Corbett et al v. Odorico, 2016 ONSC 1964 (CanLII)

Released March 22, 2016 | Full Decision [CanLII]

Following a successful trial, the Plaintiffs, Sara Corbett and her family were awarded $141,500. Ms. Corbett received:  $33,000 in general damages, $22,000 for past housekeeping and home maintenance, $32,000 for past caregiving, $21,000 for future past housekeeping and home maintenance, and $12,000 for future caregiving. The FLA claimants (her husband and two children) received $7,500 and $7,000 apiece respectively.

Several issues were before Justice Hackland including threshold and applicable statutory deductibles.

Ms. Corbett had been struck head-on at moderate speeds while her vehicle was at rest. The airbags did not deploy and she declined an ambulance. She subsequently experienced whiplash symptoms which evolved into chronic pain.

Ms. Corbett relied mainly on two experts, Dr. Swayze (Psychiatrist) and Dr. Kleinman (Physiatrist). The Defendant called no experts (although defence medicals were conducted prior to trial) and attempted to rely upon cross-examination to discredit the Plaintiff’s position.

The evidence of both experts was that Ms. Corbett was suffering from a Chronic Pain disorder (or alternately a Somatic Symptom Disorder) with depression. His Honour found Ms. Corbett and her witnesses credible in the face of cross-examination, and drew the inference that the defence medicals must agree in large measure with the Plaintiff’s position.

The Defendant focused on pre-existing bouts of depression and periodic back pain that Ms. Corbett experienced before the collision. Justice Hackland astutely identified such problems as evidence of a “thin skull” scenario and refused to draw the conclusions recommended by defence counsel.

His Honour was also mindful of the fact that Ms. Corbett was compelled to continue performing many of the essential tasks of homemaking and caregiving as before the collision. He accepted her evidence that doing so was accompanied by significant pain either at the time or later in the day. He held that this experience of pain represented a substantial interference with most of her usual activities of daily living.

As a result, the threshold motion was dismissed.

Regarding the statutory deductible, counsel for the Corbetts argued that the recent amendments were substantive in nature and therefore should not apply retrospectively.

Justice Hackland did not accept the Plaintiffs’ position. He agreed with the Defendant that a regulation that varies the amount of deductibles for general damages and FLA claims is procedural in nature.  He found it was difficult to accept that the legislature could not have meant to restrict the effect of the $36,540 deductible to collisions after August 1, 2015 until the end of 2015 only.

As a result, Ms. Corbett’s general damages claim and all of the FLA claims were reduced to zero.

 

Read the full decision on CanLII

Keith Finley
Written by

Keith was raised in Etobicoke, and is excited to return to the GTA in order to practice plaintiff personal injury law. After his call to the Bar in 2009, Keith worked briefly for TD Insurance as in-house legal counsel, prior to moving to London for family reasons. He has spent the last two years working exclusively in plaintiff personal injury and medical malpractice law with a leading firm.

Through his volunteer work, he has written for The Monarch, the Brain Injury Association of London and Region’s quarterly magazine and sat on their Community Outreach committee. He was also a member of the Spinal Cord Injury of Ontario’s Fundraising Committee 2013-2014.

Keith is devoted to his wife and two boys. He loves to cook, and enjoys a good book when he isn’t working.