There is a lot of misinformation floating around about ‘the cap’ for minor injuries in New Brunswick. We often have new clients who have heard inaccurate things about the cap and what it might mean for their claim. Here are four things that you need to know about the cap in New Brunswick:
1. The Cap Only Applies to Motor Vehicle Accidents
If you have a personal injury claim that does not result from a motor vehicle accident, the cap will not apply to your claim. The cap was created by the Injury Regulation, N.B. Reg. 2003-20 under the Insurance Act. The regulation specifies that the cap only applies to motor vehicle accidents.
2. The Cap Only Applies to General Damages
Under a motor vehicle accident claim, you may be entitled to special damages, damages for loss of valuable services, past and future loss of income, general damages, and future cost of care. The cap only applies to the general damages and does not cap the other heads of damages.
3. The Cap Only Applies to Minor Injuries
The cap only applies in some motor vehicle accident claims, where the injuries are minor. The regulation specifically defines minor injuries. The regulation lists the following injuries that are considered minor for the purposes of the legislation:
- a contusion
- an abrasion
- a laceration
- a sprain
- a strain
- a whiplash-associated disorder
The cap does not apply to injuries outside of this list. Even if the injury is captured by this list, the cap does not apply if the injury results in serious impairment. Serious impairment is defined as whether the impairment results in a substantial inability to do the injured person’s essential tasks of work, training and education, or normal activities of daily living.
4. The Amount for the Cap Changes Depending on the Year in Which the Accident Occurred
If the accident happened between 2003 and July 2013, a different piece of legislation applies, and general damages are capped at $2,500.
If the accident happened from July to December 2013, general damages are capped at $7,500. The amount for general damages is adjusted every year for inflation and indexed by the Financial and Consumer Services Commission. For 2023, the amount for the cap is indexed at $9,182.57.
Application of the Cap: Examples
Below are some hypothetical examples of how the cap may or may not be applied in a claim for damages:
Example 1: Sue
Sue was injured in a motor vehicle accident in 2022. Her family physician diagnosed her with a mild neck strain and prescribed physiotherapy. Sue attended three sessions of physiotherapy and made a complete recovery. Sue does not miss any time off work.
The cap likely would apply, and Sue’s general damages would be capped at $8,638.35. Sue’s injuries fall within the list of injuries to which the cap applies. Sue’s injuries do not meet the definition of substantial interference in the regulation. Sue may also be entitled to amounts for loss of valuable services, special damages, future cost of care, disbursements, and costs.
Example 2: Bob
Bob is entering a grocery store when he slips and falls on ice at the entrance. No salt or sand has been applied to the area. Bob has been in physiotherapy for a year. Bob is put off work for six months and then completes a gradual return to work.
The cap would not apply to this situation as this claim does not involve a motor vehicle accident.
Example 3: Karl
Karl is injured in a motor vehicle accident in 2023. He is diagnosed with whiplash and soft tissue injuries to the neck. Karl is a carpenter and his family physician puts him off work for two weeks. At the end of the two weeks, Karl’s injuries have not improved. Karl’s doctor continues to put him off work for a month at a time for the next year. Despite intensive physiotherapy and massage therapy, Karl develops chronic pain and after a year his doctor advises he can never return to carpentry work.
It is likely that the cap would not apply in this situation. Even though Karl’s injuries fall within the list of injuries for which the cap applies, Karl’s injuries likely do meet the definition of substantial interference.
Often, when individuals call our office after they are injured as the result of someone else’s negligence, we hear that they have been misinformed about the cap for minor injuries. Sometimes they are under the impression that their entire claim is capped at the indexed amount. Sometimes they are told that the cap will apply, when in our opinion it does not. If you have been injured in an accident, it is important to call a lawyer to discuss whether or not the cap might apply to your claim. In some cases, it may be important to start securing medical information immediately that supports that the claim is not caught by the cap, and whether it applies to your claim.
Melanson Law offers free consultations for injured individuals. During the free consultation, we can discuss the cap for minor injuries, and whether it applied to your claim. Call our office on our toll-free line anytime, and we can schedule an appointment for your free consultation.