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What will cause an automobile tort claim to flop?

Case Comment: Nadarajah v. Aviva Canada

January 2018

What kind of evidence is likely to cause an automobile tort claim to flop?

A threshold decision of Justice P. J. Monahan released December 13, 2017, provides useful guidance on the issue.1

The circumstances will sound familiar to insurers and their counsel.

Case Details

  • The Plaintiff was a 47-year old man who sustained a soft-tissue injury in a motor vehicle accident occurring on March 24, 2010.
  • He was struck from behind and liability was not an issue.
  • He did not experience any pain for the first thirty minutes after the crash.
  • As the weeks passed he reported symptoms of shoulder and back pain to his doctor.
  • A year after the accident his shoulder pain continued.
  • The Plaintiff was working as a general labourer before the accident.
  • He remained off work for approximately two years.
  • He returned to work on a part-time basis in 2012, and by the fall of 2013, he had returned to full-time work as an assembler.

All defence and Plaintiff experts were in agreement that the Plaintiff had sustained injury to his left shoulder as a result of the accident.

it was the “important” and “serious” part of the threshold that caused the Plaintiff's case to fail.

One defence expert (Dr. T. Axelrod) agreed that the pain would continue on a long-term basis.

Ultimately, however, it was the “important” and “serious” part of the threshold2 that caused the Plaintiff's case to fail.

Justice Monahan noted the following about the available evidence:

  • The Plaintiff's shoulder pain varied and was “not constant.” There were times when the pain diminished or went away.
  • The Plaintiff had worked on a full-time basis after the accident and his work-reviews were favourable, with no accommodation needed from the employer.
  • The Plaintiff claimed to be unable to continue at a new and “enhanced” workplace position. This did not help him. The threshold3 required the Court to measure the impact of his shoulder injury on his pre-accident employment.
  • He continued to do yard-work but only on a “reduced basis.”
  • He found it “difficult” to kneel or sit at church and had to “reduce” his attendance.
  • He participated in “fewer” social activities but the evidence on this issue was ambiguous.
  • He was able to perform all tasks of routine personal hygiene.

Like other decisions of this kind, the case highlights what insurers should be looking for in the discovery and negotiation process. Evidence that an injury does not “substantially interfere” with a person's usual activities or pre-accident employment is unlikely to be accepted as a “serious impairment” under s.267.5(5) of the Insurance Act. The trial Judge wrote:

I have no doubt that Mr. Nadarajah has experienced soft-tissue pain and will continue to experience such pain into the indefinite future. But for the reasons outlined above, I am unable to find that the Plaintiff has met the burden of establishing that the limitations to his bodily functions arising from the collision meet the statutory test of ‘important' or ‘serious.' The impacts are no doubt unpleasant and perhaps frustrating but, in my view, do not rise above the tolerable.”4

Read the full case decision.


1 The Jury awarded the Plaintiff $15,000 in general damages for sustaining a minor soft-tissue injury. As this was below the statutory deductible it can be inferred that the Plaintiff did not recover any damages.
2
Pursuant to s.267.5 of the Insurance Act, the Plaintiff was required to satisfy on a balance of probabilities the following test: 1. That the injured person sustained a permanent impairment of a bodily function; 2. If the answer to 1 is yes, is the bodily function which is permanently impaired an important one; 3. If the answer to question 2 is yes, is the impairment of the bodily function serious.
3 “The impairment must substantially interfere with the person's ability to continue his or her regular or usual employment, despite reasonable efforts to accommodate the person's impairment ...” Section 4.2(1)(1), Ontario Regulation 461/96.
4 Nadarajah v. Aviva Canada, 2017 ONSC 7522 (CanLII), at para.42.


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