What is the test under s. 12 and s. 2(4) of the 1996 SABS for "continuously preventing" a claimant from engaging in substantially all of the activities in which they were engaged in before the accident?

Although s. 12 and s. 2(4) of the 1996 SABS have not been considered extensively by the courts, they have been considered in a number of arbitration decisions. Based on my review of various decisions, as well as a consideration of the language and purpose of the 1996 SABS, and a review of the predecessor provisions, I would adopt the following general principles as being part of a proper approach to the application of these sections: -- Generally speaking, the starting point for the analysis of whether a claimant suffers from a complete inability to carry on a normal life will be to compare the claimant's activities and life circumstances before the accident to his or her activities and life circumstances after the accident. [See Note 3 below] This follows from the language of the section as well as a review of the predecessor provisions. That said, there may be some circumstances in which a comparison, or at least a detailed comparison, of the claimant's pre-accident and post-accident activities and circumstances is unnecessary, having regard to the nature of the claimant's post-accident condition. -- Consideration of a claimant's activities and life circumstances prior to the accident requires more than taking a snapshot of a claimant's life in the time frame immediately preceding the accident. It involves an assessment of the appellant's activities [page797] and circumstances over a reasonable period prior to the accident, the duration of which will depend on the facts of the case. [See Note 4 below] -- In order to determine whether the claimant's ability to continue engaging in "substantially all" of his or her pre- accident activities has been affected to the required degree, all of the pre-accident activities in which the claimant ordinarily engaged should be considered. However, in deciding whether the necessary threshold has been satisfied, greater weight may be assigned to those activities which the claimant identifies as being important to his/her pre-accident life. [See Note 5 below] -- Although this approach differs somewhat from the approach taken in Walker v. Ritchie, [2003] O.J. No. 18, 2003 CanLII 17106 (S.C.J.), in which the trial judge focused on those activities that were "most important" to the claimant before the accident, in my opinion, it better reflects the high threshold created by the language of the section and at the same time allows a claimant-focused inquiry. -- It is not sufficient for a claimant to demonstrate that there were changes in his or her post-accident life. Rather, it is incumbent on a claimant to establish that those changes amounted to him or her being continuously prevented from engaging in substantially all of his pre-accident activities. The phrase "continuously prevents" means that a claimant must prove "disability or incapacity of the requisite nature, extent or degree which is and remains uninterrupted". [See Note 6 below] -- The phrase "engaging in" should be interpreted from a qualitative perspective and as meaning more than isolated post-accident attempts to perform activities that a claimant was able to perform before the accident. The activity must be viewed as a whole, and a claimant who merely goes through the motions cannot be said to be "engaging in" an activity. [See Note 7 below] [page798] Moreover, the manner in which an activity is performed and the quality of performance post-accident must also be considered. If the degree to which a claimant can perform an activity is sufficiently restricted, it cannot be said that he or she is truly "engaging in" the activity. [See Note 8 below] -- In cases where pain is a primary factor that allegedly prevents the insured from engaging in his or her former activities, the question is not whether the insured can physically do these activities, but whether the degree of pain experienced, either at the time or subsequent to the activity, is such that the individual is practically prevented from engaging in those activities. [See Note 9 below] (b) Was there evidence led in this case that was capable of satisfying the test?