The effects of motor vehicle accident injuries range in a wide variety and can impact lives in many different ways. Sustained injuries can impair an individual’s ability to work, enjoy life or even perform basic day-to-day functions. The big question here, and one which is most concerning to courts and insurance companies is whether or not the injury suffered by the claimant is serious enough to meet the “threshold” as specified by the amended s.267.5(5) of the Insurance Act.
There has been much said about the implementation of Bill 198 in 2003 and the Ontario government’s mandate to ‘tighten up’ on the definitions of ‘serious and permanent’ injury. At its inception, Bill 198 was speculated to bring in an objective standard to threshold analysis, but as seen in the cases that followed, the court’s interpretation has remained very much a subjective one in line with previous authority. In this week’s blog entry we explore what constitutes a ‘serious impairment’ for victims of motor vehicle accidents and how it affects their ability to make a successful tort claim. “Threshold” and Bill 198 With the political issue of sky-rocketing premiums in the 1990s for motor vehicle insurance, Ontario Legislature has adopted a series of amendments of the Insurance Act to try and reduce the large amount of costly whiplash claims. The intention was to restrict tort claims by weeding out the smaller ones. The denial of compensation in tort accident victims with smaller claims was to be balanced with more generous first party benefits payable without fault. Those amendments gave birth in Ontario to what came to be known as the “no-fault motor vehicle insurance”. Bill 59, which applied to all accidents after November 1, 1996, amended that section to provide that an owner of an automobile is not liable in an action for damages for non-pecuniary loss unless the claimant had sustained “permanent, serious impairment of an important physical, mental or psychological function”.
Despite the anticipation of a much stricter regime by many, much of the Bill 59 amendments have been carried on into Bill 198 which applies to all accidents that have occurred since October 1, 2003. Those amendments did not change the language of the threshold of entitlement to recover non-pecuniary general damages. Rather, Bill 198 demanded a higher evidentiary burden as to whether or not a permanent injury did indeed occur. In order to do so, the Bill went into greater detail than its predecessor by defining which impairments are serious, what functions are important and the meaning of permanent. Thus, if one is to meet the threshold, the following must be demonstrated:
- The impairment must substantially interfere with usual activities of daily living, considering the person’s age.
- To be an important function, the function must be important to the usual activities of daily living, considering the persons age.
- For the impairment to be permanent, it must have been continuous since the incident, and must, based on the medical evidence, be expected not to substantially improve as well as continue to meet the criteria in paragraph 1, and the nature that is expected to continue without substantial improvement when sustained by persons in similar circumstances.
Ontario Court’s Interpretation of the Bill 198 Threshold Despite the amendments, the Court of Appeal case of Meyer v Bright (1993) (a Bill 59 ruling) still remains the lens by which courts gauge the threshold. It can be argued that Bill 198 was little more than a codification of the factors regarding permanency, impairment and its serious effect on bodily function expressed in Meyer. The changes that did occur came in the form of more framed definitions of the terms and prescription of the evidence required to meet the threshold. The investigation now required that an injured person prove to the court that the impairment complained of substantially interferes with his or her ability to continue with their former employment or training despite reasonable attempts at accommodation and that the impairment has been continuous since the accident. The Plaintiff is also required to convince the court that based on medical evidence, the impairment is expected to continue despite reasonable treatment, and that such an impairment would be expected for others in “similar circumstances.” It has been argued that this last part of the test introduces an objective component not present in Meyer, however, review of some of the Bill’s jurisprudence suggests that the Courts have been reluctant to import an objective analysis in considering this issue (see cases below). In terms of “importance” of the impairment to the individual, the Court of Appeal in Meyer directed that the term must be considered in the context of the Plaintiff as a whole.
For the impairment to be “important” it must play a major role in the health and well-being of that person. Bill 198 amendments added a functional component to the analysis and mandated that in order to satisfy the “important” requirement the Plaintiff must suffer an impairment of a function which is necessary for the Plaintiff in order to allow him or her to perform the “essential” tasks of regular employment, training, care or well being or important to the usual activities of daily life. With regards to “seriousness” the Ontario Court of Appeal held that the question to be considered is whether the impairment is serious to the person in issue, taking into account his or her unique characteristics and held that as a general proposition. Thus, a serious impairment is one that causes substantial interference with the ability of the injured person to perform his or her usual daily activities or continue employment. Determining the seriousness of an injury is a subjective exercise to which the authority in Meyer still remains instrumental. In Meyer, the court made an illustration through a hypothetical example of two violinists who have lost their small left finger.
The first, an amateur violinist who plays for his own amusement, might not have his life seriously impaired, nor will the quality of his performance seriously suffer. On the other hand, for a highly skilled professional concert violinist, the impairment may detrimentally affect performance to such a degree that the person can no longer attain the level of competence necessary to the continuance of a professional career. In such cases, the court may find the impairment to be a serious one. Yet again if the impairment was sustained by the same person but only after he or she had retired and decided not to play the violin anymore, a court may consider the impairment not to be a serious one. Thus, what makes an injury serious is as unique as the victims of motor vehicle accidents. For further illustration we turn to some recent cases of injuries sustained after October 1, 2003. Guerrero v Fakuda (2008) Guerrero was the first case since the implementation of Bill 198 that successfully crossed the threshold. Here the plaintiff had suffered whiplash injuries which left her with pain in her upper and lower back. Her whiplash injury had persisted after the accident, consistent throughout the hearings. Consequently, she was unable to work full-time. In his decision, Justice Little wrote that ‘pain and its degree of severity are subjective and can exist without any objective finding – calling an expert to say that no objective finding equals no point is no longer acceptable…that same expert will often treat the pain that exists even though it is without objective finding’.
The Plaintiff was only able to perform part-time work and suffered lifestyle restrictions, which detrimentally altered her ability to work and her enjoyment of life, and as such met the threshold. Sherman v Guckelsberger (2008) Plaintiff sustained soft tissue injuries, and complained of headaches, and neck pain, as well as numbness and tingling in the little and ring fingers of her right hand. She worked as an office administrator for a family physician, working eight hours per day. Within weeks of the accident, she returned to work on a part-time basis, followed by full-time soon after. After two years of full-time work the plaintiff had reduced her hours of work, still feeling the effects of her injuries. However, she still remained active outside of work, regularly going to the gym and enjoyed camping. Justice Milanetti, taking in the full context of the effects of the injuries on the Plaintiff’s life determined that the ongoing pain and discomfort was not sufficient to get her over the threshold, given that the “increasing specificity of the no fault legislation”. Sabourin v Dominion of Canada General Insurance Company (2009) In Sabourin another case of whiplash injury, soft tissue damage was caused and limited the range of motion in the plaintiff’s neck and shoulders.
The Plaintiff claimed that she had difficulty taking care of herself and maintaining hygiene, communication in terms of speaking, reading or writing and physical activities such as standing, sitting, walking, driving/riding in a vehicle. The court examined injuries from two points of view. First by asking the question whether or not the plaintiff was able to prove on the balance of probabilities as per s.4.2(1)1(iii) of Bill 198 that she was experiencing pain that substantially interfered with most of her activities of daily living. Second, was the impact of the pain and discomfort significantly reducing her quality of life? With regards to the former, the plaintiff failed to satisfy the court that most of her life was hindered by the injuries, but was successful in earning $40,000 in general damages with respect to the latter. Conclusion While Bill 198 has specified some additional evidentiary hurdles when it comes to assessing the injury threshold, the current and past case law maintains a subjective approach. Furthermore, unless there is a decision that goes past the appellate level, Meyer will likely continue to hold weight in court’s interpretation of facts. The type of injury, current physical capacity, work status, age and lifestyle can all factor in when embarking on a tort claim. If you are unsure whether or not your injuries meet the threshold, consult our motor vehicle injury experts at Edson Legal.