The Eroding Threshold – Under Bill 68

Overview

The threshold continues to receive a fair and liberal interpretation by the judiciary. Far more cases than the insurance industry, or indeed anyone, predicted are crossing the threshold. Most recent decisions have sounded a death knell for insurers in the defence of soft tissue injury cases. Chronic pain, fibromyalgia and chronic myofascial pain syndrome, all cross the threshold. Conversely, scarring cases continue to be a challenge. Most cases that have interpreted serious disfigurement, have not crossed the threshold.

Finally, there is another Court of Appeal decision concerning the threshold — that of Chilman v. Dimitrijevic . In this case, the Court of Appeal has sent a message to all of us that cases fall for determination by the trial judge alone and very rarely would one be expected to successfully challenge a trial judge’s findings on appeal.

The Meyer v. Bright trilogy remains the leading appellate authority on the interpretation of what counsel colloquially refer to as “the threshold”. That is, as we all know, s. 266 of The Insurance Act provides as follows:

“in respect of loss or damage arising directly or indirectly from the use or operation, after the 21st day of June, 1990, of an automobile and despite any other act, none of the owner of an automobile, the occupants of an automobile or any person present at the incident are liable in an action in Ontario for loss or damage from bodily injury arising from such use or operation in Canada, the United States of America or any other jurisdiction designated in the no-fault benefits schedule involving the automobile unless, as a result of such use or operation, the injured person has died or has sustained:

(a) permanent serious disfigurement; or

(b) permanent serious impairment of an important bodily function caused by continuing injury which is physical in nature.”

In the trilogy, the Court of Appeal proscribed the procedure to be used in determining whether the plaintiff’s injury has crossed the threshold. The three issues presented for determination sequentially are the following:

1. Has the injured person sustained permanent impairment of a bodily function caused by continuing injury which is physical in nature?
2. If the answer to question 1. is yes, is the bodily function which is permanently impaired an important one?
3. If the answer to question 2. is yes, is the impairment of the important bodily function serious?

Motions

The leading authorities on procedure on threshold motions are those of Meyer v. Bright, Chilman v. Dimitrijevic, and Grossi v. Bates.

The onus is clearly on the plaintiff to satisfy the motions judge on the balance of probabilities, by affidavit material, that the plaintiff falls within the statutory exemption. With respect to matters involving past or existing matters, the standard of proof is upon a balance of probabilities. However, in considering what will happen in future (such as possibility of surgery, arthritis, worsening of conditions…), the plaintiff can satisfy the onus by proving that an event has a “substantial likelihood” of occurring. In this regard, the Court of Appeal has overruled the view expressed by Mr. Justice Wilkins in Carreiro v. Superintendent of Insurance wherein His Honour refused to consider the fact that the plaintiff had a 50/50 possibility of developing arthritis, as relevant to the issue of seriousness.

Further, the Court of Appeal has determined in Chilman v. Dimitrijevic that medical reports are admissible, either as exhibits appended to affidavits or upon appropriate notice being given under The Evidence Act.

In a recent decision of Dickson v. Canada Life Casualty Insurance Company et al , Madam Justice Eberhard ruled inadmissible scholarly articles filed by the defendant which questioned whether fibromyalgia had a physical cause. In this regard, Madam Justice Eberhard had this to say:

“Such materials invite me to engage in the conceit of resolving a medical question upon which medical experts do not agree.”

The Court of Appeal in Chilman cites with apparent approval, the decision of Mr. Justice Ferguson of Pidduck v. Piasecki which relates at some length the difficulties motions court judges have in determining issues on motions. The Court goes on to note that motions court judges have the power to adjourn the motions sine die or to the trial judge or otherwise, if he or she believes the motion is either premature or alternatively, the judge is unable to fairly determine the issue.

Motions court judges have been understandably reluctant to dismiss actions at the motion level. A review of the caselaw suggests that plaintiffs’ actions are dismissed only in the clearest of cases. In this way, s. 266(3) of The Insurance Act is being employed in accordance with its intended use. As was expressed by Madam Justice Epstein in Kahsay v. Mesic :

“Section 266(3) of The Insurance Act was enacted to provide a `screening mechanism’ to enable claims with a reasonable chance of meeting the exemption to go through and prevent the continuation of claims that clearly do not meet the test.”

Summary of Decisions

The following is a summary with some editorializing of judicial interpretation of various phrases contained in the threshold.

Permanent Impairment

The word “permanent” was defined by Mr. Justice Howden in Bos v. James (1995) as “(bearing) the sense of a weakened condition lasting into the indefinite future without any end limit, as opposed to one predicted to have some defined end”. Mr. Justice Howden rejected the plaintiff’s argument that “permanent” was to bear a subjective meaning as being permanent to that particular plaintiff. In the case of Mr. Bos, who was deceased at the time of the motion, plaintiff’s counsel urged the Court to find that the test of permanency was met by the condition lasting only for as long as Mr. Bos survived the accident. Thus, regardless of how long the condition was expected to last, it was in fact permanent in the case of Mr. Bos. This subjective approach is consistent with that used in interpreting the words “important” and “serious”. Conversely, Mr. Justice Howden appears to have rejected the defence argument that permanent meant “forever until death” preferring the concept of “indefinite”. Mr. Justice Howden’s analysis was adopted by Madam Justice Garton in Terzis v. Terzis . Though the plaintiff had not produced a medical report from a specialist stating that the impairment was permanent, Madam Justice Garton concluded on the basis of the totality of the evidence that the impairment was permanent.

In the decision of Thompson v. Ballantyne , Mr. Justice Lane equated permanent with “indefinite”. This is important, especially in chronic pain cases where doctors frequently decline to label a plaintiff’s condition as “permanent” out of fear of stigmatizing the plaintiff as having a condition which has no hope of either cure or improvement.

Important Bodily Function

The Court of Appeal concluded that the legislative intent is that the bodily function referred to must be one which is important to that particular injured person. Thus, impairment of the movement of the little finger of the left hand through its full range of normal movement might be important to a violinist but not to a right-handed judge. The Court determined that the legislation was “aimed at bodily functions that play a major role in the health and general well-being of the injured plaintiff”. The Court refused to lay down guidelines to the application of “important bodily functions”; however, the Court did note that what must be considered is the injured person as a whole “and the effect which the bodily function involved has upon that person’s way of life in the broadest sense of that expression”.

To date, the only bodily function which has not been deemed “important” is the bodily function performed by the spleen. In Dalgleish , the plaintiff was only able to establish a remote possibility of detriment involving the removal of the spleen.

Courts have held the following to be “important” bodily functions — kneeling, squatting, weight-bearing, bending, having the ability to feel (especially hot and cold), having the ability to point pinch, the ability to grasp, having functional use of arms, back, neck and shoulders and having the ability to sleep, chew, speak and yawn.

It is suggested that it will be easy to identify important bodily functions in any case reasonably capable of crossing the threshold. Indeed, defence counsel usually concede that the bodily function which is impaired is important. The more substantial question will be whether the impairment of the bodily function is serious or is physical in nature.

Continuing Injury which is Physical in Nature

The medical concept of a “continuing injury” is difficult — doctors express unease at this terminology. Regrettably, there is no guidance provided by the Court of Appeal as to what a continuing injury is.

Courts have from time-to-time considered the phrase — always placing it in context with “physical in nature”. A review of recent caselaw leads the author to conclude that the Courts have interpreted the phrase “continuing injury which is physical in nature” to mean:

“Continuing physical complaints which at least in part arise from a physical injury.” The Court of Appeal in Chilman had the opportunity to deal with this issue squarely but chose not to do so. The Court noted:

“After reviewing the medical evidence, the motion judge concluded that while she may have had some physical injury as a result of the accident and that that physical injury contributed to her present chronic pain syndrome, she had not sustained a continuing injury which is physical in nature.”

The Court chose to deal with this issue simply by commenting that they had reviewed 433 pages of medical material and “in the end, we find that there was more than sufficient evidence to support the conclusion reached by the trial judge.”

Chilman is often held up by the defence bar as standing for the proposition that chronic pain syndrome or fibromyalgia is not a physical injury. It does not say that. There is an express finding by Mr. Justice Fedak that the impairment and disability are accounted for on the basis of psychiatric, behavioural and cognitive factors. In making this express finding, he must by implication have rejected the medical report of a rehabilitation service which found the disability to be accounted for by a complex interaction of organic, psychiatric, behavioural and cognitive factors. The case has not generally been interpreted by other trial judges as standing for the proposition that soft tissue injuries do not have a physical basis.

Contrast the Chilman decision with that of Madam Justice Eberhard in Dickson.

In Dickson, the plaintiff suffered a whiplash injury and low back strain which appeared to have developed into fibromyalgia. The Court finds that the chronic pain followed without interruption upon the soft tissue injuries. Subsequently, the plaintiff appeared to have developed “complications of injury” including anxiety, distress and depression”. The soft tissue injuries and the associated complications combined to impair the plaintiff vocationally and avocationally. Madam Justice Eberhard found that the plaintiff met the onus of establishing that she had sustained a “continuing injury which is physical in nature” in that the “physical injury is at least one of the continuing causes of impairment”. The Court concluded that the physical injury did not have to be the “exclusive cause” of the impairment. In this regard, Madam Justice Eberhard adopted a “but – for test”. There would likely not have been any complications but – for the originating physical injury.

In Bos v. James, Mr. Justice Howden held that myofascial pain syndrome was a continuing injury which was physical in nature notwithstanding the Court accepted the view of Dr. Peter Welsh that:

“There was no ongoing physical injury process.”

This is critical for soft tissue injury cases where the medical evidence will not establish a continuing process. A continuing injury does not appear to require an ongoing physical process (albeit a plaintiff will wish to avoid use of this terminology). It should be noted that Mr. Justice Howden rejected the notion that Chilman applied to the facts in his case. He found that in Chilman the Court concluded that the plaintiff’s condition was caused by psychiatric and psychological factors which were not present in the case of Mr. Bos.

In Dittmer v. Arnold , the Court appeared to accept that chronic soft tissue low back pain was a continuing injury which was physical in nature.

In Terzis v. Terzis, the Court accepted that notwithstanding the injury was not defined in any x-ray, the soft tissue injury to the low back was a continuing injury which was physical in nature.

In Bochsler v. Katari , on motion before trial, Mr. Justice Yates dismissed the plaintiff’s action. The plaintiff was diagnosed as suffering chronic pain syndrome and fibrositis. She had suffered pre-morbidly from fibrositis. The rehabilitation service consistently observed that the plaintiff’s attitude towards rehabilitation was negative and her cognitions and perceptions of her disabilities were a greater impediment to her progress than her actual limitations.

The Court interpreted Mr. Justice Fedak’s decision in Chilman as determining that chronic pain syndrome was not physical in nature. However, as has been noted, Mr. Justice Fedak concluded only that Mrs. Chilman’s impairment was as a result of her psychiatric, behavioural and cognitive disorders. He did not rule that chronic pain syndrome as a physical condition is not physical in nature. Mr. Justice Yates then appeared to draw an adverse inference against the plaintiff noting that she had not provided any evidence to contradict Mr. Justice Fedak’s finding in Chilman that chronic pain syndrome did not have a neurological cause.

1996 has been a year of significant chronic pain cases. The following cases involve soft tissue injuries and all crossed the threshold:

1. Barrett v. Champagne (trial);
2. Chrappa v. Ohm (trial);
3. Orchover v. Wright (trial);
4. Thompson v. Ballantyne (motion);
5. Dickson v. Canada Life Casualty Insurance Company (motion).

Conversely, Madam Justice Epstein in Greer v. Horton dismissed the plaintiffs’ action in a soft tissue injury case. The only expert called to testify on behalf of the plaintiff, was the plaintiff’s family physician. Against this stood the opinions of Dr. Fred Langer. The plaintiff asked the Court to conclude that all of his symptoms arose by virtue of a motor vehicle accident that took place on January 26, 1991. However, the plaintiff had been involved in two prior motor vehicle accidents and four subsequent motor vehicle accidents. In that case, the plaintiff was unable to establish that the current symptoms related to the accident in question. It is difficult to conceive that a plaintiff would attempt to rely upon the evidence of a family practitioner alone in a soft tissue/chronic pain case.

The above noted cases support the following propositions:

1. The fact that in most cases, soft tissue injuries heal within six months is of little significance — it “begs the question”: Chrappa v. Ohm Orchover v. Wright.
2. The absence of objective findings does not mean the symptoms are psychogenic — it does not render the injuries less physical in nature: Chrappa v. Ohm Greer v. Horton.
3. A finding that a plaintiff has full range of motion and fitness cannot be equated with ability to perform a physical function where doing so results in intolerable pain: Dickson v. Canada Life Casualty Insurance Company.
4. Evidence of a long term family doctor can often be the most helpful in dealing with conflicting medical opinions: Chrappa v. Ohm Greer v. Horton.
5. Orthopaedic surgeons often too readily conclude that in the absence of neurological and other “objective findings”, the condition must necessarily be behavioural, psychiatric and cognitive: Chrappa v. Ohm.
6. Soft tissue injuries are physical injuries resulting in tearing of muscles, ligaments and tendons: Chrappa v. Ohm.
7. Fibromyalgia is a physical disease that is chronic, disabling, unrelenting and incurable: Thompson v. Ballantyne.

Serious Impairment

Most threshold cases will fall to be decided on the basis of the seriousness of the impairment.

It is important to recall observations made by the Court of Appeal in the trilogy:

1. serious relates to impairment and not to injury;
2. there is no justification in the statute for interpreting “serious” as significant or as approaching the catastrophic;
3. generally speaking, a serious impairment is one which causes substantial interference with the ability of the plaintiff to perform his/her usual daily activities or there is substantial interference with his/her ability to continue his/her regular employment;
4. the task of the Court in each case will be to decide whether the impairment is serious to the particular injured person who is before the Court;
5. the frustration of an injured person’s chosen career path, should generally be considered to be “serious” regardless of the financial impact upon the life of the injured person.

Arguably, the use of the word “frustrates” in assessing the interference of the chosen career path of the injured plaintiff indicates something more than a complete truncation of a given career path. An ability to continue with a career but at a reduced rate of productivity or for a shorter period of time may also be seen as frustrating the career path of the plaintiff. Madam Justice Corbett in Leszczynski v. Clark found that the plaintiff had serious impairment notwithstanding that he returned to work full-time in a labouring job albeit at a lower salary. She held that the plaintiff who had significant deficits in earning income pre-morbidly, suffered “further marginalization” by reason of his low back injury and this further marginalization constituted “a substantial interference with his employment”. The Court held that as a result of injury to his back, he suffered “an additional competitive disadvantage”.

In Trench v. Samy , Mr. Justice Dunn concluded the plaintiff’s impairment was a “serious” one. Notwithstanding by the time of trial, the plaintiff had found a better job than he had before the accident, the plaintiff had diminished prospects for future advancement. Implicit in Mr. Justice Dunn’s ruling is a finding that the effects of impairment are serious where they cause diminished prospects and impaired job performance.

In Terzis v. Terzis, the plaintiff attributed her failure to return to her pre-accident employment as a cashier in a drug store to a soft tissue injury to her low back. At the time of the motion for summary judgment, the plaintiff was employed at a hair salon. She testified that she was having a hard time doing the job and felt she was going to have to quit. The plaintiff functioned in the low average range of intelligence and had significant deficits that were quite possibly unrelated to the accident.

The Court held that by reason of the limitations in the plaintiff’s ability to walk, sit, stand and lift caused by the accident, the plaintiff has been “even further marginalized” in her ability to pursue a career. As a result, the impairment was “serious”. The Court adopted the analysis of Madam Justice Corbett in Leszczynski v. Clark in finding that a person with deficits in transferrable skills is more severely affected by a chronic back injury than someone without such deficits.

In Chrappa v. Ohm, the plaintiff was employed as a music librarian for the CBC for 23 years. The job requirements were not strenuous but the plaintiff was unable to perform the requirements of her job which did involve sitting, typing as well as lifting and carrying. The Court held that although her job functions did not appear overly strenuous, her real difficulty lied in her continuing pain and the unpredictability of her condition. It was deemed serious.

In Dickson v. Canada Life Casualty Insurance Company, it is noted by Madam Justice Eberhard that emotional, cognitive and psychological symptoms combined to reduce the plaintiff’s ability to deal with the impairment resulting from the original physical injury. The Court implies these factors can be considered by the Court in assessing whether the injuries are serious.

Crossing the threshold on the basis of proving substantial interference in one’s ability to perform the usual daily activities is somewhat more problematic. In Perricone v. Baldassarra , Madam Justice McDonald concluded that there was not sufficient evidence to establish a substantial interference with the plaintiff’s ability to perform leisure or daily activities or to continue her regular employment. The Court concluded that even if there is some interference with the plaintiff’s daily activity, the interference was such that any plaintiff would have to bear under the regime of The Insurance Act.

In Knudsen v. Tyckyj , Mr. Justice Somers concluded that a 94-year-old plaintiff suffered “serious” impairment. Pre-morbidly the plaintiff had been remarkably vigorous, active, independent and physically and mentally competent. Following the accident, he was no longer independent and required help to do things which he had done independently before the accident. Mr. Justice Somers found that because the impairment curtailed functions that substantially constituted the plaintiff’s life, they were important and because the activities were impaired to the point where virtually all aspects of the plaintiff’s life were affected, the impairments were serious.

It is worthy of note that a plaintiff’s impairment can be adjudged serious notwithstanding a very modest award of general damages ($20,000.00). The Knudsen case is important as well as it confronts squarely the argument that because Mr. Knudsen’s injuries resembled the injuries suffered by Mr. Meyer, the result should be the same.

This decision highlights the critical difference between threshold litigation and pre-threshold cases. The injury is no longer the focus of the inquiry; it is the effect of the impairment which is central to the threshold issue.

In Vrdoljak v. Hamilton Street Railway Company , Mr. Justice Borkovich concluded that the plaintiff’s impairment was serious. Pre-accident, the plaintiff had enjoyed an independent and fulfilling life notwithstanding that she had serious health problems. Following the accident, the plaintiff lost a great deal of her former independent lifestyle and relied upon others for assistance in normal every day activities.

The Vrdoljak decision highlights the importance of presenting detailed evidence of the effect of the impairments on the injured party. Evidence was presented from several lay witnesses who described the difficulties the plaintiff had in her day-to-day activities. The case also is an exposition of the thin-skull principle wherein a plaintiff with significant pre-existing conditions can meet the threshold if those conditions are significantly exacerbated.

In Aiello v. Dalton , the Court concluded that the plaintiff’s ability to engage in his normal day-to-day activities, was not sufficiently serious as to cross the threshold. The Court reasons that because Mr. Aiello impairments were similar to those suffered by Mr. Meyer, the results should be the same. This analysis fails, however, to focus on the effect of the impairment to this particular plaintiff who unlike Mr. Meyer, was a very high level athlete.

In MacPherson v. Lakhani , Mr. Justice Jenkins ruled that temporomandibular joint dysfunction resulting in difficulties in speaking, chewing and yawning, constituted serious impairment.

Permanent Serious Disfigurement

Scarring has proven to be a substantial hurdle to overcome in threshold cases.

The Court of Appeal in Dalgleish concluded that to constitute “disfigurement”, the injury “must have the effect of marring or detracting from the appearance of the individual as a person”. Further, it was necessary for the disfigurement to be viewed by someone other than the injured person. Thus, the Court concluded that as people’s faces are ordinarily seen by others, an injury which marred the person’s face will constitute a disfigurement. Whether a particular injury mars the appearance of the injured person depends almost entirely upon the circumstances of that person’s life.

In determining whether the disfigurement is a serious one, the Court will take into account the extent of the disfigurement, its location, and the effect that it has on the injured person and on that person’s life. The Court of Appeal was unable to give the trial courts any guidance as to how to make the difficult judgments on whether or not disfigurements were serious.

In the case of Mrs. Dalgleish, the Court held that although her scar was disfiguring, it was not serious since the disfigurement did not cause her to change her clothing or lifestyle and it caused her no embarrassment. Mrs. Dalgleish’s scar was located where it would normally not be seen by others and to a part of her body which she had no intention of exposing to another person.

It is submitted that since Dalgleish, Courts have been inconsistent in their weighing of the plaintiff’s expression of embarrassment as indicative of seriousness.

In Carreiro v. Superintendent of Insurance, Mr. Justice Wilkins concluded that the plaintiff had suffered permanent serious disfigurement. The plaintiff was a 28-year-old self-employed make up artist who suffered a fracture of the left elbow which was displaced. She was left with a 15 percent reduction in extension and a scar measuring 3 3/4″ and 4″ in length and resembling the shape of a tadpole. The scars were on the back of her elbow and were not seen from the front if the plaintiff’s arm was by her side.

The Court noted that the scarring was permanent and held that as it marred and detracted from the plaintiff’s appearance, it constituted a disfigurement.

The Court accepted that the overall effect of the left arm (i.e. a loss of 15% extension and scarring in particular) was very bothersome to the plaintiff and caused her considerable emotional distress largely because of the way the blemish was viewed by others in the plaintiff’s work environment. The Court held that it was not appropriate to consider that the condition of the left arm did not cause her to make any significant changes to the manner in which she dressed nor had it caused her to change her lifestyle so that others were prevented from seeing the left arm. The scar was seen by others on a very frequent basis and the combined effect of the scarring and deformity and its constant presentation in front of her while she worked, constituted a permanent serious disfigurement. In Carroll v. Gilbert , Mr. Justice Doyle concluded that a 16-year-old girl whose scars could not be hidden when wearing a bathing suit, suffered serious disfigurement because she was embarrassed by the scars.

In Chinn v. Rourke , Mr. Justice Trafford ruled that a 13-year-old girl who suffered lacerations to her face did not suffer serious disfigurement. The Court found that over time, the scar’s appearance would improve by approximately 25 to 35%. Further, the use of appropriate cosmetics would further help in covering the scars. Medical evidence was suggested that the scars would be essentially invisible from a distance of two to three feet. While the plaintiff occasionally became upset because of the scars, they did not interfere with schooling, recreational or social activities. The Court found there was no evidence of any mental or emotional disruption caused by the scars.

In Trench v. Samy, Mr. Justice Dunn concluded that the plaintiff suffered serious disfigurement. The plaintiff sustained a fracture of his leg above the knee. The injury left a large scar and the knee remained permanently swollen and misshapen. Because the plaintiff felt self-conscious because of the swollen and misshapen nature of the knee, it constituted serious disfigurement.

In Thomaes v. Trinca , Mr. Justice Haines found that a 21-year-old plaintiff who suffered numerous lacerations and abrasions to his face, right arm, left arm and upper back, did not suffer serious disfigurement. Although several of the scars were readily visible, they did not “distort” the plaintiff’s features. The plaintiff had decided against plastic surgery without having consulted a plastic surgeon. There was little evidence of any real disruption to the plaintiff’s life apart from occasional embarrassment or upset caused by inquiries made by persons curious as to how the scars were sustained. The plaintiff had not been subjected to any ridicule because of the scarring. As the impact of the scarring to the plaintiff, both from a physical and emotional perspective appeared to be minimal, the scars were not serious.

In Dittmer v. Arnold, Mr. Justice Leitch found that a 23-year-old plaintiff who sustained scarring to her left forehead, right cheek and underneath her chin suffered serious disfigurement. The plaintiff was extremely self-conscious and embarrassed about the scar underneath her chin. The scars caused her to alter her hairstyle to cover the scar on her forehead with bangs. In addition, she wore special make up. In her employment as a waitress, customers took note of her scars and many asked about the scars.In Terzis v. Terzis, Mr. Justice Garton found that a 17-year-old plaintiff did not suffer serious disfigurement. A five centimetre long scar on the left shin and a scar the size of a dime on her right foot, constituted a disfigurement. However, as the scars were not highly visible and there was no real or substantial disruption to the plaintiff’s life, the disfigurement was found not to be serious. This finding was made despite evidence from the plaintiff that she was self-conscious about the scars. The Court noted that the discomfort had not been so acute as to cause the plaintiff to consult a plastic surgeon and may well have applied an objective test contrary to the prescription of the Court of Appeal in the Meyer trilogy.

In Kallias v. Kargacin , Mr. Justice Cumming ruled that a narrow three centimetre scar over a 21-year-old female’s eyebrow did not constitute a serious disfigurement. The Court found no evidence of any emotional problems. There was no evidence of rejection from one’s peers and there was only minimal disruption to her normal activities. Surveillance disclosed that the plaintiff wore her hair back off the scar.

In McMurray v. Davies , Mr. Justice Marchand dismissed the action of a 22-year-old lady who was 16 when she suffered serious injuries in a motor vehicle accident in 1990. She had a scar extending in a “v” shaped manner from eyebrow to eyebrow. Although the evidence was weak, the plaintiff testified that she had considered a modelling career. She further testified that she felt embarrassed and alienated by the scarring and it bothered her when people looked at her. The plaintiff did not consult a plastic surgeon. The Court concluded that the disfigurement was not serious. It had not affected her career in any way. The Court found it “hard to believe” that the plaintiff was constantly embarrassed and bothered by the scar in light of her apparent decision not to consult a plastic surgeon.

In summary, judges appear much more likely to conclude that a scar constitutes “serious” disfigurement if the following has occurred:

1. the plaintiff has consulted a plastic surgeon;
2. the plaintiff has testified that he/she is embarrassed and self-conscious about the scarring;
3. the plaintiff has told his/her family doctor that he/she is embarrassed about the scarring;
4. the plaintiff has in some manner either altered his/her appearance (i.e. wearing hat over the scar over his/her forehead or applying makeup in a particular area).