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02 Jun 2019

Plaintiff’s Injuries Not Subject to $2,500 Cap, Judge Awards $90,000 in General Damages

by Matthew Pearn
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McDonald v. Martin, 2019 NBQB 91

Margaret McDonald was 44 years old when she was thrown from a motorcycle driven by her boyfriend, Mr. Martin, when he lost control of the vehicle. Prior to this accident, she was described as being active, athletic, and in overall good health.

As a result of the crash, she sustained road rash and fractures to her pelvis, left elbow and three ribs. Ms. McDonald also suffered from several pre-existing conditions, including degenerative disk disease which caused back pain. The Defendant admitted liability for the accident but disputed the quantum of damages being claimed as he alleged that her current disabilities were attributable to medical issues that pre-date the accident.

At the time of the accident, Ms. McDonald was employed as a phlebotomist, and she did return to work following the accident, however she struggled with work, missing significant time and requiring accommodations.  Eventually her employer was no longer able to accommodate her limitations as there was no position she could complete, and her employment was terminated. 

The Defendant argued that ongoing deficits arising from Ms. McDonald’s injuries were subject to the Minor Personal Injury Cap and therefore confined to $2500. He argued that the Plaintiff’s inability to work was related to her pre-existing back pain and not related to the accident.

The trial judge held that Ms. McDonald’s pelvic fracture met the threshold of being a permanent impairment of important bodily function which interferes with her regular employment, as her pelvic fracture contributed to her inability to complete her regular work.  The Court thus found that her injuries were not subject to the Minor Personal Injury Cap.

A comprehensive review of Ms. McDonald’s health, work history and general level of activity both before and after the accident was conducted by the trial judge. He ultimately found that given her long-standing back pain, and the progressive nature of her degenerative disc disease, Ms. McDonald’s ability to work would have become more limited over time regardless of the accident.

The trial judge determined that the best way to calculate damages for loss of income, given her pre-existing illnesses, was to assess the chances that she would have been forced to retire early even without the accident.  The trial judge reduced her future loss of income up to age 60 by 25% to account for the chance she would have retired early in any event, and reduced her loss of income from age 60 to 65 by 75%.

Ms. McDonald was awarded total damages of $691,578.18, of which $408,386.00 were for loss income, and $90,000.00 were for general damages, with additional sum for loss of pension ($40,836), cost of care ($59,182) and loss of services ($93,174).

You can read Garrity v The City of Saint John 2019 NBQB 27 in its entirety here.

At Foster & Company, we represent institutions and individuals looking for help understanding insurance coverages and responding to claims. Contact us by phone at 506-462-4000 or reach us online for advice.