– Gordon v. Sexton, 2013 NLTD 127.

The plaintiff claimed for damages arising from injuries sustained in a rear end collision in April 2002. Liability was admitted. The sole issue before the court was an assessment of the plaintiff’s damages. The plaintiff, aged 53 at the time of trial, continued to suffer some 11 years post-accident from chronic myofascial pain, occipital neuralgia, Grade II whiplash and depression.

Prior to the accident, the plaintiff was employed as a seasonal snow clearer for Parks Canada. The court agreed that he was unable to continue in this position due to his injuries. However, he was able to secure a job as a park patrol officer during tourist season, averaging 22 weeks yearly. In this position, the plaintiff was paid less hourly, but earned the same annually by working more weeks. Despite there being no change in total earnings, the court found “a real loss of income” as the plaintiff was not available to earn other income or receive EI benefits during those extra weeks of work with the park. Past lost income was awarded based on the wage of a snow plow operator. Future lost income, based on the same wage, was extended to age 65. The plaintiff had also lost income from the commercial fishing industry where he had worked with his brother. He was unable to establish that he would have continued to work in the fishery with another company after the sale of his brother’s enterprise. Other evidence relating to the plaintiff’s income from sawmilling and handyman income was rejected entirely due to lack of records and the fact that the plaintiff’s testimony on this point was “vague, ambiguous and wholly unreliable”. The court also noted that the plaintiff’s credibility was negatively affected by his admissions of past “flouting permit conditions and hiding income from government agencies and his estranged wife”.

The domestic and maintenance work at home that the plaintiff was able to do was significantly restricted by his injuries. For past and future loss of valuable services, the court used a “somewhat arbitrary” $750 annually to calculate his loss. The court also found that the plaintiff would likely require acupuncture, nerve block injections (every 6-8 weeks) and over-the-counter medications for the rest of his life. Future care until age 74 was calculated at $240 a year for medications and $900 for monthly acupuncture therapy. The defendants argued that the plaintiff should source treatments closer to his home, but the court found that the plaintiff was not being unreasonable in failing to pursue closer therapy and refused to jeopardize the strong patient-physician relationship which had developed. Interestingly, for the future loss amounts, a 200% mortality factor was assigned to the plaintiff as he was a “chronic cigarette smoker”, allowing him a life expectancy of age 74.

In terms of general damages, the court found that $75,000 represented “reasonable compensation” for the plaintiff’s injuries, in recognition of their impact on all aspects of his life in the 11 years since the accident and the fact that they would likely affect him for the rest of his life.