Narrator: In July of 2003 New Brunswick imposed a $2,500 injury cap on awards for minor personal injuries. The reasoning was that bodily injury claims were causing premium rates to spiral out of control. However, a new report by Economica Limited says there is no connection between escalating premiums and bodily injury claims. ILSTV asked Norman Bosse, a lawyer in New Brunswick with Clark Drummie, if the cap should be abolished.

Norman Bosse: I practice both insurance defense and plaintiffs’ work. I'm also a mediator in the province of New Brunswick; lawyers hire me to mediate disputes in the insurance field and personal injury claims, so I've mediated a number of disputes. I've gone to court before the judges, I've had them for both plaintiffs and defense for insurance companies and I can say that I was never in support of a cap both from the defense side and the plaintiffs’ side. I'll tell you why – in a way when the insurance industry says “Well look, we want the cap. What were we doing?We were abandoning, really, our duty to make sure that if there were fraudulent claims in the province of New Brunswick driving up insurance premiums, what were we doing about it?Were we prosecuting our cases well enough?Were wetaking cases to trial to say: Well look, Mr or Mrs Judge, there isn't the evidence here to warrant a $50,000 award for pain and suffering in this personal injury case because it's subjective evidence or no objective evidence?What were we doing? Were we putting surveillance on these people to make sure that we weren't paying fraudulent claims?”

So I think there was an abrogation at least to some small degree of the duty of us, as insurance defense lawyers, to make sure that we prosecuted our defense of our claims properly. I can tell you now, and this is anecdotal but true, that very few trials are going on in New Brunswick with respect to personal injury claims now. Very few and I would say that's really decreased over the last five to ten years because insurance companies just aren't willing to take some of these cases to trial any more.

Narrator: One of the main sticking points in regards to the legislation is the definition of “Minor Personal Injuries.” Norman explains.

Norman Bosse: When we talk about the legislation, we have minor personal injury and we have soft tissue injuries as well. In minor personal injury the bar is set to a point where if you have serious impairment of a bodily function, the bar is set pretty high to get over the threshold – to get over $2,500. I don't know if that was the intention of the legislation in July 2003. Certainly as a practicing lawyer for the plaintiffs and defendants I wasn't thinking that we were going to take a case of a young boy, a young man, who has a broken hip as being caught by the minor personal injury. Nobody thought that. We were thinking soft tissue injury. It was the type of case where we as lawyers, whether you have a plaintiff or defendant, you go in and you do an examination of discovery and when you come out of there you say: “Look, there is no hard or objective evidence to prove this person's pain. It's all subjective.” “My lower back hurts.” We've all done this, we've all gone through their histories. “Well, you know – three years ago you had another motor vehicle accident. Oh, you had a work related injury and your back was hurting, or you were treated by your family physician, give me some details.” We question, we question about the preexisting conditions of a person's back or neck, or wherever the pain may be. We all had a sense of what we thought was minor personal injury or soft tissue injury and it wasn't what we're getting from the courts now, absolutely not.

Narrator: Even with major injuries, such as paralysis or brain damage, Norman explains that the cash settlements are generally not as much as people think.

Norman Bosse: The Supreme Court of Canada, in the trilogy of cases in 1973, Tenno v Arnold, they capped what you're going to get for a paraplegic with a value of $275,000- $300,000 for general damages anyway. I've not yet had a case at that level. I had a very serious personal injury case, a malpractice case of a young man who hung himself at a hospital but survived it, making him brain injured. We were talking at that time in the $200,000 range for general damages for pain and suffering and that's a serious case. I can tell you a mediator, defense lawyer and a plaintiffs’ lawyer as well that when you settle cases here in New Brunswick for motor vehicle accident personal injury cases you are not getting in the hundreds of thousands of dollars for general damages for pain and suffering. It is not happening. So I don't think the insurance industry losses are there and I can also tell you since 1999 that generally the courts in New Brunswick, The Court of Queen's Bench, we have no jury trials by the way in New Brunswick for personal injury cases, there's no such thing – it's judge alone. So the judges had been reducing, not – there was no conspiracy, they didn't get together and say “We're giving too much in general damages for pain and suffering” but we were seeing that they were lowering the compensation levels in personal injury claims.