The threshold for a non-pecuniary damage claim requires the plaintiff to prove that the injuries occurred “directly or indirectly” from the use of the automobile resulting in permanent physical, mental or psychological impairment, the court said.
To establish such a causal link, the court used the “but for” test, where the plaintiff must prove on a balance of probabilities that the injuries would not have occurred had it not been for the negligent conduct of the applicant. automobile.
Applying the causal test, the court ruled out TMJ dysfunction and depression, anxiety and PTSD. According to expert testimony, if the ATM malfunction had been caused by the accident, the symptoms should have appeared closer to the time of the accident, instead of four months later. Girao’s medical records also revealed an underlying dental deformity which was the likely cause of TMJ dysfunction.
The court also found evidence showing that Girao had “a significant history of depression, anxiety and PTSD before the accident”. Additionally, Girao’s expert witnesses did not have complete records before the crash, which included a “diagnosis of major depression with psychotic symptoms in partial remission” about nine months before the crash, the court said.
As for Girao’s neck injury, the court concluded that it was a Grade II whiplash caused by the motor vehicle accident and was permanent. But the Court was not convinced that such an infringement was serious.