Liu v. 1226071 Ontario Inc. (Canadian Zhorong Trading Limited)(2009), 97 O.R. (3d) 95 (C.A.).
The Court of Appeal has released a decision that may make it more difficult to resist a declaration that a claimant is catastrophically impaired.
In Liu, the plaintiff was injured in a motor vehicle accident on April 9, 1999. His initial Glasgow Coma Score (“GCS”) was 3/15. His GCS steadily increased and by the time he arrived at hospital 26 minutes later, his GCS was 14. The definition of “catastrophic impairment” is brain impairment that results in a score of 9 or less on the GCS according to a test administered “within a reasonable period of time after the incident by a person trained for that purpose”. The trial judge concluded that the appellant did not suffer a catastrophic impairment, and as a result, he was not entitled to receive a damage award for future medical, rehabilitation or attendant care expenses, which the jury assessed at $858,000.00. The issue of catastrophic impairment was therefore very important to both sides.
The Court of Appeal held that as long as there is one GCS score of 9 or less within a reasonable time following the accident, the plaintiff’s impairment falls within the definition of catastrophic impairment. The fact that there may have been other, higher scores also within a reasonable time after the accident is irrelevant.
This decision has implications in both the accident benefits sphere and on tort damages. Although it simplifies the definition of catastrophic impairment to a certain extent, it permits claimants who have met the definition for a limited period of time to access increased damages. It remains to be seen whether this decision will be appealed to the Supreme Court of Canada.
The Court of Appeal has released a decision that may make it more difficult to resist a declaration that a claimant is catastrophically impaired.
In Liu, the plaintiff was injured in a motor vehicle accident on April 9, 1999. His initial Glasgow Coma Score (“GCS”) was 3/15. His GCS steadily increased and by the time he arrived at hospital 26 minutes later, his GCS was 14. The definition of “catastrophic impairment” is brain impairment that results in a score of 9 or less on the GCS according to a test administered “within a reasonable period of time after the incident by a person trained for that purpose”. The trial judge concluded that the appellant did not suffer a catastrophic impairment, and as a result, he was not entitled to receive a damage award for future medical, rehabilitation or attendant care expenses, which the jury assessed at $858,000.00. The issue of catastrophic impairment was therefore very important to both sides.
The Court of Appeal held that as long as there is one GCS score of 9 or less within a reasonable time following the accident, the plaintiff’s impairment falls within the definition of catastrophic impairment. The fact that there may have been other, higher scores also within a reasonable time after the accident is irrelevant.
This decision has implications in both the accident benefits sphere and on tort damages. Although it simplifies the definition of catastrophic impairment to a certain extent, it permits claimants who have met the definition for a limited period of time to access increased damages. It remains to be seen whether this decision will be appealed to the Supreme Court of Canada.
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