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The Tort Threshold. Not all is as it seems.

 Aug 28, 2018 9:00 AM
by Kevin Mitchell

The case of O’Brien v. O’Brien, 2018 ONSC 4665, is a tort threshold motion brought by some of the defendants after a jury trial where damages was the only issue. The damages quanta were found to be closer to the defendants' position thereupon. The motion was heard by Justice McKelvey of the Superior Court with reasons, dated July 31, 2018. Regulation 461/96 was referenced, which sets out criteria to be considered upon such a motion. In deciding the motion, it was noted the jury’s verdict was not binding upon His Honour but the findings of fact implicit thereto worthy of serious consideration. It was the plaintiff’s burden, on balance, to prove the threshold was met.

Barry O’Brien was a passenger in a pickup truck piloted by his uncle, James O’Brien, which collided head on with a transport. Among other things, he sustained an ankle fracture in the accident. In respect of other injuries sustained, he had significant pre-existing health issues. Credibility at the motion was not contested and the Judge, in fact, found the plaintiff to underestimate the impact of his injuries. The plaintiff’s orthopod was preferred due to recency of assessment and area of subspecialty. The evidence of the various health practitioners was reviewed in coming to a determination about the various alleged impairments. The left ankle was found to be permanently impaired. Ankle function was found to be ‘important’ to the plaintiff. The ‘seriousness’ criterion was found to be met despite the plaintiff making significant strides to overcome many of the effects of his impairment. Despite the Judge’s review required to consider the plaintiff’s condition ‘at the time of trial’, a likely future inability to work could be considered if a proper evidentiary foundation had been laid. The concern for the Judge on motion was that the jury awarded nothing for future income loss or vocational retraining. Despite the verdict, his Honour found the ankle impairment seriously affecting the ability to continue regular employment. In conclusion, the ankle impairment was found permanent, important and serious in relation to employment but not to his usual daily activities; as the interference with hunting was not ‘most’ of his usual activities.

Said The Prince to Portia in The Merchant of Venice, “all that glitters is not gold”. The defence motion was dismissed.

Kevin is a Partner of Samis+Company. Throughout his career, he has practiced almost exclusively in the area of accident benefit and bodily injury matters arising from motor vehicle accidents. He has also defended various non-motor vehicle bodily injury claims. Kevin carries on a robust practice involving privately arbitrated disputes between insurers in both priority and loss transfer matters. 



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