Bruff-Murphy v. Gunawardena, 2016 ONSC 7

Released January 5, 2015 | Full decision

This decision concerns a threshold motion following final instructions to the jury for an order striking the plaintiff’s claim for general damages on the basis that she failed to prove she suffered permanent and serious impairment of an important physical, mental or psychological function pursuant to s. 267.5 of the Insurance Act, R.S.O. 1990 Chapter I.8, as amended, including Ontario Regulation 381/03, made therunder. The motion was defeated.

At the time of the motor vehicle accident (MVA), the plaintiff was in her mid to late thirties and had numerous pre-existing health issues and personal injuries. She claimed the MVA caused permanent soft tissue injuries to her neck, right shoulder and back, radiating pain into her hip and right leg, headaches, musculoskeletal impairments, major depressive disorder, post traumatic stress disorder and pain disorder.

The defendant claimed the plaintiff sustained uncomplicated muscle strain injuries to the neck, right shoulder area, mid back and low back regions. The defendant also alleged the plaintiff had completely recovered.

The plaintiff’s medical witnesses were a treating and expert physiatrist, a psychiatric expert, a treating psychologist, a treating psychiatrist and treating occupational therapists. The plaintiff’s medical evidence was corroborated by the testimony of her spouse and two friends.

The defence conducted two independent medical examinations and relied on the testimony of the doctors who performed them. The defence called no other witnesses to testify. After an extensive review of the evidence given by the expert witnesses the judge rendered one defence expert’s evidence irrelevant and the other’s not credible.

Kane J. provided the following summary in support of the plaintiff’s claims.  It is included here for its illustrative value on evidence required in defeating defendant threshold motions:

 

Serious Impairment:

[129] The evidence presented by the plaintiff established that:

  1. She has pain in her lower back almost daily, in the back of her neck up to the back of her head, her right hip and radiating to the top of her right thigh and constant headaches since the MVA;
  2. Her neck pain is constant, varying between moderate to severe and occurring daily;
  3. She must lie down when the pain is severe;
  4. She has low energy; and
  5. She is receiving extensive medical treatment to overcome her injuries and symptoms.

[130] The diagnoses of the plaintiff’s doctors as stated above establish that the plaintiff has suffered a serious impairment.

 

Permanent

[131] The recorded injuries and level of impairment to the plaintiff since the MVA have existed now for seven years with only slight improvement despite receiving substantial medical treatment.

[132] Her health care providers testified she cannot go back to work now and may never be able to as a result of her continuing injuries and impairments.

[133] The plaintiff was twice unsuccessful in 2010 to return to her employment and perform the tasks of a retail store sales clerk in the second case.

[134] [Her treating physiatrist] testified her prognosis was poor. [Her psychiatric expert] said he was hopeful but guarded given the length of time and level of treatment since the MVA.

…[136] The diagnoses of the plaintiff’s doctors as stated above establish that the plaintiff’s injuries and impairment appear to be permanent.

 

Important Function

[137] The diagnoses of the plaintiff’s doctors as stated above establish that the plaintiff’s level of impairments are serious restrictions and include physical limitations as to sitting, bending, twisting, walking, pushing, pulling and lifting. Her treating physiatrist testified that the plaintiff’s memory and concentration are poor which prevents her resuming pre-MVA activities including employment.

 

Necessity To Perform Essential Employment Activities

[139] The plaintiff’s evidence is that she has tried but has been and continues to be unable to work beyond several days which thereby exhausts her, inflames her symptoms with resulting in time off, her medical evidence corroborates this position.

[140] None of the plaintiff’s doctors state she has been able to or is now able to resume her former employment level.

 

Substantial Interference With Usual Daily Activities

[141] There is substantial evidence from the plaintiff, her husband, two friends and testing of occupational therapists as to the plaintiff’s many limitations in the daily living and the necessary accommodations the plaintiff and other must make as a result.

[142] Daily limitations exist in the areas of the plaintiff’s interaction with her husband, children, friends, level of energy, irritability and emotions as well as her daily duties as a parent, homemaker and personal care.

[143] These are all matters of importance to the plaintiff.

 

Read the full decision on CanLII

Michael Ettedgui
Written by

Michael practices exclusively in the field of personal injury law at Campisi LLP.

Michael was called to the Bar in 2014. He received his law degree from Osgoode Hall Law School, where he participated in various programs geared towards access to justice and practical legal education. In particular, Michael volunteered with unrepresented litigants at family court and was the student co-ordinator of Osgoode Hall's Pro Bono Students Canada chapter.

When he is not working, Michael enjoys spending time with his wife and three young children.