In the US, tort litigation costs Americans more than $250 billion.
The tort litigation climate in Ontario is markedly different. In personal injury cases resulting from motor vehicle accidents, for example, Ontario courts have installed what’s known as a threshold.
This threshold determines what you can pursue in terms of compensation for pain and suffering. And understanding what it is, when it applies, and how it’s defined is essential if you’re pursuing pain and suffering damages that resulted from a motor vehicle accident.
What Is the Threshold?
If you or a loved one is injured as the result of a motor vehicle accident in which someone else was negligent, then you’re entitled to pursue compensation for your injuries. Injuries include disfigurement, diminished quality of life, trauma, wrongful death, and of course, pain and suffering.
Pain and suffering injuries cover physical, mental, and emotional pain and suffering that resulted from the accident and any injuries sustained. It can include physical pain and discomfort, emotional distress, mental anguish, anxiety, PTSD, loss of enjoyment of life, fear, and more.
In order to pursue compensation for pain and suffering, though, a plaintiff must demonstrate that their injuries breach the threshold described in Section 267.5 (3) of the Insurance Act. This section states that liability for pain and suffering arises when the injured person:
- has died; or
- has sustained a permanent serious disfigurement; or
- has sustained a permanent serious impairment of an important physical, mental, or psychological function.
This threshold is designed to avoid the types of excessive awards we see in the US. While the courts recognize that negligent parties have to be held accountable and victims should be compensated, they’ve put these definitions in place to reduce the financial burden on society.
When Does the Threshold Apply?
Tort claims can be pursued for any number of accidents. Accidents where victims might pursue a lawsuit include slips and falls, medical malpractice, dog bites, and motor vehicle accidents. These claims allow the victim to recover financial compensation for their injuries and damages from the parties who are responsible for the accident.
However, the legal threshold only applies to motor vehicle accidents. Victims of motor vehicle accidents can only recover compensation for pain and suffering if they meet the threshold test.
The Verbal Threshold
One of the most controversial parts of the threshold is that it’s decided by the judge after a jury has already made their verdict. Meaning that, after the jury has decided on an award at the conclusion of a trial, the defense can bring a threshold motion in front of the judge alone.
The judge isn’t bound by the verdict of the jury and will have to determine whether or not the injuries breach the threshold test. In the threshold test, the judge will asses the plaintiffs injuries in three parts.
First, the judge will consider whether the impairment caused by the injuries can be considered permanent. In order to asses this, they’ll look at the plaintiffs medical records and history of treatment. They’ll also take into consideration witness testimony.
Second, the judge will consider whether the impairment caused by the injuries can be considered serious. Seriousness is more subjective and difficult to define but, generally, the judge will look at how the impairment has impacted the plaintiffs life. This includes reviewing how their day to day activities have changed (i.e. hobbies, work), and how the wellbeing of their family has been impacted.
Lastly, the judge will consider whether the impairment caused by the injuries is important to physical, mental, or psychological function. This is a much broader aspect of the test and a bit easier to demonstrate, considering that any impairment that meets part 1 and 2 is more than likely to affect the plaintiff in at least one of these ways.
The Monetary Threshold and Limit
The threshold test isn’t the only barrier to receiving compensation for injuries. In addition to the verbal threshold, there also exists a monetary threshold and a deductible. That is, a deductible is applied to the net damage award assessed by a jury. And, in the case that a jury awards less than the deductible amount, the victim won’t receive compensation for general damages and may be liable for legal costs.
The exact amounts of monetary thresholds and deductibles must account for inflation and they’re also updated every year. The 2019 monetary thresholds beyond which the deductible amount does not apply are as follows:
- In the case of damages for non-pecuniary loss between January 1, 2019 until December 31, 2019, the monetary threshold was adjusted from $126,610.07 to $129,395.49.
- In the case of damages for non-pecuniary loss under clause 61 (2) (e) of the Family Law Act from January 1,2019 and December 31, 2019, the monetary threshold was adjusted from $63,304.51 to $64,697.21.
The 2019 deductibles for non-pecuniary loss when an award doesn’t exceed the monetary threshold are as follows:
- From $37,983.33 to $38,818.97 in the case of damages from January 1, 2019 until December 31, 2019.
- From $18,991.67 to $19,409.49 in the case of damages under clause 61 (2) (e) of the Family Law Act from January 1, 2019 until December 31, 2019.
In order to receive compensation for pain and suffering in a motor vehicle accident, a plaintiffs injury must successfully breach the threshold defined in Section 267.5 (3) of the Insurance Act.
The law requires that the threshold be satisfied by the claimant adducing evidence that they sustained a permanent serious disfigurement or a permanent serious impairment of an important physical, mental, or psychological function. The disfigurement or impairment must impact their life in a serious way and must be important to their functioning.
While medical records may assist in demonstrating part 1 of the threshold test, these alone will not win your case. Instead, you’ll need the help of an experienced personal injury lawyer who knows what evidence to bring to the table and how to substantiate your claim.
Sharma Law has that experience and know-how. Contact us today to find out if you have a case.