In 2003, the New Brunswick Legislature enacted provisions to extend a similar philosophy to physical conditions felt to be of minor effect in relation of motor vehicle accidents, allowing the capping of damages in certain situations (Insurance Act, RSNB 1973, c. I-12, s. 265.21):
265.21 (1) In this section “soft tissue injury” and “minor personal injury” shall be as prescribed and defined in the regulations.
(3) In an action for damages arising out of an accident, the amount recoverable as damages for the non-pecuniary loss of the plaintiff for minor personal injury shall not exceed the amount set out in the regulations.
(4) This section applies only to accidents occurring on or after the commencement of this section.
As can be quickly gleaned from the text, the authority is limited to ‘non-pecuniary loss’ sustained after 2003. Thus, the authority of the Lieutenant-Governor does not extend to heads of damages that are pecuniary and courts would continue to apply the principles as already formulated (see “Pecuniary Damages vs. Non-Pecuniary Damages”).
As provided in the Act, a regulation was adopted shortly thereafter (Injury Regulation — Insurance Act, NB Reg. 2003-20) limiting the amount recoverable as non-pecuniary damages in relation to minor personal injuries sustained in motor vehicle accidents. It defined ‘minor personal injury’ and capped the recoverable amount to $2,500. Although tribunals regularly awarded amounts of non-pecuniary general damages below the threshold prior where injuries had little to no effect on the victims (see Martin v. LeBlanc (1991), 117 NBR (2d) 436 (QB—$2,000); Basin v. Plourde, 1993 CanLII 3303 (QB—$1,500); Kelloway (Litigation Guardian) v. Landry (1994), 155 NBR (2d) 326 (QB—$1,000); Chiasson v. LeBreton, 2007 NBQB 104 ($1,000)), the regulatory changes rationalized and generalized the practice.
In 2003, the Injury Regulation, supra, defined ‘minor personal injury’ as “an injury that does not result in (a) permanent serious disfigurement, or (b) permanent serious impairment of an important bodily function caused by continuing injury which is physical in nature”. A ‘serious impairment’ was also defined as “an impairment that causes substantial interference with a person’s ability to perform their usual daily activities or their regular employment”. Thus, except to limit its application to injuries that are ‘physical in nature’, the Injury Regulation, supra, did not expressly identify a pathology, speaking of the effect of an injury on ‘usual daily activities’ or ‘regular employment’. Arguably, psychiatric injuries were not captured by the definition.
From a quick glance at the case law, we know that a minor personal injury can be a soft tissue injury (LeBlanc v. Bulmer, 2007 NBCA 35) and that the burden rests on the defendant to show that a victim’s injury is captured by the Injury Regulation, supra (Fraser v. Haines, 2008 NBCA 59 paras 25 & 27). The test for assessing whether an injury is capped has been stated in Fraser, supra para 27:
(1) Has the victim sustained permanent impairment of a bodily function caused by continuing injury which is physical in nature?
(2) If so, is the permanently impaired bodily function an important one?
(3) If so, is the impairment of the important bodily function serious?
In Fraser, supra para 33, the unanimous bench of the NB Court of Appeal specifies that the “seriousness of the impairment is assessed on a case-by-case basis”. The evidence needs to show that there is a substantial interference with either the victim’s ability to perform his or her daily activities or the ability to continue his or her regular employment (paras 28 & 31). Where the injured party is able to return to work, the Injury Regulation, supra, still does not apply if he or she is not able to continue the pre-accident employment (para 28). Furthermore, the impairment is assessed in relation to the injured party; a bodily function’s importance may be different for everyone. The little finger is considerably more important to the pianist than to the roofer. These are issues of fact not law (para 35).
The Injury Regulation, supra, was applied in cases dealing with a broken jaw and knee sprain (Burpee v. Johnston, 2011 NBQB 114), a broken leg (Rossignol v. Rubidge, 2007 NBQB 89), a broken wrist (Wood v. Zhao et al., 2019 NBQB 125), chronic pain (Presti v. Davey, 2007 NBQB 115; Fraser, supra; Savoie v. Robichaud, 2011 NBQB 337; LeBouthillier v. J.M. Bastille Inc., 2015 NBQB 190) and a concussion (Douthwright v. Duffy, 2017 NBCA 60). It is worth noting that the credibility of the plaintiff was central in most cases. The regulation was not applied in other cases involving chronic pain (Richard v. Ward, 2013 NBQB 107; Chiasson v. Thériault, 2018 NBQB 177) or a combination of chronic pain and concussion (Matthews v. McIntyre, 2019 NBQB 127). The Injury Regulation, supra, was revised considerably in 2013 to restrict its application and several of those cases would not likely be captured anymore. The regulation was amended to provide a new definition to ‘minor personal injury’ and increase the cap to $7,500 plus a cost-of-living adjustment.