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Actions for Personal Injury or Death Arising from Car Accidents – Part II

Sep 01 2018

Actions for Personal Injury or Death Arising from Car Accidents – Part II

DAMAGES FOR PAIN AND SUFFERING

(a) THRESHOLD

In exchange for statutory accident benefits (discussed in previous posts such as this one), all claims for health care expense and pain and suffering losses (non-pecuniary losses), arising from a car accident in Ontario, are subject to what is often referred to as the “threshold”. This is established by s.267.5(3)-(5) of the Insurance Act and absolves an owner or driver of the at-fault vehicle of liability for the victim’s pain and suffering and/or health care expenses, unless the victim either died or (a) sustained a permanent serious disfigurement or (b) a permanent serious impairment of an important physical, mental or psychological function. In other words, “threshold” does not apply to fatality claims.

NOTE that the threshold and limitations in income loss claim, outlined above, do not apply if (a) the at-fault party is insured by an insurance company that is not licensed to undertake automobile insurance in Ontario unless that insurer has filed an undertaking under s.226.1 of the Insurance Act or (b) the at-fault party is public transportation company and the public transit vehicle did not collide with another automobile or any other object in the accident.

Threshold is determined in accordance with applicable laws and regulations, including clause 4.2 of O.Reg. 461/96, which defines the following important provisions as follows:

An “impairment” must,

(A) 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 and the person’s reasonable efforts to use the accommodation to allow the person to continue employment;

(B) Substantially interfere with the person’s ability to continue training for a career in a field which the person was being trained before the incident, despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue his or her career training, or

(C) Substantially interfere with most of the usual activities of daily living, considering the person’s age.

important function”: for a function impaired to be an important function, it must

(A) Be necessary to perform the activities that are essential tasks of the person’s regular or usual employment, taking into account reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue employment;

(B) Be necessary to perform the activities that are essential tasks of the person’s training for a career in a field in which the person was being trained before the incident, taking into account reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue his or her career training;

(C) Be necessary for the person to provide for his or her own care or well-being, or

(D) Be important to the usual activities of daily living, considering the person’s age.

permanent”: for an impairment to be permanent it must,

(A) Have been continuous since the incident and must, based on medical evidence and subject to the person reasonably participating in the recommended treatment of the impairment, be expected not to substantially improve;

(B) Continue to meet the criteria in paragraph (a) above; and,

(C) Be of a nature that is expected to continue without substantial improvement when sustained by persons in similar circumstances.

EVIDENCE RE THRESHOLD

Within the past couple of decades, the role of experts has become more and more prominent, not only in personal injury actions but substantially all civil litigation claims. There are large and small industries and organizations whose sole function is to provide or just facilitate expert opinions in personal injury actions. In fact, it is required by law for the plaintiffs to adduce evidence of at least one physician in support of their claim. Clause 4.3 of O.Reg. 461/96 outlines the specific requirements of the physician’s opinion in support of plaintiff’s claim regarding threshold. In fact, clause 4.3 of the said regulation outlines particulars of the evidence a plaintiff must adduce to support his or her claim that the injuries meet the threshold.

The Plaintiff must adduce the evidence of one or more physician that explains

  • the nature of impairment
  • the permanence of the impairment,
  • the specific function that is impaired, and
  • the importance of the specific function to the person.

 

The physician must be someone who is trained for and experienced in the assessment or treatment of the type of impairment that is alleged and his or her evidence must be based on medical evidence, in accordance with the generally accepted guidelines or standards of the practice of medicine.

The physician’s report must include a conclusion regarding causation, i.e. that the impairment is directly or indirectly caused by the accident. It is considered a mandatory and ongoing gatekeeper function of trial judges to ensure that all of the expert opinion evidence admitted in a trial of personal injuries resulting from car accident are fair, objective and non-partisan.

Moreover, the plaintiff must adduce evidence, in addition to that of the physician, corroborating the changes in his or her function that is alleged to be a permanent serious impairment of an important physical, mental, or psychological function. With respect to the corroborating evidence it has been held that the Plaintiff is required to introduce corroborating evidence, other than his or her own personal evidence.[1]

The rules and regulations regarding admission of expert witness evidence at trial are largely governed by Rule 53.03 of Rules of Civil Procedure, R.R.O. 1990, Reg. 194.

[1] See for example Gyorffy v. Drury (2013), 116 O.R. (3d) 387.

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Haghani-Law
Milad@HaghaniLaw.ca
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