Chronic Pain and Depression meet Threshold for Non-pecuniary Damages

Under Ontario’s Insurance Act, a person seeking damages against a negligent driver for non-pecuniary losses must have sustained injuries that meet a prescribed threshold. In such cases, the defendant and their insurer may move for a declaration that the plaintiff’s injuries do not meet the severity threshold under the Act, commonly known as a ‘threshold motion’.   Specifically, section 267.5(5) of the Insurance Act states that to meet the threshold, the injured person will have died or sustained permanent serious disfigurement, or permanent serious impairment of an important physical, mental or psychological function.  This threshold for the severity of one’s injuries applies only for non-pecuniary or general damages, which entails losses that are non-monetary such as a loss of enjoyment in life, or for pain and suffering.

To meet the criteria of a serious impairment, a person’s injury or disability must:

• substantially interfere with their ability to continue their regular employment, despite reasonable attempts to accommodate their impairment, or
• substantially interfere with their ability to continue to train in their chosen career, despite reasonable attempts to accommodate the impairment, or
• substantially interfere with most of the person’s normal activities of daily living.

An ‘important’ function is one that is necessary in performing the essential aspects of a person’s regular job, for training/education in their career, in their daily care or in the completion of their normal daily activities. A ‘permanent’ impairment is one that has been ongoing since the accident despite the plaintiff’s participation in recommended medical treatment, and one which is not expected to significantly improve in the future.

In a recent case, Cobb v Long Estate, the injured plaintiff, Mr. Cobb, was involved in a front-end collision caused by an impaired driver.  He sought damages for past and future income loss, house maintenance, and non-pecuniary damages, and his wife claimed damages under the Family Law Act.  In a previous trial by jury, the court awarded the plaintiff $220,000 in damages.  In a subsequent action, the defendant brought a threshold motion arguing that the plaintiff’s injuries were not a permanent and serious impairment of an important bodily function.  Negligence had already been established on the part of the 'at fault' driver, so the judge in this case was tasked with deciding whether to uphold or dismiss the defence’s threshold motion.

Immediately following the accident, Mr. Cobb felt pain in his back and neck, and also experienced a persistent headache.  A CT scan in the hospital indicated no broken bones. The plaintiff had recently established his own construction company and was in the process of a home restoration project.  Due to pain, he was not able to return to work in the two weeks after the accident; however, he then felt obligated to get back to his job despite the pain.  After returning to work, his condition began to worsen in terms of not sleeping, soreness and tightness in his body, and pain in his neck, back and face.

A physiatrist testifying on behalf of the plaintiff explained that during the moment of impact, the force of the collision travelled up the plaintiff’s right leg and into his sacroiliac joint, likely caused the lower back pain the plaintiff continues to suffer on his right side.  The force that makes our head jerk back and forth during a collision and when the airbag is deployed can cause injury to the facet joints.  Even seven years after the accident, the plaintiff continues to have pain despite receiving ongoing treatment, which is likely the result of the injury to his joints.  Mr. Cobb found he was no longer able to do heavy lifting, but could only lift objects of a medium weight and only for a short period of time. Although he is right hand dominant, his right arm is now weaker than his left.  Former co-workers testified that the plaintiff was not the capable person he used to be and can no longer work at his pre-accident employment.

The victim’s wife testified that her husband was fundamentally changed by the accident. In addition to chronic pain, the injured man suffers from depression and has at times exhibited suicidal tendencies.  A psychologist and psychiatrist testified that he suffers from major depressive disorder.  In addition to accident trauma and chronic pain, Mr. Cobb had lost a daughter to cancer in the year before the accident which may have made him more vulnerable to a psychological condition.   

The judge in Cobb was satisfied that the plaintiff suffered a serious and permanent impairment of an important bodily function, and thus the threshold motion was dismissed.  The basis for the judge's decision is that the plaintiff continues to suffer from chronic pain and diminished physical strength and consequently, cannot perform the physical requirements associated with his job, now seven years from the date of the accident.  He also believed it unlikely that the plaintiff’s injuries would substantially improve, and thus his impairment is permanent. 

Whether or not a plaintiff’s injuries meet the threshold defined in the Insurance Act will depend on the facts of the case, and every case is by no means the same.  Generally, a case is judged on the credibility of witnesses and the strength of medical testimony.  In cases where the plaintiff does not seem credible and honest in the reporting of their injuries, they are less likely to be believed and accordingly, a threshold motion is more likely to be upheld.  A commonality in cases where an injury is found to meet the threshold is where the key medical expert for the plaintiff is thorough and objective and where the plaintiff appears forthright and not prone to exaggerate their symptoms.   Plaintiffs should also have been seen to follow the advice of their physicians.   Finally, as in Cobb, a plaintiff needs to show evidence that they are unable to participate in, and carry out activities that they were able to do prior to the accident.