Last month in the Ontario Superior Court of Justice, the defendant in a personal injury action stemming from a car accident contested the severity of the plaintiff’s sustained injuries (see: Persaud v. Bascom, 2021 ONSC 4398). The defendant denied that the plaintiff sustained injuries as a result of the accident that rendered the plaintiff permanently impaired.
In a personal injury action, how do courts distinguish between the definitions of permanent vs. temporary physical injuries and serious vs. trivial injuries? What damages can a plaintiff seek in a personal injury claim?
Classifying Damages for Personal Injuries
In accordance with Ontario’s Insurance Act, defendants in personal injury claims arising from injuries sustained in motor vehicle collisions are only liable for non-pecuniary damages incurred by the plaintiff (e.g. pain and suffering, emotional distress, etc.) if they have sustained a permanent, serious disfigurement or permanent, serious impairment of an important physical, mental, or psychological function.
To determine whether the plaintiff (i.e. the injured accident victim) is entitled to pursue non-pecuniary damages from the defendant (i.e. the at-fault driver whose negligence caused the accident), the following sequential questions must be answered in the affirmative:
- Has the injured party sustained permanent impairment of a physical, mental or psychological function?
- If yes, is the permanently impaired bodily function an important one?
- If yes, is the bodily function’s impairment serious?
This test– enumerated in Meyer v. Bright— can be ambiguous for a few reasons. In personal injury claims, the plaintiff has the burden of proof and must present evidence proving that their injuries meet the necessary requirements to qualify for non-pecuniary damages. To do so, the plaintiff may be required to present expert testimony from a physician regarding the nature and permanence of their impairment and the specific bodily function that has been impaired.
But, what is the difference between important and trivial bodily functions, and how does the legislature define the terms “serious,” and “disfigurement?”
Distinguishing Severity Level and Permanence of Serious Medical Injuries
An impairment is considered permanent if it lasts into the indefinite future, has been continuous since the date of the accident, and is not expected to substantially improve.
An impairment is considered serious if it substantially interferes with the accident victim’s ability to continue regular employment despite reasonable accommodation efforts. An impairment is also considered to be serious if it prevents an injured person from completing professional training, or if it interferes with their ability to perform functional activities of daily living, such as personal hygiene or cooking meals without assistance.
An impairment’s seriousness is not determined simply by the nature of the injury itself, but by the degree to which the accident victim’s daily life is impaired, and the degree to which their quality of life has been diminished as a result. A permanent injury that does not wholly prevent a person from completing tasks, but instead causes them severe pain, limited range of motion, or difficulty sleeping is considered to be serious, as well.
What does this mean for plaintiffs who allege that they have sustained serious, permanent injuries as a result of a car accident?
The Court relies on expert testimony from qualified physicians who can attest to the plaintiff’s decreased level of functionality and their diminished ability to complete routine daily activities without pain from the date of the collision. Testimonies from the plaintiff’s loved ones may also be presented, illuminating their newly acquired physical difficulties as a result of the injuries they sustained in an accident.
In the case of Persaud v. Bascom, the Court dismissed the defendant’s motion alleging that the plaintiff’s injury was not serious. This case emphasises the importance of statutory definitions in personal injury cases, and illustrates the kinds of evidence of impairment used in the Court’s analysis. It also demonstrates the importance of keeping medical records, attending prescribed appointments, following a plan of care, documenting pain levels, and maintaining records regarding an accident victim’s ability or inability to complete daily tasks.
Contact the Ontario Personal Injury Lawyers at Preszler Injury Lawyers
If you or a loved one suffered a grievous or catastrophic injury due to another person’s negligence, you may be entitled to compensation. Since non-pecuniary damages are only awarded if a plaintiff’s injuries meet the standard for severity and permanence, consulting with an Ontario personal injury lawyer can be critical.
With decades of combined experience handling a range of personal injury cases, Preszler Injury Lawyers are dedicated to pursuing justice on behalf of the clients we represent. Call us today to schedule a free initial consultation.