Oakville Lawyers Car Accidents and the “Threshold”
We often make case comments about the Bill 198 threshold. Based on this our clients have asked us for a better definition of the threshold.
The threshold applies if you were involved in a collision involving the use or operation of a motor vehicle as defined by the Insurance Act. We may or may not have discussed this with you, but victims that are injured as a result of the carelessness or negligence of someone operating a motor vehicle are technically not allowed to claim compensation for pain and suffering unless he or she has met a certain “threshold”.
If you have been in a car accident, motorcycle accident or any other type of motor vehicle accident it is important to get the right advice. Contact us to learn your rights.
In other words you cannot sue anyone that has caused you injury in Ontario unless your injuries fall within a certain “classification”. The “classification” or threshold is defined as:
“did the plaintiff (you) sustain a permanent and serious impairment of an important physical, mental or psychological function as a result of a motor vehicle accident in which he or she (you) was involved in”.
You may initially think that yes, I have absolutely sustained a permanent and serious impairment of an important physical, mental or psychological function, but the reality is that these words are complexly defined within the context of personal injury law.
How does this affect you?
The rule states that an injured victim in a motor vehicle accident is barred from suing an at-fault operator of a motor vehicle unless they in fact fall within certain exceptions. You have the burden of establishing that you fall within all of these exceptions.
How do I do this?
A plaintiff (you) must lead evidence from physicians and health advisors to explain the nature of your impairment, its permanence and the specific functions that are impaired and the importance of the functions to you. If your case ends up going to Court, evidence will be asked of your doctors, health practitioners, rehabilitation people, occupational therapists, psychologists, psychiatrists, specialists in the medical field. Opinion evidence will be asked of experts that you have seen or will see as set up by your lawyer and the opposing lawyer.
At the end of your case a jury will retire to determine how much compensation it will pay you. When the jury retires the lawyer that represents the insurance company will then have the right, under the Insurance Act, to ask the judge whether or not he or she believes by the evidence you produced that you suffered a permanent serious impairment of an important physical, mental or psychological function within the meaning of the Insurance Act. The jury will not hear this question.
At that time the Judge will dissect the words permanent, serious, impairment and important function. These words will be defined in detail by the Judge that hears your case. The Judge will then come to an answer as to whether or not yes or no he or she believes that you sustained a permanent and serious impairment on an important physical, mental or psychological function within the meaning of the Insurance Act.
What does serious mean?
Serious is normally defined three different ways.
- The first is whether or not an impairment substantially interferes with the person’s ability to continue his or her regular employment despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use accommodations to allow the person to continue employment;
- An alternative with respect to whether or not an impairment is serious also lies with whether or not that person is able to continue training in a field in which he or she was being trained in before the incident;
- The third alternative lies with respect to the definition of serious, that is whether or not impairments have substantially interfered with most of the activities of daily living of the victim, considering his or her age. The daily activities, which are not defined in the Insurance Act have been defined by Judges in the past as being recreational activities, social activities, housekeeping activities and family activities. This is why you have been asked, or will be asked about this at your examination for discovery. Also, when defence lawyers hire surveillance companies to survey you, it is often to dissect or take apart the daily activities to show that you do not suffer from a serious impairment or that your daily living is not affected by the accident.
What does the word important mean?
For the function that is impaired to be an important function, that function must be necessary to perform the activities that are essential to your regular or usual employment or necessary to perform the activities that are essential to your training in a career in a field in which you were being trained in before the accident. For a function that is impaired to be an important function, that function must also be necessary for you to provide for your own care or well-being or be important to the usual activities of daily living, considering your age. The same categories for daily living apply as above.
What does the word permanent mean?
For an impairment to be permanent the impairment must have been continuous since the accident and must, based on medical evidence and subject to you reasonably participating in recommended treatment of the impairment be expected to not substantially improve. Also, the impairment must be an impairment that is expected to continue without substantial improvement when sustained by persons in similar circumstances. This means that at some point a doctor must say that despite your participation in therapy, your injury is not getting better, and he or she does not think that it will substantially improve to any better degree.
Out of all of this it is important to take several things away.
- Medical evidence, in addition to other evidence, must support (it is legislated!) your claim that you have sustained a permanent serious impairment of an important physical, mental or psychological function.
- Most people fall within the category of injuries interrupting their daily activities. It is important that you keep notes to tell us how your injuries have interfered with your social, recreational, household or family activities. This means that if you are subject to permanent symptoms such as sleep disorder, severe neck pains, broken bones, disc herniation, disc bulges, torn tendons and ligaments, metal or hardware that has been surgically involved with healing your fractures or anything that has a significant impediment on your enjoyment of life can be considered a serious impairment. A Court will always look at your activities and your daily living prior to the car accident, and after the car accident to determine whether or not you meet this threshold.
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