There are three major components of every personal injury case: liability, threshold, and finally, the quantification of damages.
This article will look at the Court's recent consideration of threshold in motor vehicle accident ("MVA") claims.
Background
In MVAs, the question of liability can be relatively straightforward. Did the defendant strike the plaintiff, causing the plaintiff to sustain injuries? If so, we turn to the consideration of threshold.
Threshold considers whether the plaintiff's injuries constitute a permanent, serious impairment of an important physical, mental or psychological function as required under subsection 267.5(5) of the Insurance Act, RSO 1990, c I.8 (the "Act"). Put another way, the question is whether the injuries sustained are sufficiently severe to warrant the awarding of damage awards under the Act.
Facts of Recent Case
In the recent case Davis v NG, 2024 ONSC 6159, the Ontario Superior Court of Justice set out a variety of considerations in assessing threshold in MVA claims. The essential facts are these:
- The plaintiff sustained a mild traumatic brain injury as a result of a motorcycle versus motor vehicle collision.
- Prior to the MVA, the plaintiff was extremely active, sociable and skilled at her job.
- Following the MVA, the plaintiff suffered persistent post-concussion symptoms significantly impacting her daily functioning.
- At trial, counsel for the defendants argued that the plaintiff had failed to establish that she had sustained a permanent, serious impairment of an important physical, mental, or psychological function as a result of the MVA.
Outcome
Ultimately, the court held that the plaintiff met threshold. While she did not meet threshold with respect to her losses' impact on her employment, she did meet threshold with respect to her social and recreational functioning. This means that a claim and proceed where a plaintiff's level of impairment on one ground, rather than all, is permanent and serious within the meaning of the Act.
The Court preferred the plaintiff's expert reports detailing her persistent injuries and impairments over the assessments of the defendant's experts. On this basis, it found that the plaintiff's symptoms, including headaches, neck pain, memory deficits, and concentration difficulties, which have persisted for seven years following the MVA, met threshold and are unlikely to improve.
Furthermore, the Court held that despite the plaintiff's return to work and ability to perform the essential tasks of her employment, her impairments continue to interfere with core aspects of the plaintiff's pre-MVA life.
In short, while the Court's evaluation of what constitutes an "important function" will turn on the facts of each case, at the heart of every claim is the extent of the losses' detrimental effects on the particular plaintiff's life.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
