27 Year Old Pregnant Woman Hit by Car: Pain and Suffering Damages – Denied

Case Summary: Noori v. Liu, 2020 ONSC 3049 (CanLII)

Issue:

When you sue for pain and suffering damages (i.e. non-pecuniary damages) arising from an Ontario car accident, the defendant can, at the end of Trial, bring a threshold motion seeking a ruling that you are not entitled to pain and suffering damages because your injuries don’t rise to the level (i.e. seriousness) required.


If the defendant wins that motion, then that means the Court rules against your claim, indicating that your injuries are not serious / permanent enough to qualify for pain and suffering damages.

This Case

This is an unfortunate situation whereby the Plaintiff, Ms. Noori, a 27 yr old pregnant woman who was hit, as a pedestrian, by a car, also lost the threshold motion brought at the end of Trial.

It appears that much evidence was proffered at Trial to support her chronic pain syndrom, depression and related claims.

Ultimately, the Plaintiff lost ‘twice’ at Trial in that: (1) the Jury awarded her low damages that likely wouldn’t have net her anything; and (2) the Trial Judge ruled against the Plaintiff and found her injuries complained of were not casually related to the accident and that she did not meet the threshold for pain and suffering damages.

Per Coats, J., this is the Jury’s decision (paraphrased):

[143] Largely on the basis on her evidence, and the medical evidence I will refer to below, Ms. Noori sought general damages and suggested:
* a range of general damages from $70,000 to $100,000;
* past loss of income of $37,302;
* future loss of income in the amount of $148,664;
* future housekeeping costs of $40,321 (present value);
* and future healthcare costs.
The jury awarded $40,000 in general damages and nothing else.

NOTE: the Bill 198 deductible applicable to this Plaintiff’s non-pecuniary damages is approximately $39,500. The Jury would not have known about this deductible; it was an unhappy coincidence that they awarded an amount essentially equaling the deductible.

The Takeaways

This is a comprehensively reviewed case by Coats, J., who methodically went over the extensive evidence.

It appears that the Jury was unsympathetic to the Plaintiff, generally, with surveillance evidence perhaps playing a role in their decision. As well, it was emphasized that immediately after the accident (i.e. in ambulance, at emergency dept in the hospital) that the Plaintiff did not complain of much, by way of injury, except for her leg. Her later, more significant issues with the back and neck were then questioned, on the issue of causation.

Not an easy case. On the face of it, when a person is hit by the car, the person is simply lucky to survive. And it is not unusual, in the slightest, for the shock of the initial impact / accident to lead a victim to fail to report, comprehensively, their injuries at the initial medical care – i.e. their relief of being alive, their shock of being hit – as the disruption to their lives during a very confusing moment is overwhelming. Paricularly if the victim is unable to properly advocate, for themselves, in English.

However, the Jury had the opportunity to go over the evidence and presumably listened to a detailed direct and cross-examination of the Plaintiff, at Trial, and decided to deny all her claims except pain and suffering. On pain and suffering, it would appear that they gave her the equivalent of a year or 18 months of salary. Sad situation for the Plaintiff, no one wins in these types of situations.

Relevant Entries from the Decision of Coats, J.:

Reviewing the Submissions of the Defendant:

[56] Ms. Noori has been able to continue with her life since the accident. She worked at Century Fitness for a year from January 1, 2014 to January 31, 2015. She worked at Symposium from December 26, 2016 to May 14, 2017, while earning her chef’s certificate from St. Charles Place. Ms. Noori claims that she is unable to work in her desired field as a chef because of her accident-related injuries. However, she was unemployed at the time of accident. Since the accident, she has been able to complete vocational training as a chef and was offered employment in her chosen field but declined that offer.

[57] Ms. Noori has been able to maintain her social life. She was able to travel to Vancouver. She went to the beach with her daughter and a friend. She went to the African Lion Safari with her daughter and friend, Roza Ahmed. She has gone with her boyfriend to Canada’s Wonderland and the Toronto Zoo and to a restaurant. She is able to live a social and productive life.
…..

[60] The objective medical imaging did not show any mechanical injuries except for the possible meniscus tear. Dr. Boucher testified that this was not the result of the accident. The common recovery time for soft tissue injuries such as the injuries Ms. Noori suffered is 16-20 weeks. Ms. Noori claims to still be in pain but takes no medication for the pain.

[61] Ms. Noori testified that she was in pain and unable to do her co-op job at Tansley Woods. This evidence is inconsistent with the notes of her supervisors. One of her supervisors, Ms. Maggie Jakab, testified that she performed her tasks well and that someone with the type of injuries claimed by Ms. Noori would not have been able to do the job. Ms. Noori performed her job so well that she was offered employment to begin after her co-op placement. Ms. Noori declined the employment.

[62] Ms. Noori was not a credible witness in that her description of her injuries and how the injuries limit her activities was inconsistent with the activities seen on the surveillance described above. Further, Ms. Noori did not exhibit significant pain behaviour on the surveillance, while she did exhibit this behaviour in court and to her litigation experts.

……
[64] The jury rejected Ms. Noori’s theory of the case. The jury awarded Ms. Noori $0.00 for past income loss, $0.00 for future income loss, and $0.00 for future care costs. In making these determinations, the jury rejected the idea that Ms. Noori was unable to work in the past or that Ms. Noor is unable to work in the future as a result of the accident. By awarding no damages for income loss (past or future) or future care costs, the jury accepted the defendants’ theory of the case.

[65] The jury heard all of the medical evidence. The jury rejected Ms. Noori’s claim that her impairment will cause her income loss and rejected her claim that she required assistance with future housekeeping and future medical treatment. The jury did not accept that Ms. Noori had suffered any significant impact on her current or future functioning. The jury rejected any claim for past income loss and future income loss. The standard of proof for future losses is considerably lower than the standard of proof for past income loss. For future income loss, Ms. Noori only needed to prove that there was a real and substantial risk that she would lose income in the future as a result of her injuries. The jury rejected that there was such a risk.

[66] As the trier of fact, the jury’s award indicates that they made these findings of fact. The moving parties’ submit that this case is similar to the situation in Berfi, wherein Stinson J. stated that the award of nothing for future income loss “is consistent with the jury finding that, going forward, the plaintiff is capable of working” (para. 33).

[67] The jury found that Ms. Noori requires no future assistance with either housekeeping or for healthcare needs. The jury’s assessment of damages should be considered on this motion, otherwise there is a risk of inconsistent findings of fact.

Reviewing the Submissions of the Plaintiff:

[74] At the time of the accident, Ms. Noori was 27 years old and eight months pregnant. She was a pedestrian on a sidewalk and was struck directly on her left side by a car exiting a parking lot, which was making a right turn. Ms. Noori testified that her upper body landed on the hood of the car. This was confirmed in the clinical notes from the hospital that she attended at immediately after the accident.

[75] Since the accident, Ms. Noori has had ongoing pain in her neck; upper, mid, and lower back; shoulders; hips and left knee. She initially injured her left hip and thigh but the pain later spread to her left knee, back and neck. More recently, the pain has spread to her trapezius muscles, both shoulders and her right hip. Her knee pain is essentially resolved.
…..
[91] It is the Plaintiffs’ position that Ms. Noori was a thin-skulled plaintiff and more vulnerable to both her physical and psychological injuries. She has a family history of depression, which makes her more susceptible to developing the condition according to Dr. Sharma. Additionally, she was pregnant at the time of the accident. Dr. Berbrayer explained that her core muscle strength would have been compromised, which made her back more vulnerable to injury. Her posture would have been altered as well, making her neck and back more vulnerable to injury. The pregnancy itself delayed imaging and treatment and then she had her child before the typical healing time of soft tissue injuries.

[92] While it is true that soft tissue injuries typically heal in 16-20 months, those statistics, according to Dr. Berbrayer, do not apply to pregnant women. In any event, soft tissue injuries do not always heal within 16-20 weeks and the very existence of chronic pain as a medical condition (pain that lasts more than the typical healing time) necessarily makes this true. Dr. Boucher acknowledged this during his testimony.

[93] Ms. Noori was also at a higher risk of suffering from Chronic Pain Syndrome because of her pre-existing social anxiety and panic attacks and because she is female. She is a thin-skulled plaintiff in that regard as well. Dr. Berbrayer testified that both pre-existing anxiety and gender are risk factors for this condition.

[94] With regard to the surveillance evidence, the Plaintiff concedes that there is some indication of inconsistent symptomology in the surveillance footage. Ms. Noori maintains, however, that this is completely consistent with the complex nature of her problems. It is consistent with Chronic Pain Syndrome, which Dr. Boucher acknowledged. In particular, Dr. Boucher acknowledged that inconsistent pain symptoms, even during examinations, and inconsistent pain behaviour, including limping, are consistent with the condition.

[95] According to Dr. Berbrayer, inconsistent symptomology is also typical of Ms. Noori’s degenerative changes, bulging disc, bursitis, and left knee injury, and with her depression in light of those physical injuries. Depression can alter posture and even the way someone walks.

…..

[103] Ms. Noori suffered initial injuries to her left hip and thigh. These injuries evolved to her left knee, back and neck and then to her right hip, trapezius muscles and both shoulders. This has been confirmed by the testimony of Ms. Noori, her mother, Dr. Sharma and the clinical notes and records of Dr. Sharma and Ancaster Sports Medicine.

[104] While the intensity of her pain can vary, along with the part of her body that is hurting at a given moment, this does not mean her condition is not continuous. Ms. Noori testified that treatment and stretching has only provided temporary pain relief.

[105] Dr. Berbrayer has diagnosed Ms. Noori with a number of physical injuries and Chronic Pain Syndrome as a result of the accident.

[106] Dr. Tippin diagnosed Ms. Noori with Somatic Symptom Disorder and persistent depression because of her chronic pain and the extent it has interfered with her everyday life.
……

[127] Furthermore, Ms. Ross testified that Ms. Noori needs to be retrained as she is most suited to clerical work. She recommended that Ms. Noori return to school and determined that Ms. Noori will require occupational therapy to help her return to the workforce. Even then, Ms. Ross concluded that Ms. Noori will not be able to sustain full-time competitive employment in a clerical field.

[128] Caring for her daughter and being active with her, taking Zuli to school, housekeeping, sleeping, exercising, socializing, and working are all important functions in Ms. Noori’s life. The respondent submits that challenges in each of these spheres are beyond the unpleasant and frustrating.

[129] There are four main areas of responsibility in her daily life: childcare, home maintenance, physical health (exercise and treatment) and employment. Time and energy spent in any one major area is going to affect Ms. Noori’s ability in the other major areas, also affecting her social life and sleep.

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