In our first case, the issue of whether a plaintiff is required under the Rules of Court to produce for inspection the correspondence between the plaintiff’s solicitor and his/her expert witnesses has been dealt with by the New Brunswick Court of Appeal.
In our second case, the Court of Appeal has also ruled on the importance of actuarial calculations to prove future loss of housekeeping capacity and has also confirmed a plaintiff’s burden of proof when making a claim for loss of future earning capacity.
The Court of Appeal held that a claim of litigation privilege over routine letters from the plaintiff’s solicitor to the plaintiff’s healthcare providers is bereft of merit. More substantive letters are captured by Rule 52.01(4) which states that on Motion, the court may order that any records, documents or other materials on which a medical report is based be produced for inspection and copying.
Wallace v. Thibodeau, 2008 NBCA 78
The plaintiff was injured in a violent roadway collision in July, 2002 - The injuries exacerbated pre-existing conditions, including TMJ problems and an abnormal lateral curvature of the spine - At trial the plaintiff relied upon the “thin skull” rule to claim full compensation for his post-accident losses, including the cost of treating his TMJ problems - The trial judge rejected the plaintiff’s claim even though the plaintiff was pain-free prior to the accident - The TMJ problems would have eventually materialized in any event - The plaintiff, a lobster fisherman, also sought pecuniary general damages for loss of future income - He claimed he was forced to hire a boat helper due to his disability - His claim was dismissed - The plaintiff appealed against the rejection of his claim for the cost of treating his TMJ problems and the dismissal of his claim for loss of future business income - The defendant cross-appealed the quantum allowed for past and future loss of housekeeping capacity as being “arbitrary and based on inherently unreliable evidence”.
Held - The appeal and cross-appeal allowed, in part - The Court of Appeal held that the “thin skull” rule, not the “crumbling skull” rule, had application, and awarded the full allowance of the dental care claim - The wrongdoer bears the burden of proving a “crumbling” condition in the claimant - On past loss of housekeeping capacity, there was some evidence upon which the trial judge could have properly relied to quantify and award damages, without corroborating documentary evidence - Actuarial calculations should be used to determine the quantum of any future loss of housekeeping capacity - On loss of future income, the Court re-affirmed its position that courts must apply a two step process in the determination of pecuniary general damages for loss of earning capacity (see Vincent v. AbuBakare) - The assessing judge need only go to the second step, an assessment of damages based on the chance of occurrence, if the plaintiff has proved, on a balance of probabilities, that there is a real and substantial possibility of a prospective pecuniary loss - The Court found no error in the trial judge’s judgment - The plaintiff failed, on a balance of probabilities, to establish any future loss of earning capacity.
￼The Court of Appeal reinforces the need for actuarial evidence when making a claim for future loss of housekeeping capacity. As to a claim for future loss of earning capacity, the Court re-affirms its position in Vincent v. AbuBakare in that the assessing judge need only assess damages if the plaintiff has proved, on a balance of probabilities, that there is a real and substantial possibility of a prospective pecuniary loss.
MacKenzie v. Davis 2008 Carswell NB 581
This appeal raises two procedural questions - First, whether litigation privilege over letters from an injured claimant’s solicitor to healthcare providers is waived once their responding medical reports are produced for inspection and copying - Second, whether the letters are producible, in any event, where Rule 52.01 of the Rules of Court is in play. Rule 52.01(1), unique to New Brunswick, provides that where a party intends to call an expert witness at trial, he must serve on every other party a copy of the expert’s signed report.
Held - Routine letters from counsel to a client’s healthcare providers do not benefit from the mantle of litigation privilege - Rule 52.01(4) captures all of counsel’s non-routine letters from counsel to his client’s healthcare providers - Rule 52.01(4) provides that Where a report has been served under paragraph (1) or paragraph (2), on motion the court may order that any records, documents or other materials on which the report is based be produced for inspection and copying. The claim of litigation privilege over routine letters from the claimant’s counsel to his healthcare providers is bereft of merit. Insulating those letters from production would, in no way, serve the need for counsel to have a litigation-related zone of privacy - As for counsel’s more substantive letters, they are producible pursuant to Rule 52.01(4), whether privilege is waived by counsel or not.