Brak et al. by their Litigation Guardian Brak et al. v. Walsh [Indexed as: Brak (Litigation guardian of) v. Walsh]
90 O.R. (3d) 34
Court of Appeal for Ontario,
Weiler, Moldaver and Juriansz JJ.A.
April 1, 2008
Insurance -- Automobile insurance -- No-fault regime -- Threshold requirements -- Plaintiff suffering low back injury -- Trial judge erring in finding that impairment was not permanent in absence of evidence that her pain would end and not merely diminish if she followed exercise program -- Trial judge taking overly narrow approach in finding that impairment was not serious as plaintiff was able to resume employment and household duties -- Trial judge failing to consider whether plaintiff's continuing pain seriously affected her enjoyment and quality of life.
The plaintiff suffered a low back injury as a result of a motor vehicle accident. The defendant brought a motion at trial for a finding that the plaintiff did not meet the threshold in s. 267.5(5) of the Insurance Act, R.S.O. 1990, c. I.8. The trial judge found that the plaintiff did not suffer a permanent impairment, as there was evidence that her pain would diminish with time if she followed an exercise regime, and that the impairment was not serious, as the plaintiff was able to resume almost all of her domestic duties and to hold gainful employment. The motion was granted. The plaintiff appealed.
Held, the appeal should be allowed.
The trial judge erred in finding that the impairment was not permanent. There was no evidence that the plaintiff's pain would end. Neither the defence expert nor the plaintiff's expert offered a date by which she would be pain-free, assuming she embarked on a reasonable exercise and weight-loss program. The trial judge's focus was too narrow in finding that the impairment was not serious. The requirement that the impairment be "serious" may be satisfied even though the plaintiff resumes the activities of employment and household responsibilities. It must also be considered whether the continuing pain affects the enjoyment and quality of life.
APPEAL from an order of Killeen J., reported at 2006 CanLII 5142 (ON SC), [2006] O.J. No. 688, [2006] O.T.C. 163, 34 C.C.L.I. (4th) 186 (S.C.J.), granting a motion for a declaration that the plaintiff's injuries did not meet the threshold. [page35 ]
Cases referred to Altomonte v. Matthews, [2001] O.J. No. 5756 (S.C.J.); Bos Estate v. James (1995), 1995 CanLII 7162 (ON SC), 22 O.R. (3d) 424, [1995] O.J. No. 598, 28 C.C.L.I. (2d) 166, 11 M.V.R. (3d) 295, 53 A.C.W.S. (3d) 1085 (Gen. Div.); Hartwick v. Simser, [2004] O.J. No. 4315, [2004] O.T.C. 917, 134 A.C.W.S. (3d) 825 (S.C.J.); May v. Casola, [1998] O.J. No. 2475 (C.A.); Rizzo v. Johnson (2006), 2006 CanLII 34452 (ON SC), 82 O.R. (3d) 633, [2006] O.J. No. 4143, 151 A.C.W.S. (3d) 1139 (S.C.J.) Statutes referred to Insurance Act, R.S.O. 1990, c. I.8, s. 267.5(5) [as am.]
Khalid Baksh and Sharon Hassan, for appellants. William G. Woodward, for respondent.
[1] Endorsement of THE COURT: -- The appellant, Brak, was the main plaintiff in a jury trial for damages arising out of a motor vehicle accident. At the end of trial, after the jury began its deliberations, the defendant, Walsh, brought a motion that no action lay because the plaintiff did not meet the threshold required under s. 267.5(5) of the Insurance Act, R.S.O. 1990, c. I.8 of suffering a "permanent serious impairment of an important physical, mental or psychological function". The trial judge allowed the motion and the appellant appeals from that decision. The trial judge applied the following test: (1) Has the injured person sustained permanent impairment of a physical, mental or psychological function? (2) If yes, is the function which is permanently impaired an important one? (3) If yes, is the impairment of the important function serious?
[2] The trial judge provided a careful review of the medical evidence. He found that the appellant did sustain a low back injury as a result of the accident. He went on to find that she did not suffer a permanent impairment, the function impaired was an important one and the impairment was not serious. The trial judge based his conclusion that there was no permanent impairment squarely on the evidence of Dr. Clifford, the appellant's expert witness. He stated his belief that if the appellant followed Dr. Clifford's advice on exercise, the pain she was experiencing would "clear up with time". He also noted the evidence of the respondent's expert, Dr. Heitzner that "her pain symptoms would diminish with time if she followed his recommendation on a regular exercise program". In relation to whether the appellant's injury was serious, the trial judge focused on the appellant's ability to resume "almost all" of her domestic duties and the fact that she was able to hold gainful and steady employment.
[3] The trial judge did not indicate what standard he applied to determine whether the low back pain experienced by the appellant was permanent, nor did he indicate what standard he applied to determine that the impairment was not serious.
[4] The jurisprudence establishes that permanent means lasting indefinitely into the future as opposed to for a limited time with a definite end. See, e.g., Bos Estate v. James (1995), 1995 CanLII 7162 (ON SC), 22 O.R. (3d) 424, [1995] O.J. No. 598, 28 C.C.L.I. (2d) 166 (Gen. Div.), [page36 ]Howden J.; Altomonte v. Matthews, [2001] O.J. No. 5756 (S.C.J.), McDermid J. The requirement of a permanent injury is also met when a limitation in function is unlikely to improve for the indefinite future. See Roccamo J. in Hartwick v. Simser, [2004] O.J. No. 4315, [2004] O.T.C. 917 (S.C.J.), at para. 87 and Rizzo v. Johnson (2006), 2006 CanLII 34452 (ON SC), 82 O.R. (3d) 633, [2006] O.J. No. 4143 (S.C.J.), Smith J., at para. 11 to the same effect.
[5] The respondent conceded at the appeal that there was no evidence that the appellant's pain would "clear up". The only evidence was that her pain would decrease with time. Neither expert offered a date by which she would be pain-free, assuming she embarked on a reasonable exercise and weight-loss program. In fact, both experts also recommended that she should avoid heavy lifting indefinitely.
[6] The question of whether an injury is serious was addressed by this court in May v. Casola, [1998] O.J. No. 2475 (C.A.). Carthy J.A. said "In our view a person who can carry on daily activities, but is subject to permanent symptoms including, sleep disorder, severe neck pain, headaches, dizziness and nausea which, as found by the trial judge, had a significant effect on her enjoyment of life must be considered as constituting serious impairment. The trial judge's standard was too high and we consider that an error in principle."
[7] So here, as well, the trial judge's focus was too narrow in determining whether the appellant's injury was serious. The requirement that the impairment be "serious" may be satisfied even although plaintiffs, through determination, resume the activities of employment and the responsibilities of [a] household but continue to experience pain. In such cases it must also be considered whether the continuing pain seriously affects their enjoyment of life, their ability to socialize with others, have intimate relations, enjoy their children and engage in recreational pursuits.
[8] Here, the trial judge did not indicate he considered anything other than that the appellant carried on with her full range of activities. This is not significant in itself as judges are presumed to know the law. However, the trial judge also failed to allude to evidence of the lay witnesses, which was important in assessing the appellant's claim that continuing pain affected her overall enjoyment of life. Together, these omissions undermine the conclusion he reached.
[9] The trial judge therefore erred in the standard he applied both with respect to the permanency and seriousness of the appellant's injuries. [page37 ] Conclusion
[10] We would allow the appeal, set aside the decision of the trial judge and remit the matter to be reconsidered by a different judge. We cannot finally decide this matter because of the credibility issues involved, however, given the amounts involved, the parties may see fit to resolve the matter without a rehearing. We fix costs in favour of the appellant in the amount of $7,500 plus disbursements and GST.
Appeal allowed.