09 Feb Gyorffy v. Drury Revisited
By: Samantha Cain
Published : Feb 9, 2015
In Ontario, an injured person can sue for general damages only if he/she meets an impairment threshold: he/she must have sustained a permanent serious impairment of an important physical, mental or psychological function, or a permanent serious disfigurement.
Ontario Regulation 461/96 also imposes an evidentiary burden on plaintiffs. The plaintiff must lead evidence from a qualified physician about the nature of his/her impairment and also adduce evidence that corroborates the change in the function.
Gyorffy v. Drury
In our October 2014 newsletter, Erin Durant of our office referenced Gyorffy v. Drury.
The plaintiff, Bella Gyorffy, alleged to have sustained serious whiplash injuries during a November 2003 accident.
The jury awarded Mr. Gyorffy $39,000 gross in general damages. However, the award was denied after the defendant brought a successful threshold motion. Although the plaintiff and his physician lead evidence about the plaintiff’s post-accident change in functioning, the plaintiff did not have co-workers or family members testify on his behalf to corroborate these changes. The trial judge accordingly concluded that Mr. Gyorffy failed to satisfy the evidentiary requirements of the regulation.
The decision was appealed to the Divisional Court, where the majority held that only one other witness need corroborate the physician and that witness can be the plaintiff.
A lone dissenting judge commented that, as a matter of logic, the plaintiff’s evidence is not capable of corroborating his own evidence.
Court of Appeal
The Divisional Court’s decision was appealed to the Ontario Court of Appeal. On January 22, 2015 the Ontario Court of Appeal unanimously upheld the decision.
The Court of Appeal ruled that what requires corroboration is the evidence of the physician, not the evidence of the plaintiff. The regulation only requires the evidence of a physician plus one other witness. There is nothing in the language of the regulation that precludes the plaintiff from being that other witness.
The Court of Appeal rejected the argument that because physicians typically rely upon hearsay evidence from the plaintiff, a plaintiff as corroborating witness would essentially be corroborating him/herself.
The Court of Appeal was confident that even where the physician does not know the plaintiff before the accident, the physician is capable of comparing the plaintiff’s complaints with medical records to determine whether the plaintiff’s function has actually been impaired. As well, the trial judge still has an over-riding power to assess the plaintiff’s evidence and determine whether it is truly corroborative.
Gyorffy v. Drury is a classic example of a results oriented decision. The trial judge accepted that the plaintiff was credible and that he was truly injured. However, because his family members were unable to testify for “valid” but unexplained reasons, the plaintiff had no way to corroborate the physician’s evidence. The “absurd result,” in the words of the trial judge, was that the plaintiff would be denied compensation.
Now that the Division Court has arguably lowered the evidentiary burden to meet the Insurance Act threshold, it becomes even more important to undermine the plaintiff’s credibility.
It is incumbent on defence counsel to ensure complete medical disclosure is produced and that records are updated on a consistent basis. These records must be thoroughly scrutinized for inconsistencies. I have found it helpful to draft and keep updated an “inconsistencies chart” wherein I document the plaintiff’s (changing) evidence under the following headings: reported symptoms, alleged functional impairments, ability to perform housekeeping tasks and reasons for unemployment. The chart can then be easily incorporated into mediation and pre-trial briefs.
Surveillance is also an invaluable asset, especially when conducted over consecutive dates and on multiple occasions during the life of a file. One of the most effective ways to discredit a plaintiff in front of a jury is by refuting the plaintiff’s reported limitations with video footage showing the plaintiff engaging in activities he/she alleged were impossible.
As always, if you have any questions about this article or the Threshold do not hesitate to contact us.
Samantha Cain, email@example.com