Chronic Pain and “Minor” Injuries: Maxwell v Luck, 2014 ONSC 7179
5/15/2015 1:48 PM
In the Ontario case of Maxwell v Luck, a 24 year-old plaintiff sought damages for injuries sustained after being rear-ended by the defendant in a motor vehicle collision. The plaintiff alleged that she suffered from chronic pain in her neck and shoulders as a result of the collision. At issue was whether the injuries suffered by the plaintiff were “minor” for purposes of the Ontario Insurance Act and, more particularly, whether the plaintiff’s injuries amounted to a serous permanent impairment of a physical function of importance.
The case appeared to turn largely on the evidence offered by the plaintiff’s expert witnesses, who gave the opinion that the plaintiff’s injuries as causing restriction/limitation that was permanent and chronic. He found her to be permanently disabled by chronic neck and upper back pain and headaches, not totally but seriously for the rest of her working life In reaching his conclusion, the expert highlighted the plaintiff’s rigorous work ethic and physical efforts required as an exotic dancer and her common hobby, horse riding. The expert conducted a thorough physical examination of the plaintiff and noted evidence of inflammation within the tissue and a loss of range of motion by 40 to 70%.
The defendant’s expert witness, by contrast, conducted limited investigation and made limited reference to the plaintiff’s circumstances and found there were no objective mechanisms causing pain – therefore, he concluded, there could be no valid complaint.
The Trial Judge accepted the evidence of the plaintiff’s expert witness. In doing so, the Trial Judge was critical of the defendant’s expert summary dismissing the plaintiff’s chronic pain complaints. In his view, the plaintiff’s expert appropriately analyzed the plaintiff’s work history, day-to-day activities, and the effect these and future activities would have on the plaintiff’s injury when determining the permanency and seriousness of the plaintiff’s injury. The Trial Judge thus concluded that the injuries in question were not “minor” for purposes of the Ontario Insurance Act.
While the law with respect to injuries that are “minor” varies from province to province, Maxwell v Luck may have relevance to other provinces for two principle reasons. Maxwell v Luck demonstrates the importance of retaining an expert who is experienced in and capable of understanding chronic pain and its impact upon particular individuals. Further, Maxwell v Luck represents an example of a case wherein chronic pain is considered to be considered a permanent, serious injury – as chronic pain is typically difficult to prove objectively, Maxwell v Luck adds to the limited number of cases available to help distinguish incidents of chronic pain from injuries which are often viewed as “minor.”
The full text of Maxwell v Luck may be found at http://canlii.ca/t/gfnxd.
If you have questions or would like to discuss this topic further, please contact Sandra L. McCulloch at Patterson Law at 1-888-897-2001.
Please note that this article is meant to provide information only and is not intended to confer legal advice or opinion. If you have any further questions please consult a lawyer. Please note as well that many of the statements are general principles which may vary on a case by case basis.