Car insurance premiums are an important public policy consideration, even in light of the compensatory rationale underlined in tort law. In Ontario, the legislature has created a balance through s. 267.5 of the Insurance Act and its Regulations, which creates a “threshold” before which an injured person can receive damages after a motor vehicle collision.
(i) Has the plaintiff sustained a permanent impairment of a physical, mental or psychological function?
(ii) If yes, is the function so impaired an important one?
(iii) If yes, is the impairment of the important function serious?
A motion dismissing an action on the basis that a plaintiff has not met this test is often brought by defence counsel as a means of creating immunity to liability. Absent such a motion, a judge is required to conduct this assessment even after a finding of liability by a jury.
The Ontario Superior Court of Justice recently released a decision in Maxwell v. Luck on a relatively small jury damages award, but dismissed the threshold motion and awarded the damages comprised largely of future income loss and general damages.
Justice Howden heard evidence from an orthopedic surgeon specializing in the area of chronic pain assessment, as well as a spine and trauma surgeon who did not specialize in chronic pain, brought by the defence.
The orthopedic surgeon stated that the plaintiff was permanently disabled for the rest of her working life due to chronic neck pain, pain in the upper back, and headaches. Her functions as an exotic dancer were impaired because she could no longer do the “high-energy, high flexibility dancing” she did before to support herself.
The defence trauma surgeon, however, believed the plaintiff had recovered from her injuries with no objective mechanism for causing her pain. This sentiment is not uncommon for many in the medical industry, who can often dismiss chronic pain as an artificial illness.
Pain, however, is a subjective experience.
The perpetual nature of chronic pain has itself been held to meet the permanence requirement of the threshold. Justice Roccomo stated in Hartwick v. Simser,  O.J. No. 4315,
87 It is now trite law that chronic pain arising from injury sustained in a motor vehicle accident, and which accounts for limitation in function unlikely to improve for the indefinite future, will meet the requirement of “permanence” in the threshold: see Bos Estate v. James (1995), 28 C.C.L.I. (2d) 166 (S.C.J.); May v. Casola,  O.J. No. 2475 (Ont. C.A.); Altomonte v. Matthews,  O.J. No. 5756 (S.C.J.).
88 In Meyer, supra, it was held that an “important” bodily function is one that plays a major role in the health, general well-being and way of life of the particular injured plaintiff. The determination of what is an important function invokes a subjective analysis, as there are bodily functions important to some but not to others.
89 The more litigious component of the threshold test surrounds the question of what functional limitations will constitute a “serious” impairment. It is now clearly established that one who can carry on daily activities, but is subject to permanent symptoms including sleep disorder, severe pain, headaches, having a significant effect on the enjoyment of life, will demonstrate symptoms constituting a serious impairment. Ongoing and debilitating pain, even in the absence of objective findings by medical experts, will constitute serious impairment: see Chrappa v. Ohm,  O.J. No. 1663 (S.C.J.); Skinner v. Goulet,  O.J. No. 3209 (S.C.J.); May v. Casola, supra.
The legislation only requires an interference with a substantial ability, not a complete inability. A slightly lower threshold is used for activities of daily living, because s. 4.2(1) of the Regulation uses the word “most,” as opposed to the interference with employment or training. However, this interference should be more than just “frustrating and unpleasant” and should be an interference “beyond the tolerable to the serious.”
An injury has been considered serious by cases even if a plaintiff returns to work. The focus should be the effect on the person’s life. In this case, the plaintiff was no longer able to engage in recreational horseback riding, for example, in addition to having her career derailed.
Justice Howden referred to the Supreme Court of Canada decision in Nova Scotia (Workers’ Compensation Board) v. Martin; Nova Scotia (Workers’ Compensation Board) v. Laseur,  2 S.C.R. 504, 2003 SCC 54 (CanLII):
There is no authoritative definition of chronic pain. It is, however, generally considered to be pain that persists beyond the normal healing time for the underlying injury or is disproportionate to such injury, and whose existence is not supported by objective findings at the site of the injury under current medical techniques. Despite this lack of objective findings, there is no doubt that chronic pain patients are suffering and in distress, and that the disability they experience is real. While there is at this time no clear explanation for chronic pain, recent work on the nervous system suggests that it may result from pathological changes in the nervous mechanisms that result in pain continuing and non-painful stimuli being perceived as painful. These changes, it is believed, may be precipitated by peripheral events, such as an accident, but may persist well beyond the normal recovery time for the precipitating event. Despite this reality, since chronic pain sufferers are impaired by a condition that cannot be supported by objective findings, they have been subjected to persistent suspicions of malingering on the part of employers, compensation officials and even physicians.
Justice Howden highlighted the jury charge provided for assessment of medical examinations:
The opinion of a doctor may be based entirely on objective symptoms revealed through observation, examinations, tests or treatments, or the opinion may be based entirely upon subjective symptoms…in part upon objective symptoms and in part upon subjective symptoms.
He preferred the evidence of the chronic pain specialist, who had confirmed the plaintiff’s symptoms through objective observation that the defence physician failed to even attempt,
 …I do not accept [his] opinion nor do I sense that [he] has an understanding of the fundamental aspect of those chronic pain cases, which lack objective proof. Nevertheless they are very real to the patient.
Finally, Justice Howden considered Strangis v. Patafio, where the plaintiff relayed that he felt like “less of a man” due to his injuries. Justice Corbett did not find the plaintiff in that case met the threshold, as some injuries which cause permanent pain are not compensable,
33 The intent behind the threshold is clear: people are required to bear some non-trivial non-pecuniary losses arising from car collisions without compensation. The policy debate behind this provision is one which has been ongoing for many years. It is not for the court to read down the provision to apply it only to trivial functional impairments: that is not the language of the section, and clearly not the legislative intent.
Justice Howden would have assessed damages at a higher range than the $108,000 awarded, he acknowledged that this plaintiff met the threshold for compensation despite approaching the non-trivial non-pecuniary losses enunciated in Strangis.
Although this is a minor damages award, it does indicate that judges can and should go beyond the medical evidence to consider the qualifications of the experts specifically for the medical conditions experienced by a plaintiff. Chronic pain should be understood and assessed comprehensively, and where this is not done so, such evidence should be discounted accordingly.