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How serious must a serious impairment be?

Case Study

Domenic D. Nicassio
Domenic D. Nicassio
Associate Lawyer

November 2016

By Domenic D. Nicassio, Associate Lawyer


How “serious” does a “serious impairment” have to be for a Plaintiff to pass the threshold under section 267.5 of the Insurance Act?

A recently released appeal decision of the Divisional Court provides useful guidance on the pitfalls awaiting Plaintiffs in their attempts to establish a threshold injury. The appeal decision was released by the Divisional Court on October 27, 2016.

The Plaintiff, Mr. Mohammad Mohammad Ayub, had been involved in a rear-end collision on June 3, 2009. The Defendant admitted liability. There was reportedly minimal damage to the vehicle. At the scene of the accident, the Plaintiff felt dizziness and pain. He was assisted by an ambulance, and radiological studies at a hospital confirmed that nothing was fractured.

After the 2009 accident, the Plaintiff developed a chronic pain type of syndrome. The Plaintiff’s doctors at trial were Dr. Blitzer and Dr. Berbrayer. The Defendant relied upon the medical opinion of Dr. Devlin. Remarkably, the Defendant at trial agreed that the Plaintiff’s condition was permanent, and all three experts agreed that the Plaintiff was suffering from chronic pain of some form or another. The Defendants even conceded that the Plaintiff had adduced evidence of impaired functions as a result of headaches and back pain “with consequential difficulties associated with movement, sleep and mood.

The determinative issue for the trial judge was the severity of that impairment and the effect on the Plaintiff’s lifestyle.

The trial took place the week of March 12, 2015, and a jury awarded the Plaintiff $25,000 for general damages and $5,000 for future health care expenses. Nothing was awarded for income loss due inter alia to the fact that there was insufficient evidence on the issue for a jury to consider.

The jury deliberated and the trial judge heard the threshold motion. The trial judge dismissed the action on the basis that the threshold had not been met. The determinative issue for the trial judge was the severity of that impairment and the effect on the Plaintiff’s lifestyle.

The Plaintiff’s evidence of his pre-accident daily routine was described as “unspecified and vague.” The trial judge found one piece of consistent evidence for the pre-and post-collision time periods, and that was the Plaintiff’s attendance at an ESL course:

"As the Plaintiff never repaired his vehicle and did not purchase a new vehicle until very recently, I find that whatever limitations the Plaintiff was experiencing post-collision did not hinder or limit his ability to physically leave his house, travel to the ESL courses (presumably by public transportation), attend the courses, carry out whatever tasks were necessary, and complete any tests or examination. To the extent that the ESL course could constitute 'regular training' there was no evidence that the Plaintiff's chronic pain interfered with his ability to continue and eventually complete that training," [emphasis added].

Furthermore, there was evidence that the Plaintiff continued albeit with pain, to participate in household activities. Ultimately the Plaintiff failed to establish that his pain substantially interfered with his activities:

While the Plaintiff no doubt suffers from the lingering effects of the collision, I do not accept that there has been a ‘substantial inference’ as a result of the collision given that, inter alia, he was able to complete the ESL course without incident, or at least without evidence tendered at trial showing any difficulty in doing so.”

The Divisional Court found no error of law or fact in the conclusion. The jury’s minimal award was rendered irrelevant in light of the threshold decision.

Summary

Whatever “serious impairment” means for the purpose of a threshold motion, it cannot mean that a Plaintiff continues with an activity without substantial interference or as seems to have occurred in this case, without any interference at all.

Read the full case decision and the appeal from the Canlii site.

 

 

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