Released April 28, 2016 | Full Decision [CanLII]
Liability for the motor vehicle collision was admitted. The parties went to trial on the issue of damages. The jury awarded $40,000 for general damages and no award for loss of competitive advantage or future loss of income.
The defence brought a “threshold motion” for a declaration that the plaintiff’s claim for general damages was barred because her injuries did not meet the statutory threshold.
The motion turned on whether the plaintiff sustained a permanent serious impairment of an important physical, mental or psychological function.
Justice McKelvey applied the threshold test as follows:
- Has the injured person sustained permanent impairment of a physical, mental or psychological function?
- If yes, is the function which is permanently impaired an important one?
- If the answer to question 2 is yes, is the impairment of the important bodily function serious?
The court reiterated that in determining whether the threshold has been met, a trial judge may take into consideration the jury’s verdict, but is not bound by it.
On the issue of chronic pain disorder, the court accepted the evidence of the plaintiff’s expert, Dr. Chen, and rejected the evidence of Dr. Ford who had testified for the defence that the plaintiff did not suffer from a chronic pain disorder.
On the evidence at trial, the court was satisfied that the plaintiff had met her burden of establishing that she did meet the threshold of permanent serious impairment of important physical, mental or psychological function and therefore dismissed the motion.
Counsel for the Plaintiffs: Erin M. Neal
Counsel for the Defendant: Sara Pottle
