Overview

The plaintiffs, Mary and Allen Ashburn, brought an action for damages arising out of a motor vehicle accident which occurred on February 14, 2015.   Mary Ashburn sought general damages, income loss, out-of-pocket expenses, and future income and health care costs.  Allen Ashburn claimed damages for loss of guidance, care and companionship.  Justice A.K. Mitchell presided over the ten day jury trial.

While the jury was deliberating, the defendant brought a threshold motion.   After argument, Mitchell J. reserved her decision on the motion.

The jury’s verdict awarded Mary Ashburn $62,500 in general damages, $0 for past and future income loss, $2,500 for out-of-pocket expenses and $23,400 for future health care costs.   Allen Ashburn was awarded $0 for his damage claim.

Mitchell J. ultimately found that Mary Asburn’s injuries met the threshold.

The Law

The court confirmed the three-step analysis when dealing with a “threshold motion” was established by the Court of Appeal in Meyer v. Bright; Dalgliesch v. Green; Lento v. Castaldo[1]  as follows:

    1. Has the injured person sustained a permanent impairment of a physical, mental or psychological function?
    2. If yes, is the bodily function which is permanently impaired important?
    3. If yes, is the impairment of the important function serious?

It was not strenuously argued, at trial, that Ashburn’s complaints, which included reduced function of her left arm and shoulder due to chronic pain during the four years since the collision, did not constitute an impairment of an important bodily function.  Instead, the focus of the argument was on whether the impairment of her left arm and shoulder was serious.

The Evidence

At the time of trial, Ashburn was 65 years old.  She claimed that as a result of her accident, she injured her neck, left shoulder, lower back and left hip.   She also suffered from headaches.  She also claimed to have chronic pain in all injured areas, which pain was unremitting.   Her evidence was that, due to her chronic pain, she had difficulty sitting, standing or walking for any length of time.   She complained of limited use of her left arm and that almost any activity or prolonged posture aggravated her pain.  Her pain was never eliminated with medication, the application of heat, ice, or rest.

In addition to her physical injuries, Ashburn also testified that she had suffered psychological injuries and was depressed, suffered from posttraumatic stress disorder, had gained weight, and had lost interest in many activities she previously enjoyed.  She also had difficulty concentrating, had constant fatigue and rarely socialized outside of the home.   Each day she arrived home from work and only wanted to rest.

Ashburn also maintained that she could no longer do her house and yard work as she had done prior to the collision and required assistance with meal planning and preparation and grocery shopping, despite being able to work.

Despite all of these complaints, Ashburn continued to work at the LCBO, on modified duties, which continued to cause her pain and discomfort.  The court’s endorsement contains no further information about her employment.

Evidence which the court found important was the fact that Ashburn had an “unremarkable medical history prior to the collision” and that Ashburn’s evidence as to the change in lifestyle and her inability to function at the same level as prior to the collision was corroborated by and entirely consistent with the evidence of her spouse and daughters, whose collective evidence was accepted by Mitchell J.

Dr. Patrick Potter, a physiatrist with 39 years experience, was retained by Ashburn.  Dr. Potter concluded that the plaintiff suffered from chronic myofascial pain that affected her ability to push, pull, reach with her left arm resulting in fatigue, headaches, and diminished sitting and standing tolerance.  His prognosis was guarded and he felt that it was probable that her functional abilities would improve but her impairments would not be resolved with treatment.

The defendant retained Dr. Ato Sekyi-Otu, an orthopaedic surgeon with 22 years experience, who actually agreed with Dr. Potter’s diagnosis of chronic myofascial pain.   Yet, despite agreeing with Dr. Potter, Dr. Sekyi-Otu’s prognosis for complete resolution of her symptoms was “fair” which the court felt was inconsistent as “chronic” suggests persistent and of long-lasting duration.  The court preferred the evidence of Dr. Potter and found, as fact, that Ashburn’s prognosis was guarded and that she would likely continue to have limited function of her left arm for the indefinite future.

Two psychologists also gave evidence at the trial.  Dr. Joseph Enright, who had three years experience, testified in support of the plaintiff’s case.  Dr. Enright performed psychometric testing and concluded Ashburn had major depressive disorder and insomnia.   Dr. Curtis West, who had 18 years experience, testified in support of the defendant.  Unlike Dr. Enright, his testing included administering the MMPI-2-RF, which is the most widely-used measure for the assessment of psychopathology and personality disorders.  Dr. West concluded that there was no evidence that Ashburn met the criteria for any specific diagnosis of mental disorder and concluded she did not suffer from either major depressive disorder or insomnia.  The court accepted the evidence of Dr. West over Dr. Enright and found Ashburn did not suffer from any mental health disorder as a result of the collision, although found she did experience some symptoms of depression and insomnia associated with her chronic pain on a persistent basis.

Analysis

Mitchell J. began her analysis by pointing out that judges must take great care in avoiding interfering with findings of fact made by the jury which are implicit in their verdicts (see Clark v. Zigrossi[2]   At the trial, the plaintiff advanced a claim for general damages in the range of $140,000 to $150,000 while the defendant suggested a range of $20,000 to $25,000.  The jury awarded Ashburn $62,500 for general damages which, according to the court, was “materially in excess of the range suggested by the defendant and far more than nominal or trifling.”   From this award, Mitchell J. concluded that she could reasonably infer the following findings of fact by the jury:

    1. Ashburn’s injuries were caused by the collision;
    2. Ashburn had endured pain, suffering and loss of enjoyment of life from those injuries; and
    3. Ashburn’s losses will endure indefinitely.

The court pointed out that she found Ashburn to be a credible witness and accepted her evidence that her work at the LCBO caused her pain, which was extreme at times.   The court also accepted the evidence of Dr. Potter that Ashburn suffers from chronic pain and that her pain symptoms were unlikely to improve.  Lastly, the court found that Ashburn’s evidence related to the change in her lifestyle and inability to function at the same level was consistent with and corroborated by her spouse and daughters.   All of this resulted in the finding that her chronic pain has caused her serious impairment of the use of her left arm.

Therefore, the court concluded, based on the evidence at trial and from the facts which may be inferred from the jury’s award, that Ashburn suffered a “permanent serious impairment of an important physical function and has, therefore, met the threshold.”

Take Away

This decision is consistent with what we already know.  Evidence from family members about a plaintiff’s limitations and the changes in function since an accident can never be discounted, especially when it supports and is consistent with the plaintiff’s evidence.  In this case, the court made it clear that she found the plaintiff to be credible and had an “unremarkable medical history” prior to the collision, despite being 61 on the date of loss.   And, as always, the evidence of experts is crucial at trial.   Lastly, as  Mitchell J. stated “A plaintiff’s ability to return to work is not fatal to a threshold motion.”

See Ashburn v Storrey, 2019 ONSC 6486 (CanLII)

[1] 1993 CanLII 3389 (ON CA), [1993] O.J. No. 2446 (C.A.).

[2] 2010 ONSC 5403.

Fiona Brown

Second to none, Fiona is the B in SBA. For 16 years Fiona worked on Bay Street, where she broke barriers by being the first female partner, and then the first female Chair, in the insurance group.  Fiona brought the same values with her when she came to SBA.

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