Article edited by Walter W. Kubitz, Q.C., a personal injury lawyer in Calgary, Alberta.

QUANTUM ASSESSMENT
Chronic pain neck and back, headaches, TMJ, anxiety, depression, somatic symptom disorder, and torn knee meniscus.

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Ms. Plaintiff was in a motor vehicle accident.

She was showing signs of shock (trembling and confusion) and experiencing increasing pain in her face, neck, back, hip, and both knees, along with a sore stomach. Ms. Plaintiff suffered headaches every day after the accident, along with constant neck and back pain. She had pain in her lower back and a stiff left hip. Ms. Plaintiff had jaw pain and was found to have sustained two or three broken teeth on her lower right side, along with a chipped upper front tooth. These teeth needed root canals to repair. She had a sore right wrist and elbow, and her left knee was scraped and swollen with fluid in it. Ms. Plaintiff had a black left eye, and she had chemical burns on her face from the airbag. She was diagnosed with a grade 2 sprain to her left spine, hip, and forearm; a WAD II injury; and a patellofemoral contusion. She had occasional dizzy spells and was nervous driving. Ms. Plaintiff was also diagnosed with TMJ dysfunction.

Ms. Plaintiff had some pre-existing medical conditions. She had a poorly functioning gallbladder with acalculus cholecystitis. She was a smoker and has suffered extensive left maxillary chronic sinusitis. Ms. Plaintiff’s dentist noted some tooth decay and a tooth that was fractured prior to the accident. She was supposed to go for a crown and some restorative work on her teeth, but she never showed up, claiming to have anxiety about seeing the dentist. Ms. Plaintiff had pre-existing stresses in her life and suffered from some depression issues. An MRI showed mild degenerative disc disease, mild central spinal stenosis, and mild facetal osteoarthritis.

After the accident, Ms. Plaintiff’s health and mental state declined; she had extensive treatment to deal with her pain and medical issues. Ms. Plaintiff underwent physiotherapy, chiropractic, massage, and acupuncture. She had cortisone injections in her neck, left shoulder, one hip, and both knees; she had Botox injections for her headaches. Ms. Plaintiff had meniscus surgery on both knees. She had a left partial medial meniscectomy: this revealed a left knee medial meniscal tear. Arthroscopic surgery on her right knee revealed an unstable, bucket-handle medial meniscal tear. However, the right knee injury was determined to probably be unrelated to the accident. Ms. Plaintiff has a custom-made oral orthotic from her TMJ dysfunction. She has had problems with this appliance.

Perhaps the most significant lasting injuries from the accident are to Ms. Plaintiff’s state of mind. She has been diagnosed with significant and severe depression. She has concentration and memory problems and chronic, moderate to severe PTSD. Ms. Plaintiff has generalized anxiety disorder that is chronic to moderate. She suffers from chronic pain. Ms. Plaintiff has been diagnosed with a chronic somatic symptom disorder that is moderate to severe.

Ms. Plaintiff has been diagnosed with chronic pain and has some pre-existing and post-accident emotional issues and stressors, but the accident and subsequent chronic pain has significantly contributed to her current emotional status. Close family members passed away or were hospitalized after the accident. Ms. Plaintiff has had several falls since the accident. Her head collided with her dog and she suffered a concussion. There may be some mitigation issues raised by defense counsel, as Ms. Plaintiff did not see a family doctor for years after the accident. Due to her anxiety about dentists, she has not gone for regular dental maintenance. She occasionally misses scheduled therapy appointments.

Although it has been nearly 13 years since the accident, Ms. Plaintiff continues to complain of jaw and dental issues. She has cervicothoracic pain on a consistent basis, affecting the left side greater than the right. She has low back pain on an intermittent basis radiating into the left hip. Ms. Plaintiff continues to suffer from bilateral knee pain, neck pain, left shoulder pain, and face pain. Most significantly, Ms. Plaintiff suffers from headache, stress, anxiety, panic attacks, depression, and the somatoform disorder.

CONCLUSION:
There are several cases that are analogous to Ms. Plaintiff’s situation.
The most analogous case overall to Ms. Plaintiff’s is Russell v. Turcott, 2009 ABQB 19, additional reasons in 2009 ABQB 236. The Russell plaintiff suffered whiplash and depression; TMJ injury; chronic pain syndrome; PTSD; fibromyalgia; regional myofascial pain syndrome; a generalized anxiety disorder; and a major depressive disorder secondary to chronic pain. This plaintiff was of a similar age to Ms. Plaintiff and also had some pre-existing health problems. However, she did not require surgery, as Ms. Plaintiff did (for her knee). Rooke J awarded the plaintiff $132,365 in general damages (inflation adjusted).

Another very analogous case is the recently decided Firman v. Asadi, 2019 BCSC 270. In this case, the 40-year old female plaintiff was injured when the defendant’s vehicle t-boned her vehicle. The Firman plaintiff suffered left hip injury including torn labrum that required surgery; thoracic outlet syndrome requiring surgery; whiplash injuries and resultant chronic pain in her upper back, left shoulder, and arm; left shoulder tendinopathy; chronic headaches; and mood or psychiatric disorders including depression, anxiety, and somatic symptom disorder. These injuries drastically affected her life and personality. Verhoeven J awarded the plaintiff $170,000 in general damages (inflation adjusted).

Other analogous cases set the general damage award for plaintiffs with similar injuries to Ms. Plaintiff’s, inflation adjusted, from a high of $170,000 to a low of $79,080, with an overall average amount of general damages awarded of $127,645. Analogous Alberta cases set the award, inflation adjusted, from a high of $168,375 to a low of $79,080. The average amount of general damages awarded in similar Alberta cases was $$118,980. Therefore, it seems that Ms. Plaintiff’s likely general damage award will range around $120,000 to $130,000.

The following cases are inflation-adjusted using the Economica index.

DISCUSSION:
Firman v. Asadi, 2019 BCSC 270 $170,000 $170,000
In this recent case, the 40-year old female plaintiff was injured in a motor vehicle accident. The defendants denied liability. The vehicles collided in a t-bone fashion at an uncontrolled intersection. Verhoeven J held that the defendant was in the wrong and liable for the accident. Immediately following the collision, the plaintiff felt pain in her chest, clavicle, and left shoulder; she heard a pop in her left hip; and her whole upper body hurt.

The plaintiff did not go to the hospital and did not see a doctor about her accident injuries until several months later. At the time she went to walk-in clinic, the plaintiff was complaining of soreness in her left neck and left chest areas, left groin area, numbness and tingling in her left little finger, and headaches 4-5 times per week. A doctor diagnosed suspected left cervical radiculopathy (compressed nerves in her neck causing the hand and arm symptoms) and cervicogenic headaches. An MRI showed a labral tear in her left hip; another doctor diagnosed thoracic outlet syndrome.

The plaintiff underwent arthroscopic surgery to repair her left hip labral tear; the surgery was successful. She later had surgery for her thoracic outlet syndrome that consisted of left trans-axillary first rib resection. Prior to the accident, the plaintiff was healthy and fit, and she was functioning with no real difficulty. Verhoeven J held that the injuries sustained by the plaintiff in the accident were left hip injury including torn labrum that required surgery; thoracic outlet syndrome requiring surgery; whiplash injuries and resultant chronic pain in her upper back, left shoulder, and arm; left shoulder tendinopathy; chronic headaches; and mood or psychiatric disorders including depression, anxiety, and somatic symptom disorder. The prognosis for substantial improvement was poor. Verhoeven J assessed the plaintiff’s general damages at $170,000.

There are many similarities between this case and Ms. Plaintiff’s situation; this case may present a good benchmark for the upper range of general damages that she may be awarded. The Firman plaintiff suffered very similar injuries to Ms. Plaintiff, in a similar accident, and she was of a similar age. While this plaintiff had the hip surgery, Ms. Plaintiff had knee surgery. Both plaintiffs had psychological injuries including depression and a somatic symptom disorder. While it was decided in a different jurisdiction, this very recent and very analogous case may be a good benchmark for the upper limit of general damages that Ms. Plaintiff could receive.

Dushynski v. Rumsey, 2001 ABQB 513 $125,000 $168,375
In this case, the 49-year old female plaintiff was the victim of four accidents between 1985 and 1993, and she was injured in each accident. The first accident did not have any long term effects, and the plaintiff returned to her job as a school custodian shortly after; she was off work for 5 weeks after the second accident; she was off work for 16 months after the third accident; and she claimed it was impossible for her to return to work after the fourth accident. This action involved the fourth accident, where the plaintiff was t-boned by the defendant. In the last three accidents, the plaintiff suffered injuries to her neck, back and shoulders, a concussion, injuries to her left leg, and a bruised kidney.

Following the accident, the plaintiff was taken to hospital with a chest wall contusion, bruising and pain in the left flank area, and a kidney contusion. She was diagnosed with arm pain and numbness in both hands, a concussion, chest pain, limited range of motion in her neck and back, and TMJ pain. She had severe neck pain and limited range of motion that resolved. The pain in her cervical and lumbar spine was ongoing and were exacerbated by the fourth accident. She sustained a severe spinal strain in her cervical and lumbar spine with pain in her dorsal and thoracic spine in the accident; in addition, the plaintiff’s TMJ issues were exacerbated. Moen J held that prior to the fourth accident, the plaintiff’s psychological condition was likely fragile, and it was pushed over the edge by the defendant’s conduct. The fourth accident caused chronic pain syndrome that the plaintiff would suffer with for the rest of her life. Moen J awarded the plaintiff $125,000 in general damages.

The defendant appealed the damage award in Dushynski v. Rumsey, 2003 ABCA 164. The per curiam Court of Appeal held that the general damage award was on the high end, but not so far out of line that it required interference. The appeal was dismissed but for a reduction in the award for loss of household services.

This case presents many similarities to Ms. Plaintiff’s injuries. Both plaintiffs were females of a similar age, and the accidents were similar in circumstance. It is arguable that Ms. Plaintiff’s injuries were worse than those sustained by the Dushynski plaintiff, given that her knee injury required surgery and her psychological damage was more severe. However, both plaintiffs had TMJ problems, neck and back injuries, and mental trauma. This case likely presents a good comparison for the upper limit of general damages that Ms. Plaintiff may expect to receive.

Cornish v. Khunkhun, 2015 BCSC 52, additional reasons in 2015 BCSC 832 $160,000 $166,560
In this case, the 58-year old plaintiff was injured in a motor vehicle accident. She was knocked unconscious in the accident, but went to the hospital by taxi, not ambulance. Immediately after the accident, she felt pain in her back and groin and felt light-headed. She claimed she suffered from regular headaches, pain in her neck and shoulder, and back pain; she also has dizziness, memory issues, and depression. A psychiatrist for the defendant testified that the plaintiff met the criteria for Somatic Symptom Disorder; he concluded that she was not suffering from the disorder immediately prior to the accident, and the accident either precipitated a relapse or exacerbated pre-existing symptoms of the disorder.

The plaintiff had previously injured her back and had undergone two surgeries. Skolrood J held that the plaintiff suffered from a major depressive disorder as well as the somatic symptom disorder, which resulted in her experiencing chronic pain; the accident aggravated her condition and was the cause of her somatic symptom disorder. The plaintiff had confusion and memory loss from her depressive disorder. Given the ongoing nature of the symptoms and their impact on her enjoyment of life, the court awarded general damages of $160,000.

The Cornish plaintiff suffered from a somatic symptom disorder along with major depression, similar to what Ms. Plaintiff suffered. Ms. Plaintiff had more severe physical injuries given her knee injury and subsequent surgery and TMJ problems.

Brundige v. Bolton, 2018 BCSC 1843 $165,000 $165,000
In this case, the 46-year old female plaintiff was injured when a stolen truck driven by the defendant t-boned her vehicle as she was stopped at a stop sign. Immediately after the accident, the plaintiff developed pain in her neck, back, shoulder, left arm, and left leg; she was taken by ambulance to the hospital and released later that day. The plaintiff attended physiotherapy, active rehabilitation, and massage therapy but her pain never subsided. She had been sexually abused as a child. The plaintiff was in two motor vehicle collisions in the 1990s in which she suffered neck and back injuries, headaches, and was diagnosed with reflex sympathy dystrophy in her right arm. However, she maintained that her health was good at the time of the accident. At the scene of the accident, the plaintiff complained of pain in her neck and shoulder, a mild headache, pain radiating to her left arm, and pain in her left hip; she was treated and released with a diagnosis of soft tissue injuries. Her family doctor later diagnosed her with a grade II soft tissue injury to her back and possibly a grade III injury to her neck. The pain never eased and there was no physical etiology found to explain it. She became more depressed and medication was prescribed; she found it hard to sleep and had headaches.

The plaintiff received injections in her hip and was diagnosed with chronic soft tissue and back pain. A psychiatrist diagnosed the plaintiff with Adjustment Disorder with Depressed Mood and Somatic Symptom Disorder. Butler J held that there was no doubt the plaintiff had suffered soft tissue injuries to her neck and lower back; she suffered neck, back, and pelvic myofascial and musculoskeletal injuries in the accident that had significantly improved. Butler J also held that the plaintiff had proved on the balance of probabilities that she was suffering from an Adjustment Disorder and somatoform disorder. Butler J awarded the plaintiff $165,000 in general damages.

This case is very similar to the situation facing Ms. Plaintiff. Both plaintiffs were females injured in similar accidents. Both had some pre-existing injuries that were asymptomatic at the time of their accidents; both Ms. Plaintiff and the Brundige plaintiff suffered soft tissue injuries that never resolved, depression and mental injuries, and a somatoform disorder. Ms. Plaintiff had knee problems, while the Brundige plaintiff had hip issues. This case likely presents a good benchmark for the amount of general damages that Ms. Plaintiff will be awarded.

Godbout v. Notter, 2018 BCSC 1043, additional reasons in 2019 BCSC 1481 $157,500 $157,500
In this case, the 55-year old male plaintiff was injured when his tractor-trailer unit fell on its side after an impact with the defendant’s vehicle and slid down the highway. Prior to the accident, the plaintiff had minimal health problems and no symptoms of back or neck pain. The day after the accident, he had pain in his left shoulder, neck, and back, along with headaches and dizziness. He continued to suffer from left arm and shoulder tightness and pain as well as neck pain; he had headaches two to three times per week and only slept a couple of hours each night. He continued to relive the accident and have nightmares about it. The plaintiff had stress and anxiety about the accident along with mood swings, a lack of sexual desire, anxiety, fear, and depression. A psychiatrist testified that the plaintiff had a somatic symptom disorder with prominent pain and PTSD. Jenkins J held that the plaintiff suffered neck pain that became increasingly worse; he suffered headaches, vertigo, and dizziness. The plaintiff had chronic PTSD and a severe somatic symptom disorder. Jenkins J awarded $175,000 in general damages to be reduced by 10 percent for the plaintiff’s failure to seek psychological help earlier.

This case has some similarities to Ms. Plaintiff’s situation, although Ms. Plaintiff suffered worse physical injuries than the Godbout plaintiff did. This plaintiff did not have any pre-existing injuries like Ms. Plaintiff did. Both plaintiffs suffered physical injuries in the form of neck pain and headaches, and both had PTSD and a somatic symptom disorder. However, Ms. Plaintiff also had the knee problem that required surgery and TMJ injuries. Her general damage award may be on par with, or higher than, what was awarded to the Godbout plaintiff.

Sutherland v. Encana Corp., 2014 ABQB 182 , additional reasons in 2014 ABQB 601 $135,000 $142,155
In this case, the plaintiff driver was stopped on the highway, intending to turn left, when she was struck from behind by the defendant driver at high speed. The defendant admitted liability for the accident. Immediately after the accident, another person on the scene described the plaintiff as conscious but subdued and dazed, and she needed support once she had exited her vehicle. The plaintiff was bleeding from the left side of her head and from her mouth. The same person stopped by the plaintiff’s house later that same night, and he said the plaintiff did not recognize him and did not seem to remember anything about the collision that morning. She was taken by ambulance to the hospital where her head wound was stitched up and the glass was removed; she was discharged that day, but had problems remembering what had happened in the accident. The plaintiff’s husband noted that during the evening, the plaintiff was twitching unusually, mainly in her extremities but also in her core. These twitching incidents continued; she would come out of them disoriented, not remembering what had happened, but anxious. The episodes were preceded by the plaintiff complaining of severe headaches, stress, or fatigue. Immediately after the accident, the plaintiff had very little recognition as to what had happened. She recalled severe low back pain and headache, along with some neck pain. The plaintiff testified that she became depressed and suicidal, and she attributed this to the accident and its effects. However, there was some evidence that the plaintiff was experiencing other social stressors, including kidney surgery and a diagnosis of cancer. Michalyshyn J held that the plaintiff was suffering from post-concussion syndrome and depression that was primarily caused by the accident. He held that the accident caused the plaintiff to sustain a mild traumatic brain injury with other factors, namely pain, depression, anxiety, PTSD, and seizures. The accident also caused the plaintiff post-traumatic seizures. However, she chose not to report the seizures to her doctors until at least nine months after they began to occur, which led to a delay in diagnosis, medication, and controlling of the disorder. Physically, in the accident, the plaintiff sustained injuries to her neck and low back, head, tongue, and jaw. Her depression was caused by the accident, as were her post-traumatic seizures. The seizures were a permanent, life-long condition and medication would always be necessary. Michalyshyn J awarded the plaintiff $135,000 in general damages.

Ms. Plaintiff’s general damage award may be on par with or slightly higher than what was given to the Sutherland plaintiff. Both plaintiffs were women who were left with soft tissue injuries, jaw problems, and depression after their accidents. It is also noteworthy that this is a case from Alberta. However, Ms. Plaintiff has the additional diagnoses of knee injuries requiring surgery and a somatoform disorder. Ms. Plaintiff can likely expect a slightly higher general damage award than what was given out here.

Russell v. Turcott, 2009 ABQB 19, additional reasons in 2009 ABQB 236 $115,000 $132,365
The 21-year old female plaintiff in this case was driving when she stopped at a red light in a 60 km/h zone. The defendant’s vehicle rear-ended the plaintiff’s vehicle without slowing down. Rooke J described the impact as significant. The plaintiff was wearing her seatbelt at the time of the accident and had both hands on the steering wheel, but the force of the impact caused her to strike her jaw on the steering wheel. Although she did not lose consciousness, she suffered immediate pain in her neck and all over. She was taken by ambulance to the hospital where she was found to have no fractures or bony injuries; the plaintiff was discharged later that day wearing a cervical collar with a diagnosis of whiplash. She suffered a moderate to severe whiplash injury as well as injury to her jaw and almost immediate headaches; over the course of time, this manifested itself into chronic pain syndrome, fibromyalgia, and a TMJ injury. Other doctors also opined that she had PTSD, depression, tender points, and a generalized anxiety disorder. The plaintiff claimed to be healthy prior to the accident, but her medical history indicated otherwise. She had a history of sexual assault and resulting depression, a grand mal seizure due to a reaction to the drug Gravol, hospitalization for pneumonia, pain in her ankle, hip, and shoulder, strep throat, and further depression. The plaintiff was in a car accident from which she complained of a concussion, neck pain, stiffness, lower back pain, nervousness, depression, loss of sleep, headaches, fatigue, and dizziness. In spite of her prior medical history, Rooke J held that the defendants were responsible for all injuries and complaints of the plaintiff.

After the accident, the plaintiff frequently went to the emergency room complaining of pain. She was diagnosed with mood disorder secondary to medical illness (major depressive disorder secondary to chronic pain) and was sent to the Pain Clinic in Calgary. The plaintiff also received trigger point injections that provided her with some temporary pain relief. On the evidence, Rooke J concluded that in the accident, the plaintiff sustained whiplash and depression; TMJ injury; chronic pain syndrome; PTSD; fibromyalgia; regional myofascial pain syndrome; a generalized anxiety disorder; and a major depressive disorder secondary to chronic pain. Rooke J assessed the plaintiff’s general damages at $115,000.

This is the most analogous case to Ms. Plaintiff’s situation. The plaintiff suffered very similar injuries including the TMJ problem and soft tissue injuries. Like Ms. Plaintiff, the Russell plaintiff suffered from depression and chronic pain. She underwent injections to manage her pain and was referred to the Calgary pain clinic. She also had some pre-existing problems, similar to Ms. Plaintiff. However, Ms. Plaintiff did require surgery on her knee. Given the similarities between the cases, it is likely that Ms. Plaintiff may receive a general damage award similar to what was awarded in this case.

Elpel v. Glover, 2018 BCSC 1404 $115,000 $115,000
In this case, the 53-year old female plaintiff was stopped at an intersection when she was rear ended by a vehicle owned by one of the defendants and driven by the other. The plaintiff was married with two children and worked as a bookkeeper and house cleaner while caring for her family prior to the accident. The plaintiff claimed that as a result of the accident, she suffers from chronic pain in her legs, hip girdle, low back, neck and shoulders, fibromyalgia, fatigue, and depression; she claimed her chronic pain had disabled her from employment. Pearlman J held that the collision was relatively low impact. Immediately after the accident, the plaintiff developed a headache and tension and stiffness in her neck and back. She visited her family doctor several days later complaining that her head, neck, and shoulders all hurt and her whole body ached; she suffered from sleep disruption, pain in her head, neck, back and right hip, and symptoms of depression including suicidal ideation. This pain has all been continuous. One of the medical experts in the case testified that the plaintiff had chronic cervicogenic headaches, mechanical neck pain, mechanical lumbrosacral back pain, sleep disturbance, and psychological distress/night disturbance with no evidence of neurological impairment. Pearlman J held that the plaintiff sustained minor soft tissue injuries to her neck and upper back in the accident that developed into chronic pain in these areas and in her legs and hip girdle. She also developed a somatic symptom disorder and depression related to her chronic pain. While her history of sexual abuse rendered her more susceptible to psychological injury, she would not have suffered chronic pain, somatic symptom disorder, and depression if not for the accident. Pearlman J assessed her general damages at $115,000.

The plaintiff in this case is similar to Ms. Plaintiff in that both suffered mental injuries in the form of depression, PTSD, and a somatoform disorder. Both had soft tissue injuries that continued to plague them years after the accident that developed into chronic pain. However, Ms. Plaintiff’s physical injuries were somewhat more serious than what was sustained by this plaintiff; the general damage award in this case represents the lower end of the scale of damages that she can expect to receive.

Evans v. Keill, 2018 BCSC 1651 $110,000
The 34-year old female plaintiff in this case was in a vehicle that was struck from behind by a vehicle owned by the defendants. The day after the accident, the plaintiff had severe pain in her neck, back, and trapezius muscles; her family doctor diagnosed soft tissue injuries to her cervical spine and trapezius muscles. She alleged that the accident caused her severe headaches, migraines, neck pain, back pain, sleep loss, and mental illness that permanently interfered with her ability to do physical work and required her to limit her recreational and social pursuits.

The plaintiff was off work after the accident and was unable to perform her job as a produce manager at a grocery store after her return and was demoted. She lost her life insurance and disability benefits because she could not accept the requisite hours. After the accident, the plaintiff stopped exercising and socializing, and began drinking heavily. The plaintiff alleged that the accident caused severe headaches, migraines, neck pain, back pain, and mental illness. Matthews J held that the evidence was clear that the plaintiff had soft tissue injuries to her neck, shoulder, and upper back; these injuries led to chronic myofascial pain that affects the muscles and muscle lining in the area of her neck, shoulders, and upper back. She had cervicogenic headaches as well as migraine headaches featuring severe pain, sensitivity to light, nausea, and vomiting. Matthews J held that the plaintiff became depressed as a result of her injuries; she suffered from a somatic symptom disorder and had at least one suicide attempt. She had chronic pain in her neck and upper back, experiences headaches and migraines; her pain had improved by about 60 percent but had plateaued at its present level and was now permanent and unlikely to improve.

Matthews J held that a major component of damages in this case were the relatively young age of the plaintiff and the fact that she would have to live with her injuries for many years. Matthews J assessed general damages at $110,000.

The plaintiff in this case sustained very similar injuries to those suffered by Ms. Plaintiff. Both had cervicogenic headaches, depression, and a somatoform disorder. However, in addition to these injuries Ms. Plaintiff has had knee surgery and has TMJ dysfunction. Her general damage award should be higher than what was awarded in this case.

Curry v. Power, 2015 BCSC 610 $100,000 $104,100
In this case, the 44-year old plaintiff alleged he suffered left-sided thoracic outlet syndrome, a right hip joint injury, cervical spine injury, and depression in a motor vehicle accident. The plaintiff was taken by ambulance to the hospital after the impact and released. He said the next morning he had pain in his neck, arms, hips, and back. He suffered a stabbing pain in his forearm and an anterior cervical discectomy was performed. The plaintiff said his hips had not healed since the accident and his gait was affected; he has pain in the backside of his left shoulder blade and a tingling or numbness in his fingers if his left arm is raised for any length of time. The plaintiff’s psychiatric expert testified that the plaintiff had a major depressive disorder and likely had a persistent somatic symptom disorder with predominant pain of moderate severity; the defendant’s psychiatric expert stated that the plaintiff did not have any type of somatic symptom disorder. Tindale J agreed with the plaintiff’s psychiatrist and held that he was suffering from a major depressive disorder as well as a persistent somatic symptom disorder caused by the accident. He concluded that the plaintiff suffered a significant neck injury that required surgery, a significant injury to his right hip that would likely require surgery, MPS, chronic pain, and depression; general damages of $100,000 were awarded.

This case has many parallels to Ms. Plaintiff’s. While it was Ms. Plaintiff’s knee that required surgery, for the Curry plaintiff it was his hip. He also had a major depressive disorder, chronic pain, and a somatoform disorder. However, the general damages awarded in this case are somewhat on the lower end of the range of general damages that Ms. Plaintiff should receive.

Chisholm v. Lindsay, 2012 ABQB 81 $90,000 $97,470
In this case, the plaintiff was a 31-year old woman who was injured when she was sitting in her vehicle in a parking lot eating lunch and she was struck from behind by the defendant’s vehicle. She had not been wearing her seatbelt at the time of the collision. She was transported to the hospital for further examination after the EMT noted slight dizziness, weakness, facial pain and swelling; the plaintiff’s blood pressure and pulse rate were also elevated. The emergency room doctor diagnosed facial contusions. At the time of the accident, the plaintiff worked full-time as a special education teacher. The plaintiff went to a physician three days after the accident complaining of headache, neck pain, back pain, sore teeth, facial swelling, and a bump on the head. The doctor noted decreased range of motion in her neck, plus pain in her neck, spine and right knee, as well as facial swelling and contusions: these symptoms were consistent with a WAD II injury.

The plaintiff went to physiotherapy and the physiotherapist’s impression was that she had sustained a sprain/strain injury to her TMJ, cervical (WAD 3), thoracic and lumbar spine. She also sustained a nerve root compression, a right medial meniscus injury and a right strained wrist. Since the accident, the plaintiff stated that she has had chronic pain, headaches, a sore neck and sore left shoulder, and low back pain. She occasionally has a flare-up of the TMJ injury, but a splint helps; her major issue is fatigue, as she stated she was chronically tired all of the time. One of her psychiatrists diagnosed her with PTSD and a mild traumatic brain injury. Kenny J held that the plaintiff suffered these issues and they were the result of the accident. Kenny J also held that none of the plaintiff’s pre-accident history was related to her current symptoms. She had chronic pain that led to a 10 percent whole person impairment. Kenny J awarded general damages of $90,000.

Both parties appealed the damage award in Chisholm v. Lindsay, 2015 ABCA 179. The Court of Appeal found that the trial judge had made no palpable or overriding error, nor had she misapprehended the evidence, and dismissed the appeal with respect to general damages.

While the Chisholm plaintiff suffered TMJ, whiplash, chronic pain, and PTSD similar to Ms. Plaintiff, overall her damages were less significant than those sustained by Ms. Plaintiff. Ms. Plaintiff had the knee surgery, major depression, and somatoform disorder. Her general damage award will likely be higher than what was awarded here.

Ganderton v. Brown, 2004 ABQB 366 $75,000 $94,425
In this case, the plaintiff was seeking damages for injuries he sustained during a motor vehicle accident; the defendant admitted liability. The plaintiff was struck from behind. Immediately after the accident, the plaintiff had pain in his occipital area, pain along his neck, across his shoulders, and into his scapular area; he also had pain in his wrist, weakness in the biceps area and left forearm, and continuous TMJ pain. Several years after the accident, the plaintiff dove into a lake and experienced a neck spasm and searing pain down his arm that turned out to be a rupture of his C5/6 cervical disc. The plaintiff argued that the accident caused the ruptured disc. Prior to the accident, the plaintiff worked as a dentist and he was in good health and was extremely physically active. After the accident, the plaintiff had pain in his shoulders, bilateral neck pain, bilateral TMJ pain, and a headache; the muscles on his face were tender. He went to his doctor that day and was prescribed painkillers. He eventually sought chiropractic, acupuncture, massage, and physiotherapy treatment. Over time, the symptoms from his injuries waxed and waned. After he jumped in the lake, the plaintiff was in considerable pain. He had left neck pain, left arm paraesthesia, trouble sleeping, decreased range of motion, and poor grip strength. He underwent a discectomy and spinal fusion for the removal of the disc and the replacement of the disc with a piece of bone. The plaintiff continued to suffer from intermittent neck pain, scapular pain, shoulder pain, TMJ, and numbness in his hand. Moen J concluded that the problems suffered by the plaintiff were caused by a tear in his disc annulus caused by the accident, which eventually resulted in the ruptured disc and the necessity for the operation. Moen J awarded the plaintiff $75,000 in general damages.
While somewhat different in terms of the injuries suffered by the plaintiffs, this case was included because parallels can be drawn between the injuries suffered. Both plaintiffs suffered TMJ injuries. While the Ganderton plaintiff had a back issue that required surgery, Ms. Plaintiff had the knee problem that required surgery. However, Ms. Plaintiff can likely expect a higher general damage award than what was awarded here because of her far more serious and debilitating psychological injuries in the form of the major depression and somatoform disorder.

Hrnic v. Bero Investments Ltd., 2018 BCSC 1880 $85,000 $85,000
In this case, the 54-year old female plaintiff’s vehicle was struck from behind at a red light with enough force to push the next vehicle into another vehicle, but the damage to the plaintiff’s vehicle was only cosmetic. The plaintiff suffered soft tissue injuries to her neck and lower back that healed but she developed a very severe and somewhat unusual nerve and muscular pain that became chronic, and she never returned to work. The plaintiff underwent various treatments in an attempt to relieve her symptoms, although there were some medications she would not try. The plaintiff brought an action against the defendants for damages.

At the scene, she felt neck pain, light-headedness, and shock. She later developed symptoms that included shooting pain from her neck into her ear and from her jaw into her eyes; a burning/numbing sensation in her face; dilated pupils; drooping of her lip; pain in her neck and along the length of her back; shooting pain into her left leg; and a feeling of weakness throughout her whole body. These complaints expanded to include swelling of her left eye; throbbing left-side chest and rib pain; urinary urgency; slurred speech; and ringing in her ears. She underwent prolotherapy injections and some psychological treatment. A psychiatrist diagnosed her with a persistent somatic symptom disorder of moderate severity that predated the accident. Saunders J held that the plaintiff suffered physical injuries in the accident and that she suffered at the time of the accident from a pre-existing but not disabling somatic symptom disorder that was aggravated by the accident. This would not have become disabling but for the accident. Saunders J awarded the plaintiff general damages of $85,000.

There are similarities between this plaintiff and Ms. Plaintiff, although Ms. Plaintiff’s injuries were more significant than what this plaintiff suffered. Ms. Plaintiff and the Hrnic plaintiff were diagnosed with chronic pain and a somatic symptom disorder. The somatoform disorder may have predated the accident, but it was not disabling. An analogy can be drawn between this and Ms. Plaintiff’s depression that likely predated her accident. Ms. Plaintiff’s physical injuries were more extensive than what the Hrnic plaintiff suffered, and her general damage award will likely be higher than what was awarded in this case.

Moser v. Derksen, 2002 ABQB 679 $60,000 $79,080
In this case, the 49-year old female plaintiff was in three separate motor vehicle accidents in 1995. In the first accident, the plaintiff received soft tissue injuries to her neck, back, and hip; in the second accident, the plaintiff’s neck and head were injured. The plaintiff was diagnosed with a somatization disorder and alleged that the accidents aggravated her condition. The plaintiff’s prior medical history was lengthy, with numerous complaints of physical and mental ailments. The evidence was that the plaintiff had suffered a tragedy prior to the first accident with the death of her husband. In 2001, the plaintiff was diagnosed with a somatization disorder; the diagnosing psychiatrist testified that the condition was aggravated by the death of the plaintiff’s husband. A different psychiatrist, hired by the plaintiff, disagreed. Rowbotham J held that the plaintiff suffered physical injuries to her neck, lower back, right arm, and right hand; she also suffered the psychiatric injury due to the aggravation of her pre-existing somatic disorder. Rowbowtham J concluded that the plaintiff was a crumbling skull plaintiff and was only entitled to damages for the aggravation of her pre-existing condition. The evidence showed that the somatic disorder was pre-existing but undiagnosed until the time of trial; however, there was no failure to mitigate on the part of the plaintiff. General damages of $60,000 were awarded.

This case was included because it represents an Alberta plaintiff who was diagnosed with a somatoform disorder. Ms. Plaintiff’s general damages will be higher than what the Moser plaintiff was awarded because her physical damages were far more serious, given the additional TMJ dysfunction and knee surgery. However, defense counsel may reference this case as the Moser plaintiff was found to be a crumbling skull plaintiff, not a thin skull plaintiff, who also suffered from a somatization disorder. Ms. Plaintiff will have a higher general damage award than what was given here.

Article edited by Walter W. Kubitz, Q.C. a personal injury lawyer in Calgary, Alberta.

Article by Peter Trieu, a personal injury lawyer in Calgary, Alberta

In 2016, Mr. Plaintiff was riding his bicycle and was run-over by the Defendant’s van. Mr. Plaintiff suffered the following injuries as a result of the collision:
1. Fractured left fibula;
2. Fractures of metatarsals # 2, 3 and 4 in his right foot;
3. An 8-inch gash to the back of his left calf with fascial degloving requiring surgical repair by a physician the day after the collision;
4. Cellulitis;
5. A dislocated toe;
6. Bruises and contusions to his arm, leg and buttock;
7. A bruise to his left knee;
8. Difficulty sleeping because of pain and nightmares about being under the Defendant’s van and not being able to move; and,
9. Difficulty going back to the scene of the collision.
Listed below are select case summaries from a research memo the writer prepared to assess Mr. Plaintiff’s claim. The range of damage awards were inflation adjusted as of November 2018.

Notwithstanding the Alberta Court’s preference for Alberta decisions, we selected a couple of out-of-province decisions from our research memo to assist us in evaluating Mr. Plaintiff’s claim for the purposes of this article:

Case General Damage Award Inflation Adjusted Damage Award
O’Connor v. James
2009 BCSC 1119 $90,000.00 $103,915.00
Collision date: December 20, 2001; Plaintiff aged 37 at the date of the collision (paras 1- 2)
The Plaintiff pedestrian was struck from behind by a vehicle driven by the Defendant and suffered the following injuries:
1.) Fractured ribs on his left side; (para 6)
2.) Compound fracture of his left tibia and fibula, such that, at the collision scene, the leg bone had punctured the skin; (para 6)
The Plaintiff required:
1.) immediate surgery, including the insertion of a plate and rod in his leg; and (para 6)
2.) A skin graft (resulting in extensive scarring on his leg); (para 6);
The Court found that the Plaintiff:
1.) Was not in a position to return to his previous activities that he enjoyed, such as hiking, water skiing, camping, and riding dirt bikes, though he was able to return to the previous bicycle riding that he enjoyed (para 42);
2.) Was able to walk without assistance since the problems with his ribs had subsided, he continued to feel pain in his leg, particularly in cold weather;
Accordingly, the Court awarded the Plaintiff $90,000.00 in general damages, prior to the 90% reduction in liability. (para 42).

Case General Damage Award Inflation Adjusted Damage Award
Falati v. Smith
2010 BCSC 465
Court of Appeal 2011 BCCA 45 affirmed trial judge decision $85,000.00 $97,821.00
Collision date: February 13, 2007

The Plaintiff, a 30-year-old aspiring restaurant entrepreneur and part-time photographer, suffered the following injuries after he was struck by the defendant’s vehicle and pinned against a building as he walked along a sidewalk (para 11):

The Plaintiff suffered:
1.) Residual left ankle post-strain syndrome (para 13);
2.) a crush type fracture to his left tibia (para 11)
3.) fracture to his fibula (para 11);

The Plaintiff was hospitalized and underwent surgical stabilization of his fractures, with intermedullary nailing (para 11) whereby internal hardware was inserted to set plaintiff’s fractures. Plaintiff spent four days in hospital and then moved to his parents’ home to convalesce (para 11). He complained of continuing leg pain and associated physical limitations.

He also suffered some emotional distress, and displayed some symptoms that were suggestive of post-traumatic stress disorder though not enough quantitatively or qualitatively to classify as a full PTSD syndrome (para 19).

The Plaintiff’s long term prognosis was believed to be favourable, with eventual full functional recovery, and no permanent disability was anticipated (para 12).

Any ongoing leg pain was not expected to be permanent (para 37).

The Plaintiff’s condition was expected to improve with improved fitness and weight loss. Although there was a possibility that his pain would be permanent, the evidence did not establish this to be a probability (para 37).

Although plaintiff’s physical injuries and limitations might continue, his income potential was less dependent on his physical condition than it was on his drive, energy, and imagination, and it was likely that he would be successful in the future.

Accordingly, the Trial Court awarded the Plaintiff $85,000.00 in general damages.

The lawyers at Kubitz & Company are honored to represent injured Plaintiffs. We do not act for insurance companies. Call us at 403-250-7100 for a consultation with one of our lawyers if you have been injured in an accident and are thinking of, or are unsure of whether you ought to pursue a claim or not.

Article edited by Peter Trieu, a personal injury lawyer in Calgary, Alberta.

Article edited by Walter W. Kubitz, Q.C., a personal injury lawyer in Calgary, Alberta.

QUESTION PRESENTED:

Your client was involved in a motor vehicle accident in early 2013. Immediately following the accident, Ms. Client was assessed by EMS on the scene but they did not take her to the hospital. She did not experience pain right away, but after two days felt pain in her neck, back, and right shoulder.  Ms. Client drove herself to her family doctor the next day.

Ms. Client has an extensive medical history. She was diagnosed with degenerative disc disease in 2007. Ms. Client has had serious prior problems with both of her knees; both the left and right had been diagnosed with osteoarthritis. The right knee has had two arthroscopies and injections. She had a total right knee replacement surgery in 2009, and total left knee replacement surgery in 2010. Both knees recovered well.

An x-ray on her lumbar spine sacrum and coccyx in 2012 revealed multilevel degenerative change. She had discussed back surgery with her doctor pre-collision but decided not to proceed.

The day after the car accident, Ms. Client went to her family doctor complaining of headache, dizziness, neck pain that started at the shoulders and radiated into her arms, and pain on all movement of her neck and shoulder. Her family doctor diagnosed the injuries from the accident as WAD III with associated strain of the thoracic and lumbar spine, right hip, and shoulder. Further, in the opinion of the family doctor, the accident exacerbated the underlying pre-existing degenerative changes, except in her neck, which was a new injury. An expert diagnosed her with a mild traumatic brain injury that was caused by the accident. Ms. Client had lumbar facet injections in her lower back in 2013.

Ms. Client continued to complain that her right leg and back were getting worse. She had several nerve block injections on her lower back in 2014. To deal with her pain, Ms. Client had a decompression and fusion for spinal stenosis surgery on her low back in 2015. A dentist who saw Ms. Client claimed that the accident caused damage to the ligaments supporting her mandible. She can subluxate her mandible when she opens her mouth wide, and her TMJ’s occasionally emit a grating or clunking sound.

As a result of the accident, Ms. Client suffered from constant headache; ringing in her ears; jaw pain and discomfort; neck pain; shoulder pain; right arm pain; tingling in her right fingers; constant low back pain; pain in her right hip and buttocks that radiated down to her right leg; tingling in her right toes; and moderate depression and anxiety. The headaches, ear ringing, right arm pain, and the tingling in her right fingers resolved approximately two years after the accident. The jaw pain resolved, but there is still clicking. Ms. Client’s right hip pain, buttock pain, and right leg pain all resolved after her 2015 back surgery. However, she was left with permanent neck, shoulder and low back discomfort and ache.  

After the accident, she was on both short-term and long-term disability but returned to work on a part-time, modified duties basis in June 2013.  She quit her job in October 2015 due to the accident.

After the accident but before her surgery, Ms. Client reported that she had some difficulty with personal care. She had trouble sitting for long periods of time and some trouble with shopping, housework, and laundry. She was unable to walk more than five blocks and could not do any running or lift objects heavier than four kilograms. Ms. Client had difficulty concentrating, and she could not mow the grass, shovel snow, or swim as she did before the accident. After her surgery, things improved somewhat. She was able to walk using a cane or handrails and found it easier to sit for long periods. It became easier to lift things, prepare meals, and clean the house. She could mow her lawn in sections.

CONCLUSION:

The case law shows that plaintiffs with pre-existing conditions, with injuries similar in nature to those suffered by Ms. Client, will be granted higher general damage awards if their pre-existing conditions were asymptomatic when the accident occurred. General damages will also be higher if the plaintiff suffered a measure of psychological damage in addition to their physical injuries.

The most analogous case overall to Ms. Client’s situation is Partridge v. Buskop, 2019 BCSC 459. In this case, the 61-year old female plaintiff had significant pre-existing medical problems. She had not recovered from a previous accident, and had anxiety, anemia, and depression that was unresolved. The plaintiff sustained soft tissue injuries to her neck, right shoulder, mid-back, and low back regions, which exacerbated previous injuries to her back. Her pre-existing depression and anxiety, PTSD-like symptoms, dizziness, and migraine headaches were exacerbated. The plaintiff sustained a labyrinthine concussion and developed tinnitus; she was awarded $90,000 in general damages.

The most analogous Alberta case is Sorochan v. Bouchier, 2014 ABQB 37, in which the plaintiff suffered similar injuries to Ms. Client and had similar pre-existing injuries. The plaintiff was a 57-year old woman who was injured in a motor vehicle accident; she suffered headaches, neck pain, shoulder pain, and back pain. The back pain progressed and became chronic. The Sorochan plaintiff underwent injections in an attempt to deal with her pain. The court awarded $78,975 in general damages (inflation adjusted).

Other analogous cases set the general damage award for plaintiffs with similar injuries to Ms. Client’s, inflation adjusted, from a high of $162,450 to a low of $59,310, with an overall average amount of general damages awarded of $93,300. Analogous Alberta cases set the award, inflation adjusted, from a high of $96,135 to a low of $59,310. The average amount of damages awarded in similar Alberta cases was $73,895. Therefore, it seems that Ms. Client’s likely general damage award will range around $75,000 to $90,000.

The following cases are inflation-adjusted using the Economica index.

DISCUSSION:

Cantin v. Petersen, 2012 BCSC 549                                        $150,000         $162,450

The plaintiff in this case was injured in a motor vehicle accident in 2004; the defendant attempted to turn left immediately in front of her. The plaintiff argued that as a result of the accident, she suffered injuries to her upper and lower back, shoulders, neck, hips, leg, and feet; these injuries led to chronic pain, sacroiliac dysfunction, severe and ongoing headaches, and cognitive and psychological complications. Bruce J held that the plaintiff suffered bruised hands, thumbs, right elbow, left knee, and right shoulder, and these injures resolved quickly. She sustained a soft tissue strain to her lower back and hips, which caused pain in both her legs and feet; these injuries were caused by the collision. She also suffered a soft tissue strain of her neck, shoulders, and upper back and was diagnosed with a grade II soft tissue strain of the neck and low back due to the motor vehicle accident. While all of the medical experts were in consensus that the plaintiff suffered injuries in the accident, they disagreed as to the causes of her current complaints and symptoms. Bruce J held that the plaintiff was suffering from chronic pain in her upper and lower back regions and debilitating headaches. One of the medical experts testified that the plaintiff had a cognitive distortion, an unconscious complication of chronic pain, and an underlying sacroiliac joint malalignment that exacerbated and underlaid her low back problems. All experts agreed that the plaintiff had pre-existing weakness and pain symptoms in her upper body regions. She had episodic myalgic pain in her upper back region for at least two years prior to the accident that caused her considerable pain. Bruce J concluded that the plaintiff continued to suffer pain in her upper back, shoulders, and neck, and her headaches were also causally connected to her chronic pain syndrome in her upper and lower body. She had a medical history of chronic pain in her upper back, shoulders, and neck, and had seen numerous doctors and medical practitioners to try and deal with this. The plaintiff suffered emotional problems as a result of her pain, including anxiety and depression. Bruce J held that the plaintiff had experienced a significant deterioration since the accident; however, given the entrenched nature of her upper back, neck, and shoulder pain symptoms, it is likely that she would have deteriorated to a certain degree regardless of the accident. She was unable to work, had no social life, could not sleep, and suffered a cognitive decline in memory since the accident; her general damages were assessed at $150,000.

The damages suffered by the plaintiff in this case are similar to those of Ms. Client; however, this plaintiff was diagnosed with chronic pain. These damages likely represent the highest damage award that Ms. Client can expect.

Johnstone v. Rogic, 2018 BCSC 988                                       $145,000                     $145,000

In this case, the 42-year old female plaintiff was injured in a motor vehicle accident in 2013. She claimed to suffer soft tissue injuries to her neck and lower back that led to chronic pain and severe, debilitating headaches. Immediately after the accident, she had a significant headache and pain at the back of her neck; she was in shock. The next day, she felt extremely sore. The plaintiff saw a doctor several days after the accident complaining of pain and headaches. She eventually required a Butrans patch and Botox injections. Prior to the accident, the plaintiff suffered from Type 1 diabetes and fibromyalgia, but was not being treated for the fibromyalgia and the diabetes was controlled. Several medical experts diagnosed the plaintiff with chronic lumbar spine pain. Burke J concluded that the plaintiff’s fibromyalgia was exacerbated by the accident and she continued to experience pain; her prognosis was guarded. Burke J held that in order to restore the plaintiff to her pre-accident condition, he had to consider her pre-existing conditions but that the accident had a significant effect on all aspects of her life; he awarded her general damages of $145,000.

Given jurisdictional differences, it is not likely that Ms. Client will receive a general damage award that is this high. However, there are similarities between the Johnstone plaintiff and Ms. Client: both were females who are close in age and both had pre-existing conditions. The general damages awarded in this case may provide an argument for pushing Ms. Client’s range of general damages higher.

Hanger v. Shin, 2019 BCSC 99                                                $120,000                     $120,000

In this case, the 47-year old male plaintiff was injured when the defendant rear-ended him. He worked as a martial arts instructor and had several studios. The plaintiff had been in a significant motor vehicle accident in 2008, in which he received treatment for neck and back pain. This treatment included medial branch blocking. He was left with left-sided low back pain, but was in generally good health at the time of the accident being litigated. Immediately following the accident, the plaintiff had pain in his neck and back. He was taken to the hospital by ambulance but released the same day. After the accident, he complained of neck pain, increased back pain, numbness down his left leg, severe headaches, and depression. The neck pain resolved in about a year, but the back pain continued. The plaintiff received lumbar facet and trigger point injections, as well as RFA therapy; he was on anti-depressant medication. Branch J held that at the time of the accident, the plaintiff was only 75 percent recovered from the previous accident. The current accident caused renewed neck pain and exacerbated his residual back pain from the 2008 accident. The accident caused the plaintiff to suffer from soft tissue injuries to his neck and low back, including facet joint injuries and a re-aggravation of facet joint injuries at the L4/L5 level. The plaintiff had chronic headaches at least partially related to his neck injury; the accident triggered depression. Branch J awarded the plaintiff general damages of $120,000.

This case may provide a good argument for bolstering the upper range of general damages for Ms. Client. The Hanger plaintiff had pre-existing injuries and issues that were significant, similar to Ms. Client. After their motor vehicle accidents, both plaintiffs suffered soft tissue injuries, pain, numbness, and depression. Ms. Client and the Hanger plaintiff both underwent significant treatment in an attempt to alleviate their pain. While the different jurisdictions will likely mean that Ms. Client will not receive such a high damage award, this case provides a good argument for a higher award.

Murphy v. Jagerhofer, 2009 BCSC 335                                              $100,000         $115,100

The plaintiff in this case was 36 years old when his vehicle was rear-ended by the defendants’ vehicle; he was a financial advisor for a financial services company. He suffered soft tissue injuries to his neck and back with accompanying headaches, and later developed tinnitus, dizziness, and jaw pain. He suffered psychological symptoms of anxiety, depression, and PTSD. Prior to the accident, the plaintiff had fallen from a ladder in 1989 and suffered some broken bones in his foot and injuries to his neck and back. He had a minor injury of his neck and upper back playing rugby in 1990. In 1992, the plaintiff was in a motor vehicle accident and suffered soft tissue injuries to his neck and upper back. Beginning in 1998 and continuing into October 2006, the plaintiff had several knee surgeries to repair his anterior cruciate ligaments and meniscus; he also had some psychological problems. However, all of these injuries were largely asymptomatic at the time of the accident. Within a few days of the accident, he developed neck stiffness, headache, back pain, shoulder pain, chest pain, difficulty breathing, trouble sleeping, wrist pain, left groin pain, and rib pain; his chief complaints were his neck and back pain. A doctor stated that the plaintiff’s jaw pain was consistent with TMJ injury and myofascial pain of the masticatory muscles. Since the accident, the plaintiff had a fear of driving or being a passenger in a vehicle. Warren J held that based on the evidence, while the plaintiff had pre-existing conditions, these were all asymptomatic at the time of the accident. He suffered a moderate to severe whiplash type injury that had a significant physical and emotional effect; his back and neck pain caused him considerable pain, sleeplessness, headaches, and general body pain. The plaintiff experienced some hearing loss, tinnitus, and episodes of dizziness; TMJ arthralgia and myofascial pain; and emotional difficulty. General damages of $100,000 were awarded.

The injuries suffered by the plaintiff in this case are analogous to those of Ms. Client. While this plaintiff’s psychological damage appears to be more severe, he did not undergo the surgeries and injections that Ms. Client did in order to deal with pain. The general damage award in this case is likely at the upper range of damages that Ms. Client can expect.

Carroll v. Hunter, 2014 BCSC 2193, additional reasons in 2014 BCSC 2429                                                                                                                                                  $100,000         $105,300

In this case, the 47-year old plaintiff was injured in a motor vehicle accident. She alleged that she suffered intense neck pain, occipital headaches, and injuries to her upper back, shoulders, and arms. Seven years after the accident, she continued to complain of chronic neck pain, persistent headaches, and sleep deprivation. Immediately following the accident, the plaintiff experienced intense and persistent neck pain; the pain increased and interfered with her sleep. She experienced continuous pain in her neck and upper back; she tried trigger point lidocaine injections to provide relief. The injections worked in the short term, but did not provide long-term relief. She had botox injections into the muscles of her upper back and neck that caused her pain to intensify for a few days after the injection, but then gave her five weeks’ benefit. The plaintiff had dry needling treatment in her neck, but it didn’t help; she tried guided facet joint injections that gave her approximately three weeks’ relief each time. The plaintiff underwent radio-frequency lesioning on the right side at C3-C5, which provided her some relief for one month. An MRI from 2008 showed evidence of cervical disc degeneration, including a narrowing of the disc at C5-6, and a bone scan showed facet joint disease of the right cervical facet joint at C3-4. Pearlman J held that the plaintiff did have degenerative changes to her cervical spine in the form of osteoarthritis; however, they were asymptomatic and she had never before complained of neck pain. Pearlman J concluded that the plaintiff suffered soft tissue injuries to the right C2-C5 facet joints and adjacent neck muscles, and she sustained chronic neck pain, injury to her cervical facet joints. However, he held that the plaintiff’s multi-level disc herniations were not caused by the accident, but instead were the result of progressive degenerative change to the plaintiff’s cervical spine. The amount of general damages awarded was $100,000, with a 10 percent reduction for the risk that her degenerative disc disease would have become symptomatic in the future regardless of the defendants’ negligence.

The circumstances of this case are significantly similar to those of Ms. Client. Both plaintiffs sustained similar injuries and underwent similar methods to try and deal with their pain. This case may provide a good benchmark for a general damage award for Ms. Client, although possibly on the high side. 

Do v. Sheffer, 2010 ABQB 86, additional reasons in 2010 ABQB 422                                                                                                                                                $85,000                       $96,135

In this case, the plaintiff was injured in a motor vehicle accident and claimed he became totally disabled as a result. Prior to the accident, the plaintiff worked in medium to heavy labour and had a history of intermittent back pain with occasional flare-ups. He had been diagnosed with low back strain and associated pain and numbness in his leg and foot. The plaintiff had a left L5-S1 laminectomy and discectomy in 2002, after which he had a program of therapy and rehabilitation. After the accident, the plaintiff was taken to the hospital where x-rays showed moderately severe degenerative disc disease at L5-S1 but no other abnormalities, while the x-ray of the cervical spine showed mild degenerative disease. The plaintiff was diagnosed with multiple soft tissue injuries and painkillers and physiotherapy were prescribed. Lee J held that the plaintiff suffered an exacerbation of his prior back issues in the accident; these issues had generally resolved by the time of the accident. He also suffered an injury to his neck and shoulder. Although the neck and shoulder injury largely resolved, the plaintiff continued to have pain in his lower back that was caused by the accident. Lee J held that the plaintiff’s injuries were permanent and resulted in clinical impairment of his cervical spine. Further, the plaintiff was a thin skull, not a crumbling skull, plaintiff as his prior medical problems were asymptomatic. Lee J awarded the plaintiff $85,000 in general damages.

This plaintiff had pre-existing medical issues that were exacerbated by the motor vehicle accident he was involved in. He continued to have pain in his back, neck, and shoulder, similar to Ms. Client. The general damage award in this case may provide a good benchmark for the general damages that Ms. Client can expect to receive; her injuries were arguably more serious than what the Do plaintiff sustained.

Karst v. Foster, 2019 BCSC 1043                                            $90,000           $90,000

In this case, the 53-year old male plaintiff was injured in a motor vehicle accident when he was rear-ended by the defendant’s vehicle. Prior to the accident, the plaintiff was in generally good health. However, he had an arm injury that required him to undergo three surgeries, and he had pre-existing back pain. The plaintiff worked as a correctional officer. Immediately following the accident, the plaintiff felt a sharp pain in his upper back, along with headache and nausea; he felt shaken and his body was in pain. He did not go to the hospital, but managed to drive home. When he got home, the plaintiff started to vomit and was in significant physical pain. His wife drove him to the emergency room, where he was examined and discharged with painkillers. The plaintiff testified that since the accident, he has suffered chronic back pain as well as pain in his left leg; he could not sit still for more than 15 minutes without having to get up to stretch. The plaintiff had an epidural steroid injection that alleviated his pain somewhat, but the pain eventually returned. He underwent two lumbar medial branch nerve blocks, followed by a radiofrequency neurotomy. Horsman J held that he had no difficulty in concluding that the accident caused or contributed to the significant exacerbation of low back pain that the plaintiff experienced; the back pain has now become chronic. The plaintiff’s pre-existing conditions were exacerbated by the accident. Horsman J held that the plaintiff’s pain caused him constant fatigue as a result of interrupted sleep patterns due to pain; he was unable to continue with his job as a corrections officer. Horsman J awarded the plaintiff general damages of $90,000.

This case is very analogous to Ms. Client’s situation. Both plaintiffs had similar pre-existing conditions that were exacerbated by a motor vehicle accident. However, Ms. Client’s prior medical problems are more severe than the Karst plaintiff. This case may represent a good precedent for the upper range of general damages that Ms. Client can expect to receive.

Partridge v. Buskop, 2019 BCSC 459                                     $90,000           $90,000

In this case, the 61-year old female plaintiff was a medical transcriber who was injured in a motor vehicle accident in 2013; liability was admitted. The plaintiff had been in a previous accident in 2004, from which she had not yet made a full physical recover. Prior to the accident, she suffered from anxiety and depression, and she had an onset of medical problems, including anemia and back problems, earlier in 2013 before the accident. She claimed that the accident exacerbated her pre-existing medical problems. In the accident, the plaintiff’s head struck the window; she had to be pulled out of the vehicle because the door wouldn’t open and was taken by ambulance to the hospital. The plaintiff was shaking, vomiting, and crying at the hospital. She had a bad headache and was experiencing dizziness and ringing in her ears, as well as right shoulder pain and a swollen right ankle. She was discharged that night. After the accident, the plaintiff stayed in bed for two or three days, and she continued to suffer headaches, ringing in her ears, dizziness, vertigo, and sensitivity to noise. Her pre-existing depression got worse. Morellato J held that in the accident, the plaintiff suffered soft tissue injuries to her neck, right shoulder, mid-back, and low back regions, which exacerbated previous injuries to her back. Her pre-existing depression and anxiety, PTSD-like symptoms, dizziness, and migraine headaches were exacerbated. The plaintiff sustained a labyrinthine concussion and developed tinnitus. Morellato J awarded the plaintiff $90,000 in general damages.

This case is analogous to Ms. Client’s situation. Both plaintiffs were female of a similar age; both had a history of pre-existing conditions. They each sustained soft tissue injuries and depression, along with an exacerbation of their pre-existing injuries. The general damage award in this case likely represents the upper range of damages that Ms. Client will receive.

Park v. Targonski, 2015 BCSC 555                                         $80,000           $83,280

The 40-year old plaintiff in this case was a registered nurse who was born in Korea. She was rear-ended by the defendant’s vehicle in 2009; liability was not an issue. Prior to the accident, the plaintiff received 37 massage therapy treatments on her neck, back, and shoulder between 2006 and 2008; she also had physiotherapy in 2007 on her right arm. The plaintiff had been working very hard and taking on extra nursing shifts in the time leading up to the accident, and the physical toll of the job caused persistent aches, pains, and muscle stiffness in her neck, back, and shoulder. Immediately after the accident, the plaintiff exchanged information with the defendant and continued on her way to work; however, she felt a sharp pain on the right side of her neck. She went to a walk-in clinic and was given a muscle relaxant and painkiller. The plaintiff testified that her symptoms worsened over the weekend. She had pain in her neck, back and right arm, and was unable to put her arm behind her back; she had back spasms. She testified that for the first few months after the accident, she had severe neck pain every day and attended physiotherapy and massage therapy. The plaintiff had great difficulty performing her usual nursing tasks, and had to take time off work. She became depressed and went on to develop chronic pain with a profound psychological dimension. The plaintiff was given a series of corticosteroid and Botox injections in her back on ten occasions between September 2011 and June 2014. At the time of trial, the plaintiff testified that her physical symptoms and mood were stable but with ups and downs. Fitch J held that the plaintiff was experiencing neck, shoulder, and back pain prior to the accident, likely caused by her job and the extra shifts she was working. Her symptoms were intermittent but repeatedly symptomatic at the time of the accident, and likely would have continued if the accident had not occurred. The accident significantly aggravated her pre-existing pain; she went on to develop chronic pain after the accident with a deep-rooted psychological component. However, she failed to mitigate her damages by following the advice of her health care providers, and exaggerated her symptoms to the medical examiners. A general damage award of $80,000 was made. However, Fitch J deducted 10 percent for the plaintiff’s pre-existing condition and a further 20 percent for her failure to mitigate, for a total general damage award of $56,000.

The plaintiff appealed in Park v. Targonski, 2017 BCCA 134 with respect to the amount of the reduction. The British Columbia Court of Appeal allowed the appeal, to the extent of setting aside the 20 percent deduction for non-pecuniary damages, finding that the trial judge erred in concluding that the plaintiff failed to mitigate her losses.

The situation of the plaintiff in this case is quite similar to that of Ms. Client; both were middle-aged nurses who were involved in rear-end motor vehicle collisions and suffered neck, back, and shoulder injuries. However, there are some differences in terms of injuries. This plaintiff had quite a significant psychological component to her injuries that Ms. Client does not; in addition, Ms. Client’s pre-existing conditions are more serious than those of this plaintiff.

Sorochan v. Bouchier, 2014 ABQB 37                                                $75,000           $78,975

In this case, the 57-year old plaintiff was driving her vehicle and was stopped at a light when she was rear-ended by a large flatbed delivery truck driven by the defendant. The plaintiff did not experience any pain immediately following the accident and did not seek medical attention that day. She began to experience headaches within a few hours following the accident, and neck pain, shoulder pain, and pain at the top of her spine the day after. Her chief complaint was lumbar back pain that continued to bother her. The back pain led to pain radiating down her legs. The plaintiff received a nerve root injection in the lower spine that she found extremely painful, but did not help with the pain. She received cortisone spinal cord injections, but the pain continued. At the time of trial, the plaintiff was on a waitlist for a L3/5 instrumentation and decompression with interbody cages. A CT scan in March 2006 revealed bulging lumbar discs; the plaintiff’s lumbar spine had been asymptomatic prior to the accident. The plaintiff was a teacher; she had intended to work until age 65, but testified that the accident and subsequent pain forced her to retire earlier. An MRI scan performed in 2007 confirmed the presence of mild to moderate spinal stenosis. Belzil J concluded that the plaintiff sustained a 10.5 percent permanent partial disability as a result of the accident. Both the plaintiff and defense medical experts concluded that the plaintiff suffered a 21 percent permanent partial disability, but only half of this was attributable to the accident; the other half was based on pre-existing conditions. General damages in the amount of $75,000 were awarded.

The plaintiff appealed the division of causation that the accident was only responsible for half of her disability in Sorochan v. Bouchier, 2015 ABCA 212. The per curiam Court of Appeal held that a permanent impairment of 21 percent yields a general damages award of approximately $75,000. Therefore, even though the trial judge may have erred in failing to hold the respondent fully liable for the appellant’s injuries, the correct amount of damages was awarded.

This case is likely a good indicator of the general damage award that Ms. Client can expect. The plaintiff experienced similar injuries in a similar manner of accident; similar methods were undertaken in an attempt to deal with pain. While Ms. Client had more serious pre-existing injuries than this plaintiff appeared to, this case provides a good benchmark as to the damage award that she can expect.

Stevenson v. Thompson, 2017 ABQB 451                                          $75,000           $75,570

The plaintiff in this case was sitting in her parked car in a parking lot in 2008 reading a book when she was struck by a vehicle driven by the defendant. The plaintiff alleged she suffered a WAD II sprain/strain, which led to long-term chronic pain syndrome; she claimed to suffer from ongoing pain and dysfunction in her neck, back, and shoulder. In terms of her medical history, the plaintiff had some gynaecological problems; hypothyroidism; and hospitalization of two weeks’ time for adjustment disorder and depression. The plaintiff had a snowmobile accident in 2004 where she suffered lower back pain, shoulder pain, neck pain, tingling in her legs, and headaches. She was in a motor vehicle accident in 2006 where she sustained whiplash. She saw her family doctor in 2007 complaining of low back pain and tingling in her right thigh; she had a gallbladder attack in 2007. A chiropractor diagnosed her with a misalignment in her right sacroiliac joint in 2008. In 2008, she complained of headaches, low energy, stress, sleeplessness, digestive problems, and a desire to quit smoking. She had a fall in 2008 and complained of neck stiffness, headache, left wrist pain, nausea, sleeplessness, vision problems, numbness in her right hip, bruising on her forearms and weakness in her left hand; the diagnosis was whiplash. Shortly after the accident, the plaintiff complained of headache, stiffness in her neck, upper and lower back pain, right shoulder pain, lower leg and right thigh tingling; she continued to complain of pain in these areas. The plaintiff was diagnosed with carpal tunnel syndrome in 2010; she experienced several more slip and falls; was hospitalized for a stroke-like event; and had another motor vehicle accident. Park J held that subject to her ongoing difficulties with her hyperthyroidism and life-stress issues, the plaintiff was in good health on the day prior to the accident. The plaintiff’s chiropractor diagnosed her with a sprain and strain of grade 2 nature of the lumbar thoracic cervical spine and a WAD III injury. Park J accepted that the plaintiff suffered from chronic regional myofascial pain, cervicogenic headaches, and a chronic mechanical low back pain. Park J stated that prior to the accident, the plaintiff’s primary health concerns related to her hyperthyroid condition, depression issues, anxiety and stress issues, and sleep deprivation. The accident caused her to experience headaches, stiffness and pain in her neck, shoulders and arm; global loss of range of motion, difficulties with extension and muscle spasms; a sprain/strain of the lumbar, cervical, and thoracic spine; and a WAD II whiplash injury. The plaintiff was awarded $75,000 for general damages; this was reduced by 20 percent for her failure to mitigate.

The plaintiff in this case had pre-existing conditions that contributed to her injuries, but were exacerbated by the injuries sustained in the motor vehicle accident. The pre-existing injuries were different in nature than those of Ms. Client; they were arguably less severe, with the exception of this plaintiff’s psychological problems. However, this case may provide a good benchmark for the general damage award that Ms. Client can expect.

Kagrimanyan v. Weir, 2018 BCSC 1458                                             $75,000           $75,000

In this case, the 35-year old female plaintiff was injured in a motor vehicle accident, where the vehicle she was in was hit from behind by the defendant driver. Prior to the accident, the plaintiff was in generally good health. She had suffered from carpal tunnel syndrome, but this was successfully treated by elbow surgery; she had sustained a previous ankle injury that had also healed. In the accident, the plaintiff was wearing her seatbelt; her hand banged against the headrest. Immediately following the accident, the plaintiff felt shaky and scared but was able to drive home. That night, she had a headache and pain in the back of her head. She was very sore the next day and had a severe headache. She was prescribed painkillers, muscle relaxants, massage, and physiotherapy, but continued to suffer neck soreness and soreness in her back and between her shoulders. The plaintiff’s injuries included headaches and dizziness, and soft tissue injuries to her neck, upper back, and lower back extending into her left leg. She continued to experience pain in her neck and back. The plaintiff had chiropractic, massage, and physiotherapy treatments; she saw a physiatrist. Riley J agreed with the experts that the plaintiff suffered from chronic pain; her prospects for recovery were poor. Riley J awarded general damages of $75,000.

The general damage award in this case may present an accurate benchmark for the general damage award that Ms. Client can expect to receive. Both plaintiffs sustained soft tissue injuries to their necks and backs. However, Ms. Client’s injuries are arguably more serious, given that she required surgery to correct her back. Given this, and the differences in jurisdictions, Ms. Client should be awarded general damages on par with what was given out in this case.

Carrier v. Wan, 2007 ABQB 279                                                         $60,000           $70,920

The 57-year old plaintiff in this case was diagnosed with degenerative disc disease in his neck in 1997 and sciatica in his right leg in April 1999. In July 1999, he was struck from behind by the defendant’s vehicle, whose vehicle was then hit by another vehicle. The plaintiff was able to drive away from the scene and did not miss any time off work. In December of 2000 the plaintiff was involved in another motor vehicle accident, where he was in the process of turning left on a highway and was hit head on by an oncoming vehicle. Shortly after the 1999 accident, an x-ray of the plaintiff’s spine showed a grade I spondyolistheses of L5 on S1 and degenerative disc disease between L4 and L5, which pre-existed the 1999 accident. In December of 1999 a CT scan of the plaintiff’s lumbosacral spine showed diffuse annular disc bulging at L4-5 and L5-S1 and anterior spondyloistheses of L5 on S1. In October 2004, the plaintiff had an MRI of his vertebrae and right hip, which showed degeneration and disc prominence at the L4-5 and L5-S1 vertebral levels, a discreet tear in the wall of the L5-S1 vertebrae, and marked degenerative arthritic changes in his right hip. There was no evidence as to whether the tear of the hip arthritis was there before the 1999 or 2000 accidents. In November 2005, the plaintiff had a total right hip replacement. He was involved in anywhere between two to five motor vehicle accidents before the 1999 accident; he had pain in his shoulder and arm in 1997 and had chiropractor treatments; and commencing in 1998, he had pain in the right leg and lower back and had chiropractic treatments in 1999, prior to the accident. One of the central issues at trial was whether or not the 1999 accident caused or contributed to the development of arthritis in the plaintiff’s hip. A medical expert at trial testified that neither accident caused or contributed to the right hip arthritis. He testified that the plaintiff also had arthritis in his left hip, which was not injured in the accident. In his opinion, in the 1999 accident, the plaintiff sustained soft tissue injuries of a Grade II WAD injury in the cervical spine and lumbar strain in the lumbar spine; these injuries became chronic and symptomatic for many years. Upon considering all of the medical opinions, Coutu J concluded that in the 1999 accident, the plaintiff sustained a WAD III whiplash injury, including soft tissue injury to his cervical and thoracic spine, lumbar spine, lumbosacral area, pain in the sacroiliac joints with chronic inflammation and chronic pain, headaches, sleep disturbance, and depression. Coutu J awarded $60,000 in general damages.

The plaintiff appealed the amount of the award in Carrier v. Wan, 2008 ABCA 318. The per curiam Alberta Court of Appeal dismissed the appeal, finding that the trial judge made no error.

This case is perhaps the most analogous to Ms. Client’s. The plaintiff sustained similar injuries and had similar pre-existing conditions. This case is likely in line with the general damage award that Ms. Client can expect to receive.

Farbatuk v. Lagrimas, 2014 BCSC 1879                                 $60,000           $63,180

In this case, the 50-year old plaintiff sustained personal injuries when the defendant rear-ended him in a motor vehicle accident in December 2011. The plaintiff testified that after the collision, he was not visibly injured and was not in immediate pain; he sustained no cuts, bruises, or loss of consciousness. However, as the day progressed he stiffened and felt his back tighten up. He went to a walk-in clinic several days after the accident because of pain in his back and neck; he suffered back spasms and headaches. The plaintiff’s family doctor diagnosed him with Grade II whiplash associated disorder of the neck, middle, and lower back as a result of the accident. He also had a pre-existing asymptomatic diffuse idiopathic skeletal hyperostosis, which is a rare condition that is a bony formation or fusing of the ligaments that attach each vertebrae of the spine, causing them to become very stiff with a decreased range of motion. An orthopaedic surgeon found that the plaintiff had pre-existing degenerative changes in his cervical and thoracic spine that were asymptomatic prior to the date of the accident and degenerative facet joint changes were suspected. The accident caused soft tissue injuries to his cervical, thoracic, and lumbar spine. Kloegman J held that it was not proven on the balance of probabilities that the plaintiff suffered any aggravation or acceleration of a pre-existing condition from the accident. With respect to assessing general damages, prior to the accident the plaintiff was in good health and led an active life. Kloegman J awarded the plaintiff $60,000 in general damages.

While there are similarities to Ms. Client’s accident, this case may represent the lower end of damages that she can expect. This plaintiff also had significant pre-existing conditions, but did not go through the extensive measures that Ms. Client has in an attempt to resolve pain. The general damages awarded here may be at the lower end of what Ms. Client can expect.

McLean v. Parmar, 2015 ABQB 62                                         $60,000           $62,460

The 29-year old plaintiff in this case was hit by the defendant’s bus when it ran a red light; liability was not an issue. The plaintiff claimed that she suffered from severe soft tissue injury to her neck, shoulders and back, headaches, dizziness, injury to her TMJ’s, PTSD, depression, a concussion consistent with a mild brain injury, and chronic pain that lasted for approximately two and a half years. She was an accountant who had a second part-time job as a server in a pub; she had to quit work at the pub due to the accident. During the accident, the plaintiff did not lose consciousness, but severely panicked because the airbags deployed, causing her vehicle to fill with smoke; she thought she was going to die. The plaintiff did not go to the hospital. She couldn’t sleep that night because she was sore, scared, and experiencing back and neck pain. The plaintiff went to a walk-in clinic the next day, where the doctor noted she had a tender spine with restriction turning, shoulder pain with painful movement, and a tender back with decreased range of motion. She was diagnosed with whiplash and back strain, and physiotherapy and painkillers were ordered. The physiotherapist noted that the plaintiff had restricted range of motion of the neck and back, as well as pain and tenderness on both the right and left sides of her jaw, some radicular symptoms down her arm, and headaches; WAD II whiplash was diagnosed. She also had stress and depression problems. The plaintiff’s family doctor stated that the plaintiff suffered from a WAD II cervical strain/whiplash, muscular mid and upper back and right arm contusions and myalgia which resulted in mental and physical debilitation, mild reactive depression, PTSD, and a concussion that caused dizziness, vertigo for a period of time, headaches, and chronic pain. She suffered bilateral disc displacements and general pain in her TMJ’s. To deal with her pain, the plaintiff had prolotherapy injections to her neck and upper spine area nine times; she found this therapy helpful. Eidsvik J held that the WAD II injuries suffered by the plaintiff were not minor injuries within the meaning of the regulations because she was unable to continue working at the pub, and was unable to perform some of the tasks of her daily living as she used to. Eidsvik J assessed general damages for the plaintiffs’ injuries separately. For the moderate whiplash, concussion, and chronic pain, she would award $25,000; for the TMJ injury, $10,000 – $15,000; and for the PTSD and depression, $20,000 – $25,000.

This case may be instructive as to Ms. Client’s general damage award. Eidsvik J assessed damages by breaking them down into separate dollar values; many of the injuries suffered by this plaintiff were also sustained by Ms. Client. This plaintiff did not have the extensive pre-existing injuries of Ms. Client, and arguably suffered more serious psychological problems.

Howes v. Rousta, 2002 ABQB 1052, additional reasons in 2003 ABQB 132

                                                                                                            $45,000           $59,310

In this case, the 56-year old female plaintiff was injured in a motor vehicle accident. She was a nurse and a poet, and had worked in retail and journalism. The plaintiff’s vehicle was struck from behind by the defendant’s vehicle and the impact was not at high speed. The plaintiff was somewhat stunned but drove to her place of employment (at a hospital); her co-workers convinced her to go to the emergency department. The plaintiff had a fairly lengthy pre-existing medical history, including an episode of depression; a discectomy with periodic back pain thereafter; low back strain; pain in her right lumbar spine radiating down her right leg; an injury to her coccyx; further depression. When the plaintiff went to emergency after the accident, she complained of numbness to her right arm, back and right leg, and neck pain. A neurosurgeon noted degenerative spinal changes with loss of disc space and small osteophytes. The plaintiff told her family doctor that her chief concern was pain in the lower back radiating down her right leg; she was referred to the Canadian Back Institute. She later complained of shoulder pain and was given a steroid injection; an arthrogram revealed a normal shoulder. The plaintiff’s mental state deteriorated and she went into a manic phase and was diagnosed with bipolar disorder. With respect to general damages, Marceau J held that the plaintiff suffered a neck injury and back strain that essentially healed within 18 months; bilateral tendonitis in her shoulders while undergoing treatment that eventually resolved; mild chronic pain syndrome; and a decrease in her loss of enjoyment of life. Marceau J awarded $45,000 in general damages.

There are many similarities between this plaintiff and Ms. Client. While this plaintiff had more serious psychological trauma, Ms. Client underwent more extensive measures to try and heal her back injury. Both plaintiffs were female, of a similar age, and had a similar profe

Article edited by Walter W. Kubitz, Q.C. a personal injury lawyer in Calgary, Alberta.

Article edited by Walter W. Kubitz, Q.C., a personal injury lawyer in Calgary, Alberta.

Damages for loss of consortium are codified in the Alberta Tortfeasors Act. These damages are claimed by the uninjured spouse for the damage resulting to the marital relationship from the injuries suffered by the injured spouse. The claiming spouse must be a co-plaintiff in the injured spouse’s lawsuit. 

Loss of consortium claims compensate for loss of sexual activity as well as loss of society and comfort of the uninjured spouse. 

The amount of damages awarded in Alberta for a loss of consortium claim will depend on how severely the injured plaintiff’s injuries affected the marriage. Damages for loss of consortium range from approximately $3,000 to $37,588. The upper range of the damages scale appears to be reserved for situations where there has been a near total breakdown of the marriage; in one case, the roles of the parties were described as having deteriorated to being akin to that of caregiver and care receiver. On the other end of the spectrum, the $3,000 damage award for loss of consortium was given to a wife who was deprived of the care and companionship of her husband for a period of only three months. The average amount of damages awarded for loss of consortium is approximately $17,000.

DISCUSSION:

Loss of consortium is codified under s. 2.1 of the Alberta Tortfeasors Act, R.S.A. 2000, c. T-5:

Loss of consortium through injury

2.1 (1) When a person has, either intentionally or by neglect of some duty existing independently of contract, inflicted physical harm on a married person and thereby deprived the spouse of that married person of the society and comfort of that married person, the person who inflicted the physical harm is liable in an action for damages by the spouse or in respect of the deprivation. 

(2) The right of a spouse to bring the action referred to in subsection (1) is in addition to, and independent of, any right of action that the married person has, or any action that the spouse in the name of the married person has, for injury inflicted on the married person.

The most recent case in Alberta dealing with loss of consortium is Muir v. Macdonald, 2017 ABQB 440, 2017 CarswellAlta 1243. After a vasectomy, the plaintiff had a number of difficulties and eventually developed chronic pain that had a significant impact on his lifestyle and career. The plaintiff brought an action for medical negligence as a result of the complications. Kenny J found that the defendant was not liable, but provisionally undertook a damage assessment. One of the plaintiff’s claims was for loss of consortium; he testified that he was unable to have any sexual relations with his wife following the vasectomy.  Kenny J cited several recent loss of consortium claims:

In Chae v. Min, 2001 ABQB 1107 (Alta. Q.B.), the Plaintiff’s wife was awarded $30,000 for loss of consortium. The evidence established that Mr. and Mrs. Chae no longer enjoyed a conjugal relationship and the relationship was limited to that of care giver and care receiver.

In Mahe v. Boulianne, 2008 ABQB 680 (Alta. Q.B.), the Court awarded $20,000 for loss of consortium. The trial judge found that the wife had suffered the loss of a close relationship that she previously experienced with her husband and they had little sexual relationships.

The Defendants relied on Sutherland v. Encana Corp., 2014 ABQB 182 (Alta. Q.B.). The judge did not find that there was a substantial interference in the sexual relations aspect of their marriage. The Court awarded $7500 (paras. 172-174). 

In the result, Kenny J held that the amount of damages for loss of consortium was $20,000.

In Forsberg v. Naidoo, 2011 ABQB 252, 516 AR 201 the plaintiff went to the emergency room of his community hospital with meningitis symptoms. The plaintiff was diagnosed with N. meningitidis infection and a septic infection. The defendant physician did not immediately order antibiotic treatment, and the patient was not transferred to the intensive care hospital until three hours after his arrival. His legs, right arm below the elbow, and part of his left hand had to be amputated because of gangrene. The plaintiff could no longer work on his dairy farm and sold the herd. The plaintiff and his wife brought an action against the physician for negligent treatment of his infection; the wife claimed loss of consortium. Thomas J held that the physician’s negligence was the cause of some of the plaintiff’s injuries. The wife claimed (and based on the evidence, Thomas J agreed) that her relationship with the plaintiff had been affected by his injuries. The defendant argued that a loss of consortium claim would overlap with damages awarded to the wife to compensate for her caregiving activities. Thomas J held:

Loss of consortium compensates for a difference in a shared life. In the case of Wayne and Shirley that is not so much a change in their affection and caring, that clearly remains unchanged, but instead a limitation in the ways these two people may share their lives. Shirley says their intimacies are different, which no doubt they are. Many things a retired couple can share together, such as travel and recreational activities, are restricted. The Defendant’s negligence has reduced the ways they together can explore the remainder of their shared lives.

That is worth something, a fact recognized by the Alberta Legislature, and although that kind of difference is very difficult to value, I find that an award of $25,000.00 is appropriate in these circumstances. The Plaintiffs suggest that Madge v. Meyer, 1999 ABQB 1017, 256 A.R. 201 (Alta. Q.B.), affirmed 2001 ABCA 97, 281 A.R. 143 (Alta. C.A.) provides a good basis for comparison, and that case is relevant, particularly given that the post-injury role of one spouse had changed to be the caregiver for the other (paras. 544-545).

In the Madge case, the loss of consortium award was $37,588; in that case, the emotional relationship between the parties underwent severe deterioration. In this case, Thomas J awarded $25,000 for the wife’s loss of consortium claim. 

In Sutherland v. Encana Corp., 2014 ABQB 182, 2014 CarswellAlta 511, additional reasons in 2014 ABQB 601, 597 AR 230 the plaintiff driver was stopped on the highway, intending to turn left, when she was struck from behind by the defendant driver, who had been going approximately 100 km/h. The driver admitted liability for the accident. The plaintiff sustained a mild traumatic brain injury and physical injuries to her neck and low back, head, tongue, and jaw. The collision also caused post-concussion symptoms, symptoms of post-traumatic stress disorder, depression, and post-traumatic seizure disorder. The driver and her spouse brought an action for damages, including a $27,500 claim for loss of consortium by the spouse. The spouse gave evidence that prior to the accident, he and the plaintiff had a normal sex life, but after the accident they were not as intimate as they used to be. The spouse blamed it on the wife’s depression, fatigue, and back pain. Other than the lack of sexual relations, the spouse gave little evidence as to how the relationship had suffered. The loss of consortium claim was based on s. 2.1(1) of the Tortfeasors Act. Michalyshyn J held:

The claim hinges on evidence that by reason of Teresa’s collision-related injuries Tom has been deprived of her ‘society and comfort’. There is often evidence of interference with sexual relations, but also may include evidence of other tort-related conflict in the marriage that causes the claimant harm or distress (para. 653).

Michalyshyn J found that there was some evidence as to the accident causing stress and increased responsibilities, but it was not compelling. He canvassed the Alberta authorities dealing with loss of consortium claims:

I was referred to Chae v. Min, 2001 ABQB 1107 (Alta. Q.B.) wherein Veit J. assessed $30,000 in damages for loss of consortium once finding the parties’ relationship was limited to that of care-receiver and care-giver. There is nothing remotely similar in the evidence before me.

Likewise I was referred to Forsberg v. Naidoo, 2011 ABQB 252 (Alta. Q.B.), with $25,000 awarded in damages for loss of consortium, but again it is distinguishable as another instance of a spouse becoming a caregiver, not remotely similar to the case before me.

I was referred to Vespa v. Dynes, 2002 ABQB 25 (Alta. Q.B.), a case in which it was found that for all practical purposes at trial the parties’ marital breakdown was complete, with damages of $20,000 awarded for loss of consortium. Again however there was no such evidence before me.

Finally, I was referred to Rogers v. Grypma, 2001 ABQB 958 (Alta. Q.B.), wherein the loss of consortium of $15,000 was characterized as follows:

The loss … is significant. [The claimant] has lost much of her companionship in social outings; his plans to travel with his wife during retirement years are gone, and he has been forced to give up much of his own personal time to be with and care for his wife. He is no longer able to have enjoyable and unimpaired sex with his wife. His marriage as he knew it, is gone (paras. 660-663).

Michalyshyn J held that nothing in the current case approached these facts; however, he held that giving the spouse every benefit of the doubt, the spouse was entitled to damages for loss of consortium in the amount of $7,500. 

 In Kitching v. Devlin, 2016 ABQB 212, 2016 CarswellAlta 689 the plaintiff was involved in a two-vehicle accident and hired a lawyer to pursue legal action. The claim was settled during judicial dispute resolution for $350,000, but the plaintiff alleged that the lawyer negligently handled his claim by making an uninformed decision to accept an improvident settlement and failing to obtain necessary information to properly advise him. In the personal injury suit, the plaintiff’s wife had a loss of consortium claim; the defendant offered to settle for $5,000 under this head of damage. The amount claimed by the plaintiff for loss of consortium was $40,000; the settled amount of this claim was $7,500.

In Best v. Hoskins, 2006 ABQB 58, 390 AR 1 the plaintiff was diagnosed with pre-malignant changes in her uterus. The defendant physician advised the plaintiff to have an abdominal hysterectomy. The physician performed the procedure with the assistance of another doctor who closed the incision. The plaintiff developed pain and discoloration around the incision; a third doctor performed surgery to correct the problem and discovered that one of the doctors had perforated her bowel while closing the incision. The bowel needed to be repaired and a large amount of dead tissue was removed resulting from a necrotizing fasciitis infection. The plaintiff underwent numerous procedures to address the damage caused by the infection; she brought an action for damages for medical negligence. Verville J held that the doctors had met their standard of care and dismissed the action. The plaintiff’s husband was also a party to the action; he brought a claim for loss of consortium in the amount of $20,000. The parties said that the wife could no longer go horseback riding, camping, and dancing with her husband; sexual relations had been suspended for several years, but had resumed. Verville J held:

I am satisfied that there has been some loss of the society and comfort. I find that an award of $6,500.00 is reasonable in these circumstances (para. 123).

In Lawson v. Le, 2008 ABQB 275, 452 AR 106 the plaintiff was in a car accident; he claimed $70,000 for post-traumatic stress syndrome. Veit J held that the claim was not made out, although the plaintiff was awarded some damages for his injuries. The plaintiff’s wife claimed loss of consortium; the evidence established that for a period of no more than three months after the accident, she was deprived of the companionship, comfort, and assistance that her husband would normally have provided her. She was awarded $3,000. 

END

Article edited by Walter W. Kubitz, Q.C., a personal injury lawyer in Calgary, Alberta.

Question Presented:

You have requested a quantum assessment regarding the injuries suffered by your female client, age 20 at the time of the collision. The collision was a head on collision on a regular city street. Your client’s vehicle was written off. She had a panic attack following the collision and is now suffering from PTSD. Her major complaint appears to be TMJ dysfunction, which causes constant headaches and pain, clicking and popping, and she wears a splint 24 hours a day. She will be required to wear a splint for the rest of her life. She has had prior issues with her jaw and teeth implants, but you have a medical opinion that the TMJ dysfunction is resultant from the motor vehicle accident. She is also suffering from diagnosed chronic pain as a result of the collision, with pain radiating through her neck, shoulders and lower back. In addition to other aches and pains, she suffers from a droopy left eyelid. She is very anxious as result of the motor vehicle accident and finds it difficult to be a passenger in other vehicles.

Your client underwent extensive physiotherapy treatments and also undertook massage and chiropractic therapy in order to deal with the pain. She continues to be able to work, although some of her work capability has been limited in that she can no longer carry heavy trays of food etc. in her work as a waitress, nor undertake other heavy work in the course of her work running a restaurant. Prior to the accident she was very physically active, coaching skiing and vigorously engaging in other outdoor activities. She has returned to skiing, although she is now “rigid” and not as adventuresome, and does not participate in other activities with the zest she one time did.

Conclusion:

Relatively analogous case law from Alberta suggests that a likely general damage award would range from $97,000 to $108,000.

Discussion:

The following cases have been inflation-adjusted with the Bank of Canada inflation index, present valued to January 2018.

                                                                                    Damage Award           Inflation Adjusted

Beger v. MacAstocker Estate (1992), AR 241,                       $70,000           $108,512.40

additional reasons at (1994), AR 397

In this case the motor vehicle the 56-year-oldfemale plaintiff was driving was hit from behind by the defendant’s car and left the road, became airborne and landed in a ditch. She pulled herself from the vehicle and was confronted by the defendant, who beat her and tried to pull her into his car. She managed to escape to a nearby house. The defendant later murdered a young girl, and committed suicide.

The primary injury of the plaintiff was a TMJ injury resulting in her wearing a mouth splint most of the time, with difficulty chewing and resulting in constant headaches. She restricted herself to soft foods and could not eat things like apples, carrots and celery or meat. Her appetite was decreased as it was such an effort to eat and her diet was so restricted. She had clicking and cracking in her jaw joint area. While she was unable to undergo surgery for her TMJ problems immediately, she would probably be in a position to do so within two years. It was anticipated that she would have substantial recovery from the effects of the TMJ injury five years after surgery.

She suffered a sprain of her neck and back in the incident and the pain of this would continue sometime into the future. She had numbness in her arms, difficulty standing for long periods, and difficulty sleeping, both because of the pain and because of recurrent nightmares. She was never really free from the pain emanating from the back of her neck into the jaw and across the front of her face. She tired easily as she was always combating pain. Dr. Esmail assessed her impairment at 5% with respect to her neck, 5% with respect to her lumbar spine, and at 5% to 10% with respect to her TMJ, for a total whole body impairment of 15% to 20%. He did not include her psychological problems in his assessment.

Her physical activities were greatly restricted and she was unable to do much of her heavy yard work and heavy housekeeping. She required chiropractic and physiotherapy treatment.  She suffered from severe emotional problems and was very fearful . She was diagnosed as having PTSD, was depressed and suicidal, and also had mild carpal tunnel syndrome in her arms and legs.

This case has been selected as it has both a significant TMJ injury and chronic pain. The injuries for this plaintiff seem to be somewhat more serious than those of your client, however, and this case likely represents an upper limit of the general damage award that your client can anticipate.

Chisholm v. Lindsay, 2012 ABQB 81,                         $90,000           $96,940.11

affirmed on appeal at 2015 ABCA 179

In this case the female plaintiff, age 31 at the time of accident, was stationary in a vehicle when rear-ended by the defendant vehicle. The plaintiff was sitting eating her lunch, without a seatbelt on, when she was struck from behind. The force of the collision caused her vehicle to strike the vehicles in front and beside her.

She suffered injuries to her TMJ joint, neck and spine. She was initially diagnosed with a WAD II injury and undertook physiotherapy and massage therapy. She had a mild brain injury and was also diagnosed with PTSD. She had a meniscus injury to her knee, a nerve root compression and a strained wrist. She complained of chronic pain and fatigue since the accident. Her sister-in-law hired a housekeeper for her as following the accident she was unable to look after the house and her children as she was always exhausted and napped regularly. Although her major symptom was fatigue, she also suffered from headaches on average once per week. The judge found that her cognitive difficulties arose from the chronic pain, and not the mild brain injury. With respect to her TMJ injury, she wore a splint at night for approximately one year, and then reduced that to four times a week, eventually moving to an “as needed” basis. Surgery was not found to be required for her TMJ dysfunction.

At the time of the accident she was working full-time as a special education teacher. She was ambitious, a natural leader and teacher who loved to travel and seek out new adventures. Following the accident she was more subdued and less involved in her former activities. It took her longer to process information and this impacted her organizational abilities. She remained in her employment but following the accident it took her more effort to fulfil her job expectations and she was slower, more distracted and not herself.

This case is analogous to the facts at hand, except that the chronic pain appears to be the primary injury in this case, with the TMJ dysfunction being secondary. There was a diagnosis of mild brain injury in this case but the ongoing cognitive difficulties were found to be caused by the chronic pain, so this is not arguably a distinguishing factor. This case likely therefore represents a fairly accurate estimate of the general damages your client can anticipate.

Olson v. Ironside, 2012 BCSC 546                              $100,000         $107,711.24

In this case the female plaintiff, age 19 at the time of accident, was a passenger in a motor vehicle when it was rear-ended by the defendant’s vehicle. She was diagnosed with a grade 2 whiplash injury and suffered soft tissue injuries, exacerbation of pre—existing headaches, major depression and PTSD. She experienced panic attacks and nightmares and suffered from daily headaches. She had daily myofascial pain in her neck and upper back and chronic sleep disruption. She also had permanent right TMJ dysfunction. She would awake with a locked jaw, requiring extremely painful treatment. Jaw locking and clicking could occur throughout the day. She required splints to reduce the symptoms and could only eat soft food.

 Prior to the accident she was happy, active, energetic, outgoing, athletic and highly socially active. All that changed after the collision. She became a socially isolated coach potato. She was fired from two jobs since the accident. She was off work for three months following the accident and currently worked in a part-time position in order to accommodate her injuries.

In this case the plaintiff seems to have suffered slightly greater injuries than your client and her employability was also impacted to a much greater extent than that of your client. Further, she had significant personality changes, which appears not to have been an issue for your client. This would suggest that the damage award in this case is at the high end of the range than that your client can expect.

McLean v. Parmer, 2015 ABQB 62                 $60,000                       $61,982.69

This case has analogous injuries to that suffered by your client, but is of concern in that the plaintiff apparently only asked for $60,000 in general damages. This is a much celebrated case for the obiter regarding what constitutes a minor injury, but it seems quite clear that the plaintiff’s counsel left money on the table in this one. I flag this case for you as the defendants might rely on it to establish a lower general damage award marker.

In this case the plaintiff, age 29 at the time of the accident, was hit by the defendant’s bus when it ran a red light. She sustained soft tissue injuries, TMJ dysfunction, chronic fatigue, a concussion causing headaches, dizziness, PTSD, depression and chronic pain that lasted 2.5 years. She saw a psychologist for her stress and depression symptoms. Regarding her TMJ, she had bilateral disc displacements in her jaw and general pain in her TMJ joints. She had physiotherapy on her TMJ’s on several occasions and bought inexpensive splints to try to wear and help with the pain. She suffered from muscle pain in her jaw, face and temple area which caused tension headaches and clenching.

At the time of the accident she was an accountant who also had a second job as a server. Following the accident she was off work for five weeks and she had to give up her second job. She took pain medications, physiotherapy and massage therapy. Prior to the accident she participated in two softball teams, dodgeball, camping, hiking, rollerblading, wake boarding and downhill skiing. After the collision she was unable to return to vigorous physical activity.

The above cases are the most fact analogous cases that I could find, researching in Alberta and across Canada. The general damage awards for chronic pain have been increasing in Alberta, however, and I will now include a few of the higher end chronic pain cases in case you want to make the argument that her chronic pain alone should generate a higher general damage award.

Kitching v. Devlin, 2016 ABQB 212                            $135,000         $136,781.83

33 Alta LR (6^th) 303

This case is a professional negligence case wherein Mr. Kitching alleged that Mr. Brian Devlin, Q.C. was negligent in handling his personal injury claim.  Mr. Kitching’s claim was dismissed but the court provisionally assesses general damages.  Mr. Kitching, a 43-year-old male, was involved in a two-vehicle accident in Calgary.  Mr. Kitching was struck by a van after which he lost control and crashed through a chain link fence into a daycare playground.  He briefly lost consciousness after the accident.  He was taken to hospital immediately following the accident and his broken wrist was casted.  After the accident, Mr. Kitching’s life changed significantly.  He experienced a great deal of pain in his right wrist, upper spine, chest and upper back muscles.  One month following the accident, his pain was still severe.  He still was not working at his prior job as a drywall taper.  The pain continued in his spine, back, ribs and chest and a burning sensation in his feet and arms.  He was unable to do any household chores and had to shut down his business.  He was unable to participate in physical and social activities with friends and family.  He took medication and attended physiotherapy to manage his pain.  He also attended at the Advanced Spinal Care Centre for prolotheraphy, an injection of dextrose to provoke regenerative tissue.

 The court found Mr. Kitching suffered from chronic pain in his back, feet and arms.  Mr. Kitching did suffer three smaller accidents after the one at issue in this case, however, this one was the sole cause of his chronic pain from the time the accident happened up until the second one occurred.  The subsequent accidents were held to be all collectively responsible for the chronic pain.  There was no realistic possibility that he would improve or recover any further from the accident.  The pain symptoms were permanent by November 2010 and the subsequent accidents only exacerbated his issues.  He was unable to continue work as a drywaller but it was decided he would likely be able to find other types of work.  

It seems clear that Mr. Kitching’s injuries are more severe than that of your client, and his pain greater, with more impact on his quality of life and employability. For this reason the damage award provisionally set for Mr. Kitching is likely out of reach of your client.

Prosser v. 20 Vic Management Inc.,              $100,000         $113,775.07

2009 ABQB 177, affirmed on

appeal at 2010 ABCA 57                                                        

The plaintiff suffered a very serious musculo-ligamentous, soft tissue and disc injury which had a marked impact on her enjoyment of life and her career.  She was 39 at the time of the fall.  She suffered from lower back pain, neck pain, sciatic pain, and SI joint pain following a trip and fall.  X rays revealed that she suffered a mild degenerative joint disease at the point of disc injury (herniation).  She underwent many different treatments including prolotheraphy, trigger point injections and steroid joint injections as well as undergoing chiropractic, physiotherapy and massage therapy.  She had a chronic lower back injury which had a major impact on her life.  She was no longer able to run and had difficulty doing daily chores. She was assessed with a 5% total body impairment.  It was also noted that any history of lower back problems were sporadic and that the present injuries were caused, or materially contributed to by her trip and fall. She lost the ability to pursue activities with which she once enjoyed. 

Article edited by Walter W. Kubitz Q.C., a personal injury lawyer in Calgary, Alberta.

Article by Peter Trieu, a personal injury lawyer in Calgary, Alberta

Question Presented:

Assume that Mr. Plaintiff received the following injuries after being struck by a vehicle while he was a pedestrian in a marked crosswalk:

• facial smash”, which entailed fractures to his skull and many of his facial bones, requiring surgery for reconstruction, with hardware;
• thighbone fracture, requiring surgery and the implantation of a nail;
• complicated mild traumatic brain injury whereby Mr. Plaintiff experienced:
  • daily headaches;
  • lower cognitive abilities, including difficulties with organization, concentration, memory and slow thinking speed;
• ongoing psychological injuries including major depressive disorder and PTSD;
• post-concussion vertigo syndrome, chronic pain, tremor, and sleep disorder exacerbation

Mr. Plaintiff spent 12 days in hospital and suffered cognitive decline to the extent that he had to retire early from his intellectually challenging self-employment. Mr. Plaintiff’s daily living was significantly affected as a result of the collision.

Listed below are select case summaries that we considered for our analysis:

In this case the 28-year-old male plaintiff was struck by a police cruiser when he was riding his bicycle at night through a pedestrian crosswalk. The defendant officer was found to be 60% liable for the accident.

Prior to the accident the plaintiff had a very troubled background and he had extensive pre—existing issues. He was born to a 13-year-old mother and his father committed suicide. He was removed to the care of the Children’s Aid Society and eventually was raised with the family of his mother’s boyfriend, where he was sexually abused over an extensive period of time. He did very poorly in school, had at best a grade 9 education at the time of the motor vehicle accident, and had a learning disability. He was taken under the wing of the Browne family in his later adolescence and worked odd jobs as a dishwasher, cook etc. Prior to the motor vehicle accident he experienced occasional back and neck pain, and obtained chiropractic treatment. He became addicted to painkillers and began to abuse street drugs. He had abandonment issues, attachment issues and significant psychological sequelae arising from the long period of sexual abuse he had suffered as a child. He had difficulty maintaining relationships and was depressed. He attempted suicide on four occasions.

In the accident the plaintiff was thrown over the hood of the car and he smashed his face on the windshield or the passenger side mirror, or both. He slipped in and out of consciousness. When he was taken to the hospital it was determined that his facial fractures were limited to his nose and nasal septum. He had other deep facial lacerations as well. He also suffered C–6 and C –7 spinous process fractures as well as a T1 spinous process fracture. He had two broken bones in his right foot and two broken bones in the ring finger of his right hand. He underwent surgery to repair his badly damaged nose, which had to be reconstructed using plates and screws and required a skin graft. When he was discharged an Occupational Therapy report recorded that he had a closed head injury, a skull fracture, a fractured nose, a right foot fracture, a right hip fracture, a right-hand ring finger fracture, a C – 6/7 transverse process fracture and multiple lacerations. The trial judge accepted that the weight of the evidence suggested that he suffered from a mild traumatic brain injury.

After his accident the plaintiff went to live with the Browne family, and this was a difficult experience. The Brownes said that he had no desire to get up and do anything, he slept a lot, his hygiene was terrible, he would not join them for dinner, and he no longer rode a bike nor watched movies. He prepared basic meals for himself such as a bowl of cereal or something microwavable. He could not hold down a job and began drinking heavily. He was evicted from the Brownes’ house for a period of time, and, eventually, for good. At the time of the trial he was living in a supervised residential home with a personal support worker.
The medical evidence at trial indicated that his primary injury was a “facial smash injury which resulted in permanent and significant facial disfigurement”, and chronic pain in his neck, back and right foot which developed into a chronic pain syndrome. He was also diagnosed as having PTSD, ADHD, an anxiety disorder, major depressive disorder, and opioid and alcohol dependence, in full remission. Evidence was also given as to his mild traumatic brain injury. He also suffered from sleep disturbances, apathy syndrome, impulsivity, and cognitive difficulties, as well as excessive weight gain.

The plaintiff sought general damages at the level of the “cap”, which was then $338,000. The defendants suggested a general damage award ranging between $200,000 and $250,000. The trial judge awarded $250,000, suggesting that he might have awarded the full “cap” if the plaintiff had not presented with such extensive pre-existing impairments. The trial judge held that the injuries impacted his ability to function on a daily basis as he could no longer ride a bike and that the scar on his face had a devastating effect on him emotionally. The plaintiff’s psychological injuries were far worse than his physical injuries and he had a very compromised coping system. He had been teetering on the edge of functionality for several years, and the accident pushed him over the edge.

This case has been selected as the major injuries suffered were facial smash, chronic pain and mild traumatic brain injury, with significant psychological injuries. The case clearly marks the high water of a general damage award that could be anticipated.

In this case the 41-year-old female plaintiff was hit by the defendant’s car as she crossed a busy street in Fort McMurray, Alberta. She was held to be 50% contributorily negligent, and this was upheld on appeal. She suffered a fractured left humerus, fracture of left tibia and fibula, fractures of facial bones, multiple facial lacerations and a closed head injury with hemorrhage. Her facial scars extended from her left eyebrow to the bridge of her nose and were about 6 cm in length. Her broken leg was treated by open reduction and insertion of a metal screw. She spent over two months in hospital. She was unable to walk unaided for a number of months after the accident and still had difficulties with climbing stairs. The arm injury was more serious than the leg injury and the head of her left humerus finally had to be replaced with an artificial one in further surgery. The trial judge found her left arm movement to be permanently impaired. Her whole person impairment was assessed at 20%. She was left with residual pain. Her most serious injury however was the head injury, which resulted in a major overall loss of cerebral function. This caused a marked change in her personality. She suffered an epileptic seizure more than three years after the accident and, following the seizure, was unable to care for herself and required 24 hour day supervision. She was able to take care of her basic hygienic needs, feed herself, and do things like watch television, listen to music, play card games and do crafts and puzzles. Her brain damage made her unpredictable, however, and she had poor judgement and exhibited inappropriate behaviour such that she needed to be supervised. She was made a dependent adult by court order in 2000. She complained of depression, but the trial judge found that this was a condition that pre—existed the accident. The plaintiff had misused both alcohol and prescription drugs for many years. It was held that the head injury suffered in the accident materially contributed to the plaintiff’s seizure and the seizure could not be attributed entirely to her drug and alcohol abuse problem. On appeal she was awarded additional monies in special damages to compensate for pre—trial care.

In this case, in 2000, the defendant failed to stop at a stop sign and crashed his SUV into the plaintiff’s pickup truck. The 48-year-old male plaintiff suffered from chronic pain syndrome, major depression disorder of moderate severity, and mild traumatic brain injury. He suffered from dizziness following the accident. He had residual problems with attention, short – term memory and concentration. He had severe headaches with upper neck pain and imbalance. He did not work following 2003, and the trial judge found him to be competitively unemployable. Prior to this he operated a home renovation business and the plaintiff and his wife were co—venturers in a family rental property business.

In this case the plaintiff was involved in a head – on collision with the vehicle of the defendant when he was returning home from his work as a mechanic. He suffered a brief loss of consciousness at the scene of the accident. He suffered critical injuries to the head and stomach area. He had facial fractures around the eye rim and nasal bones and a mid – shaft fracture in the right leg. For a while he suffered double vision. The screws in his head caused some discomfort and a scar extended all the way down the centre of his body from the top of his chest to below his stomach. He also suffered from constant dull pain in his bowel, chronic fatigue, stomach, bowel, facial and left eye problems, a cognitive deficit which reduced his ability to filter out extraneous noise and stress, life-threatening high blood pressure and the possibility of future operations. His ability to perform as a mechanic substantially deteriorated and when he returned to work after the accident he had lost his competitive edge. When the economy declined he was one of the first mechanics to be dismissed by the company. He started up his own business but had limited success and earned a limited income.

The general damage award was appealed to the Ontario Court of Appeal as excessive. The appellate court found that although the award was at the high end of the range they were not persuaded that the award was so high that they should intervene.

In this case the male plaintiff, age 48 at the time of trial, was a passenger in a small aircraft being flown by his good friend, the pilot. Three minutes after takeoff the airplane experienced engine trouble and crashed into a lake. The pilot was killed instantly and the plaintiff sustained serious injuries. The plaintiff suffered serious head injury resulting in “frontal lobe damage” and PTSD, three fractures to his neck, a fractured right arm, three fractured ribs on his left side, multiple facial fractures, raccooned eyes, a ripped open head, neck and chest, and an injury to his right knee. His right arm eventually healed after being in several casts for a total of six weeks. His various lacerations healed, except for the head laceration, around what he had been left with some residual numbness above his brow. He had daily headaches, for which he took six daily Tylenol’s, and had constant depression, PTSD, frontal lobe damage and nightly bedwetting. The PTSD symptoms included hypervigilance, excessive startle response, disturbed sleep, generalized anxiety disorder and social withdrawal. He had difficulty concentrating and his short term memory was poor. He was irritable, had a “short fuse”, felt very tired and became overwhelmed easily. His emotions were unstable and he cried easily and said inappropriate things. He had no sex drive. Evidence was given that he had Frontal Lobe Syndrome, which included a disturbance of his executive function and loss of memory. The trial judge accepted that because of the PTSD and frontal lobe damage he was not able to work since the accident.

The action brought by the plaintiff against the estate of the defendant pilot was dismissed in the result, but the court provisionally assessed damages.

In this case the 49-year-old male plaintiff was the defendant’s former supervisor and was assaulted by the defendant in 2007. He suffered a concussion, fractured nose, several facial fractures, dental injuries, chest and rib injuries, and injuries to his knee, and, back and neck. After his physical injuries had healed, he continued to suffer depression, nightmares, difficulty concentrating, a speech impairment and on – going anxiety. He was diagnosed with mild traumatic brain injury and with PTSD in mild remission. He continued to have difficulties with the alignment of his jaw, he was clumsy, and he had difficulty finding and pronouncing some words. The plaintiff argued that the assault caused him to move, made it difficult to obtain employment, resulted in less remunerative self – employment, caused some difficulty dealing with conflict situations and resulted in avoidance of social activities. General damages of $150,000 were awarded based on the severity of the original injuries and the lasting psychological effects on the plaintiff. The plaintiff did not follow a number of doctor’s recommendations, including the use of medication, psychological treatment and reduction and alcohol consumption, and his overall award was therefore reduced by 30%.

In this case the male plaintiff, age 50 at the time of trial, suffered serious facial fractures and wrist injuries, loss of five teeth, PTSD and a mild traumatic brain injury when thrown from a bicycle. The plaintiff underwent surgery to repair fractures in his face and wrist, had dental surgery to repair teeth and experienced significant pain throughout the recovery period. The plaintiff was briefly unconscious at the scene of the accident. In terms of the mild traumatic brain injury, the plaintiff suffered memory problems, dizziness, attention/concentration problems and emotional lability. He slept a great deal, and experienced considerable sadness while grieving his loss. Further, the plaintiff suffered personality changes and forgetfulness as a result of both his brain injury and PTSD. The wrist and forearm did not respond well to physiotherapy and the plaintiff was left with only 50% strength and with pain on certain rotations of his wrist. A plate and screws were inserted into the right wrist during surgery. The plaintiff’s dental injuries were severe and in addition to losing 5 teeth, 11 other were injured, as well as the surrounding soft tissues and bone. The extensive dental repairs took about a year. The plaintiff’s participation in sports and other recreational activities was greatly reduced as a result of his injuries. His enjoyment and quality of life was permanently altered. The plaintiff was a paramedic who regularly worked over time prior to the accident. Following the accident he seldom worked over time due to his physical limitations and he was placed on lighter duties as a paramedic.

This plaintiff continued to suffer permanent wrist injuries which interfered with his employment and his recreational pursuits, and he had severe dental injuries.

In this case the male plaintiff was assaulted by 10 to 15 people– he was aged 40 at the time of the assault. Prior to the assault he was employed as a security guard with the school division. He sustained a mild-moderate traumatic brain injury and facial deformity. His injuries included basal skull fractures, brain concussion, and fractures of his nose and orbital floor, in addition to other facial fractures. He continued to suffer pain from his facial fractures, and had double vision for two years. In terms of his brain injury, he had few difficulties with higher processing skills but had significant difficulty with attention and short term memory. He also suffered from depression, PTSD and post – concussion syndrome. He was deemed not to be employable and his injuries further prevented him from continuing to participate in sports.

In this case the 24-year-old male engineering technology student plaintiff was assaulted and robbed by the defendants while delivering pizza. He sustained a fractured skull, subdural hematoma, contusions to his scalp and brain, swelling of his brain, lacerations, soft tissue injuries and swelling and bruising to his right eye. He was diagnosed as having a mild traumatic brain injury. He had headaches, poor concentration and diminished thought process skills. He had mood and emotional problems, fatigue, anxiety and depression. He would lose personal items and forget conversations, which affected his relationship with his wife. He finished school in 2006, but his grades dropped from almost straight As to Bs and Cs and he did not pursue an engineering degree.

This plaintiff did not appear to suffer from chronic pain.

If you have been injured in an accident, the lawyers at Kubitz & Company would be pleased to discuss the claims that are available to you. We are honored to represent injured Plaintiffs. We do not act for insurance companies. Call us at 403-250-7100 for a consultation with one of our lawyers if you are thinking of, or are unsure of, whether you ought to pursue a claim or not.

Article edited by Peter Trieu, a personal injury lawyer in Calgary, Alberta.

Preserving AISH and Disability Benefits After Settling a Personal Injury Claim in Alberta and British Columbia.

Article written by Alena Storton, an Articling Student for Kubitz and Company, a firm of Personal Injury Lawyers in Calgary, Alberta.

Introduction

If you have experienced a severe injury or chronic pain stemming from an injury, you may know that disability benefits are, oftentimes, an essential source of financial stability for individuals in this type of situation. When those injuries have been caused by someone else’s negligence, it can be anxiety-inducing to contemplate losing such a vital source of assistance solely because you would like that person to compensate you for the losses you suffered. There are, however, several methods to preserve those life-sustaining disability benefits, while also receiving settlement money that can help you get back on your feet and plan for the future.

This article first describes the income and asset calculations under the Alberta Assured Income for the Severely Handicapped Act¹ and British Columbia Employment and Assistance for Persons with Disabilities Act,² and what types of income and assets are exempt from that calculation. This article will briefly evaluate the positive and negative aspects of each of these exempt income and assets in the context of a settlement payment. Finally, the article will provide a recommendation on which option may be best.

The options and recommendation are assessed in the context of a man who suffered a severe traumatic brain injury and other debilitating injuries as a result of a motor vehicle accident – for ease of reference, this article will refer to this man as the “client”.

Background

The client currently resides in Alberta and has been receiving benefits under the AISH Act. The client is a dependent adult as a result of his severe brain injury. The client is considering moving to British Columbia within the next few years. If he moves, the client will apply for benefits under the Disabilities Act.

Alberta Benefits

1. Eligibility for AISH Benefits

In Alberta, persons with severe disabilities may receive financial assistance through the AISH Act. Under the AISH Act, a person may receive a living allowance, personal benefit, child benefit, and health benefit, depending on whether he or she meets the criteria in the AISH Act and regulations. A person is eligible to receive AISH benefits if he or she is a Canadian citizen or permanent resident, ordinarily resides in Alberta, is at least 18 years old, and has a severe, ongoing handicap. In addition, the person’s income, or his or her income combined with a cohabitating partner, must be less than the maximum amount allowed in the AISH Act and the corresponding regulations. In addition, to be eligible for a living allowance or health benefit under AISH, the total value of the person’s assets must be $100,000 or less. The asset limit for a personal benefit or child benefit under the AISH Act is even more stringent – it requires that the total value of the person’s assets were $3,000 or less.³

Despite the income and asset provisions in the AISH Act, the director may exempt an individual from the income requirement if that person is applying for a health benefit and the Minister concludes that he or she is in circumstances of financial hardship. The Minister may also exempt a person from the $3,000 asset limit for a personal benefit if the Minister is of the opinion that the person is in circumstances of financial hardship.⁴

2. Cohabitating Partners

Section 1(2) of the Assured Income for the Severely Handicapped General Regulation⁵ defines a cohabitating partner as a person with whom the person resides, and any of the following apply: is the person’s spouse, has a relationship of interdependence (as defined in the Adult Interdependent Relationships Act),⁶ or has a natural or adopted child. In this case, the client does not have a cohabitating partner.

3. Calculating Income and Assets under AISH Act

a. Income

Income, for the purposes of the AISH Act, is calculated according to Schedule 1, section 1 in the AISH Regulation. The types of income in this section include: income that is reportable under the Income Tax Act of Canada of the type that is not exempted by the AISH Regulation,⁷ and trust income when the director deems it to be income.⁸

In Schedule 1, Table 1, the AISH Regulation establishes the types of income that are entirely exempt from the income calculation in the AISH Act, meaning it does not impact the amount of AISH benefits someone will receive. The exemptions that may be most relevant to this client are:

• cash gifts;
• certain tax refunds;
• payments from a registered disability savings plan.

Some income is partially exempt, meaning that only part of the value is taken into account for the purpose of calculating AISH benefits. Under Schedule 1, Table 2, partially exempt income includes:

• trust income;
• non-pension annuity income;
• investment income.

An individual may earn up to $200 per month in trust income without impacting an AISH living allowance. After $200, 75% of the trust income is subtracted from the monthly living allowance.

b. Assets

Schedule 2 in the AISH Regulation establishes the way in which assets are determined for AISH benefits. The value of each asset is considered its market value, minus any debt that has been secured against that asset at a reasonable interest rate.⁹ Schedule 2, section 2(2)(a)-(j) states that the following assets are exempt:

1. one principal residence [which means one home or the home quarter section of a farm in which the AISH beneficiary ordinarily resides];
2. one vehicle and one vehicle adapted to accommodate the handicap of the applicant or client or his or her cohabiting partner or dependent child;
3. a locked-in retirement account; (c.1) a registered disability savings plan under section 146.4 of the Income Tax Act (Canada);
4. clothing and reasonable household items;
5. a prepaid funeral;
6. repealed SA 2018 c 12 s 2;
7. an asset held by a trustee in a bankruptcy proceeding;
8. a non-commutable annuity purchased on or before February 1, 2002;
9. a payment received from the Government of Canada or Alberta exempted by the Minister for the purpose of this clause and any asset to the extent it was purchased with that payment;
10. an asset exempted by a director if it is disposed of within the time specified by the director.

On June 11, 2018, amendments to the AISH Act came into force to allow for more flexibility in relation to money obtained by individuals who receive or wish to qualify for AISH benefits. Section 3.1 of the AISH Act creates the following exclusions to the calculation of assets for AISH benefits:

• the value of assets held in trust for the benefit of the person receiving AISH benefits;
• money received if that money is
  • not considered income under the AISH Regulation
  • within 365 days of being received, invested in an asset that the AISH Regulation establishes for this purpose.

For investing money received, the AISH Regulation designates the following assets as exempt:

• a trust in which the person is a beneficiary;
• assets described in section 2(2)(a) to (e) [included above].¹⁰

British Columbia Benefits

1. Eligibility for Disability Assistance Benefits

In British Columbia, individuals who have received the “Person with Disabilities” (PWD) designation may receive financial support through the Employment and Assistance for Persons with Disabilities Act.¹¹ Under section 2 of the Disabilities Act, the minister may designate someone as a PWD if the person is at least 18 years of age and (in the opinion of a medical or nurse practitioner) has a mental or physical impairment that is likely to last for at least 2 years. In addition, that mental or physical impairment must (in the opinion of a prescribed professional) significantly restrict the person’s ability to perform activities of daily living, either on a continuous basis or periodically for extended amounts of time. An impaired ability to perform everyday living activities may be indicated by the person using an assistive device, receiving significant help from another person, or receiving the assistance of a service animal. There may also be some employment-related obligations under the Disabilities Act, when required by the minister, but those almost certainly will not apply here because the client is incapable of retaining employment.

2. Calculating Income and Assets under Disabilities Act

a. Income

According to section 9 of the Employment and Assistance for Persons with Disabilities Regulation,¹² income is determined in accordance with Schedule B. To be eligible for disability assistance, a person’s income cannot equal or exceed the amount of disability assistance that he or she would be entitled to under Schedule A,¹³ as the amount of disability assistance provided in a calendar month may not exceed the amount determined under Schedule A less the net income determined under Schedule B.¹⁴

Section 1 of Schedule B provides certain exempted sources of income, meaning it will not impact the amount of disability assistance a person may receive. The exemptions that are relevant to this client in the settlement context are: money withdrawn from a registered disabilities savings plan and gifts.¹⁵

In some circumstances, a person may receive money that was not considered earned for the purposes of the Disabilities Act and Regulation, such money is referred to as “unearned income”. Unearned income includes annuities, gifts of annuities, and trusts.¹⁶ Schedule B specifies that when calculating net income, “all unearned income must be included, except the deductions permitted under section 6 and any income exempted under sections 7 and 8.”¹⁷

The unearned income exemptions in section 7 include a payment made from a trust or from a structured settlement annuity payment to an individual with the PWD designation if the payment is exclusively used for “(i) disability-related costs, (ii) the acquisition of a… place of residence, (iii) a registered education savings plan, or (iv) a registered disability savings plan”.¹⁸ A person with a disability, who has a temporary exemption of assets under section 12(1) of the Disabilities Regulation (discussed below), may also expend money from a registered disability savings plan or trust if the money is solely used for disability-related costs.¹⁹ Similarly, if a person with a disability uses a structured settlement annuity payment for disability-related costs to promote independence, that payment is exempt from the calculation of net income.²⁰ To be considered a structured settlement, the settlement must be related to damages caused by a personal injury or death, and the settlement agreement must require the defendant to make periodic payments for a set amount of time or purchase a single premium annuity contract.²¹ The exemptions in section 8 relate to the Minister’s discretion to exempt unearned income that is used for certain educational costs.

b. Assets

Section 10(2) of the Disabilities Regulation establishes that a person will not be eligible for disability assistance if his or her total value of assets exceeds prescribed limits. Importantly for this case, the limit for an individual who has been designated as a PWD is $100,000.²²

The following assets are considered exempt under section 10(1)(a) – (ccc) in the Disabilities Regulation and may be relevant to this case:

• clothing and necessary household equipment;
• one motor vehicle generally used for day to day transportation needs;
• a place of residence;
• money received or to be received from a mortgage on, or an agreement for sale of, the previous place of residence if the money is
  • applied to the amount owning on the current place of residence, or
  • used to pay rent for the current place of residence
• certain federal and provincial tax credits (see 10(1)(f)-(g));
• funds held in, or money withdrawn from, a registered disability savings plan.

In certain circumstances, assets received by a person with the PWD designation, or a person receiving special care (in a private hospital or special care facility, other than a drug or alcohol treatment facility), will be exempted for a certain amount of time. During that time, the assets will not impact the asset limits. This temporary exemption applies when the minister is satisfied that the person intends to create a registered disability savings plan or trust, and the person will contribute some or all of the asset to that registered disability savings plan or trust.²³ The exemption starts on the day that the person receives the asset and ends three months after that date. This date may be extended if the minister is satisfied that the person is reasonably attempting to establish the registered disability savings plan or trust. The exemption date will end if the exemption ceases to exist, or because the person contributes all of the assets to the registered disability savings plan or trust, the person no longer intends to contribute the assets to a registered disability savings plan or trust, or the person contributes some of the assets and does not intend to contributing the remaining portion.²⁴

The Disabilities Regulation also provides an exemption for asset development accounts, as well as assets held in trust for a person with the PWD designation²⁵ A beneficial interest in real or personal property held in, one or more, trusts will be exempt up to an aggregate value of $200,000, or higher if approved by the minister.²⁶ The minister will generally authorize a higher limit for the value of a trust if he or she is satisfied that there are special circumstances that will result in the disabled person experiencing lifetime disability-related costs that exceed $200,000.²⁷ Disability-related costs refers to the cost of providing a person with disabilities with caregiver services or other services that relate to a person’s disability, renovations to the person’s place of residence to accommodate disability-related needs, or maintenance of the place of residence.^{28/sup> Before setting up a trust, the British Columbia government should review and approve it in order to ensure it qualifies for the exemption.}

Methods of Preserving AISH and Disability Assistance

Given these statutory parameters, the most effective ways to preserve AISH or Disability Assistance while receiving a settlement payment are likely to invest the money in a registered disability saving plan, a trust, a vehicle or residence, or arrange a structured settlement.

A registered disability savings plan (RDSP) is considered an exempt asset in both Alberta and British Columbia, and payments from a RDSP are generally not considered income for the purposes of assistance. RDSPs provide versatility for relocating. Once funds have been invested in a RDSP, the money can be accessed from more than one province and it can be transferred to another RDSP. An RDSP also enables the settlement funds to grow over time through this investment. There are, however, some drawbacks to investing settlement funds in RDSPs. First, there is a lifetime contribution limit of $200,000 for a beneficiary under a RDSP. Second, a RDSP is generally a long-term investment. Payments from the RDSP begin when the beneficiary is 60 years old and withdrawing money before that time may cost more due to taxes.

Similar to an RDSP, the payments that a beneficiary receives under a structured settlement are not considered income for the purposes of AISH, and may be exempt “unearned income” under the Disabilities Act and Regulation. Structured settlement payments are not taxable under the Income Tax Act²⁹ of Canada.³⁰ Consequently, these payments do not meet the definition of “income” under the AISH Act, which, in part, refers to income reportable under the Income Tax Act that is not exempted under the AISH Regulation. In British Columbia, structured settlement funds are exempt from the income calculation, so long as the money is spent on disability-related costs for the purpose of supporting independence or on disability-related costs, the acquisition of a place of residence, a registered education savings plan, or a registered disability savings plan.

A trust is also an exempt asset in Alberta and British Columbia, although in British Columbia exempt trusts are generally limited to $200,000. Trusts may be more flexible than an RDSP, as the amount invested and the payment schedule and size can be determined when the trust is established. In British Columbia, payments from a trust are not considered income, so long as it is used to pay for disability-related costs to promote independence, or disability-related costs, the acquisition of a place of residence, a registered education savings plan, or a registered disability savings plan. In Alberta, however, income from a trust can significantly limit the amount of a living allowance provided under AISH. Although the value of the trust is exempt, payments from a trust are only exempted under AISH if it is below $200 per month. Beyond that amount, 75% of the payment from a trust is considered income and will reduce the monthly living allowance accordingly.³¹

Finally, a personal injury settlement payment may be used to purchase a personal residence or vehicle, both of which are exempt assets in Alberta and British Columbia. A fully accessible house and vehicle may help the person live a comfortable life, but it also ties the settlements funds into property that cannot be easily converted to pay for the necessaries of daily living.

Recommendation for the Client

Given the client’s circumstances, he will most likely want to invest settlement money in a way that preserves his AISH benefits to the fullest extent, while still being versatile enough to support his day-to-day needs and allow him to potentially move to British Columbia. We recommend that the client negotiate with the defendant’s insurer to place as much money as possible into a structured settlement. Any funds in excess of the amount that is structured can be put into savings (up to a maximum of $100,000), a trust, an RDSP, or a locked-in retirement account, as best suited to the client’s needs. Alternatively, part of those excess funds could be used to purchase an accessible house and vehicle as a means of providing stable and appropriate housing and transportation. The client has one year from the date he receives the settlement money to transfer the funds into one of these exempt or partially exempt assets. After that year, his AISH eligibility will be impacted by these funds. If the client moves to British Columbia, he could sell the residence or vehicle. He then has at least a three-month period to invest it into an exempt asset in British Columbia.

Article was written by Alena Storton, an Articling Student for Kubitz and Company, a firm of Personal Injury Lawyers in Calgary, Alberta.

This article is not intended to give legal advice, but only general information. Legal advice specific to your situation should be sought from a lawyer experienced in the field of personal injury law in Alberta or British Columbia, as the case may be.

¹ SA 2006, c A-45.1 [AISH Act].
² SBC 2002, c 41 [Disabilities Act].
³ AISH Act, supra note 1, s 3(1)-(3).
⁴ Ibid, s 3(4).
⁵ Alta Reg 91/2007 [AISH Regulation].
⁶ SA 2002, c A-4.5.
⁷ Supra note 5, Schedule 1, s 1(1)(a).
⁸ Ibid, Schedule 1, s (1)(d).
⁹ Ibid, Schedule 2, s 1(1)-(2).
¹⁰ Ibid, s 3.
¹¹ Supra note 2.
¹² BC Reg 81/2016 [Disabilities Regulation].
¹³ Ibid, s 9(2).
¹⁴ Ibid, s 24.
¹⁵ Ibid, Schedule B, s 1(xxxiv), (xlix).
¹⁶ Ibid, s 1(1).
¹⁷ Ibid, Schedule B, s 1(d).
¹⁸ Ibid, Schedule B, s 7(1)(d)-(d.1).
¹⁹ Ibid, Schedule B, s 7(1)(d.2).
²⁰ Ibid, Schedule B, s 7(1)(d.3)(ii).
²¹ Ibid, Schedule B, s 7(2).
²² Ibid, s 10(2)(a).
²³ Ibid, s 12.1.
²⁴ Ibid.
²⁵ Ibid, s 10(1)(y).
²⁶ Ibid, s 12(2).
²⁷ Ibid, s 12(3).
²⁸ Please note, these aspects of “disability-related costs” are the most likely to be relevant to this case. For a full definition, please see Disabilities Regulation section 12(1).
²⁹ RSC 1985, c 1 (5th Supp).
³⁰ Canada Revenue Agency, Interpretation Bulletin, IT-365R2, “Damages, Settlements and Similar Receipts” (8 May 1987), s 5.
³¹ Government of Alberta, Your guide to AISH: the Assured Income for the Severely Handicapped Program (2018), online: Government of Alberta https://open.alberta.ca/dataset/928e010e-6b26-46af-a8e2-8c938e5f1b10/resource/12f5fa8a-8980-43a5-9907-713d7bfa2140/download/your-guide-to-aish-july2018.pdf at 15.

Liability For a Car Hitting A Jogger Crossing In A Crosswalk in Calgary and Suffering A Brain Injury

Article edited by Walter W. Kubitz, Q.C., a personal injury lawyer in Calgary, Alberta.

Mr. Jogger was jogging a route that he had covered over 1,000 times before over the last 20 years. He was jogging running on the sidewalk. The weather was cool with no snow nor rain and the streets were dry. The area was well lit with streetlights. Mr. Jogger was wearing a red jacket with light pants, gloves, and running shoes. This clothing did not have reflective tape on it. He did not have a light on his head or any other part of his body. He was not listening to an iPod or other musical device. He was wearing his glasses, and they were clear. He did not have a dog with him.
At about three quarters of the way through his run he came to an intersection with a marked crosswalk. Because of his brain injury, he has no memory of events, but believes that he slowed as he came to the corner of the intersection. He cannot recall whether he stopped. He was familiar with the sightlines for traffic as cars came through the intersection. He looked to his left to see if there was any traffic coming and didn’t see any traffic. He looked to his right and saw a set of approaching headlights farther up the road to his right. There was a playground zone to the right of the intersection, so a lower speed limit was mandated for this car. The defendant’s vehicle would have been driving through this playground zone. Mr. Jogger stepped out into the marked crosswalk. He does not remember whether he jogged across the crosswalk, nor does he remember whether he sprinted or sped up as he tried to cross the road. Normally he would jog through the intersection. He thought he had more than enough time to cross the intersection with how far back the headlights of the car were on the road to his right.
The defence will be taking the position that Mr. Jogger was contributorily negligent in that he:
-Was not wearing reflective tape on his clothing, nor a light on his head or on any other part of his body;
-Stepped out too soon in front of the defendant’s car, without having time to safely cross the intersection– failure to keep a proper lookout; and
-Sped up or sprinted across the crosswalk– he was sprinting through the intersection to get past traffic.

CONCLUSION:

The maximum exposure to contributory negligence of Mr. Jogger is likely 25% to 33% This is based on cases in which the plaintiff was held to be contributorily negligent because they were wearing dark clothing and walked quickly across the crosswalk. Here it should be noted that Mr. Jogger was not really wearing dark clothing – his jacket was red and he was wearing light pants. The defence critique will be that his clothing did not have reflective tape on it, nor was he wearing a headlamp or a light attached to his body. We have not found case law to suggest that reflective taping is a requirement without which one will be held to be contributorily negligent, other than in cases of the plaintiff riding a bicycle without a headlight, and they also did not have reflective clothing, or where they have been dressed all in black or dark clothing and did not have reflective clothing. We have not found a case where a plaintiff was held to be contributorily negligent because they did not have a headlamp or a light attached to their body.

Further, there is no evidence from Mr. Jogger as to the speed at which he crossed in the marked crosswalk. He doesn’t remember because of his brain injury. His usual habit was to jog. In the cases in which contributory negligence is attributed to the plaintiff for speeding through the intersection, the plaintiff has usually been in a rush, for example to catch a bus, and the implicit suggestion is that they were distracted and not paying attention to the traffic because they were rushing – thus, failure to keep a proper lookout. This does not seem to be the case on our facts.

Thus the maximum likely exposure of Mr. Jogger for contributory negligence is 25%/33%, and, depending on how the evidence plays out, no contributory negligence may in fact be found.
(This matter resolved at mediation with 20% contributory negligence on Mr. Jogger).

DISCUSSION:

Failure to wear reflective clothing or a headlamp/light attached to another part of the body

In O’Connor v. James, 2009 BCSC 1119 the British Columbia Court of Appeal reversed the trial judge’s finding of 90% contributory negligence on the part of the plaintiff who was dressed entirely in black, without reflective clothing, and was walking in a roadway when struck by the vehicle driven by the defendant. The Court of Appeal varied this finding of contributory negligence to 50%. Here, on our facts, Mr. Jogger was wearing a red jacket and light pants, and was crossing at a marked crosswalk. This case is therefore highly distinguishable.

In Matkin v. Hogg, 2015 BCSC 560 the plaintiff was riding a bicycle at night without a helmet or an illuminated headlight on the bicycle. The court also mentions that it would have “been prudent” for her to wear reflective clothing. She was wearing light coloured clothing, none of which was reflective. The accident occurred at dusk. She had consumed alcohol and marijuana. The defendant was found to be the more plausible witness. The plaintiff was found to be 65% contributorily negligent. The major grievance of the plaintiff seems to have been the failure to have an illuminated headlight on her bicycle, and she also failed to obey a stop sign, and slow down. This case thus seems distinguishable.

In Quade v. Schwartz, 2009 BCCA 73 the plaintiff was riding his bicycle through an intersection when he collided with the car driven by the defendant, which turned left in front of him. The bicycle did not have a headlight or reflectors and all of the plaintiff’s clothing was black. The trial judge found the plaintiff to be 75% at fault. He stated: “Given that [the plaintiff] had no headlights or reflectors on his bicycle, Mr. Quaid was also negligent in wearing dark clothing instead of bright and reflective clothing”. The British Columbia Court of Appeal varied this to hold the plaintiff and defendant equally at fault, given the trial judge’s finding that the defendant should have seen the plaintiff in the well-lit intersection. Again, in this case, the plaintiff was without a headlight on his bicycle, and was dressed in dark clothing – thus this is distinguishable on the facts.

In Grela v. Sydor, 2001 ABQB 980, 302 AR 289, the 46-year-old deaf deceased was walking on the roadway in the early morning hours in winter wearing dark clothing, with his back to the oncoming traffic. He was held to be one third contributorily negligent. There was no mention of reflective clothing in this case. Mr. Jogger was dressed in a red jacket in light pants, was walking on the sidewalk, and crossing at a marked crosswalk. Thus this case is distinguishable.

Failure to keep a proper lookout/sprinting across the intersection

In Yurchi v. Johnston, 2006 ABQB 25, 394 AR 158, the plaintiff was crossing the street at an unmarked corner to catch a bus. He was wearing all dark clothing and had a hood pulled over his head so his face was difficult to see. “His clothing camouflaged him in the night darkness making him extremely difficult to see.” The collision occurred at 5 PM during heavy rush hour traffic in winter–like weather. The plaintiff was walking quickly in order to catch the bus. He walked into the defendant’s vehicle by stepping off the median when the defendant was only seconds away from entering the intersection. “… It was reckless for him not to hold up at the median.” The inference is that he was not paying proper attention to his environment because he was rushing to catch the bus. There was a well–lit intersection with marked crosswalks where he could have safely crossed the street one block away. The plaintiff was held to be one third responsible. On our facts, Mr. Jogger was wearing a red jacket and light pants, was not rushing, and crossed at a marked crosswalk. This case is therefore distinguishable.

In Cornell v. Arrell (1988), 3 YR 154, a decision of the Yukon Supreme Court, the plaintiff pedestrian was crossing at an intersection when she was hit by the defendant’s motorcycle. There was no marked crosswalk at the place where the plaintiff crossed. It was a clear sunny afternoon in August. The plaintiff was in a hurry as she had a lot of things to get done and was looking forward to a long weekend. She was, in her own words, proceeding at a very hurried pace. The defendant was convicted of dangerous driving. The plaintiff and defendant were held equally liable. Here the plaintiff admitted that she was rushing and thus inferentially not paying proper attention. On our facts Mr. Jogger answered in questioning that he had to slow down when he came to the marked crosswalk, and possibly stopped – thus he was not rushing.

In McMullen v. Lyon (1984), 66 AR 14, the plaintiff pedestrian was crossing at a crosswalk with her head down, walking quickly and not looking at oncoming traffic. She was held to be 25% contributorily negligent by the Alberta Court of Appeal. The accident took place at 8:25 AM in February, and the streets were icy. The trial judge had found no negligence on the part of the plaintiff, but this was overturned on appeal. The trial judge was primarily overturned on his finding that a crosswalk was “sacred territory”.

A finding of no contributory negligence

In Schuttler v. Anderson, 1999 ABQB 321, 243 AR 109, the defendant was found to be fully liable. The defendant’s motor vehicle collided with the plaintiff in a marked crosswalk. The accident took place at 6:45 PM in December. The plaintiff was wearing a light coloured ski jacket (light grey) and looked both ways before entering the crosswalk. There was a crosswalk sign. The plaintiff proceeded at a slow pace. When he was in the crosswalk he was blinded by the lights of the defendant and froze. It was held that the plaintiff did all that he could reasonably be expected to do once aware of the risk. The defendant was convicted of failing to yield the right-of-way to a pedestrian within a crosswalk. Similar to this case, Mr. Jogger was wearing light coloured clothing, looked both ways before crossing the marked crosswalk, and likely jogged across the crosswalk, in accordance with his usual habit. This case thus supports the argument that there should be no finding of contributory negligence of Mr. Jogger.

In Gulati v. Chan, 2015 BCSC 431, the plaintiff pedestrian was struck by a motor vehicle while walking at a marked pedestrian crosswalk. She looked to her right and left before entering the crosswalk and did not see any traffic coming in her direction. The defendant argued that the plaintiff should be held between 10 to 20% at fault for the accident because she failed to avoid his on–coming vehicle which, he stated, was a visible and foreseeable risk to her. The vehicle she saw approaching did not stop at the stop sign. The defendant was issued an uncontested violation ticket alleging that he drove without due care and attention and failed to yield to the pedestrian. The court held that it was not unreasonable for the plaintiff to believe that the defendant’s vehicle would stop at the stop sign. The defendant was held to be 100% liable for the accident. Like this plaintiff, Mr. Jogger crossed at a marked crosswalk and looked in both directions before entering the crosswalk.

Article edited by Walter W. Kubitz Q.C., a personal injury lawyer in Calgary, Alberta.