Threshold Decision Favours Plaintiff But Jury Sees Case Differently

Regular readers of our Updates know that just when insurance defence lawyers and their clients were beginning to despair of ever winning a threshold motion, a series of decisions were handed down that favoured the defence. But a Superior Court ruling published today has interrupted the winning streak for insurers. Nevertheless, there was a silver lining for the defence in today’s case, because the jury’s award was very small and, it appears, may be reduced to zero through the combined effect of the Insurance Act deductible and the collateral benefits that the plaintiff has received.In Fasfous v. Provigo Distribution Inc. et al., Madam Justice Stewart of the Superior Court dismissed a threshold motion brought at trial, just minutes before the jury returned. In today’s ruling, she set forth her reasons for her decision on the threshold issue.

This was a chronic pain case. There were two defendants and two accidents. It appears that only one of the accidents related to a motor vehicle. It was the MVA defendant, of course, who brought the threshold motion.As is often the case in these kinds of claims, the main argument advanced by the defence was lack of a causal connection between the accident and the plaintiff’s present complaints. Those complaints included “unremitting pain which evolved into chronic pain syndrome with depression and anxiety”, “serious depression and fatigue”, sleep disturbance, concentration problems and a weight gain of more than 50 lbs.The plaintiff’s evidence was that this condition had prevented her from going back to her old job and from finding new employment. She rarely left her apartment, except to attend medical appointments. She had, for the most part, stopped socializing.Various friends, family members and colleagues testified to the deterioration in her condition.The plaintiff had evidently been treated for depression prior to one of the accidents. The defence suggested that the plaintiff’s credibility had been impeached at trial, in that she had failed to acknowledge this fact. But Justice Stewart viewed the contradiction as “trivial”.Her Honour concluded that the evidence had established that the plaintiff’s impairment was permanent and that she had suffered an impairment of an “important” physical, mental or psychological function (although she did not say which one applied). That left her to deal with the requirement that the impairment be “serious”. Justice Stewart said:Again, this determination turns on whether the impairment is serious to the particular injured person (see: Meyer v. Bright, supra, at p. 141). The impairment is serious if it interferes substantially with the ability of the injured person to perform his or her daily activities or to continue his or her regular employment. As already indicated, Ms. Fasfous suffers from a disorder that causes her to feel chronic pain which has disrupted her daily routine, her social life and her ability to work. In my view, this evidence demonstrates that the impairment is serious.

The ruling on the threshold motion does not say what the jury did with the case. But it is our understanding that it assessed general damages of $7,500 and approximately $15,000 for income loss. Small additional awards were made for other items. The Insurance Act deductible would reduce the general damages to zero. And there were apparently collateral benefits paid to the plaintiff that would have the same effect on the income loss damages.This case illustrates the often starkly different views that judges and juries seem to take of chronic pain cases. And it explains why jury notices are so often served by the defendants.

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