Alexandra Roman, lawyer at Bogoroch & Associates LLP
This article was produced in partnership with Bogoroch & Associates LLP
By Julius Melnitzer | October 25, 2023
Three recent decisions from Ontario Superior Court judges sitting alone suggest a trend to higher awards for general damages in personal injury cases arising from motor vehicle accidents involving chronic pain and post-concussive impairment.
“These judgements are positive developments for plaintiffs, but they do raise a question of the degree to which the results are attributable to the fact that these were judge alone trials,” says Alexandra Roman of Bogoroch & Associates LLP, a Toronto-based civil litigation boutique whose focus includes medical malpractice and personal injury cases. “Generally speaking, defence counsel prefer juries because historically, juries have tended toward lower damages awards.”
Juries are not told that in motor vehicle accident cases, a statutory deductible of approximately $45,000.00 applies to general damages awards. The deductible increases annually with cost of living and many people are surprised to learn that a mistrial is declared if the jury is told about the deductible during the trial. In auto injury cases, plaintiffs also have to persuade a Judge that they have satisfied a verbal “threshold” which means that they must adduce sufficient evidence of a “permanent and serious impairment of an important physical or psychological function” as set out in the Insurance Act.
As a result of the COVID-19 pandemic, jury trials were not being held. A body of case law emerged striking jury notices so that cases could proceed with a judge alone.
“In my experience, however, defence counsel continue to deliver jury notices in most motor vehicle cases involving chronic pain and post-concussive injuries post-pandemic,” Roman says. “So the precedential value of these three recent decisions remains to be seen as jury trials proliferate again.”
The three awards ranged between $225,000 and $250,000 for general damages. Roman believes there is a common thread in the reasons. MORE . . .
Julius Melnitzer is a Toronto-based legal affairs writer, ghostwriter, writing coach and media trainer. Readers can reach him at [email protected] or https://legalwriter.net/contact.