Insured’s soft-tissue injuries did not amount to “permanent serious impairment of an important physical, mental, or psychological function” and therefore award of general damages by jury disallowed

13. February 2018 0

Insured’s soft-tissue injuries did not amount to “permanent serious impairment of an important physical, mental, or psychological function” and therefore award of general damages by jury disallowed.

Insurance law – Automobile insurance – Unidentified motorist – Statutory obligations – Damages – Permanent impairment, definition – Damages – Jury trials

Nadarajah v. Aviva Canada Inc., [2017] O.J. No. 6571, 2017 ONSC 7522, Ontario Superior Court of Justice, December 18, 2017, P.J. Monahan J.

The insured brought a claim for damages arising out of a motor vehicle accident under the unidentified motorist coverage in his automobile insurance policy against his insurer.

After a two-week jury trial, the jury found the insured had sustained a “minor soft tissue strain” and awarded him $15,000 in general damages.

Pursuant to s. 267.5(15) of the Insurance Act, the Court was required to determine whether the insured had sustained “permanent serious impairment of an important physical, mental, or psychological function” as only persons who have sustained such injury may recover for non‑pecuniary losses sustained in motor vehicle accidents.

The Court ultimately concluded the insured had experienced soft tissue pain and would continue to experience such pain into the indefinite future but had not met the burden of establishing that the limitations to his bodily functions arising from the motor vehicle accident meet the statutory test of “important” or “serious”.

This case was digested by Cameron B. Elder, 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 Cameron B. Elder at celder@harpergrey.com.

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