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

QUESTION PRESENTED:
Your client was involved in a motor vehicle accident in early
2013. Immediately following the accident, Ms. Client was assessed by EMS on the
scene but they did not take her to the hospital. She did not experience pain
right away, but after two days felt pain in her neck, back, and right
shoulder. Ms. Client drove herself to
her family doctor the next day.
Ms. Client has an extensive medical history. She was diagnosed
with degenerative disc disease in 2007. Ms. Client has had serious prior problems
with both of her knees; both the left and right had been diagnosed with
osteoarthritis. The right knee has had two arthroscopies and injections. She
had a total right knee replacement surgery in 2009, and total left knee
replacement surgery in 2010. Both knees recovered well.
An x-ray on her lumbar spine sacrum and coccyx in 2012
revealed multilevel degenerative change. She had discussed back surgery with
her doctor pre-collision but decided not to proceed.
The day after the car accident, Ms. Client went to her family
doctor complaining of headache, dizziness, neck pain that started at the
shoulders and radiated into her arms, and pain on all movement of her neck and
shoulder. Her family doctor diagnosed the injuries from the accident as WAD III
with associated strain of the thoracic and lumbar spine, right hip, and
shoulder. Further, in the opinion of the family doctor, the accident
exacerbated the underlying pre-existing degenerative changes, except in her
neck, which was a new injury. An expert diagnosed her with a mild traumatic
brain injury that was caused by the accident. Ms. Client had lumbar facet
injections in her lower back in 2013.
Ms. Client continued to complain that her right leg and back
were getting worse. She had several nerve block injections on her lower back in
2014. To deal with her pain, Ms. Client had a decompression and fusion for
spinal stenosis surgery on her low back in 2015. A dentist who saw Ms. Client
claimed that the accident caused damage to the ligaments supporting her
mandible. She can subluxate her mandible when she opens her mouth wide, and her
TMJ’s occasionally emit a grating or clunking sound.
As a result of the accident, Ms. Client suffered from
constant headache; ringing in her ears; jaw pain and discomfort; neck pain;
shoulder pain; right arm pain; tingling in her right fingers; constant low back
pain; pain in her right hip and buttocks that radiated down to her right leg;
tingling in her right toes; and moderate depression and anxiety. The headaches,
ear ringing, right arm pain, and the tingling in her right fingers resolved
approximately two years after the accident. The jaw pain resolved, but there is
still clicking. Ms. Client’s right hip pain, buttock pain, and right leg pain
all resolved after her 2015 back surgery. However, she was left with permanent neck,
shoulder and low back discomfort and ache.
After the accident, she was on both short-term and long-term
disability but returned to work on a part-time, modified duties basis in June 2013. She quit her job in October 2015 due to the
accident.
After the accident but before her surgery, Ms. Client
reported that she had some difficulty with personal care. She had trouble sitting
for long periods of time and some trouble with shopping, housework, and
laundry. She was unable to walk more than five blocks and could not do any
running or lift objects heavier than four kilograms. Ms. Client had difficulty
concentrating, and she could not mow the grass, shovel snow, or swim as she did
before the accident. After her surgery, things improved somewhat. She was able
to walk using a cane or handrails and found it easier to sit for long periods.
It became easier to lift things, prepare meals, and clean the house. She could
mow her lawn in sections.
CONCLUSION:
The case law shows that plaintiffs
with pre-existing conditions, with injuries similar in nature to those suffered
by Ms. Client, will be granted higher general damage awards if their
pre-existing conditions were asymptomatic when the accident occurred. General
damages will also be higher if the plaintiff suffered a measure of
psychological damage in addition to their physical injuries.
The most analogous case overall to
Ms. Client’s situation is Partridge v. Buskop, 2019 BCSC 459.
In this case, the 61-year old female plaintiff had significant pre-existing
medical problems. She had not recovered from a previous accident, and had
anxiety, anemia, and depression that was unresolved. The plaintiff sustained
soft tissue injuries to her neck, right shoulder, mid-back, and low back
regions, which exacerbated previous injuries to her back. Her pre-existing
depression and anxiety, PTSD-like symptoms, dizziness, and migraine headaches
were exacerbated. The plaintiff sustained a labyrinthine concussion and
developed tinnitus; she was awarded $90,000 in general damages.
The most analogous Alberta case is Sorochan
v. Bouchier, 2014 ABQB 37, in which the plaintiff suffered similar
injuries to Ms. Client and had similar pre-existing injuries. The plaintiff was
a 57-year old woman who was injured in a motor vehicle accident; she suffered
headaches, neck pain, shoulder pain, and back pain. The back pain progressed
and became chronic. The Sorochan plaintiff underwent
injections in an attempt to deal with her pain. The court awarded $78,975 in
general damages (inflation adjusted).
Other analogous cases set the general
damage award for plaintiffs with similar injuries to Ms. Client’s, inflation
adjusted, from a high of $162,450 to a low of $59,310, with an overall average
amount of general damages awarded of $93,300. Analogous Alberta cases set the
award, inflation adjusted, from a high of $96,135 to a low of $59,310. The
average amount of damages awarded in similar Alberta cases was $73,895.
Therefore, it seems that Ms. Client’s likely general damage award will range
around $75,000 to $90,000.
The following cases are inflation-adjusted using the
Economica index.
DISCUSSION:
Cantin v. Petersen, 2012 BCSC 549 $150,000 $162,450
The plaintiff in this case was injured in a motor vehicle
accident in 2004; the defendant attempted to turn left immediately in front of
her. The plaintiff argued that as a result of the accident, she suffered
injuries to her upper and lower back, shoulders, neck, hips, leg, and feet;
these injuries led to chronic pain, sacroiliac dysfunction, severe and ongoing
headaches, and cognitive and psychological complications. Bruce J held that the
plaintiff suffered bruised hands, thumbs, right elbow, left knee, and right
shoulder, and these injures resolved quickly. She sustained a soft tissue
strain to her lower back and hips, which caused pain in both her legs and feet;
these injuries were caused by the collision. She also suffered a soft tissue
strain of her neck, shoulders, and upper back and was diagnosed with a grade II
soft tissue strain of the neck and low back due to the motor vehicle accident.
While all of the medical experts were in consensus that the plaintiff suffered
injuries in the accident, they disagreed as to the causes of her current
complaints and symptoms. Bruce J held that the plaintiff was suffering from
chronic pain in her upper and lower back regions and debilitating headaches.
One of the medical experts testified that the plaintiff had a cognitive
distortion, an unconscious complication of chronic pain, and an underlying
sacroiliac joint malalignment that exacerbated and underlaid her low back
problems. All experts agreed that the plaintiff had pre-existing weakness and
pain symptoms in her upper body regions. She had episodic myalgic pain in her
upper back region for at least two years prior to the accident that caused her
considerable pain. Bruce J concluded that the plaintiff continued to suffer
pain in her upper back, shoulders, and neck, and her headaches were also
causally connected to her chronic pain syndrome in her upper and lower body.
She had a medical history of chronic pain in her upper back, shoulders, and
neck, and had seen numerous doctors and medical practitioners to try and deal
with this. The plaintiff suffered emotional problems as a result of her pain,
including anxiety and depression. Bruce J held that the plaintiff had
experienced a significant deterioration since the accident; however, given the
entrenched nature of her upper back, neck, and shoulder pain symptoms, it is
likely that she would have deteriorated to a certain degree regardless of the
accident. She was unable to work, had no social life, could not sleep, and
suffered a cognitive decline in memory since the accident; her general damages
were assessed at $150,000.
The damages suffered by the plaintiff in this case are
similar to those of Ms. Client; however, this plaintiff was diagnosed with
chronic pain. These damages likely represent the highest damage award that Ms. Client
can expect.
Johnstone v. Rogic, 2018 BCSC 988 $145,000 $145,000
In this case, the 42-year old female plaintiff was injured in
a motor vehicle accident in 2013. She claimed to suffer soft tissue injuries to
her neck and lower back that led to chronic pain and severe, debilitating
headaches. Immediately after the accident, she had a significant headache and
pain at the back of her neck; she was in shock. The next day, she felt
extremely sore. The plaintiff saw a doctor several days after the accident
complaining of pain and headaches. She eventually required a Butrans patch and
Botox injections. Prior to the accident, the plaintiff suffered from Type 1
diabetes and fibromyalgia, but was not being treated for the fibromyalgia and
the diabetes was controlled. Several medical experts diagnosed the plaintiff
with chronic lumbar spine pain. Burke J concluded that the plaintiff’s
fibromyalgia was exacerbated by the accident and she continued to experience
pain; her prognosis was guarded. Burke J held that in order to restore the
plaintiff to her pre-accident condition, he had to consider her pre-existing
conditions but that the accident had a significant effect on all aspects of her
life; he awarded her general damages of $145,000.
Given jurisdictional differences, it is not likely that Ms. Client
will receive a general damage award that is this high. However, there are
similarities between the Johnstone plaintiff and Ms. Client:
both were females who are close in age and both had pre-existing conditions.
The general damages awarded in this case may provide an argument for pushing
Ms. Client’s range of general damages higher.
Hanger v. Shin, 2019 BCSC 99 $120,000 $120,000
In this case, the 47-year old male plaintiff was injured when
the defendant rear-ended him. He worked as a martial arts instructor and had
several studios. The plaintiff had been in a significant motor vehicle accident
in 2008, in which he received treatment for neck and back pain. This treatment
included medial branch blocking. He was left with left-sided low back pain, but
was in generally good health at the time of the accident being litigated.
Immediately following the accident, the plaintiff had pain in his neck and
back. He was taken to the hospital by ambulance but released the same day.
After the accident, he complained of neck pain, increased back pain, numbness
down his left leg, severe headaches, and depression. The neck pain resolved in
about a year, but the back pain continued. The plaintiff received lumbar facet
and trigger point injections, as well as RFA therapy; he was on anti-depressant
medication. Branch J held that at the time of the accident, the plaintiff was
only 75 percent recovered from the previous accident. The current accident
caused renewed neck pain and exacerbated his residual back pain from the 2008
accident. The accident caused the plaintiff to suffer from soft tissue injuries
to his neck and low back, including facet joint injuries and a re-aggravation
of facet joint injuries at the L4/L5 level. The plaintiff had chronic headaches
at least partially related to his neck injury; the accident triggered
depression. Branch J awarded the plaintiff general damages of $120,000.
This case may provide a good argument for bolstering the
upper range of general damages for Ms. Client. The Hanger plaintiff had
pre-existing injuries and issues that were significant, similar to Ms. Client.
After their motor vehicle accidents, both plaintiffs suffered soft tissue
injuries, pain, numbness, and depression. Ms. Client and the Hanger
plaintiff both underwent significant treatment in an attempt to alleviate their
pain. While the different jurisdictions will likely mean that Ms. Client will
not receive such a high damage award, this case provides a good argument for a
higher award.
Murphy v. Jagerhofer, 2009 BCSC 335 $100,000 $115,100
The plaintiff in this case was 36 years old when his vehicle
was rear-ended by the defendants’ vehicle; he was a financial advisor for a
financial services company. He suffered soft tissue injuries to his neck and
back with accompanying headaches, and later developed tinnitus, dizziness, and
jaw pain. He suffered psychological symptoms of anxiety, depression, and PTSD.
Prior to the accident, the plaintiff had fallen from a ladder in 1989 and
suffered some broken bones in his foot and injuries to his neck and back. He
had a minor injury of his neck and upper back playing rugby in 1990. In 1992,
the plaintiff was in a motor vehicle accident and suffered soft tissue injuries
to his neck and upper back. Beginning in 1998 and continuing into October 2006,
the plaintiff had several knee surgeries to repair his anterior cruciate
ligaments and meniscus; he also had some psychological problems. However, all
of these injuries were largely asymptomatic at the time of the accident. Within
a few days of the accident, he developed neck stiffness, headache, back pain,
shoulder pain, chest pain, difficulty breathing, trouble sleeping, wrist pain,
left groin pain, and rib pain; his chief complaints were his neck and back
pain. A doctor stated that the plaintiff’s jaw pain was consistent with TMJ
injury and myofascial pain of the masticatory muscles. Since the accident, the
plaintiff had a fear of driving or being a passenger in a vehicle. Warren J
held that based on the evidence, while the plaintiff had pre-existing
conditions, these were all asymptomatic at the time of the accident. He
suffered a moderate to severe whiplash type injury that had a significant
physical and emotional effect; his back and neck pain caused him considerable
pain, sleeplessness, headaches, and general body pain. The plaintiff
experienced some hearing loss, tinnitus, and episodes of dizziness; TMJ
arthralgia and myofascial pain; and emotional difficulty. General damages of
$100,000 were awarded.
The injuries suffered by the plaintiff in this case are analogous
to those of Ms. Client. While this plaintiff’s psychological damage appears to
be more severe, he did not undergo the surgeries and injections that Ms. Client
did in order to deal with pain. The general damage award in this case is likely
at the upper range of damages that Ms. Client can expect.
Carroll v. Hunter, 2014 BCSC 2193, additional reasons in 2014 BCSC 2429 $100,000 $105,300
In this case, the 47-year old plaintiff was injured in a
motor vehicle accident. She alleged that she suffered intense neck pain,
occipital headaches, and injuries to her upper back, shoulders, and arms. Seven
years after the accident, she continued to complain of chronic neck pain,
persistent headaches, and sleep deprivation. Immediately following the accident,
the plaintiff experienced intense and persistent neck pain; the pain increased
and interfered with her sleep. She experienced continuous pain in her neck and
upper back; she tried trigger point lidocaine injections to provide relief. The
injections worked in the short term, but did not provide long-term relief. She
had botox injections into the muscles of her upper back and neck that caused
her pain to intensify for a few days after the injection, but then gave her
five weeks’ benefit. The plaintiff had dry needling treatment in her neck, but
it didn’t help; she tried guided facet joint injections that gave her
approximately three weeks’ relief each time. The plaintiff underwent
radio-frequency lesioning on the right side at C3-C5, which provided her some
relief for one month. An MRI from 2008 showed evidence of cervical disc
degeneration, including a narrowing of the disc at C5-6, and a bone scan showed
facet joint disease of the right cervical facet joint at C3-4. Pearlman J held
that the plaintiff did have degenerative changes to her cervical spine in the
form of osteoarthritis; however, they were asymptomatic and she had never
before complained of neck pain. Pearlman J concluded that the plaintiff
suffered soft tissue injuries to the right C2-C5 facet joints and adjacent neck
muscles, and she sustained chronic neck pain, injury to her cervical facet
joints. However, he held that the plaintiff’s multi-level disc herniations were
not caused by the accident, but instead were the result of progressive degenerative
change to the plaintiff’s cervical spine. The amount of general damages awarded
was $100,000, with a 10 percent reduction for the risk that her degenerative
disc disease would have become symptomatic in the future regardless of the
defendants’ negligence.
The circumstances of this case are significantly similar to
those of Ms. Client. Both plaintiffs sustained similar injuries and underwent
similar methods to try and deal with their pain. This case may provide a good
benchmark for a general damage award for Ms. Client, although possibly on the
high side.
Do v. Sheffer, 2010 ABQB 86, additional reasons in 2010 ABQB 422 $85,000 $96,135
In this case, the plaintiff was injured in a motor vehicle
accident and claimed he became totally disabled as a result. Prior to the
accident, the plaintiff worked in medium to heavy labour and had a history of
intermittent back pain with occasional flare-ups. He had been diagnosed with
low back strain and associated pain and numbness in his leg and foot. The
plaintiff had a left L5-S1 laminectomy and discectomy in 2002, after which he
had a program of therapy and rehabilitation. After the accident, the plaintiff
was taken to the hospital where x-rays showed moderately severe degenerative
disc disease at L5-S1 but no other abnormalities, while the x-ray of the
cervical spine showed mild degenerative disease. The plaintiff was diagnosed
with multiple soft tissue injuries and painkillers and physiotherapy were
prescribed. Lee J held that the plaintiff suffered an exacerbation of his prior
back issues in the accident; these issues had generally resolved by the time of
the accident. He also suffered an injury to his neck and shoulder. Although the
neck and shoulder injury largely resolved, the plaintiff continued to have pain
in his lower back that was caused by the accident. Lee J held that the
plaintiff’s injuries were permanent and resulted in clinical impairment of his
cervical spine. Further, the plaintiff was a thin skull, not a crumbling skull,
plaintiff as his prior medical problems were asymptomatic. Lee J awarded the
plaintiff $85,000 in general damages.
This plaintiff had pre-existing medical issues that were
exacerbated by the motor vehicle accident he was involved in. He continued to
have pain in his back, neck, and shoulder, similar to Ms. Client. The general
damage award in this case may provide a good benchmark for the general damages
that Ms. Client can expect to receive; her injuries were arguably more serious
than what the Do plaintiff sustained.
Karst v. Foster, 2019 BCSC 1043 $90,000 $90,000
In this case, the 53-year old male plaintiff was injured in a
motor vehicle accident when he was rear-ended by the defendant’s vehicle. Prior
to the accident, the plaintiff was in generally good health. However, he had an
arm injury that required him to undergo three surgeries, and he had
pre-existing back pain. The plaintiff worked as a correctional officer.
Immediately following the accident, the plaintiff felt a sharp pain in his
upper back, along with headache and nausea; he felt shaken and his body was in
pain. He did not go to the hospital, but managed to drive home. When he got
home, the plaintiff started to vomit and was in significant physical pain. His
wife drove him to the emergency room, where he was examined and discharged with
painkillers. The plaintiff testified that since the accident, he has suffered
chronic back pain as well as pain in his left leg; he could not sit still for
more than 15 minutes without having to get up to stretch. The plaintiff had an
epidural steroid injection that alleviated his pain somewhat, but the pain
eventually returned. He underwent two lumbar medial branch nerve blocks,
followed by a radiofrequency neurotomy. Horsman J held that he had no
difficulty in concluding that the accident caused or contributed to the significant
exacerbation of low back pain that the plaintiff experienced; the back pain has
now become chronic. The plaintiff’s pre-existing conditions were exacerbated by
the accident. Horsman J held that the plaintiff’s pain caused him constant fatigue
as a result of interrupted sleep patterns due to pain; he was unable to
continue with his job as a corrections officer. Horsman J awarded the plaintiff
general damages of $90,000.
This case is very analogous to Ms. Client’s situation. Both
plaintiffs had similar pre-existing conditions that were exacerbated by a motor
vehicle accident. However, Ms. Client’s prior medical problems are more severe
than the Karst plaintiff. This case may represent a good precedent for
the upper range of general damages that Ms. Client can expect to receive.
Partridge v. Buskop, 2019 BCSC 459 $90,000 $90,000
In this case, the 61-year old female plaintiff was a medical
transcriber who was injured in a motor vehicle accident in 2013; liability was
admitted. The plaintiff had been in a previous accident in 2004, from which she
had not yet made a full physical recover. Prior to the accident, she suffered
from anxiety and depression, and she had an onset of medical problems,
including anemia and back problems, earlier in 2013 before the accident. She
claimed that the accident exacerbated her pre-existing medical problems. In the
accident, the plaintiff’s head struck the window; she had to be pulled out of
the vehicle because the door wouldn’t open and was taken by ambulance to the
hospital. The plaintiff was shaking, vomiting, and crying at the hospital. She
had a bad headache and was experiencing dizziness and ringing in her ears, as
well as right shoulder pain and a swollen right ankle. She was discharged that
night. After the accident, the plaintiff stayed in bed for two or three days,
and she continued to suffer headaches, ringing in her ears, dizziness, vertigo,
and sensitivity to noise. Her pre-existing depression got worse. Morellato J
held that in the accident, the plaintiff suffered soft tissue injuries to her
neck, right shoulder, mid-back, and low back regions, which exacerbated
previous injuries to her back. Her pre-existing depression and anxiety,
PTSD-like symptoms, dizziness, and migraine headaches were exacerbated. The
plaintiff sustained a labyrinthine concussion and developed tinnitus. Morellato
J awarded the plaintiff $90,000 in general damages.
This case is analogous to Ms. Client’s situation. Both
plaintiffs were female of a similar age; both had a history of pre-existing
conditions. They each sustained soft tissue injuries and depression, along with
an exacerbation of their pre-existing injuries. The general damage award in
this case likely represents the upper range of damages that Ms. Client will
receive.
Park v. Targonski, 2015 BCSC 555 $80,000 $83,280
The 40-year old plaintiff in this case was a registered nurse
who was born in Korea. She was rear-ended by the defendant’s vehicle in 2009;
liability was not an issue. Prior to the accident, the plaintiff received 37
massage therapy treatments on her neck, back, and shoulder between 2006 and
2008; she also had physiotherapy in 2007 on her right arm. The plaintiff had
been working very hard and taking on extra nursing shifts in the time leading
up to the accident, and the physical toll of the job caused persistent aches,
pains, and muscle stiffness in her neck, back, and shoulder. Immediately after
the accident, the plaintiff exchanged information with the defendant and
continued on her way to work; however, she felt a sharp pain on the right side
of her neck. She went to a walk-in clinic and was given a muscle relaxant and
painkiller. The plaintiff testified that her symptoms worsened over the
weekend. She had pain in her neck, back and right arm, and was unable to put
her arm behind her back; she had back spasms. She testified that for the first
few months after the accident, she had severe neck pain every day and attended
physiotherapy and massage therapy. The plaintiff had great difficulty performing
her usual nursing tasks, and had to take time off work. She became depressed
and went on to develop chronic pain with a profound psychological dimension.
The plaintiff was given a series of corticosteroid and Botox injections in her
back on ten occasions between September 2011 and June 2014. At the time of
trial, the plaintiff testified that her physical symptoms and mood were stable but
with ups and downs. Fitch J held that the plaintiff was experiencing neck,
shoulder, and back pain prior to the accident, likely caused by her job and the
extra shifts she was working. Her symptoms were intermittent but repeatedly
symptomatic at the time of the accident, and likely would have continued if the
accident had not occurred. The accident significantly aggravated her
pre-existing pain; she went on to develop chronic pain after the accident with
a deep-rooted psychological component. However, she failed to mitigate her
damages by following the advice of her health care providers, and exaggerated
her symptoms to the medical examiners. A general damage award of $80,000 was
made. However, Fitch J deducted 10 percent for the plaintiff’s pre-existing
condition and a further 20 percent for her failure to mitigate, for a total
general damage award of $56,000.
The plaintiff appealed in Park v. Targonski, 2017
BCCA 134 with respect to the amount of the reduction. The British Columbia
Court of Appeal allowed the appeal, to the extent of setting aside the 20
percent deduction for non-pecuniary damages, finding that the trial judge erred
in concluding that the plaintiff failed to mitigate her losses.
The situation of the plaintiff in this case is quite similar
to that of Ms. Client; both were middle-aged nurses who were involved in
rear-end motor vehicle collisions and suffered neck, back, and shoulder
injuries. However, there are some differences in terms of injuries. This
plaintiff had quite a significant psychological component to her injuries that
Ms. Client does not; in addition, Ms. Client’s pre-existing conditions are more
serious than those of this plaintiff.
Sorochan v. Bouchier, 2014 ABQB 37 $75,000 $78,975
In this case, the 57-year old plaintiff was driving her
vehicle and was stopped at a light when she was rear-ended by a large flatbed
delivery truck driven by the defendant. The plaintiff did not experience any
pain immediately following the accident and did not seek medical attention that
day. She began to experience headaches within a few hours following the
accident, and neck pain, shoulder pain, and pain at the top of her spine the
day after. Her chief complaint was lumbar back pain that continued to bother
her. The back pain led to pain radiating down her legs. The plaintiff received
a nerve root injection in the lower spine that she found extremely painful, but
did not help with the pain. She received cortisone spinal cord injections, but
the pain continued. At the time of trial, the plaintiff was on a waitlist for a
L3/5 instrumentation and decompression with interbody cages. A CT scan in March
2006 revealed bulging lumbar discs; the plaintiff’s lumbar spine had been
asymptomatic prior to the accident. The plaintiff was a teacher; she had
intended to work until age 65, but testified that the accident and subsequent
pain forced her to retire earlier. An MRI scan performed in 2007 confirmed the
presence of mild to moderate spinal stenosis. Belzil J concluded that the
plaintiff sustained a 10.5 percent permanent partial disability as a result of
the accident. Both the plaintiff and defense medical experts concluded that the
plaintiff suffered a 21 percent permanent partial disability, but only half of
this was attributable to the accident; the other half was based on pre-existing
conditions. General damages in the amount of $75,000 were awarded.
The plaintiff appealed the division of causation that the
accident was only responsible for half of her disability in Sorochan
v. Bouchier, 2015 ABCA 212. The per
curiam Court of Appeal held that a permanent impairment of 21 percent
yields a general damages award of approximately $75,000. Therefore, even though
the trial judge may have erred in failing to hold the respondent fully liable
for the appellant’s injuries, the correct amount of damages was awarded.
This case is likely a good indicator of the general damage
award that Ms. Client can expect. The plaintiff experienced similar injuries in
a similar manner of accident; similar methods were undertaken in an attempt to
deal with pain. While Ms. Client had more serious pre-existing injuries than
this plaintiff appeared to, this case provides a good benchmark as to the
damage award that she can expect.
Stevenson v. Thompson, 2017 ABQB 451 $75,000 $75,570
The plaintiff in this case was sitting in her parked car in a
parking lot in 2008 reading a book when she was struck by a vehicle driven by
the defendant. The plaintiff alleged she suffered a WAD II sprain/strain, which
led to long-term chronic pain syndrome; she claimed to suffer from ongoing pain
and dysfunction in her neck, back, and shoulder. In terms of her medical
history, the plaintiff had some gynaecological problems; hypothyroidism; and
hospitalization of two weeks’ time for adjustment disorder and depression. The
plaintiff had a snowmobile accident in 2004 where she suffered lower back pain,
shoulder pain, neck pain, tingling in her legs, and headaches. She was in a
motor vehicle accident in 2006 where she sustained whiplash. She saw her family
doctor in 2007 complaining of low back pain and tingling in her right thigh;
she had a gallbladder attack in 2007. A chiropractor diagnosed her with a
misalignment in her right sacroiliac joint in 2008. In 2008, she complained of
headaches, low energy, stress, sleeplessness, digestive problems, and a desire
to quit smoking. She had a fall in 2008 and complained of neck stiffness,
headache, left wrist pain, nausea, sleeplessness, vision problems, numbness in
her right hip, bruising on her forearms and weakness in her left hand; the
diagnosis was whiplash. Shortly after the accident, the plaintiff complained of
headache, stiffness in her neck, upper and lower back pain, right shoulder
pain, lower leg and right thigh tingling; she continued to complain of pain in
these areas. The plaintiff was diagnosed with carpal tunnel syndrome in 2010; she
experienced several more slip and falls; was hospitalized for a stroke-like
event; and had another motor vehicle accident. Park J held that subject to her
ongoing difficulties with her hyperthyroidism and life-stress issues, the
plaintiff was in good health on the day prior to the accident. The plaintiff’s
chiropractor diagnosed her with a sprain and strain of grade 2 nature of the
lumbar thoracic cervical spine and a WAD III injury. Park J accepted that the
plaintiff suffered from chronic regional myofascial pain, cervicogenic
headaches, and a chronic mechanical low back pain. Park J stated that prior to
the accident, the plaintiff’s primary health concerns related to her
hyperthyroid condition, depression issues, anxiety and stress issues, and sleep
deprivation. The accident caused her to experience headaches, stiffness and
pain in her neck, shoulders and arm; global loss of range of motion,
difficulties with extension and muscle spasms; a sprain/strain of the lumbar,
cervical, and thoracic spine; and a WAD II whiplash injury. The plaintiff was
awarded $75,000 for general damages; this was reduced by 20 percent for her
failure to mitigate.
The plaintiff in this case had pre-existing conditions that
contributed to her injuries, but were exacerbated by the injuries sustained in
the motor vehicle accident. The pre-existing injuries were different in nature
than those of Ms. Client; they were arguably less severe, with the exception of
this plaintiff’s psychological problems. However, this case may provide a good
benchmark for the general damage award that Ms. Client can expect.
Kagrimanyan v. Weir, 2018 BCSC 1458 $75,000 $75,000
In this case, the 35-year old female plaintiff was injured in
a motor vehicle accident, where the vehicle she was in was hit from behind by
the defendant driver. Prior to the accident, the plaintiff was in generally
good health. She had suffered from carpal tunnel syndrome, but this was
successfully treated by elbow surgery; she had sustained a previous ankle
injury that had also healed. In the accident, the plaintiff was wearing her
seatbelt; her hand banged against the headrest. Immediately following the
accident, the plaintiff felt shaky and scared but was able to drive home. That
night, she had a headache and pain in the back of her head. She was very sore
the next day and had a severe headache. She was prescribed painkillers, muscle
relaxants, massage, and physiotherapy, but continued to suffer neck soreness
and soreness in her back and between her shoulders. The plaintiff’s injuries
included headaches and dizziness, and soft tissue injuries to her neck, upper
back, and lower back extending into her left leg. She continued to experience
pain in her neck and back. The plaintiff had chiropractic, massage, and
physiotherapy treatments; she saw a physiatrist. Riley J agreed with the
experts that the plaintiff suffered from chronic pain; her prospects for
recovery were poor. Riley J awarded general damages of $75,000.
The general damage award in this case may present an accurate
benchmark for the general damage award that Ms. Client can expect to receive.
Both plaintiffs sustained soft tissue injuries to their necks and backs.
However, Ms. Client’s injuries are arguably more serious, given that she
required surgery to correct her back. Given this, and the differences in
jurisdictions, Ms. Client should be awarded general damages on par with what
was given out in this case.
Carrier v. Wan, 2007 ABQB 279 $60,000 $70,920
The 57-year old plaintiff in this case was diagnosed with
degenerative disc disease in his neck in 1997 and sciatica in his right leg in
April 1999. In July 1999, he was struck from behind by the defendant’s vehicle,
whose vehicle was then hit by another vehicle. The plaintiff was able to drive
away from the scene and did not miss any time off work. In December of 2000 the
plaintiff was involved in another motor vehicle accident, where he was in the
process of turning left on a highway and was hit head on by an oncoming
vehicle. Shortly after the 1999 accident, an x-ray of the plaintiff’s spine
showed a grade I spondyolistheses of L5 on S1 and degenerative disc disease
between L4 and L5, which pre-existed the 1999 accident. In December of 1999 a
CT scan of the plaintiff’s lumbosacral spine showed diffuse annular disc
bulging at L4-5 and L5-S1 and anterior spondyloistheses of L5 on S1. In October
2004, the plaintiff had an MRI of his vertebrae and right hip, which showed
degeneration and disc prominence at the L4-5 and L5-S1 vertebral levels, a
discreet tear in the wall of the L5-S1 vertebrae, and marked degenerative
arthritic changes in his right hip. There was no evidence as to whether the
tear of the hip arthritis was there before the 1999 or 2000 accidents. In
November 2005, the plaintiff had a total right hip replacement. He was involved
in anywhere between two to five motor vehicle accidents before the 1999
accident; he had pain in his shoulder and arm in 1997 and had chiropractor
treatments; and commencing in 1998, he had pain in the right leg and lower back
and had chiropractic treatments in 1999, prior to the accident. One of the
central issues at trial was whether or not the 1999 accident caused or
contributed to the development of arthritis in the plaintiff’s hip. A medical
expert at trial testified that neither accident caused or contributed to the
right hip arthritis. He testified that the plaintiff also had arthritis in his
left hip, which was not injured in the accident. In his opinion, in the 1999 accident,
the plaintiff sustained soft tissue injuries of a Grade II WAD injury in the
cervical spine and lumbar strain in the lumbar spine; these injuries became
chronic and symptomatic for many years. Upon considering all of the medical
opinions, Coutu J concluded that in the 1999 accident, the plaintiff sustained
a WAD III whiplash injury, including soft tissue injury to his cervical and
thoracic spine, lumbar spine, lumbosacral area, pain in the sacroiliac joints
with chronic inflammation and chronic pain, headaches, sleep disturbance, and
depression. Coutu J awarded $60,000 in general damages.
The plaintiff appealed the amount of the award in Carrier
v. Wan, 2008 ABCA 318. The per
curiam Alberta Court of Appeal dismissed the appeal, finding that the trial
judge made no error.
This case is perhaps the most analogous to Ms. Client’s. The
plaintiff sustained similar injuries and had similar pre-existing conditions.
This case is likely in line with the general damage award that Ms. Client can
expect to receive.
Farbatuk v. Lagrimas, 2014 BCSC 1879 $60,000 $63,180
In this case, the 50-year old plaintiff sustained personal
injuries when the defendant rear-ended him in a motor vehicle accident in
December 2011. The plaintiff testified that after the collision, he was not
visibly injured and was not in immediate pain; he sustained no cuts, bruises,
or loss of consciousness. However, as the day progressed he stiffened and felt
his back tighten up. He went to a walk-in clinic several days after the
accident because of pain in his back and neck; he suffered back spasms and
headaches. The plaintiff’s family doctor diagnosed him with Grade II whiplash
associated disorder of the neck, middle, and lower back as a result of the
accident. He also had a pre-existing asymptomatic diffuse idiopathic skeletal
hyperostosis, which is a rare condition that is a bony formation or fusing of
the ligaments that attach each vertebrae of the spine, causing them to become
very stiff with a decreased range of motion. An orthopaedic surgeon found that
the plaintiff had pre-existing degenerative changes in his cervical and
thoracic spine that were asymptomatic prior to the date of the accident and degenerative
facet joint changes were suspected. The accident caused soft tissue injuries to
his cervical, thoracic, and lumbar spine. Kloegman J held that it was not
proven on the balance of probabilities that the plaintiff suffered any
aggravation or acceleration of a pre-existing condition from the accident. With
respect to assessing general damages, prior to the accident the plaintiff was
in good health and led an active life. Kloegman J awarded the plaintiff $60,000
in general damages.
While there are similarities to Ms. Client’s accident, this
case may represent the lower end of damages that she can expect. This plaintiff
also had significant pre-existing conditions, but did not go through the
extensive measures that Ms. Client has in an attempt to resolve pain. The
general damages awarded here may be at the lower end of what Ms. Client can
expect.
McLean v. Parmar, 2015 ABQB 62 $60,000 $62,460
The 29-year old plaintiff in this case was hit by the
defendant’s bus when it ran a red light; liability was not an issue. The
plaintiff claimed that she suffered from severe soft tissue injury to her neck,
shoulders and back, headaches, dizziness, injury to her TMJ’s, PTSD,
depression, a concussion consistent with a mild brain injury, and chronic pain
that lasted for approximately two and a half years. She was an accountant who
had a second part-time job as a server in a pub; she had to quit work at the pub
due to the accident. During the accident, the plaintiff did not lose
consciousness, but severely panicked because the airbags deployed, causing her
vehicle to fill with smoke; she thought she was going to die. The plaintiff did
not go to the hospital. She couldn’t sleep that night because she was sore,
scared, and experiencing back and neck pain. The plaintiff went to a walk-in
clinic the next day, where the doctor noted she had a tender spine with
restriction turning, shoulder pain with painful movement, and a tender back
with decreased range of motion. She was diagnosed with whiplash and back strain,
and physiotherapy and painkillers were ordered. The physiotherapist noted that
the plaintiff had restricted range of motion of the neck and back, as well as pain
and tenderness on both the right and left sides of her jaw, some radicular
symptoms down her arm, and headaches; WAD II whiplash was diagnosed. She also
had stress and depression problems. The plaintiff’s family doctor stated that
the plaintiff suffered from a WAD II cervical strain/whiplash, muscular mid and
upper back and right arm contusions and myalgia which resulted in mental and
physical debilitation, mild reactive depression, PTSD, and a concussion that
caused dizziness, vertigo for a period of time, headaches, and chronic pain.
She suffered bilateral disc displacements and general pain in her TMJ’s. To
deal with her pain, the plaintiff had prolotherapy injections to her neck and
upper spine area nine times; she found this therapy helpful. Eidsvik J held
that the WAD II injuries suffered by the plaintiff were not minor injuries
within the meaning of the regulations because she was unable to continue
working at the pub, and was unable to perform some of the tasks of her daily
living as she used to. Eidsvik J assessed general damages for the plaintiffs’
injuries separately. For the moderate whiplash, concussion, and chronic pain, she
would award $25,000; for the TMJ injury, $10,000 – $15,000; and for the PTSD
and depression, $20,000 – $25,000.
This case may be instructive as to Ms. Client’s general
damage award. Eidsvik J assessed damages by breaking them down into separate
dollar values; many of the injuries suffered by this plaintiff were also
sustained by Ms. Client. This plaintiff did not have the extensive pre-existing
injuries of Ms. Client, and arguably suffered more serious psychological
problems.
Howes v. Rousta, 2002 ABQB 1052, additional reasons in 2003 ABQB 132
$45,000 $59,310
In this case, the 56-year old female plaintiff was injured in
a motor vehicle accident. She was a nurse and a poet, and had worked in retail
and journalism. The plaintiff’s vehicle was struck from behind by the
defendant’s vehicle and the impact was not at high speed. The plaintiff was
somewhat stunned but drove to her place of employment (at a hospital); her
co-workers convinced her to go to the emergency department. The plaintiff had a
fairly lengthy pre-existing medical history, including an episode of depression;
a discectomy with periodic back pain thereafter; low back strain; pain in her
right lumbar spine radiating down her right leg; an injury to her coccyx;
further depression. When the plaintiff went to emergency after the accident,
she complained of numbness to her right arm, back and right leg, and neck pain.
A neurosurgeon noted degenerative spinal changes with loss of disc space and
small osteophytes. The plaintiff told her family doctor that her chief concern
was pain in the lower back radiating down her right leg; she was referred to
the Canadian Back Institute. She later complained of shoulder pain and was
given a steroid injection; an arthrogram revealed a normal shoulder. The
plaintiff’s mental state deteriorated and she went into a manic phase and was
diagnosed with bipolar disorder. With respect to general damages, Marceau J
held that the plaintiff suffered a neck injury and back strain that essentially
healed within 18 months; bilateral tendonitis in her shoulders while undergoing
treatment that eventually resolved; mild chronic pain syndrome; and a decrease
in her loss of enjoyment of life. Marceau J awarded $45,000 in general damages.
There are many similarities between this plaintiff and Ms. Client.
While this plaintiff had more serious psychological trauma, Ms. Client
underwent more extensive measures to try and heal her back injury. Both
plaintiffs were female, of a similar age, and had a similar profe
Article edited by Walter W. Kubitz, Q.C. a personal injury
lawyer in Calgary, Alberta.