Drivers and passengers injured in Ontario car accidents may be able to bring tort claims against negligent drivers to recover damages. One of the damages victims of car accidents in Kingston and Ottawa can recover is pain and suffering.
However, as part 1 of this article discussed, individuals who are injured in car accidents may only recover pain and suffering if their injuries meet a standard of severity defined in Ontario’s Insurance Act (Act), also known as the “threshold test.” The bodily injury suffered must be:
(a) a permanent serious impairment of an important physical, mental or psychological function, or
(b) a permanent serious disfigurement.
Determining Permanent Serious Impairment of an Important Physical, Mental or Psychological Function
Ontario’s Insurance Act was amended by Bill 198 in October 2003 to add new sections which define permanent serious impairment of an important physical, mental or psychological function. Prior to the 2003 amendment, the “threshold test” was already in place and defined by case law, most notably, by the appellate decision of Meyers v. Bright, a 1994 Court of Appeal of Ontario case. The 2003 amendment does not overrule Meyers, but sought to tighten the requirements of the “threshold test.”
In Myers v. Bright, the appellate court set out a three prong test to determine whether injured car accident victims meet the threshold:
- Has the injured person sustained permanent impairment of a bodily function which is physical in nature?
- If yes, is the bodily function, which is permanently impaired, an important one?
- If yes, is the impairment of the important bodily function serious?
Bodily functions may be physical, mental or psychological. An example of an impaired physical function may be the inability to stand for a long time due to a catastrophic orthopedic leg injury in a car accident, and an example of an impaired psychological function may be personality changes due to a closed head injury sustained in a car accident.
Consider an individual who is hit head on by a truck in a car-truck accident in Kingston. He fractures his ankle and requires surgery which resulted in placing hardware in his ankle, i.e., screws and a metal plate. He is told by his physician that he will no longer be able to stand for a long period of time without experiencing some pain and discomfort.
Under part 1 of the Meyer analysis, this is a permanent impairment of a bodily function because he can no longer stand for a long period of time. Under part 2 of the threshold analysis, being unable to stand for a long period of time is an important bodily function. The last prong to consider is whether the injury is serious, and in this case, it depends.
If the individual injured in this Ontario car-truck accident scenario is a pharmacist who is required to be on his feet for more than 8 hours a day, it can be argued that this is a serious permanent impairment. The reason is because he may no longer be able to work as a pharmacist due to his inability to stand for the entire shift. On the other hand, if the injured individual works as an office manager which does not require him to stand at work, this impairment may not be serious because he can still work.
Recovering Pain and Suffering After an Accident in Ontario
Determining whether you can recover pain and suffering requires the help of lawyers who are well-versed in Ontario car accident law and the legal threshold analysis. The personal injury lawyers at Bergeron Clifford have 40 years of experience handling car and truck accident cases in Eastern Ontario. If you would like to discuss your accident/injury, please do not hesitate to call us at 1-866-384-5886 or visit their offices in Kingston, Ottawa, Perth or Carleton Place.
