In the minds of most Canadians, the idea of a ‘catastrophic injury’ is exactly what is imagined; this terminology refers to devastating injuries such as paraplegia and blindness that result in a substantial impact on the life of an accident victim and their family. Under Ontario law, ‘catastrophic impairment’ is a legal term, more so than a medical classification, and refers to an injury threshold that allows for more significant compensation under the statutory accident benefits that are available with every motor vehicle insurance policy in Ontario. Individuals with catastrophic injuries are also typically awarded considerable compensation in civil suits against the negligent party deemed responsible for the injury. A catastrophic injury may result from a wide variety of events, from hand-gliding accidents to falling in the bathtub, but this type of injury most commonly results from motor vehicle accidents.
Most common causes of catastrophic injury
- Car and truck accidents
- Motorcycle accidents
- Pedestrian-motorist collisions
- Cycling accidents
- Medical malpractice
- Boating and recreational accidents
- Slip/trip and fall accidents
As we go about our daily activities, none of us anticipates or imagines being involved in a terrible accident that results in catastrophic injuries for us, a family member or even for an occupant in another vehicle. On the day that a group of young men were involved in a tragic car crash north of Brampton, they certainly did not anticipate that this accident would change their lives. The crash happened when their driver was passing two vehicles on a country road at about 30 km/hr over the speed limit, then had to pull back into the driving lane to avoid a collision with an oncoming car. In doing so, the driver inadvertently drove onto the shoulder, subsequently losing control which resulted in multiple rollovers. Unfortunately, only one of the vehicle occupants was wearing a seatbelt. The driver and the two unbelted passengers, Derek Gordon and Ryan Morrison, were thrown out of the car.
Liability in this case was not disputed. The driver had in excess of 142 milligrams of alcohol in his bloodstream, which is 60 milligrams over the legal limit; however, the passengers in the vehicle, who were all friends of the driver, did not perceive him to be impaired before they set out on their trip. In Gordon v. Greig, 2007, the two catastrophically injured passengers, now 25 years of age, sued the driver for damages for loss of past wages, loss of future income, the cost of future care, and pain and suffering. Family members are also sought damages under the Family Law Act.
As a result of the collision, Ryan Morrison severely injured his back; he suffers from paraplegia and is confined to a wheelchair. Derek Gordon suffered severe brain injuries and neck injuries. They both also suffer from a myriad of other injuries and conditions associated with their primary injuries. Both men spent significant time in Sunnybrook Hospital in Toronto and later at Toronto Rehabilitation Institute, and both will require continuous attendant care for the rest of their lives. Mr. Morrison will also require continued rehabilitative assistance. The families of each of the plaintiffs are the primary caregivers and the trial judge particularly noted that the mothers of both were providing constant and selfless support.
The Ontario Superior Court awarded Mr. Gordon almost $11.4 Million in damages, including $8,646,900 for the cost of his future care and attendant care, $15,100 for past wages lost, $1,871,600 for loss of future wages, and $310,000 for general damages. Mr. Morrison was awarded almost $12.5 Million in damages, including $8,880,000 for cost of future care and attendant care, $2,298,230 for loss of future income, $55,400 for lost past income, $310,000 for general damages, as well as awards for other expenses such as housing costs. The sum awarded to both young men for general damages, $310,000, represents the current maximum (cap) for general damages in Ontario. The Gordon and Morrison family members also received awards.
Types of injuries that constitute Catastrophic Impairment
The Financial Services Commission of Ontario (FSCO) arrived at a definition of catastrophic impairment in 2011 after consulting with many healthcare professionals and medical associations. The objective was to define specific and objective criteria that could be used in identifying personal injuries that are ‘catastrophic impairments’ and therefore qualify for the highest threshold of compensation under statutory accident benefits. Accordingly, it was determined that the following clinical classifications were to be used in assessing the type and severity of a person’s injuries.
- Extended Glasgow Outcome Scale (GOS-E) for traumatic brain injury in adults
- American Spinal Injury Association (ASIA) classification for spinal cord injury
- Spinal Cord Independence Measure for individuals with severe difficulty with walking
- Global Assessment of Function (GAF) for psychiatric/mental disorders
The FSCO denotes that following injuries constitute a catastrophic impairment:
- quadriplegia or paraplegia, generally resulting from severe spinal injury
- total blindness in both eyes
- permanent loss of the ability to walk independently, due to amputation of a leg or injury such as the crushing of a limb
- permanent loss of the use of both arms or an arm and a leg
- severe brain impairment, referencing the Glasgow Outcome Scale
- a combination of physical impairments resulting in 55 per cent whole person impairment (WPI). Conditions such as chronic pain syndrome may contribute to this diagnosis.
- marked or extreme impairment due to a mental or behavioural disorder
How do people with catastrophic injuries get compensated for their losses?
Tort action against the negligent party
Anyone who suffered catastrophic injury due to the negligence of another person, whether resulting from a car accident, slip and fall on an unsafe property, sports injury or another incident, is entitled to sue the ‘at fault’ party. There is a legal requirement that a tort action/civil suit must be filed within two years from the date when the person realized the extent of their injuries, which is normally two years from the accident. The amount of damages to which accident victims are entitled generally depends on the severity of their injuries. Catastrophically injured persons may receive compensation for:
- past income loss
- future income loss
- cost of attendant care, medical care and rehabilitation
- home maintenance and housekeeping expenses
- special damages
- pain and suffering (general damages)
- claims for family members
In a civil suit, a judge or jury will largely base their determination of damages on the severity of a person’s injuries and the associated losses that the accident victim has suffered. The court will also look at case law precedents in determining an award. However, the court has some discretion in determining damages, particularly in awarding an amount for pain and suffering. A case in point is the awarding of $310,000 in general damages to each of the victims in the Gordon v. Greig trial; this sum is generally reserved for individuals suffering from quadriplegia, but the judge in this case deemed that the two young men were deserving of this amount.
Motor vehicle accident benefits claim
Individuals who were injured in any type of motor vehicle collision, whether as a driver, pedestrian, cyclist or passenger, may also make an accident benefits claim under their own automobile insurance policy. Uninsured persons can file a claim under their family policy or against the policy of other drivers involved in the collision. Injured persons need to inform their vehicle insurer within seven days if they wish to make a claim, and their insurer will request that they submit an Application for Accident Benefits. Accident victims with a catastrophic impairment are also obligated to submit an Application for Determination of Catastrophic Impairment which must be completed by an accredited physician who will document his/her assessment of your injuries. Both these and other forms are available online on the FSCO website.
The accident benefits available under every vehicle insurance policy in Ontario are commonly termed ‘no fault’ insurance because they are available to everyone regardless who was responsible in causing the collision. The Statutory Accident Benefits Schedule (SABS) is governed by Ontario’s Insurance Act and outlines the maximum benefits to which individuals with catastrophic impairment may receive.
- Medical and rehabilitation: $1,000,000
- Attendant care: $6000 monthly, to a maximum of $1,000,000
- Housekeeping and home maintenance: $100 weekly maximum
- Caregiver benefits: $250 weekly maximum, plus $50 for each dependent.
- Educational expenses: $15,000 for incurred education costs for suspended education
It was recently announced that effective June 1, 2016, the Ontario government will reduce the medical, rehabilitation and attendant care benefit for catastrophically impaired accident victims. Currently, the maximum allowable benefit is $2 Million, which includes $1 Million for medical/rehabilitative care and $1 Million for attendant care; however, this will be reduced to a maximum of $1 Million in total for medical, rehabilitative and attendant care combined. This is a huge reduction for catastrophically impaired persons who, by definition, require substantial care and treatment.
Under SABS, injured persons cannot be compensated for pain and suffering, and a loss of enjoyment in life; this award is only available in a tort action against the negligent party.
Individuals who sustained a catastrophic impairment in a car accident may file both an accident claim against their vehicle insurance policy and also sue the negligent person responsible for their injuries. This strategy can optimize the amount awarded in damages for the accident victim and their immediate family members.
Injured persons who suffer from catastrophic impairment are well advised to consult with a personal injury lawyer who can provide expert advice on their legal options and the best strategy for obtaining full compensation for their substantial losses. The knowledgeable catastrophic injury attorneys at Kotak Law will also ensure that you meet all the timelines and requirements for filing your claims and applications, and will be there to help and support you and your family members throughout the claims process.