A negligent party or driver is not liable for damages for a non-pecuniary loss resulting from a motor vehicle accident unless the injured person died or sustained a “permanent serious disfigurement” or a “permanent serious impairment of an important physical, mental or psychological function”, as defined under Ontario’s Insurance Act (1990) section 267.5(5). This regulation requires that a plaintiff in a personal injury claim has the onus of proving, on the balance of probabilities, that their injuries meet the statutory threshold set out in the Act, in order to be eligible for non-pecuniary damages.
Non-pecuniary damages, also known as general damages, are intended to award a plaintiff for their non-monetary losses, such as pain and suffering, a loss of enjoyment in life, and inconveniences caused by their injury. As asserted in Parypa v. Wickware (1999), a plaintiff is entitled to reasonable damages for their pain and suffering.
In civil actions to determine damages resulting from a motor vehicle accident, the defendant will often bring a motion stating that the plaintiff’s claim for non-pecuniary/general damages is statute-barred for failing to establish that their injuries fall within the exception to section 267.5(5)(b) of the Act. This is referred to as a ‘threshold motion’ and it requires the judge to determine whether the plaintiff has suffered a permanent serious impairment of an important function. If a plaintiff’s injuries meet this criteria, then the plaintiff is eligible for an award of non-pecuniary damages, in the amount determined by a jury or judge.
The courts often rely on the interpretation of the statutory threshold in Meyer v. Bright (1993), where the Ontario Court of Appeal set out three questions to be considered when determining whether a plaintiff meets the threshold.
1. Has the injured person sustain a permanent impairment of a physical, mental or psychological function?
2. If yes, is the function which is permanently impaired an important one?
3. If yes, is the impairment of the important function serious?
A 2016 case, Dimopoulos v. Mustafa, serves as a good example of the threshold requirement. While the jury was deliberating on a verdict, the defendant brought a threshold motion charging that the plaintiff’s claim for non-pecuniary damages and chiropractic health care is barred because he failed to establish that his injuries meet the required threshold. The trial arose after the plaintiff sustained injuries in a motor vehicle accident.
The judge in this case reviewed the evidence of medical practitioners who treated and/or assessed the plaintiff and concluded that the plaintiff satisfied the statutory requirements of having suffered a permanent serious impairment of important physical functions. A physician who specialized in orthopaedic spinal surgery examined and assessed the plaintiff and diagnosed a soft tissue injury to the plaintiff’s left shoulder and lower back (commonly called ‘whiplash associative disorder’) as well as mechanical back pain. The doctor concluded that he did not believe that the plaintiff’s injuries would improve -- the plaintiff is likely not able to return to the physically demanding activities in his previous employment as a general labourer, nor is he able to complete heavier tasks required in daily living. On this basis, Justice Tzimas decided that the plaintiff’s injuries are permanent.
The impairment was judged to be serious as it involves constant pain that fluctuates in intensity, significant sleep disruption due to pain, and a fundamental change in the plaintiff’s disposition. The plaintiff’s temperament was that of a physically and mentally healthy, happy and easy-going man; but since the accident, the plaintiff suffers from constant pain, is angry and argumentative, and has withdrawn from family and social activities. The judge concluded that these circumstances make the impairments important.
Justice Tzimas was satisfied that the plaintiff met the onus of proving, on a balance of probabilities, that he sustained a permanent serious impairment of an important physical function. Therefore, the defendant’s threshold motion was dismissed and the plaintiff was awarded general damages in the amount of $37,000 as well as $30,000 for chiropractic treatments.
If you were injured and are considering making a claim for damages, call an experienced personal injury lawyer at Kotak Personal Injury Law, and let us help you get the compensation you are owed.