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Career Ending Injuries From A Fall – A Legal Claim

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

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Permanent aggravation of pre-existing asymptomatic neck and low back degenerative disc disease requiring three past surgeries plus future expected surgeries and ending business career.

QUANTUM ASSESSMENT

______________________________________________________________________________

QUESTION PRESENTED:

Ms. Client was injured in a 2013 fall inside a store (the “Accident”). Since the Accident, she has been unable to return to work in her consulting business because of disabling pain and difficulty travelling.

 

Ms. Client stated that after the Accident, her elbow hurt but she left the Store feeling more stunned than anything. When she got home, she took an Aspirin and went to bed. The Accident took place on a Friday evening. Ms. Client states that on the Saturday morning the day after, she woke up and was stiff and sore but tried to go about her normal activities. She got progressively stiffer as the weekend went on. On the Monday after the Accident, Ms. Client woke up in absolute agony, with pain that shot from the bottom of her feet right through to her head and down the side of her legs when she got out of bed. She stated that the pain was extreme and radiating from the bottom of both legs, up the sides of her legs, radiating right through up her buttocks and spasming up her back. She was numb on the right side all the way down her arm and shoulder, and her baby fingers were numb. It took her two hours to get dressed, given her severe right leg spasms and pain.

 

Ms. Client attended at a Chiropractic office on the Monday after the Accident; she had never been to the clinic before but was in tremendous pain. She was complaining of pain to her right shoulder and right hip area.

 

Ms. Client underwent an x-ray of her spine. The x-rays showed abnormal findings that indicated multilevel degenerative disc disease and facet disease at cervical spinal levels C4-T1. Lumbar spine disc space narrowing was noted at L4-S1 with multilevel osteophyte or bone spur formation, indicating a degenerative facet and disc process. The cervical spine impression was of cervical spondylosis.

 

Ms. Client went to her family doctor, and he ordered another x-ray of her spine. This x-ray showed a decompression of her spine and critical stenosis at L4-5 due to the combination of ligamentum flavum hypertrophy, facet hypertrophy, and bilateral synovial cysts. EMG nerve conduction velocity of her upper extremities revealed cervical radiculopathy. Essentially, she had developed foot drop in her left foot. An MRI showed severe central canal stenosis predominantly due to facet arthropathy and facet synovial cyst at the L4-5 level with grade I anterolisthesis and a pseudo bulge that contributed to severe central canal and bilateral left greater than right L4-5 lateral recess stenosis. The MRI also showed a small posterior annular tear at L2-3 with a posterior broad-based disc protrusion not contributing to significant central stenosis and spondylotic disc disease asymmetric to the left at L5-S1 causing a mild amount left L5-S1 foraminal stenosis without central canal compromise. It was determined that Ms. Client required an L4-5 decompression as soon as possible, and she underwent surgery in 2013. The post-operative diagnosis was lumbar spondylosis and degenerative disc disease, severe stenosis at L4-L5 due to ligamentum flavum hypertrophy, facet hypertrophy, and a large epidural cystic mass. After the surgery, Ms. Client was doing somewhat better, but she still had muscle spasms and foot drop that impaired her gait, balance, and community ambulation; she went to physiotherapy.

 

Ten weeks after her surgery Ms. Client continued to complain of neck pain, pins and needles, and paresthesia in her upper extremities. At a visit to her neurologist, it was noted that Ms. Client had a left foot drop and an MRI showed a right C6 radiculopathy and a left L5 radiculopathy. Ms. Client had significant cervical and lumbar spine disease with associated nerve root impingement. Importantly, all of these issues were noted as being asymptomatic prior to her Accident. Later imaging showed small stable anterolisthesis at L4-5 and retrolisthesis at L2-3. Ms. Client underwent stem cell therapy at her own cost.

 

Ms. Client continued to suffer pain and setbacks in her recovery. Her psychologist reported that Ms. Client was suffering from a major depressive episode that was severe. She had anxiety with acute stress reaction and panic disorder. Ms. Client was deteriorating and was tearful with low energy, poor concentration, anxiety, poor sleep, poor appetite, panic attacks, hyperventilation, flushing, and dizziness; she was put on anti-depressants. Around this time, her neurologist reported that Ms. Client still had numbness on the last two digits of her right hand. An MRI of her cervical and lumbar spine showed moderate to severe C4-5, moderate C5-6 and C6-7, and mild C3-4 and C7-T1 spinal canal stenoses present due to chronic degenerative change; advanced foraminal narrowing identified due to facet arthropathy; and uncovertebral joint osteophytes extending from C4-C7 which is most conspicuous on the left at C4-5. The impression of her lumbar spine was degenerative-type grade I anterolisthesis at L4-5 and findings consistent for a bilateral L4-5 facet joint diastasis and for right-sided L3-4 facet joint diastasis; bilateral hemilaminotomies identified at L4-5 and extensive reactive facet arthropathy present at L4-5 with interspinous edematous change at L4-5 and to a lesser degree L3-4; intraspinal synovial cysts identified at L4-5 with the larger cyst noted on the right contributing to subarticular zone stenosis; and inflammatory annular fissuring at L1-2, L2-3, L3-4, L4-5, and L5-S1.

 

A bone density report found that Ms. Client had osteopenia and osteoarthritis. She had an unsteady gait and was a high fall risk, and she was using a cane at this time. Ms. Client had a slightly lower bone density, which may have been a result of significantly decreased mobility as a result of her injury.

 

At a follow up visit to her neurologist Ms. Client was still symptomatic with neck pain. She was depressed and had lost weight. Ms. Client continued to have low back pain with radiation of the pain to the lateral aspect of the left thigh; numbness and weakness of her left foot; spasm or catch in her left leg; and persistent left foot drop. A surgical consultation diagnosed her with cervical spinal stenosis with mild radiculopathy and lumbar spinal stenosis suggestive of unstable dynamic degenerative spondylolisthesis. An x-ray of her lumbar spine showed interval worsening of anteriolisthesis of L4. A surgical consultation follow-up recommended a posterior spinal instrumentation at L4-5; posterior spinal fusion at L4-5; transfacet decompression at left L4-5; L4 and L5 laminectomy; and prosthetic cage insertion at L4-L5. This second surgery was performed in 2015. A post-operative report found that there was scar tissue over Ms. Client’s old laminectomy sites bilaterally and considerable scarring over the L4-L5 facet joints. Screws had to be inserted into L4 and L5, and there was considerable instability when doing the L4-L5 transfacet decompression. The post-operative diagnosis was lumbago; acquired spondylolisthesis; postlaminectomy syndrome; and spinal stenosis.

 

This second surgery was successful for Ms. Client for some time. Her neurologist noted that the foot drop was resolved, and Ms. Client’s pain had lessened; however, she still had neck pain and intermittent numbness of her right fifth digit and medial aspect of her right hand. Ms. Client felt better for a time, but an MRI of her lumbar spine performed in 2016 showed borderline multifactorial central canal and subarticular recess stenosis without significant interval change at L2-3; moderate to severe stenosis of the central spinal canal and subarticular recesses left greater than right associated with hypertrophic facet arthropathy and left paracentral disc protrusion at L3-4; impingement upon the thecal sac in the region of the traversing L4 nerve rootlets; and reactive facet arthritis/synovitis at the L3-L4 level bilaterally.

 

In 2016, Ms. Client underwent a third surgery for disc protrusion pressing on L4 nerve root. The procedure performed as a laminectomy of L3; re-exploration of L4; and excision of a facet cyst.

 

In spite of all her treatments and surgeries, Ms. Client continued to suffer a great deal of pain. In 2016, Ms. Client complained of severe sciatica on the left and right legs; pain and numbness on her right arm resulting in spasms and numbness in her right hand; and stiffness and rotation issues with her neck. Her sciatica pain and back spasm caused her left leg to collapse as she was walking, and she rotated her left foot and broke some bones. She had pain related to L3-L4 and L2-L3. At this point, Ms. Client was undergoing shock wave therapy and massage therapy, and her working hours were greatly reduced. An MRI of her spine performed in 2017 showed mild to moderate chronic degenerative subarticular zone stenoses most conspicuous at L3-4; posterior approach post-surgical changes with large laminectomy defect at L4-5 where bilateral transpedicular screws and vertical uniting rod connectors were present associated with a disc spacer; mild to moderate chronic degenerative neural foraminal narrowing most conspicuous at L3-4; and annular fissuring seen at L1-2, L2-3, and L5-S1. Imaging of Ms. Client’s lumbar spine on in 2017 showed disc bulging at L2-L3, L3-L4, and L5-S1.

 

Ms. Client participated in an independent medical exam in 2018. At this time, she indicated she was having symptoms in her low back, left leg, right leg, mid back, right shoulder, neck, and arm, along with numbness in the tips of her fingers and toes. Her biggest problem was her low back/left leg sciatica with spasms in her right leg, followed by her mid back, then her right sided neck. The spinal surgeon diagnosed her injuries from the Accident as right elbow sprain/strain; cervical spine sprain/strain with probable right sensory radiculopathy; thoracic sprain/strain; lumbar sprain/strain; bilateral L4/L5 neurological symptoms (motor and sensory radiculopathy) secondary to the aggravation of L4/L5 degenerative spondylolisthesis. His current diagnosis was that Ms. Client continued to suffer from myofascial neck pain with a trigger point in the right trapezius muscle; myofascial thoracic or lumbar spine pain; mechanical thoracic and lumbar pain; adjacent segment degeneration at L3/L4; and residual neurological symptoms. It was the spinae surgeon’s opinion that even though Ms. Client had degenerative changes that pre-existed the injury, she was asymptomatic, and the Accident resulted in the aggravation of the pre-existing underlying condition causing an asymptomatic condition to become clinically symptomatic. It was highly probable that she would require addition surgery and extension of the fusion very likely up to the L2 level.

 

In terms of Ms. Client’s psychiatric well-being, she continued to have periods of highs and lows. Her psychologist advised her to cease working, as she was working while on pain medication and occasionally “fuzzy”. Ms. Client was advised to retire to reduce the physical and mental demands and associated liability risks on her as a professional. A psychiatric assessment performed on Ms. Client in 2018 found that her pre-Accident mood disorder was a severe and recurrent condition; it was likely she was well and uninjured from a psychiatric perspective at the time of the assessment. There were several stressors unrelated to the Accident at the time she quit working (financial, professional, and marital) and it was more likely than not these factors that were the cause of her mental state. Any mental issues suffered by Ms. Client were likely caused by pain, which can exacerbate or aggravate a person’s mental state.

 

This psychiatric assessment was corroborated by a later psychiatric independent medical examination conducted by a psychiatrist in 2018. The psychiatrist found that Ms. Client presented with no current psychiatric diagnosis. In his opinion, the major depressive episode suffered by Ms. Client in late 2013 coincided with and was likely precipitated by the breakdown of her marriage: it is unlikely that any psychiatric injury was directly caused by her Accident. However, her depression likely contributed to the breakdown of her marriage and dealing with chronic pain may have made her depression worse, but according to the psychiatrist, there would be no way to reliably demonstrate that.

 

Ms. Client continued to suffer pain into 2019. An orthopedic surgery assessment independent medical examination performed in 2019 found that Ms. Client had significant pre-existing spinal arthritis without any symptoms, and the Accident caused an aggravation of symptoms. Ms. Client’s whole person impairment attributable to her Accident was 10 percent. She began to suffer left knee pain and was receiving cortisone shot injections to manage this pain. Ms. Client was still having severe pain in her lower back and lower extremities. An MRI done in 2019 showed moderate central stenosis from C3 to C7; starting at C3-C4 there was mild central stenosis with severe left-sided foraminal stenosis at C3-C4; at C4-C5 there was moderate to severe central stenosis and cord compression with bilateral foraminal stenosis left worse than right; at C5-6 there was severe central stenosis with severe bilateral foraminal stenosis; and at C6-C7 there was moderate central stenosis with mild bilateral foraminal stenosis. An MRI of her lumbar spine showed canals patent around L4-L5 after the previous laminectomy and fusion, and the screws were not in good position: Ms. Client would require surgical correction in both her cervical and lumbar spine. Ms. Client began to receive epidural injections in the cervical and lumbar paraspinal muscles in 2019.

 

Ms. Client continues to suffer pain. In 2019 she reported a spontaneous onset of acute neck pain and bilateral arm pain, as well as continuing pain in her neck, shoulder, arm, mid and low back, and legs including sciatica. She had a flare-up of cervical degeneration with neck pain and radicular symptoms and is a likely candidate for surgery for the degenerative changes in her cervical spine. A virtual follow up independent medical examination with the spine surgeon performed in 2020 found Ms. Client continuing to be troubled by her neck and arm symptoms; she felt her symptoms had progressively worsened.

In total, the Accident caused Ms. Client to sustain the following injuries:

  • Severe injury to the back of her head;
  • Intermittent vertigo;
  • Depression, anxiety, panic attacks, and stress;
  • Impairment of memory and concentration;
  • Severe injury to her neck resulting in pain, spasms, numbness, and tingling down her right arm to her fingers;
  • Right arm weakness and injury to her right shoulder, right elbow, and right arm;
  • Severe injury to her low back requiring multiple surgeries, with the prospect of future surgery likely;
  • Numbness and tingling with burning sensation down both legs;
  • Weakness in both legs along with loss of feeling in left leg and left foot;
  • Development of bilateral partial foot drop, greater on the left;
  • Swollen left ankle and impaired gait and balance with limping;
  • Sleep disturbance and fatigue;
  • Bladder incontinence; and
  • Continuous pain.

Ms. Client reported that she was in good health prior to the Accident, but there are some medical issues in her history. She had been seeing her chiropractor for sporadic care since 2004 for neck symptoms and occasional low back care. The low back issues were a result of falls. However, the chiropractor stated that Ms. Client was in a relatively healthy state, and she was physically fit. Ms. Client had some treatment for menopause; she has had multiple cosmetic surgeries. A massage intake form from 2012 lists tension in her hips and gluteal area to her right shoulder. After the Accident, x-rays showed a host of degenerative changes that predated the Accident throughout her spine, as described above. However, all of Ms. Client’s back and neck issues were largely asymptomatic at the time of the Accident.

Ms. Client had a significant pre-existing condition related to her mental health: she had several major depressive episodes. In 2006, Ms. Client’s psychiatrist reported that she was suffering a major depressive episode with generalized anxiety disorder, adjustment disorder, and obsessive traits; she was reactive, irritable, and had difficulty concentrating and emotional lability. In 2007, it was reported that Ms. Client’s toxic marriage led to a major depressive episode and anxiety. In both of these depressions, Ms. Client had difficulty working. However, her psychiatrist attributed Ms. Client’s mental issues to marital problems including a marital breakdown and financial and professional stress. By late 2007, Ms. Client’s major depressive episode was resolving, and her outlook and general mood state were described as good. However, her psychologist stated that Ms. Client had a biological predisposition towards depression and anxiety. Ms. Client was prescribed anti-depressant medication for all of these incidents.

 

CONCLUSION:

It may prove difficult to predict Ms. Client’s general damage award with accuracy. Much will depend on how the court views her pre-existing degenerative spine problems. However, the majority of the evidence indicates that the medical professionals feel that Ms. Client’s back problems were asymptomatic prior to the Accident. She arguably should be considered to be a thin skull plaintiff, as opposed to a crumbling skull plaintiff. In this regard, there are several cases that are analogous to Ms. Client’s situation.

The most analogous Alberta case is Do (Next Friend of) v. Sheffer, 2010 ABQB 86, additional reasons in 2010 ABQB 422. In this case, the male plaintiff was in a motor vehicle accident that resulted in multiple soft tissue injuries that led to lasting pain in his neck, shoulder, and lower back. While the plaintiff had some pre-existing injuries, these were mostly asymptomatic at the time of trial, rendering him a thin skull and not a crumbling skull plaintiff. The plaintiff’s 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 Do plaintiff continued to have pain in his lower back that was caused by the accident, and he was awarded $96,135 in general damages (inflation adjusted).

Another very similar Alberta case is Sorochan v. Bouchier, 2014 ABQB 37, varied on other grounds in 2015 ABCA 212. The plaintiff in this case was in a motor vehicle accident and suffered from ongoing neck pain and lower back pain. In terms of mitigation, the Sorochan plaintiff underwent numerous physiotherapy sessions and cortisone spine injections; she was awaiting surgery in the form of an L3/5 instrumentation and decompression with interbody cages. The plaintiff denied any pre-existing conditions, but a CT scan revealed pre-existing bulging lumbar discs. Belzil J awarded $78,975 in general damages (inflation adjusted).

A very analogous case to Ms. Client’s situation is Graham v. Rogers, 2000 BCSC 605, varied on other grounds in 2001 BCCA 432, and leave to appeal refused in 2002 CarswellBC 76. The 54-year old male plaintiff was injured in a motor vehicle accident. It was revealed that the plaintiff had a severe cervical spondylosis or degenerative condition and a large cervical disc herniation. He underwent surgery to remove the protruded disc fragment six months later. Since then, his condition improved. Lowry J held that the accident rendered the plaintiff’s pre-existing cervical spondylosis symptomatic, and this was the cause of his pain. As a consequence of the accident, the plaintiff was permanently injured, and it was an injury that deprived him of his ability to pursue the only employment he had ever known. Lowry J awarded the plaintiff $103,575 in general damages (inflation adjusted).

Another very analogous case is Beardwood v. Sheppard, 2016 BCSC 100. The plaintiff was injured in a motor vehicle accident. The plaintiff had a moderate pre-existing degenerative condition in his neck at C3-4, C5-6, and C6-7, including central canal stenosis at C3-4 and C6-7. He also had abnormal disc herniation at C3-4 and C6-7 that predated the accident. In the accident, he complained of pain to his neck, right shoulder, back, shooting pains down his arms, numbness in his fingers, and weak and clumsy hands. The plaintiff underwent a neck surgery which involved the removal of a disc, the fusion of a vertebra, and the insertion of a plate. The surgery did not decrease the plaintiff’s pain. He had surgery approximately one year later on his right shoulder. About six months after this, the plaintiff had neck surgery for a second time: a second disc was removed, along with the plate that was inserted in the first surgery, and a second vertebra was fused, and a new plate was inserted to immobilize the two fused vertebrae. The plaintiff still had significant neck pain and shooting pains down both arms. Weatherill J awarded the plaintiff $200,000 in general damages, but reduced this amount by 40 percent to reflect the measurable risk that his pre-existing degenerative spinal condition would likely have affected him detrimentally in the future. The general damage award in this case was $123,120 (inflation adjusted).

Other analogous cases set the damage award for plaintiffs with similar injuries to Ms. Client’s, inflation adjusted, from a high of $181,050 to a low of $73,710, with an overall average amount of general damages awarded of $112,200. The average amount of general damages awarded in similar Alberta cases was $115,865, inflation adjusted. Therefore, it seems likely that Ms. Client’s general damage award will range around $110,00 – $120,000.

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

 

 

 

DISCUSSION:

Al-Hendawi v. Sidhu, 2006 BCSC 522, additional reasons in 2008 BCSC 35                                                                                                                                                  $150,000         $181,050

The plaintiff in this case was rear-ended in a motor vehicle accident. He was an obstetrician from Jordan and was in the process of moving to Canada shortly before the accident. Immediately after the accident, the plaintiff claimed he had pain in his lower back and in his left knee; he went to hospital and was discharged with a diagnosis of soft tissue injury to left knee and back. Prior to the accident, the plaintiff had been healthy and was a physically active man. Approximately a week after the accident, the pain in his knee subsided but the pain in his lower back worsened. The plaintiff’s family doctor noted muscle spasm on his left side in the lumbar spine area, restriction on the left side in lateral flexion, and pain with forward flexion; he was diagnosed with a left lumbar sprain. The pain continued and sometimes radiated into his buttocks. A CT scan of his lumbar spine later showed a left lumbar 4-5 posterolateral disc herniation, more on the left than on the right. The pain persisted and caused him trouble sleeping. An MRI later showed signs of degeneration and dehydration of the L4-L5 and L5-S1 discs, straightening of the lumbar spine due to muscle spasm, moderate left paracentral disc protrusion at the L5-S1 level, abutting the thecal sac but not causing significant thecal sac or nerve root compression. There were also degenerative changes involving the cervical spine manifested by disc dehydration, degenerative bulging and posterior osteophytes, none of which were causing spinal cord or nerve root compression. The plaintiff’s condition worsened, and the pain was shooting down his leg to his left foot. He began to experience foot drop; surgery was performed to alleviate the pressure on the nerve. After the surgery, the pain radiating into his leg stopped completely and the only pain he experienced was in his lower back at the site of the surgery. This pain was a constant burning in the whole of his lower back that became intolerable. The plaintiff got another MRI that showed discitis, a condition of inflammation likely due to bacterial infection. Due to his ongoing pain, the plaintiff became ineligible to practice medicine in Canada, and he became depressed. Baker J held that in the accident the plaintiff suffered pain radiating into his left buttock and down the left leg; nerve impingement on the L5 nerve that caused a condition of near paralysis of his left foot that necessitated surgery; the infection in the disc space caused by the surgery; and depression. The plaintiff would continue to have chronic lower back pain into the future, and he was awarded $150,000 in general damages.

Although Ms. Client is not likely to receive a general damage award this high, there are parallels between her case and this one. Both plaintiffs suffered a foot drop that required surgery to correct, and both were left with near constant back pain and depression issues after their accidents. However, the Al-Hendawi plaintiff was healthy prior to his accident, whereas Ms. Client’s back issues pre-dated her Accident (although they were asymptomatic). The general damage award in this case may provide a good benchmark as to the upper range of damages that she can expect to be awarded.

 

Robinson v. Fiesta Hotel Group Resorts, 2008 ABQB 311, additional reasons at 2008 ABQB 457                                                                                                              $150,000         $173,250

In this case, the 51-year old male plaintiff was injured during his stay at the defendants’ hotel in the Dominican Republic, when he fell while feeding some fish. Immediately after the accident, the plaintiff had difficulty walking and was experiencing increasing pain, along with suffering some paralysis; he was transported by air ambulance back to Canada. The plaintiff was diagnosed as having crushed C6 and C7 vertebrae. He was admitted to hospital for approximately one and a half months, and then was a patient at a rehabilitation hospital for approximately three months. He continues to suffer pain and a partial paralysis of his lower extremities. The plaintiff had a discectomy surgery with cord decompression and strut graft with allograft placement at C6-7. He used crutches for a lengthy amount of time and then developed an unusual gait that would allow him to walk. The plaintiff suffered numbness from his mid-sternum down; reduced sensation in his upper limbs; general weakness; impaired fine and gross motor dexterity; impaired balance; and limited activity tolerance. Based on the plaintiff’s partial quadriplegia and the apparent permanence of the damage flowing from this, Yamauchi J awarded $150,000 in general damages.

While Ms. Client did not have any quadriplegia, there are similarities between her case and this plaintiff. The Robinson plaintiff suffered a back injury that required surgery; he had residual damage flowing from his accident. Ms. Client has had continuous pain and difficulty following her Accident, and she too required the use of walking aids for mobility. While there are connotations associated with the phrase “quadriplegia,” Ms. Client’s lasting pain and medical problems, not to mention her multiple surgeries, may convince the court that her general damage award should approximate what was awarded in this case.

 

Latta v. Ontario, 2004 CarswellOnt 3770, affirmed by 2005 CarswellOnt 6042                                                                                                                                           $120,000         $151,080

The plaintiff in this case brought an action pursuant to occupiers’ liability against the defendant Province of Ontario. The plaintiff was a 35-year old male who fell down several stairs leading from a landing outside the door of a school building at a reformatory where he was an inmate. Prior to the fall, he rushed out of the building to see if the way was clear and tripped over a plastic bucket that the Province used to hold sand and silt. The bucket had been improperly placed. The plaintiff alleged he suffered a ruptured disc, described as a “huge central and right sided disc herniation occupying the majority of the spinal canal at L3-L4 level with compression of the subarachnoid sac at the L5 level. The fracture was unstable and in the middle of his spine; there were risks that included damage to the nerve controlling the bladder and the bowel. He eventually required surgery. Kennedy J held that the plaintiff was not credible for multiple reasons; however, the defendant was in breach of its duty under occupiers’ liability legislation. The plaintiff was healthy and had no pre-existing medical problems, but since his accident, he continued to suffer from chronic pain of a relatively severe nature. The pain was described as a constant deep aching in his bones, starting in the low back, radiating to the hips, down the posterior thigh and into his heels. Kennedy J assessed the plaintiff’s general damages at $120,000.

This case is similar to Ms. Client’s in that it involved a back injury that required surgery, and the injury was the result of a breach of duty by an occupier to a visitor. Like the Latta plaintiff, Ms. Client required back surgery and has been left in chronic pain since her injury. However, Ms. Client had a serious pre-existing (although asymptomatic) condition. Even though she has had multiple surgeries, it is not likely that Ms. Client will receive a general damage award this high. This case could be used to push up the upper range of general damages that she can seek.

 

Beardwood v. Sheppard, 2016 BCSC 100                                          $120,000         $123,120

The 36-year old male plaintiff in this case was injured in a motor vehicle accident. Prior to the MVA, he was in good physical health and participated in many activities. He worked in the window glazing and installation industry; in 2009 he suffered a workplace lower back injury. This resolved after approximately six months. Immediately after the collision, the plaintiff was taken to hospital and was discharged after receiving x-rays and a neck brace. Within a few days, his neck, right shoulder, and back were extremely painful; he had shooting pains down his arms, his fingers became numb, and his hands were weak and clumsy. The plaintiff underwent a neck surgery which involved the removal of a disc, the fusion of a vertebra, and the insertion of a plate. The surgery did not decrease the plaintiff’s pain. He had surgery approximately one year later on his right shoulder. About six months after this, the plaintiff had neck surgery for a second time: a second disc was removed, along with the plate that was inserted in the first surgery, and a second vertebra was fused and a new plate was inserted to immobilize the two fused vertebrae. The plaintiff still has significant neck pain and shooting pains down both arms. Physicians later discovered that prior to the accident, the plaintiff had a moderate pre-existing degenerative condition in his neck at C3-4, C5-6, and C6-7, including central canal stenosis at C3-4 and C6-7. He also had abnormal disc herniation at C3-4 and C6-7 that predated the accident. These issues all predated the accident. The plaintiff also suffered a right shoulder labral tear and hypersensitivity and numbness/tingling over the ulnar aspect of both forearms and hands that was likely to persist indefinitely. Weatherill J held that while the plaintiff’s low back problem pre-dated the accident and was not caused by it, the accident exacerbated his low back pain. Weatherill J awarded the plaintiff $200,000 in general damages but reduced this amount by 40 percent to reflect the measurable risk that his pre-existing degenerative spinal condition would likely have affected him detrimentally in the future. The general damage award in this case was $120,000.

This case likely represents an accurate benchmark as to the amount of general damages that Ms. Client can expect to receive, as the medical situations of the plaintiffs is fairly analogous. The Beardwood plaintiff had three surgeries to his neck; Ms. Client has had four surgeries to her back. Both plaintiffs have been left in pain and have seen their former lives significantly altered in terms of their careers and activities. Like this plaintiff, the court may find that there is a measurable risk that her pre-existing degenerative back issues would have troubled her regardless of the Accident. Ms. Client should receive a similar general damage award to what was awarded in this case.

 

Prosser v. 20 Vic Management Inc., 2009 ABQB 177, affirmed by 2010 ABCA 57                                                                                                                                       $100,000         $115,100

The 39-year old female plaintiff in this case was injured when she fell at a shopping mall. The plaintiff visited the mall for a chiropractic appointment, after which she exited the mall through a construction zone. She tripped and fell over the leg of a temporary orange construction fence just beyond two garbage receptacles. The evidence showed that the plaintiff was only somewhat cautious in walking through the construction zone. Cairns J held that there was a duty on the construction company to make some attempt to warn of the increased risk due to construction or to mitigate the risk in some way: there were no signs and the fence leg was not sandbagged down or made clearly visible. However, the plaintiff was not being sufficiently cautious as she left the mall and walked towards her car. Cairns J apportioned liability at 50/50. Prior to the accident, the plaintiff’s health was generally good, although she had some incidents of back pain in the past; she was at her chiropractor to deal with neck and shoulder pain that was causing her headaches. Immediately after the fall, the plaintiff went to work because she had a meeting but then went home. She had pain in her right arm and low back, and then down the back of both of her legs, that eventually worsened. Her chiropractor diagnosed her with right and left sciatica down to the calf. Several months after the accident, the plaintiff experienced a major flare-up in her condition, with significantly increased low back pain and pain radiating down both legs. An x-ray revealed degenerative changes bilaterally in the inferior aspects of her SI joints. Her low back continued to bother her, along with her sacroiliac joint. The plaintiff underwent physiotherapy, personal training, massage, acupuncture, biofeedback, prolotherapy, and injections to manage her pain. An MRI showed mild degenerative disc disease at the L3-L4 region. Cairns J held that the plaintiff’s fall either caused or materially contributed to her current physical condition. Cairns J awarded the plaintiff general damages of $100,000.

There are some similarities between this plaintiff and Ms. Client. Both were women of a similar age who were injured in trip and fall incidents. Both had some pre-existing degenerative back issues. However, Ms. Client’s pre-existing problems are seemingly more severe than the Prosser plaintiff. Ms. Client has undergone numerous surgeries, while this plaintiff has had no surgical intervention. Both are similar in terms of the numerous and extensive treatments they have had to manage their symptoms. Ms. Client’s general damage award should be somewhat similar to what this plaintiff received.

 

Pham-Fraser v. Smith, 2010 BCSC 322, additional reasons in 2010 BCSC 694                                                                                                                                              $95,000           $107,445

In this case, the 36-year old female plaintiff was struck by the defendant’s vehicle in an intersection. The plaintiff worked as an elementary school teacher and lived an active lifestyle. Immediately after the accident, the plaintiff was taken to the hospital by ambulance, where she was examined and released. In the accident, she suffered soft tissue injuries to her neck, back, and lumbar spine area; aggravation of a TMJ dysfunction problem; aggravation of a pre-existing carpal tunnel syndrome; mild traumatic brain injury; headaches; vertigo; and psychological injuries including depression, PTSD, and anxiety. She said she suffers from continuous ongoing lower back pain with pain and numbness into her leg and foot from stenosis or narrowing of her spinal canal, likely the result of a burst fracture at her L5 vertebrae level caused by the accident. She still suffers from headaches, jaw pain, neck pain, and near constant low back pain. The plaintiff had surgery to correct her carpal tunnel syndrome.

Greyell J accepted the plaintiff’s evidence that she experienced significant low back pain from the date of the accident and that it continues to bother her daily. The plaintiff had degeneration in her spine, but the experts could not say what amount of degenerative change was caused by the accident as opposed to being pre-existing damage. The plaintiff may need decompression surgery in the future, with the potential for a spinal fusion.

Greyell J held that the injuries that were sustained in the accident had a significant impact on the plaintiff physically, mentally, and socially; she had a partial disability that was not likely to resolve over time. Her headaches were recurring; she had to change her diet. The pain in her neck and shoulders had improved, but she still suffers shoulder pain; her carpal tunnel syndrome in both arms bothered her until she had an operation. The plaintiff had lower back pain that radiated into her right buttock area, leg, and foot with numbness. Greyell J awarded $95,000 in general damages.

The plaintiff in this case is analogous to Ms. Client. Ms. Client had an active, rewarding life prior to her Accident, similar to this plaintiff. Both plaintiffs were females who suffered injuries in their accidents including pain in their necks and shoulders and low back pain that radiated into their legs and caused numbness. Significantly, both plaintiffs had pre-existing degenerative changes in their spines. The Pham-Fraser plaintiff needed surgery on her carpal tunnel syndrome and would likely need decompression surgery on her spine; Ms. Client has had numerous spinal surgeries and has the prospect of more spinal surgery in the future. The general damage award in this case likely represents a good benchmark for the amount of general damages that Ms. Client will receive.

 

Allen v. Wal-Mart Canada Inc., 2009 NLTD 79                                  $90,000           $103,590

In this case, the 45-year old female plaintiff was injured when she fell using a conveyor belt that transported shoppers through the store; she became trapped between the belt and her shopping cart. The defendant admitted liability. After the accident, the plaintiff was able to walk away, but she went to her family doctor the next day. Th plaintiff had some pre-existing conditions including a congenital condition that affected the muscles of her eyes. The plaintiff testified that the morning after the accident, she woke up and her whole body was aching; she went to her family doctor complaining of pain to her head, neck, shoulder, lower back, left hip, ring finger, and right knee. An x-ray ordered that day showed that her cervical spine had a narrowing of the disc space between the fourth and seventh vertebrae, and her lumbar spine had a narrowing between the last vertebrae and the first part of the sacral spine. The plaintiff continued to see her family doctor who advocated on her behalf; he reported that the plaintiff’s injuries were debilitating and not likely to resolve. Faour J held that the narrowing of the disc spaces in the plaintiff’s back and the presence of scoliosis were brought on by the accident. The plaintiff had developed chronic pain from the accident. Faour J held that the symptoms the plaintiff complained of were present within hours of the accident; the degenerative changes were not the cause. However, at some time in her life, the plaintiff’s degenerative changes would have resulted in the onset of some of her symptoms. The plaintiff had no history of lower back pain, so whatever degenerative changes were present they were so mild that they caused her no ill effects. Faour J held that the plaintiff suffered a moderate soft tissue injury from the accident that caused significant and lasting effects to her cervical and lumbar spine; the accident triggered a chronic pain syndrome. Faour J awarded the plaintiff $90,000 in general damages.

Ms. Client bears some similarities to this plaintiff in that they were both women of similar ages who sustained injury in an occupiers’ liability mishap. Both had some pre-existing degenerative changes in their spines that was asymptomatic and rendered symptomatic. Ms. Client has had to undergo multiple back surgeries; like the Allen plaintiff, she has experienced lasting pain. Ms. Client should expect to receive a general damage award on par with or slightly higher than what was awarded in this case.

 

Graham v. Rogers, 2000 BCSC 605, varied on other grounds in 2001 BCCA 432, and leave to appeal refused in 2002 CarswellBC 76                                    $75,000           $103,575

In this case, the 54-year old male plaintiff was injured in a motor vehicle accident. He had worked his whole life as a shingle sawyer, a profession which involved repetitive heavy lifting. He had a pre-existing spine condition, which he claimed was accelerated by the accident. After the accident, he attempted to return to work but was unable to do so. He had a previous serious work injury to his left foot and was unable to work for nearly ten years after; he was working on a part-time basis at the time of the accident. The accident involved a severe impact. The plaintiff sustained a bruise to the left side of his head where it struck the frame of the vehicle, and he injured his right knee. He went home but went to his family doctor a couple of days later. The plaintiff attempted to return to work, but his injuries prevented him from doing so; in particular, his knee was troubling him. The plaintiff found that working in the mill made his neck, shoulders, and back very sore; he stopped working when the pain became too much for him. The pain was managed with medication and chiropractic treatment. While working out at a gym, the plaintiff experienced a significant increase in the pain in his neck. It was revealed that the plaintiff had a severe cervical spondylosis or degenerative condition and a large cervical disc herniation. He underwent surgery to remove the protruded disc fragment six months later. Since then, his condition improved. The medical experts all agreed that the plaintiff’s degenerative condition was sufficiently advanced and severe before the accident that it would probably, at some time, become symptomatic. Lowry J held:

While I recognize that there are aspects of the onset of Mr. Graham’s symptoms that are not easily explained, I consider the preponderance of the evidence supports the view that his is a “thin skull” case. I say that not because of the number of experts aligned on one side of the issue but because of the circumstances. When a person, who has for all intents and purposes been wholly symptom free, is rendered substantially disabled by a pre-existing condition that could have been rendered symptomatic by what happened, it must take evidence that is very compelling indeed to defeat the contention that, on the balance of probabilities, the accident caused or hastened the onset of the disabling symptoms [emphasis added] (para. 17).

Lowry J held that the accident rendered the plaintiff’s pre-existing cervical spondylosis symptomatic, and this was the cause of his pain. As a consequence of the accident, the plaintiff was permanently injured, and it was an injury that deprived him of his ability to pursue the only employment he had ever known. Lowry J awarded the plaintiff $75,000 in general damages.

Like Ms. Client, this plaintiff made attempts to return to work but was unable to do so due to the pain caused by an accident. Like Ms. Client, the Graham plaintiff had a pre-existing back condition that was asymptomatic at the time of his accident and was rendered symptomatic. This plaintiff was more fortunate than Ms. Client in that he only needed one surgery to alleviate his pain: Ms. Client has had four and will likely need more. This case may represent an accurate benchmark as to the amount of general damages that Ms. Client can expect to be awarded.

 

Do (Next Friend of) 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.

Like Ms. Client, this plaintiff had a pre-existing spinal condition that was asymptomatic and was rendered symptomatic by an accident. Ms. Client’s lasting pain and multiple surgeries likely means that her general damage award will be higher than what the Do plaintiff received. However, there are many similarities between this plaintiff and Ms. Client: she may receive a general damage award on par with what was awarded in this case.

 

Chenier v. Szili, 2015 BCSC 675                                                          $90,000           $93,690

In this case, the 61-year old male plaintiff was injured in a motor vehicle accident. Prior to the accident, he was very physically active and had his own demolition business. He had occasionally gone to a chiropractor for shoulder pain, and eventually had shoulder surgery. In the accident, the plaintiff was rear ended by the defendant’s vehicle; the impact pushed his car into the car in front of him. The plaintiff was able to drive away from the accident, but later that day he began to feel pain in his upper and lower back and across his shoulder. He went to a walk-in clinic that evening and to his family doctor three days later complaining of pain in his upper back, across the shoulders, lower back pain, and neck pain. He went to physiotherapy and massage but continued to have pain. The pain in his lower back became constant; there was severe pain in his right hip that radiated to his right knee. A sports medicine physician testified that the plaintiff had post-traumatic myofascial pain syndrome; mechanical low back pain; multilevel cervical and lumbar degenerative disc disease with moderate to severe levels of facet arthropathy; and spinal stenosis involving both cervical and lumbar levels. This physician was of the opinion that the accident aggravated the plaintiff’s pre-existing low back impairment and that there was a rapid acceleration-deceleration of his spine capable of injuring his neck and back. The plaintiff had developed daily continuous and persistent chronic pain in his low back. An MRI taken of the plaintiff’s spine in 2014 revealed a small L4/5 disc bulge with right side lateral recess narrowing but without compression of the L5 nerve root; cervical stenosis from disc herniations at C5/6 and C6/7; and a left-sided foraminal stenosis of moderate severity. Armstrong J agreed that these were likely pre-existing and rendered symptomatic by the accident or caused by the accident and likely resulted in the numbness and tingling in the plaintiff’s arms and right leg. It was likely that the plaintiff would require surgery at C5/6 and C6/7. Armstrong J held that the plaintiff’s low back myofascial/mechanical pain Is moderate to severe, continuing, and not likely to improve; however, the spinal cord compression at C5/6 and C6/7 currently did not seriously impact his daily function or his pain. Surgery was not an option at L4/55 because of a bulging disc. Armstrong J awarded the plaintiff $90,000 in general damages.

Ms. Client and the Chenier plaintiff are similar because both had pre-existing degenerative back issues and lasting pain. However, Ms. Client has had multiple surgeries, whereas this plaintiff has not. A significant difference between Ms. Client and the Chenier plaintiff is that Armstrong J was not satisfied that there was a measurable risk that this plaintiff’s pre-existing condition would have detrimentally affected him if the accident had not happened. Ms. Client’s general damage award may be on par with what was awarded in this case.

 

Tomashewsky v. Linnebank, 2013 BCSC 814                                     $85,000           $91,205

In this case, the 48-year old male plaintiff was injured when his vehicle was rear-ended by the defendant’s vehicle; liability was admitted. The plaintiff went to his family doctor a few days after the accident complaining of pain to his neck and right shoulder blade; he had right-sided lumbar muscle tenderness. He later complained of pain to his upper and lower back. The plaintiff’s doctor sent him to physiotherapy. The plaintiff began to complain of jaw pain and clicking, but a TMJ x-ray was normal. His back continued to be stiff and sore, and a lumbar spine x-ray indicated severe L5-S1 degenerative disc disease that predated the accident. The plaintiff continued to have back and neck pain. Truscott J held that the plaintiff suffered from a combination of mechanical back pain and soft tissue mediated pain from the accident. Truscott J held that the plaintiff had degenerative disc changes in his back that were the source of his back pain, but these changes were asymptomatic prior to the accident and would not likely have become symptomatic if the accident had not occurred. Truscott J concluded that the plaintiff was a classic “thin skull” plaintiff. His back injury had caused him pain for three and a half years and was unlikely to improve in the future; Truscott J awarded the plaintiff $85,000 in general damages.

Ms. Client should receive a higher general damage award than what was awarded in this case. Like the Tomashewsky plaintiff, Ms. Client had pre-existing degenerative disc disease that predated the accident and was rendered symptomatic; both plaintiffs suffered pain that was unlikely to improve. However, Ms. Client’s degenerative spine issues were more extensive and severe than this plaintiff’s, and she has undergone multiple surgeries. Her general damage award should be greater than what was awarded to this plaintiff.

 

Sorochan v. Bouchier, 2014 ABQB 37, varied on other grounds in 2015 ABCA 212                                                                                                                                     $75,000           $78,975

In this case, the 65-year old female plaintiff was stopped at a red light when the defendant rear-ended her vehicle; the defendant admitted liability. She did not feel any immediate pain and did not seek medical attention that day. The plaintiff described her injuries as headaches (resolved); neck pain (still bothers her occasionally); shoulder pain (resolved); pain at the top of her spine (resolved); and lumbar back pain (ongoing). The plaintiff had a dull aching pain in her lower back that became quite pronounced by the day following the accident; she underwent a total of 40 physiotherapy sessions. The plaintiff said she developed radiating pain down her legs that was ongoing; she had a nerve root injection in her lower spine that was extremely painful but of no help. She had cortisone spine injections and she was awaiting surgery in the form of an L3/5 instrumentation and decompression with interbody cages. The plaintiff denied any pre-existing conditions. A CT scan revealed bulging lumbar discs. She still had back pain and pain radiating down her legs. Belzil J concluded that the plaintiff was left with a 10.5 percent permanent partial disability as a result of the accident; he awarded general damages of $75,000.

The plaintiff appealed in Sorochan v. Bouchier, 2015 ABCA 212, arguing that the trial judge misapplied the principles of causation and that the trial judge failed to consider the effect that the injuries from the accident had on her life. The Court of Appeal allowed the appeal with respect to the plaintiff’s loss of future income and housekeeping damages but dismissed the appeal as to general damages.

There are many similarities between the Sorochan plaintiff and Ms. Client. Both plaintiffs were females of similar age who had serious low back pain. Their back pain radiated down their legs and required injections to manage. However, unlike this plaintiff who was waiting for surgery, Ms. Client has undergone several surgeries since her Accident. The general damage award in this case is at the low end of the range of general damages that she can expect to receive.

 

Preece v. Leonaard, 2014 BCSC 173                                      $75,000                       $78,975

In this case, the 35-year old male plaintiff was injured in a motor vehicle accident and brought an action for damages. He had been in a minor car accident three weeks prior, but the evidence did not suggest he was injured. Prior to the accident, the plaintiff had worked doing sandblasting and painting and enjoyed outdoor activities. He was unable to continue at his former job and he now worked as an oil trucker. The collision was not at a high speed and the plaintiff went home, although he notified the police about the accident when he got there. The plaintiff began to experience pain in his back, so he went to the hospital complaining of pain to his low back and numbness in his right leg. He began to have more pain in the sacroiliac joints of his back and minor numbness in his leg. Approximately 10 days after the accident, the plaintiff described his pain as severe. He suffered a hernia that required surgery. X-rays taken of the plaintiff’s back revealed moderate disc space narrowing at L4-5 and L5-S1 with mild narrowing at L3-4. Leading his doctor to conclude that he had chronic degenerative arthritis and disc space narrowing in his lumbar spine. Barrow J held that he accepted that the plaintiff was in constant pain in his back. Barrow J held that the plaintiff suffered a moderate strain to the lumbar and sacroiliac area of his spine that triggered a previously asymptomatic but chronic degenerative arthritic condition. The plaintiff would continue to suffer generally chronic levels of moderate pain, but there was a measurable risk that he would experience some of these symptoms as a result of his pre-existing degenerative condition. Barrow J awarded the plaintiff general damages of $75,000.

Ms. Client had a similarly chronic but asymptomatic degenerative back condition. However, her pain and suffering is more severe than what the Preece plaintiff endured. She has had multiple surgeries and has the additional issues of numbness, tingling, and neck pain. Ms. Client will likely receive a higher general damage award than what this plaintiff received.

 

Munoz v. Singh, 2014 BCSC 567                                             $70,000                       $73,710

In this case, the plaintiff was involved in three separate motor vehicle accidents that took place on September 9, 2007; June 15, 2009; and June 21, 2011. Prior to the accidents, the plaintiff’s health was excellent. In the first accident, the plaintiff was 7 months pregnant when the vehicle she was driving was rear-ended; the collision was relatively minor. She had a headache and began to feel low back pain, along with more frequent headaches. After the birth of her daughter, she began to have more intense back pain that travelled upward into her shoulders and neck, along with more frequent and severe headaches. The plaintiff also had some fleeting numbness and tingling sensations in her right leg. She attended physiotherapy and an active rehabilitation program. None of her symptoms had resolved by the time of the second accident. The second accident was also a rear-end collision. The plaintiff sustained a terrible headache and went to her family doctor the next day complaining of neck soreness, right shoulder and arm pain, and upper and lower back pain. This back pain was more intense than that of the first accident. She also felt increased numbness, tingling, and pain radiating down her right leg and eventually down her left leg. An MRI performed in July 30, 2010 that reported mild narrowing and desiccation of the L4-5 disc and a broad-based disc bulge at the L4-5 level, extending to a greater extent on the right with displacement and compression of the right L5 nerve root. There was a disc bulge in her thoracic spine at T4-5. She had been gradually improving through massage at the time of the third accident. In this accident, the defendant reversed her van into the front end of the plaintiff’s stationary vehicle. The plaintiff went to her family doctor the next day complaining of a sore neck and ongoing low back pain; the numbness and tingling in her legs became more frequent and generally appeared worse in intensity and duration. A second MRI on July 7, 2011 showed that the disc bulge at L4-5 was slightly more pronounced and had slight contact with the traversing L5 nerve roots. The plaintiff complained of sciatica pain. A third MRI on August 29, 2012 reported L5-5 disc narrowing and mild bilateral facet arthropathy and ligamentum flavum hypertrophy. Ballance J held that it was more probable than not that all of the plaintiff’s injuries were caused by the trauma of the first accident; this accident also activated her asymptomatic disc desiccation/ spondylosis in her thoracic and lumbar spine. She suffered back pain, headaches, and soft tissue injuries to her neck, shoulders, and along her spine; she may require surgery in the future. Ballance J awarded the plaintiff $70,000 in general damages.

Ms. Client is similar to this plaintiff in that they both had pre-existing back problems that were asymptomatic at the time of their accidents and then rendered symptomatic. In addition, both suffered sciatica pain as well as neck pain and numbness and tingling in the legs. However, whereas Ms. Client has had several back surgeries, this plaintiff had not yet undergone surgery. Ms. Client will likely receive a higher general damage award than the Munoz plaintiff.

 

 

 

Calgary Alberta Courtroom Procedures for Providing Evidence by Calgary Injury Lawyer Walter W. Kubitz

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The attached PDF was provided to the Alberta Civil Trial Lawyers Association on March 10 & 12, 2020 for the Weapons in Chambers Seminar.

The contents of the PDF is not intended to provide legal advice. Specific legal advice about your situation should be sought from one of our lawyers. Call us at 403-250-7100 if you wish to discuss your claim.

To download the document click: Evidence in Chambers

The guide is provided to help potential claimants better understand the procedures of submitting evidence by their legal team with respect to the complexity of such matters.

The Table of Contents of the document is:

  • Some Basic Tips
  • Chambers Evidence Generally
  • Sources of Evidence for Chambers Applications
  • Actions Commenced by an Originating Application
  • Applications for Judicial Review
  • Actions Commenced by a Statement of Claim
  • Sources of Evidence to Consider
  • Affidavit Evidence in Actions Commenced by Statement of Claim
    Transcripts of Questioning on an Affidavit
  • Use of Transcripts of Questioning of the Opposite Party
  • Questioning by Way of Written Questions (Interrogatories)
  • Answers to Undertakings
  • Transcripts of Questioning of Non-parties
  • Transcripts of Questioning of Experts Before Trial
  • Oral Evidence
  • Video Recording in Place of Transcripts
  • Notice to Admit Facts/ Written Opinion and a Reply to a Notice to Admit
  • Questioning to Preserve Evidence for Future Use (Commission Evidence or Evidence De Bene Esse)
  • Evidence Taken of Persons Outside Alberta
  • Evidence Taken in Any Other Action. (Rule 6.11 (1)(f), a.k.a. a rule that does not mean what it says.)
  • Conclusion
  • Acknowledgements
  • Appendix 1. ANC Timber Ltd. v. Alberta (Minister of Agriculture and Forestry), 2019 ABQB 653, Topolniski J
  • Appendix 2. Selected Rules of Court

Injury Claims from Chronic pain neck and back, headaches, TMJ, anxiety, depression, somatic symptom disorder, and torn knee meniscus.

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

accident lawyers Calgary Walter Kubitz

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

______________________________________________________________________________
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.

Quantum of damages for severe low back pain requiring fusion surgery, neck pain, and a mild brain injury concussion.

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

accident lawyers Calgary Walter Kubitz

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.

Car Accident: What are example awards for a Husband or a Wife’s Claim for Loss of Consortium (Loss of Care, Guidance, Companionship and Sex?)

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

accident lawyers Calgary Walter Kubitz

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

Car Accident: Quantum of Damages for PTSD and a Jaw Injury Requiring the Use of a Splint for Life with Headaches and Chronic Pain.

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

accident lawyers Calgary Walter Kubitz

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 (6th) 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.

Preserving AISH and Disability Benefits After Settling a Personal Injury Claim in Alberta and BC

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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.

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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.

accident lawyers Calgary Walter Kubitz

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.

Car Accident: Quantum of Damages for a Moderate Brain Injury

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Car Accident: Quantum of Damages for a Moderate Brain Injury.

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

accident lawyers Calgary Walter Kubitz

Mr. Jones (not his real name) was injured in a motor vehicle collision where his vehicle was struck in an offset collision from behind and off to the driver side, when a large commercial vehicle tried to pass him from behind on the left while Mr. Jones was making a left hand turn at an intersection.  There was significant damage to the driver’s side.

Mr. Jones was unconscious at the scene of the accident and suffered a brain hemorrhage. He was taken to the hospital where he was put into an induced coma. He was in the hospital for 12 days, when he released himself against the advice of doctors. He did not have surgery in the hospital. He was diagnosed as having a moderate / moderate – severe traumatic brain injury. He has had a decrease in his executive functions, and perhaps most notably suffers now from anger issues. He also suffers from mild depression, mild anxiety and fatigue. Another ongoing difficulty is with his balance, and he suffers dizziness. He has had behavioural changes. There has been deterioration of his left hand co–ordination. He has undergone a course of physiotherapy. He qualified for AISH.

This case was settled at mediation for $165,000.000 for pain and suffering damages.

Discussion:

The following cases are inflation-adjusted to January 2018.

Matthew v. Tattrie, 2009 BCSC 263                           $200,000                     $230,200

In this case the 25-year-old male plaintiff was hit with a baseball bat at a party. He suffered a significant head injury, including a skull fracture, a large right subdural hematoma over the right cerebral hemisphere and a left frontal parietal hemorrhage contusion. He was left with permanent cognitive impairments including personality change, loss of manual dexterity and strength in his right hand, and epilepsy. He was left with deficits in memory, concentration, and executive function. He manifested poor judgement and lacked insight into his limitation. His behavior was inappropriate. He had poor anger management and impulse control. He had sporadic employment. He had not been able to hold down a job and was no longer employable in a competitive environment. He was no longer able to live independently and needed considerable assistance. His ability to engage in social relations had been impaired, leading to estrangements and isolation.

This plaintiff has suffered more severe injuries than Mr. Jones in view of the skull fracture, but has many of the residual deficits including problems with anger and deficits in executive function. Similar to this plaintiff, Mr. Jones is no longer employable in a competitive environment. Further, like this plaintiff, Mr. Jones is seeking assistance in order to function, as is evidenced by his application for income assistance to the British Columbia government program. This is a British Columbia case, however, and will reflect a higher damage award that will be available in Alberta. This case therefore likely represents a higher general damage award than Mr. Jones can achieve in Alberta.

Labrecque v. Heimbeckner, 2007 ABQB 501             $200,000                     $236,400

In this case the 27-year-old female plaintiff suffered significant pre-accident injuries, including major depression and insomnia and addiction to prescription drugs and alcohol abuse. In the accident she suffered traumatic brain injury and a fracture of her right humerus, a fractured clavicle, a compression fracture in her lower spine, and a complex fracture to her left calcaneus. She alleged she suffered moderate brain injury and had ongoing difficulties with memory, nightmares and insomnia. She suffered from a panic disorder and a major depression. She had significant loss of self-esteem. The defence argued that she only had mild traumatic brain injury, and the judge declined to hold whether it was a mild or moderate traumatic brain injury, simply finding that he was satisfied that she suffered a traumatic brain injury which contributed to her lack of ability to function normally or independently. She had difficulty coping with daily living and lived with constant pain in her left foot. The accident changed the plaintiff’s personality.

This case has been selected as it is an Alberta case awarding damages for a mild/moderate brain injury. There were significant fractures suffered by this plaintiff, however, thereby increasing the general damage award. Further, this plaintiff was unable to function independently. Although Mr. Jones is seeking assistance with his daily living in British Columbia, his injuries are much less severe than this plaintiff. This damage award therefore reflects a greater award than Mr. Jones can likely achieve.

Grassick (Litigation Guardian of) v. Swansburg,       $220,000                     $229,000

2015 BCSC 2355

In this case the 16-year-old male plaintiff suffered moderately-severe traumatic brain injury that would continue to negatively affect every aspect of his life. He had difficulties with memory, processing speed, focus, cognitive and efficiency, fatigue, anxiety and depression. He had sleep difficulties, adjustment disorder, memory issues, and difficulty multi – tasking. Before the accident he excelled academically, recreationally and socially and wanted to be a civil engineer. After the accident he struggled to do well in his academic programs, although he still wanted to be a civil engineer. He suffered from a sense of a loss of his former self and recognized his limitations, which the judge characterized as emotional suffering. He also had a broken femur and abrasions, which healed uneventfully. He continued to live at home with his parents and “could barely cope”.

This case has been chosen because it involves a plaintiff with moderately – severe traumatic brain injury, who suffers many of the same residual sequelae as Mr. Jones, including loss of executive function, depression and fatigue. This case seemed to have awarded significant general damages to some extent because of the youth of the plaintiff and his realization of his loss of his future potential, which does not translate to the situation of Mr. Jones. This is a British Columbia case. This case likely represents a higher damage award than Mr. Jones can anticipate.

Payne v. Miles, 2013 BCSC 1545                                 $210,000                                 $225,000

In this case the 16-year-old female plaintiff was struck in a crosswalk and suffered moderate to moderate – severe brain injury with emotional, psychological and cognitive difficulties. The accident fundamentally transformed her and diminished her life. She was independent, hard – working, cheerful, sociable, active and ambitious before the accident. Following the accident, she lived a largely solitary existence and struggled with serious depression, anxiety, anger, irritability, memory, concentration and fatigue. Her depression was in remission at the time of trial, with medication, but she continued to suffer from low mood. She struggled with her sleep and had headaches. She had periodic hallucinations. She had difficulties with memory, concentration and various forms of executive function. She had difficulty processing information and was limited in her ability to read. She became overwhelmed and had meltdowns. She failed or struggled in her academic endeavours. She was employed in low level positions, whereas her potential was to earn a more than average income having achieved a university education.

This case has been selected as the plaintiff suffered from a moderate – severe brain injury. She seems to have many of the same sequelae suffered by Mr. Jones, including loss of executive function, depression and anger. This plaintiff was able to work in low level jobs and seems to have been living independently. Mr. Jones similarly works in low level jobs and has applied for assistance with his daily living. This is a British Columbia case. It is therefore likely that Mr. Jones would attract a general damage award somewhat less than this plaintiff.

 Megaro v. Vanstone, 2017 BCSC 2256                                  $175.000                     $175.000

In this case the male plaintiff was in a motor vehicle accident with a hit-and-run driver. He suffered mild traumatic brain injury, neck and back injuries, headaches, issues with balance, fatigue and psychological issues including depression, anxiety, anger and difficulties with mood and motivation. His back pain and balance issues had resolved by the time of trial. His headaches were being treated with Botox injections. He suffered from depression and had gone from being a breadwinner to a depressed and withdrawn individual who relied heavily on his wife for support and direction. He was capable of participating in casual hockey, went to the gym with his son, and was able to do maintenance work on his house and rental properties.

This plaintiff would seem not to be as injured as Mr. Jones, suffering only a mild brain injury, and, but for the fact that this is a British Columbia case, one could anticipate a greater general damage award for Mr. Jones. As the below reviewed Alberta cases have come in with less significant general damage awards, however, I have included this case as a marker to argue what the lower limit of general damages for Mr. Jones should be.

Calahasen v. Northland School                                              $135,000                     $146,205

Division No. 61, 2012 ABQB 611

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.

Mr. Jones has suffered a greater brain injury than this plaintiff (moderate – severe as opposed to mild – moderate), but Mr. Jones has not suffered the skull and facial fractures of this plaintiff. On the whole, this case is concerning in that the general damage award is so low in view of the British Columbia authorities and in view of the significant injuries suffered by this plaintiff. It may nonetheless be a good marker for what Mr. Jones can anticipate in Alberta as a general damage award.

Adams v. Canada (Attorney General),                                  $130,000                     $135,000

2015 ABQB 527

In this case the male plaintiff was assaulted by another inmate shortly following admission to the penitentiary. He was in a coma for one month and suffered a serious traumatic brain injury. He suffered brain hemorrhage and post–traumatic amnesia. He continued to suffer from headaches, low back pain and reduced cognitive ability, including poor word generation and logical memory problems. He suffered injuries to his ankle and legs affecting his gait, balance and posture. After his release from hospital he had 12 months of outpatient rehabilitation services, including physiotherapy, speech and occupational therapy.

This case is of concern as such a low general damage award amount was awarded for a serious brain injury.

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. Please feel free to call 403-250-7100 to speak with us.

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

Car Accident: Quantum of Damages for Chronic Neck and Low Back Pain with Headaches, … Resulting in an Inability to Work.

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Calgary Car Accident Sample Case:

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

accident lawyers Calgary Walter Kubitz

Quantum of Damages for Chronic Neck and Low Back Pain with Headaches, Shoulder Injury and Psychological Injury, Resulting in an Inability to Work.

In this article, there were two drivers who were involved in a car accident in Calgary. The plaintiff was represented by one of our senior lawyers experienced in car accident injuries. The plaintiff claims chronic neck and low back pain with headaches, shoulder injury and psychological injury, resulting in an inability to work. The article details what a judge may consider in rendering a verdict and what, if any, damages are to be awarded to the plaintiff for her injuries. Situations such as this are not uncommon in Calgary, so it is important that you have an experienced lawyer who understands the facts and the Alberta Court’s history in dealing with these cases.

In Scenario 1 it is assumed that Ms. Plaintiff’s injuries from the collision substantially healed by 1 year 8 months after the collision.

 

In Scenario 2 it is assumed that Ms. Plaintiff’s collision related chronic pain continues 10 years after the collision.

 

CONCLUSION:

  1. With respect to Scenario 1, the case law suggests a non-pecuniary damages award between $70,000 and $85,000. We have summarized the following three cases for Scenario 1:

 

Wagner (B.C. case; $70,000 general damages award; adjusted value of $87,000);

Seres (Alberta case; $60,000 general damages award); adjusted value of $70,000); and

Cripps (B.C. case; $75,000 general damages award; adjusted value of $81,500).

 

  1. For Scenario 2, the case law suggests a non-pecuniary damages award in this case between $110,000 and $130,000. We have summarized the following five cases for Scenario 2.

 

Ahonen (B.C. case; $100,000 general damages award; adjusted value of $104,500);

Latuszek (B.C. case; $100,000 general damages award); adjusted value of $111,000);

Ashcroft (B.C. case; $120,000 general damages award; adjusted value of $137,500);

Khosa (B.C. case; $140,000 general damages award; adjusted value of $144,000); and

Cantin (B.C. case; $150,000 general damages award; adjusted value of $158,500).

 

 

The judgment awards in the cases discussed below have been inflation-adjusted using the Bank of Canada inflation calculator.

 

 

Accident:

In 2006, Ms. Plaintiff was driving her car northbound in the city. The defendant, who was driving eastbound, ran a red light and struck the driver’s side of Ms. Plaintiff’s vehicle at full speed.  The impact caused Ms. Plaintiff’s car to spin around 180 degrees, ending up facing southbound.

 

The impact of the collision caused Ms. Plaintiff’s right side to hit the console in the middle of the vehicle that separates the two front seats.  She was wearing her seatbelt.  Ms. Plaintiff was pinned, unable to move, between the door, console, and seat.  The door had intruded inwards from the collision and was in contact with her from shoulder to calf.  Extricating Ms. Plaintiff from the car required smashing of a window and the use of the Jaws of Life.  Both Ms. Plaintiff’s vehicle and the defendant’s vehicle, which sustained front-end damage, were written off.

 

Ms. Plaintiff remained conscious following the Accident, but felt pain through her whole body, severely so through her back, and she thought she was dying.  She was placed on a spine board and transported to hospital.  There she was assessed for injuries, observed overnight, and was discharged the following day.  All imaging studies undertaken were negative.  She had bruising throughout the left side of her body and under her right arm, and she required physical assistance from her husband and sister when she left the hospital.

 

Following the Accident, Ms. Plaintiff experienced moderate neck pain with stiffness.  She had severe back pain with limited movement.  She had headaches.  There was a burning sensation in her left arm with recurrent numbness in both hands.  She had chest pain.  She had extensive bruising on her right breast, both arms, left hip, and left knee.  Her jaw was painful on the left side.  Dr. F diagnosed strain of the cervical, thoracic, and lumbar spine, WAD III, and multiple contusions involving right breast, arms, left hip, and left knee.  According to Dr. F, all of these injuries resulted from the Accident.  Ms. Plaintiff’s movements were very painful and restricted following the Accident.  Walking was painful.  Her shoulders were in pain.  She was unable to work, do housework, or drive, and she felt exhausted and depressed.  Dr. F also indicated, shortly following the Accident, that her injuries had a significant psychological impact on Ms. Plaintiff, including symptoms of depression.

 

Pre-Accident:

Ms. Plaintiff had lower back pain after her pregnancy 9 years prior, left knee pain 6 years prior, and right knee swelling 1 year prior. She had some depression 2 years prior.  She was taking an anti-depressant at the time of the Accident.   She had twisted her right knee about 1 ½ weeks before the Accident, resulting in right knee pain and a lump below her knee cap.  She had obtained an x-ray on her right knee the day of the Accident to check for deep vein thrombosis.

Since the Accident:

Most of the soft tissue injuries appeared to physically resolve themselves following the Accident.  By 2008, it was noted that Ms. Plaintiff’s condition had considerably improved.  For instance, it was stated in an April 2008 report that her “general condition appeared fairly good overall, despite…some residual stiffness and minor pain” .

 

Some symptoms were reported to worsen (or re-emerge), however, sometime between 2011 and 2012.  For instance, one report indicated that Ms. Plaintiff’s lower back pain and numbness increased following her second knee replacement.  Dr. R indicated that it was not clear from the records what caused the increase in lumbar pain around that time.

 

The following paragraphs provide further comment on more particularized injuries:

 

Shoulder pain.  Apart from the soft tissue injuries to Ms. Plaintiff’s shoulders from the Accident, consistent with sprain or strain as well as contusions, it is not clear that any other issues with her shoulders, including degenerative changes or rotator cuff tendinitis, were the result of the Accident.

 

Upper back/neck.  Ms. Plaintiff appears to have consistently experienced upper back and neck pain since the Accident.  This includes Dr. S’s observations in August 2007.  In Dr. F’s view, the most appropriate diagnosis would be of chronic mechanical cervicothoracic pain directly attributable to the Accident.

 

Headaches. Headaches have been reported throughout Ms. Plaintiff’s treatment chart since the Accident.  An appropriate diagnosis for her headaches would be of a cervicogenic origin.  Dr. R notes that the injuries sustained in the Accident were the onset of neck pain and headaches associated with that.

 

Jaw-related symptoms. The left-sided jaw pain experienced by Ms. Plaintiff following the Accident appears to have resolved itself (by one account within a few weeks of the Accident).

 

Low back pain.  Ms. Plaintiff experienced low back pain as a result of the Accident, and was diagnosed with lumbar sprain/strain.  Prior to the Accident, she experienced low back pain in 2000, but had not had any episodes between that time and the Accident.  Since the accident, she has had episodic or intermittent flare ups, with progressive symptoms since 2011 or 2012.  While one physician (Dr. S) noted an absence of low back pain approximately one year after the Accident, another (Dr. M) disagreed.  Dr. M indicated that her symptoms may have been obscured by her taking anti-inflammatories at that time.  Dr. M highlighted the episodic nature of back pain, and how the course of the lower back pain was clearly different after the Accident compared to before the Accident.

 

Dr. R’s view was that the lumbar spine issue was pre-existing, but was exacerbated by the Accident.  However, Dr. R’s view, based at least in part on the findings of Dr. S, appears to be that the lumbar spine issue had resolved in the years immediately following the Accident, only to emerge for some reason in 2011.  The reason for this may have been pre-existing issues.

 

Knees.  Ms. Plaintiff had pre-existing bilateral knee osteoarthritis.  Her being overweight would likely have led to increasing pain and disability, even had she not been involved in the Accident (Dr. J).  Dr. J noted, however, that the deconditioning that occurred in the aftermath of the Accident caused an increase in the amount of pain she was experiencing.  Dr. F also reported that the knee symptoms were likely independent of the motor vehicle collision.    Ms. Plaintiff received knee replacements on both knees in 2010/2011.  Ms. Plaintiff was beset by an MRSA infection following the left knee surgery, which delayed physiotherapy.  She still has some pain associated with her left knee.

 

Chronic pain/Psychological. In the view of psychologist Dr. M 1, Ms. Plaintiff’s chronic pain is a multifactorial condition and is mostly or at least partially attributable to the Accident.  Similarly, according to psychologist Dr. D, Ms. Plaintiff’s chronic pain results directly from the injuries (neck, shoulder, and back) that she sustained in the Accident.  Dr. M 2’s view appears to be somewhat different, in that he has stated that Ms. Plaintiff is experiencing mild to moderate preoccupation with physical complaints in a manner consistent with Somatic Symptom Disorder, persistent, with predominant pain.  Dr. M 1 disagrees with Dr. M 2’s view that her chronic pain is attributable to mental illness.  Dr. F noted with respect to chronic pain that Ms. Plaintiff “has unfortunately fallen into a chronic pain cycle, partly due to osteoarthritis and partly due to injuries sustained in the [Accident] and the associated mood and sleep disturbance”.

 

Ms. Plaintiff has been diagnosed with PTSD of limited severity, which was caused by the Accident.  This point does not seem contentious based on the reports.  Dr. M 2 notes Ms. Plaintiff’s persisting phobic-like anxiety regarding a future accident.

 

Both Drs. D and M 1 consider Ms. Plaintiff’s depression attributable to some degree to the Accident.  Dr. D sees the symptoms of depression as a direct result of the Accident.  Dr. F’s view is that Ms. Plaintiff’s depression after the Accident was an aggravation of Ms. Plaintiff’s pre-existing depression.  Dr. M 2 acknowledges Ms. Plaintiff’s depression, but would not consider the depression an exacerbation of a pre-existing condition.  It is not appear Dr. M 2 believes the depression was causally related to the Accident.  Psychologist Dr. M 1, on the other hand, indicates that Ms. Plaintiff’s psychological features, which she identifies as including chronic pain, anxiety, depression, sleep disturbance, and PTSD, are mostly attributed to the Accident.

 

On the issue of the cause of Ms. Plaintiff’s psychological issues, the disagreement between the experts on some of the points above may be the result of several events in Ms. Plaintiff’s life following the Accident that may or may not be causally related to the Accident.  For instance, after the accident, she left her job in large part to her knee issues and lower back pain.  Yet it is not clear that the Accident was the cause of either of these issues.  Further, as a result of leaving her job, Ms. Plaintiff faced financial difficulties.

 

Other effects.  After the Accident, Ms. Plaintiff was off work for approximately two years.  She reports she tried to return to work after the accident for a period of approximately nine months, but was unable to keep up with the physical demands.  Working resulted in increased pain, the result of which is that she would return home, try to sleep, and try again the next day.  Ultimately, she elected to leave her job 3 years after the accident.  Worth noting is that the predominant reason Ms. Plaintiff stopped working was apparently because of her severe bilateral knee pain which may not be related to the collision (Dr. R), though she was also experiencing neck and lumbar spine pain at that time.  Looking into the future, Dr. M 1 has remarked that it is unlikely that Ms. Plaintiff will be capable of returning to the work force because of the pain she experiences.

 

With respect to sleep, Ms. Plaintiff indicates that she does not sleep well.  She has difficulty falling asleep as well as staying asleep.  She reports that her low back pain will awaken her during the night frequently and that she is stiff in the morning.  Her pain interferes significantly with her sleep and with all areas of everyday life.

 

Ms. Plaintiff has lead a much more constricted life compared with pre-Accident.  Since the Accident she has spent most of her time at home, and no longer participates in previously-enjoyed activities such as baking and hosting family dinners and cocktail parties.  She has only recently started re-engaging in some of her previously enjoyed leisure activities such as craft and home decorating.  Currently, she performs the crafting activities in bed.

 

Prior to the Accident, Ms. Plaintiff took great pride in maintaining a clean and tidy home.  Now, she has to limit herself to performing minor household tasks to avoid exacerbating symptoms.  She has indicated that she is able to do some vacuuming and mow the lawn, and is able to work at her own pace.  Her physical activity consists of walking, stretching, and doing minor housework.  She reports she has to stretch for 30 to 60 minutes every morning in order to become more mobile.  Her tolerance for sitting is approximately 30 minutes.  Her tolerance for sitting and working at a desk is also short because such work causes her increased neck and upper back pain.  She is only able to operate a vehicle for 30-40 minutes because of upper and lower back pain, but she can tolerate up to two hours as a passenger.  She is able to complete bathing, hygiene, and grooming activities easily.

 

At present, Ms. Plaintiff continues to take pain-control medication.  She takes Percocet for breakthrough pain and Fentanyl has helped her control her pain and she is able to do more around the home.  She continues to do pain control management techniques taught to her by Dr. D.   Ms. Plaintiff has headaches arising from her neck about twice a week.  Her neck pain bothers her, but it is not painful as long as she is taking Fentanyl.  Her back pain is always present, but is numbed by the Fentanyl.  She still has dull pain in her left shoulder.  She still has left knee pain if she overdoes it.

 

With respect to mitigation, Ms. Plaintiff attended 75 physiotherapy sessions in the 2 years after the accident.  It may also be noted that she lost between 50 and 70 pounds prior to her knee replacement surgeries, which fact appeared to persuade Dr. J to go ahead with the knee surgeries.  She has apparently put this weight back on following the surgeries.  As a final point, it might be noted that Ms. Plaintiff is reported to smoke a pack of cigarettes every two days.  Since the Accident she has been smoking twice as much as she did prior to it.

 

DISCUSSION:

  1. Scenario 1 cases

 

In Wagner v Narang, 2003 BCSC 1750, [2003] BCJ No 2684, the plaintiff was in her mid-forties when she was involved in an MVA.  A pickup driven by the defendant abruptly changed lanes and struck the rear of Ms. Wagner’s car, causing it to roll several times.  Ms. Wagner did not lose consciousness. When the car came to rest, she managed to release herself from her seatbelt and get out of the car. She called her husband, who arrived about 10 minutes later. Ambulance paramedics arrived, stabilized her neck with a brace, and took her to the hospital.  X-rays revealed no fractures. Ms. Wagner was released after being examined by the emergency department physician, whose provisional diagnosis was soft tissue injuries. She was given anti-inflammatory medication and instructed to apply ice to her injuries.

 

The following day, Ms. Wagner saw her family physician, who noted extensive bruising on the front of her legs and arms, and a bruise on the left temple.  She complained of a headache radiating from the left side, and neck pain. She also complained of pain throughout her left side, and back pain.  The diagnosis at that time was a cervical spine strain with mild concussion, and multiple contusions. The doctor noted Ms. Wagner continued to be traumatized by the accident, and he prescribed Ibuprofen and a mild sedative.

 

At home, Ms. Wagner was completely incapacitated. She could not do any housekeeping or any of the work she had previously done for her husband’s business.  One month after the accident, she continued to suffer persistent neck and low back pain, and pain associated with the bruising of her arms and legs. She could not drive a car and was a nervous passenger. Two months after the accident, she had difficulty sleeping, and experienced depressed moods and irritability. About six months after the accident she returned to some of her housekeeping duties, but her capacity to do house work was significantly reduced.

 

The medical consensus was that Ms. Wagner suffered from PTSD for approximately two years after the accident, and perhaps a bit longer. The PTSD was of mild to moderate severity. It was also the consensus of the medical experts that Ms. Wagner was particularly vulnerable to the disorder as a result of her limited intellectual abilities (she had had a brain injury as a child). The experts agreed that any memory and comprehension difficulties Ms. Wagner may have suffered after the accident were attributable to the PTSD, which had resolved by the time of trial.  The court concluded that Ms. Wagner suffered primarily soft tissue injuries in the accident. The acute soft tissue injuries resolved for the most part, but resulted in chronic pain from which Ms. Wagner continued to suffer to some degree. Her modest intellectual capacity rendered her less capable of effectively managing her chronic pain. For that reason, several of the medical experts recommended that she undergo further pain management counselling.

 

Before the accident, Ms. Wagner was the hub of her family. She was energetic, cheerful, and active. She was functioning at the upper limits of her capabilities. The accident changed her life quite dramatically. From the perspective of her children, she was no longer the person she once was.  The court awarded her general damages of $70,000.

 

In Seres v Ramirez, 2006 ABQB 846, [2006] A.J. No. 1549, the 39-year-old plaintiff was the third car in a four car accident. The first car was stopped to make a left-hand turn off University Avenue in Edmonton. The second car was waiting for it to turn. The Plaintiff said that while he was slowing down for the two vehicles stopped in front of him, his vehicle was struck by the Defendant’s vehicle and pushed into the vehicle in front of him.  After the accident, Mr. Seres went home, took a nap, and woke up with a headache. At that point he asked his friend to take him to the Royal Alexandra Hospital.  He had neck pain, headache and vomiting.

 

Approximately two years after the subject accident, Mr. Seres was in another car accident, which was not the subject of the litigation.  The court concluded that most of his symptoms from the first accident were resolved prior to the 2003 accident, so that the court did not have to make a determination as to the contribution of the 2003 accident to his symptoms as expressed at the trial.

 

Mr. Seres suffered a number of problems as a result of the first accident, including chronic headaches, chronic neck pain, depression, anxiety, poor memory with difficulty concentrating and other emotional problems.  Mr. Seres was absent from work for about 13 months as a result of the first accident, after which time he continued working as before.  Mr. Seres’ physical injuries, including headaches and neck and shoulder pain, had resolved by the time of the second accident.

 

The court found, with respect to Mr. Seres’ symptoms of depression after the first accident, that he had had a pre-existing condition relating to depression that had existed for a period of time. The accident, however, had exacerbated this condition and there was also a causal link to a diagnosis after the accident of adjustment disorder with mixed anxiety.  By the time of the second accident, Mr. Seres was no longer complaining of his phobic reaction to driving, having overcome the phobia.  The court also indicated that Mr. Seres’ anxiety disorder or post-traumatic stress disorder had resolved before the second accident.  Mr. Seres was awarded $60,000 in general damages.

 

In Cripps v. Overend, 2010 BCSC 1779, [2010] B.C.J. No. 2494, the 32-year-old plaintiff was traveling as a passenger in a pickup truck when the car driven by the defendant t-boned the right side of the pickup at high speed.  The significant impact caused the truck to spin in a circle and fly across a ditch before landing on a lawn. Damage to the pickup was extensive, and the passenger door was jammed.  Mr. Cripps was assisted out the driver’s door.  He was dazed. He was aware of impacts to his head and right knee, and felt severe pain in his rib cage. He had difficulty breathing and received oxygen from ambulance attendants. Following the advice of the ambulance attendants regarding a lengthy wait time at the hospital, he took a taxi home.

 

Following the accident, Mr. Cripps felt dazed for a few days and complained of chest and rib pain, shortness of breath, and right knee pain. Neck and back pain developed within a few days.  Two days after the accident, Mr. Cripps saw his family doctor, who diagnosed a possible concussion, traumatic headache, possible right rib fractures, a cervical strain, a shoulder girdle strain, pectoral muscle strain or tear, hematoma of the right knee, and neck and lower back strain.  The doctor prescribed Tylenol #3, ibuprofen and Amitriptyline, which Mr. Cripps took for about a month. Thereafter, for pain control Mr. Cripps relied on over-the-counter medications such as Tylenol and Advil.  Commencing approximately one month after the accident, Mr. Cripps attended 15 sessions of physiotherapy.  Mr. Cripps responded quickly to treatment of his neck and back and by the sixth session, he was feeling much better. Improvement continued until his last treatment, which was about 2 months after the accident.

 

Mr. Cripps was off work for approximately 2 months following the accident, but did not miss a day after that.

 

Gradually, over about six months from the accident, Mr. Cripps recovered from most of his injuries. However, by the time of trial, he continued to experience lower back pain.  He described the pain as a generalized aching, which was present most of the time, although it could be absent for as long as one to two weeks. The pain was often dependent on his level of activity. The pain would frequently travel up his back into his neck and become a headache, and occasionally the pain would be felt in his left thigh and upper left calf.

The proposition that the accident caused Mr. Cripps’ marriage breakdown was not proven on a balance of probabilities. However, it was no stretch to conclude that Mr. Cripps’ injuries and slow recovery following the accident were factors that contributed to stress and strain in the marriage preceding the marriage breakdown.  His mental and physical outlook has improved since separation. The improvement was likely a result of intervention from his brother in the form of emotional support and encouragement to get out and exercise and socialize.  It should also be noted that Mr. Cripps was diagnosed with and treated for depression about two years after the accident.  While it was not clear in the decision that the accident caused the depression, the court appeared to consider his depression in the award of general damages.   Mr. Cripps was awarded $75,000 in general damages.

 

  1. Scenario 2 cases

In Ahonen v. Thauli, 2013 BCSC 1607, [2013] BCJ No 1931, the 41-year-old plaintiff was injured in an MVA.  The defendant was driving his pickup truck in the opposite direction from Ms. Ahonen, when he turned left, without warning, into the left front of Ms. Ahonen’s vehicle.  Significant damage resulted in both vehicles being written off.  The plaintiff testified being scared and shaking after the accident.  She remained in the vehicle until she was removed by the Jaws of Life.  She was placed in a cervical collar and taken the hospital, where she was examined and released.

 

Ms. Ahonen was diagnosed with having grade 2 cervical strain and extensive soft tissue bruising, including to her chest, left hip, upper thigh, right and left knees, left hand and forearm.  She was initially found by her family doctor to be unfit to work for two weeks, and she was prescribed the maximum dose of Naproxen. She returned to work (full time) approximately 6 weeks later.  While many of the plaintiff’s injuries had resolved within a few months of the MVA, she continued, to the time of trial, to suffer from chronic mechanical neck pain.  The neck pain had spread to the upper back region, and the pain disturbed her sleep.  She also continued to experience cervicogenic headaches approximately three times per week.  A report by a specialist in physical medicine, which evidence the court accepted, indicated that Ms. Ahonen’s prognosis for further recovery of the injuries suffered in the MVA was poor.

 

Ms. Ahonen had pre-existing anxiety symptoms, for which she took Wellbutrin.  A psychiatrist report relied on by the court indicated that Mr. Ahonen’s anxiety symptoms following the MVA resulted in the need for an increased dose of Wellbutrin for an extended period of time, and that she was susceptible to the development of significant PTSD symptoms if she was exposed to a similar trauma.

 

It appears that Ms. Ahonen continued to work full time as program manager at the time of trial.  She had been with the same organization for 18 years.  The court indicated, however, that she was not the same employee she was before the MVA; she was doing the same job but she and her employer had to make accommodations to permit her to do so.  She left meetings for brief periods at times, she left work early at times, and she did not have the same energy for her work that she once had.  The author of her functional capacity report suggested she seek alternate employment at some time in the future.

 

The court found that Ms. Ahtonen’s life was profoundly affected by the MVA.  She suffered physical and psychological injuries. By the time of trial, it had been over four years since the MVA and the plaintiff still suffered from daily neck pain and headaches. She took medication and frequent rests.  The indicated that she could improve her overall physical condition but that her actual injuries were unlikely to get better or her discomfort and pain were unlikely to lessen.

The MVA had affected Ms. Ahonen’s relationships with her children and her husband. It had compromised her ability to do many of the activities she used to do as an active person and from which she derived significant pleasure and satisfaction. She was likely to live for the rest of her life with neck pain and headaches. She would have difficulty performing many of the activities she used to perform.  The Court awarded $100,000 in non-pecuniary damages.

 

There are a number of similarities between the conditions of Ms. Plaintiff and Ms. Ahonen.  Assuming causation is proven with respect to a number of Ms. Plaintiff’s psychological issues, she was arguably more affected, particular with respect to her ability to work post-Accident.

 

In Latuszek v Bel-Air Taxi (1992) Ltd, 2009 BCSC 798, [2009] BCJ No 1194, the plaintiff was in his early forties when he was involved in an MVA.  He was passing through an intersection at a speed approaching 100 km/hr when a taxi going in the opposite direction turned left through the intersection.  Mr. Latuszek’s pickup t-boned the taxi, killing the taxi driver and causing significant injuries to the plaintiff.  While it appears he was conscious after the accident, he had a memory gap of events.  This could have been due to trauma.  He was taken by ambulance to the hospital where he was treated.

 

Mr. Latuszek suffered a laceration on his forehead that has left a permanent scar. In addition, he suffered injuries to his right shoulder, neck, head, lower back, right knee, chest pain, bruising on the chest, breathing problems and a nosebleed. Following the accident, he suffered headaches and sleep disturbance. He had nightmares.  Initially following the accident, he used Tylenol 3 for pain for about two months, and had 81 sessions of physiotherapy.  He was off work for nine weeks.

 

While it appears that many of Mr. Latuszek’s injuries resolved, he sustained a tear in the meniscus of his right knee, which was apparently caused by the accident, and for which arthroscopic surgery was recommended in the future.  Further, he may have suffered an impingement in his right shoulder, for which daily exercise of 10-15 minutes was recommended with the addition of anti-inflammatories.  His shoulder pain appeared to persist at the time of trial.  Mr. Latuszek had received a cortisone shot for his shoulder one time.

 

The accident also had an emotional toll on Mr. Latuszek. He was diagnosed with PTSD of a chronic degree, major depression of a chronic degree, but mild to moderate, and pain disorder.

 

Mr. Latuszek had a history of depression three years before the accident that ended within a few months or up to one to two years of the accident.  He also had a pre-existing history of tension headaches related to stress, but these were apparently not symptomatic at the time of the accident.  Further, he has a pre-existing history of low back pain arising from a work accident in 1995 and a car accident in 1993, but this was not symptomatic at the time of the accident.

 

Since the accident, Mr. Latuszek had persistent neck and lower back pain, and he reported constant headaches. He also reported problems with concentration and memory retention.  At the time of trial, he was using Tylenol Extra Strength for pain.

 

In terms of activities, before the accident Mr. Latuszek played soccer with his son and some friends three to four times a month and he played tennis with his wife and friends once or twice a month.  Since the accident, he did not participate in these activities, fearing injury and pain to his knee and his arm, and indicating he was tired from work and did not have time.  His wife described him before the accident as a very strong personality, positive thinking, energetic, happy and active, who could make people laugh. He liked to do things and meet people. After the accident he was not the same person, having bad dreams, sweating a lot, stressed out about his work, lacking confidence, lacking concentration and having problems reading and expressing himself. His activities included walking one or two times a week in the yard or the house, and doing squats and arm exercises approximately twice a week.

 

He was awarded $100,000 for general damages, but this amount was reduced 40% for failure to mitigate, as he failed to perform a number of therapies and medications suggested for his injuries.

 

While Ms. Latuszek’s pain following the accident does not appear to have been as debilitating as that experienced by Ms. Plaintiff, it is arguable that his physical injuries from the accident, including a damaged meniscus and shoulder impingement, were more significant.

 

In Ashcroft v Dhaliwal, 2007 BCSC 533, [2007] BCJ No 797 (appeal dismissed in 2008 BCCA 352), the plaintiff was in her early fifties when she was injured in an MVA.  She was driving a small car when the driver of a dump truck, without seeing Ms. Ashcroft’s car, swerved right into her lane, striking her vehicle on the driver’s side of the car.  The vehicles stopped, after which the truck driver, without knowing it had hit the plaintiff’s car, tried again to move his truck into the right land, resulting in the car being tipped up on its right-hand side, causing Ms. Ashcroft to be suspended in the air.  When the driver backed the truck up, the car fell back to its upright position.  Ms. Ashcroft was terrified and thought she was going to die.

 

A year later, Ms. Ashcroft was involved in another accident, which was relatively minor compared to the first.  The injuries from the first accident were exacerbated by the second accident. The claim for the second accident was settled before the trial for the first.

 

In the first accident, Ms. Ashcroft sustained soft tissue injuries to her neck, shoulders, back, hips, upper arms and legs. She experienced headaches, dizziness, left arm and hand numbness. The second accident intensified her symptoms of neck and back pain as it aggravated her not-yet-fully recovered soft tissue injury from the first accident.  The symptoms that occurred following the first accident were aggravated by the second.  She became significantly disabled. She was unable to return to work due to chronic pain.  She was unable to sit or stand for prolonged periods. She could not lift or carry heavier objects.  At home she could only prepare simple meals which did not require a lot of standing.  She was unable to carry her laundry basket or do any housework with prolonged or repetitive bending.  She was unable to vacuum her house.

 

The accidents left Ms. Ashcroft in constant pain and stress, leading to clinical depression and PTSD. She searched for relief in every possible way, but her condition became chronic.   She tried to get back to work approximately 5 months after the first accident, but she was not physically ready for it and the attempt failed. She tried again about 6 months later and gradually got back to full time work with the assistance of pain medications. However, she found it difficult to cope with the work and the continuing pain and stress she was under. The second accident brought her attempt to return to work to an end.  She had been a woman of enormous energy who thrived on her work outside and inside the home. Her essential identity had been taken from her.  Her life was full of interest and joy, which had been taken from her. She was no longer that woman. Her prospects of improvement were uncertain.

 

The Court found that Ms. Ashcroft had a pre-existing spinal condition that was asymptomatic, but which might have become symptomatic in 10 to 15 years’ time; otherwise she was in excellent health prior to the first accident. There was no evidence to suggest that when or if the pre-existing disc degeneration should have become symptomatic, the symptoms would be anywhere near as serious as the symptoms caused by the accident.

 

The Court ordered non-pecuniary damages of $120,000.00. (It should be pointed out that the court determined that injuries suffered by Ms. Ashcroft in the two accidents were indivisible; all injuries she suffered in the second accident were causally connected to the first accident and the injuries it caused.  The court added that Ms. Ashcroft would have to account for any damages she had received in settlement of her claim for the second accident.)

 

The web of pre-existing conditions and subsequent events (i.e. subsequent accident) in Ashcroft is noteworthy in relation to the complexity of subsequent events and pre-existing conditions in Ms. Plaintiff’s case.

 

In Khosa v Kalamatimaleki, 2014 BCSC 2060, [2014] BCJ No 2704, the plaintiff was in her early thirties when she was involved in a frightening MVA.  She was stopped at an intersection in the curb lane, when a semi-trailer next to her on her left turned right at the intersection, impacting the side of Ms. Khosa’s car, shattering the driver’s side window and showering her with glass fragments.  Her head hit the back of the car seat. Her car was snagged by the trailer, and was dragged around the corner and some distance down the street.  She felt helpless and terrified. She had no control over her vehicle, and she thought she was going to die.  Her husband, who was called to the scene, drove her straight to her family doctor.

 

Ms. Khosa suffered moderate soft tissue injuries, initially causing significant pain in her neck and down her whole left side.  On the advice of her family doctor, she underwent massage therapy for six to eight weeks. This was followed by a variety of treatment treatments: (1) a three-month course of physiotherapy; (2) a further period of massage therapy following an unsuccessful attempt at returning to work about six months after the MVA; (3) an active rehab exercise program a year after the MVA, followed by continuing exercises at home; (4) two trials of acupuncture, about two years after the accident; and (5) a prolonged use of Tylenol 3 and anti-inflammatories as required.

Ms. Khosa’s arm, shoulder and leg pain resolved fairly quickly, but despite ongoing treatments she was left with frequent neck pain and headaches, and intermittent low back pain, which persisted to the date of trial.  She also sustained psychological injury.  Following the accident she had nightmares and she would experience what she described as flashbacks.  She was diagnosed as suffering depression and anxiety, and sought psychiatric and psychological treatment.

Ms. Khosa tried an attempted graduated return-to-work on four occasions between the MVA and trial.  The second attempt, about a year after the MVA, was interrupted by her needing to undergo surgery for a pre-existing ear problem, unconnected with the accident.  None of her attempts was successful. On each occasion, she felt unable to perform her duties due to her physical, cognitive and/or emotional issues. She had great difficulty concentrating. She was a nurse aid but had become unable to tolerate patients who were crying or suffering.

When her final return to work attempt was unsuccessful, Ms. Khosa stayed home for a period of time, and then was able to secure a permanent part-time positon near the time trial commended.  Her rate of pay was lower, and she testified to feeling at times ashamed that she was unable to do more. She abandoned her plan to obtain her B.Sc. in nursing and to pursue a career as an RN.

At the time of trial, Ms. Khosa did not like to go into public places. She no longer felt able to socialize with family and friends; she and her husband rarely went out. She felt that because of her neck pain and headaches she could no longer perform the household duties she used to undertake. Her relationship with her husband had become strained; they quarreled frequently. She did not like driving, as she was fearful of being involved in another accident.  She suffered from nightmares of the accident and engaged in obsessive negative thinking.  Overall, Ms. Khosa was significantly depressed and overwhelmed by her circumstances at the time of trial.  The court awarded $140,000 in non-pecuniary damages.

 

In Cantin v Petersen, 2012 BCSC 549, [2012] BCJ No 738, the 44-year old plaintiff’s vehicle was struck head-on by the defendant’s vehicle.  The plaintiff was traveling approximately 55 km/h before braking, and there was substantial damage to the front end of her vehicle.

 

The plaintiff suffered a number of injuries as a result of the accident. She bruised her hands, thumbs, right elbow, left knee and right shoulder.  She suffered a soft tissue strain to her lower back and hips, which caused pain in both her legs and feet.  She suffered a soft tissue strain of her neck, shoulders and upper back as a result of the accident. She had pre-existing injuries to the soft tissues of her neck, upper back and shoulders, which were aggravated by the collision, making them worse than they were before the accident.  Secondary to the plaintiff’s neck injury she had suffered headaches.

 

The soft tissue injuries the plaintiff sustained in the accident led to the development of serious, chronic pain in her upper and lower spine, hips, and legs. Despite many types of therapy, she continued to experience serious pain and a drastic reduction in her functional mobility for almost eight years after the accident, to the date of the trial. She lost the ability to work in a competitive labour market; she had no social life outside her home and her relationship with family members deteriorated substantially as a result of her constant pain and mental distress. She was unable to achieve restful sleep; she suffered a cognitive decline in memory; and she became a social recluse. Her prognosis for any level of recovery was extremely guarded.

 

In 2009, approximately 5 years after the accident, the plaintiff’s physical and mental symptoms of severe chronic pain and fibromyalgia became so severe that she could no longer care for her two teenaged children, so that she had to seek assistance from her brother and older daughter, who was living in Ontario.  For several months after that, she discontinued her medications out of frustration and due to an inability to afford their cost.

 

Given the pre-existing nature of her upper back, neck and shoulder pain symptoms, it was likely that the plaintiff’s physical condition would have deteriorated to a certain degree regardless of the accident, particularly if she continued to perform the heavy physical tasks of an electrician’s helper.  Even part time work aggravated her upper back and shoulder pain pre-accident.

 

Nevertheless, the accident worsened her upper back and neck symptoms, broadened her chronic pain to the lower back, and caused a dysfunction in her sacroiliac joints. The resulting widespread chronic pain also likely exacerbated her poor emotional response to her condition.

General damages were awarded in the amount of $150,000.

 

If you have been injured in an accident, the Lawyers at Kubitz and Company would be pleased to discuss the claims that are available to you. Please feel free to call 403-250-7100 to speak with us.

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