She sustained permanent and serious impairments that satisfied the legal threshold: court
The Ontario Superior Court of Justice dismissed a motion to bar claims for healthcare expenses and non-pecuniary damages, finding that the plaintiff in a motorcycle collision had suffered permanent and serious impairments.
In Lisa Aileen Davis v. Wayne NG, 2024 ONSC 6159, the court determined that the plaintiff suffered a permanent and serious impairment of important physical, mental, and psychological functions, meeting the threshold outlined in the Insurance Act.
The incident occurred at the intersection of Prince of Wales Drive and Barnesdale Road in Ottawa. The plaintiff, who was riding a motorcycle, collided with a car after its driver entered the intersection from a stop sign, blocking her path. She attempted to brake but was ejected from her motorcycle, sustaining multiple injuries, including a mild traumatic brain injury. The driver admitted liability, though he alleged partial fault on the part of the plaintiff.
The trial primarily addressed the issue of damages. After deliberating, the jury found the plaintiff not contributorily negligent and awarded her significant damages, including compensation for general damages, loss of income, housekeeping expenses, and future care costs.
While the jury was deliberating, the defendant filed a motion under s. 267.5 of the Insurance Act, arguing that the plaintiff had failed to demonstrate a permanent and serious impairment of an important function. Under this legislation, claims for healthcare expenses and non-pecuniary losses are barred unless such an impairment is proven.
The court analyzed medical evidence presented by both sides. Expert testimony supported the plaintiff's claim that her impairments, including ongoing headaches, cognitive challenges, and chronic pain, were directly related to the accident. Her evidence described the persistent nature of these symptoms and their profound impact on her daily life and work. Although the defendant’s medical experts suggested that many of her symptoms were unrelated or had resolved, the court preferred the evidence of the plaintiff’s treating physicians, who outlined the lasting and debilitating effects of her injuries.
The Superior Court applied a three-part test to determine whether the impairments were permanent, important, and serious. It concluded that the impairments had persisted for years after the accident and were unlikely to improve. These impairments significantly interfered with her ability to engage in daily activities and social interactions previously central to her life. The court further noted that while she continued to work, her ability to perform her job was notably diminished, and accommodations were required to allow her to continue.
Rejecting the defence's argument that her remaining abilities rendered her impairments insignificant, the court emphasized the substantial disruption to her quality of life. It ruled that the plaintiff had established the necessary threshold. Ultimately, the court dismissed the motion and upheld her right to recover damages.
