By Michael D Beckwith (Own work) [CC BY 3.0 (http://creativecommons.org/licenses/by/3.0)], via Wikimedia Commons

Pain and Suffering Damages and Car Accident Law in Ontario

Car Accident Law in Ontario

Pain and Suffering Damages

On April 1, 2008, Ontario’s highest court, the Court of Appeal, examined the threshold test for a car accident victim to make a claim for pain and suffering in the car accident case of Brak v. Walsh (http://www.ontariocourts.on.ca/decisions/2008/april/2008ONCA0221.pdf).  The case considers the “threshold” test that the plaintiff car accident victim had to meet to be entitled to make a claim for pain and suffering, and certain other claims, in the lawsuit.

The Car Accident

In January 2000, Mr. and Ms. Brak had been picked up by a friend (Mr. Walsh) and driven to a “buck and doe” party, which was being held at a local arena in Blyth, Ontario.  They were picked up at about 9:30 pm and stayed at the party until about 1:30 a.m.  The Trial Judge found that “there was no doubt that both Mr. Walsh and Mr. Brak drank heavily at this party”.

The Judge found that Mr. Walsh started driving the Braks (and five other people) home while he was inotxicated.  Four people were sitting in the front of the car, with Mr. Brak in the middle and with his wife (Ms. Brak) on his lap.  No-one was wearing a seatbelt.

Mr. Walsh was speeding and driving badly, when he lost control of his car at an intersection, drove off of the road, and hit a tree.  Ms. Brak was thrown forwards into the front dashboard and sustained injuries.

Ms. Brak sued Mr. Walsh for her injuries.  Ms. Brak’s husband and others also commenced claims, apparently, arising from losses that they say that they sustained because of Ms. Brak’s injuries.

Ms. Brak, the car accident victim, was noted to have had some complaints about back pains and other pains in the years prior to the motor vehicle accident.  She was also noted to have had difficult pregnancies and bladder problems before the car accident.  She was 28 years old by the time of the trial in 2006.  She had completed grade 10 in high school and moved out of her parent’s house when she was 16.

She had been in a relationship with Mr. Brak since the mid-1990’s and had two children with him before the car accident.  Her second child (Dillon) was born prematurely and had cerebral palsy.  Dillon had to wear a brace on one leg and required ongoing medical attention.  She had another child after the car accident.

Injuries Arising from the Car Accident

Ms. Brak was rushed by ambulance to hospital from the scene of the car accident.  The ambulance report showed that she was conscious and alert and was complaining of pain in her neck and along the left side of her body from her shoulder down.  The hospital emergency room records showed that she was complaining of her left shoulder, rib and abdominal pain. She also had difficulty breathing.  She was then transferred to another hospital (in London Ontario) by ambulance.  Tests identified two fractured ribs, a laceration of her spleen, and a collapsed lung.  She was treated conservatively (without surgery).  All of these “objective injuries” cleared up within four months (by the end of April, 2000).  Ms. Brak alleged that she continued to have ongoing back pain after the accident.

The Judge said that Ms. Brak was not noted to have complained about back pain at the time that she was in hospital.  There were complaints about back pain in later records.

Ms. Brak returned home from hospital, but was unable to do her own housekeeping work for a number of months.  She also had to use a special hospital bed for weeks because it was difficult to move around.

Loss of Work and Income

Ms. Brak had been on a lay-off at the time of the car accident.  Ms. Brak returned to work as a produce manager at a supermarket from June 17, 2000 to May 2001, until complications with her new pregnancy (and then caring for her children) stopped her from working for approximately the next 1.5 years.

Ms. Brak returned to work on June 23, 2003.  She was hired as a production line worker at a factory, earning $19 per hour for a 40 hour work week.  The production line was automated, but she still had to do some twisting, while handling the product.  It was not a very heavy job.  Ms. Brak said that she would become tired at work and that her back would bother her.  She said that she had to miss a lot of time from work and could not do overtime.  The employment records, however, said that she only missed 2 days of work for “personal days” and 3 for “bereavement days” in 2003.

On February 3, 2004 Ms. Brak’s doctor noted that Ms. Brak had sustained a muscle strain at work on January 28, 2004.  She missed four days of work and then returned to part-time work until February 24, 2004.  After that she missed some time from work because of her pelvic problems.  Ms. Brak’s family doctor said that she was having recurrent back problems that affected her ability to work, but the notes did not seem to bear out the doctor’s conclusions.

Two physiatrists (specialists in physical medicine and rehabilitation) saw Ms. Brak and said that she had sustained a soft tissue injury to her back (sometimes referred to as whiplash, etc. in other cases) and recommended that she lose weight, engage in an exercise program,  and avoid heavy physical labour.  They expected her pain symptoms to diminish with time.  The physiatrists both recommended that she avoid heavy manual labour for the indefinite future.

ANALYSIS

The Trial Judge’s decision

Before the Jury gave its verdict, the Judge was asked to consider whether Ms. Brak was entitled to claim for pain and suffering and certain other damages.  Ms. Brak was only entitled to do that if she met one of the following threshold tests:

(1)  She had sustained a permanent impairment of a physical, mental or psychological function that is important and serious; or

(2)  She had sustained a permanent serious disfigurement.

The Trial Judge found that Ms. Brak’s impairment was important, but it was not permanent (since her pain symptoms would diminish with time, etc.) or serious (since she was able to resume work and almost all of her housekeeping activities etc.).  She had not suffered a disfigurement.  Therefore, he found that she did not meet the threshold tests.

The Court of Appeal’s decision

The Court of Appeal disagreed with the Trial Judge’s reasoning.

The Court of Appeal said that an injury is “permanent” if it lasts “indefinitely into the future”.  The Court of Appeal noted that there was no evidence that Ms. Brak’s pain would “clear up” and there was evidence that she would have to avoid heavy work indefinitely.

The Court of Appeal said that Ms. Brak’s injury can be “serious” even though Ms. Brak was able to resume her employment and housekeeping.  The Court said that it is important to consider whether Ms. Brak continued to experience pain and whether the pain continued to affect her enjoyment of life, her ability to socialize with others, have intimate relationships, enjoy her children and engage in recreational pursuits.

CONCLUSION

The Court of Appeal set aside the Trial Judge’s decision and ordered that a new Judge consider the case.

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