Minor Injury Legislation: “The Cap”

Is my case capped?

You may have heard the term “Minor Injury Cap” floating around and assume it means that unless your injury is very serious, you are not entitled to anything following a car accident. This is not true. This blog will explain what “The Cap” really is, and more importantly, what it isn’t.

The Minor Injury Cap was first adopted in New Brunswick in 2003 in order to place a limit on claims for pain and suffering following a car accident. The Cap never limited claims for loss of income, cost of care, loss of valuable services or other out of pocket expenses. At that time, the limit was 2,500$.

The Cap was changed in 2013 in two ways: The limit was increased to 7,500$ and the definition of “minor personal injury” was changed.

At this point it gets a bit technical, but basically consists of a list. A minor personal injury is a:

  • contusion
  • abrasion
  • laceration
  • sprain
  • strain, or
  • whiplash

However, even if you have one of these injuries, it is NOT considered a minor injury if it causes a “serious impairment”, which is:

  • a substantial inability to perform the essential tasks of your job, your education, or your normal daily activities
  • which is ongoing since the accident and
  • which is not expected to improve very much.

Even if your injury does fall below The Cap, you may still be entitled to the full 7,500$ limit.

Some examples of injuries that are almost always ABOVE the Cap are:

  • brain injuries, including concussions
  • spinal cord injuries
  • broken bones
  • TMJ
  • chronic pain

You can probably understand why it is so important to have a lawyer help you. Whether your injury falls over or under The Cap is a matter of understanding all of your unique circumstances in the context of the law. A lawyer is the best person for this job.

Now that you know what The Cap is, it is equally important to understand what it is NOT. The Cap does NOT make it impossible for you to claim for other losses you have suffered following a car accident. This is worth repeating: even if your injury is “minor”, you may still get back money you have lost.

This is because The Cap applies to only one “head of damages”, but there are several others to which it does not apply. A head of damages is a category of loss. The Cap only applies to the head of damages that covers pain, suffering, and loss of enjoyment of life.

Other heads of damages include past and future cost of care (treatments or medication), past and future loss of income, and past and future loss of valuable services (mowing the lawn or shovelling the driveway). For example, if you were unable to go to work for a month following your accident, The Cap has no effect at all on the loss of income you suffered and you can still claim it.

The takeaway here is that you should never assume that your injury is “minor” and therefore not worth speaking to a lawyer about. Only a lawyer can assess your case by taking a good look at all the circumstance

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