Legal Analysis

Case Law & Legislation

A number of factors may determine what compensation an injured person is entitled to. Below is a summary of some of the relevant case law and legislation that determines what a person injured in a car accident may be entitled to.

Gordon v. Greig, 2007 CanLII 1333 (ON SC)
Two plaintiffs, both aged 22, suffered catastrophic injuries as a result of a motor vehicle accident. Neither plaintiff was wearing his seat belt, and both were thrown from the vehicle. Plaintiff #2 was left a paraplegic and had no feeling below the T5-T6 level of his spine. He underwent surgery to repair his spinal fractures. Rods were inserted to brace his spine. He had a loss of bladder and bowel control. He worked extensively on a tremendously aggressive rehabilitation program. His limitations would put heavy demands on any prospective employer to adjust workplace environments to accommodate him. He suffered spasticity as a regular complication of his attempts to move. He was at risk of long-term kidney damage and deep vein thrombosis, as well as osteoporosis. The Court awarded plaintiff general damages in the amount of $310,000.

Kwok v. Abecassis, 2017 ONSC 164
The 50-year-old plaintiff was involved in a series of collisions with both guardrails and another vehicle after being cut off and taking evasive action to avoid a collision. He suffered a moderate to severe traumatic brain injury, including a diffuse axonal injury (DAI), a cerebral hematoma, head laceration, depression, anxiety, PTSD, and soft tissue injuries to his neck, shoulder, and lower back. As a result of these injuries, the plaintiff dealt with chronic pain, dizziness, poor vision, balance and coordination issues, slowed gait, and many other psychological and cognitive difficulties, which left him markedly impaired in every facet. His injuries were deemed permanent and unlikely to improve. He received $290,000 in general damages.

Chiasson c. Thériault, 2018 NBQB 177
The 30-year-old plaintiff suffered injuries when the vehicle in which she was a passenger was struck from behind. She suffered soft tissue injuries to her neck with WAD-like symptoms and experienced cervicogenic headaches. She was unable to return to work successfully. Four years after the collision, she began undergoing cortisone facet joint injections to address her complaints of ongoing pain. At the time of trial, nine years after the collision, her symptoms continued. She had been diagnosed as suffering from chronic pain syndrome, with symptoms that would be permanent. She was awarded $75,000 in general damages.

New Brunswick Motor Vehicle Act

Each province has its own Motor Vehicle Act or Highway Traffic Act that determines the rules all motorists must adhere to. In New Brunswick, it is the Motor Vehicle Act. If a person is driving in a manner that contravenes motor vehicle laws and that caused an accident in which you were injured, you may be entitled to compensation.

Your personal injury lawyer will be well versed in the New Brunswick Motor Vehicle Act and will help you interpret how it applies to your context when determining who is responsible for your accident.

Insurance Act

Under New Brunswick’s Insurance Act, there are four sections of auto insurance that may apply to car accident victims: Sections A, B, C and D. Each Section has a specific purpose in helping you recuperate costs in a motor vehicle accident claim. A car accident lawyer will ensure that you receive all compensation that you are entitled to.

Section A applies when you are injured by a negligent driver. Section A insurance claims are made against the at-fault driver’s insurer to recover financial compensation for a victim’s injuries.

Section B covers mandatory accident benefits provided under your own insurance policy or that of the driver whose vehicle you were in as a passenger during the accident. These “no-fault” benefits are available regardless of who is at fault for the accident. Section B covers some medical and rehabilitation expenses, an amount designated for your lost wages, housekeeping benefits, and funeral and death expenses.

Section C covers the cost of damage to your vehicle caused by the accident. This coverage is often included in the standard automobile policy but is not mandatory in New Brunswick. You should check with your individual insurance provider to see if Section C coverage is available to you.

Section D applies when you are injured by an uninsured driver or an unidentified driver, such as in a hit-and-run accident.

Limitations Act

The limitations act in each province determines how long you have to file a claim for injuries suffered in a car accident.

In New Brunswick, for example, you have two years to file a claim with the Court as dictated by the Limitation of Actions Act, SNS 2014, c 35. This deadline can potentially be extended in exceptional circumstances; however, it is best to assume that you only have two years to file your lawsuit.

The deadline varies between Nova Scotia, Newfoundland and Labrador, Prince Edward Island and New Brunswick. If you are unsure if you are within the limitation period in your circumstance, book a free consultation with MacGillivray Law to discuss your case.

Minor Injury Cap

A minor injury cap is a limit on the amount of general damages a person can claim for pain and suffering and loss of enjoyable activities. It typically applies to whiplash, whiplash-associated disorder (typically WAD 2) and other soft tissue injuries that do not substantially interfere with work or activities of daily living (injuries considered not permanent and serious.)

An injury could be over the minor injury cap because of the effects it has on a person. MacGillivray Law uses case law to interpret the definitions and apply them to the facts in your case. We are often able to advocate that an injury is over the minor injury cap even when the insurance company for the at-fault driver says the minor injury cap applies.

Negligence and Proving Who is at Fault

In New Brunswick, you prove who is at fault by showing that a person’s driving was in contravention of motor vehicle laws or otherwise substandard. Under New Brunswick’s injury law, proving fault in car accidents falls under the principles of negligence. Negligence refers to the failure of a person to exercise reasonable care, resulting in harm or injury to another person. In order to prove negligence, four things must be proven:

1. A duty of care is owed: A duty of care is a legal obligation to act reasonably and avoid harming others through your acts or omissions. A duty of care is owed between all motorists on the road. There is an expectation that all drivers will be held to the same standard in keeping themselves and others safe on the roads.
2. A breach of standard of care occurred: The standard of care can be determined by looking at New Brunswick’s traffic rules, as well as what might be expected by a reasonable person. The standard is breached when someone fails to comply with the traffic rules or does not take “reasonable care” driving in the circumstances. An example of failing to meet the standard of care is driving through a stop sign without stopping first. In order to prove that the other driver breached the standard of care, courts will review evidence such as testimony from the drivers involved in the accident, witness testimony, police charges laid, reports by accident reconstruction specialists, surveillance footage, and cell phone records.
3. Causation: Causation requires that the actions (or inactions) of the at-fault party led to the injuries suffered by the other party.
4. Damages: Damages, or losses, financial or otherwise, must have resulted. Without damages, there is no personal injury claim. Damages may include loss of income, medical care costs, and general pain and suffering.

Contributory Negligence

Sometimes, fault cannot be placed solely on one party involved in a car accident. In certain circumstances, the injured party can be found partially at fault for their own injuries. Where the injured party has done or failed to do something that contributed to their injuries, they will be considered contributorily negligent and, therefore, partially at fault. One common factor leading to a finding of contributory negligence is failure to wear a seatbelt. Under the New Brunswick Insurance Act you are automatically 25% contributorily negligent for not wearing your seatbelt.

Experienced car accident lawyers will work to minimize the impact contributory negligence has on your insurance claim. Book a free consultation to learn more.

Seeking Legal Advice

There are many reasons you should consider seeking legal advice if you are injured in a car accident. Clients of MacGillivray Law can be assured that:

• Your lawyer can file the claim with the Court to preserve your rights.
• Your lawyer can gather your medical records, treatment charts, and police reports and request narrative reports from your treatment providers.
• Your lawyer can assist in dealing with your Section B accident benefits claim to help get some immediate help with lost wages and keep coverage in place for your treatment.
• Your lawyer can help you decide if and when to give a statement, help you prepare to make the process easier, lessen worry, and then attend the statement with you.
• Your lawyer, in more serious cases, can request special reports from independent doctors to get opinions and treatment plans related to your accident injuries. These are called independent medical examinations.
• Your lawyer can retain engineers, other experts called actuaries, economists, therapists, psychologists, and other experts to help prove fault or the effect of the accident on you.
• Your lawyer should make themselves aware of the case law and damages awarded by the Courts for cases like yours.
• Your lawyer can provide advice on the risks and benefits of settling or continuing to the next step.
• If you are disabled, your lawyer can help you access accident benefits.