Threshold Motion: Pedestrian Was 8 Months Pregnant (non-pec claim dismissed)Noori v. Liu, 2020 ONSC 3049 (CanLII)
Threshold Motion Denied: Pedestrian Was 8 Months Pregnant
A case summary is posted here.
This is a tough outcome for the Plaintiff, Ms. Noori, who was 27 years old and 8 months pregnant, at the time of the accident, which happened in May/2013 (para 74).
It appears that much evidence was proffered at Trial to support her chronic pain syndrome, depression and related claims. Her evidence was that pre-MVA, she was healthy.
While it is logical and understandable that Ms. Noori would suffer from problems arising from being hit by a car, it appears that she did not seek regular / consistent medical treatment, post-MVA. Of course, this leaves the Jury with the option to either: consider Ms. Noori to have been ‘stoic’ about her ongoing pain; or to question her credibility on these issues.
To complicate matters, Ms. Noori went through a divorce shortly after the accident (para 53, 140). This Endorsement leaves me with the impression that she was actively involved with raising her newborn; she is caught on surveillance, outside, with her baby and others, on occasion (para 52).
What is a single Mom to do, if she must work to support herself and her child?
In the end, it appears that Ms. Noori’s lack of injury complaints in the days after the accident; her lack of medical treatment over time; and her ability to work / go to school successfully for extended durations, lead to the Judge’s (and Jury’s) finding that the threshold was not met in this case.
At para 143, the Judge sets out the claims made versus the Jury awards:
- · general damages claimed from $70,000 to $100,000;
- · past loss of income claimed of $37,302;
- · future loss of income claimed $148,664;
- · future housekeeping costs claimed $40,321 (present value); and
- · future healthcare costs claimed (not specified).
The jury awarded $40,000 in general damages and nothing else.
Ultimately, the Plaintiff lost ‘twice’ at Trial in that:
- the Jury awarded her low damages, near the Bill 198 deductible amount of $39,500; and
- 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.
Issues Noted in this Decision
On the issue of permanence of the injury, the Judge took note of the ‘zero’ award, by the Jury, for:
- both past and future income loss (para 134-136);
- housekeeping (para 137)
- future healthcare (para 137)
- FLA claim of the plaintiff’s mother (para 138)
At para 140, the Judge makes 11 findings of fact, which include:
- Ms. Noori’s only complaint at the hospital, after being brought by the ambulance, was a left hip contusion (which had resolved by Trial);
- A visit to the GP for depressive symptoms (8 months post-MVA) and back pain (10 months post-MVA) were noted;
- Ms. Noori returned to work, at a gym, approximately 8 months post-MVA and worked for a year, part-time (Jan/2014 to Jan/2015);
- Critically, there was a 22 month gap in any medical treatment (Apr/2015 to Feb/2017) from any OHIP funded provider;
- For 10 months (Sept/2016 to June/2017), Ms. Noori attended school, full-time, and also overlapped with working part-time for half that time;
- Regarding neck pain, the first medical evidence of neck pain was Apr/2019, in a visit to the GP; and
- Similarly, psychological counselling did not begin for Ms. Noori until 2019.
As a result, the Judge did not find Ms. Noori to be credible “in terms of the permanency of her impairments resulting from the accident” (para 146).