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

Question Presented:

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

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

Conclusion:

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

Discussion:

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

                                                                                    Damage Award           Inflation Adjusted

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

additional reasons at (1994), AR 397

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

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

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

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

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

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

affirmed on appeal at 2015 ABCA 179

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

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

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

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

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

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

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

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

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

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

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

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

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

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

33 Alta LR (6^th) 303

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

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

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

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

2009 ABQB 177, affirmed on

appeal at 2010 ABCA 57                                                        

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

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