Chronic Pain Caused by Car Accident
May 18, 2010, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
In a recent threshold decision (Nicolas and Bowers) the Ontario court judge had to determine whether the plaintiff’s injuries brought her over the threshold of a permanent and serious impairment. The plaintiff was suffering from residual symptoms related to soft tissue injuries sustained in a car accident. It was accepted that the injuries were permanent. The primary issue to be determined was whether the injuries were serious.
The plaintiff’s employer was able to accommodate her at work by eliminating certain job functions and she was able to perform her assigned job duties without too much difficulty. The trial judge had to consider whether the injuries seriously affected her enjoyment of life.
The judge acknowledged that a quantitative analysis was not necessary to determine whether there was a “substantial interference” with one’s enjoyment of life. The judge noted the following passage from the recent decision in Brak v Walsh (Ont CA, 2008):
“The requirement that the impairment be “serious” may be satisfied even although plaintiffs, through determination, resume the activities of employment and the responsibilities of household but continue to experience pain. In such cases it must also be considered whether the continuing pain seriously affects their enjoyment of life, their ability to socialize with others, have intimate relations, enjoy their children, and engage in recreational pursuits.”
In this case, the trial judge determined that the plaintiff’s case did in fact meet the threshold test. He accepted that her ongoing residual symptoms were not the result of pain behaviour or hyperactivity. The judge found that the plaintiff’s pain and related symptoms affect two important pre-accident “life joys”. Those being the ability to fully experience the intimacy of sleeping with her husband, day to day, and entertaining her extended family on a weekly basis without the help of others. As the judge noted in his decision:
“The first loss is, in my opinion, obvious for those who enjoy the comfort and security of sharing one’s bed with a life partner. The second is, from my observations of Mrs. Nicolas and her family, something that is culturally, if not psychologically, of great importance to her and her family, who are clearly ever present and foremost in her life. To say that she has benefitted from the support and co-operation of others in these weekly gatherings is to miss the very essence of her complaint. To do so would impose, if only unconsciously, one’s own values on a situation for which one might not have sufficient understanding.”
It is interesting to note the judge’s acknowledgement of culturally differences and the importance in this particular fact situation.
|Posted under Personal Injury, Car Accidents, Chronic Pain, Pain and Suffering
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Deutschmann Law serves South-Western Ontario with offices in Kitchener-Waterloo, Cambridge, Woodstock, Brantford, Stratford and Ayr. The law practice of Robert Deutschmann focuses almost exclusively in personal injury and disability insurance matters. For more information, please visit www.deutschmannlaw.com or call us toll-free at 1-866-414-4878.
The opinions expressed here, while intended to provide useful information, should not be interpreted as legal recommendations or advice.