Things You Should Know If You Are Injured In A Motor Vehicle Accident: The Threshold
By Kevin Souch
Most people know that when you have been injured through someone else’s carelessness or negligence while operating a motor vehicle you may be entitled to recover damages. I say, “may be entitled” because unlike being injured in a slip and fall or assault, being injured in a motor vehicle accident comes with its own set of rules that can impact your entitlement to damages, specifically, general damages (more commonly understood as pain and suffering damages) and past and future care damages.
In a typical injury claim, not involving the use of an automobile, you are required to prove that you suffered an injury and that the injury was the result of someone else’s negligent or intentional act. If you are able to establish those criteria you are likely entitled to general damages in accordance with the severity of the injury and the impact it has on your life. These damages range from very minimal to an upper cap of a little more than $380,000 (the upper cap will be the subject of a future post).
If your injuries are a result of a motor vehicle accident the issue of general damages is much more complicated. It is not enough to satisfy the court that you have suffered injuries and that these injuries were a result of someone’s negligence. These are, of course, required elements to a claim for general damages but in the realm of car accidents there are additional criteria that must be satisfied before you are entitled to collect on those damages and then they are subject to a legislative claw back of sorts.
The additional criteria that must be satisfied is known as the “threshold test”. Contained in the Insurance Act, RSO 1990, c. I.8 at s. 267.5(5) the threshold test sets out that an injured person is not entitled to general damages (also known as non-pecuniary damages) unless the person has died, or has suffered a permanent serious disfigurement, or, has suffered a permanent serious impairment of an important bodily or psychological function. The first two elements of the test, whether someone has died or has suffered a permanent serious disfigurement are fairly straightforward and don’t warrant further discussion here.
The permanent serious impairment part of the test is designed to benefit insurance companies at the expense of injured victims. The rationale sold to the government by the insurance industry is that this restriction is in the public interest as it will help keep insurance rates low. For anyone who pays automobile insurance it is obvious that this claim is dubious at best. The reality is that innocent victims are deprived of their right to collect general damages that they are otherwise entitled.
To truly understand the test you must examine the Court decisions that have interpreted and applied the test in real world scenarios. The analysis is somewhat subjective and varies by the individual facts of each case. I do not intend to do a detailed analysis of the case law in this area for the purpose of this post but I will highlight the common themes the court considers.
It is important to note that the threshold test is determined by the Trial Judge at the end of the trial regardless of whether there is a jury or not. The Judge will consider the impact the injuries have had on your ability to carry on with the usual duties of your job, or, whether the injuries substantially interfere with your day to day activities. As mentioned earlier, the facts of each individual case are important but a common theme is that the injuries must cause significant problems in the injured person’s life. So-called, “minor injuries” will not qualify for general damages.
The fact this test exists at all is a clear indication of the imbalance of power between the insurance industry and an injured individual. With their seemingly limitless resources the insurance industry is able to lobby the government and have the Insurance Act modified and designed to maximize profits at the expense of the victims of car accidents in exchange for repeatedly unfulfilled promises of lowering automobile insurance rates.
If you have been injured in a motor vehicle accident please contact us to discuss your rights. The system is designed to favour the interests of big insurance and you need experienced lawyers to help you navigate your claim.
Watch out for future posts discussing many important issues in personal injury.