Law Times

LaW TIMeS • OCTOBeR 19, 2015 Page 11 www.lawtimesnews.com Court clarifies threshold requirement Judge emphasizes 'the effect of the injury' rather than labels BY MARG. BRUINEMAN For Law Times recent decision from the Superior Court of Justice further refines the threshold require- ments in tort actions arising from motor vehicle accidents involving a claim of a permanent injury. Malfara v. Vukojevic em- phasizes that the burden falls upon the plaintiff to prove the requirements under the decade- old obligation. And although it's specific to the case, there's a re- quirement that the injury must have a notable impact upon the claimant's daily routine. Accident victims seeking gen- eral damages for pain and suffer- ing must meet a threshold under the Insurance Act for incidents occurring after Oct. 1, 2003. The injury must comprise a perma- nent and serious impairment of an important physical, mental or psychological function. That often includes showing that the accident has had an im- pact on an individual's ability to work. Claimants must also show reasonable efforts to accom- modate the impairments and that they've tried to access avail- able assistance. In addition, the test requires that the injury has substantially interfered with the claimant's daily living. Mark Stoiko, a personal in- jury lawyer at Galan Law, points out that someone in their 20s may recover from an injury more easily than someone in their 50s, meaning an individual's age and circumstances could well play a role in the final determination. Decisions on the threshold issue are quite fact specific, he says, noting it's important to carefully weigh any detrimental evidence when assessing a plaintiff 's claim and determining a feasible litigation strategy. In Malfara, Justice Stephen Firestone discussed the thresh- old test and what's necessary to satisfy it. In addition to evi- dence to support the claim of a sustained permanent and seri- ous impairment, the court re- quires medical evidence from a physician that corroborates the change in the individual's abil- ity to function. Noting that litigation is al- ways a risk for both sides, Stoiko emphasized the need to scru- tinize the plaintiff 's individual circumstances to determine whether the injuries will meet threshold. He notes there may be other pertinent details for assessing the plaintiff 's claim aside from the threshold issue. In Malfara, the plaintiff of- fered little evidence to show that his injuries impaired his abil- ity to work. Giuseppe Malfara was completing his plumbing apprenticeship at the age of 24 when he was in a crash that led to neck and ongoing back pain that he said was chronic. He returned to work after two to three weeks while in pain. He became a fully licensed plumber and his income increased. A jury awarded Giuseppe Malfara $7,700 for general dam- ages and $1,326 for past loss of income. But while the jury was deliberating, counsel for the de- fendants, Nikola and Ranko Vu- kojevic, made a threshold mo- tion seeking to bar the plaintiff 's claim for non-pecuniary loss on the basis that the injuries didn't meet the requirements. "It is important to recognize that it is 'the effect of the injury' on the person and not the 'type of injury' or labels attached to it which should be the focus of the threshold analysis. The effects of chronic pain are just as real and just as likely to meet or not meet the threshold as any other type of injury or impairment. It all depends on the manner in which the plaintiff has been im- pacted. The threshold determi- nation is to be done on a case by case basis," wrote Firestone. The goal of the test is to make that avenue available only to those who require it, says Brown & Burnes civil litigator Catie Fenn. "What this decision specifical- ly states, I think is important, is on a case-by-case basis," says Fenn. "It has to do with their overall life and their overall function- ing. To maintain the integrity of the system, I think we need a de- cision like this to ensure not ev- ery single injury is compensated through tort." She refers to Jennings v. La- tendresse, a case in which a careful examination of the case determined whether or not the plaintiff had met the threshold. Fenn finds Firestone has em- phasized that approach in pre- vious cases and seeks, with this one, to clarify the test. A concussion, for example, doesn't necessarily mean the plaintiff has met the necessary threshold. Every confirmation of the threshold test, however, is also a disappointment for plaintiffs' counsel, says Tkatch & Associ- ates personal injury lawyer Em- ily Casey. She says that while the latest case provides a nice overview of the current state of the law, the whole concept of requiring someone to meet the threshold as well as the application of a deductible in awards is f lawed. While Malfara was unable to meet the test, Casey says it always surprises her to hear that some- one who suffers from an ongo- ing and permanent injury has received no compensation. "He still doesn't possess the threshold because he's still going on with his life," says Casey. "That, in general to me . . . is an unfair piece of legislation. It's significant that other provinces don't have thresholds like this." LT FOCUS A lawtimesnews.com Get more online Darcy Merkur brings a plaintiff-side perspective on insurance matters in his regular online column, Personal Injury Law CANADA & USA 1.800.265.8381 | EMAIL info@mckellar.com | www.mckellar.com The reason why we are Canada's largest and most comprehensive structured settlement firm has everything to do with our passion for service and performance— without exaggeration, we make life easier for you. The world's most popular website is visited over 3.5 billion times per day. Almost as accessible as McKellar. Untitled-3 1 2015-10-15 12:58 PM

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