Waller v. Brown, 2022 ONSC 3510
Facts of the Case
Jaqueline Waller (the “Plaintiff”) was injured in a motor vehicle accident (the “Accident”) on October 28, 2015. Ryan and Karen Brown (the “Defendants”) admitted liability at trial in 2021. However, they disputed the subsequent finding that Ms. Waller’s injuries surpassed the “threshold” of severity, entitling her to general damages. In this case, presided over by Justice K. Muszynski, the Browns sought to appeal the Court’s earlier finding and related assessment for damages.
Issues in the Case
At issue was whether Ms. Waller sustained “threshold” injuries, which are defined as “permanent serious impairment of an important physical, mental, or psychological function”  as a result of the Accident.
Also at issue was the assessment of related damages, in particular for general damages, income loss, housekeeping/ home maintenance, future care costs, out-of-pocket expenses, and an investment management fee.
Justice Muszynski found that Ms. Waller did indeed sustain a threshold injury as a result of the accident and found her to be entitled to damages totaling $343,365.72 plus significant unspecified damages for future income loss and future care costs. These unspecified costs are to be determined following separate counsel deliberations and, failing a successful deliberation, individual submissions to the Court for determination by the Judge. Justice Muszynski also awarded 5% of the total award amount to be provided to cover investment management fees.
Ms. Waller testified that she was driving her vehicle on the afternoon of October 28, 2015, when the Defendants struck her. She described the impact as “significant,” giving evidence that the left side of her body was “smashed” against the inside of her vehicle.  Ms. Waller was transported by ambulance to Belleville General Hospital where she was x-rayed, diagnosed with soft tissue injuries, and released into the care of her husband. 
Despite follow-up treatment, Ms. Waller continued to experience chronic pain, especially at work. She needed to take regular sick days and vacation days to recover. Continuing to work eventually led to “bone crushing” fatigue that did not abate. Ms. Waller was eventually diagnosed with chronic pain and ultimately stopped working altogether in October of 2016.
Ms. Waller claimed that the Accident had a dramatic impact on her life. Before the Accident, she had an excellent employment record as a social worker, was an active and busy wife and mother, and regularly enjoyed recreational sports. After the Accident, she was no longer able to participate in sports, was unable to plan, organize, and fully engage in family trips, and despite efforts to remain social, required frequent rests that limited her ability to participate in the activities she used to enjoy. Ms. Waller claims that she now experiences “chronic widespread pain that treatments and therapies do not relieve to any significant degree, along with other cognitive and psychological impairments.” 
The Defendants argued that Ms. Waller’s ongoing medical problems were unrelated to the Accident and were instead the result of pre-accident medical issues and the side effects of medications used to treat them. They also claimed that her medical problems were exacerbated by a post-accident fall that occurred in 2020. While the Defendants did not dispute that she was entitled to modest damages from the Accident, they did dispute the claim of a threshold injury and the related damages claimed.
In a motor vehicle accident case in Ontario, to recover general damages a plaintiff must prove that they have suffered a permanent serious impairment of an important physical, mental, or psychological function as a result of the accident, also known as a “threshold” injury. 
To be considered serious and important, the impairment must substantially interfere with the person’s ability to maintain their regular employment and/or continue training for a career in a field in which the person was being trained before the incident, despite efforts to accommodate. Alternatively, the impairment must also substantially interfere with most of the usual activities of daily living, and their ability to provide for their own care or well-being, bearing in mind the person’s age. For the impairment to be considered permanent, it must have been continuous since the incident, based on medical evidence, and not be expected to substantially improve, despite treatments. 
Evidence – Ms. Waller
Ms. Waller gave evidence of her inability to continue working in her current profession due to her post-accident physical limitations despite numerous treatments. These treatments included physiotherapy, a rheumatologist consultation, Lyme disease testing, nerve block injections, lidocaine infusions, an MRI, several x-rays and ultrasounds, prescription medications, massage therapy, chiropractic treatment, cognitive behavioral therapy, use of CBD oil, referral to a sleep clinic and a consultation with an ENT specialist. 
She also gave evidence of her inability to continue playing softball, a sport she had played every year of her adult life. She had attempted to resume this activity after the Accident but could not do so without “significant discomfort,” and so she eventually stopped.
Friends noted that pre-accident, Ms. Waller was very social and energetic and regularly organized adventurous family camping trips. After the accident she continued camping but took on a more passive role in the planning. She could not fully participate in the related activities, as she required daily naps.
Friends and family members described that, after the Accident, she changed from a “social butterfly,” and “the life of the party,” to “withdrawn,” and “less accessible as a friend.” They claim she went from an “organizer and a doer,” to an “observer.”  A long-time co-worker testified that she was shocked by the post-accident changes to Ms. Waller, both physically and socially, claiming she went from “full of life,” to “puffy and uncomfortable,” seeming to be overwhelmed and unable to focus. 
Justice Muszynski found the evidence presented at trial by Ms. Waller both credible and reliable, and stated: “I accept that Ms. Waller’s daily life is impacted significantly by her accident-related impairments.” 
Evidence at Trial – Physical Impairments
Dr. Gail Delaney, a physiatrist retained by the plaintiff, found that Ms. Waller’s accident-related injuries (whiplash, injuries to her shoulder and SI joint, secondary myofascial pain, and tinnitus) were “serious and permanent and, while she may get some improvement with further treatment, she will experience injury related complaints and limitations indefinitely.” Dr. Delaney asserted that “Ms. Waller’s accident-related injuries interfere with her ability to carry on her career, interact with her family, be social, and her ability to do housekeeping and home maintenance tasks.”  Additional testimony by other treating physicians corroborated Ms. Waller’s claims of chronic pain and her inability to continue as before the Accident.
Evidence at Trial – Cognitive Impairments / Psychological Impairments
Assessors for the Plaintiff (Dr. Gow) and the Defendants (Dr. Freedman) both agreed that it was unlikely that Ms. Waller sustained a traumatic brain injury in the accident that would have directly resulted in ongoing neurocognitive impairments.
Dr. Freedman concluded that as there was no neurotrauma sustained in the accident, Ms. Waller was therefore never neurocognitively impaired. However, Dr. Gow countered that cognitive impairment could have resulted from “accident-related chronic pain and sleep difficulties, or even attributable to a traumatic axonal (nerve) injury from her whiplash,” and diagnosed Ms. Waller with mild neurocognitive disorder, major depressive disorder, and anxiety. 
A psycho-vocational assessment determined that Ms. Waller did indeed exhibit symptoms of “somatic symptom disorder, with predominant pain, major depressive disorder and features of post-traumatic stress disorder and features of a driving phobia,”  further corroborating the severity of her impairments.
Justice Muszynski accepted evidence that Ms. Waller’s impairments were “accident-related and likely attributable to her chronic pain and fatigue.” 
Pre-Accident Medical History
The Defendants argued that Ms. Waller’s symptoms resulted to some extent from her pre-accident medical history which included earlier knee surgery and prescriptions for headaches, a UTI, joint pain, general fatigue, and a fall in 2020.
Justice Muszynski was not convinced by the Defendants’ testimony as Ms. Waller’s pre-accident medical appointments were infrequent and her related issues had previously been resolved, as was confirmed by medical records.
The Defendants argued that Ms. Waller’s use of alcohol and prescription drugs contributed to her medical issues by exacerbating her symptoms. Justice Muszynski found that while Ms. Waller’s use of alcohol and prescription drugs could contribute to her symptoms of fatigue and brain fog, it did not seem likely that her ongoing symptomology would be related since Ms. Waller had abstained from alcohol for two years after the accident; this abstention had not alleviated her symptoms.
“Threshold” – Analysis
Ultimately, Justice Muszynski rejected the defendants’ submission that Ms. Waller’s impairments were caused by factors other than the Accident. Justice Muszynski also rejected the defendants’ position that Ms. Waller’s impairment did not qualify as “important” under the regulations and found that evidence of her functional impairments satisfied the regulations. Justice Muszynski states that: “Accordingly, I find that Ms. Waller has sustained a permanent serious impairment of an important physical, mental or psychological function as a result of the October 28, 2015 accident. The defendants’ threshold motion is dismissed”. 
Counsel for the Plaintiff requested general damages of $150,000. Counsel for the Defendants claimed that, if it was found that Ms. Waller surpassed the threshold, she should be entitled to between $40,000 and $80,000. Referencing both precedent and the impact of the Accident on Ms. Waller’s life, Justice Muszynski assessed general damages at $100,000.
Justice Muszynski was also awarded $38,371 for past income loss and $201,294.72 for housekeeping, lawn care, gardening, and seasonal care tasks. Out-of-pocket expenses were awarded at $3,700. Additionally, 5% of the total final award would be awarded to cover the cost of a professional investment manager.
Due to the complex calculation of future income loss and care costs, Justice Muszynski provided a guideline and advised that both parties work together, along with an expert witness, Matthew Krofchick, to reach an agreement and advise the Court. If an agreement could not be met, parties must then file individual submissions to the court by a pre-determined date at which time the Judge would make a final determination.
Source consulted: Waller v. Brown, 2022 ONSC 3510 (CanLII)