2013 ONSC 2857, 2013 ONSC 2857

CITATION : Tracy Ryckman v. Lisa Jayne Pottinger 2013 ONSC 1602 2857 COURT FILE NO.: 05-16840 DATE: 2013-05-16 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) TRACY RYCKMAN ) ) ) Gerald A. Swaye and Jesse Boyd, for the Plaintiff ) Applicant ) ) - and - ) ) ) LISA JAYNE POTTINGER and YORK FIRE & CASUALTY INSURANCE COMPANY ) ) ) Michael T. Mollison, for the Defendant, Lisa Jayne Pottinger ) Defendant ) ) ) ) RULING PARAYESKI, J. [ 1 ] Following argument and my charge to the jury, it reached its verdict.

The defendant has moved for a declaration that the plaintiff’s claim for non-pecuniary general damages is barred as a result of her failure to establish that her injuries arising from the subject accident fall within the exception to

section 267.5(5)(

b) of the Insurance Act . In common parlance, this is known as a “threshold motion”. The referenced

section stipulates that the owner of an automobile is not liable in an action for non-pecuniary losses unless the injured person has sustained “permanent, serious impairment of an important physical, mental, or psychological function”. [ 2 ] Regulation 381/03 made under the Insurance Act contains

definitions of which impairments are serious, what functions are important, and what the definition of permanent is. It also mandates the evidence that must be called from whom in order to succeed in establishing an exception.

[ 3 ] In the present case, the plaintiff was involved in two motor vehicle accidents. The first occurred on January 31 st , 2003 and the second on November 26 th , 2003. Liability for both of these accidents was admitted. The plaintiff settled her claim relative to the first accident, and entered into a “Perringer” agreement with the relevant defendant. Thus, the trial proceeded on the issue of damages only, with respect to the second accident.

The Perringer agreement was filed with the court at the outset of the trial, and was not opened until the jury had returned its verdict. [ 4 ] The questions which the jury was asked to answer were jointly drafted by counsel, and then slightly edited by me.

In essence, the jury was asked to assess the plaintiff’s damages under several heads of damage on a global basis, and was then requested to apportion responsibility between the two motor vehicle accidents. [ 5 ] The jury’s answers may be summarized as follows: 1. general damages (both accidents) $ 35,000; 2. past income loss (both accidents): $ 67,500; 3. future lost income (both accidents): $ 67,500; 4. future medical and rehabilitation costs (both accidents): $ 5,000; 5. future housekeeping and home maintenance costs (both accidents): $ 0; [ 6 ] The damages were then allocated between the two accidents such that 90 percent was attributed to the first accident and 10 percent to the second. [ 7 ] The assessed, global damages total $175,000.

The defendant at trial is responsible for 10 percent thereof, or $17,500. Of that figure, $3,500 is for non-pecuniary general damages. [ 8 ] The case law makes it plain that while I may take as much or as little guidance as I consider appropriate from the implied reasoning of the jury, as reflected in their answers to the questions put to them, ultimate responsibility for ruling upon the threshold issue rests with me. [ 9 ] I pause at this point to make some general observations regarding the threshold issue in the somewhat unusual circumstances of this case.

I consider it possible for a plaintiff to surpass, or to fail to meet, the requisite threshold in respect of as many separate accidents as he or she has suffered. In this case, where there were two very similar accidents (both in terms of the mechanics of the collisions, and the general body parts injured), the plaintiff may meet the threshold in respect of both, neither, or either of the accidents.

The plaintiff ought not to be precluded from being found to have met the threshold in respect of injuries sustained in a subsequent accident merely because he or she was or is found to have done so in respect of a previous accident. A liable tortfeasor should not, of necessity, be sheltered from exposure to non-pecuniary damages simply because his or her victim had suffered threshold surpassing injuries in a previous accident.

This is relatively easy to contemplate and address when, for example, vastly different body parts are involved as between the accidents or meaningfully different impairments arise, but much harder where there is overlap or even mirroring. [ 10 ] On the other hand, just because a plaintiff’s injuries arising from a previous accident have met the threshold does not mean that no subsequent tortfeasor can be afforded the statutory shelter from exposure to non-pecuniary general damages.

An accident by accident analysis is required, in my view. [ 11 ] The Perringer agreement in this case merely gives a figure for all damages relating to the first accident. As there was no effort made to break that figure down as between non-pecuniary and pecuniary damages, it is not possible to assume from the mere agreement to pay damages that there was a concession that the threshold had been met or vice versa .

No help is provided by that source of information. [ 12 ] I make the following observations in respect of each of the jury’s answers in the present action: 1. in assessing global general damages at $35,000, the jury plainly rejected the plaintiff’s suggestion in argument that this head of damages should be assessed at $165,000.

In fact, the jury’s assessment was below the figure suggested by defence counsel of $50,000 for general damages. 2. in assessing the plaintiff’s past income loss from both accidents at $67,500 the jury plainly did not accept the plaintiff’s position and evidence that she had suffered $175,000 in net income loss to the date of trial. 3. the jury assessed the plaintiff’s future income loss at $67,500. Her suggested figures for this head of damages ranged from $271,000 to $502,000, depending upon whether or not she could work part-time and when she was likely to have retired.

It appears that the jury did not accept most, if not all, of the assumptions upon which those figures were calculated. 4. the jury assessed the plaintiff’s future medical and rehabilitation costs at $5,000. She had suggested $16,000. The $16,000 figure included roughly $9,000 as the anticipated cost of the plaintiff attending a multi-disciplinary clinic to address her alleged chronic plain as a precursor to determining if she could return to work in some capacity.

The jury’s answer suggests that they did not feel that even that expense was proven on the balance of probabilities to be reasonably necessary. 5. the plaintiff’s expert witnesses suggested that she would likely need $141,000 to address future housekeeping and home maintenance costs. The jury assessed this head of damages at $ 0. It appears that they utterly rejected the evidence that the plaintiff would need help on these fronts. [ 13 ] The assignment of 10 percent responsibility to the second accident indicates that the jury disregarded the plaintiff’s argument that

80 percent was the appropriate apportionment. It represents fundamental disagreement with the evidence of two of the plaintiff’s doctors (Drs. Woods and Kvedaras) that the second accident was a greater cause of the plaintiff’s condition than was the first. [ 14 ] While I do not intend my ruling on the threshold issue to be mere ratification of what I believe the jury’s thought processes likely were, I am not prepared to utterly reject what they have done. I believe that the jury did not find the plaintiff to be credible.

There was an observable difference between how she appeared before the jury in the courtroom and how she seemed to function in the surveillance evidence tendered. It is certainly possible that the jury simply did not accept her explanation that the surveillance must have happened over a course of several “good days”. I do not say any of this to suggest that this is how the jury must have thought.

If that was the basis for their overall findings, however, I point out that there is a rational basis for the verdict and one with which I do not disagree. [ 15 ] Given the general nature of the plaintiff’s injuries, it is both apparent and to be expected that some of her expert witnesses had based their opinions, in part at least, upon her subjective complaints. [ 16 ] The jury’s answers show a consistent rejection of the plaintiff’s complaints and their alleged impact upon her employment and general abilities to function.

To be fair, those answers also appear to accept the plaintiff’s evidence that she has and will suffer some kind of income loss and that she will incur some future medical and rehabilitation costs. [ 17 ] The amounts found owing by the defendant in the action relating to the second accident are so small, however, as to cause me to conclude that the plaintiff did not suffer injuries in that accident which are permanent and severe as defined by Regulation 381/03.

To me, the assessment suggests that the second accident caused the plaintiff to suffer a minor exacerbation of the injuries she had sustained in the first accident, and little or nothing more. [ 18 ] Accordingly, she does not fall into the exception as set out in

section 267.5(5)(

b) of the Insurance Act . ___________________________ PARAYESKI, J. Released: May 16, 2013 CITATION : Tracy Ryckman v. Lisa Jayne Pottinger 2013 ONSC 2857 COURT FILE NO.: 05-16840 DATE: 2013-05-15

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: TRACY RYCKMAN Applicant - and – LISA JAYNE POTINGER and YORK FIRE & CASUALTY INSURANCE COMPANY Respondent RULING PARYESKI, J. MDP:mw Released: May 16, 2013