The Court of Appeal decided in Liu v. 1226071 Ontario Inc., [2009] O.J. No. 3014 the interpretation of the section dealing with catastrophic impairment, section 267.5(3) of the Insurance Act.

At the lower court the Plaintiff was not defined as catastrophic therefore, unable to access the $2,000,000 in additional accident benefits. At the scene of the accident his Glasgow Coma Scale (GCS) was 3 out of 15. A few moments later it was 8 out of 15 and then within 40 minutes it was 12. Under the Act a reading of 9 or under deems an individual as catastrophically impaired.

The Plaintiff did regain consciousness and suffered a period of amnesia. At the lower court the Judge stated the Plaintiff had also made a good recovery as he was able to make complex decisions including his two trips to China. The Judge did accept the Plaintiff had suffered a brain impairment.

The Court of Appeal stated in Liu that provided there was a brain impairment, all that is required is one GCS score of 9 or less within a reasonable time following the accident. It is a legal definition to be met by a claimant and not a medical test.

Therefore, if the test is administered by a trained individual within a reasonable time following a car accident and the GCS score is under 9 an individual would meet the legal test for a catastrophic impairment as long as the depressed score is related to a brain impairment. The Court of Appeal also indicated that a Plaintiff’s recovery is irrelevant.