Executive Summary: Key Legal and Evidentiary Issues

• Causation was contested, but the Court found the 2015 rollover collision caused permanent physical, psychological, and neurocognitive impairments.
• The Court preferred long-term treating and standardized-assessment experts over one-time defence IMEs on chronic pain, PTSD, mild traumatic brain injury, and functional capacity.
• Evidence from medical and functional experts led the Court to conclude that Ms. Allen does not have a meaningful residual earning capacity and cannot realistically sustain even sedentary work.
• A mandatory 25% reduction in all damage awards was applied under s. 265.2(1) of the Insurance Act because Ms. Allen failed to wear an available seatbelt and was ejected from the vehicle.
• The defence’s mitigation arguments failed because it was not proven that additional treatment, education, or continued employment would likely have reduced Ms. Allen’s losses.
• Damages were assessed under multiple heads, including non-pecuniary loss, past and future income loss, pension loss, cost of future care, and valuable services, culminating in a net award of $2,593,195.00 after the statutory reduction and adding costs.

Background and pre-accident circumstances

Ms. Allen was born on November 30, 1996 and raised in Moncton, New Brunswick. She grew up in an active, close-knit family where both parents worked and later pursued university studies; her father eventually obtained a Bachelor of Education and became a teacher, and her mother later worked as an educational assistant and attended Université de Moncton and Saint Mary’s University. Ms. Allen performed well academically, enjoyed school, and maintained long-standing friendships. She was heavily involved in sports, including hockey, soccer, rugby, and softball, and described herself as physically active and confident. In high school (2010–2014), she played varsity hockey and soccer, worked part-time 15–20 hours a week at a mall, and continued to play soccer and rugby in Grade 12, serving as captain of her soccer team. She was offered athletic scholarships from Université de Moncton, Crandall University, and the University of New Brunswick. During high school she experienced two significant personal events: the death of her grandmother in May 2013 and her parents’ separation in March 2014 while she was on a school trip. These events were emotionally difficult but did not prevent her from continuing school, sports, and social activities. Her long-standing goal was to become a teacher. In Grade 12, she and her close friend, Megan Tozer, completed a five-month teaching co-op at Birchmount Elementary School, working with students from kindergarten to Grade 8, assisting with lesson planning, and teaching physical education. Teachers allowed her to work independently, and her lesson plans were used by her father. Family and friends testified consistently that this co-op reinforced her desire and apparent aptitude for teaching. After graduating in 2014, Ms. Allen took a gap year influenced by her grandmother’s death and her parents’ separation. She saw her family physician, Dr. Martina Babin, several times between August 2014 and September 2015 for situational or episodic depression related to these stressors and was prescribed medication, but there was no evidence of disabling mental illness. She worked briefly in retail, then at Canadian Tire in the seasonal and athletic departments in 2015, leaving after a sexual assault by a customer with intellectual disabilities. She did not seek treatment at that time and testified that this did not change her educational or career plans. Her mother assisted her in applying to Université de Moncton, Crandall University, Mount Allison University, and the University of New Brunswick. She received a scholarship from Université de Moncton but chose not to study in French and initially enrolled briefly at Crandall, withdrawing because of the religious environment. Both parents testified that she intended to attend Mount Allison University after her gap year. On the day of the accident, she had downloaded the Mount Allison application, ordered transcripts, and left the paperwork on the kitchen island to complete upon returning home.

The October 10, 2015 accident and immediate injuries

On October 10, 2015, Ms. Allen was a back-seat passenger in a vehicle driven by her then-boyfriend, Joshua John Doiron, travelling at highway speed between Moncton and Sackville. The vehicle left the roadway, flipped seven and a half times, and came to rest upright in the opposing lane. Ms. Allen was ejected from the vehicle and found in the median; she was not wearing a seatbelt, and she could not recall why. Another back-seat passenger, Kiera Dawe, who was part of Ms. Allen’s social circle, was also ejected and sustained catastrophic head injuries. Ms. Allen testified to profound survivor’s guilt. As a result of the collision, Ms. Allen sustained multiple serious injuries: fractures of her cervical spine at C6 and C7, her thoracic spine at T1 and T5, a pelvic fracture, and extensive bruising and lacerations along the left side of her body. She underwent surgery to replace the disc between C6 and C7 with instrumentation and wore a cervical collar for about six weeks. The pelvic fracture significantly impaired her mobility, and she had to relearn how to walk. She was admitted to hospital on October 10, 2015 and discharged the following Tuesday to her mother’s care. Orthopedic surgeon Dr. Ross Leighton later described the mechanism of injury as extremely severe, estimating Ms. Allen had been ejected at approximately 100 km/h, that her head struck and broke the window on the way out, and that she landed on the median. He characterized this as a very high-energy trauma, estimated at about 25,000 foot-pounds, and stated this was not a minor injury but life-threatening trauma. He testified that the cervical injury at C6–C7 created instability requiring fusion surgery and rejected any description of it as a simple or stable whiplash-type injury.

Early recovery and psychological impact

Immediately after discharge, Ms. Allen required intensive assistance from her mother, who took two to three weeks off work. Ms. Allen needed help with bathing, dressing, and personal hygiene, which she found humiliating. Family members described her mobility as severely limited and her pain as intense. Over the first six months she focused on pain management and relearning to walk properly and continued to experience pain in her neck, shoulders, and mid-back. Ms. Allen testified that she became depressed, anxious, angry, and emotionally unstable, and that she was “nothing like” her pre-accident self. She became socially withdrawn, pushed friends away, and felt unworthy of maintaining relationships. She stopped eating for prolonged periods and lost significant weight. Ms. Allen began seeing psychologist Nathalie Babineau-Ross in mid-January 2016 and attended 13 sessions between January and May 2016. Ms. Babineau-Ross observed symptoms consistent with PTSD, including irritability, emotional distress, avoidance, intrusive reactions to reminders of the accident, heightened anxiety, and severe appetite disturbance resulting in about 20 pounds of weight loss by June 2016. She described Ms. Allen as stoic, disliking vulnerability and suppressing emotion, with distress often presenting as anger, withdrawal, or somatic symptoms. Ms. Allen’s therapy paused when the psychologist went on maternity leave and later resumed in 2021, continuing monthly until November 2023, when Ms. Allen stopped for financial reasons. Dr. Babin, Ms. Allen’s family physician, testified that after the accident she saw a marked change: Ms. Allen became more withdrawn, required guided interviews, appeared fidgety and hypervigilant, and her depression and anxiety significantly worsened. Dr. Babin noted chronic daily pain and Ms. Allen’s reluctance to identify as a victim, tendency to minimize symptoms, and preference for over-the-counter medications and cannabis rather than extensive prescription drugs.

Post-accident education and employment attempts

In September 2016, about a year after the accident, Ms. Allen enrolled in the Human Services program at NBCC Moncton. She chose the program because it could lead to work as an educational assistant or social worker and appeared related to teaching. She experienced discomfort in class in the form of difficulty sitting upright, frequent shifting, and neck and shoulder pain. During her practicum she worked with students requiring physical assistance and crisis intervention, which involved bending, crouching, and exertion. By the end of each day, her pain would reach six or seven out of ten. She was given physical restrictions after the practicum and decided she could not perform that work consistently. She withdrew from the program in February 2017, testifying she did not enjoy the career path and viewed it as a step down from her teaching goal. From 2017 onward, Ms. Allen attempted various service and hospitality jobs. She tried housekeeping at a hotel but lasted only two to three shifts because tasks such as making beds and cleaning bathrooms increased her pain from a baseline of four or five out of ten to nine out of ten after a shift. She then worked briefly at a call centre, Best Buy, and St. Louis Bar & Grill in Moncton, where she sometimes worked shortened or split shifts due to pain and ultimately was dismissed after switching a shift without approval because she felt unable to work a full late-night shift. Later she worked at Boston Pizza, Dooly’s, and St. Louis Bar & Grill in Halifax and Dartmouth, with several positions ending due to missed shifts or workplace incidents, including an accusation of theft that she denied. She testified that physical pain and mental health problems significantly affected her ability to keep jobs. In August 2018 she moved to Halifax to live with her mother, hoping for a better environment for her mental health. She continued to experience severe depression, could often not envision a future for herself, and relied on her mother for financial support and help with household tasks. During the COVID-19 pandemic, she reported deteriorating mental health, disordered eating, medication changes, and increased alcohol consumption, which she ceased in November 2022. By the time of trial, she had not worked since 2021 and was financially dependent on her parents. She reported chronic daily neck and back pain that had worsened over time, usually at six out of ten, with significant flare-ups during repetitive activity. She managed pain with stretching, physiotherapy exercises, heat, over-the-counter medication, and daily cannabis. She continued to experience depression, anxiety, PTSD, and survivor’s guilt, with sensory triggers reminding her of the accident. Her life became quiet and isolated, and she expressed little confidence about returning to work or education and pessimism about improvement.

Expert evidence on injuries, capacity, and prognosis

The Court heard evidence from several experts. Dr. Babin described Ms. Allen’s pre-accident depression as mild, situational, and improving, with minimal impact on functioning, and testified that post-accident she developed chronic daily pain and significantly worsened depression and anxiety. She prescribed cognitive behavioural therapy and several medications (including Celexa, Cymbalta, Clonazepam, Flexeril, and Zopiclone) and noted periods of partial remission when Ms. Allen adhered to treatment. She concluded that chronic pain, anxiety, and PTSD arising after the accident significantly limited Ms. Allen’s ability to work and that even sedentary employment would require accommodations such as frequent position changes and allowances for impaired concentration. Psychologist Nathalie Babineau-Ross testified that Ms. Allen did not have a disabling pre-accident mental health condition and that her pre-accident issues were typical, non-disabling adolescent challenges. She diagnosed ongoing PTSD, depression, and anxiety following the accident, confirmed by standardized psychometric testing, and concluded that these conditions seriously interfere with Ms. Allen’s capacity to maintain gainful employment. She recommended ongoing psychological treatment. Neuropsychologist Dr. Erica Baker testified that Ms. Allen sustained a concussion or mild traumatic brain injury in the accident and diagnosed Mild Neurocognitive Disorder. Testing showed average intelligence and academic functioning but significant deficits in verbal learning, immediate memory, attention, and executive function, with initial learning scores in the second percentile. She diagnosed Major Depressive Disorder, Persistent Depressive Disorder, Generalized Anxiety Disorder, panic attacks, PTSD related directly to the collision, and post-accident eating and substance use disorders (in remission). Dr. Baker testified that although accommodations could support some post-secondary study, chronic pain, PTSD, anxiety, and depression would remain major barriers and that she was not comfortable saying it was probable Ms. Allen could maintain long-term employment. Orthopedic surgeon Dr. Leighton confirmed the severity of the spinal and pelvic injuries, the necessity of fusion surgery at C6–C7, and the likelihood of chronic pain and long-term functional limitations. He considered sedentary or light work more appropriate than physically demanding work and expressed cautious optimism that Ms. Allen might pursue some education or teaching work from an orthopedic (but not psychological) perspective, with accommodations. Physiotherapist and Functional Capacity Evaluator Vanita Malhotra conducted a Functional Capacity Evaluation and concluded that while Ms. Allen’s strength was not severely reduced and her effort was high, her positional tolerances and endurance were significantly impaired. She testified that Ms. Allen does not meet the functional profile of a sedentary worker because of limited sitting tolerance, difficulty with sustained neck posture, cumulative pain, dizziness, headaches, and declining concentration over time, and that required workplace accommodations would be akin to a customized job that is not realistic. She doubted Ms. Allen could sustain academic studies or employment over the long term and opined that a teaching career is unrealistic given the physical and cognitive demands. Life care planner Linda Stanley prepared a life care plan and cost of future care assessment, translating medical findings into practical supports and costs. She recommended modalities including heating pads, massage therapy, supervised exercise with a kinesiologist, gym access, an adjustable bed and mattress, ongoing psychological therapy, pedorthist consultation and supportive footwear, assistive devices for housekeeping, and periodic help with heavier home tasks. She concluded that Ms. Allen’s accident-related physical pain, PTSD, anxiety, depression, and sleep disturbance significantly impair her independent functioning and that she requires ongoing supports. Forensic accountant Jarrett Reaume quantified economic losses based on the assumption that Ms. Allen would have begun university in September 2016 and entered the teaching profession by fall 2022, progressing from 30% to 70% to 100% of full-time income over three years, with retirement at age 60. He calculated past income loss from September 2022 to April 30, 2025, future income loss, pension loss, future care costs, and valuable services, using a Bond Yield Curve discount method and presenting optional adjustments for mortality related to traumatic brain injury and smoking. The Court declined to apply a smoking-related mortality adjustment because there was no direct admissible evidence from Ms. Allen that she smokes tobacco.

Defence expert evidence and the Court’s preference

Defence physiatrist Dr. Edwin Hanada and psychiatrist Dr. Allan Peterkin each conducted a single independent assessment. Dr. Hanada accepted that Ms. Allen sustained fractures at C6–C7, T5, and the pelvis, and that imaging and neurosurgical follow-up showed good healing and no activity restrictions. He diagnosed myofascial pain and opined that, given the time elapsed and the location of pain complaints, her current pain was more likely related to deconditioning, posture, or lifestyle than to the accident, though he acknowledged it was possible the pain was related to the trauma. He considered her prognosis favourable from a physical medicine standpoint and believed she was physically able to work in sedentary or light-duty positions with typical accommodations. Defence psychiatrist Dr. Peterkin conducted an assessment largely by telephone (about 40 of 60–65 minutes) without standardized psychometric tools, and did not retain his handwritten notes or drafts. He suggested that Ms. Allen had significant pre-accident psychological vulnerabilities, including chronic depression, possible ADHD, and possible Cluster B personality traits, although he acknowledged that some of these were not formally diagnosed in the medical records and were at the level of differential diagnosis. He concluded that, at the time of his assessment, Ms. Allen did not have active PTSD or an accident-related psychiatric disorder and described her condition as adjustment disorder in significant remission, stating that she reported feeling “great” and that her main limitations were physical. He opined that she was psychiatrically capable of returning to school and work. The Court reviewed all expert testimony and assigned significant weight to experts who evaluated Ms. Allen over longer periods or used standardized tools, including Drs. Babin, Babineau-Ross, Baker, Leighton, and Ms. Malhotra. It found their evidence reliable, internally consistent, and supported by lay witnesses. The Court accepted from Dr. Hanada that fractures had healed and there was no ongoing neurological deficit and from Dr. Peterkin that psychiatric symptoms can fluctuate over time, but gave limited weight to their broader conclusions that ongoing impairments were probably not related to the accident or that she retained capacity for sustained full-time work or education.

Causation, thin skull, and mitigation

The defendant admitted liability for the accident but disputed that Ms. Allen’s present physical and psychological problems were caused by the collision, arguing that healed fractures, time elapsed, pre-existing vulnerabilities, other life stressors, and her work and study history broke or weakened the causal link. Relying mainly on Trainor v. DeArcos and related authorities, the Court set out that once factual causation is established, the key question is whether the type of injury is too remote, focusing on whether the general type of harm was a reasonably foreseeable result of the negligent conduct for a person of ordinary fortitude. It stated that a defendant need not foresee the exact development of injury; it is sufficient that the general harm is foreseeable, and then the thin skull principle applies: the defendant takes the plaintiff as found, and pre-existing vulnerabilities do not reduce recovery unless there is evidence that the same impairment would likely have occurred in any event. Applying this framework, the Court held that chronic pain and psychological injury are recognized, reasonably foreseeable consequences of serious motor vehicle accidents and are not remote. Ms. Allen’s pre-existing mental health history did not defeat causation, because the accident materially contributed to the development or worsening of chronic pain and psychological symptoms. The defence’s reliance on her post-accident work and academic performance did not prove recovery; the Court noted that attempts to work or study and periods of partial functioning do not equal full recovery and, in this case, demonstrated effort rather than restored capacity. The Court concluded, on a balance of probabilities, that the accident caused permanent physical, psychological, and neurocognitive impairments that have interacted over time, substantially diminishing Ms. Allen’s functional abilities, independence, and earning capacity. On mitigation, the defence argued that Ms. Allen failed to mitigate by not maintaining employment after 2021, withdrawing from NBCC despite high grades, and being inconsistent with antidepressant medication adherence. The Court found that she had made reasonable efforts to treat and manage her condition through physiotherapy, massage therapy, psychological counselling, exercise, numerous job attempts, and enrollment at NBCC. It noted her tendency toward stoicism and minimization of symptoms. Referring to authorities on mitigation, the Court held that the defendant had not proven that further or different steps would probably have reduced her damages, and it therefore rejected the mitigation defence.

Seatbelt reduction under the Insurance Act

The Court addressed Ms. Allen’s admitted non-use of a seatbelt. She testified that she was not wearing a seatbelt at the time of the collision and realized this shortly before impact. Evidence established that the vehicle was mechanically sound and that functioning seatbelts were available to all occupants. The Court noted that Ms. Allen presented no evidence that failure to wear a seatbelt did not contribute to her injuries and that the evidence indicated her spinal and pelvic fractures were likely related to being ejected at high speed. The Court was satisfied her injuries would likely have been far less severe had she been restrained. Under s. 265.2(1) of the Insurance Act, RSNB 1973, c I-12, it held that Ms. Allen’s damages must be reduced by 25 percent and applied that reduction to all compensatory damages.

Findings on work capacity and loss of earning power

On the issue of work capacity, the Court carefully considered the combined effects of chronic pain, positional intolerance, cognitive fatigue, and psychological injuries. It accepted evidence from Dr. Babin that Ms. Allen consistently attempted to return to work and did not exhibit symptom magnification or work avoidance, and from Ms. Babineau-Ross that PTSD, depression, anxiety, and chronic pain significantly interfered with her ability to maintain employment. Dr. Baker testified that Ms. Allen faces barriers across many jobs because physical pain limits options, cognitive deficits hinder learning and multitasking, and PTSD and anxiety affect functioning in socially demanding or overstimulating environments. Ms. Malhotra concluded that Ms. Allen does not satisfy the functional profile for even sedentary work due to limited sitting tolerance, difficulty maintaining neck posture, cumulative pain, dizziness, headaches, and declining concentration, and that the level of workplace accommodation required would not be practical. The defence pointed to Ms. Allen’s past ability to perform housekeeping and waitressing roles and her good grades at NBCC as evidence of residual capacity. The Court did not accept this, viewing these as short-lived efforts that demonstrated motivation and resilience rather than sustainable capacity. It concluded that Ms. Allen is unable to sustain full-time sedentary employment, including remote work, and that remote roles would still involve prolonged computer use aggravating her symptoms. While Dr. Baker saw a possibility of some improvement with trauma-focused therapy and pain management, she was not prepared to say it was probable that Ms. Allen could maintain long-term employment. The Court held that, considering the evidence as a whole, there is a real and substantial chance that Ms. Allen will not be able to return to the workforce and that she does not retain a meaningful residual earning capacity. It further found that her pre-accident plan to pursue a teaching career was reasonable and likely would have been realized but for the accident.

Quantification of damages

The Court adopted April 30, 2025 as the cut-off date between past and future losses, consistent with Mr. Reaume’s calculations. It relied on his economic analysis along with the medical and functional evidence to quantify damages in several categories. For general non-pecuniary damages, the Court considered the catastrophic nature of the accident, Ms. Allen’s multiple fractures, chronic pain, PTSD, depression, anxiety, cognitive impairments, young age at injury (18), and the impact on her independence, sports, work, and educational plans. After reviewing comparable case law and adjusting for inflation, it awarded $200,000.00 in general damages, subject to the 25% seatbelt reduction. For past income loss, Mr. Reaume began calculations in 2022 on the assumption that Ms. Allen would have entered the teaching workforce in fall 2022, with earlier student-period earnings treated as a wash. He defined the period from September 2022 to April 30, 2025 and assumed a gradual ramp-up of income from 30% to 70% to 100% of full-time earnings. Using the Bond Yield Curve and mortality adjustment for traumatic brain injury, he calculated past loss of income at $74,262; the Court awarded $72,262 for past income loss, subject to the seatbelt reduction. For future income loss from May 1, 2025 forward, assuming Ms. Allen has no residual earning capacity, the Court accepted Mr. Reaume’s calculation of $2,139,210, again subject to the 25% reduction. For pension loss under the New Brunswick Teachers’ Pension Plan, Mr. Reaume calculated that, but for the accident, Ms. Allen would have received a lifetime annual pension of $41,674 and $58,268 from age 60 to 65 including a bridge benefit. Using the Bond Yield Curve and deducting saved pension contributions of $213,161 from a gross loss of $598,619, he arrived at a net pension loss of $385,457. The Court accepted this figure, subject to the statutory reduction. For cost of future care and future valuable services, the Court relied on Ms. Stanley’s structured categories. Under Category 1 (projected modalities), it allowed a reduced one-time cost of $4,692 (excluding travel to Moncton for therapy) and an annual expense of $11,275 to age 80, producing a total of $366,572 using the Bond Yield Curve and traumatic brain injury multiplier, less 25%. Under Category 2 (aids and services), it accepted a one-time cost of $5,000 for an adjustable bed and mattress and annual aids totaling $1,261.50 to age 80, yielding $45,488.85 before the 25% reduction. Under Category 3 (drugs and supply needs), the Court accepted an annual medication cost of $2,518.56 to age 80 for prescribed medications but excluded cannabis because it had not been prescribed by a treating physician; this produced $80,835.00 before reduction. Under Category 4 (household services), it excluded snow removal, lawn maintenance, and general house maintenance as speculative but accepted annual expenses of $644 for cleaning-related services to age 80, which, with a Bond Yield Curve/traumatic brain injury multiplier of 32.0407, yielded $20,634.21 before reduction. It declined additional projected case management and occupational therapy costs tied to university or employment, given its finding that Ms. Allen is unlikely to return to school or work. For past loss of valuable services, the Court accepted Ms. Stanley’s staged calculations, awarding $2,882.88 for the three weeks immediately after the accident (21 days at eight hours per day), $8,236.80 for November 2015 to December 2016 (60 weeks at eight hours per week), and $14,222.21 for January 2017 to April 2025 (414.4 weeks at two hours per week), for a total of $25,341.85, rounded to $25,342.00, subject to the 25% reduction.

Outcome and total monetary award

In the conclusion, the Court summarized all heads of damages and costs. It ordered the defendant, Joshua John Doiron, liable to pay Ms. Allen the following amounts before the statutory reduction: General Non-Pecuniary Damages $200,000.00; Past Loss Income $72,262.00; Past Loss of Valuable Services $25,342.00; Future Loss of Income $2,139,210.00; Loss of Pension $385,457.00; Cost of Future Care $492,895.00; Future Valuable Services $20,634.00, for a subtotal of $3,335,800.00. It then applied the 25% seatbelt reduction of $833,950.00 pursuant to s. 265.2(1) of the Insurance Act and added Costs + HST (Tariff “A” Scale 3) of $91,345.00, resulting in a total damage award of $2,593,195.00 in favour of the plaintiff, Kelsey Jean Allen.