Brak v. Walsh (New Threshold Decision)

A decision dealing with the Insurance Act threshold was released this afternoon by Superior Court Justice Gordon Killeen, in Brak v. Walsh. Justice Killeen found that, in this case, the threshold had not been met. This was a motor vehicle case which was tried by Justice Killeen with a jury. It arose out of an accident that happened on January 8, 2000. The plaintiff suffered (1) two fractured ribs on the left side; (2) a laceration to the spleen; (3) a collapsed lung. 

However, by the time of trial, earlier this month, her main complaint was low back pain. While the jury was deliberating, Justice Killeen addressed the “threshold” issue. The defence argued that the plaintiff had not suffered a low back injury in the accident. His Honour rejected this submission and found that she had. However, he went on to conclude that the plaintiff’s impairment was not permanent and that even if it was, it was not serious. Justice Killeen felt that the plaintiff had exaggerated her condition. (He also had some critical things to say about the plaintiff’s principal medical witness.) She had been able to return to most of her pre-accident activities, subject only to a recommendation that she “avoid heavy labouring work”. This was not enough, in Justice Killeen’s eyes, to meet the Insurance Act threshold.Our thanks to Justice Thomas Granger of the Superior Court, for alerting us to today’s decision.   

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