Personal Injury Update: Lack of Objective Causes for Pain Does Not Mean You Don’t Have a Case & Defendants Cannot ‘Cherry-Pick’ Surveillance

This post was written by Andrea Girones:

There have been some very interesting decisions from the Ontario Superior Court dealing with motor vehicle accident cases in the past few months. They deal with issues we frequently help our clients solve: chronic pain and surveillance.

The December 2014 case of Maxwell v. Luck is a great decision for individuals suffering from chronic pain. This case confirms that despite an absence of objective mechanisms causing pain, a plaintiff may still is entitled to receive compensation from a person who caused an accident to occur. In this case, the deciding judge quoted a Nova Scotia Supreme Court case to explain that despite the 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. The judge then used his reasons to reject the Defendant’s expert who said that the plaintiff did not have a valid complaint because there were no objective mechanisms causing pain.

The judge also emphasized that despite the plaintiff’s history of neck and back pain before the motor vehicle accident she was never limited in her ability to work or participate in her leisure activities before she was injured by the negligent defendant.

A 2015 decision of Malfara v. Vukojevic has also recognized that the focus should be on “the effect of the injury on the person and not the type of injury or labels attached to it”.

The November 2014 decision of Wigmore v. Myler is helpful to clients who have been put under surveillance either by their own insurance company or the Defendant driver’s lawyers. In this decision, the judge stated that if the defendant chooses to disclose surveillance of the plaintiff, he can’t limit or “cherry-pick” what to disclose and must provide all of the surveillance that was obtained.

Navigating both the legal and the automobile insurance system can be a very frightening situation for individuals involved in motor vehicle accidents. If you are wondering whether you have a case, please don’t hesitate to contact us for your free no-obligation consultation.

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