Law Times

Page 8 February 12, 2018 • Law Times www.lawtimesnews.com Plaintiffs must prove chronic pain is serious impairment BY SHANNON KARI For Law Times T wo recent decisions of the Ontario Supe- rior Court in so-called "threshold motions" suggest that it is still a high legal bar to show that chronic pain suffered by plaintiffs after a mo- tor vehicle accident will meet the "serious impairment" standard set out in the provincial Insur- ance Act. The judges decided in favour of the defence in both rulings and found that the plaintiffs' claim failed either on the issue of causation or that the impairment suffered as a result of the accident did not meet the definition of "serious" as set out in the statute. In Grieves v. Parsons, the ongoing pain suffered by a truck driver was not directly a result of a motorcycle accident, ruled Justice Robert Charney in dis- missing the plaintiff 's claim for non-pecuniary damages In Nadarajah v. Aviva Can- ada Inc., Justice Patrick Mona- han concluded that, while the soft-tissue pains suffered by the plaintiff as a result of the acci- dent were "no doubt unpleasant and perhaps frustrating," they were still tolerable. As a result, his claim for general damages was barred by the provisions of the Insurance Act. When assessing chronic pain or injuries that did not re- sult in obvious disfigurement, there will be a "high burden" for plaintiffs, says William Jesseau, who acted for the defence in the Nadarajah proceeding. "The evolution of the thresh- old test has been consistently re- tightened," says Jesseau, a part- ner at Smockum Zarnett LLP in Toronto. "There has to be substantial interference with most of the plaintiff 's activities," he adds. Jordan Dunlop, co-counsel for the defendants in Grieves, says that, while many of these cases are "fact specific," the reg- ulations for the statute spell out what a plaintiff is going to need to prove to be successful. "There is also going to need to be a direct line between the injuries and the impairment," says Dunlop, a lawyer at Zuber & Company LLP in Toronto. The Insurance Act states that occupants of a vehicle and any- one present at a motor vehicle accident are not liable for dam- ages for non-pecuniary loss un- less the injured person has died or there is "permanent serious disfigurement" or "permanent serious impairment of an im- portant physical, mental or psy- chological function." For a bodily function to be important, "it must play a major role in the health, general well- being and way of life of the par- ticular injured plaintiff," wrote Monahan in his decision. The plaintiff in that case suf- fered soft-tissue strain to part of his left shoulder that would likely be long term and result in some loss of motion and strength, the judge found. How- ever, the impairment does not "substantially interfere" with his ability to carry out his duties at work, said Monahan. The plaintiff also testified that he no longer plays cricket, al- though the Superior Court judge stated that this was from damage to the right shoulder, which was not injured in the accident. "Further, Mr. Nadarajah did not explain how the limitations resulting from his accident- related injuries have limited his ability to cook, to do groceries, or to attend social gatherings, none of which would neces- sarily involve heavy lifting, overhead activity or repetitive or forceful use of the left upper extremity against resistance," wrote Monahan. "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 rea- sons outlined above, I am unable to find that the plaintiff has met the burden of establishing that the limitations to his bodily func- tions arising from the collision meet the statutory test of 'impor- tant' or 'serious,'" the judge wrote. The seriousness of injuries such as soft-tissue strains will often depend on the credibility of the plaintiff 's testimony, says Jesseau. "If the pain experienced is chronic, felt every day and has prevented most routine activi- ties, that is beyond tolerable," he explains. Also, if regular pain medica- tion is required or family mem- bers are needed to assist with ba- sic daily routines, that may meet the threshold, he adds. Still, the impairment needs to be "clearly delineated" by the plaintiff and connected to the "caused injuries," Jesseau stresses. He adds that where plaintiffs may lose credibility is when they attempt to suggest other bodily discomforts have been caused by the accident. In the Grieves case, the plain- tiff, who was 51 years old at the time of the accident, testified that he could no longer work as a truck driver or ride motorcycles for recreation as a result of his injuries. He was seeking more than $1.1 million in total damages. The jury awarded a total of $200,000 in damages, including the $50,000 that was the subject of the threshold motion. Charney accepted that the plaintiff could no longer work as a truck driver. The judge found, however, that it was the pain of osteoarthritis in his shoulder, not caused by the accident, that led to the plaintiff no longer driving a truck, a number of years after the accident. Both sides in the case pre- sented medical evidence at trial and the judge stated that he pre- ferred the conclusions of the de- fence experts. Pre-existing conditions could be considered in assess- ing whether a plaintiff meets the statutory test, says Dunlop. "You are going to have to show that your injuries made it worse. You need the evidence to prove this," she says. LT FOCUS ON Personal Injury Law Jordan Dunlop says the regulations in the provin- cial Insurance Act spell out what a plaintiff is going to need to prove to be success- ful in a threshold motion. 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