Threshold Motion Dismissed in “Thin Skull” Case

February 1, 2018 | Theodore J. Madison

The plaintiff, aged 54, was involved in a motor vehicle accident as a passenger. The vehicle was rear-ended and the collision was of moderate impact. The plaintiff’s back and neck pain evolved into chronic pain. The plaintiff had a pre-accident history of depression, apparently connected with traumatic events in her life. At the time of the accident, the plaintiff was on a stress leave from work. After the accident, she did not return to her job as a social worker. At trial, the jury returned a verdict in favour of the plaintiff, awarding damages totaling $418,330. The defendant brought a threshold motion, arguing that the plaintiff failed to establish that she had sustained “a permanent, serious impairment of an important, physical, mental or psychological function,” pursuant to sections 267.5(3) and (5) of the Ontario Insurance Act (the “Act”). The motion was dismissed. The Court found that the plaintiff’s tendency to suffer from depression and other psychosocial factors played a significant role in her inability to recover and in her development of chronic pain. The injury, however, qualified under the “but for” test for causation. The plaintiff was a “thin skull” case who foreseeably would suffer more seriously from a whiplash injury than the average person. The Court accepted the evidence of the plaintiff’s experts, who found that the plaintiff suffered whiplash injuries and subsequently developed chronic pain syndrome that significantly disabled her. The Court accepted that her condition was not likely to improve substantially and that it affected them plaintiff’s daily life, her ability to work, and to perform housekeeping functions. The Court concluded that the plaintiff’s impairments resulting from the accident satisfied the threshold in sections 267.5(3) and (5) of the Act.


Nkunda-Batware v. Zhou, 2016 ONSC 2942


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