After a series of recent Bill 59 “threshold” decisions that have favoured insurers (most recently Page v. Primeau, which was the subject of a previous Update), a Superior Court judge has decided a threshold motion in favour of the plaintiff. In Sasso v. Copeland, the plaintiff was a young woman who had been diagnosed with chronic pain and adjustment disorder. Her complaints included insomnia, irritability, headaches and shoulder pain.
The injuries were conceded by the defence to be “permanent” and “important”. The only issue was whether the plaintiff also met the third element of the Insurance Act threshold: seriousness.
Madam Justice Alison Harvison-Young found that the injuries were serious. She discounted evidence that the plaintiff was working and that, since the accident, the plaintiff had become engaged to be married. Of the former, Harvison-Young J. said: “the fact that Ms. Sasso is working and is apparently well regarded by her present employer is a tribute to her work ethic and is not to be taken as evidence that she is free of pain and healed from her injuries.”
By way of contrast, Justice Sedgwick, in the Page case, found that the injuries suffered by the plaintiff Page were not serious. He attached considerable weight to the fact that the plaintiff was working and had received favourable evaluations. But Page was able to perform most of her day to day activities, while Justice Harvison-Young concluded that Sasso was significantly hampered in doing so.
Perhaps the biggest reason for the different outcomes was that Sasso was found by Harvison-Young J. to be “credible” and “sincere” and that there was “no evidence of malingering or exaggeration”. Page, on the other hand, was found by Sedgwick J. to have failed to follow recommended treatment. He also said of her, that there was “a sharp contrast between the testimony of the plaintiff in chief and during cross examination…which, in my view, belies the image of a young woman in constant moderate to severe pain as a result of the motor vehicle accident on November 22, 2000.”
em>Sasso was tried before judge and jury. The threshold issue was argued while the jury was deliberating, so we do not yet know at what amount the plaintiff’s damages were assessed. It is likely that the jury’s impression of Sasso as a witness will be an important factor in the damages assessment, just as it was in the threshold ruling.