The defendants in a recent jury trial succeeded on a threshold motion. In Ryckman v. Pottinger, 2013 ONSC 2857 (S.C.J.), the plaintiff had been in two motor vehicle accidents 11 months apart. The plaintiff entered into a Pierringer Agreement with the first defendant and proceeded to trial against the second defendant. The jury assessed global damages at $175,000 and the defendant at trial was responsible for 10% of the figure. General damages would have been $3,500.
In granting the threshold motion, Justice Parayeski noted that an accident by accident analysis is required; just because a plaintiff met threshold in one case does not mean she will in another. Justice Parayeski inferred from the jury awards that they did not accept the submissions of the plaintiff as to her damages. It appeared the jury did not find the plaintiff credible. There was an observable difference between the plaintiff's appearance at court versus on surveillance. Ultimately, the damages awarded were so small as to lead to the conclusion that the plaintiff did not meet the threshold. The second accident caused no more than a minor exacerbation of the injuries she sustained in the first accident.
Tampilkan postingan dengan label Threshold. Tampilkan semua postingan
Tampilkan postingan dengan label Threshold. Tampilkan semua postingan
Rabu, 19 Juni 2013
Rabu, 26 September 2012
Threshold Motion Successful
Surveillance evidence can be useful in showing that the plaintiff does not meet the Insurance Act threshold.
In Dahrouj v. Aduvala, 2012 ONSC 4090 (S.C.J.), the plaintiff was injured in a minor rear end collision. She was a homemaker and alleged she developed chronic pain which impaired her functioning in the home and her social interaction in the community.
The evidence at trial was that the plaintiff visited her family doctor on multiple occasions prior to the accident complaining of head, neck and back pain. She made similar complaints post-accident. The defendant obtained surveillance showing the plaintiff engaged in a variety of activities, including scraping snow and ice off her car, pumping gas, reaching for groceries on an upper shelf and carrying groceries. Justice Hackland described the video as “particularly devastating” to the plaintiff’s credibility, as it showed the plaintiff stretching and lifting, the activities she alleged restricted her functioning as a homemaker.
The plaintiff’s expert diagnosed her with “central sensitization”, based on a 45 minute interview and relying only on the plaintiff’s self reports. Justice Hackland preferred the defence expert, who conducted a more thorough assessment and whose opinion was corroborated by the surveillance evidence.
Justice Hackland held the plaintiff had not proved she sustained a serious, permanent impairment of an important physical function. As a result, she was not entitled to general damages and her recovery was limited to $32,000, the amount the jury awarded for past housekeeping.
Surveillance of the plaintiff can be extremely important in defending claims, especially those alleging chronic pain. When surveillance can be combined with expert opinion, it can be effective in showing that the plaintiff’s claim does not meet the threshold.
Rabu, 09 November 2011
Sheikh v. Pinheiro 2011 ONSC 6143
We thank M. Edward Key of O’Donnell, Robertson & Sanfilippo for this contribution to our blog.
The plaintiff was going westbound in her vehicle and the defendant taxi driver was travelling northbound in his taxi. They collided at an intersection. The defendant taxi then went on to collide with a southbound vehicle. That southbound vehicle did not collide with the plaintiff’s vehicle.
None of the drivers appeared to be hurt. They all went to the same Collision Reporting Center and filled out very detailed collision reports. There was no question who was driving what vehicle.
On the second anniversary of the collision, the plaintiff brought an action against the driver of the southbound vehicle, believing that he was the taxi driver. Essentially, the plaintiff got the other two drivers confused.
Two years after that (i.e. four years after the collision), the plaintiff commenced a separate action against the real taxi driver after realizing the mistake.
The taxi driver brought a motion for summary judgment on the basis that the action was limitation barred.
The plaintiff argued that there was a genuine issue regarding when the plaintiff knew or ought to have known the true identity of the driver that hit her vehicle. The motion judge made short work of that argument. In particular, for strategic reasons, the plaintiff did not swear an affidavit regarding the state of her personal knowledge of the issues, and the motion materials only included affidavits from their lawyers. The judge determined that the information was readily available in the form of the Self Collision Reports.
Alternatively, the plaintiff argued that there was a genuine issue for trial on the basis that she could not "discover" that her injuries were likely to satisfy the Insurance Act threshold until 2 years before she started the second action.
The motions judge rejected the plaintiff's argument. The trial judge considered that the medical evidence was clear that it was "reasonably discoverable" that the plaintiff's injuries met the threshold more than two years before the second action was commenced.
The motion judge looked not only at medical reports, but also relied on the fact that the first Statement of Claim (issued exactly 2 years after the accident) alleged that she sustained "serious and permanent injuries." The motion judge stated at paragraph 47 of his reasons that, "While this action was mistakenly directed against the wrong defendant, this assertion by the plaintiff in the Statement of Claim is akin to an admission that, by at least that time, if not earlier, the plaintiff viewed her injuries from the accident as serious and permanent, and that they had thereby discovered their potential cause of action."
The plaintiff was going westbound in her vehicle and the defendant taxi driver was travelling northbound in his taxi. They collided at an intersection. The defendant taxi then went on to collide with a southbound vehicle. That southbound vehicle did not collide with the plaintiff’s vehicle.
None of the drivers appeared to be hurt. They all went to the same Collision Reporting Center and filled out very detailed collision reports. There was no question who was driving what vehicle.
On the second anniversary of the collision, the plaintiff brought an action against the driver of the southbound vehicle, believing that he was the taxi driver. Essentially, the plaintiff got the other two drivers confused.
Two years after that (i.e. four years after the collision), the plaintiff commenced a separate action against the real taxi driver after realizing the mistake.
The taxi driver brought a motion for summary judgment on the basis that the action was limitation barred.
The plaintiff argued that there was a genuine issue regarding when the plaintiff knew or ought to have known the true identity of the driver that hit her vehicle. The motion judge made short work of that argument. In particular, for strategic reasons, the plaintiff did not swear an affidavit regarding the state of her personal knowledge of the issues, and the motion materials only included affidavits from their lawyers. The judge determined that the information was readily available in the form of the Self Collision Reports.
Alternatively, the plaintiff argued that there was a genuine issue for trial on the basis that she could not "discover" that her injuries were likely to satisfy the Insurance Act threshold until 2 years before she started the second action.
The motions judge rejected the plaintiff's argument. The trial judge considered that the medical evidence was clear that it was "reasonably discoverable" that the plaintiff's injuries met the threshold more than two years before the second action was commenced.
The motion judge looked not only at medical reports, but also relied on the fact that the first Statement of Claim (issued exactly 2 years after the accident) alleged that she sustained "serious and permanent injuries." The motion judge stated at paragraph 47 of his reasons that, "While this action was mistakenly directed against the wrong defendant, this assertion by the plaintiff in the Statement of Claim is akin to an admission that, by at least that time, if not earlier, the plaintiff viewed her injuries from the accident as serious and permanent, and that they had thereby discovered their potential cause of action."
Senin, 16 Mei 2011
Public Transit
This blog was prepared by Jennifer Stirton.
The Insurance Act has been amended by Bill 173, the Better Tomorrow for Ontario Act (Budget Measures), 2011, which received Royal Assent on May 12, 2011.
The amendments relate to incidents involving public transit and make two major changes. First, owners and drivers of public transit vehicles are not protected by subsections 267.5(1), (3) and (5) of the Insurance Act, which provide threshold protections and limit income loss claims, if the public transit vehicle does not collide with another automobile or any other object in the incident. In other words, public transit drivers and owners are not protected defendants unless there is a collision. The second major change is the addition of subsection 268(1.1), which provides that occupants of public transit vehicles who are injured are not entitled to statutory accident benefits if the public transit vehicle does not collide with another automobile or any other object.
These changes are clearly aimed at passengers who allege injury arising from incidents that do not involve collisions, such as sudden start/sudden stop claims. While it will reduce the cost of accident benefits being paid, it may result in an increase in tort actions against defendants who are no longer entitled to statutory protections.
The Insurance Act has been amended by Bill 173, the Better Tomorrow for Ontario Act (Budget Measures), 2011, which received Royal Assent on May 12, 2011.
The amendments relate to incidents involving public transit and make two major changes. First, owners and drivers of public transit vehicles are not protected by subsections 267.5(1), (3) and (5) of the Insurance Act, which provide threshold protections and limit income loss claims, if the public transit vehicle does not collide with another automobile or any other object in the incident. In other words, public transit drivers and owners are not protected defendants unless there is a collision. The second major change is the addition of subsection 268(1.1), which provides that occupants of public transit vehicles who are injured are not entitled to statutory accident benefits if the public transit vehicle does not collide with another automobile or any other object.
These changes are clearly aimed at passengers who allege injury arising from incidents that do not involve collisions, such as sudden start/sudden stop claims. While it will reduce the cost of accident benefits being paid, it may result in an increase in tort actions against defendants who are no longer entitled to statutory protections.
Rabu, 27 April 2011
Threshold Motion Successful
Rajic v. Atkins, [2011] CanLII O.N.S.C. 1024 (S.C.J.)
In this Bill 59 action, the defendant brought a motion to have the action dismissed on the basis that the plaintiff failed to meet threshold after the jury retired to consider its verdict.
Justice Wilson granted the motion and dismissed the action. She found that the plaintiff was an unreliable historian and that there were comments in numerous medical reports about exaggeration, psychogenic pain and illness behavior. She found that the plaintiff’s self report could not be used as a basis for diagnosis because of the many inconsistencies in statements that he made. Since the plaintiff’s experts relied to a great extent on the truthfulness of what the plaintiff reported to them, she did not attach significant weight to their opinions.
The defendant had obtained surveillance of the plaintiff showing him engaged in various activities such as walking without a limp, carrying a 10lb bag of potatoes, clearing snow off his car, working under the hood of his car for 45 minutes, mowing the lawn, raking and bending down to pull weeds. Justice Wilson did not accept the explanation that he was having “one of his good days” when he was filmed by the investigator. Justice Wilson held that his sworn evidence at trial concerning his pain and limitations were inconsistent with the level of function demonstrated on the surveillance tapes.
Credibility is extremely important in a threshold motion and tools such as surveillance can be invaluable, as was seen in this case.
In this Bill 59 action, the defendant brought a motion to have the action dismissed on the basis that the plaintiff failed to meet threshold after the jury retired to consider its verdict.
Justice Wilson granted the motion and dismissed the action. She found that the plaintiff was an unreliable historian and that there were comments in numerous medical reports about exaggeration, psychogenic pain and illness behavior. She found that the plaintiff’s self report could not be used as a basis for diagnosis because of the many inconsistencies in statements that he made. Since the plaintiff’s experts relied to a great extent on the truthfulness of what the plaintiff reported to them, she did not attach significant weight to their opinions.
The defendant had obtained surveillance of the plaintiff showing him engaged in various activities such as walking without a limp, carrying a 10lb bag of potatoes, clearing snow off his car, working under the hood of his car for 45 minutes, mowing the lawn, raking and bending down to pull weeds. Justice Wilson did not accept the explanation that he was having “one of his good days” when he was filmed by the investigator. Justice Wilson held that his sworn evidence at trial concerning his pain and limitations were inconsistent with the level of function demonstrated on the surveillance tapes.
Credibility is extremely important in a threshold motion and tools such as surveillance can be invaluable, as was seen in this case.
Rabu, 05 Januari 2011
Threshold
Tyrell v. Bruce, [2010] O.J. No. 5245 (S.C.J.).
The defendants brought a motion alleging that the plaintiff failed to meet the threshold pursuant to section 267.5(5) of the Insurance Act.
The plaintiff was taken to hospital the night of the accident and released. He did not see his family doctor for 2 months. He continued taking courses at college and worked a telemarketing job and at a convenience store for a period of time. Over the years, he saw several health care providers and reported to them complaints of pain in his head, neck, shoulders, back, legs, knees and ankles. Various x-rays and MRIs showed no other evidence of injury other than soft tissue strain and sprain. The court held that most of the medical evidence relied on subjective reporting by the plaintiff, and the plaintiff was not a believable person. The plaintiff recorded four rap music videos which had been placed on YouTube which showed him able to walk and move about without difficulty. His explanation was that it was a good day for him.
The court found that the plaintiff claimed to be injured when it suited him; for example, when he was receiving Ontario Disability Support Program Benefits. On the other hand, when he ran into a legal problem with the criminal justice system he got a letter from the health care provider to say that he was financially independent and working.
The court held that the plaintiff had not proven on a balance of probabilities that he had a permanent, serious impairment of an important physical, mental or psychological function.
Credibility of the plaintiff is extremely important. Tyrell shows that presenting facts from a variety of sources, such as medical records, social services records, social networking and the internet can go a long way in assisting the defence.
The defendants brought a motion alleging that the plaintiff failed to meet the threshold pursuant to section 267.5(5) of the Insurance Act.
The plaintiff was taken to hospital the night of the accident and released. He did not see his family doctor for 2 months. He continued taking courses at college and worked a telemarketing job and at a convenience store for a period of time. Over the years, he saw several health care providers and reported to them complaints of pain in his head, neck, shoulders, back, legs, knees and ankles. Various x-rays and MRIs showed no other evidence of injury other than soft tissue strain and sprain. The court held that most of the medical evidence relied on subjective reporting by the plaintiff, and the plaintiff was not a believable person. The plaintiff recorded four rap music videos which had been placed on YouTube which showed him able to walk and move about without difficulty. His explanation was that it was a good day for him.
The court found that the plaintiff claimed to be injured when it suited him; for example, when he was receiving Ontario Disability Support Program Benefits. On the other hand, when he ran into a legal problem with the criminal justice system he got a letter from the health care provider to say that he was financially independent and working.
The court held that the plaintiff had not proven on a balance of probabilities that he had a permanent, serious impairment of an important physical, mental or psychological function.
Credibility of the plaintiff is extremely important. Tyrell shows that presenting facts from a variety of sources, such as medical records, social services records, social networking and the internet can go a long way in assisting the defence.
Rabu, 15 Desember 2010
Settlement of Accident Benefits is Not an Admission Threshold Met in Tort
Anand v. Belanger, 2010 ONSC 2345 (CanLii)
The plaintiff was injured when she was struck by a stolen vehicle. State Farm was the plaintiff’s accident benefits provider, and was named as a tort defendant pursuant to the uninsured motorist provisions of the policy.
State Farm paid IRBs until the 104 week mark, when it terminated benefits on the basis that Ms. Anand did not suffer a complete inability to engage in any employment for which she was reasonably suited by education, training or experience. At a mediation, the parties settled past and future IRBs for $100,000. Ms. Anand signed a release that included a provision that the settlement was not an admission of liability.
At the tort trial, the plaintiff sought to preclude State Farm from alleging the plaintiff did not meet threshold on the basis that it had paid for past and future IRBs, which constituted an implicit admission.
Justice Stinson held that payment of IRBs does not amount to an admission in the tort action. The plaintiff signed a release specifically agreeing that the settlement was not an admission of liability. In addition, in its capacity as the accident benefits carrier, State Farm had contractual duties and a duty of utmost good faith in dealing with its insured, Ms. Anand. As a tort defendant, State Farm owed no such duties. Accordingly, State Farm was free to argue the plaintiff did not meet threshold.
Justice Stinson's decision is sensible, especially given the differing characteristics of accident benefits and tort. It also underscores the importance of including a paragraph in releases that settlement is not an admission of liability.
The plaintiff was injured when she was struck by a stolen vehicle. State Farm was the plaintiff’s accident benefits provider, and was named as a tort defendant pursuant to the uninsured motorist provisions of the policy.
State Farm paid IRBs until the 104 week mark, when it terminated benefits on the basis that Ms. Anand did not suffer a complete inability to engage in any employment for which she was reasonably suited by education, training or experience. At a mediation, the parties settled past and future IRBs for $100,000. Ms. Anand signed a release that included a provision that the settlement was not an admission of liability.
At the tort trial, the plaintiff sought to preclude State Farm from alleging the plaintiff did not meet threshold on the basis that it had paid for past and future IRBs, which constituted an implicit admission.
Justice Stinson held that payment of IRBs does not amount to an admission in the tort action. The plaintiff signed a release specifically agreeing that the settlement was not an admission of liability. In addition, in its capacity as the accident benefits carrier, State Farm had contractual duties and a duty of utmost good faith in dealing with its insured, Ms. Anand. As a tort defendant, State Farm owed no such duties. Accordingly, State Farm was free to argue the plaintiff did not meet threshold.
Justice Stinson's decision is sensible, especially given the differing characteristics of accident benefits and tort. It also underscores the importance of including a paragraph in releases that settlement is not an admission of liability.
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