Car accident victims in Ontario face an uphill struggle in court.
Car accident victims in Ontario face an uphill struggle when it comes to seeking damages from a negligent driver. First, the victim has to collect evidence and present it in a tort claim in court to prove the negligent driver is liable. Then, even after the other driver’s fault has been established, Ontario limits pain and suffering damages (also known as non-pecuniary damages) with its “verbal threshold” and statutory deductible.
The verbal threshold is satisfied only if the victim dies, suffers “permanent serious disfigurement,” or sustains a “permanent serious impairment of an important physical, mental or psychological function.” If a judge doesn’t think a victim’s injuries meet that standard, the victim can’t recover non-pecuniary damages.
But even if the verbal threshold is met, the statutory deductible often significantly limits pain and suffering damage awards. As of 2018, the deductible is $37,983.33. It applies to non-pecuniary damage awards of $126,610.07 or less.
To illustrate, let’s say that a person meets the “permanent serious impairment” verbal threshold and the trial court assesses non-pecuniary damages of $100,000. Since this is below $126,610.07, the court would subtract $37,983.33 from the award, leaving the victim with a final non-pecuniary damages of $62,016.67. In contrast, if the court assessed damages of $200,000, the victim would receive the entire amount, as this exceeds the statutory deductible threshold.
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Rodrigues v. Purtill: Addressing Psychological Injuries Following a Tragic Drunk-Driving Crash
Now let’s look at a more practical illustration. This is taken from a recent decision by the Ontario Superior Court of Justice. It is a tragic, yet sadly all-too-common scenario in Canada: A drunk driver runs a red-light at an intersection and collides with another vehicle, killing one passenger and seriously injuring the others.
There was no dispute as to the defendant’s liability. The only question for the Superior Court to decide was the amount of the victims’ damages. The case was tried before Justice P.B. Hockin of the Superior Court this past February. He issued his judgment on June 26, 2018.
Most of Justice Hockin’s reasons addressed the claims of the driver of the victims’ car (whom we will identify here as “the plaintiff” for the sake of clarity). The plaintiff was transporting herself, her husband, and their three children in the City of Woodstock. As noted above, while she was going through an intersection with a green light, the defendant–who was intoxicated–ran a red light and collided with her car.
The collision killed one of the plaintiff’s children and seriously injured the plaintiff and the other surviving family members.
The plaintiff presented evidence of her physical and psychological injuries arising from the accident. Her physical injuries included neck, back, and leg pain. The psychological injuries largely revolved around the death of her son in the accident. He was just five months old at the time, and as one would expect, the mother testified that she has experienced significant anguish and grief.
Non-Pecuniary Injuries and the Statutory Threshold
There was more to the story: The plaintiff also testified that after her son’s death, she was determined to have another child despite her age–she is in her 40s–and the fact her husband had a vasectomy, which he had reversed. They were able to conceive a baby, but it was lost due to miscarriage, and subsequent attempts at conception failed. All of this led the plaintiff to suffer a “poor self-image” and “loss of intimacy” with her husband.
Additionally, she cited the emotional strain of attending the criminal trial of the defendant, who was convicted of drinking and driving and sentenced to prison. Finally, the plaintiff testified that she abandoned her intentions to return to work as a veterinary assistant following the accident.
Two psychiatrists examined the plaintiff, one hired by her and the other by the defence. As you might expect, the defence expert said that while the plaintiff “continues to experience a natural albeit longstanding grief reaction arising from the death of her son,” her mental injury “does not meet the threshold” required by Ontario law.
The plaintiff’s expert disagreed, stating she clearly suffered from post-traumatic stress disorder and major depressive disorder, which constituted a “permanent and serious impairment of an important mental or psychological function.”
Justice Hockin ultimately found the plaintiff’s expert more persuasive. He held the plaintiff established she “sustained a permanent serious impairment.” Separately, the court found that the plaintiff also sustained a serious physical impairment, noting that it is more than 10 years since the accident and she continues to suffer from lower back pain.
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Deductible Limits Pain and Suffering & Family Law Act Damages
Justice Hockin awarded the plaintiff $145,000 in non-pecuniary damages. Because this exceeded the deductible threshold, she was entitled to the full amount. In addition, the plaintiff received more than $300,000 in damages for her past and future loss of income.
Finally, the court awarded $130,000 in damages under the Ontario Family Law Act. This statute provides for compensation to family members of a person killed by the negligence of another (called a wrongful death). Depending on when the accident happened and the amount of damages, the Family Law Act may also impose a deductible. Since this accident pre-dated statutory changes that were made in September 2010, deductibles were applied.
In this case, the plaintiff was entitled to compensation for the death of her infant son. Altogether, the Court awarded the plaintiff $583,500 in damages.
The other family members also received damages, although some of their awards were subject to the deductibles. For example, the two surviving children were each initially awarded $65,000 in non-pecuniary damages, but that was reduced to $27,000 each. The husband and children also received Family Law Act damages related to the plaintiff’s injuries. In total, they received $244,000 in damages after a combined $171,000 in statutory deductibles.
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Let Preszler Law Firm Help Your Family
It is terrible enough to lose a child or family member in a car accident. And as you can see, Ontario law does not make things easier for the survivors. Victims need to jump through a number of legal hoops just to receive some measure of compensation for their incalculable loss.
This is why it is so critical to work with an experienced Toronto personal injury lawyer when pursuing claims for non-pecuniary damages or compensation under the Family Law Act. The lawyers at Preszler Law Firm can assist you and your family in seeking and recovering damages. Call us today to schedule a free, no-obligation consultation.
Source:
CanLII.org
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