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Proving Damages: Evidentiary Lessons from Anderson v. Gagne

Published:

May 28, 2025

Author(s):

• Catherine Hirbour
• Jane Soucy
• Nicole Green-Mitchell

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Understanding the factors courts consider when assessing claims for chronic pain and other injuries is crucial for insurers. Motor vehicle accidents often result in soft tissue injuries and concussions, which can develop into chronic pain or exacerbate pre-existing injuries. These claims can lead to significant damage awards. In its April 2025 decision, Anderson v. Gagne, the Nova Scotia Supreme Court considered the importance of evidence in proving claims for chronic pain. Emphasizing the value of credible evidence, objective findings and reliable testimony in chronic pain claims, the case provides insurers with a valuable reference to anticipate the evidence that might be presented and the potential damages that might be awarded. This allows for more effective litigation preparation and risk management in claims involving chronic pain and related injuries.

The Plaintiff was rear-ended by the Defendant in March 2014. They were 35 years old at the time of the collision and claimed general damages for various injuries, including right knee strain, mild traumatic brain injury/post-concussion syndrome, as well as chronic pain syndrome, and other associated symptoms. In October 2014, the Plaintiff was involved in a second motor vehicle accident. The Plaintiff did not miss any time from work due to either accident. The Court found there was insufficient credible evidence of chronic pain syndrome, leading to a reduced damages award compared to what could be expected of similar claims. The Court ultimately awarded the Plaintiff $58,213 in general damages plus prejudgment interest, $18,000 for loss of valuable services, $2,500 for future care costs (mainly pain medication), and $346.73 for blackout blinds. The Court rejected other claimed expenses and dismissed all other claims.

Here are seven key factors that led the Court to reduce its damages award to the Plaintiff.

Credibility & Reliability of the Plaintiff. The Court found inconsistencies between the Plaintiff’s testimony and their medical records, particularly regarding their recollection of the accidents and symptoms. Many of their early records did not support their later claimed injuries. The Court deemed the Plaintiff’s evidence unreliable unless supported by contemporaneous medical records or other witness testimonies.

Self-Reported Symptoms. The Plaintiff attempted to rely on medical evidence from their physical medicine and rehabilitation specialist. However, the expert’s conclusions were based mainly on the Plaintiff’s descriptions of their symptoms and self-reporting – but not x-rays, physical exams or other objective evidence. The Court noted that it considered expert opinions relying chiefly on the Plaintiff’s self-report without supporting objective findings less substantial. 

Failure to Prove Exacerbation of Earlier Injuries. The Court accepted the Plaintiff suffered a mild traumatic brain injury/post-concussion syndrome from an earlier accident, exacerbated by the second accident at issue. However, the Court didn’t fully accept chronic pain syndrome due to lack of evidence linking certain injuries (left shoulder and neck pain) to the first accident.

Mild Traumatic Brain Injury. The Court reviewed recent case law and awarded $50,000, considering the Plaintiff’s chronic headaches, ringing in the ears, dizziness, balance problems and sleep disturbances as well as their continued full-time employment, long work hours and promotions.

Minor Injury Cap: The Plaintiff’s right knee injury was classified as a “minor injury” as defined under the Nova Scotia Automobile Accident Minor Injury Regulations and therefore subject to the Nova Scotia Minor Injury Cap on damages, resulting in a general damages award of $8,213.

Past & Future Earnings Loss. The Court awarded no damages for past wage loss or future earnings loss due to insufficient evidence that the Plaintiff would have been promoted to a director position but for their injuries.

Subrogated Claim: The Plaintiff also claimed damages for their insurer’s subrogated claim in the amount of $28,090.88, after being reimbursed for physiotherapy, massage, naturopathy, psychology, osteopathy and clinical counselling services. The Court made no award for the subrogated claim as the Plaintiff didn’t prove them to be for treatment of the post-concussion syndrome.

Please contact your McInnes Cooper lawyer or any member of our Insurance Defence Team @ McInnes Cooper to discuss the assessment of chronic pain claims.

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