In a case where an injured party in New Brunswick has been overcompensated for past loss of income as a result of receiving section B Loss of Income Benefits, the trial judge is obligated to reduce the amount payable for non-pecuniary damages to account for the over-compensation in applying the release provisions of section 263(2) of the New Brunswick Insurance Act

Gagnon v. Black, [2005] N.B.J. No. 124, New Brunswick Court of Queen’s Bench Trial Division

The Plaintiff brought an action to recover damages for injuries and losses allegedly sustained as a result of a motor vehicle accident that occurred in January 2000. The Plaintiff was involved in a subsequent motor vehicle accident in December 2000. The Plaintiff claimed that, as a result of the January 2000 accident, he suffered from chronic pain syndrome rendering him totally disabled since December 2000. The Court found that the Plaintiff had not met the burden of proving on a balance of probabilities that, as a result of January 2000 accident, he suffered from a chronic pain condition which disabled him from working.

The court also considered the effect of weekly indemnity payments which the Plaintiff had received from his Section B insurer. The court followed a previous decision of the New Brunswick Court of Appeal which confirmed that in a case where an injured party has been overcompensated for past loss of income as a result of receiving section B Loss of Income Benefits, the trial judge is obligated to reduce the amount payable for non-pecuniary damages to account for the over-compensation in applying the release provisions of section 263(2) of the New Brunswick Insurance Act.

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