CITATION: Corbett v. Odorico, 2016 ONSC 1964
COURT FILE NO.: 11-52967
DATE: 2016/03/22
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SARAH CORBETT, SCOTT CORBETT, SAM CORBETT by his Litigation Guardian, SCOTT CORBETT, and WILLAIM CORBETT by his Litigation Guardian, SCOTT CORBETT
Plaintiffs
– and –
EVA ODORICO
Defendant
Frank E. McNally and Jaime J. Wilson, for the Plaintiffs
Michael Switzer and Stanford Cummings, for the Defendant
ARGUED: December 21, 2015
C.T. HACKLAND J.
post verdict rulings
[1] This is an assessment of damages in a motor vehicle personal injury case which was tried by a jury. The accident occurred on December 5, 2009. The jury returned its verdict, following a six week trial, on December 16, 2015. The jury awarded the Plaintiff and her family the sum of $141,500, broken down as follows:
Non pecuniary general damages $33,000
Past housekeeping and home maintenance $22,000
Past caregiving $32,000
Future housekeeping and house maintenance $21,000
Future caregiving $12,000
Family Law Act husband $7,500
Family Law Act son 1 $7,000
Family Law Act son 2 $7,000
The jury answered “No” to the questions on the verdict sheet asking if the Plaintiff will suffer a loss of future earning capacity or a loss of interdependent relationship.
[2] At this time, the Court is required to rule on:
The threshold motion brought by the Defendant;
The applicable statutory deductables;
The set-offs for statutory accident benefits received;
Issues concerning the pre-judgment interest calculations;
The Threshold Motion
[3] This motion was argued during the jury deliberations and was reserved. The Defendant argues that the Plaintiff has failed to meet the threshold, i.e. that she has failed to prove on the balance of probabilities that her injuries fall within the statutory exceptions set out in subsection 5 of section 267.5 of the Insurance Act. Specifically, disfigurement not being an issue in this case, she must prove that she sustained “permanent serious impairment of an important physical, mental or psychological function.”
[4] The plaintiff, age 40, was injured in a head on collision occurring December 5, 2009. Her vehicle was stopped in order to turn into a driveway and the defendant’s oncoming vehicle was travelling at a moderate speed when the vehicles collided. The plaintiff’s SUV received moderate front end damage although the air bags did not deploy. Although shaken up, the plaintiff declined the ambulance attendants’ offer to take her to the hospital. The plaintiff subsequently developed whiplash type symptoms which, in the longer term, evolved into a chronic pain syndrome. It was a theme of her evidence that her ongoing pain led to or was a material cause of the subsequent breakup of her marriage. She was and is a homemaker. She continues to force herself to carry out many of her household and parenting duties because of the needs of her two boys (ages 9 and 6) both of whom have been diagnosed as being on the autism spectrum. One of the boys is severely affected.
[5] The plaintiff’s two principal experts who testified at trial were Dr. A.G. Swayze, a psychiatrist and Dr. Max Kleinman, a specialist in Physical Medicine and Rehabilitation (a physiatrist). Their evidence was supplemented by that of a psychologist Michelle Sorensen and by occupational therapists. I found the evidence of these experts to be credible and I accept it. I also found the plaintiff to be credible and her evidence reflected her genuine, although subjective, view of the evidence.
[6] I would note that the defendant did not call medical or other evidence in this trial. However, the plaintiff’s evidence was vigorously challenged by way of cross-examination. Defence medical examinations were carried out and I draw the inference from the decision of the defendant not to call the two doctors in question that their conclusions did not substantially differ from those of Dr. Swayze and Dr. Kleinman.
[7] Dr. Swayze performed a psychiatric assessment of the plaintiff on June 19th, 2015, arranged by plaintiff’s counsel. The plaintiff reported to Dr. Swayze that prior to the December 2009 accident, despite some emotional challenges from a strained relationship with her mother, she had been a healthy stay at home mother and she was not suffering from any significant medical problems that interfered with her functioning. Dr. Swayze performed a careful pre-interview analysis of most of the plaintiff’s medical records supplied by counsel.
[8] Dr. Swayze analyzed the medical notes of the plaintiff’s psychologist, Ms. Sorenson, and certain other mental health professionals who interacted with the plaintiff. It is Dr. Swayze’s diagnoses that the plaintiff suffers from a Chronic Pain Disorder, now identified in the DSM-V as a Somatic Symptom Disorder. This is a condition accompanying chronic pain characterized by a pre-occupation with and anxiety about one’s pain symptoms. He stated that this condition negatively impacts her ability to cope with her parenting and housekeeping responsibilities and engenders feelings of shame and guilt about her shortcomings.
[9] Dr. Swayze also made a secondary diagnosis of Adjustment Disorder with Depressed Mood in regard to which he recommends psychiatric intervention and ongoing psychotherapy to prevent deterioration in her emotional and psychological state. He stated “in my opinion, it appears that, at the current time, Ms. Corbett has suffered what can be considered to be a serious and permanent psychiatric impairment as a result of this accident, and her prognosis is guarded.” He did not see a likelihood of future employment beyond the type of cupcake baking activity the plaintiff was carrying out from her home.
[10] Dr. Kleinman saw the plaintiff in July of 2012 and noted she was experiencing pain in her back and neck and suffering from headaches. He diagnosed Chronic Pain Syndrome with Associated Depressive Symptomatology. He found her credible and stated that she did not present with any indication of pain amplification or inappropriate illness behaviour. He was of the view that her current condition was caused by the accident. He felt she was struggling from both a physical and psycho-emotional perspective. Dr. Kleinman subsequently saw the plaintiff in November of 2014 and made similar observations. He again noted a significant psycho-emotional component to her chronic pain. He said this combination of symptoms made further physical and functional improvement unlikely. He felt the plaintiff needed assistance in the home and opined that any resumption of employment would be unlikely.
[11] Much of the cross-examination was based on evidence that prior to the accident, the plaintiff’s medical records disclosed some episodes of depression or depressed mood and periodic back pain. The plaintiff and both Drs. Swayze and Kleinman were of the view that her current symptoms were markedly different and had their origins in the 2009 motor vehicle accident. Moreover, in the court’s opinion, the plaintiff’s pre-accident episodes of depression and the psycho-social component of her somatic symptom disorder are evidence of a ‘thin-skull scenario. That is to say, on the Court’s view of the evidence, the plaintiff’s psychological vulnerabilities existing before the accident and occasional back complaints predisposed her to a poor recovery from her whiplash injuries.
[12] In summary, I accept that the plaintiff has proven on a balance of probabilities that her accident related injury, particularly the Somatic Symptom Disorder, creates a permanent and serious impairment of her physical and psychological functioning. She suffers from ongoing pain which depresses her and significantly restricts her physical capabilities. I appreciate that on her own evidence there are circumstances, particularly concerning the needs of her children, which compel her to perform physically exerting activities from time to time. I accept her evidence that this is accompanied by significant pain experienced at the same time or later in the day. This is still a permanent and serious impairment within the meaning of subsection 5 of section 267.5, of the Insurance Act. For the purposes of O. Reg. 381/03 s. 1, the impairment must “substantially interfere with most of the usual activities of daily living…”, must relate to an important function in terms of the usual activities of daily living and be expected not to substantially improve assuming participation in recommended treatment. I find the plaintiff has met this burden on the balance of probabilities.
[13] Having found that the plaintiff has sustained a permanent serious impairment of an important physical, mental or psychological function in the subject motor vehicle accident, the defendants’ motion to dismiss for failure to meet the statutory threshold is dismissed.
The Statutory Deductables
[14] An important issue arises in this case as to whether the statutory deductables of $30,000 applicable to general damages when this accident occurred in December of 2009 should apply to this jury verdict. Effective August 1st 2015, the regulations under Ontario’s Insurance Act were amended to provide for an increase in the deductible to $36,540, which was to apply “until December 31, 2015”, with the amount to be revised annually thereafter according to a prescribed formula. The new section 5.1(1) of O. Reg. 461/96 provides as follows:
Deductible Amounts
4.1 (1) For the purpose of sub-subparagraph 3 i B of subsection 267.5 (7) of the Act, the prescribed amount is the amount determined in accordance with the following rules:
Until December 31, 2015, the prescribed amount is $36,540.
On January 1, 2016, the prescribed amount set out in paragraph 1 shall be revised by adjusting the amount by the indexation percentage published under subsection 268.1 (1) of the Act for that year.
On January 1 in every year after 2016, the prescribed amount that applied for the previous year shall be revised by adjusting the amount by the indexation percentage published under subsection 268.1 (1) of the Act for the year. O. Reg. 221/15, s. 2.
[15] The Plaintiff argues that the new deductible is not to be applied “retroactively”, which I think is more accurately meant to be “retrospectively”, because the new deductible is a substantive change and, for that reason, should only apply to accidents occurring after the August 1st 2015 amendment. The position of the Defendant is that the wording and the policy behind the amendment indicate its intended immediate application to ongoing motor vehicle personal injury actions. The Defendant argues that the changes are, in any event, procedural in nature and therefore apply with immediate effect.
[16] I am in agreement with the Defendant’s position. A regulation which varies the amount of the deductables for general damages and Family Law Act (“FLA”) claims for fixed annual periods is procedural in nature. As such, it is deemed to apply retrospectively. In my view, the new regulations are designed to fix the deductible amounts in current dollars, just as jury verdicts and other court judgments are in current dollars. Moreover, it is difficult to accept that the legislature, when providing on August 1, 2015 that the amount of the deductible “until December 31, 2015, the prescribed amount is $36,540” meant only to capture motor vehicle accidents occurring in 2015.
[17] I would follow the recent decision of James J. in Vickers v. Palacious, 2015 ONSC 7647 in which the new statutory deductables were given immediate retrospective effect so as to apply to a pre-2015 accident. The court stated at paras. 11 and 18 as follows:
11 In Somers v. Fournier 2002 45001 (ON CA), [2002] O.J. No. 2543 (C.A.), one of the issues under appeal related to the proper characterization of the cap on non-pecuniary damages arising from the so-called trilogy of decisions from the 1970's where the Supreme Court of Canada approved a uniform limit or cap on general damages in personal injury cases. The discussion of the cap in the Court of Appeal in Somers was in the context of conflict of laws issues, namely, whether the substantive law of the State of New York should apply to an action brought in Ontario. In these situations the law provides that the substantive law of the place where the wrong occurred should apply whereas the procedural law of the place of trial governs procedural issues. Cronk J.A. agreed with the trial judge that the cap on damages was procedural in nature and therefore the plaintiff would be subject to the cap imposed by Canadian law although under the law of the State of New York, a similar cap did not exist. The court considered the policy reasons for the cap and differentiated between entitlement to damages and the quantification of damages in the conflict of laws context. Entitlement was said to be substantive; quantification was said to be procedural (para. 51).
18 To summarize, I find the legislative intention to be clear; the revised deductible is to apply to all pending actions. The plaintiffs did not have vested legal rights that were interfered with; they had a claim that had not gone to trial and in respect of which there had been no award or other disposition when the new deductible was enacted. Alternatively, if it is necessary to resort to presumptions or interpretive aids, I find that the deductible issue is a matter of procedural law and ought to be presumed to apply to this action.
[18] I am aware of the decision of Belch J. in Cobb v. Long Estate, 2015 ONSC 6799 in which it is stated that the court ought to follow the decision of Toscano-Roccamo J. in El-Khodr v. Lackie, 2015 ONSC 4766 “which set the deductible at $30,000” (see para. 13). Respectfully, the court in El-Khodr did not address the deductible-retrospectivity issue and instead held that the January 1, 2015 amendment to the provisions dealing with pre-judgment interest was properly characterized as substantive and not procedural in nature, based on the court’s interpretation of the Court of Appeal decision in Somers v. Fournier 2002 45001 (ON CA), [2002] O.J. No. 2543 (C.A.). If Belch J. was saying that the increase in the deductible is a matter of substantive law that cannot apply retrospectively, I would disagree.
[19] Applying the new statutory deductible of $36,540 to the jury verdict of $33,000 for general damages results in a nil recovery. Similarly, the new statutory deductible for FLA damages (as would the previous deductible), reduces the FLA award for the husband and children to a nil recovery.
Notice
[20] An issue arises in this case as to whether interest on the damages awarded (agreed to be 1.37%) should run from August 25, 2011, when the Defendant was served with a notice letter or from a later date when the Defendant eventually notified his insurer. I accept that the date of notice to the Defendant governs and interest runs therefrom to the date of the jury verdict (1574 days in this case).
Set-Offs
[21] The parties have agreed that the jury awards for past housekeeping and for past caregiving must be reduced by the amount of statutory accident benefits received by the Plaintiff for those matters. The deductions have been agreed upon. The net award for past housekeeping is $13,196.63 and interest (running from the notice letter) is $731.82. Similarly, the net award for past caregiving is $8,875 plus interest of $492.16. As noted, the rate of interest is 1.37%.
[22] In summary, judgment will issue for the Plaintiff for the sum of $56,294.98 inclusive of interest which is comprised of: past housekeeping $13,927.82; past caregiving $9,367.16; future housekeeping $21,000; and future caregiving $12,000.
Justice Charles T. Hackland
Released: March 22, 2016
CITATION: Corbett v. Odorico, 2016 ONSC 1964
COURT FILE NO.: 11-52967
DATE: 2016/03/22
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
SARAH CORBETT, SCOTT CORBETT, SAM CORBETT by his Litigation Guardian, SCOTT CORBETT, and WILLAIM CORBETT by his Litigation Guardian, SCOTT CORBETT
Plaintiffs
– and –
EVA ODORICO
Defendant
post verdict rulings
Hackland J.
Released: March 22, 2016