So you’ve been injured in a car accident that wasn’t your fault. Fortunately, you didn’t have any broken bones, traumatic head injuries, or anything so serious. However, you likely continue to suffer from soft tissue pain, which may cause you to have headaches as well as aches and pains in various parts of your body, and you have been encouraged by friends to retain a lawyer to seek compensation for your pain and suffering. The obvious question you will ask your lawyer upon meeting is, How much is my case worth? The truth is, it is impossible to know right at the outset until your lawyer has received and reviewed all of your medical records.
But what you should know going in to this meeting is that just because you have been injured in an accident that wasn’t your fault, you are not automatically entitled to money for pain and suffering, even if you can prove the two requisite elements of any tort claim: (i) that the other party was at fault; and (ii) that you suffered injuries as a result.
There are two methods enshrined in the law in Ontario which have the effect of limiting the ability for potential accident victims to sue and/or recover damages in Ontario. These methods are, according the government and the insurance industry, part of an overall scheme to control automobile insurance premiums in Ontario. More accurately, these legal impositions have the effect of chilling the rights of individuals involved in motor vehicle accidents from starting tort actions. These schemes are (a) the statutory threshold; and (b) the statutory deductible. It bears noting that there is no conceivable reason for this threshold or deductible other than at the time, the insurance industry’s lobby was more powerful than the trial lawyers’ lobby.
Pursuant to section 267.5 of the Insurance Act, a person is cannot pursue a tort action against the at fault party of a motor vehicle accident, unless they can meet a threshold test set out in subsection 5 of that section, which provides that
…as a result of the use or operation of the automobile the injured person has… sustained,
(a) permanent serious disfigurement; or
(b) permanent serious impairment of an important physical, mental or psychological function.
Effectively, this means that in order to meet the threshold, you must prove the existence of a serious impairment, of an important function, that is permanent.
(i) A serious impairment
A serious impairment is one that substantially interferes with your ability to continue in regular or usual employment, despite reasonable accommodations and despite the reasonable efforts to use accommodations to continue employment; or one that substantially interferes with most of the usual activities of daily living, considering your age.
(ii) Of an important function
You must demonstrate the function impaired is one that is necessary to perform the activities that are essential tasks of your regular or usual employment, taking into account reasonable efforts to accommodate you and your reasonable efforts to use the accommodation; or, is one that is important to the usual activities of a daily living, considering your age.
(iii) That is permanent
The important function that is seriously impaired must have been one that is continuous since the accident and must be expected not to substantially improve. This is based on the medical evidence and subject to your reasonable participation in the treatment of the impairment, must continue meeting the criteria of a serious impairment, when compared to the improvement a similar person would expect to experience.
As the plaintiff in the tort action, you will necessarily have to prove this threshold through personal testimony and medical evidence. This puts credibility and reliability squarely at issue. As Justice Boswell of the Ontario Superior Court of Justice stated in a tort case called Antinozzi v Andrews , these are not the same thing:
Credibility relates to the veracity of a witness. Reliability relates to the accuracy of the witness’s testimony and engages a consideration of the witness’s ability to accurately observe, recall and recount events in issue.
A trier of fact (judge or jury) will measure the evidence submitted, and a credible Plaintiff will help satisfy the threshold is met by a balance of probabilities. “The real test of an interested witness’s credibility ‘must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.” (Antinozzi case).
All of these factors will be considered by your lawyer both at the initial consultation, and throughout your case if one is pursued. As facts arise the lawyer’s valuation of your case may change over time.
A second and possibly more troubling manner in which the Ontario government has attempted to curb an accident victim’s decision to pursue an MVA tort action is the $30,000 statutory deductible. This deductible is applicable to financial awards for general damages made by a court in all tort cases arising from motor vehicle accidents. Essentially, this means that the first $30,000 in damages for pain and suffering ordered by the trier of fact in an MVA tort case is not paid by the insurance company of the defendant. An award by the judge or jury of damages for pain and suffering of $30,000 or less means the defendant pays nothing. An award of $50,000 means the insurer pays $20,000, and so on up to awards of $99,999. This deductible only applies to awards of less than $100,000. The legislature’s decision not to apply this deductible to all accident awards for pain and suffering means that there is differential treatment between accident victims. An accident victim with whiplash and resulting psychological damages resulting from a rear end collision is arbitrarily prevented from accessing the same justice that a victim with broken bones might receive, even though the damages suffered by the victim with purely soft tissue injuries might be experienced for a longer duration. Even more upsetting is that the plaintiff’s lawyer is precluded from mentioning this deductible to a jury on top of not being able to mention that a defendant is represented by the insurance company. Both of these keep the rightful awards from reaching a plaintiff when pursuing a tort action through to a trial. Thus, even if you believe your injuries may exceed the threshold, you must consider by how much they are likely to exceed the threshold in order to ensure the damages have a reasonable chance of being significant enough to offset the deductible.
So should I still see a lawyer?
Yes. Only your lawyer will be in a position to assess the likelihood of recovery of damages for pain and suffering. The purpose of this article is to educate a potential plaintiff on the reality of personal injury awards in Ontario, specifically that while if a lawyer does agree to take on your case you will likely end up with some money in your pocket but you must be conservative in your expectations. That said, your lawyer’s job is to build your file in a manner that your case will meet the threshold and exceed the deductible. Generally speaking, most personal injury lawyers give a free consultation and get paid only if they are successful in recovering money for you so the lawyer has an incentive to get the possible settlement for you.
The other good news is that both the highest court in Ontario, the Court of Appeal, as well as numerous trial courts, have recently held that even if an injured plaintiff has resumed most or all of their pre-accident activities, if they must now do so in constant pain, with headaches, fatigue and the accompanying depression, what the insurance company will classify as a minor injury actually is serious enough to meet the legal test for recovery of damages.
*Darryl Singer is the principal of SINGER Litigation Counsel Professional Corporation, and has practised civil litigation since 1993