Plaintiff in a motor vehicle accident who aggravated pre-existing injuries did not suffer a “permanent serious impairment of an important bodily function”

09. April 2019 0

Insurance law – Automobile insurance – Permanent impairment – definition – Statutory provisions

Mann v. Jeffersen, [2019] O.J. No. 1073, 2019 ONSC 1107, Ontario Superior Court of Justice, February 19, 2019, J.K. Trimble J.

The defendants in a motor vehicle action sought an order that the plaintiff had not proven he suffered a “permanent serious impairment of an important bodily function” and was therefore barred from recovering general damages and health care costs under the Ontario Insurance Act. The plaintiff alleged he suffered an exacerbation of injuries sustained in a 2008 accident, resulting in chronic pain and impairment.

The Court noted that determining whether a plaintiff has suffered a serious, permanent impairment of an important bodily function requires comparing the plaintiff’s pre-accident and post-accident function. In cases where the plaintiff suffers limitation before the accident, the extent of further impairment need not be significant in the eyes of an ordinary, able bodied person to qualify as being serious and permanent.

Applying the above principles, the Court held that the plaintiff had not met the onus of proving he suffered a permanent serious impairment of an important bodily function. The plaintiff was an unreliable historian, but expert medical evidence established he suffered, at a minimum, an aggravation of symptoms dating back to the 2008 accident. Although he was impaired in an “important” bodily function in that he was limited in his ability to do household tasks, medical evidence indicated he showed little change indicative of a “serious” impairment and the aggravation of his symptoms was temporary rather than “permanent”.

This case was digested by Paul R. Saunders, and first published in the LexisNexis® Harper Grey Insurance Law Netletter and the Harper Grey Insurance Law Newsletter. If you would like to discuss this case further, please contact Paul R. Saunders at psaunders@harpergrey.com.

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