In a post yesterday, we commented on a recent decision, Bisier v. Thorimbert, in which a Superior Court judge granted a defence threshold motion at the trial of a personal injury action, after the jury had awarded nothing for general or FLA damages.
In a second case, another Superior Court judge has followed a similar approach in allowing a threshold motion. In Dennie v. Hamilton, Mr. Justice William Whalen was trying a chronic pain claim with a jury. The action had arisen from a 1999 motor vehicle accident. The plaintiff had been diagnosed as having suffered a soft-tissue injury that left her with some mild restriction of movement.
The defence contended that the plaintiff’s organic symptoms had substantially resolved within about six months and that her ongoing problems were of a psycho-social nature, not caused by the accident. (The plaintiff was a single mother who worked as a store clerk. As is commonly seen in chronic pain cases, the evidence disclosed that she had experienced a number of setbacks in her life, ranging from a broken marriage, illnesses of other family members and resulting depression on the part of the plaintiff.)
There was surveillance shown at trial, which depicted the plaintiff carrying on her daily activities with no apparent impediment.
The trial took two weeks. Upon its conclusion, the jury awarded general damages of $20,000 (gross of the Insurance Act deductible, which was then $15,000) and a further $20,000 for future housekeeping expenses.
As was done in Bisier v. Thorimbert, the trial judge who had to rule on whether the plaintiff’s injuries surpassed the Insurance Act threshold, relied heavily on the jury’s decision:
[28] Again, it seems clear the jury concluded that the plaintiff suffered an organic soft tissue injury as a result of the accident, but not a permanent one. If the plaintiff experienced chronic pain, the jury decided that it was not caused by the accident. Given the way the contest was framed by the parties, I conclude that the jury found as a fact that the plaintiff’s physical injury from the accident had healed substantially by the end of 6 months to a year, and that any complaints thereafter were emotionally or psychologically based. There was ample evidence upon which to base such a conclusion. I will respect the jury’s fact-finding role and their conclusions when the result seems so clear.
Justice Whalen went on to set out his own conclusions from the evidence. He considered the surveillance, the absence of evidence of atrophy of the arm alleged to have been affected, the subjectivity of the plaintiff’s complaints, etc. He applied the test enunciated in Meyer v. Bright. He also drew upon the decision of Justice Toscano Roccamo in Hartwick v. Simser in analyzing the requirement that an injury be “serious”, in a situation where a plaintiff has returned to work. His Honour’s own analysis of the evidence also led him to conclude that the plaintiff’s injuries did not meet the threshold.