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Consider the Effects of a No-Fault Threshold
There are serious problems in jurisdictions, such as Ontario, where passing
the threshold requires a victim to sustain a serious permanent injury. If
the courts determine that a serious permanent injury was not sustained,
compensation will not be paid for pain and suffering and lost wages will
not be fully recovered.
Case Illustration: Ontario, Canada
Victims: Mr. & Mrs. Meyer
Mr. and Mrs. Meyer were injured in a car accident. At the time, Mr. Meyer, a retired machinist, was 68. His wife was 66.
Mr. Meyer's main injury was an open compound fracture to his right knee. He underwent three operations before being discharged from the hospital 12 days after the accident. He used crutches for two weeks and a cane for five and a half months. After the recovery period, he was left with discomfort in his knee, feelings of instability and diminished strength in his right leg.
The Ontario Court of Appeal declared that Mr. Meyer's injuries were not serious. In the court's view: "While he does have continuing pain and discomfort causing impairment of his ability to walk, bear weight, squat and kneel, that impairment does not have such a detrimental impact upon Mr. Meyer's way of life that we can consider it a serious impairment for him."
His case was dismissed.
Mrs. Meyer's suffered a fractured left knee, a fractured wrist, a bruised chest and soft tissue injuries to her left ankle, right shoulder and middle finger.
Prior to the accident, Mrs. Meyer exercised regularly, enjoyed long walks, swam, danced and carried out household duties without difficulty. Additionally, she took pleasure in knitting, embroidery and crocheting, as well as preparing meals for large family occasions.
As a result of the accident, the pain to her knee and ankle restricted her ability to walk. She was not able to carry loads of laundry and not able to hold or scrub pots and pans. After walking, Mrs. Meyer's left foot swelled and caused her pain.
The Ontario Court of Appeal determined that Mrs. Meyer's injuries did not constitute a "serious impairment." The court said: "We are not satisfied that the detrimental impact of the permanent impairment of Mrs. Meyer's important bodily functions was of such a degree that we would call it a serious impairment."
Case Illustration: Ontario, Canada
Victim: Melinda Kemppainen - Pedestrian
Melinda Kemppainen and her sister, Melissa, were struck by a vehicle while walking. Melissa was killed. Melinda survived the accident, but suffered a fractured left tibia. Their father arrived at the scene of the accident. He suffered profound grief upon seeing his daughters struck down.
Melinda sued the driver. Defence counsel brought a motion to dismiss the action on the basis that her injuries were not serious enough. The report prepared by Melinda's doctor, an orthopaedic surgeon, explained that it was necessary to put her limb in a long leg cast. Sadly, Melinda was left with a bowling in her leg. Two years after her injury, she had a permanent deformity of her tibia and she experienced chronic pain from soft-tissue injuries to her leg. Due to the residual deformity, her doctor said there was a possibility she would develop arthritis at the knee and/or ankle. The doctor expected she would require another operation to her tibia. He said she was going to be left with a permanent deformity.
Ultimately, what was important to Melinda was not appreciated to the same extent by the judge. Though the judge recognized that the horrific consequences of the accident had a significant impact on Melinda's young life, he was "unable to say that the effect of her tibial fracture or the angulation have left her with a serious impairment of any important bodily functions."
Now, Consider the Reality of a No-Fault Deductible
What if the threshold was cleared? What if a person's injuries are worse than those suffered by innocent victims Melinda Kemppainen or Mr. and Mrs. Meyer?
Under a system of deductibles, if the threshold is cleared, a sum is subtracted (i.e. a deductible is applied) from the compensation award. The consequences of deductibles can be observed by the following examples:
A child sustains a concussion, a fractured jaw and a mild traumatic brain injury resulting in reduced mental capacity. A deductible of $25,000 is applied against a court award of $55,000. Subsequently, the child receives only $30,000 for their serious and permanent injuries.
A university student suffers a broken knee in a car accident. The threshold is met, but the $30,000 court award is reduced to $5,000 after the $25,000 deductible is applied.
This process of deductibles is unacceptable in terms of compensation for damaged cars. Why is it used for human bodies? Tin should not be seen as more valuable than skin. No system should allow this to be a reality for innocent injured people.