Abdulhussein v. Barbeau, 2019 ONSC 966

COURT FILE NO.: 16-67434

DATE: 20190207

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Mazen Abdulhussein, Plaintiff

AND

Alain Barbeau, Defendant

BEFORE: Justice Robert Smith

COUNSEL: Mick Hassell, Counsel for the Plaintiff

Todd J. McCarthy, Counsel for the Defendant

HEARD: January 24, 2019

ENDORSEMENT ON THRESHOLD MOTION

1The plaintiff claimed damages resulting from a serious motor vehicle accident which occurred on June 2, 2015. He was travelling at 60-70 km/h when his vehicle was struck by the defendant’s pick-up truck, which caused his vehicle to collide with an 18 wheel truck, then to hit an SUV and finally to strike and move a concrete barrier. He claimed for general damages and for loss of past and future income.

2The jury found that the defendant was 100% responsible for causing the accident and awarded the plaintiff $65,000 for general damages and $18,566 for loss of past income and $0 for loss of future income.

3The plaintiff had almost completed Grade 11 at the time of the accident. He was unable to write his exams as a result of the injuries he suffered in the accident. He also testified that he was unable to concentrate sufficiently to complete Grade 12 and he has not worked or attended school (other than taking an online course) since the accident.

4Dr. Friedlander, a pain specialist and anesthesiologist, testified that the plaintiff suffered from neck sprain and lower back sprain and chronic pain syndrome, all of which were caused by the accident. His evidence was uncontradicted. The pain symptoms have lasted for more than 3 years and he testified that the plaintiff had a poor prognosis to recover.

5The plaintiff was also diagnosed with depression, PTSD and post concussive syndrome by Dr. Kaluzienski. Dr. Sheriko, of the concussion clinic diagnosed that the plaintiff suffered from persistent symptoms from a mild traumatic brain injury. Treating psychiatrist Dr. Gawlik assessed the plaintiff as having symptoms of depression and cognitive difficulties.

6Dr. Kurzman, a neuropsychologist, diagnosed the plaintiff with a major depressive disorder with anxious distress (the latter which was in partial remission) caused by the accident. He testified that the plaintiff suffered a mild traumatic brain injury and a mild neurocognitive disorder due to having suffered a traumatic brain injury, as well as pain and emotional distress caused by the accident.

7I prefer Dr. Kurzman’s evidence to that of Dr. Friedman. I accept Dr. Kuzman’s evidence that the plaintiff had a “moderately impaired cognitive status” after the accident and had good cognitive functioning before the accident as evidenced by his grades. Dr. Kurzman gave his opinion that the plaintiff was cognitively impaired due to the head injury, chronic pain and depression all of which were all caused by the June 2, 2015 accident.

Analysis

8The plaintiff must show that the injuries he suffered in the accident meet the threshold, namely that he has suffered a permanent serious impairment to an important physical, mental or psychological function.

9The parties agree that the plaintiff was not working at the time of the accident as he was completing Grade 11 and he had been let go from Tim Hortons on May 31, 2015.

10Regulation 461/96 sets out the threshold criteria in sections 4.2(1) 1, 2 and 3.

Substantial Interference

11Section 4.2(1) 1. iii states as follows:

The impairment must, substantially interfere with most of the usual activities of daily living, considering the person’s age.

12At the time of the accident the plaintiff was attending high school. He has not been able to continue and complete high school as a result of his inability to concentrate which was caused by the accident. As a result I find that the impairment substantially interferes with most of his usual daily activities. These include his ability to continue schooling and his ability to work due to his inability to concentrate and his depression. He also suffers from, chronic pain syndrome which substantially interferes with most of his daily activities.

Important Function

13Sections 4.2(1) 2.(iii) and (iv) of the Regulation require the impairment to substantially interfere with an important function. The inability to attend and complete high school or to work affects an important function of the usual activities of daily living considering the plaintiff’s young age. The ability to finish high school and to work are necessary to provide for his own care or well-being.

14The plaintiff also suffers from chronic pain syndrome which affects his neck and back which is important to his future work and is important to the function of the usual activities of daily living as he suffers from constant pain.

Continuous and Permanent

15Sections 4.2(1) 3. (i) and (iii) of the Regulation require that the impairment must have been continuous since the accident, be based on medical evidence, and subject to the person reasonably participating in recommended treatment. The impairment must be expected to continue without substantial improvement.

16The effect on the plaintiff has been serious because it has prevented him from completing high school and working. The cognitive deficit he suffers has been continuous and will have a permanent effect on his future employability.

17The plaintiff has sought medical help and continues to see his treating psychiatrist to address his psychiatric problems. The prognosis for curing the chronic pain is poor and the cognitive deficits caused by the accident are unlikely to change. As a result this impairment is expected to continue without substantial improvement making it permanent and continuous.

18Based on all of the medical evidence I am satisfied that the plaintiff’s chronic pain, his depression and the effect on his cognitive functioning caused by the head injury, all of which were caused by the accident, allows his injuries to meet the threshold.

Disposition

19For the above reasons the defendant’s motion seeking a finding that the plaintiff’s injuries do not meet the threshold is dismissed.