Plaintiff awarded Damages for Chronic Pain following Rear-end Collision

Posted by Injury Lawyers of Ontario on April 08, 2022

A woman was rear-ended by a pickup truck at an Orangeville intersection during stop-and-go traffic.  The accident victim had three children accompanying her in her Nissa Sentra, including two of her own. 

Airbags were not deployed and the plaintiff, Ms. Legree, was initially not aware of any injuries to herself or the children, so the drivers exchanged personal information and pulled over their vehicles and did not call emergency vehicles or police to the scene.  However, in the interests of caution, the accident victim called her common law husband (who is a mechanic) to make sure their car was safe to drive and he brought another vehicle for her to drive home.  She also took the children to the hospital to be examined and subsequently made a police report.   The cost of repair to both cars was later determined to be less than $5000.

After the accident, Ms. Legree began to suffer neck and back pain, constant headaches with intermittent severe migraines, and numbness in her left leg and arms.  The persistent pain substantially impacted her daily life and the ability to perform tasks she once did.  She needs help doing more strenuous chores such as vacuuming, and can no longer perform some activities such as gardening or shovelling snow.  The plaintiff is also no long able to work out at the gym or actively play with her children, and has stopped many activities she once enjoyed, such as hiking and bike riding.

In Legree v. Origlieri  (2021), the plaintiff brought a personal injury lawsuit against the defendant driver, claiming that the defendant is entirely at fault for the collision.  As a result of the accident, Ms. Legree claims she has suffered a permanent and serious impairment of an important physical, mental and/or psychological function, which is the threshold for non-pecuniary damages (or, general damages for pain and suffering).  Along with general damages, the plaintiff seeks awards for loss of income, future care costs and special damages.

Decision on whether Plaintiff is entitled to Damages

In order to rule on this case, Justice Fowler Byrne was tasked with deciding: who was at fault in the collision; whether the plaintiff’s injuries meet the threshold for non-pecuniary/general damages; and what losses were suffered by the plaintiff as a result of the accident.

On the question of liability, based on the police accident report and the uncontested evidence of both drivers, the judge found that the defendant driver is entirely at fault for the collision.  Ms. Legree and her common law husband gave evidence that the defendant’s comments directly after the accident gave them reason to believe the defendant was on her cell phone at the time of the crash; however, Justice Fowler Byrne found that she did not need to make a ruling on this issue for the purpose of the trial.

On the second issue, the judge concluded that, on a balance of probabilities, the plaintiff has sustained a permanent serious impairment of an important physical function.  The judge also found that her injuries directly resulted from the accident. She is therefore eligible for an award of general damages for pain and suffering, and past and future health expenses. 

Prior to the accident, Ms. Legree had no history of headaches and did not suffer from persistent neck or back pain.  When she went to the hospital to be examined after the accident, she began to feel stiffness, tightness and pain in her upper neck, as well as pain across her shoulder blades.  The hospital physician initially diagnosed the plaintiff with upper back muscular pain and no major injuries.    

Within a week after the accident and after experiencing ongoing neck pain and pain down her left arm, the plaintiff saw her family doctor.  The doctor diagnosed a whiplash type injury and advised pain medication, ice and heat treatment and physiotherapy.  In the following weeks, the plaintiff’s pain increased; she had severe headaches, back pain, and shooting pain if she moved her neck too fast.

In the year after the accident, the plaintiff continued to suffer ongoing pain in her neck and lower back, nightly headaches, and some numbness in her legs and arms.  She underwent various treatments, including physiotherapy and massage therapy which gave her some relief, but her pain increased again when she had to discontinue regular treatments after her insurance ran out one year following the accident.  Her pain continued in the five years until the trial and the plaintiff underwent many medical tests recommended by her doctors, including an MRI/SPECT examination.  Although the brain MRI identified no abnormalities, she was diagnosed with ‘post MVA concussion’ which her doctor stated was not unusual for a traumatic brain injury.

After considering the evidence of two chronic pain experts, Justice Fowler Byrne was convinced that Ms. Legree suffers from the following symptoms:  chronic post traumatic headaches, cervical vertebral column and lumbar vertebral sprain or strain, causing neck, shoulder blade pain and lower back pain, and chronic pain syndrome.   The judge also relied on evidence from a neurologist experienced in the brain, spine and peripheral muscles and nerves, who reviewed the plaintiff’s medical history and doctor’s assessments.  The neurologist opined that the plaintiff was suffering from the aforementioned musculoskeletal soft-tissue injuries, post-traumatic headaches and chronic pain syndrome.  Further, since the symptoms had already persisted for three and one-half years by the time of his assessment, he could not predict whether she would recover.  Finally, the judge considered evidence from a registered psychologist who opined that the plaintiff is suffering from generalized anxiety disorder and adjustment disorder with depressed mood and further, is not exaggerating her symptoms.

Friends and relatives gave testimony on how the ongoing pain has impacted the plaintiff’s activities and quality of life.  Prior to the accident, Ms. Legree was very active (including biking, hiking and roller blading) and enjoyed activities with her children, but headaches and other pain now prevents or curtails many of these endeavours.   On all the evidence, Justice Fowler Byrne was convinced that the plaintiff’s injuries are serious, permanent and important.

On the final question of damages, the judge reviewed similar cases where general damages were awarded for chronic pain and soft tissue injuries, and assessed general damages of $100,000 in this case.  The plaintiff was also awarded $143,560.78 for future health care expenses such as physiotherapy and massage therapy, and $1,993.10 in special damages.

The Legree case highlights how a seemingly minor car accident may have significant and even, life-changing repercussions.  If you or a family member were involved in a car accident, it’s important to get promptly assessed by a doctor to ensure that you haven’t sustained an injury that might worsen over time if left untreated.  Further, if you are considering making a claim for injury compensation, get expert advice from an experienced injury lawyer to find out about your legal rights and how much your claim is likely to be worth.


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