Canadian Underwriter

Keeping the Cap On

April 1, 2007   by Vanessa Mariga

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New Bunswick’s Cdn$2,500 cap on personal injuries was upheld in the Court of Queen’s Bench, when a judge failed to recognize a plaintiff’s psychological injuries and ruled that any physical injuries were not permanent.

In September 2004, the plaintiff, Patrick Rossignol (17 years old at the time), was driving a motorcycle and struck a car driven by the defendant, Tonja Jillian Rubidge.

Rossignol was thrown over Rubidge’s car, and landed on the pavement some distance away. He attempted to stand, but realized his right leg was badly injured. The pain was unbearable, Court of Queen’s Bench Justice David H. Russell noted in his decision. The principal physical injury was a fracture of the right tibia and fibula, along with some minor contusions and abrasions to the lower legs.

Rubidge admitted liability in the incident, so the principal issue in Rossignol v. Rubidge was whether the plaintiff’s non-pecuniary general damages should be limited to $2,500 because of the province’s Injury Regulation-Insurance Act.

Under this regulation, which came into affect in 2003, “minor personal injury” means an injury that does not result in:

* permanent serious disfigurement; or

* permanent serious impairment of an important bodily function caused by continuing injury which is physical in nature.

The plaintiff was hospitalized for eight days and the fractures were repaired surgically. Rossignol did experience nightmares, Russell wrote in his decision, but according to psychologists’ testimony, these were to be expected.

“Subsequent to his release, his sleep pattern remained disturbed and he continued to suffer nightmares for a short while. He missed two weeks of classes at Saint Thomas University which he had just begun to attend,” notes Justice Russell.

On discharge from the hospital, Rossignol was forced to rely on the aid of a walker. By the end of a nine-month period, he had graduated to crutches and then a cane. Six months passed before he felt comfortable enough to get behind the wheel of a car again.

“The plaintiff testified he can now run, but not close to the level he achieved before the accident,” Russell wrote. “He hasn’t tried to play soccer or rugby but has skated, played hockey, snowboarded and golfed. He conceded deconditioning has played a substantial role in his current lack of interest in athletics.”

Following surgery and at the time of Rossignol’s discharge from hospital, Dr. Scott Bowden, the attending orthopedic surgeon, wrote: “He was having some post-traumatic anxiety and was seen by psychology, who felt that this was normal given the magnitude of the injury and expected this to settle uneventfully. He was feeling much better by discharge.”

Follow-up appointments with Dr. Bowden seemed to indicate a steady recovery. In his final report, Bowden detailed his final review of Rossignol back in March 2005: “He showed a solidly-healed bone, a healthy, healed soft tissue envelope without any evidence of infection and with no problems related to his injury or his treatment of this injury at that point. On that date, he was discharged from my care.”

Bowden gave Rossignol an “excellent” prognosis, noting his right tibia had “solidly healed” with no post-operative complications, infections, or subsequent joint injuries.

But although his physical injuries appeared to be healing well, Rossignol argued that the emotional wounds inflicted as a result of the collision plagued him, sending him into a bout of depression and substance abuse.

After an unsuccessful attempt at university six weeks after the accident, Rossignol enrolled in culinary school at a college in the city of Edmundston. This would be his first time living away from home.

Rossignal posted good grades at the new school, but testified that he had a difficult time coping with the stress of the work placements and the late hours these required. Normally he would use sports — hockey, in particular — to relieve his stress, but he said his injury no longer allowed him to play. Instead, he testified, he began to use marijuana and alcohol during the summer of 2005, partying “until the wee hours” with his friends. He told the court this behaviour persisted through the following year. During 2005, Rossignol, without consenting his doctor or parents, also decided to quit taking Ritalin, prescribed to him at the age of seven to treat his attention deficit disorder.

Even though his orthopedic surgeon advised him that he could return to sports slowly, and that there “are no restrictions on my activities except by myself,” Rossignal testified, his college did not have any sports teams. He said that when he attempted on three separate occasions to play hockey, his right leg quickly became tired.

“He acknowledged he is deconditioned, that he has not really made an effort to return to sports, and is not doing strengthening or conditioning exercises,” Russell wrote. “He further acknowledged his considerable use of marijuana and tobacco as well as his alcohol consumption could contribute to his deconditioning.”

Rossignal’s panic attacks and nightmares involving motor vehicle accidents became more frequent, Russell observed. In the summer of 2006, Rossignal had a panic attack requiring medical attention.

“The plaintiff’s position is that he suffers from Post Traumatic Stress Disorder (PTSD), caused by the subject accident, that reached an acute stage in the summer of 2006,” Russell wrote. To support this position, Rossignol engaged Barbara Gibson, a clinical and consulting psychologist, to assess him. She concurred with his claim, arguing, among other points, that:

* Rossignal’s PTSD symptoms “appear to be resolving currently, but are still measurably present, and appear to be currently most markedly affecting his sense of emotional connectedness, capacity for enjoyment, sense of well-being, capacity to relax, and may be an instigating factor in his continued use of addictive substances”; and

* while he was not found to be “significantly depressed,” he does continue to have “heightened anxiety symptoms” despite healing physically, and that these have kept him from living his normal, balanced life as a direct result of the accident.

The defence contested this assessment. Dr. Gary Facteau, also a clinical psychologist, did not examine Rossignol, but read through materials at discovery and Gibson’s material.

He disputed the PTSD diagnosis. He suggested that although the accident may have contributed to the symptoms, “this hardly seems sufficient to account for the primary psychological difficulties which he experienced in the summer of 2006.”

Justice Russell sided with the defence. In his decision, he wrote: “I do not consider it necessary to rely on the psychological experts to reach a conclusion that the mental health issues experienced by the plaintiff in August 2006 did not arise from the trauma of 2004,” he writes. “The plaintiff voluntarily stopped taking Ritalin that he had been prescribed some 12 years before. He was working in a very stressful environment without supervision; he was consuming marijuana at least once daily and sometimes more frequently; he was consuming alcohol excessively; and, finally, he was frequently partying after work until early in the morning hours. He did not have panic attacks between 2004 and the summer of 2006. I conclude it was the above-described lifestyle that led to the incident of August 2006 and its sequeiae and not the collision of 2004.”

Addressing Rossignol’s physical injuries, Russell concluded that Rossignol did not at the time of trial suffer any medical or physical limitations arising from the fractures. “That being so, I cannot conclude he has suffered a permanent serious impairment of any bodily function much less an important bodily function. The injury, therefore, for purposes of assessing the plaintiff’s non-pecuniary loss is a minor personal injury.”

Justice Russell awarded Rossignol the maxi
mum $2,500 for this injury as a result.

Michael Brenton, counsel for the defence, told Claims Canada that while the constitutional validity of the legislation imposing the cap was not argued, Justice Russell did not address the issue of whether or not psychological injuries are caught by the cap.

“We argued that they were,” Brenton said. “The other side argued that they were not. As I understand it, Justice Russell said that he didn’t have to deal with it because he found that there was no psychological injuries as a result of the accident,” Brenton said. These issues could potentially be raised in an appeal (the case was still within the appeal period as of press deadline).

When contacted, plaintiff counsel Randy Bishop declined to comment on the decision. He added he did not yet have instructions from his client about whether Rossignol would be appealing the decision in a higher court.

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