Calgary Car Accident Sample Case:

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

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 Law 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 KC, a personal injury lawyer in Calgary, Alberta.