A person who is seriously injured in a motor vehicle accident may sue the ‘at fault’ driver for pain and suffering and loss of enjoyment of life (general damages).  These damages refer to losses that cannot be measured in terms of a dollar amount.  Although not financial losses, pain and suffering associated with a serious injury can substantially impact a person’s life and their ability to participate in activities they enjoyed before they were injured.

In order to be eligible to receive compensation for pain and suffering, an accident victim’s injury must meet a “threshold” test defined in Ontario’s Insurance Act, under section 267.5, as follows.

In Ontario, anyone involved in a motor vehicle accident, including the car owner, passengers, cyclists and pedestrians, is not entitled to general damages for pain and suffering and loss of enjoyment of life unless that person has a:

• permanent serious disfigurement (such as scarring, burning, etc.); or
• permanent serious impairment of an important physical, mental or psychological function”.

What qualifies as a serious and permanent impairment?

In order to be considered a permanent and serious impairment, the injuries must interefere with a person’s ability work, go to school, continue in a training program, or interfere with their ability to perform most of their usual daily activities.

How does the court decide an impairment is ‘permanent’?

A permanent impairment is one that has been continuous since the accident and is not expected to substantially improve, despite the person taking reasonable steps to participate in recommended treatment. The Courts have interpreted “permanent” to mean “indefinite”. In other words, a doctor may not be able to predict that the injury and impairments will be permanent, but may say something like, “It is unclear if and when there will be improvement.” This will satisfy the permanent part of the test.

Your case must be substantiated by solid medical evidence 

A determination of a permanent and serious impairment of an important physical, mental or psychological function is based on credible and professional medical evidence, documented by one or more physicians. The medical practitioners who contribute the medical evidence must be trained and experienced in the type of impairment for which they are providing evidence. The medical evidence presented must be within accepted medical standards and guidelines. The medical expert(s) will generally be required to testify on the nature of the injury, the permanence of the injury, a specific function that is impaired, and the importance of that function to the person. The physician who is providing expert opinion will also be required to state a conclusion that the specific impairment resulted from an injury sustained in the motor vehicle accident.

Proving an impairment is ‘serious’, ‘permanent’ and ‘important’

In a civil trial for damages arising from a motor vehicle accident, while the jury is deliberating on its verdict, it is common for the judge to decide whether the plaintiff’s injury meets the threshold test of permanent and serious.

In a June 2016 trial, Mamado v. Fridson, an accident victim sought special damages (for her financial losses) and general damages (for pain and suffering), for injuries she sustained as a backseat passenger.  The 27-year-old accident victim was involved in a multi-vehicle collision in which her car was hit from the back, side, and front. There was strong medical evidence presented that the woman’s injuries are permanent.  Her injuries, as diagnosed by a medical doctor and psychologist include sprain and strain injuries of her spine and limbs, knee contusion and dysfunction, post-traumatic insomnia, headaches, chronic pain disorder, flares of degenerative disc disease in the spine, major depressive disorder, pain disorder and post-traumatic stress disorder. Several medical practitioners testified on behalf of the plaintiff, that while she would benefit from treatment, her injuries were not likely to improve.

The judge in Mamado noted, “in determining whether the bodily function which has been impaired is important, the court must consider its importance to the injured person in question”.  It was clear that the woman’s employment and academic pursuits were substantially impacted by her impairments. She was forced to drop out of her university program because she lacked the necessary stamina and mental concentration. There were a number of witnesses from the plaintiff’s work and family, as well as physicians, who presented credible testimony detailing how dramatically the injured woman’s life deteriorated since the accident. The judge, in this case, concluded that the plaintiff met the statutory threshold of sustaining a serious impairment of an important physical, mental and psychological function.

If you or a loved one were seriously injured in a motor vehicle accident, call Burn Tucker Lachaîne to find out about your legal right to seek compensation.  In a no-obligation consultation, we can assess the facts of your case and provide an opinion on the type of damages you are eligible to claim.   Every case is unique and our experienced lawyers will need to examine the details of your case in order to properly assess what level of compensation you may be entitled to.

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