Divisional Court Reverses Trial Finding that Injury Was “Serious”

In a decision that was good news for insurers, the Ontario Divisional Court has reversed the finding of Superior Court Justice Wilton-Siegel, that injuries suffered in a 1999 MVA met the threshold under s. 267.5(5) of the Insurance Act .

In Frankfurter v. Gibbons, the plaintiff had been injured in parking lot collision at a gas station. The defendant’s car had backed into hers. At trial, she had these complaints:

[A] permanent soft tissue injury which takes the form of stiffness and associated pain in her neck with pain radiating from time to time into her right shoulder blade and into her right arm and central fingers. She says that, as a result, her life has been significantly and adversely affected in several ways due to the pain and exhaustion at the end of the day as a result of the effort required to cope with the pain. She says she is unable to tolerate sustained postures and as a result is also unable to read or walk for prolonged periods and suffers from insomnia. She also testified that the chronic pain makes it difficult to manage household chores including, in particular, household activities involving heavy lifting or carrying. A major consequence, according to the plaintiff, is that, because work takes up most of her energy, she has a diminished social life. This is particularly the case because her major avocation in the years preceding the accident was Latin ballroom dancing which requires a level of physical conditioning beyond her present condition.

Before the jury had made its decision, the defence brought a motion before the trial judge, arguing that the plaintiff’s claim did not meet the threshold.

Mr. Justice Wilton-Siegel denied the motion and found that the injuries did satisfy the requirements of s. 267.5(5).

The jury’s award of damages turned out to be only $7,000. Neither the trial nor appeal decisions say whether or not the threshold ruling had been made before the jury’s finding.

The defendant appealed to the Divisional Court. There, the court agreed that the evidence at trial had shown that the plaintiff’s injuries constituted a “permanent impairment”. Further, the court found that the trial judge had been justified in concluding that the plaintiff’s injuries had also affected a “physical function”.

So, the only remaining question was whether the impairment produced by the injury was “serious”. The court held that the trial judge had been mistaken in finding that it was.

This is interesting because at trial, the evidence of the effect that the injuries had had on the plaintiff’s life was very typical of many such cases. This can be seen from the following excerpts from the trial decision:

Two friends, Rose Da Silva and Alba Castro, both friends from her Latin ballroom dancing activities, testified as to the high level she had attained in her dancing as well as the fitness and physical exertion required at that level. Both testified that, whereas before the accident the plaintiff was always willing to go out dancing, she rarely went out after the accident. They also testified that, in their experience, on those occasions when she did go to a club the plaintiff danced little and very carefully, being concerned about aggravating her pain. The plaintiff’s mother also testified as to the very active life the plaintiff led before the accident focused around her dancing late into the evening many days of the week. She also testified that after the accident the plaintiff was unable to perform any household chores for her which involved lifting. Her mother also testified that the plaintiff was typically exhausted at the end of her workday from coping with her neck pain and stiffness. Cathy O’Connor, the plaintiff’s supervisor until early in 2002, testified that she was aware that the plaintiff was habitually very stiff in the morning when she arrived at work and had spoken to the plaintiff about the amount of time she had to take off the job for medical visits.

With regard to the impact of the disability on her daily activities, the evidence is clear that by the end of the day the plaintiff is exhausted from the pain which she has had to endure and deal with during the workday. Her energy level at the end of most days is very low. The evidence of the plaintiff as well as her friends unambiguously supports the finding that the consequence of this physical condition is a significantly diminished ability to socialize in a meaningful or regular way with her friends. The disability has had a heightened impact on her social life because, for the past ten years or more, her socializing has revolved around her Latin ballroom dancing which she has severely curtailed because of the stiffness and pain in her neck as well as a concern for worsening her injury. I am also satisfied on the evidence that the plaintiff suffers from periods of insomnia due to the physical and psychological effects of the continuing pain and is unable to perform household chores for herself or her mother which involve any heavy lifting or carrying, including vacuuming, cleaning and grocery shopping.

The Divisional Court made it clear, that not just any degree of impairment will satisfy the “serious” criterion in s. 267.5(5). It cited the often-forgotten dictum from the Court of Appeal’s decision in Meyer v. Bright, that the threshold had been enacted “for the purpose of significantly limiting the right of the victim of a motor vehicle accident to maintain a tort action against the tortfeasor.” The court concluded that the plaintiff’s injuries, while undoubtedly “frustrating and unpleasant”, were not serious. The action was dismissed.

This case also brings up the dichotomy that can arise in threshold cases tried by judge and jury. We have discussed this in earlier Updates. The problem is this: how can a judge’s finding that an injury meets the threshold co-exist with a jury decision, that the plaintiff is entitled to only minimal damages ? If one conclusion is correct, the other must be wrong.

The Divisional Court did not address this point in its decision, but perhaps the lack of congruity between the two findings operated on the minds of the three judges in allowing the appeal…

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