Court File and Parties
Oshawa Court File No.: CV-15-91778 Date: 20180925 Ontario Superior Court of Justice
Between: Douglas Wray, Plaintiff – and – Rosemary Pereira and Gil Pereira, Defendants
Counsel: T. Charney, for the Plaintiff B. Lee, for the Defendants
Heard: June 20 and 21, 2018
Reasons for Decision Re: Threshold Motion
McKelvey J.:
[1] The plaintiff, Douglas Wray (Mr. Wray), has brought this action for damages as a result of a motor vehicle accident which occurred on December 31, 2012. The action was tried before a jury.
[2] At trial, the plaintiff submitted to the jury that the general damages should be assessed in the area of $150,000 – $200,000, while the defendant suggested to the jury that the general damages should be assessed at $20,000. In their verdict, the jury awarded the sum of $22,000 for general damages, plus $2000 for out of pocket expenses. It is clear the jury rejected the plaintiff’s theory of the case and substantially adopted the defence theory.
[3] The defence has now brought what is commonly referred to as a “threshold motion” for a declaration that the plaintiff’s claim for non-pecuniary loss is barred on the basis that his injuries do not fall within the exceptions to the statutory immunity contained and provided for in s. 267.5(5) of the Insurance Act, R.S.O. 1990, c I.8, and the applicable Regulations. Initially I queried whether a threshold motion was required, given that the amount of the jury award for general damages fell within the statutory deductible. Having heard argument on this issue and for oral reasons previously given, I concluded that I would hear the threshold motion as there remained an issue with respect to the special damages awarded.
Applicable Legal Principles
[4] The applicable legal principles with respect to a threshold motion were most recently canvassed by me in my decision in O’Brien v. O’Brien, 2018 ONSC 4665. In the present case the only issue would relate to whether the plaintiff’s impairments substantially interfere with most of the usual activities of daily living, considering the person’s age.
[5] I have concluded that if all of the plaintiff’s symptoms are attributable to the motor vehicle accident, the plaintiff’s current condition would easily surpass the statutory threshold. The major issue at trial was, however, the extent to which the plaintiff’s current condition is related to the motor vehicle accident as opposed to his pre-existing condition. Section 267.5(5) of the Insurance Act requires that the damages for non-pecuniary loss arise “directly or indirectly” from the use or operation of an automobile. In this case, the plaintiff had a significant pre-existing condition.
[6] For the reasons which follow, I have concluded that the plaintiff has not met his onus of establishing that he meets the statutory threshold.
The Plaintiff’s Current Condition
[7] Mr. Wray is currently 67 years old. He testified at trial that he currently experiences constant or chronic pain in his right knee. He is unable to run or walk long distances, or stand for lengthy periods of time. He has difficulty climbing stairs, squatting or putting on his shoes and socks. He has a constant limp as a result of the pain in his right knee. He has been told that at some point in the future that he will require a knee replacement and is very afraid of this procedure.
[8] Mr. Wray described how many of his pre-accident activities are now very limited. He used to do renovations at home and testified that he now has to contract out those renovations. He still cuts the grass and shovels some snow during the winter. He also does some pool maintenance. However, these activities take considerably longer than previously.
[9] The plaintiff’s position on this motion is that Mr. Wray’s impairments constitute a substantial interference with most of his usual activities of daily living, considering his age in accordance with s. 4.2 of Regulation 461/96. The defence position is that the plaintiff’s current condition is unrelated to the accident.
[10] The medical evidence at trial suggested that Mr. Wray’s complaints were genuine. His symptoms are consistent with an underlying arthritic condition in his right knee. The development of arthritis is demonstrated in medical imaging of the knee. The impairments in his right knee not only result in significant chronic pain for Mr. Wray; they also result in the very significant impairments which he described in his evidence and which are summarized above.
The Plaintiff’s Pre-existing Condition
[11] The plaintiff started to experience pain in his right knee in the early 1990’s. He underwent an arthroscopy at that time and underwent a second arthroscopy several years later. By 2006, Mr. Wray was again experiencing symptoms in his right knee. His family doctor, Dr. Daniel Chsieh, testified that he ordered x-ray films which showed advanced arthritis in the right knee. Dr. Chsieh gave evidence that Mr. Wray was limping and experiencing pain on his visits to him on June 13, 2006 and in May 2007.
[12] The plaintiff called two medical experts at trial, Dr. Robert Luba, and Dr. D.J. Ogilvie-Harris. The defendant called Dr. Joel Finklestein. There was general agreement that prior to the motor vehicle accident, Mr. Wray had a significant pre-existing arthritic condition in his right knee. Dr. Finklestein, for the defence, testified that arthritis is caused by a loss of cartilage space between the bones. This will progress, as it did with Mr. Wray, until there is bone-on-bone contact with no cartilage. Dr. Finklestein examined an x-ray taken in 2006 which demonstrated that Mr. Wray had moderate to severe arthritis in his right knee which had progressed to bone-on-bone. Given the nature of the arthritis, Dr. Finklestein stated that it would be very rare to have no symptoms. He further stated that the motor vehicle accident would have caused a soft tissue injury in the right knee, which would have resolved to its pre-existing condition within six to eight months. He further stated that a muscle strain such as the one experienced by the plaintiff in this action will not result in a progression of the arthritis.
[13] Dr. Luba agreed with many of the points made by Dr. Finklestein. For example, he agreed that Mr. Wray did have advanced pre-existing arthritis in his knee, which was of the bone-on-bone type. Most people with this condition have restricted movement of the knee. Based on the radiology findings, Dr. Luba agreed on cross-examination that it would not be surprising to see significant symptoms. Nevertheless, Dr. Luba stated that there are patients who have significant arthritis, but who do not have significant pain in the knee. I infer from Dr. Luba’s evidence that persons with this level of advanced arthritis will normally experience significant symptoms.
[14] Dr. Luba first saw the plaintiff on January 9, 2014 after the accident. He was referred by his family doctor. At the time of his initial assessment, there was significant swelling in the knee caused by fluid in the back of the knee. This affected the range of motion in the knee and there was pain associated with compression on the back of the knee. Dr. Luba drained the fluid in the knee and injected both Cortisone and Durolane. Dr. Luba expressed the opinion that the motor vehicle accident had set off the plaintiff’s symptoms and caused the pre-existing arthritis to become symptomatic. This resulted in the altered gait and pain experienced by the plaintiff following the motor vehicle accident. Dr. Luba expressed this opinion based on his understanding that the plaintiff did not have significant problems with his right knee before the accident.
[15] Dr. Luba’s opinions were supported by the plaintiff’s expert, Dr. Ogilvie-Harris. Dr. Ogilvie-Harris testified that the plaintiff had developed arthritis in his right knee well prior to the accident. This was documented by medical imaging. The arthritis would be expected to progress despite the accident, but the question was at what rate. He stated that some patients can have serious arthritis but not a lot of symptoms for long periods of time, even decades. Dr. Ogilvie-Harris testified that the plaintiff had minimal symptoms prior to the accident and felt that the plaintiff had the ability to continue without significant symptoms except for the trauma to the knee which was caused as result of the motor vehicle accident. This in turn caused a sudden deterioration in the plaintiff’s condition. He stated that once an arthritic knee became painful, the process would be impossible to reverse.
Analysis
[16] It is apparent that there was a significant difference of opinion on the issue of causation. The plaintiff’s theory was that the motor vehicle accident triggered a pre-existing condition to become symptomatic and resulted in a downward slide in the condition of the plaintiff’s right knee. The defence theory is that the plaintiff had only suffered a muscle sprain in his knee after the accident which would have resolved within six to eight months.
[17] I accept that the plaintiff was experiencing problems in his right knee to some extent prior to the accident. Although the plaintiff denied that he had any episodes of limping prior to the accident, the evidence of his family doctor contradicted him in this regard. The records of the family doctor document decreased range of motion in the knee in the spring of 2006 and also May of 2007. There were also records recording knee complaints by the plaintiff in 2010.
[18] While there was medical expert opinion to support both the plaintiff and defence theories with respect to causation, the plaintiff’s position was weakened at trial by his initial assertion that he did not suffer any limp in his right leg prior to the accident, when in fact this was not accurate. While the plaintiff argues that there were no other complaints of pain made to his family doctor prior to the accident, it remains a fact that the plaintiff had experienced problems with his knee, resulting in two surgeries, since the early 1990’s. This makes it more likely in my view that the plaintiff’s current condition is caused by the natural progression of arthritis in his knee. The jury was clearly of the view that the motor vehicle accident did not play a significant role in causing the symptoms which the plaintiff currently suffers in his knee.
[19] I accept Dr. Finklestein’s opinion that it is very rare for a patient to have no symptoms given the degree of arthritis which was documented in the plaintiff’s right knee. This assertion was supported to some extent by Dr. Luba who testified that given the advanced state of arthritis in the plaintiff’s knee, most people would have restricted movement of the knee. He also suggested that the plaintiff’s limp and pain symptoms were consistent with the degree of arthritis shown on the medical imaging. Dr. Ogilvie-Harris on the other hand downplayed the significance of the pre-existing condition. He suggested that the degree of arthritis shown on x-rays doesn’t predict the outcome for a patient. This statement seems at odds with both the opinions of Dr. Luba and Dr. Finklestein. It also seems to be inconsistent with the complaints made prior to the motor vehicle accident by the plaintiff to his family physician. I am therefore not prepared to accept Dr. Ogilvie-Harris’ opinion in this regard.
[20] Further, the conclusion reached by the jury in this case clearly points to a conclusion that they did not attribute a significant impairment in the plaintiff’s right knee as a result of the motor vehicle accident. In determining whether the threshold has been met, a trial judge may consider the verdict of the jury. This is a consideration to take into account, but is not binding on the trial judge’s determination. See Bishop-Gittens v. Lim, 2016 ONSC 2887. In this case, I find the jury verdict to be a significant factor. The jury has clearly indicated that the injuries suffered by the plaintiff in the accident were modest and rejected the plaintiff’s theory of the case. There was evidence to support their conclusion and while that conclusion is not binding on me, I have concluded that their verdict was reasonable based on the evidence adduced at trial. It therefore deserves serious consideration. All of these factors when taken together satisfy me that the plaintiff has not met its obligation to satisfy me on a balance of probabilities that the plaintiff suffered an injury in the motor vehicle accident which meets the statutory threshold.
Conclusion
[21] For the above reasons, I find in favour of the defence and have concluded that the plaintiff has not established that the plaintiff has suffered a permanent serious impairment in relation to his activities of daily living. Based on these findings, the defence motion is therefore granted.
[22] If counsel cannot agree on the costs of this motion, then an appointment should be taken out through the trial coordinator within 30 days of the release of this decision to address the issues of costs, not only of this motion, but of the action itself. Of course, if there are any other outstanding issues they should be addressed before dealing with costs. Counsel are to deliver written briefs with respect to costs at least 5 days in advance of the hearing.
Justice M. McKelvey Released: September 25, 2018