'Irreconcilable Incongruity' In Plaintiff's Reporting Disallows Claim For Loss Of Future Income, Section B Setoff Avoids Recovery Of Any Damages

In Bent v. MacFarlane1, contradictions in Bent's self-reporting and her lack of attempt to seek a medical resolution to an alleged chronic pain syndrome proved extremely limiting to her claim for damages. The case is remarkable for the severity of its result as well as for the blunt deconstruction by the New Brunswick Court of Appeal ("NBCA") of the argument that the trial judge's denial of future loss of earnings is inconsistent with the award of non-capped general damages. The case also reinforces that in New Brunswick, Section B benefits are deductible from all heads of damages.

In a March 2010 motor vehicle accident, Bent suffered bruises, contusions and a fracture in her right knee which required surgery and hospitalization. Bent claimed damages against MacFarlane for future loss of income to age 67, as well as damages for pain and suffering, loss of valuable services and cost of care.

Prior to the accident, Bent had been diagnosed with multiple sclerosis ("MS"). Despite her MS, she had been able to work, but her symptoms caused her at times to withdraw from the workforce. At the time of the accident, Bent had recently started part-time work as a cashier. She was expected to have full-time hours shortly and her claim reflected this.

Bent claimed that residual knee pain as well as a chronic pain syndrome from the accident prevented her from resuming employment as a cashier.

There was evidence from an orthopedic surgeon that the knee fracture had resolved and that Bent was pain free about three months post-accident, which she disputed. She was discharged from physiotherapy well before the first anniversary of the accident. Bent's own family physician felt that at the two year mark, there was little contribution of the accident injury to her inability to work. In the accident aftermath, the family physician had seen her through a flare up of her MS symptoms, and she felt that MS and other conditions (obesity, depression) were more likely factors contributing to her disability.

During the MS flare up in February 2011, Bent applied for Canada Pension Plan ("CPP") disability benefits on the basis that her MS was a "prolonged and severe" condition. She received the benefits and when her MS abated shortly after, she did not alert CPP that her MS ceased to be disabling.

Against this backdrop, in late 2012 and early 2013, Bent was referred to various experts to build her claim. An occupational therapist positioned her work day tolerance at a...