When a person is injured in an accident, they may suffer any manner of physical injury, including broken bones, lacerations to organs, and soft tissue injuries. The assessment of how much money is owed in damages for injuries suffered depends upon the severity of the injuries and the time and care required to recover. While injuries like broken bones may be relatively easily assessed in terms of the level of damage caused by the injury, assessment of soft tissue injuries is much more difficult, given the nature of such injuries and the fact that there currently exists no objective test which can measure the extent of such injuries. The Ontario Superior Court of Justice recently considered the assessment of soft tissue injury damages in the case of Moustakis v Agbuya.

The Plaintiff Suffers Injury as a Result of an Accident

The case of Moustakis v Agbuya arose due to a motor vehicle accident on January 9, 2016. The plaintiff, Kyriaki Moustakis (“Cindy”), was struck by a car when she was a pedestrian in an intersection. Cindy was transported to the hospital, where she was diagnosed with soft tissue injuries and released. Cindy brought a claim in which she alleged that, as a result of the accident, she suffered from soft tissue injuries, chronic pain and psychological injuries. As the defendant admitted liability, the only issue that required resolution was how much money to award under each head of damage claimed. At the end of the trial, the defendant brought a threshold motion under section 267.5(5) of the Insurance Act, which dictates as follows:

“(5) Despite any other Act and subject to subsections (6) and (6.1), the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in action in Ontario for damages for non-pecuniary loss, including damages for non-pecuniary loss under clause 61 (2) (e) of the Family Law Act, from bodily injury or death arising directly or indirectly from the use or operation of the automobile, unless as a result of the use or operation of the automobile the injured person has died or has sustained,

(a)  permanent serious disfigurement or

(b)  permanent serious impairment of an important physical, mental or psychological function.”

This provision means that the party who caused an injury that arose due to a motor vehicle accident is not liable for damages for non-pecuniary loss unless the injured person suffered a permanent serious disfigurement or serious, permanent impairment of an important mental, physical or psychological function. In this case, the defendant maintained that Cindy’s injuries did not meet the threshold because Cindy was an unreliable historian who gave contradictory and inconsistent evidence and did not follow the advice of her doctors. For her part, Cindy maintained that the injuries she had suffered as a result of the motor vehicle accident were permanent, serious and important such that she met the 267.5(5) threshold. 

The Court Assesses Soft Tissue Injuries Against the Threshold

The court noted at the outset that “the credibility and reliability of witnesses is central when dealing with soft tissue injuries, chronic pain and psychological injuries. This is because these are invisible injuries, not detectable through objective testing. Furthermore, resulting limitations from ongoing pain and depression again cannot be measured in any objective fashion by depending on self-reports.” To that end, the testimony provided by Cindy and the medical professionals who had provided her treatment was of utmost relevance to the court in determining whether Cindy’s injuries met the s. 267.55(5) threshold. 

A review of Cindy’s testimony by the court revealed that the court found her testimony credible and reliable regarding her condition before and after the accident. Moreover, Cindy’s accounts were corroborated by both lay witnesses treating medical professionals and the records made commensurate with her treatment. 

The court noted that to properly assess whether Cindy had suffered a permanent impairment of an important mental or psychological function, it had first to examine her pre- and post-accident functioning. The court found that pre-accident, Cindy was a 29-year-old mystery shopper who was social, engaged with her family and friends, and active in politics. Post-accident, Cindy was inconsistently employed, exhibited symptoms of PTSD, had not returned to her volunteer work and had become paranoid and nervous when walking into intersections. In addition, Cindy no longer had an active social life post-accident, as she cut her attendance at family gatherings roughly in half, and the evidence showed that, even when she did attend such events, she stayed for only a few hours and behaved in a disengaged manner.

Given this evidence, it is perhaps unsurprising that the court concluded,

 “Cindy has sustained a permanent impairment of a mental or psychological function. The impairments in Cindy’s mental health and functioning substantially interfere with her ability to continue her regular or usual employment as a mystery shopper and in politics.” 

The court further concluded that “the functions impaired are important. Leaving the house, taking care of hygiene, being out of bed for more than eight hours a day, and being engaged with people are all necessary to perform the tasks of employment, care for oneself and participate in daily living”. As such, Cindy met the permanent, serious impairment threshold for an important function. 

Ottawa Personal Injury Lawyers For Whiplash and Soft Tissue Injuries Caused By An Accident

If you have been involved in a motor vehicle accident, whether as a driver, pedestrian or cyclist, then you need a capable lawyer’s competent, knowledgeable assistance. Whether you have suffered broken bones, soft tissue injuries, traumatic brain injury, or spinal cord damage, you deserve compensation for all of the injuries you have suffered.  From our downtown Ottawa offices, the Tierney Stauffer LLP team is proud to assist Ontarians with their personal injury needs. Contact us online or by telephone at 1-888-799-8057 to schedule a confidential consultation with one of our expert personal injury lawyers.


Fax: 613-728-9866
510-1600 Carling Avenue
Ottawa, Ontario
K1Z 0A1


Toll-Free: 1-888-799-8057
340 Second Street East
Cornwall, Ontario
K6H 1Y9


Toll-Free: 1-888-799-8057
556 O’Connor Drive
Kingston, Ontario
K7P 1N3

North Bay

Toll-Free: 1-888-799-8057