This is a threshold motion in which the plaintiff had pre-existing osteoarthritis in his left knee. The plaintiff was successful in establishing the subject car accident caused his asymptomatic left knee to become symptomatic and thus his injuries met threshold.
Released February 8, 2017 | Full Decision [CanLII]
On January 30, 2017, the jury returned its verdict and awarded $54,500 for general damages, zero for past income loss, $0 for pension loss, $22,500 for future health care costs and $3,000 for future housekeeping expenses. After the jury delivered its verdict, defence counsel brought a threshold motion for declaration that the plaintiff’s injuries did not fall within the exceptions to the statutory immunity provided for in ss. 267.5(3)(b) and 267.5(5)(b) of the Insurance Act, R.S.O. 1990 c.I.8 and the applicable regulations.
The plaintiff, Franklin Shaw, had pre-existing osteoarthritis in his left knee. He was involved in a car accident on January 26, 2009 in which he claimed the car accident caused his asymptomatic left knee to become symptomatic. He required two surgeries after the accident (a total knee replacement and a patellar resurfacing); he walked with a limp and at a slow pace; and was limited with his housekeeping chores and social activities.
The defendants argued the left knee injury was not caused by the accident but rather solely due to his pre-existing osteoarthritis. The defendants relied on the fact Shaw did not report left knee pain at the hospital, or to his family doctor four days after the accident or to his physiotherapist during the initial assessment a week after the accident. The first recorded complaint of left knee pain was 4 weeks post accident. The defendants acknowledged that if the accident did cause the left knee injury then Shaw’s damages would meet threshold.
Dr. David Backstein was the plaintiff’s expert, whose evidence was accepted over that of Dr. Hugh Cameron who gave expert evidence for the defendants. Of significance, Justice Glustein accepted Dr. Backstein’s evidence that a minor impact resulting in fairly minor injuries could convert asymptomatic arthritis to symptomatic arthritis. He rejected Dr. Cameron’s evidence that Shaw would have needed to “smash” his knee so severely in the accident that he would have been in severe pain and thought his knee was broken.
Justice Glustein also did not accept the defendants’ submission that the lack of a note in the emergency department records, family doctor notes and to the physiotherapist meant Shaw did not have left knee pain. Instead, the court accepted the evidence was consistent with Shaw’s evidence that the onset of his left knee pain was gradual.
The defendants’ motion was dismissed.
This post originally appeared on Ontario Trial Lawyers Association Blog on March 17, 2017.