| 2010-06-11 |
| Threshold Test - Plaintiff was able to establish that she sustained a permanent serious impairment |
Thresthold Test - Plaintiff was able to establish that she sustained a permanent serious impairment of an important physical function related to a knee injury sustained in a motor vehicle accident.
Motion by defendant for dismissal of a personal injury action on the ground that plaintiff did not sustain a permanent serious impairment of an important physical, mental or psychological function in the motor vehicle accident. Plaintiff claimed she suffered a knee injury in the accident. She argued she was no longer able to stand or walk for any period of time, and she walked with a limp using a cane. Plaintiff alleged that due to the injuries suffered in the accident, she had been unable to continue to work, to do household chores and cook and clean as she formerly did. The injuries caused her significant pain and had a severe negative impact on her overall physical and mental health, her social relationships and her relationships with her family. Plaintiff was diagnosed with knee degeneration, fibromyalgia and a chronic major depressive disorder. Defendant denied that plaintiff had any permanent injuries arising from the accident.
Held: Motion dismissed. Plaintiff's evidence regarding the mechanism of her injury and the explanation given by her expert witness were more persuasive than the evidence adduced on behalf of the defendant. The defence evidence failed to explain in a credible fashion why such a high-functioning person as plaintiff could be transformed in short order, effectively, into an invalid, in the absence of a material injury such as one suffered in the car accident. Even assuming that plaintiff has some osteoarthritis prior to the accident, it was asymptomatic and did not interfere with her ability to work and otherwise function fully. As a result of the knee injury, the biomechanics of plaintiff's legs was altered and her current problems flowed as a consequence. The limitations on plaintiff's mobility were permanent, as was her fibromyalgia or chronic pain that also has its origins in the accident. Plaintiff's mobility was an important bodily function and her mobility limitations were serious.
Source: Anand v. Belanger [2010] O.J. No. 1835, Ont. S.C.J., Stinsong J., May 03/10. The Lawyers Weekly, Digest No. 3006-017 (June 11, 2010). |
