In the recent decision of Ryckman v. Pottinger, 2013 ONSC 2857 (S.C.J.), the defendant in a jury trial was successful on a threshold motion. The decision is interesting as it gives some guidance on how the threshold determination is to be made in cases where the plaintiff has been injured in multiple accidents and where one of the claims has been settled.
The plaintiff in that case was involved in two motor vehicle accidents. The first occurred on January 31st, 2003 and the second on November 26th, 2003. Liability was admitted for both of the accidents.
The plaintiff settled her claim relative to the first accident and entered into a Pierringer agreement with that defendant. As a result, a trial proceeded on the issue of damages only with respect to the second accident.
The jury was asked to assess the plaintiff’s damages under several heads of damages and also to apportion responsibility between the two accidents. The jury awarded global damages of $175,000.00. The defendant at trial was found to be responsible for 10 percent thereof, or $17,500. Of that figure, $3,500 was allocated for non-pecuniary general damages.
The defendant thereafter moved for a declaration that the plaintiff’s claim for non-pecuniary general damages was barred as a result of her failure to establish that her injuries arising from the subject accident fell within the exception to section 267.5(5)(b) of the Insurance Act. Specifically, the defendant argued that the plaintiff had not sustained a “permanent, serious impairment of an important physical, mental, or psychological function.”
In granting the threshold motion, Justice Parayeski commented that just because a plaintiff’s injuries arising from a previous accident meet the threshold, this does not mean that a subsequent tortfeasor cannot be afforded the statutory shelter from exposure for non-pecuniary general damages. An accident by accident analysis continues to be required.
The trial judge recognized that he was not bound by the jury’s decision or assessment of the evidence, but he considered the jury’s answers as “a consistent rejection of the plaintiff’s complaints and their alleged impact upon her employment and general abilities to function.”
Justice Parayeski noted that it could be inferred from the jury awards that they had not accepted the plaintiff as credible nor had they accepted her submission as to damages. There was noted to be an observable difference between how the plaintiff appeared before the jury in the courtroom and how she seemed to function in the surveillance evidence tendered. The trial judge found there to be a rational basis for the verdict for which he did not disagree.
Overall, as the amounts found owing by the defendant in the action relating to the second accident were “so small”, Justice Parayeski concluded that the plaintiff did not suffer injuries in that accident which would meet the threshold. The second accident caused no more than a minor exacerbation of the injuries the plaintiff sustained in the first accident.
The decision confirms that threshold motions have a place in cases involving multiple accidents even where some claims are settled. Courts are required to assess the threshold issue on an accident by accident basis and in an appropriate case, can find that the exception as set out in 267.5(5)(b) of the Insurance Act is met in one of the accidents, but not in the other.