The defendant brought a threshold motion following a jury trial on damages for a motor vehicle accident.
The plaintiff claimed general non-pecuniary damages, loss of income, and psychological services.
The court assessed whether the plaintiff sustained a permanent serious impairment of an important physical, mental, or psychological function as a result of the accident, as required by s. 267.5 of the Insurance Act and O. Reg. 381/03.
The court found that the plaintiff's physical injuries (whiplash) had resolved within 8 weeks and were not continuous.
The plaintiff's expert orthopedic surgeon, Dr. Cooke, ultimately could not attribute the plaintiff's current subjective symptoms to the accident.
The court also rejected the opinion of the plaintiff's psychological expert, Dr. Holowaty, due to her lack of objectivity, failure to report inconsistencies in the medical record, and failure to consider malingering as per DSM-5 guidelines.
The court found the plaintiff's testimony lacked credibility due to exaggerated pain behaviour and inconsistencies with reported activities.
Consequently, the court declared that the plaintiff did not meet the statutory threshold for permanent serious impairment, dismissed the claims for health care expenses and loss of income, and assessed non-pecuniary damages at nil after applying the statutory deductible.
