Plaintiff Fails To Show Injuries Worsened After Second Accident
Most people are aware that automobile insurance exists to provide compensation if they are injured as a result of a motor vehicle accident. However, accident benefits may also be available if an accident causes pre-existing injuries to worsen. Determining how much someone’s pre-existing injuries or limitations have been worsened can sometimes be difficult, especially when the court finds the plaintiff to be unreliable, as was seen in a recent decision from the Ontario Superior Court of Justice.
The plaintiff was involved in a motor vehicle accident with the defendant on February 8, 2011. The plaintiff, who had been involved in another accident three years prior, claimed he
“suffered a permanent serious impairment of important physical functions; namely, a) an exacerbation of pain in his neck which reduces his ability to turn his head or maintain it in any position for a long period, b) and exacerbation of pain in his lower back which reduces his ability to turn his back and bend, or maintain it in any one position for a prolonged period, and/or c), pain which begins in his neck, proceeds through his right shoulder and down his right arm into his hand, accompanied by numbness and tingling, which prevents him from using his right arm for sustained effort.”
The defendant, meanwhile, argued the plaintiff’s injuries from the 2008 accident should have been resolved well before the 2011 accident. They claimed “There is no evidence of any objective findings of injury or exacerbation of injury caused by the 2011 accident.”
Proving a serious, permanent impairment of an important bodily function
The court’s analysis began by examining the threshold the plaintiff is required to cross in order to prove his injuries. Normally, fresh injuries or impairment must be proved by a plaintiff to be caused as a result of an accident. However, things get a little more complicated when it comes to the effect an accident has on pre-existing also requires the court “to determine the level of the Plaintiff’s functional abilities immediately before the accident (already compromised by the pre-existing condition) and determine if and how they have been compromised by the accident at issue.”
In this case, the court determined the plaintiff was not credible in his claims that he had suffered a permanent, serious impairment of an important bodily function. First of all, they found the plaintiff to have been exaggerating his health issues. A number of doctors met with the Plaintiff, but only one agreed with his take on his injuries. The court stated the plaintiff, “was not a reliable historian. His evidence in cross-examination with respect to his state of health and function at any given time often contradicted what he said in chief, and what he told doctors. Further, what he told one doctor about his state of health and function at any given time was often at odds with what he told another doctor. The contradictions are significant.”
Ultimately, the plaintiff was unable to show that his impairments were made worse after the second automobile accident. The court found him to have not met his burden to prove, on a balance of probabilities, that his impairment was serious, adding “The notes and records of the family doctor, which (the plaintiff) confirmed were correct, showed little change in his condition before and after the accident. These notes and records are the only contemporary record of the ebbs and flows in (the plaintiff’s) health and function before and after the two accidents.
The steps you take following an accident or injury, including those related to automobile accidents are critical to your chances of a successful claim for damages. Insurance companies and their representatives may pursue statements and documentation from you, but it is important to get qualified legal advice. The legal team at Derfel Injury Law works tirelessly with our clients to achieve the best possible resolution to their claims, paying close attention to proper documentation and deadlines. Please call us at 416.847.3580 or reach us online to discuss your case today.