Homemaker fails car accident threshold test on unsual activities of daily living

In the case of Dahrouj v. Aduvala the Court was asked whether or not the plaintiff Ms. Dahrouj passed the threshold. If you read this blog once and a while you will know that in Ontario, you are barred from suing a driver that caused you injuries unless your injuries fall within certain “exceptions.”

The exceptions – set out here – are in summary that injuries must be that an injured person must sustain a permanent impairment of a physical, mental or psychological function.  The function that is permanently impaired must be an important one, and the impairment of the important function must be serious.  If an injured victim cannot prove that he/she falls into the exception than compensation for pain and suffering will not disallowed.

The plaintiff in this case claimed that as a result of her car accident she developed chronic pain syndrome.  She claimed that it had seriously impaired her physical functioning around her home and her social interaction within her community.  The defendant argued that she suffered minor soft tissue injuries that she fully recovered from several months post-accident.

The Car Accident

The accident occurred on October 10, 2007.  The plaintiff hurt her neck, left shoulder, low back, right leg and knee.  She suffered from headaches, difficulty sleeping, fatigue, depression and anxiety.  As a result of these injuries she alleged that she developed chronic pain syndrome and her homemaking and meal preparation activities both for her family and herself were significantly limited.  She required assistance to do many of the homemaking tasks and she argued that she required assistance for the rest of her life.

The defendant argued that her injuries caused a brief aggravation of well documented pre-existing injuries.  There were no ongoing physical injuries.  There was also no evidence of psychological impairment arising out of the car accident.

Threshold

After the trial, during deliberations the defendant sought a declaration pursuant to 267.5(5) of the Insurance Act that the plaintiff’s injuries did not meet the statutory threshold and therefore entitlement to recover general damages was barred.  The judge noted that under the Insurance Act, a person suffers from a permanent serious impairment of an important physical, mental or psychological function if the impairment substantially interferes with most usual activities of daily living considering the person’s age.  In our case, the plaintiff was a homemaker and did not fall within the exceptions provided for person’s who were employed or were training for a career at the time of the accident.

An important function, as described by the judge, is a function that is necessary for a person to provide for his or her own care or well-being or be important to the usual activities of daily living, considering the person’s age.

Permanent, as described by the judge, is based on medical evidence, an impairment that is expected not to substantially improve.

Analysis

The judge noted that the plaintiff was 48 years old.  She was a homemaker.  She was a single parent of a teenage son and daughter.  Post-accident she became considerably restricted in her social and household activities.

Unfortunately the evidence at trial disclosed that in the year leading up to the accident the plaintiff visited her family doctor on several occasions to complain of head, neck and back pain, which were similar to her post-accident pain.  After the accident she undertook two physiotherapy sessions and had the benefit of an occupational therapist help her regain function with her household activities however, she had never attended a pain clinic or received a psychiatric assessment or any psychological intervention.  Surveillance was arranged and the judge found that it was “devastating to her credibility and showed her to be capable of vigorous and sustained activity including stretching and lifting – the very activities which allegedly restricted her functioning as a homemaker.”  The video also showed her chopping ice and snow off of her car in the morning after an ice storm, pumping gas, reaching for groceries on an upper shelf, carrying plates of juice containers and bags up the steps to her home without assistance.

Experts were divergent on her assessment and contradicted the testimony of one another.

The plaintiff’s psychological functioning was briefly addressed by a psychologist who saw the plaintiff for one brief consultation.  He unfortunately did not see her medical records.  A diagnosis seemed to have been made too soon.

Conclusion

The Judge found that the threshold test had not been met.  The plaintiff did not prove that she permanently suffered from ongoing pain symptoms or other physical injury nor did such injury prevent her from carrying out regular household functions or from socializing in her community with relative at her mosque, which he would take to be important physical functions to which she normally engaged.

The Judge also addressed damages that were awarded.  The jury declined to award any sum for future loss of housekeeping services.  The jury did award $32,000.00 for past loss of housekeeping services and $50,000.00 for compensation for pain and suffering.  With respect to housekeeping, the Judge noted that while special damages are not subject to the threshold criteria (on general damages for pain and suffering) a question arises as to whether or not the Court could consider the jury’s verdict on the question of whether this homemaker suffered from a permanent serious impairment of a physical functioning required for homemaking activities.  He determined that a legislature had ultimately left it to judges to determine whether or not the threshold had been met.  This overlaps jury considerations particularly where the symptoms are subjective.

Essentially the judge was noting that the legislation was clear: a judge must decide the threshold motion and in doing so the judge is not bound by the verdict of the jury.  The timing of the hearing is at the discretion of the trial judge.

Accordingly, the plaintiff failed to prove on a balance of probabilities that her case fell within the exception to the threshold set out at s.4.2(1.1)(III) of the Insurance Act and the jury award of general damages for pain and suffering was disallowed.  Judgment was entered for the plaintiff for $32,000.00 which represented the jury’s award of special damages for the past loss of housekeeping services only.

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