and/or bothersome; however, Dr.

MacLean points out it did not give rise to an impairment of a motor function and the symptoms reduced somewhat with medication. Dr. MacLean’s report also notes her MRI scan shows a “mild increase in disease burden and typical features of MS.” Almost a year later, after a January 30, 2012 appointment, Dr. MacLean noted her Lhermitte’s syndrome continued to be controlled by medication. Since 2011, there have been no flare-ups of Ms. Bent’s MS. [ 31 ] Beginning in August 2012, more than two years after the accident, Ms.

Bent was seen by a number of medical professionals in connection with her accident-related injuries. This was not for treatment of the chronic pain which forms the basis her claim against Mr. MacFarlane; it was to obtain an assessment of her condition and the level of her impairment, principally in contemplation of this litigation. [ 32 ] Ms. Bent’s family physician at the time, Dr. Kay, responded by letter dated October 15, 2012, to an inquiry from Ms. Bent’s legal counsel. Dr. Kay reported he had seen Ms.

Bent for health reasons during the previous two years but not for issues related to the accident and, as a consequence of the inquiry, he had contacted Ms. Bent to arrange an examination. Thus, he assessed her on August 29, 2012. In his report, Dr. Kay explained they discussed for the first time issues related to her knee pain. He reported Ms.

Bent “did not feel she would be able to return to work with the constant pain she had in her knee;” however, he said “I cannot agree that all her pain in her knee was caused from her MVC 2 years ago.” His letter to Ms. Bent’s lawyer reads as follows: In the last 2 years I have been seeing Monica a few times for other health reasons not related to her MVC. After I got a request from you for an update, I asked Monica come for an evaluation on August 29, 12. That was the first time we discussed issues related to her knee pain. During my assessment at the end of August, Monica did complain of pain in her right knee.

She did not feel she would be able to return to her work with the constant pain she had in her knee. I did an examination for her knee, the wound was well healed and not much problems with the scar area. I asked Monica to get an [x-ray] of her knee as she was not improving as expected from her surgery. She later went and had an [x-ray] done on September 6, 12. The report showed a solid union of the fracture with minimal degenerative changes. Monica does have other medical issues that [cause] pain in her knee.

Aside from the degenerative changes shown on her X-ray, Monica does suffer from other conditions: obesity, depression, and MS. I cannot agree that all her pain in her knee was caused from her MVC 2 years ago. There are other factors that may contribute to the cause of her right knee pain. [ 33 ] In response to a further request by letter dated November 29, 2012, from Ms. Bent’s counsel, Dr. Kay wrote, he “couldn’t find much contribution of Monica’s inability to work to her accident.” His letter provides: Monica’s injury from her MVA is healed. She was discharged by Dr. Trenholm for further care in June 2010.

Her recent [x-ray] of her right tibia and fibula showed the fracture has healed well. Therefore I couldn’t find much contribution of Monica’s inability to work to her accident. Monica does have other illness that could prevent her from working: MS, depression, and obesity. These are more likely to be the factors that prevent her from returning to work. Most patients with similar injury would have gone back to work in less than 6 months. So my opinion is there is very little contribution factor from her injury to be causing her disability.

I would guess the probability would be [close] to zero. […] I did tell her to come back to see me after her [x-ray], but she has not come back to see me. In [terms] of physiotherapy, she stopped 2 years ago. She can certainly try that again if she is willing to try that again. [ 34 ] Right knee pain was the focus of Dr. Kay’s evaluation and both of his reports. Neither report indicates their discussing other pain attributable to the accident. Dr. Kay’s reports and charts were admitted as evidence, on consent. He was not called as a witness. [ 35 ] Over a five-month period, Ms.

Bent was seen by four other health professionals, none of whom had been involved with her treatment. On December 4, 2012, Ms. Bent was assessed by Ms. Felicia Boutilier, an occupational therapist, on the referral of her legal counsel. Ms. Boutilier produced both a Functional Capacity Evaluation, dated December 19, 2012, and a Functional Home Maintenance Evaluation, dated December 20, 2012. Her reports were admitted in evidence and she testified at trial. In Ms. Boutilier’s opinion, Ms. Bent does not demonstrate the physical ability to perform the demands of her job as a cashier, her pre-injury position.

Her FCE report concludes: Her demonstrated sitting, standing and walking tolerances indicate a 4 hour workday tolerance at less than the sedentary degree of strenuousness allowing for postural flexibility between weight bearing and sitting postures . Should she not have the ability to change positions between sitting and weight bearing, her workday tolerance would be reduced accordingly. With her restrictions of non- exertional activities, specifically reaching her workday tolerance is reduced to 2.5 – 3 hours per day . [Emphasis in original.] [ 36 ] At trial, Ms. Boutilier explained this further.

She said: “So, her work day tolerance at -- based on her ability to stand and sit was estimated to be about -- about four hours a day if she was able to move back and forth between sitting and standing at less than the sedentary degree of strenuousness because she was only able to lift ten pounds.” She also testified “[w]hat I looked at is,

you know, she has a four-hour workday tolerance based on her sitting, standing, walking tolerances, but when you take into account the fact that she has further limitations in reaching and bending and kneeling and crouching I had to further limit her workday tolerance to two and [a] half to three hours per day, and that’s based on the occasional range. So occasional is up to […] eight-hour day, an occasional basis would be a third of that, so we’re looking at two and a half -- a range of two and a half to three hours a day.” [ 37 ] On January 15, 2013, Ms. Bent was assessed by Dr. John Acker, an orthopedic surgeon, at the request of her

Section B insurer. Dr. Acker’s report indicates Ms. Bent advised it is difficult to stand for more than half an hour and took Advil or Tylenol for pain. She reported her depression was quite disabling. His report indicates Ms. Bent walked without a limp and she had full painless range of motion in her shoulder, both hips and knees, with tenderness around her left knee. Dr. Acker’s evidence at trial was consistent with this report. [ 38 ] On February 28, 2013, Ms. Bent was assessed by Dr. Richard Leckey, a neurologist, at the request of her legal counsel. Dr. Leckey indicated that Ms.

Bent’s main problem was in her knee and that her chronic pain is not related to her MS. He disagreed with Dr. Kay’s suggestion that her knee pain may be related to her MS, concluding that he did not think MS causes any of her knee pain. He concluded, in relation to Ms. Bent’s ability to work, that from an MS perspective the only limitation she had was fatigue. Acknowledging depression is associated with MS and was an ongoing problem, he noted it had not kept her from working before the accident.

He commented that her MS was mild and testified that, at this level, in general, most people would be able to carry on their day-to-day activities. Acknowledging her MS, depression and weight, Dr. Leckey felt the motor vehicle accident was the straw that “tipped her over” in relation to Ms. Bent’s inability to work. Dr. Leckey testified that, because two years had passed since Ms. Bent’s last flare-up in 2011 and she had the disease since 2002, the likelihood of her MS becoming worse was reduced. [ 39 ] On April 2, 2013, Ms. Bent was assessed by Dr.

Michael Forsythe, an orthopedic surgeon, at the request of her counsel. Dr. Forsythe did not testify at trial. The parties and court were advised Dr. Forsythe’s physician was of the opinion that, due to a medical condition, it would be too strenuous for Dr. Forsythe to give evidence. At trial, Ms. Bent sought to have Dr. Forsythe’s report entered into evidence. This was opposed by Mr. MacFarlane and, after receiving written submissions and hearing oral arguments from both parties, the trial judge ruled it admissible. This ruling has not been appealed. Dr. Forsythe’s report indicates he concluded that Ms.

Bent has a whole person musculoskeletal physical impairment, with respect to the right knee and ankle and left knee and left shoulder. He also concluded, based on the functional capacity assessment, Ms. Bent is not qualified to work as a sales clerk and her condition would indicate she is permanently disabled. Further, he specifically concluded she has suffered a permanent serious impairment. At trial, Dr. Acker was provided with Dr. Forsythe’s report and he was questioned about Dr. Forsythe’s findings of pain in areas other than her left knee. Dr. Acker simply explained that Ms.

Bent had not complained to him of other pain, certainly not pain of the type recorded by Dr. Forsythe. Dr. Acker also commented that he did not know why Ms. Bent would not have reported such pain to him, especially since their examinations were only months apart. [ 40 ] Almost a year later, on February 27, 2014, Ms. Bent was assessed by Dr. Darren Kerr, an orthopedic surgeon, at the request of Mr. MacFarlane’s counsel. Dr. Kerr concluded: As mentioned above, I do not feel that Ms. Bent’s right lower extremity injury has any significant effect on her capacity to work.

That said, I would not expect most otherwise healthy patients to be doing a job with moderate-to-heavy physical demands four years after suffering a depressed lateral tibia plateau fracture requiring open reduction and internal fixation. Dr. Kerr testified he disagreed with Dr. Leckey and did not feel the chronic pain Ms. Bent was having at the time of his 2014 assessment was a sequela of the motor vehicle accident. He also disagreed with Dr. Forsythe’s conclusion that as a result of the motor vehicle accident Ms.

Bent was left with whole person musculoskeletal physical impairment with respect to the right knee and ankle and left knee and left shoulder. [ 41 ] In October 2013, Dr. Irena Kaminska became Ms. Bent’s family physician. While it was implied the change was because Ms. Bent was not satisfied with Dr. Kay’s reports a year earlier, Ms. Bent explained that Dr. Kay was on Campobello Island, an almost three-hour trip from her home in Lepreau. She also pointed out that in the winter, when the ferry is not running, it is a journey requiring her to drive through the United States. Dr. Kaminska’s office is nearby, in St.

George. Dr. Kaminska first saw Ms. Bent on October 28, 2013. Between their first meeting and the time of her report, dated October 22, 2015, Dr. Kaminska had seen Ms. Bent on more than 20 occasions; however, none of these visits related to the injuries Ms. Bent sustained in the motor vehicle accident or her MS. At trial, Dr. Kaminska testified she knew Ms. Bent was taking over-the-counter medication (Advil and Tylenol) for her accident related pain and that Ms. Bent didn’t ask her to deal with her ongoing pain. Dr. Kaminska explained Ms.

Bent did not want to take anything that might lead to her becoming addicted to a prescribed narcotic [ 42 ] The trial began on May 17, 2016, and was held over four days. Ms. Bent testified and she called as witnesses, Ms. Boutilier and Drs. Kaminski, MacLean and Leckey. Mr. MacFarlane called Drs. Kerr and Acker.

[43] Dr. MacLean, Ms. Bent’s treating neurologist, did not prepare a report but his various reports to Ms. Bent’sfamily doctors were entered into evidence, along with other records and notes. His evidence at trial regarding Ms. Bent’s diagnosis andtreatment, until the 2011 flare-up abated, was consistent with what I have summarized above. Dr. MacLean testified that, since the flare-ups, Ms. Bent’s MS has been stable. Following a January 28, 2013 appointment with her at his clinic, Dr. MacLean reported there hadbeen no recent history of an MS attack. Also at this appointment, Dr.

MacLean changed the medication for Ms. Bent’s depression.Following a January 2014 appointment, Dr. MacLean noted Ms. Bent was experiencing increasing fatigue; he thought insomnia wasplaying a significant role in this. When Dr. MacLean was asked at trial about Ms.

Bent’s MS related limitations during 2013-2014, heindicated that her “expanded disability status score was still low but she had some problems with fatigue and […] depression, probablyMS related.” When asked about how this would impact her ability to work, he indicated any problem would not be with her motorfunctions – if anything, the MS might contribute to fatigue and depression. He testified he didn’t believe that in 2014 her MS wasproducing effects that would prevent her from working. While noting there had not been a flare-up since 2011, Dr.

MacLeanacknowledged it is not possible to predict whether there will be another flare-up or relapse and, if so, whether remission will occurquickly. [44] At trial, Ms. Bent advanced a claim for future loss of income based on her working 40 hours a week, until age67. An actuary was not called as a witness at trial and there was no report calculating or opining on the quantum of Ms. Bent’s claim forloss of income. However, admitted in evidence by consent were letters from an actuarial firm attaching tables of multipliers, with someexplanation for their use.

About a week before trial, the firm provided a further letter attaching revised tables of multipliers, advisingthat, having recently become aware of Ms. Bent having MS, the multipliers dealing with the mortality and disability were changed toreflect a 100% higher risk than if MS were not present. [45] The judge’s reasons for decision first summarize the evidentiary record; they then address each of Ms. Bent’sclaims. As identified earlier, at the heart of Ms. Bent’s appeal is the submission that the trial judge’s reasons are internally inconsistent.Ms.

Bent claims his determination that she did not establish she was unable to work (after February 2011) is inconsistent with the factualfindings on which he based his determination that she suffered a permanent serious impairment of an important bodily function, findingswhich Ms. Bent submits are correct. Similarly, she maintains the dismissal of her claim for loss of income conflicts with the award ofdamages for the cost of future care and future loss of valuable services. Ms.

Bent submits the judge’s reasons demonstrate he failed todetermine disputed issues of fact before he determined her claims under various heads of damage – she submits he dismissed her claimfor loss of income before he made specific findings of fact respecting her injuries, findings which he subsequently made in connectionwith his determination that she suffered a permanent serious impairment of an important bodily function. [46] In setting out the two portions of the judge’s reasons which are the focus of Ms.

Bent’s appeal, I will reversethe order and set out first his findings related to the determination that she suffered a permanent serious impairment. I do so since thesefactual findings have not been appealed and Ms. Bent relies on them in submitting the judge’s rejection of her claim for loss of earningsis inconsistent with these findings and reflect error. [47] The judge’s reasons for awarding general damages, in excess of the $2,500 cap on minor personal injuries, on the basis thatMs.

Bent suffered a “serious permanent impairment of an important bodily function,” address each of the three parts/questions identifiedin the test set out in Meyer v. Bright; Dalgliesh v. Green; Lento v. Castaldo, (ON CA), [1993] O.J. No. 2446 (C.A.)(QL). He states: With respect to question 1, I have no difficulty in finding, as I do, that there is ongoing impairment of Ms. Bent’s ability to walk withoutsome degree of discomfort coupled with the realistic expectation that, with time, the injuries she sustained will add to the degree ofarthritis that will continue to develop.

One need only rely on evidence of the medical practitioners who have noted that the injuries haveleft Ms. Bent ongoing issues with pain and a reasonable expectation that Ms. Bent will suffer increased arthritis in her knees. This affectsher ability to walk and is expected to do so indefinitely. Walking is undoubtedly a ‘bodily function’ and should be possible without pain,discomfort or impairment. While I focus here on her walking, I also recognize that the pain she reports involves her back and shoulderpain. […] As for question 2, the defendant in his pre-trial brief at paragraph 51 concedes that Ms.

Bent’s, “… leg injury was initially serious andthat her leg is an important bodily function.” This was a reasonable position to take. With that said, I have no difficulty in finding thatthere was, as a result of the accident, immediate impairment of an important bodily function which ultimately has resulted in a continuinginjury which was and remains physical in nature. Moreover, the accident did cause serious impairment and prevented her from returningto her work or performing her usual daily activities in the immediate aftermath of the accident and continues to have lingering impact ofher daily activities.

I therefore answer question 2 by saying ‘yes’. As for question 3, I again answer ‘yes’, recognizing that the impairment is serious. There is little doubt that her injuries have had a lingering and significant effect impacting her walking, her ability to complete her usual household activities and enjoy a full family and social life, including participation in her hobbies such as photography. There is sufficient evidence to conclude that Ms. Bent will suffer ongoing deterioration of her knee(

s) and other consequential aches and pains in her back and shoulder. In my view, such an ongoing and multifaceted impact can only be considered as serious. While I have doubt as to the extent of the disability claimed by Ms. Bent, I do not doubt her evidence that the pain is real and is consequence of the accident. I look to the words of the British Columbia Court of Appeal in Maslen v.

Rubenstein , 33 B.C.C.A. 182 at para. 16 where the following observation was made: So there must be evidence of a “convincing” nature to overcome the improbability that pain will continue, in the absence of objective symptoms, well beyond the normal recovery period, but the plaintiff’s own evidence, if consistent with the surrounding circumstances, may nevertheless suffice for the purpose. As a result, I find the cap does not apply and Ms. Bent is entitled to non-pecuniary general damages in excess of the cap. Ms. Bent in her brief, suggested that her damages should be $75,000.00.

In my view, this is out of proportion to the nature of the accident being one that has required no substantial treatment after July 2010 and that the medical reports I have considered indicate that her recovery was complete by that time. […] Unlike the present case, the plaintiff in Richard [ v. Ward , 2013 NBQB 107 ], underwent extensive treatment for her pain. Ms. Richard had an extremely busy career and consistent work history. In Ms.

Bent’s situation, I am left wondering what might have been the impact on her current medical state if she had directed more attention to seeking medical help for her chronic pain. It concerns me that she would attend many visits with her current family doctor and never seek any specific treatment for her pain disorder especially if it was causing her to be unable to work. I do not feel that the defendant should carry the full burden of that choice. [paras. 81, 87-91, 93] [ 48 ] The concluding paragraph of the judge’s reasons reproduced above provides a good segue into his reasons for denying Ms.

Bent’s claim for loss of income after February 2011. He notes Ms. Bent has not had any substantial treatment for her injuries (after July 2010, almost 6 years before trial) and indicates he is “left wondering what might have been” had Ms. Bent sought medical assistance for the pain which she claims prevents her from working. [ 49 ] In connection with Ms. Bent’s claim for loss of income, the trial judge stated: Moreover, in June 2011, Ms. Bent was contacted by a CPP employee to discuss her continuing claim and the notes of that call do not report any amendment to the claim with regard to chronic pain impairment.

The medical evidence provided at trial did not support that her MS continues to be a source for her disability. In other words, while there may have been a basis to claim disability benefits based on MS at the time she applied, it appears her MS could no longer be identified as the basis of her claim to be disabled and entitled to benefits. As identified by the defendant in argument, this creates an issue going to the credibility of Ms. Bent. I agree, although I would prefer to consider it an irreconcilable incongruity in her evidence.

On the one hand, she is receiving CPP benefits based substantively on her MS, even though the medical evidence presented at trial would not support such an ongoing claim yet, she claims at trial that chronic pain impairment is the real reason she cannot work. At what point in time her MS was no longer a disabling factor is unclear. At what point in time her chronic pain impairment became the basis of her disability is unclear. The application for CPP benefits requires an applicant/recipient to advise CPP of any change in medical condition. But nowhere does Ms.

Bent indicate to CPP that her disability is a result of chronic pain impairment or ongoing effects of the accident. In this case, I am faced with competing experts. For instance, Dr. Forsythe notes at p. 9 of his report that, “The accident injuries have

given her a chronic pain syndrome”. This is difficult to square with her current family doctor who noted that, having seen Ms. Bent over 20 times, Ms. Bent had not complained of chronic myofascial pain syndrome or sought any treatment for it. In addition, Ms. Bent has not sought assistance from any physician to treat her chronic pain syndrome and relies on non-prescription medication to provide relief. Furthermore, as noted above in para. 28, her former family physician, Dr. Kay, in response to Ms.

Bent’s counsel on November 29, 2012, noted that, “Monica does have other illness that could prevent her from working: MS, depression, and obesity.” And further Dr. Kay wrote that, “… there is very little contribution factor from her injury to be causing her disability. I would guess the probability would be closed ( sic ) to zero.” I must determine if Ms. Bent is ‘disabled’ (in the sense of being unable to work in the foreseeable future) and if so, is her disability a result of the accident? I accept that Ms.

Bent describes herself as being disabled and do not challenge that various physicians have attributed that condition to her primarily on the basis of her descriptions to them. But I am not at all convinced, on a balance of probabilities test, that the disability attributed to her is a result of, or a consequence of, the accident. Had her ongoing CPP claim been more closely aligned to her assertion that she was disabled by chronic pain then her present claim before me may have a ‘ greater ring of truth ’ to it.

In my view, it is too incongruous to claim ongoing disability from CPP on the basis of her MS and then claim in court that it is in fact due to chronic pain caused by the accident. I am also struck by the total lack of any treatment sought for her chronic pain syndrome. I note, for instance, in Skinner v. Goulet , [1999] O.J. 3209 , the plaintiff had been assessed at a chronic pain clinic. Similarly, in Morrison v. Gravina , 29 C.C.L.I. (3d) 129 , the court notes the efforts of one of the plaintiff’s physicians to assist the plaintiff in learning to cope with and work with the pain. In Hartwick v.

Simser , 134 A.C.W.S. (3d) 825 , there was expert testimony from a specialist in chronic pain and evidence of the treatment plan in place for the injured plaintiff (see para. 53 ff ). I also note in passing that Hartwick also recognized chronic pain as meeting the test to pass the threshold for exceeding the cap on general damages.

At para. 87, Roccamo, J. writes: [87] It is now trite law that chronic pain arising from injuries sustained in a motor vehicle accident, and which accounts for limitation in function unlikely to improve for the indefinite future, will meet the requirement of “permanence” in the threshold[.] When all is said and done, and in conjunction with my concerns on credibility, I do not accept that Ms. Bent’s chronic pain syndrome is so severe as to amount to a disability of the type she claims in the absence of any obvious concerns to develop or follow a treatment plan other than over-the-counter pain medication. Ms.

Bent’s treatment regime, such as it is, makes me think that there is more that could have been done – or could yet be done – to assist in dealing with her chronic pain. The approaches to chronic pain treatment or management identified in some of the cases noted above lead me to conclude that the chronic pain Ms. Bent describes cannot, in the absence of any substantial attempt to redress the pain, be considered a ‘disability’ – at least not of the type that would entitle her to ongoing lost wages claims against the defendant.

Nor do I have sufficient confidence in the reports of the experts who indicated that in fact she was disabled and unable to work. So much of that evidence is based on self-reporting by Ms. Bent. I accept that there is likely no other way to establish the degree of such pain other than by self-reporting by the patient. However, coupled with the credibility concerns noted above I lack sufficient confidence in the necessary factual foundation to support her argument of being totally disabled and unable […] to work. Her claim in this respect is denied. [paras. 64-74] III. Issues on appeal [ 50 ] Ms.

Bent’s written submission alleges the following errors “of law, mixed fact and law, and of fact” by the trial judge: 1. he erred in his application of the causation principles between Ms. Bent’s impairments and the injuries suffered as a result of the motor vehicle accident;

2. he erred by relying on irrelevant considerations to support his decision or by failing to consider relevant material, namely, his relianceon the CPP disability application and the treatment of chronic pain in some case law, regarding the ability of Ms. Bent to work; 3. he erred by making findings of fact not supported by the evidence, namely, that Ms.

Bent has misrepresented her condition or that herself-reporting tainted the medical evidence presented; and 4. he erred in his application of the principles pertaining to the assessment of damages, namely, by making an arbitrary assessment ofthe loss of valuable services and the cost of future care rather than on the basis of the medical, vocational and actuarial evidencepresented. [51] Mr. MacFarlane’s cross-appeal asserts the trial judge erred in law: (

i) by not deducting, from all of the damagespayable to Ms. Bent, the

Section B accident insurance benefits she received, since such benefits operate as a release of any claim againstMr. MacFarlane, pursuant to ss. 256, 257 and 263(2) of the Insurance Act; and (ii) in failing to order that Ms. Bent holds any futureSection B benefits in trust for Mr. MacFarlane. It is not necessary to address the last claim since the damages awarded to Ms. Best arenot increased on appeal and, as represented by Mr. MacFarlane, the set-off of the

Section B benefits received by Ms. Bent to the time oftrial extinguish fully the damages awarded at trial. IV. Analysis A. Application of Causation Principles [52] In connection with the first of the issues raised by Ms. Bent on appeal, she submits the denial of her claim forloss of earnings “is in stark contrast to and even contradicted” by other determinations made by the trial judge.

She maintains it isdifficult to understand how the trial judge could, on one hand, determine she is impaired in her ability to walk and carry out householdduties (when he concluded the accident left her with a permanent serious impairment of an important bodily function and a level ofimpairment justifying damages for the cost of future care and the loss of valuable services), while, on the other hand, determine she didnot establish those same injuries prevent her from being able to perform work-related duties involving similar bodily functions.

Moreparticularly, her submission concludes this ground of appeal with: Therefore, the Appellant submits that the trial judge erred in his decision to limit the award for loss of past income to the period from theaccident to the Appellant’s application for CPP disability. Not only is it contradictory to his other findings of “ongoing impairment”(para. 81), “serious impairment” (para. 87), “lingering impact” (para. 87), “lingering and significant effect” (para. 89), etc., but furtherpurports to attribute her inability to work exclusively (100 per cent) to her multiple sclerosis.

Such a finding is inconsistent with the caselaw that clearly establishes that causation only requires the accident to contribute to her situation and not be the “sole cause” of herinjury[.] [para. 36] [53] Ms. Bent submits the judge erred in the application of the law and principles relating to causation andeffectively found that MS was/is the cause of Ms. Bent’s disability. I do not agree. The judge found MS did not prevent Ms. Bent fromworking and in my opinion there is no error in the application of the law or legal principles. The real thrust of Ms.

Bent’s othersubmissions assert error in the judge’s assessment of the evidence and his factual findings. Nevertheless, before addressing each of Ms.Bent’s various submissions, it is helpful to first briefly identify the law and principles the parties agree are generally applicable tocausation and the assessment of damages. [54] In circumstances where a loss has been caused or contributed to by a combination of tortious and non-tortiousfactors, the tortfeasor’s liability is not excused. As the Supreme Court of Canada stated in Athey v. Leonati, (SCC),[1996] 3 S.C.R. 458, [1996] S.C.J.

No. 102 (QL): […] It has long been established that a defendant is liable for any injuries caused or contributed to by his or her negligence. If thedefendant’s conduct is found to be a cause of the injury, the presence of other non-tortious contributing causes does not reduce the extentof the defendant’s liability. [para. 12]

[55] Providing a comprehensive précis of the law flowing from the principle that a tortfeasor must “take yourvictim as you find him or her,” Drapeau C.J.N.B., writing for this Court in Wallace v. Thibodeau, 2008 NBCA 78, 337 N.B.R. (2d) 342,explains: Tort law remedies aim to restore victims to the position they would have been in, but for the wrong. Those remedies are not designed to“better” the victim’s original lot and both the “thin skull” and the “crumbling skull” rules are part of the judiciary’s arsenal in theprincipled pursuit of that aim.

One of the oft-mentioned principles, “take your victim as you find him or her”, is at the root of both rules(see Mitchell McInnes, Causation in Tort Law: Back to Basics at the Supreme Court of Canada (1997) 35 Alta. L. Rev. 1013 (QL)).That principle pins liability on the wrongdoer for all of the proximate by-products of the injuries and losses he or she caused even if theyturn out to be more significant than anticipated due to some abnormal feature of the victim’s bodily make-up.

Put another way, thewrongdoer must answer at law for all of the injured claimant’s proximate injuries and losses even if some turn out to be more dramaticthan what an average person would have experienced. As for the “crumbling skull” rule, it typically finds application where the wrongprecipitates the onset of or aggravates problems associated with a degenerating condition that is unrelated to the wrong. The rule isdesigned to limit the wrongdoer’s liability to that part of the injury and its consequences that is attributable to the wrong (see S.M.

Waddams, The Law of Damages, 4th ed. (Toronto: Canada Law Book, 2004) at 14.570 and G.H.L. Fridman, The Law of Torts in Canada, 2nd ed. (Toronto: Carswell, 2002) at 427). This is in stark contrast with the assessment of damages in cases falling within the“thin skull” category, where full damages are awarded.

In Lewis Klar, Tort Law, 3rd ed. (Toronto: Thomson Carswell, 2003), the author summarizes the applicable principles at pp. 435-36: Where a plaintiff has a pre-existing condition which is latent and inactive at the time of the accident, but becomes triggered by it, thecourts appropriately treat this as a thin skull case. The plaintiff is entitled to full compensation. Where, however, the plaintiff is sufferingfrom an active and existing condition at the time of the accident, which is aggravated by the accident, courts will assign only partialresponsibility for the plaintiff’s injuries to the defendant.

The defendant’s responsibility will depend upon the extent to which theaccident aggravated the plaintiff’s existing condition. Finally, a third category of cases has been suggested. A case may arise where theplaintiff has an asymptomatic, degenerative condition at the time of the accident which ultimately would have resulted in the type ofinjury suffered by the plaintiff in the accident. The accident accelerates the process of degeneration. This has been called a “crumblingskull,” with the plaintiff entitled only to the damages corresponding to the effect of the accident on the degenerative process.

In principle,this category of cases raises the same issue as raised by cases where the plaintiffs are suffering from existing conditions which becomeaggravated by the defendant’s negligence, and should be treated in a similar way. Importantly, it is the wrongdoer who bears the burden of proving that the injured claimant suffered from a “crumbling” condition (seeLyne v. McClarty (2003), 170 Man.R. (2d) 161, [2003] M.J. No. 29 (QL), 2003 MBCA 18 at para. 37). Just as significantly, at least forour present purposes, courts are not to dismiss otherwise meritorious claims in “crumbling skull” cases.

Rather, they must reduce theaward to reflect the risk that the crumbling skull would have actually crumbled and brought about, in any event, the loss experienced bythe claimant. In Athey v. Leonati, (SCC), [1996] 3 S.C.R. 458, [1996] S.C.J. No. 102 (QL), paras. 27-28 and 35, JusticeMajor, who delivered the Court’s unanimous decision, makes the following observations on point: Hypothetical events (such as how the plaintiff’s life would have proceeded without the tortious injury) or future events need not beproven on a balance of probabilities.

Instead, they are simply given weight according to their relative likelihood: Mallett v. McMonagle,[1970] A.C. 166 (H.L.); Malec v. J.C. Hutton Proprietary Ltd. (1990), 169 C.L.R. 638 (Aust. H.C.); Janiak v. Ippolito, (S.C.C.), [1985] 1 S.C.R. 146. For example, if there is a 30 percent chance that the plaintiff’s injuries will worsen, then the damageaward may be increased by 30 percent of the anticipated extra damages to reflect that risk. A future or hypothetical possibility will betaken into consideration as long as it is a real and substantial possibility and not mere speculation: Schrump v.

Koot (1977), (ON CA), 18 O.R. (2d) 337 (C.A.); Graham v. Rourke (ON C.A.), (1990), 74 D.L.R. (4th) 1 (Ont. C.A.). By contrast, past events must be proven, and once proven they are treated as certainties. In a negligence action, the court must declarewhether the defendant was negligent, and that conclusion cannot be couched in terms of probabilities. Likewise, the negligent conducteither was or was not a cause of the injury. The court must decide, on the available evidence, whether the thing alleged has been proven;if it has, it is accepted as a certainty: Mallett v. McMonagle, supra; Malec v. J.C.

Hutton Proprietary Ltd., supra, Cooper-Stephenson,supra, at pp. 67-81. [...] Likewise, if there is a measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future,

regardless of the defendant’s negligence, then this can be taken into account in reducing the overall award: Graham v. Rourke, supra ; Malec v. J.C. Hutton Proprietary Ltd., supra ; Cooper-Stephenson, supra , at pp. 851-852. This is consistent with the general rule that the plaintiff must be returned to the position he would have been in, with all of its attendant risks and shortcomings, and not a better position. [paras. 47-49] [ 56 ] In addition to alleging the judge erred by effectively attributing “her inability to work exclusively (100 per cent) to” MS, Ms.

Bent also alleges that, even if the trial judge were correct to conclude MS was a factor in her disability, he erred in law by denying her claim for loss of income (after February 2011). In that case, she submits the judge should have found Mr. MacFarlane liable and reduced the damages he would have otherwise awarded against Mr. MacFarlane by the degree to which MS posed a risk of Ms. Bent becoming disabled in any event. If these were the circumstances found by the judge, I would agree. [ 57 ] However, the judge’s denial of Ms.

Bent’s claim for loss of income did not turn on his finding that MS (or another pre-existing condition) was the cause of her disability nor did it flow from a misapplication of principles relating to causation involving thin or crumbling skull plaintiffs/victims. Quite the contrary, the judge found MS did not prevent Ms. Bent from working. While the judge recognized the November 2010 - February 2011 flare-up of Ms. Bent’s MS was disabling, he accepted that since the flare-up abated, her MS has been in remission, its symptoms are managed by medication and it is not disabling. [ 58 ] It is important to note Ms.

Bent has never alleged her MS (or any other pre-existing condition) has been aggravated by the accident or contributed to the disability on which her claim for lost wages is based. Throughout this litigation, Ms. Bent has consistently maintained her inability to work was and is entirely attributable to the injuries she sustained in the accident; she emphasizes her MS and other pre-existing conditions did not prevent her from working before the accident and they have not impaired her capacity to work after. While obviously acknowledging the flare-up of her MS in 2010/2011, Ms.

Bent maintains her MS has been successfully treated and “is not the cause of the permanent impairment” which she claims to have suffered as a consequence of the accident. She points to Dr. Leckey’s evidence that, following the 2011 flare-up, her MS improved and it “posed no serious impediment to her return to work.” This is consistent with the evidence of Dr. MacLean, her treating neurologist. [ 59 ] Indeed, in addressing the case law, including Athey and Wallace , Ms. Bent’s submissions emphasize that MS is not a factor in her claim to be unable to work. She maintains her claim against Mr.

MacFarlane is stronger than that of the plaintiff in Athey since her pre-existing condition has not been aggravated by the accident. Ms. Bent submits her recovery, from the injuries sustained in the accident, has “followed its natural course, albeit leaving her with permanent pain to the several areas recognized by the trial judge.” Similarly, Ms. Bent distinguishes her circumstances from those in Wallace , where a pre-existing medical condition was dormant before becoming aggravated by the accident. [ 60 ] The judge’s conclusion that Ms.

Bent’s MS is not disabling is expressed in the part of his reasons which addresses Mr. MacFarlane’s assertion Ms. Bent’s claims lack credibility. For ease of reference, it is worth reproducing what the judge says: Moreover, in June 2011, Ms. Bent was contacted by a CPP employee to discuss her continuing claim and the notes of that call do not report any amendment to the claim with regard to chronic pain impairment. The medical evidence provided at trial did not support that her MS continues to be a source for her disability.

In other words, while there may have been a basis to claim disability benefits based on MS at the time she applied, it appears her MS could no longer be identified as the basis of her claim to be disabled and entitled to benefits. As identified by the defendant in argument, this creates an issue going to the credibility of Ms. Bent. I agree, although I would prefer to consider it an irreconcilable incongruity in her evidence.

On the one hand, she is receiving CPP benefits based substantively on her MS, even though the medical evidence presented at trial would not support such an ongoing claim […]. [paras. 64-65] [ 61 ] Below, I will address Ms. Bent’s challenge on appeal to the judge concluding this “irreconcilable incongruity” was a factor to be considered in assessing Ms. Bent’s credibility. For present purposes, I point to this part of the judge’s reasons because it refutes the submission the judge effectively concluded that MS has caused Ms. Bent’s disability. [ 62 ] The judge’s denial of Ms.

Bent’s claim for loss of income turned on his determination the evidence did not support a finding that Ms. Bent’s injuries prevented her from working after February 2011, “at the latest”. No more need be said about Ms. Bent’s assertion the decision to deny her claim for loss of income (beyond February 2011) reflects either an error in the application of causation principles or an attribution of her disability to her MS.

[ 63 ] I now turn to Ms. Bent’s submission the judge’s dismissal of her claim for loss of income is “contradictory” with his other findings – a submission which essentially alleges the judge misapprehended the evidence and/or made palpable and overriding errors in his assessment of the evidence. Notwithstanding the issues raised by Ms. Bent required a review of the full evidentiary record, before going further, I should make clear it is not the role of this court to retry the case. As stated by Richard JA. in Lemay v.

Peters , 2014 NBCA 59 , 425 N.B.R. (2d) 336 : As with every case on appeal, the trial decision must be assessed through the lens of the standard of review that governs each question raised. It has been stated time and again that the role of the appellate court is not to retry the case or to substitute its own findings for those of the trial judge.

These days, an overabundance of authority stands for the following propositions, which have now become trite law: (1) findings of law are to be assessed on a standard of correctness; (2) a finding of fact is entitled to deference and will only be reversed if the result of a palpable and overriding error; and, (3) findings of mixed fact and law, that is the application of a legal standard to a set of facts in order to arrive at an ultimate conclusion, are also entitled to deference and are reviewable on the same standard as findings of fact unless a legal error can be extricated. [para. 31] [ 64 ] The judge’s findings, which Ms.

Bent submits are correct and incongruous with the judge’s dismissal of her claim for loss of income, are those made in the part of his reasons which address the three-part test often used to determine whether there is a “permanent serious impairment of an important bodily function caused by continuing injury which is physical in nature” (ss. 2(2)(

b) of the Injury Regulation – Insurance Act , NB Reg 2003-20 ). A “serious impairment” is an “impairment that causes substantial interference with a person’s ability to perform their usual daily activities or their regular employment”. For ease of reference, I reproduce them again: With respect to question 1, I have no difficulty in finding, as I do, that there is ongoing impairment of Ms. Bent’s ability to walk without some degree of discomfort coupled with the realistic expectation that, with time, the injuries she sustained will add to the degree of arthritis that will continue to develop.

One need only rely on evidence of the medical practitioners who have noted that the injuries have left Ms. Bent ongoing issues with pain and a reasonable expectation that Ms. Bent will suffer increased arthritis in her knees. This affects her ability to walk and is expected to do so indefinitely. Walking is undoubtedly a ‘bodily function’ and should be possible without pain, discomfort or impairment. While I focus here on her walking, I also recognize that the pain she reports involves her back and shoulder pain. […] As for question 2, the defendant in his pre-trial brief at paragraph 51 concedes that Ms.

Bent’s, “… leg injury was initially serious and that her leg is an important bodily function .” This was a reasonable position to take. With that said, I have no difficulty in finding that there was, as a result of the accident, immediate impairment of an important bodily function which ultimately has resulted in a continuing injury which was and remains physical in nature.

Moreover, the accident did cause serious impairment and prevented her from returning to her work or performing her usual daily activities in the immediate aftermath of the accident and continues to have lingering impact on her daily activities. I therefore answer question 2 by saying ‘yes’. As for question 3, I again answer ‘yes’, recognizing that the impairment is serious.

There is little doubt that her injuries have had a lingering and significant effect impacting her walking, her ability to complete her usual household activities and enjoy a full family and social life, including participation in her hobbies such as photography. There is sufficient evidence to conclude that Ms. Bent will suffer ongoing deterioration of her knee(

s) and other consequential aches and pains in her back and shoulder. In my view, such an ongoing and multifaceted impact can only be considered as serious. While I have doubt as to the extent of the disability claimed by Ms. Bent, I do not doubt her evidence that the pain is real and is consequence of the accident. […] [paras. 81, 87-90] [ 65 ] It’s difficult to deny Ms. Bent’s claim that these factual findings give cause to question whether they may be reconciled with the judge’s earlier finding that Ms. Bent did not establish her injuries prevent her from working.

This is especially so since the findings accept Ms. Bent has discomfort from walking and this is consistent with her claim for loss of income based on an inability to walk, stand or sit for any length of time, without changing position – duties required of a cashier, as she was in her pre- accident employment. However, for the reasons that follow, I do not accept Ms. Bent’s submission that, as a consequence of these findings, the judge’s determination cannot stand.

[ 66 ] Ms. Bent made a number of submissions in support of her contention the judge’s dismissal of her claim for loss of income is inconsistent with his other findings.

She submits the judge’s denial of her claim, before he determined the disputed facts respecting her injuries and the related level of impairment(s), is itself indicia of a fundamentally flawed approach to the assessment of her various claims for damages – feeding the “inconsistency” or disconnect between the judge’s conclusions. [ 67 ] Without a doubt, findings of disputed fact must be determined before there may be an assessment of the claims or damages which flow from such facts. Typically, that this has occurred is self-evident from the reasons for a decision.

However, the mere fact the judge explained his reasons for dismissing Ms. Bent’s claim for loss of income, before he explained his reasons for awarding general damages in excess of the cap and identified the findings of fact he relied upon, does not itself establish that the denial of the loss of income claim occurred in the absence of a determination of the necessary facts. I do not agree the judge’s reasons indicate he failed to make the necessary factual determinations before he dismissed the claim for loss of income.

Reasons for a decision cannot be analysed as though there is a locked bulkhead between the individual parts. A decision must be read as a whole, in the context of the evidence and submissions made by the parties, recognizing the reasons for a decision respond to the live issues at trial. The record makes it clear the primary focus of the evidence at trial was Ms. Bent’s claim to be permanently and totally disabled as a consequence of her accident related injuries; this was particularly so of the medical evidence. It was and continues to be the largest of her claims.

There is little doubt this is why the judge addressed first Ms. Bent’s claim for loss of income. Also, his reasons for rejecting the loss of income claim relate more to the lack of evidence that Ms. Bent was/is permanently and totally disabled from all employment, than it did to a detailed analysis of her injuries, as was the case in his conclusion she was left with a permanent serious impairment. [ 68 ] The judge expressly identified his different dispositions of Ms. Bent’s claims – there is little doubt that he knew the difference would not go unnoticed. Certainly, some explanation was warranted.

As he explains (at the conclusion of his reasons for determining Ms. Bent suffered a permanent serious impairment): While I have doubt as to the extent of the disability claimed by Ms. Bent, I do not doubt her evidence that the pain is real and is consequence of the accident. [Emphasis added.] In other words, the judge sought to reconcile, albeit briefly, his basis for rejecting Ms. Bent’s claim for loss of earnings with his conclusion, on the same record, she suffered a permanent serious impairment of an important bodily function. [ 69 ] With respect to Ms.

Bent’s other submissions under this ground of appeal, I cannot agree the judge’s dispositions are irreconcilable and, on this basis, the dismissal of her claim for loss of income cannot stand. From a review of the record, it is my view the problematic part of the inconsistency identified by Ms. Bent is not the dismissal of her claim for loss of income, but rather it is the conclusion her injuries, as found by the trial judge, rise to the level of a permanent serious impairment of an important bodily function. There are a couple of reasons for this. First, the judge’s findings of fact respecting Ms.

Bent’s claim to be unable to work are securely grounded in the evidentiary record before him, including, his unassailable findings of credibility respecting the evidence offered in support of this claim. Second, the factual findings upon which the judge concluded Ms. Bent suffered a permanent serious impairment are not sufficiently broad and encompassing, when viewed in the context of his reasons as a whole, to compel the determination that Ms. Bent is totally disabled from all employment.

Moreover, it is arguable that the findings the judge did make, of discomfort and/or pain and future arthritis, do not justify the determination Ms. Bent injuries are a permanent serious impairment of an important bodily function, as defined by the legislation. This said, this determination, which is to Ms. Bent’s benefit, has not been appealed. [ 70 ] In her submissions regarding inconsistency, Ms. Bent emphasizes the judge’s findings of “ongoing impairment” (para. 81), “serious impairment” (para. 87), “lingering impact” (para. 87), “lingering and significant effect” (para. 89).

These reflect his conclusion the injuries satisfy the test for a permanent serious impairment under the legislation. [ 71 ] However, more important to the analysis are the judge’s findings of the nature and extent of her injuries. He found an “ongoing impairment of Ms. Bent’s ability to walk without some degree of discomfort coupled with the realistic expectation that, with time, the injuries she sustained will add to the degree of arthritis that will continue to develop.” As to the arthritis, he said there is “a reasonable expectation that Ms.

Bent will suffer increased arthritis in her knees.” These findings are confined to her knee(s). The judge seems to indicate that, what he characterized as “discomfort” may be also characterized as pain since, he states he does not doubt “the pain is real and is consequence of the accident.” The parameters of the judge’s other findings are less clear. He states that “I also recognize that the pain she reports involves her back and shoulder pain.” Frankly, this appears to acknowledge he is aware of Ms. Bent making these complaints but he does not accept them as fact.

On the other hand, when addressing what he finds the future will hold, he concludes “[t]here is sufficient evidence to conclude that Ms. Bent will suffer ongoing deterioration of her knee(

s) and other consequential aches and pains in her back and shoulder.” On the whole, what may be summarized from the judge’s findings is Ms. Bent has discomfort/pain in her knee(

s) and that, over time, her arthritis will worsen.

[ 72 ] Based on these findings, the judge concludes the accident “continues to have lingering impact on her daily activities” and impairs Ms. Bent’s “ability to complete her usual household activities and enjoy a full family and social life, including participation in her hobbies such as photography.” [ 73 ] Ms. Bent uses these findings as a platform on which to base the contention the judge’s rejection of her claim to be permanently and totally disabled is incompatible. In my opinion, this both overstates what the judge found in relation to Ms.

Bent’s accident related injuries, and fails to recognize the true scope of the judge’s reasons for not accepting the evidence as establishing she is totally and permanently disabled. [ 74 ] In explaining his reasons for rejecting the claim to be disabled, the judge notes the medical treatment of Ms. Bent’s accident related injuries ended with her discharge from physiotherapy in July 2010. While she was regularly seen by physicians in the six years since then, she did not seek treatment from any of them for her injuries or any related pain, relying instead on Advil and Tylenol.

The judge also identified the conflicting medical evidence as being problematic for Ms. Bent’s claim. It is an understatement to say the record contains conflicting medical opinions on the extent to which her injuries continue to present or the level of pain consequential to those injuries. During more than one of the medical assessments, the pain identified by Ms. Bent related almost exclusively to her knee, with little, if any, mention of other pain, of the kind she described at trial. Undisputedly, Ms.

Bent has right knee discomfort and it remains sensitive to touch/palpation; this, together with the arthritis, was recognized by the judge in connection with his finding of permanent impairment. [ 75 ] Importantly, to the loss of income claim, the judge noted Ms. Bent had not attempted to return to work or find employment, nor did she seek any assistance at rehabilitation or re-entering the work force. It is clear these concerns were not mitigated by the evidence that, based on the occupational therapist’s examination in December 2012, Ms.

Bent could only work 2½ to 3 hours a day and it was unlikely she could find any employment. [ 76 ] The judge’s reservation regarding the credibility of Ms. Bent’s evidence is also significant. He noted that Ms. Bent’s recollection of her pre-existing conditions and treatment did not align with the medical evidence given at trial, whether viva voce evidence or in the medical records and reports entered as evidence. As an example, the judge noted Ms.

Bent’s testimony, that her MS was not an issue relative to her ability to work before the accident, more or less glossed over evidence of her condition being a factor in work being difficult and fatiguing. He also noted Ms. Bent could not recall many of the complaints she made before the accident to her treating physician, complaints which were captured in the medical records and testimony of others. Finally, in relation to credibility, the judge noted it was difficult to reconcile Ms.

Bent’s assertion in this litigation that her MS is not a factor in her claim to be totally disabled, while she continues to collect CPP disability benefits years after her MS flare-up subsided. [ 77 ] In the end, the judge’s reasons for decision as a whole make it quite clear the evidence offered by Ms. Bent, or lack thereof, and the credibility of that evidence, left the judge unconvinced that Ms. Bent was totally and permanently disabled from employment, for any reason. This is captu

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