Over the course of a career, a motor vehicle accident lawyer will be asked to represent clients with a wide range of injuries. In cases where a person loses a limb or becomes paralyzed, the impacts are obvious. Other cases are more nuanced. For example, many motor vehicle accident victims suffer from “invisible” injuries such as chronic pain, PTSD, or subtle cognitive disfunctions. In these situations, injury lawyers often find it challenging to prove that their clients are seriously impaired as defined by Ontario’s insurance Act.
The Act states that damages for non-pecuniary loss are only owed if the injured individual has died, has suffered “permanent serious disfigurement,” or has suffered “permanent serious impairment of an important physical, mental or psychological function.”
Last month, Law Times’ Shannon Kari wrote about two recent Ontario Superior Court rulings that show how difficult it can be for chronic pain sufferers to access compensation. In Grieves v. Parsons, the plaintiff, a truck driver injured in a motorcycle accident, claimed that his acquired chronic pain prevented him from working. He and his motor vehicle accident lawyer sought upwards of $1-million in damages.
While the judge accepted that Grieves’s chronic pain may prevent him from driving a truck, he was unconvinced that the motorcycle accident was directly to blame. Rather, he concluded that the plaintiff’s preexisting osteoarthritis significantly contributed to the impairment.
In Nadarajah v. Aviva Canada Inc., Justice Patrick Monahan found that the plaintiff’s injuries, while “no doubt unpleasant and perhaps frustrating,” could not be defined as “serious.”
In his decision, Justice Monahan wrote that a physical, mental or psychological function must “play a major role in the health, general well-being and way of life of the particular injured plaintiff” if it is to be considered “important.” He ruled that Mr. Nadarajah’s injuries did not meet this standard.
“Mr. Nadarajah did not explain how the limitations resulting from his accident-related injuries have limited his ability to cook, to do groceries, or to attend social gatherings, none of which would necessarily involve heavy lifting, overhead activity or repetitive or forceful use of the left upper extremity against resistance,” Justice Monahan wrote.
Serious brain or spinal injuries are universally acknowledged as catastrophic events for good reason. However, the serious nature of those injuries should not prevent victims of less traumatic but still devastating afflictions from accessing fair and reasonable compensation.
If you or a member of your family has been injured in a traffic accident, contact a motor vehicle accident lawyer at Neinstein Personal Injury Lawyers today to learn how we can help. Our experienced team will assess your claim and explain your legal options.
Greg Neinstein
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