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Does My Auto Accident Injury Qualify as a “Permanent Impairment”?

In Ontario, a negligent driver is not automatically liable for the “pain and suffering” or other non-pecuniary damages sustained by a car accident victim. The Ontario Insurance Act expressly states a driver is not responsible for such damages unless one of two exceptions apply:

  • The first exception is for accidents in which the victim suffered a “permanent serious disfigurement.”
  • The second exception applies in cases of “permanent serious impairment of an important physical, mental or psychological function.”

A defendant in a personal injury lawsuit may bring what is known as a “threshold motion,” essentially a judicial declaration that the plaintiff’s injuries do not qualify for either of the exceptions contained in the Insurance Act, thus barring them from recovering any non-pecuniary damages.

  • An injury caused by a motor vehicle accident can give rise to pain and suffering and other non-pecuniary damages if it involves a permanent serious impairment of an important physical, mental, or psychological function.
  • The defendant in a case can challenge an award of non-pecuniary damages by filing a threshold motion–even after a jury returns its verdict.
  • Proving that an injury meets the threshold for non-pecuniary damages requires careful documentation of an injury and its impact on the plaintiff’s life and livelihood.

O’Brien v. O’Brien: Accident Leaves Driver Dead, Passenger with Severe Ankle Fracture

Here is a recent example of how Ontario courts deal with threshold motions. The plaintiff in this case was seriously injured while riding as a passenger in his uncle’s truck. At the time, the two men were returning home from a hunting trip in Thunder Bay. The plaintiff was asleep–and tragically, so was his uncle.

The uncle fell asleep at the wheel, and the truck subsequently collided with another vehicle travelling in the opposite direction. The uncle died as a result of the crash.

As for the plaintiff, he sustained a serious left ankle fracture that required surgery. According to a medical expert who later testified in court, this particular type of ankle injury means the plaintiff is at higher risk for developing “ankle arthritis, subsequent surgery,” and other complications.

The accident also caused the plaintiff to suffer post-traumatic stress disorder (PTSD) and exacerbated a pre-existing lower back problem.

Court Denies Defence’s Threshold Motion

The plaintiff sued his uncle’s estate for damages. The Ontario Superior Court of Justice submitted the case to a jury. Because the defence admitted liability for causing the accident, the only contested issue was the amount of the plaintiff’s damages.

The jury returned a verdict of $50,000 in general damages, $30,000 for the plaintiff’s past loss of income, and approximately $6,000 for future care costs. The award of general damages was significantly lower than what the plaintiff sought, but slightly more than suggested by the defence.

Following the jury verdict, the defence filed a threshold motion, arguing that any damages for non-pecuniary loss should not be allowed because the plaintiff did not qualify for either of the statutory exceptions described in the Insurance Act. Justice Michael K. McKelvey of the Superior Court denied the threshold motion in a decision issued on July 31, 2018.

The main issue here, the Court explained, was the second exception–i.e., whether the plaintiff suffered a “permanent serious impairment of an important physical, mental or psychological function.”

Court: Injury Caused Permanent Impairment to Victim’s Employment . . .

Ontario insurance regulations provide the legal standards for defining such impairments. First, the impairment itself must “substantially interfere” with the victim’s ability to continue his or her pre-accident employment, pre-accident training for employment, or “usual activities of daily living.”

Second, the impairment must be “permanent,” which the regulations define as “continuous since the incident” and “expected not to substantially improve” according to the available medical evidence.

In this case, Justice McKelvey dismissed the plaintiff’s PTSD and aggravated lower back injury as permanent impairments since both were medically controllable. The Court therefore focused on the plaintiff’s ankle fracture. At trial, the plaintiff’s doctor testified the fracture caused a “fixed flexion deformity” in the plaintiff’s ankle.

In practical terms, this means the plaintiff now has an “abnormal gait” and is limited in his “ability to do heavy activities,” climb stairs, and walk on uneven surfaces. Furthermore, the plaintiff’s condition is medically expected to deteriorate over time, which will likely force him to leave his current job within the next five years.

Given all this, Justice McKelvey concluded the plaintiff sustained a permanent impairment. But the Insurance Act requires further proof that such an impairment interferes with the plaintiff’s employment or daily living. With respect to employment, the Court concluded such interference existed.

In doing so, the judge said he disagreed with the jury, whose verdict “does suggest that in its view [the plaintiff’s] employment prospects were not affected in a significant way by the motor vehicle accident.”

To the contrary, Justice McKelvey again pointed to the doctor’s testimony that the plaintiff would eventually need to “transition to another more sedentary position as the condition of his ankle deteriorates over time.” The defence argued that the plaintiff could not pass a threshold motion based on a “future inability to continue working.” The judge disagreed, noting there was no Ontario case law supporting the defence’s argument.

. . . But Not Daily Living

However, the Court agreed with the defence that the plaintiff’s ankle injury did not constitute a permanent impairment as far as his “usual activities of daily living” were concerned. On this point, the plaintiff’s main claim was that his ability to hunt and fish–two of his primary recreation activities prior to the accident–were significantly limited due to his ankle injury.

Although Justice McKelvey acknowledged these limitations, he also pointed out the hunting season is only about three weeks per year, which did not qualify it as a daily activity.

Contact Preszler Injury Lawyers if You Have Been Injured in an Ontario Auto Accident

Cases like this one illustrate the importance of carefully documenting all of your accident-related injuries and how they affect your daily ability to work and live your life.

Many people are reluctant to gather such evidence because they fear people will think they are a “complainer” or exaggerating their injuries. In fact, the judge in this case noted that witnesses described the plaintiff as “not a complainer,” and someone who made every effort to overcome his accident-related injuries.

But it is also not in your best interest to underplay or minimize legitimate injuries and limitations.

If you have been in an auto accident and require legal advice on the appropriate next steps, contact the personal injury lawyers at Preszler Injury Lawyers to schedule a free, no-obligation consultation.



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