November 09, 2008, Kitchener, Ontario
Posted by: Robert Deutschmann, Personal Injury Lawyer
In car accident claims, where the matter has gone to a jury trial, the judge will be required to make a determination as to whether the injured party has suffered a "permanent and serious impairment of an important physical, mental or psychological function." This determination is made by the trial judge at the end of trial after all the evidence has been entered and is now before the jury for consideration in the jury deliberations. Often a trial judge will wait for the jury to reach a decision as the trial judge may take the jury´s decision into consideration. In many cases a trial judge does not wish to make a determination on the threshold that his different that the jury´s decision. For example, a trial judge makes a determination on a threshold motion that the injured person does in fact have a permanent and serious impairment arising from the car accident but a jury makes a decision that plaintiff was not injured in the car accident and therefore entitled to no compensation.
In a recent threshold decision (Gaukel and Thukral), the plaintiff claimed she had suffered soft tissue injury and chronic pain. The complaints of pain and dysfunction were subjective and given primarily by the evidence of the plaintiff. As such the plaintiff´s credibility was an important aspect of the trial. She had difficulty with her work at a bank and took time off due to the injuries and fatigue. She eventually found office/sedentary work on a full time basis and continued to work despite ongoing pain. The plaintiff had some pre car accident complaints in the same area of her body.
The trial judge determined that, primarily based on the evidence of the plaintiff, her husband and a friend, that the injuries have had a serious impact on her activities of daily living and recreational activities since the accident.
The trial judge wrote: "I accept that she was a very active individual prior to this accident. She was involved in numerous sports including competitive soccer, boating, skiing and numerous activities with her children. She was primarily responsible for the inside maintenance of her house, meals, laundry and shopping. She also looked after much of the grass cutting, gardens, pool and other outdoor maintenance of the family home.
The plaintiff had, as well, an active social life and very close marriage. Her evidence, which I accept, made it clear that her life changed significantly after the accident. She could no longer clean her entire house on Saturday morning, but had to do it in bits and pieces throughout the week. She was in constant pain and worse by the end of the day. Much of the indoor maintenance of the home fell to cleaning ladies or other family members. She did little outside, although was able to vacuum the pool. Shopping fell more and more to her husband.
The plaintiff´s sporting activities changed. She no longer plays sports with her children, no longer skis, or swims lengths. She no longer participates in any sport. She changed her position on her soccer team. She continued to play for four years, but at a much reduced capacity and with increasing pain and frustration. She finally quit that activity. The plaintiff´s social life has diminished as she is too tired and sore at the end of a day. Her husband and she had to undergo marriage counseling for a period of time due to stresses and lack of intimacy within the marriage caused by the plaintiff´s pain.
The plaintiff changed jobs because of her injuries, and now has a position that allows her much more physical flexibility."
It is also interesting to note the trial judge´s comments on whether the plaintiff suffered a permanent injury. The judge noted that the Defendant´s expert had an opinion that was opposite to that of four treating physicians and the judge rejected the Defence expert´s opinion.
"Dr. Cameron, for the defence, felt that the injury was not permanent and would sometime in the future spontaneously disappear. He could give no plausible explanation as to why that might occur, nor could he give any time frame as to when it might occur. He also testified that he felt his opinion was superior to the other 4 treating physicians, even though only having met the plaintiff on one occasion for less than one-half hour, because the treating physicians "could well be emotionally involved and, therefore, their evidence may be slanted." There is no such evidence before this court to that effect. I reject Dr. Cameron´s opinion on the permanency test, and prefer the opinions of the treating physicians as having much more substance and reasoning."
The trial judge determined that the plaintiff, in this case, did meet the threshold test. The jury awarded the Plaintiff $40,000.00 in general damages for her injuries.