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Whiplash in a Rear-End Collision

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Select Case Summaries for Whiplash in a Rear-End Collision

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

accident lawyers Calgary Peter Trieu

In 2013, Ms. Plaintiff’s car was rear-ended by the Defendant.  Before the collision, Ms. Plaintiff had unrelated health concerns.  Ms. Plaintiff suffered the following injuries as a result of the collision:

  1. Post traumatic headaches;
  2. Chronic cervical and thoracic sprain;
  3. Numbness and tingling in her right arm and right hand;

Listed below are select case summaries from a research memo we prepared to assess Ms. Plaintiff’s claim.  The range of damage awards were inflation adjusted as of June 2017.

Case General Damage Award Inflation Adjusted Damage Award
Lu v. Huang 2016 CarswellBC 1698, 2016 BCSC 1146 $90,000.00 $90,974.00

Collision date:  April 27, 2011

The Plaintiff passenger suffered the following injuries as a result of a rear-end collision (para 158):

  1. ainjuries to the cervical, thoracic and lumbar areas of her spine;
  2. a disc protrusion in her lumbar spine; and
  3. bruising to her upper chest.

As a result of those injuries, the Court also found that the plaintiff suffered (para 160):

  1. debilitating neck and back pain, nausea and dizziness for the first two weeks after the accident;
  2. ongoing constant cervical and lumbar pain from the time of the accident to the present;
  3. occasional numbness in her fingers and legs;
  4. constant or near-constant headaches; and
  5. problems with mood, including depression, irritability and shortness of temper.

The Plaintiff(s)(para 161):

  1. Injuries left her unable to work for about 2 weeks and after that limited her to part-time work for over a year;
  2. continued to experience cervical and lumbar spine pain that continued for years before her Doctor felt she would see some improvement;
  3. prognosis was guarded;
  4. symptoms would likely continue in the long term and there was only a small prospect that her symptoms would improve to any substantial degree;
  5. disc protrusion put her at risk for further episodes of back pain, and that she should avoid activities involving heavy lifting, carrying or forward bending;

Accordingly, the Court awarded the Plaintiff $90,000.00 in general damages.

 

 

Case General Damage Award Inflation Adjusted Damage Award
Bove v. Wilson

2016 CarswellBC 2418, 2016 BCSC 1620

$60,000.00 $60,578.00

Collision date:  February 25, 2013

The Plaintiff suffered the following injuries as a result of a rear-end collision (para 37):

  1. Soft tissue injuries in her cervical and thoracic spine;
  2. Post-traumatic headaches;

The Court found that the Plaintiff would continue to experience chronic pain to some degree permanently in the future.

The Court awarded the Plaintiff $60,000.00 in general damages (para 45).

 

 

Case General Damage Award Inflation Adjusted Damage Award
Welch v. Tietge

2017 CarswellBC 674, 2017 BCSC 395

$70,000.00 $70,193.00

Collision date:  September 10, 2012

The then 28 year old Plaintiff suffered the following injuries after the Defendant changed lanes and struck the side of the Plaintiff’s vehicle:

  1. Chronic pain in her upper back that was constantly present, interrupted her sleep, and affected her recreational and social activities (para 121);

Ultimately, the Court awarded the Plaintiff $70,000.00 in general damages.

However, the Court found that the Plaintiff had credibility issues (para 83).

Despite the Plaintiff’s credibility issues, and the Court’s finding that the Plaintiff had a less than stellar work history, appeared willing to have others support her rather than pursuing gainful employment, the Court also awarded the Plaintiff $100,000.00 in future loss of earning capacity (para 111).  The Court held that the Plaintiff was entitled to be compensated for the damage her injuries had done to the capital asset that was her future employment potential (para 107).

 

 

Case General Damage Award Inflation Adjusted Damage Award
Siddall v. Bencherif

2016 CarswellBC 2504, 2016 BCSC 1662

$60,000.00 $60,552.00

2 collisions:  Collision #1:  November 9, 2011;

Collision #2:  September 11, 2012;

The Court made the following findings as a result of the Plaintiff visual artist was injured in 2 collisions:

  • The First Collision:
    1. exacerbated the plaintiff’s pre-existing physical symptoms of headaches as well as pain in her neck, shoulders and lower back;
    2. caused episodes of renewed anxiety;
  • The Second Collision:
    1. Exacerbated the plaintiff’s pre-existing physical pain symptoms for no more than several weeks;
    2. Exacerbated the plaintiff’s anxiety symptoms, which over the ensuing period of weeks and months became conflated with the Plaintiff’s pre-collisions anxiety and other psychological issues;
  • The Plaintiff was likely suffering anxiety and other pressures from the first semester of her Master’s Degree;
  • 18 months post collision, the Plaintiff’s predominant, if not entire cause of her ongoing physical pain and psychological symptoms was unrelated to the Collisions

The Court found the Plaintiff lacked credibility, was unreliable, exaggerated her symptoms, and did not give her evidence much weight.  (para 189-190).  As a consequence, the Court did not find the opinion evidence of the medical experts of much assistance.

The Court found that:

  1. the Plaintiff’s chronic neck and shoulder pain and headaches were her “original position” before the Collisions. The Court did not accept the submissions that the Plaintiff was “thriving” prior to the First Collision.  (198)
  2. the Plaintiff’s pre-Collision incidents of headaches, neck, shoulder and upper back pain as well as depression and anxiety dated back to her childhood and emerged at times of stress and over-exertion;
  3. The Plaintiff suffered from neck and shoulder pain for many years up until the First Collision;

Accordingly, the Court awarded the Plaintiff $60,000.00 in general damages.  (para 232)

 

 

Case General Damage Award Inflation Adjusted Damage Award
Dhanji v. Holland

2015 CarswellBC 2202, 2015 BCSC 1351

$75,000.00 $76,896.00

Collision date:  November 22, 2011

The plaintiff pedestrian was struck by the Defendant’s vehicle while walking in a marked crosswalk, for which the Defendant admitted liability (para 1).

The court found that before the collision, the plaintiff (para 17):

  1. was outgoing;
  2. had an active social life;
  3. enjoyed the company of her friends;
  4. was dedicated to her work as a DNA analyst;
  5. was hard-working, ambitious, and interested in opportunities for promotion within the forensic lab where she worked;
  6. was both physically and mentally capable of performing all of the duties of her position;
  7. regularly attended mosque, both as a worshipper and a volunteer
  8. had no prior history of depression.
  9. had not suffered from any significant symptoms of mid back, lower back or upper back pain for many years before the accident apart from her intermittent complaints of back tightness

The court also found that the plaintiff’s degenerative changes to her cervical and thoracic spine were asymptomatic at the time of the collision.

At the time of the collision, the plaintiff also had an ankle injury which prevented from her from hopping, running, and resuming her physical activities such as hiking, volleyball and softball.  However, the plaintiff’s ankle injury did not interfere with the performance of her duties as a DNA analyst, aside from the occasional time off to attend physiotherapy treatments (para 19).

The court found the following facts post-collision (para 69):

  • the Plaintiff was a credible witness who gave her testimony in a straightforward manner without embellishing her symptoms or complaints;
  • The Plaintiff:
    1. Suffered significant bruising and contusions, particularly to her left arm and right hip, all of which had resolved in a matter of weeks approximately 14 months post-collision (para 70);
    2. Experienced persistent mid-back pain (para 71), resolved low-back pain symptoms, improvement to her neck pain 14 months post-collision, but her neck pain continued to trouble her intermittently (para 72);
    3. Suffered from more intensive mid-back pain accompanied by intermittent flare-ups of intense neck pain and headaches (para 73);
    4. Suffered some intermittent pain down her right arm, which was attributed to myofascial pain involving the muscles of the neck and shoulder girdle, and possibly some irritation to the C5-6 facet joint (para 74);
    5. Suffered symptoms of depression and anxiety post-collision, including mild-to-moderate chronic depression (para 75-76)
    6. Developed chronic myofascial pain syndrome which persisted at trial (para 75)
    7. Experienced intermittent sleep disruption due to her chronic pain (para 76);

The court accepted that (para 77):

  1. The Plaintiff’s prognosis was guarded;
  2. it was more likely than not that her symptoms of mid back and neck pain would persist indefinitely, troubling her from a mild to occasionally moderate extent (para 77);
  3. the plaintiff would likely realize some improvement if she was able to resume and maintain an active exercise program, and with treatment for her depression;
  4. if the plaintiff did not improve and maintain her physical condition, there was a real likelihood she would experience bouts of moderate to severe pain (para 77)
  5. the plaintiff’s chronic mid back and neck pain had impaired her social life (para 111);
  6. the plaintiff’s depression was largely caused by the Defendant’s negligence (whereby 80% of the plaintiff’s post-December 2014 depressive condition to the collision, and 20% to non-tortious factors, including the break-up of her relationship, for which the Defendant is not responsible) (para 89)

Taking into account the probability that the Plaintiff would live with chronic mid back pain indefinitely, the court awarded the Plaintiff $75,000.00 (prior to a 10% reduction for failing to mitigate) (para 124).

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

Peter Trieu, a personal injury lawyer in Calgary, Alberta

Car Accident: Quantum of Damages for a Moderate Brain Injury

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

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

accident lawyers Calgary Walter Kubitz

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

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

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

Discussion:

The following cases are inflation-adjusted to January 2018.

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

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

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

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

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

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

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

2015 BCSC 2355

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

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

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

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

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

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

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

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

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

Division No. 61, 2012 ABQB 611

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

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

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

2015 ABQB 527

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

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

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

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

CONTRIBUTORY NEGLIGENCE

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CONTRIBUTORY NEGLIGENCE (Bicycle Accident)

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

accident lawyers Calgary Peter Trieu

Assume that Mr. Plaintiff is cyclist who gets injured when rides his bicycle through a marked crosswalk without dismounting his bicycle.  We recently had an opportunity to evaluate this type of claim.  In assessing the contributory negligence of this claim, we began by reviewing the relevant portions of the Contributory Negligence Act.  We then considered and prepared the relevant Canadian case law summaries, and listed below is a small sample of the cases we reviewed:

Cases:

Case Liability Apportionment
Pelletier v. Ontario 2013 CarswellOnt 15422, 2013 ONSC 6898 (60 (D), 40 P) Defendant

60%

Plaintiff

40%

 

The Plaintiff was riding his bicycle through a pedestrian crosswalk at night when he was struck by a police cruiser.  The Plaintiff suffered significant physical injuries, and continued to suffer through ongoing psychological sequelae as result of the collision.

In citing section 193 (1) of the Ontario Highway traffic act, the court indicated that it was not the Plaintiff’s onus to prove that the Defendant was negligent; rather, a reverse onus applies when damages sustained by a person as a result of a collision with a motor vehicle.  The court indicated that the onus was on the Defendants to prove, on a balance of probabilities, that the collision did not arise from the Defendant’s negligence (para 5).

The court found that the Defendant police officer had the right-of-way entering the intersection because the Plaintiff rode his bike across intersection (para.76).  However, the court also stated that “having the right-of-way does not rebut the presumption of negligence” and quoted Justice Cartwright in the case of Brownlee v. Harmon [1952] SCJ No. 56 at para 46:

“the duty of a driver having the statutory right of way has been discussed in many cases.  In my opinion it is stated briefly and accurately in the following passage in the judgment of Aylesworth J.A., concurred in by Robertson C.J.O., in Woodword v. Harris [1951] OWN 221 at p. 223: “Authority is not required in support of the principle that a driver entering an intersection, even although he has the right of way, is bound to act so as to avoid a collision if reasonable care on his part will prevent it.  To put it another way: he ought not to exercise his right of way if the circumstances are such that the result of his so doing will be a collision which he reasonably should have foreseen and avoided”.

At paragraph 77, the court stated that the Defendant officer:

  1. should have proceeded more cautiously into the intersection;
  1. the fact that he officer did not have sufficient time to react did not rebut the presumption of negligence– and that the insufficient reaction time was due to the officer’s:
    1. lack of caution in entering the intersection;
    2. excessive speed;
    3. and failure to keep a proper lookout for others using the road
  1. was aware that it was a busy Friday night at the time of the accident, and the intersection would have been frequently used.

 

Because of the above factors, the court opined that the officer created heightened danger given his lack of caution and speed in entering the intersection (para.77).

However, the Plaintiff was not without fault for the following reasons (para 78):

  1. he rode his bike straight onto the intersection when it was quite dark;
  1. he was wearing dark clothing without a reflective surface or a light, other than the two strips on his pedals that may or may not have been visible;
  1. he did not have a light contrary to the provisions of the HTA;
  1. although he is adequately visible in the intersection, a light would have made him more visible after he emerged from the dark area before the collision, which would have likely given the officer additional time to react to the Plaintiff’s presence;
  1. he was riding his bike in a crosswalk, traveling at a rate of speed that gave the Defendant officer little time to react (para 79)

 

Accordingly, the court apportioned liability to 60% to the Defendants, and 40% to the Plaintiff.

Case Liability Apportionment
Callahan v. Kim 2012 CarswellBC 3340, 2012 BCSC 1615

 

Defendant

85%

Plaintiff

15%

The Plaintiff was riding a bicycle when he stopped to press a pedestrian control button and waited for a walk signal.  The Plaintiff saw a vehicle slowing down as it approached the crosswalk on a red light.  Assuming that the vehicle would come to a complete stop, the Plaintiff rode his bike onto the crosswalk, attempted to make eye contact with the driver, but could not because the driver was looking away.  The Plaintiff continued across the intersection anyway, and when he realized that the Defendant driver was moving into the intersection, the Plaintiff pedaled harder, could not clear the Defendant’s vehicle, and a collision occurred (para 8).

The court cited from the case of Hadden v. Lynch [2008] BCSC 295, which was also a case involving a collision between a vehicle and cyclist, and described the duty of the driver as follows [para 15 of instant case, para 69-70 of Hadden]:

  1. the standard of care of a driver is not one of perfection, but whether a driver acted in a manner in which an ordinarily prudent person would act;
  1. in order for the court to impose liability on the Defendant, the Plaintiff must prove either:
    1. the Defendant did in fact see him; or
    2. the Defendant ought to have seen him
  1. “If the Defendant did not or should not have seen the Plaintiff, then the Defendant could not have been expected to do anything except proceed through the intersection as he did”.

 

In assessing whether the Defendant failed to meet the standard of care, the court considered the following factors (para 18):

  1. the Defendant was proceeding against red light;
  1. the Plaintiff was in a marked crosswalk with a pedestrian walk sign in green light in his favor;
  1. although the Defendant acted within the law in making a right turn on a red light, the Defendant had a duty to give way to a user of the crosswalk;
  1. although the Plaintiff contravened the motor vehicle act by not dismounting and walking his bicycle across the street, and therefore did not have the statutory right of way, the court held that he was nevertheless, a user of the crosswalk.

The court found that the Defendant’s failure to check again to his right before starting his right turn was a direct cause of the accident (para.19).

Conversely, in determining whether the Plaintiff was contributorily negligent, the Court considered whether:

  1. the Plaintiff took reasonable care for his own safety; and if he did not,
  2. whether that failure was one of the causes of the accident

the court indicated that because the Plaintiff was riding his bicycle in a crosswalk, he had a heightened duty to ensure his own safety (para.23).

 

The court found:

  1. the Plaintiff exercised a considerable degree of care for his own safety, because despite having a green light, he:
    1. stopped at the intersection;
    2. pressed the pedestrian walk button;
    3. waited for the walk signal; and
    4. looked to his left for traffic, and observed the Defendant’s car slowing down (para 24)
  1. However, the court also found that the Plaintiff failed to take reasonable care for his own safety, especially since the Plaintiff did not make eye contact with the driver to ensure that the driver saw him (para 25);

The court rejected the Defendant’s argument that liability should have been apportioned equally, because the facts of the cases cited by the defence significantly differed from the facts of the instant case:

  1. In Bradley, the Plaintiff was riding his bike on a sidewalk as he approached a gas station, whereby the Defendant drove out of the gas station, and across the sidewalk without stopping. The Plaintiff saw the Defendants’ vehicle moving towards the exit, but rather than stopping his bicycle and letting the Defendant’s vehicle exit, or making eye contact with the Defendant, the Plaintiff assumed that the Defendant saw him and would not accelerate his vehicle.  The Court of Appeal found the Plaintiff to be at fault and apportioned liability equally (para 31);
  1. In Hadden, the Plaintiff was entirely at fault for a collision when he rode his bicycle into a crosswalk with the green light without stopping, and collided into the side of the truck that was already in the crosswalk

Rather, the court referred to the case of Dobre – where the Plaintiff cyclist stopped before entering the marked crosswalk, looked left and right, and pushed to activate the pedestrian warning light.  The Plaintiff in that case pedaled slowly across the intersection, was close to the centre of the road when the Defendants vehicle struck the rear wheel of the Plaintiffs bicycle.  In this case, the Plaintiff check to his left, observed a car approaching, but assumed it poses no hazard to him.  Consequently, liability was apportioned to 85% to the driver and 15% to the cyclist (para 33)

Accordingly, the court stated that the Defendants conduct in failing to observe the Plaintiff,  and starting a turn without looking to the right was far more blameworthy than the Plaintiff’s failure to make eye contact – and concluded that liability should be apportioned 85% to the Defendant and 15% to the Plaintiff (para 34).

Case Liability Apportionment
Hunstad v. Cormier 2011 CarswellBC 3889, 2011 BCSC 1881 Defendant Plaintiff

100%

The Defendant driver of vehicle struck the Plaintiff while she was riding her bicycle.

At para 59, the court summarized the basic principles for both the Plaintiff and Defendant:

  1. each of us has a duty to look out for our own safety;
  2. each of us has a duty to look out for the safety of others, in the sense that we must take care to ensure our actions do not cause them harm

Ultimately, the court found that the Plaintiff was 100% liable for the following reasons:

  1. The weight of independent evidence supported a finding that the Defendant collided with the Plaintiff two lengths or more south of the crosswalk (para 79); thus, the court could not find evidence that the Plaintiff was in the crosswalk itself (as in para 54), although the court accepted that Plaintiff was in the area of the crosswalk for a portion of time. However, the court found that the Plaintiff left the crosswalk, and in doing so, headed for the sidewalk and across the path of the Defendants vehicle.  (Para 78).
  1. The court found that if the Plaintiff was in fact in the crosswalk, the Defendant would have been able to stop his vehicle and avoid the collision.
  1. The Defendant exercised caution as he approached the intersection, had the right of way, and his speed was reasonable as demonstrated by how quickly he stopped his vehicle upon impact (para 81).
  1. However, the court found that the Plaintiff was nowhere to be seen as the Defendant approached the intersection. (para 83);

Accordingly, the court found the Plaintiff 100% liable for the collision.

Case Liability Apportionment
Deol v. Veach 2011 CarswellBC 3045, 2011 BCSC 1437 Defendant

75%

Plaintiff

25%

The Plaintiff was a cyclist traveling southbound on a sidewalk when he was involved in a collision with the vehicle driven by the Defendant at an exit way of a grocery parking lot.

The court found that:

  1. the Defendant did not see the Plaintiff when he looked to the right as the Plaintiff was approaching the exit way (para.25)
  1. the Defendant was well aware that both cyclists and pedestrians use the sidewalks (para 25);

Ultimately, the court concluded that if the Defendant had acted in a reasonably prudent manner, he would have seen the Plaintiff, and the court found an irresistible inference that the collision would not have occurred.  The court ultimately concluded that the Defendant was negligent because he failed to meet a standard of care and thereby caused the accident (para 26).

In considering whether the Plaintiff failed to take reasonable care for the Plaintiff’s own safety, and whether to do so was one of the causes of the accident, the court found the Plaintiff:

  1. breached the provisions of the legislation by riding his bicycle on the sidewalk in a direction facing traffic;
  1. entered an unmarked crosswalk on his bicycle (para 28)

However, although the Plaintiff stopped his bicycle before attempting to cross the exit way, the court found the Plaintiff had a heightened duty of care, and failed to take reasonable care for his own safety because he did not make a form of eye contact to ensure that the Defendant had seen him (para 32).

In apportioning liability, the court referred to the following principles and considers:

  1. “the extent of blameworthiness, that is the degree to which each party is at fault, and not the degree to which each party’s fault has caused the loss” Hynna v. Peck [2009] BCSC 1057, para 34
  2. (Alberta Wheat Pool v. Northwest Pile Driving, 2000 BCCA 505 (para 45-47): The respective blameworthiness of the parties, rather than the extent to which the loss may be said to have been caused by the conduct of each”  Fault or blameworthiness evaluates:
    1. the parties conduct in the circumstances; and
    2. the extent or degree to which it may be said to depart from the standard of reasonable care.
  1. Fault may vary from:
    1. extremely careless conduct, by which the party shows a reckless indifference or disregard for the safety of person or property, whether his own or others
    2. down to a momentary or minor lapse of care in conduct which, nevertheless, carries with it the risk of foreseeable harm”

Accordingly, the court apportioned liability 75% to the Defendant and 25% of the Plaintiff (para 37) and found the Defendant more blameworthy because he:

  1. failed to keep a proper lookout;
  2. failed to observe the Plaintiff who is there to be seen, and executed a right turn while focusing on his left

As the cases involving bicycle collisions above illustrate, a Plaintiff’s contributory negligence depends on the facts of each case.

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

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

The Benefits of Having a Lawyer Work on Your Car Accident Claim

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The Benefits of Having a Lawyer Work on Your Car Accident Claim

Article by Ryan P. Lee, a personal injury lawyer in Calgary, Alberta

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If you have been involved in a car accident in Calgary, or anywhere else for that matter, the following may be very helpful in dealing with your claim. If you’re involved in an accident with another vehicle which results in injury, that other vehicle’s insurer will typically contact you to learn more about the injuries you sustained, the treatment you’ve undergone, and will also likely offer you a sum of money to resolve the claim. As with any negotiation, don’t accept the first offer (or even the second), and make sure you are informed, so you can ensure that your rights are protected. How and why do you do this?

Insurance companies have the following business model: collect premiums from their clients in exchange for financially indemnifying them when insurance claims arise. Basic math dictates that in order for that business model to be successful, the amount collected for premiums must be higher than the amount paid out for claims. It is therefore in their best interest to pay out the minimum amount possible to resolve claims. They are not prioritizing you and are not looking out for your best interests. If you retain counsel, their sole job is to look out for you.

The insurer may offer you a sum without explanation or justification. You cannot rely on someone who does not have your best interests in mind to properly assess your claim. It’s impossible to know whether that figure is reasonable or insulting. They are working from a position of knowledge.  On the other hand, our clients are often unfamiliar or overwhelmed with the legal system, the claims process, and health concerns. The way to level the playing field is to counter their professionals with one of your own.

You may not know the value of your claim, especially soon after it occurs. In fact, be wary of anybody that says they can value your claim within weeks of an accident. The value is dependent on a variety of factors, including the nature of your injuries (duration, severity, treatment) and your personal circumstances (employment, schooling, age, family). Injuries can sometimes take a long time to heal, or may result in long-term effects on your health and quality of life. Accepting a quick offer before knowing the consequences to yourself will shut the door on your claim, even if your health takes an unfortunate turn for the worse afterwards as a result of your accident injuries.

The claims process can range from relatively simple to very complex. However, just as you would rely on your mechanic to see if that rattling noise your car engine makes is a simple fix or the sign of a severe problem, you should likewise seek assistance navigating the claims and legal process as well. The lawyers at Kubitz & Company in Calgary specialize in motor vehicle claims and personal injury law and would be happy to speak with you about helping to resolve your claim.

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

Article by Ryan P. Lee, a personal injury lawyer in Calgary, Alberta.

Car Accident Case Review

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Car Accident Legal Case Review – Calgary, Alberta

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

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In 2012, Ms. Plaintiff’s small car was rear-ended a ½ ton pickup truck driven by the Defendant here in Calgary, Alberta.  Before the collision, Ms. Plaintiff was physically active and generally healthy.  As a result of the collision, Ms. Plaintiff suffered a constellation of injuries, the most severe of which were a Mild-Traumatic Brain Injury (that had resolved), ongoing soft-tissue injuries that continued to persist, and Adjustment Disorder with Anxiety.

Listed below are select case summaries from a research memo we prepared to assess Ms. Plaintiff’s claim.  The range of damage awards were inflation adjusted as of October 2016.

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

Case Damage Award          Inflation Adjusted
De Gaye v. Bhullar 2010 CarswellBC 3658, 2010 BCSC $70,000.00 $77,052.00

The plaintiff suffered injuries as a result of an accident that occurred in March 2005.

The Court was satisfied on the balance of probabilities that the plaintiff suffered the following moderately severe and disabling injuries as a result of the accident (para. 86):

  1. a mild concussion from striking his head against the seatbelt shoulder strap harness;
  2. A moderately severe whiplash injury to his cervical spine as a result of the force of the collision which caused headaches of varying intensity and severity, restricted movements, pain, and disrupted sleep; and
  3. a low back soft tissue injury that caused restriction and pain in movement.

The Court found that the plaintiff’s pre-accident recreational activities and ability to carry out his job responsibilities were significantly affected because of the injuries caused by the accident (para. 90).  The Court acknowledged that although the plaintiff’s injuries significantly improved over time, and the plaintiff was able to resume most of his pre-accident activities, the journey was a long and arduous struggle for the plaintiff.  The Court highlighted that the plaintiff experienced the following as a result of the accident:

  1. severe headaches;
  2. neck pain and stiffness;
  3. lower back pain;
  4. sleep disruptions;
  5. emotional sadness and stress due to an inability to be socially active, and a loss of physical capacity;
  6. weight gain whereby his efforts to lose weight through his achievement of a high level of physical fitness were significantly curtailed; and
  7. pain symptoms in his left shoulder whereby the plaintiff would be required to undergo arthroscopic surgery and a three month recovery (para. 90).

Furthermore, the plaintiff’s injuries adversely affected his work performance, in that the plaintiff:

  1. could not work with the same enthusiasm and effort as he did prior to the accident;
  2. work more slowly and became less capable of lifting heavy loads, sitting and standing for long periods, and managing his fatigue of working long shifts; and
  3. experienced significant limitations in the types of work that he could perform which required assistance and accommodations from other staff members (para. 91).

Accordingly, considering the time that the plaintiff took to recover from his injuries, the seriousness of those injuries, and their impact on his work and recreational life, balanced against improvements he had over time and the likely success of surgery upon his left shoulder, the Court awarded $70,000 in general damages (para. 93).

Case General

Damage Award

Inflation Adjusted Damage Award
Frayne v. Alleman

2006 CarswellBC 3348, 2006 BCSC 1988

$50,000.00 $60,096.00
The award was ultimately reduced for contributory negligence $45,000

 

The plaintiff was riding her bicycle when she was injured in an MVA.  As a result, she suffered the following injuries:

  1. soft tissue injuries;
  2. mild concussion;
  3. psychological difficulties including chronic depression, anxiety, and ongoing fatigue (para. 2)

Furthermore, the court found that the once very social plaintiff discontinued or curtailed her social activities after the accident and became socially reclusive (para. 16).

In weighing the conflicting opinions of the medical experts, the court could not completely rule out the remote possibility of a very mild traumatic brain injury intermingled with the plaintiff’s prolonged depression (para. 14).  However, the court opined that it was more likely than not that the plaintiff’s prolonged depression and anxiety manifested in chronic fatigue rather than a traumatic brain injury (para. 12).

The court also found that the plaintiff’s failure to use antidepressant medication in compliance with her treatment provider’s recommendations was deemed a failure to mitigate.

Case General

Damage Award

Inflation Adjusted Damage Award
Tchao v. Bourdon

2009 CarswellBC 287, 2009 BCSC 147

$70,000.00 $77.500.00

 

Following a head-on collision, the plaintiff suffered the following injuries (para. 73):

  1. A knee injury that resolved within approximately a month;
  2. A significant soft tissue injury to the neck and upper back that recovered within approximately 7 months but left the plaintiff more vulnerable to degenerative changes in the neck;
  3. A concussion with post-concussion syndrome that still caused headaches once or twice a week, but was likely to resolve;
  4. A mild posttraumatic stress disorder that was resolving but remained problematic at the time of trial; and
  5. A depressed mood

The court accepted evidence that the plaintiff suffered a loss of awareness, a blow to the head, and ongoing symptoms that were consistent with post – concussion syndrome (para. 74).

The court opined that the MVA had very serious consequences for the plaintiff because:

  1. he had not yet fully recovered, and was unlikely to return to his pre accident state;
  2. he was exposed to a greater risk of degenerative changes in the future;
  3. he had to cope concurrently with posttraumatic stress disorder, post-concussion syndrome, and what the court found to be a real change in his personality (para. 92)

At the same time, the court acknowledged that the plaintiff had a pre-existing degenerative lower back condition that had disabled him in the past and would likely do so in the future – and his pre-accident condition was not one that was, or was likely to be symptom-free (para. 93).

In considering the plaintiff’s circumstances and likely future effect on his pre-existing condition, the court awarded the plaintiff $70,000 in general damages.  (para. 98).

Case General

Damage Award

Inflation Adjusted Damage Award
Hartnett v. Leischner

2008 CarswellBC 2506, 2008 BCSC 1589

$60,000.00

(para. 87)

$66,899.99

 

The plaintiff sustained the following injuries as a result of a collision with the defendant drunk-driver’s vehicle that made an improper left turn in front of the plaintiff:

  1. Concussion (para. 22);
  2. Cuts to his face, shoulders and legs (para. 22);
  3. Bruising from his seatbelt (para. 22);
  4. Injuries to his neck, shoulder, hip, lower back, knee, best, chest, and hands (para. 22)
  5. Severe headaches; (para. 27)
  6. Flashbacks of the accident on a regular basis; (para. 27)
  7. Difficulty sleeping (para. 27)
  8. Chest pains, and pain in his lower back and neck;

The court acknowledged the severity and impact of the plaintiff’s left hip, lower back, and shoulders on both the plaintiff’s work and personal life (para. 85).

Prior to the accident, the court found that the plaintiff (para. 86):

  1. Was a very active individual who pursued a wide variety of outdoor activities with his family and friends;
  2. actively contributed to the maintenance of the family home;

After the accident, his abilities to participate in both recreational and home maintenance activities were significantly reduced – as he could neither participate in those activities to the same degree, nor could he do so without a considerable amount of pain (para. 86).

The court also accepted the plaintiff’s wife’s testimony where she noticed the changes in the manner in which the plaintiff interacted with their children, his desire to socialize with friends, and how he became less talkative (para. 87).

The court acknowledged that the plaintiff made considerable efforts to work through his injuries, but due to the demands of his work and the nature of his injuries, he was unable to maintain a higher paying position without significant work and health related problems (para. 88).

 

Case General Damage Award Inflation Adjusted Damage Award
Williamson v. Rutter

2016 CarswellBC 591, 2016 BCSC 381

$65,000.00 $65,367.00

Collision date:  April 14, 2014

The Plaintiff, aged 31, suffered injuries when her vehicle, which was stopped at an intersection, was struck four times by one or both of two other vehicles that were involved in a collision, one of which was an ambulance.

She suffered bruising between her knees, soft tissue injuries to her lower back, right side of her neck, between her shoulder blades, and related headaches. She also suffered some anxiety while driving and anxiety when she heard a siren (para 1).

The bruising between her knees resolved within a week or so. The injury to her low back resolved in just over a month (para 4).

Plaintiff complained of ongoing neck pain, shoulder pain, headaches, and some ongoing anxiety.

The Plaintiff in this case was not a physically active person (para 10).  However, she was part of a close-knit family that participated in some outdoor activities (para 10).

For the first year after the collision, the Plaintiff’s mother came by every Friday to assist her with childcare, housework and family dinners (para 13).

Her symptoms caused her difficulties with physical tasks including housework and caring for her daughter. Her driving anxiety decreased over time but did not entirely resolve. Her most significant ongoing accident-related limitation was reaching repetitively for long periods of time, and there would be some jobs that would not be open to her as a result of her ongoing symptoms. Loo J. awarded plaintiff general damages in the amount of $65,000 (para 36), as well as $20,000 for loss of future earning capacity, $20,000 for cost of future care, and $9,000 for loss of future housekeeping capacity.

 

Case General Damage Award Inflation Adjusted Damage Award
Boysen-Barstow v. Insurance Corp. of British Columbia

2015 CarswellBC 2749, 2015 BCSC 1740

$70,000.00 $70,968.00

Collision date:  July 14, 2011

The Plaintiff’s vehicle was struck from behind (para 1), and as a result, the Plaintiff suffered the following injuries:

 

  • Moderate soft tissue injuries in the accident, causing her neck and back pain and headaches. The headaches resolved within a few months, and the other physical discomfort gradually resolved to the point that, by taking appropriate care, the Plaintiff was substantially pain free by the end of 2013 (para 25);
    1. The Court accepted that that she has a certain vulnerability to back discomfort with prolonged sitting and that requires some management; that is a condition which has not fully resolved, although it is certainly not characterizable as an acute disability. It is a relatively minor artefact of the accident requiring some accommodation (para 25)
  • A phobia experienced while travelling in a vehicle, which was, initially a problem that caused serious difficulties for her. It contributed to her difficulties in carrying out her duties at work when she returned and was a factor in her decision to end her employment (para 27);
    1. However, the Court was satisfied that by the time of trial, any lingering unease the Plaintiff may have had in a vehicle was of a minor magnitude;
  • The Plaintiff’s disposition and temperament was adversely affected and the Plaintiff’s marriage was made more difficult as a result (para 28);

Accordingly, the Court awarded the Plaintiff $70,000.00 in general damages (para 35).

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

 

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

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

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Calgary Car Accident Sample Case:

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

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

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

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

 

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

 

CONCLUSION:

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

 

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

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

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

 

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

 

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

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

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

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

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

 

 

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

 

 

Accident:

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

 

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

 

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

 

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

 

Pre-Accident:

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

Since the Accident:

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

 

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

 

The following paragraphs provide further comment on more particularized injuries:

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

DISCUSSION:

  1. Scenario 1 cases

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

 

  1. Scenario 2 cases

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

 

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

 

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

 

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

 

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

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

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

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

 

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

 

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

 

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

 

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

 

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

 

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

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

 

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

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

Quantum Case Summary of Stevenson v. Thompson

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

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In the recent decision of Stevenson v. Thompson [2017] ABQB 51, the Court awarded the Plaintiff Stevenson $75,000.00 in general damages (whereby the damage award was reduced by 20% for the Plaintiff’s failure to mitigate).

On August 12, 2008, the Plaintiff suffered the following injuries when a vehicle collided with her parked car (para 1, para 293) in which she was seated (para 333):

  1. Chronic regional myofascial pain;
  2. Cervicogenic headaches;
  3. Chronic mechanical low back pain

The Court concluded that the collision caused the Plaintiff to experience (para 410):

  1. Headaches;
  2. Stiffness and pain in her neck, back, shoulders and arm;
  3. A global loss of range of motion;
  4. Difficulties with extension;
  5. Muscle spasms;

The Plaintiff’s health care providers diagnosed her with a sprain / strain of the lumbar, cervical and thoracic spine. There was consensus among the medical professionals that she suffered a WAD II whiplash injury. It was anticipated that her whiplash injuries would resolve with the passage of time.

While her improvement was steady, it was slow and fragile. Her function was pain limited. She continued to experience stress together with minor slips and falls. Her anxiety, stress, and thyroid conditions together with ongoing physical aggravations from various sources amplified her pain levels (para 410).

Of note, the Plaintiff had experienced several accidents prior to the index August 12, 2008 collision:

Date Description Reference
December 2004 A snowmobile accident where the Plaintfif suffered lower back pain, shoulder pain, neck pain, tingling in her legs and headaches Para 11
December 2006 A minor motor vehicle collision when the plaintiff was an occupant of one of the 2 vehicles involved. The Plaintiff suffered a whiplash injury Para 2
June 2008 The Plaintiff was forced to enter her home through a kitchen window as she forgot her house keys. She slipped upon entering the floor. The Plaintiff complained of neck stiffness, headache, left wrist pain, nausea, sleeplessness, vision problems, numbness in her right hip, bruising in her forearms and weakness in her left hand. Para 17

However, the Court found that the Plaintiff did not have significant pre-existing injuries of chronic pain (para 417).

After the Plaintiff’s August 12, 2008 collision, the Plaintiff also experienced the following incidents:

Date Description Reference
January 22, 2013 Slip and fall incident on ice that was not a severe accident according to her testimony Para 32
November 5, 2013 Fall on her stairs resulting in increased pain; Para 35
February 14, 2014 Motor vehicle collision that resulted in pain at her left sacral base whereby the pain resolved within 1-2 days Para 34
November 13, 2014 Motor vehicle collision where she received a concussion and soreness in her neck and back area; Para 36
January 29, 2016 A slip and fall on ice Para 33

Although the Court agreed with the Defendant’s submissions that the Plaintiff’s self-reports of pain were exaggerated (para 349, 424), the Court still found the Plaintiff’s testimony credible (para 390).

Ultimately, the Court awarded the Plaintiff $75,000.00 in general damages (para 426) before reducing the award by 20% for failing to mitigate (para 426-430).

The Court also declined to make a finding of loss of earning capacity.

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

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

Limitation Date

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Article by Ryan P. Lee, a personal injury lawyer in Calgary, Alberta

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When involved in a motor vehicle collision or other injury-type incident, potential claimants are often unsure of how to proceed, are intimidated by the legal system, would prefer not to deal with a lawyer, or are preoccupied with other responsibilities or obligations.  If the procrastination continues for an extended period of time, potential claimants run the risk of losing the right to advance a claim through the legal system.  The most important date for an injured person to remember is the limitation period.  After that date, the option to start a claim is no longer available, subject to extremely narrow exceptions.

The limitation date is different depending on the individual advancing the claim.  It is possible, therefore, for multiple individuals involved in the exact same incident to be subject to varying limitation dates.

The rules are codified in the Alberta Limitations Act, RSA 2000, c L-12.  There are esoteric rules contained in the statute which govern very specific cases.  However, for the scope of this article, the typical rules are:

  1. For an average person over the age of 18 at the time of the accident, the limitation period is two years following the date of the accident or incident. For example, in a collision on January 5, 2018, the limitation period is January 5, 2020.
  2. For an injured person who is under the age of 18 at the time of the accident, the limitation period is suspended until that individual attains the age of 18. Therefore, the deadline is postponed until two years following that person’s 18th birthday, or his/her 20th birthday.
  3. For an injured person who is under a disability at the time of the accident, the limitation period is suspended indefinitely. An individual under a disability is:
    1. An individual who is a represented adult as defined in the Adult Guardianship and Trusteeship Act;
    2. A person who is unable to make reasonable judgments in respect of matters relating to a claim; or
    3. A person in respect of whom a certificate of incapacity is in effect under the Public Trustee Act

In 2011, the Fair Practices Regulation was passed.  One key aspect of that Regulation was that insurers are now required to give written notice to a potential claimant of the limitation date that applies to them.  If you have been involved in an accident but were never informed of this deadline, it may be possible for the limitation period to be extended.

If you are concerned that a limitation issue or exception may apply to your case, the lawyers at Kubitz & Company would be happy to discuss your claim with you.

Article by Ryan P. Lee, a personal injury lawyer in Calgary, Alberta.

Credibility in Personal Injury – Part 3

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

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This article is part 3 and a continuation of our articles named Credibility in Personal Injury – Part 1 and Credibility in Personal Injury – Part 2.

In the recent decision of Stevenson v Thompson, 2017 ABQB 451, the defence argued that the plaintiff, Ms. Stevenson, was not credible and should not be believed.

Ms. Stevenson was involved in a low-speed collision while she was in a parked car with her right foot over on the passenger seat of the vehicle. She had some prior injuries including a fall off a table while climbing into her basement suite two months before this collision. She did not follow her doctor’s advice to exercise, and was not totally honest with her medical team.

Regardless, at trial, Ms. Stevenson rehabilitated herself by being honest and not guessing when answering questions at trial. More importantly, the judge believed her.

On the issue of the plaintiff’s credibility, Justice A.G. Park found:

[333]      Stevenson has proven beyond a balance of probabilities on the evidence that as a result of the index accident, she has experienced, she continues to experience and will experience ongoing pain and dysfunction beyond normal healing times. I accept Dr. Flaschner’s diagnosis Stevenson suffers from chronic regional myofascial pain, cervicogenic headaches and a chronic mechanical low back pain.

[334]      Counsel for Thompson urged Stevenson is not a credible witness. I disagree. Her trial testimony was credible. I do not find she lied or attempted to deceive me. She expressed disagreement with some of the observations made by the health professionals who testified in this trial. She expressed disagreement with the role stress plays in her pain. She has walked her own path with respect to her rehabilitation in that she has chosen to ignore or not listen to the advice and counsel her medical caregivers have provided to her, based upon her testimony at this trial. Disagreement with those observations or addressing her health rehabilitation in a different manner than recommended or ignoring medical advice does not make her testimony non-credible. She gave her evidence in a straight forward manner. Her answers were given with care and precision. Her memory was shown to be deficient or lacking in certain areas but I do not find that she has attempted to mislead me or Counsel in this trial. There were questions put to her as to her evidence provided on her answers to Counsel for Thompson in her Questioning in the Discovery process. Her evidence at trial was that she could not offer a satisfactory answer. While it might behoove her to provide a satisfactory answer to explain her conduct on that particular day, she was honest and direct in response to the questions posed to her in that area at trial. Her answer that she could not provide a satisfactory answer obviously was lacking as to its content but it was a truthful statement. The truth was that she had no answer at trial to explain her conduct.

[335]      However, I do find she is a witness who somewhat exaggerated her symptoms to her caregivers. She is a plaintiff who has whitewashed her past medical history in her interactions with her caregivers. However, these failings do not make her a witness who is not credible in her trial testimony. Her trial testimony was forthright. Her demeanor on the witness stand could in no way be criticized to allow me, as the trier of fact, to disbelieve her. I accept her evidence that she suffered an injury as a result of the index accident which has required extensive treatment with ongoing chronic pain. I will rely on her subjective reports of pain provided to her caregivers and her testimony provided at trial.

[336]      In this connection, I note all the medical professionals who testified in this trial found that her condition was at least a WAD I injury when each examined her. It was only Thompson’s medical experts who questioned the extent of her injuries and the causation factor as applied to her injuries.

[337]      I turn now to deal with the submissions on the evidence proffered by Counsel for Thompson in final argument to suggest Stevenson is not a credible witness.

[338]      I agree that it is beyond dispute that Stevenson gained 70 – 80 pounds prior to the index accident as a result of her hypothyroid condition and did not gain that weight subsequent to the index accident as she testified in her trial examination-in-chief. However, when cross-examined, Stevenson readily admitted the true situation. She admitted her weight fluctuated up and down. She further advised she cannot remember her weight eight years ago. Under cross-examination she agreed her evidence relating to her weight gain being related to the index accident was incorrect. Counsel for Thompson very fairly commented in his closing argument that a failure to remember one’s weight 8 years earlier can be an honest answer. However, he argued what has happened over the course of time is that she has fixated on the index accident and she attaches all the blame to it. He drew a parallel between her testimony respecting her weight and she blaming the index accident for her complaints of pain. Yet despite his submission, I note that she corrected her evidence as to her weight when her doctor’s chart notes made three months post-index accident were shown to her in cross-examination. She agreed in cross-examination her examination-in-chief respecting her weight was wrong. She admitted her error. That admission alone does not make her a non-credible witness.

[339]      Counsel for Thompson pointed to evidence from her cross-examination that she provided conflicting histories to treatment providers; withheld information from her treatment providers; exaggerated or overstated her disabilities and limitations. With respect to the first two former concerns, she did admit under cross-examination that she provided conflicting histories to treatment providers and she withheld information from treatment providers. When pressed for a reason as to why she would act in such a manner, she advised she could not think of any reason why she would not tell the correct histories or provide all the information to her treatment providers. However, she did not provide conflicting histories or evidence nor did she withhold any information in her trial testimony. She admitted her conduct. In that sense, her evidence was credible. However, her conduct in dealing with her care providers left something to be desired. Yet that conduct occurred before her trial testimony. Her trial testimony was truthful, and she admitted to her pre-trial conduct dealing with her treatment providers. Yet her pre-trial conduct respecting her candour is concerning.

[340]      Another area of concern to me involved her sworn evidence in this action provided to then Counsel for Thompson at a Questioning on March 29, 2016 that she had not experienced any slips and falls since the last Questioning in 2011. In fact there were three subsequent falls in that timeframe. Stevenson advised Dr. Lana Cosman on that same day, March 29, 2016, of her two separate slips and falls. Her conduct on that day certainly speaks to an intention to deceive and in fact she did deceive Counsel. She admitted her deceit at trial.

[341]      Yet the irony is that she did not have to behave in that manner. Dr. Flaschner found as stated in his medical report of October 17, 2011 that his diagnosis secondary to the index accident included:

1.  Chronic regional neck pain consistent with a cervical musculoligamentous injury initially, WAD II with findings at this point consistent with chronic regional myofascial pain syndrome.

2.   Cervicogenic headaches.

3.  Chronic mechanical low back pain.

4.   Sensory symptoms in the arms, most consistent with carpal tunnel syndrome identified electrodiagnostically. This would not be secondary to the motor vehicle collision. It should be noted that some of the sensory symptoms in the arms can be seen in the setting of the regional myofascial pain syndrome.

[342]      He found Stevenson suffers from chronic pain which affects the central nervous system. That diagnosis is now a different entity than a whiplash and it takes it out of the Minor Injury Regulation. His diagnosis noted she had no significant musculoskeletal complaints between 2004 to 2008. After the 2008 index accident there were documented significant pain complaints, a further loss of motion and muscle tension or spasm.

[343]      He opined the index accident was the inciting event which led to the subsequent pain condition. The accident was an event which was a turning point which was associated with the onset of her symptoms. There were no pre-existing conditions from any prior accidents. With respect to her hypothyroidism, he advised it was not a new condition. It commenced in 2004. It did not appear to be associated with musculoskeletal complaints.

[344]      With respect to her depression he advised it can amplify her symptoms. Her history of depression started before the index accident. His opinion was it does not appear to be associated with any type of chronic pain condition.

[345]      In summary, her lack of candour before trial did not affect the diagnosis of chronic pain.

[346]      Another area of Stevenson’s testimony, which Counsel for Thompson submitted was not credible, involved her examination-in-chief where she indicated that she stretched every day and held her stretches for 40 seconds. Her cross-examination produced an admission from Stevenson that she was unable to properly demonstrate those stretches to Ms. Brennan or Ms. Ball. Flowing from this admission was an acknowledgment by her that perhaps the stretches were of an irregular frequency. Counsel for Thompson submitted these admissions constitute intentional misleading behaviour and a failure to mitigate. However her cross-examination admission was credible when confronted by the evidence of Ms. Ball and Ms. Brennan. This admission does not undermine her credibility in my opinion.

[347]      Finally I note the general consensus of the medical professionals that Stevenson has a high level of perceived disability. A specific instance of direct evidence in this area can be found in the report of both Functional Capacity Evaluators who testified Stevenson’s self- reports regarding abilities and disabilities were much grimmer than the actual attested abilities. In a similar vein, Stevenson demonstrated a lack of effort in the testing exercises required by Ms. Ball, Thompson’s expert. Stevenson provided a far better effort in completing the necessary tests for Ms. Brennan, her Functional Capacity Evaluator, than she did for Ms. Ball.

[348]      However, these detailed areas of concern do not affect her credibility respecting the ultimate diagnosis of chronic pain. Nor does it affect her credibility on the issue of causation which I will deal with shortly. Her evidence, while compromised, was credible. Instead her pre-trial behaviour must be criticised.

[349]      It is my finding that Stevenson painted a much bleaker position of her perceived disabilities than she actually demonstrated. I agree with the opinions of the medical professionals in this area. I conclude she was and is in pain due to the chronic pain syndrome developed as a result of the index accident. However I note that she consciously exaggerates the level of her pain. The evidence of both Ms. Brennan and Ms. Ball at the minimum lays the foundation for that finding. This exaggeration may very well be rooted in her depression issues. However I will not speculate on that point. Yet it must be noted from the experts’ medical testimony that her hypothyroidism and her depression form part of the inter-linking circles of pain, mood and depression.

On the issue of failing to follow her doctor’s advice by failing to exercise and thereby “failure to mitigate”, Justice Park found:

[391]      Both Dr. Flaschner and Dr. Atkinson agreed that a hypothyroid state can amplify pain symptoms. Depression and anxiety and sleep deprivation can as well amplify pain symptoms.

[392]      There is ample evidence that Stevenson has not complied with her medical advice. She has been given prescriptions to combat her anxiety and depression with anti-depressants. She has taken some but not all of them.

[393]      Stevenson has been considered deconditioned by some of her medical care providers. She has been repeatedly advised to stretch, exercise and achieve better physical condition. Active rehabilitation has been discussed and recommended to her. A regular and ambitious exercise program has been stressed to her in order to assist in loss of weight, high blood pressure, sleep disturbances and stress. It will help her chronic pain condition.

[394]      Over the years Stevenson has demonstrated poor compliance with regular consumption of her thyroid medications. In addition she has failed to attend medical laboratories to obtain results for her medical caregivers to assist her with her health.

[395]      She has not taken to heart much advice to engage in physiotherapy. It has been stressed to her the importance of an active rehabilitation program.

[396]      However, she has not followed the advice for a regular exercise program, stretching or physiotherapy. Her medical caregivers have advised her repeatedly that regular exercise and physiotherapy could assist in reducing her chronic myofascial pain.

[397]      The evidence from Donald Falk states the obvious. He indicated she will comply with a doctor’s advice if she agrees with that advice. In addition, I note Stevenson indicated she does not need a pill to make her feel better.

[398]      Her course of conduct in refusing to follow her caregivers’ advice has not helped her chronic pain condition. Instead, for some unknown reason she follows her own counsel. Such counsel amounts to a failure to mitigate. This failure to mitigate will result in a discount of the damages awarded to her.

[399]      Similarly as detailed earlier, her pain complaints and her reluctance to perform the required tests as requested by Ms. Ball signifies to me a desire to exaggerate her level of physical limitations. She sought to disguise her actual physical capabilities in an attempt to convince Ms. Ball that her level of physical disability was higher. This factor, too, will result in a discount of the damages awarded to her.

[400]      Stevenson preferred to accept the acupuncture treatment and the manipulative chiropractic treatment of both Drs. Cosman. This treatment provided her pain relief and allowed her to function. However, Dr. Ernie Cosman provided her advice to exercise. He provided her with exercise programs. She either refused to engage in such programs, or if she did engage in such programs, her time of engagement was both irregular and of short duration. The expert witnesses testified physiotherapy is the golden rule of orthopedics. While pain relief is important, Stevenson had a duty to mitigate by following the almost unanimous advice of her medical caregivers to exercise in order to address her injuries. She did not. She failed to mitigate her losses.

Turning to the quantum of her pain and suffering damages, Justice Park found:

[408]      Although Stevenson experienced a whiplash type of injury in a fall from her kitchen table on or about June 22, 2008, she had recovered from it by the time of the index accident. I make that finding on the basis of the evidence of Dr. Ernie Cosman, Dr. Curtis and Dr. Flaschner. As I noted earlier, Stevenson after seeing Dr. Mah initially after the kitchen table fall, did not follow up with any attendances on any physicians or health care providers. That lack of follow up by Stevenson convinces me she had no lingering pain or effects after seeing Dr. Mah. Having observed her demeanor on the witness stand and having noted her regular and frequent attendances upon her health care providers throughout her medical history, I am satisfied if she had experienced any lingering effects from the kitchen table fall, she would have sought continuing treatment or relief for any resulting pain from that fall. She did not. Again I am comforted by my finding in that regard as she presently continually seeks acupuncture treatment from Dr. Lana Cosman in order to alleviate her current pain issues which continue to linger from the index accident.

[409]      As a result, I am satisfied that Stevenson’s primary health concerns immediately prior to the index accident related to her hypothyroid condition; depression issues; anxiety and stress issues and sleep deprivation. These conditions did affect her energy levels and gave her some health limitations which lowered her enjoyment and quality of life.

[410]      The index accident caused her to experience headaches, stiffness and pain in her neck, back, shoulders and arm. She experienced global loss of range of motion, difficulties with extension and muscle spasms. She was diagnosed by many health care providers as having suffered a sprain/strain of the lumbar, cervical and thoracic spine. Consensus agreement was that she suffered a WAD II whiplash injury. It was anticipated her whiplash injuries would resolve with the passage of time. While her improvement was steady, it was slow and fragile. Her function was pain limited. She continued to experience stress together with minor slips and falls. Her anxiety, stress, and thyroid conditions together with ongoing physical aggravations from various sources amplified her pain levels. Now Stevenson is of the opinion that she is worthless and not nearly the productive woman she once was. She exhibits a high level of self-perceived physical limitation. She has the opinion, which is shared by her common law husband, that her physical limitations inhibit her participation and enjoyment in employment, family activities, domestic activities, recreational activities, social activities, self-care activities and sexual activity. She scores herself low on a quality of life scale.

[424]      I do agree with the submission of Counsel for Thompson that Stevenson’s self-reports of pain are exaggerated. As set out in the evidence of Ms. Brennan and Ms. Ball, Stevenson has a higher perception of her functional limitations as opposed to their more objective assessment of her actual limitations.

[426]      In my view an appropriate award for Stevenson’s general damages would be the sum of $75,000. However, I do not award her that amount as the issues of mitigation and her pre-trial conduct need to be addressed in terms of general damages.

As Justice Park found that the plaintiff had failed to mitigate, he reduced her award by 20 percent:

[427]      Stevenson repeatedly received advice from her medical caregivers to exercise. In effect she ignored it by choosing to relieve her pain through acupuncture and chiropractic manipulative treatment. Such treatment alleviated her pain but it did not assist her in resolving or improving her whiplash injury or her subsequent chronic pain condition. All her medical caregivers, including both Drs. Cosmans, urged her to follow an exercise program. Such advice was reasonable. The quality of the medical advice was sound. There was no conflicting medical advice provided to her which suggested an exercise program would be detrimental to her health. Stevenson chose not to follow the exercise treatment program on a regular and sustained basis. Counsel for Thompson certainly has proven some of Stevenson’s losses would have been avoided if she had followed the regimen exercise plan provided by her medical caregivers.

[428]      In addition, I note Stevenson failed to take on a regular and sustained basis, her prescribed anti-depressants, thyroid medication and sleep medication. The resulting periods of anxiety and depression, sleep deprivation and poor health linked to her fluctuating thyroid levels amplified her chronic pain. Her pain and suffering increased.

[429]      Further, Stevenson’s lack of explanation respecting her pre-trial conduct in providing conflicting answers in her Questioning by Counsel for Thompson and in her advice on that same day to Dr. Lana Cosman is concerning. In addition, her conduct in providing conflicting histories and withholding information to her treatment providers is concerning. A final concern on my part revolves around her exaggeration of her pain complaints and her underperformance on the tests administered by Ms. Ball.

[430]      My aforesaid concerns and her failure to mitigate warrant a reduction in the award of general damages. In the circumstances I will reduce her entitlement by 20%. As a result of this reduction her general damages are reduced to $60,000 and I award her that sum.

In conclusion, a plaintiff’s credibility is their most important asset. Where a plaintiff has not been honest and forthcoming in the past, the plaintiff can sometimes still rehabilitate him or herself by being honest and trustworthy at trial.

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

Contributory Negligence

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

accident lawyers Calgary Peter Trieu

Assume that Mr. Plaintiff is a passenger who gets injured while travelling with an impaired driver. How would you begin to assess the Plaintiff’s contributory negligence? We recently worked on a case that required us to think through that very question.

1.) To begin, we looked at the relevant portions of the Contributory Negligence Act (in force on the date of the collision), R.S.A. 2000, c. C-27) listed below:

Apportionment of liability

1(1)  When by fault of 2 or more persons damage or loss is caused to one or more of them, the liability to make good the damage or loss is in proportion to the degree in which each person was at fault but if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability shall be apportioned equally.

Determination of degree of fault

2(1)  When damage or loss has been caused by the fault of 2 or more persons, the court shall determine the degree in which each person was at fault.

Questions of fact

3   In every action

(a)    the amount of damage or loss,

(b)    the fault, if any, and

(c)    the degrees of fault,

are questions of fact.

2.) We then considered how a Plaintiff’s contributory negligence would succeed as a defence. To preserve the integrity of the legal process in pursuing fairness and justice for our client, we not only had to build our case, but think through how the defendant would tear down our client’s case as both the plaintiff & defendant’s arguments need to be given serious attention.

For contributory negligence to succeed as a defence, the Defendant in this case must prove that (Heller, para 14):
1.) The Plaintiff was negligent; and
2.) The Plaintiff’s negligence was a cause of the injuries;

The legal test in Alberta in determining the degree of fault under the Contributory Negligence Act (CNA) is found at paragraph 34 of Heller v. Martens [2002] ABCA 122, 303 A.R. 84, [2002] A.J. No. 638:

34  Apportionment of fault between a contributorily negligent Plaintiff and a negligent Defendant under the CNA requires an assessment of the parties’ degree of departure from the standard of care. Although not an exhaustive list, in assessing comparative blameworthiness courts have considered such factors as:

1. The nature of the duty owed by the tortfeasor to the injured person: Aynsley v. Toronto General Hospital (1967), [1968] 1 O.R. 425 (Ont. H.C.), at 444-45, aff’d(1971), [1972] S.C.R. 435 (S.C.C.); Teno v. Arnold, [1978] 2 S.C.R. 287 (S.C.C.).

2. The number of acts of fault or negligence committed by a person at fault: Bruce (County) v. McIntyre, [1954] 2 D.L.R. 799 (Ont. C.A.), aff’d [1955] S.C.R. 251 (S.C.C.).

3. The timing of the various negligent acts. For example, the party who first commits a negligent act will usually be more at fault than the party whose negligence comes as a result of the initial fault: Aynsley, supra.

4. The nature of the conduct held to amount to fault. For example, indifference to the results of the conduct may be more blameworthy: Chamberland v. Fleming (1984), 12 D.L.R. (4th) 688 (Alta. Q.B.) (where the driver of a motor boat sped by a canoe causing it to tip, and the canoeist to drown). Similarly, a deliberate departure from safety rules may be more blameworthy than an imperfect reaction to a crisis: see John G. Fleming, The Law of Torts, 8th ed. (Sydney: Law Book Company, 1992) at 273-74.

5. The extent to which the conduct breaches statutory requirements. For example, in a motor vehicle collision, the driver of the vehicle with the right of way may be less blameworthy: Crothers v. Northern Taxi Ltd. (1957), 10 D.L.R. (2d) 87 (Man. C.A.), at 100; see also Clyke v. Blenkhorn (1958), 13 D.L.R. (2d) 293 (N.S. S.C.), at 304.

35        Fault may vary from extremely careless conduct, by which a party shows a reckless indifference or disregard for the safety of persons or property, to a momentary or minor lapse of care in conduct which, nevertheless, carries with it the risk of foreseeable harm. Degrees of contributory negligence are assessed accordingly: Alberta Wheat Pool v. Northwest Pile Driving Ltd. (2000), 80 B.C.L.R. (3d) 153 (B.C. C.A.) at 165-66; see also Giuliani v. Saville (1999), 133 B.C.A.C. 164 (B.C. C.A.) at 167.

Although the Court of Appeal decision of Gosling v. Roper [2002] ABCA 71 was displaced by the subsequent Heller Court of Appeal decision as the leading authority on contributory negligence [*SEE END NOTE], Gosling still provided a useful causation analysis for passengers who get injured while travelling with an impaired driver:

[
26]           While it is true that the factors recited by the New Brunswick Court of Appeal in Bulmer v. Horsman, supra, and endorsed in Chalinor v. Brown, supra, were recited as applicable to apportionment analysis, they are, in fact, properly considered in determining whether the threshold test for contributory negligence is met when a passenger is injured in a vehicle driven by a person who is impaired. Those factors include:

a)         Whether the plaintiff actively contributed by way of encouragement to the defendant’s situation.

b)         The extent to which the plaintiff participated in the drinking activities of the defendant.

c)         The plaintiff’s knowledge of how much alcohol the defendant had consumed.

d)         Whether the plaintiff encouraged the defendant to undertake the drive.

e)         The symptoms exhibited by the driver to put the plaintiff on guard.

f)         The freedom of action of the plaintiff.

g)         The plaintiff’s knowledge of the driving habits and reputation of the defendant.

h)         When it was that the plaintiff discovered that the defendant was in such a condition so that he could not safely operate a motor vehicle.

3.) We then considered and prepared the relevant case law summaries in assessing the liability of a Plaintiff passenger as outlined below:

Cases:

CASE

LIABILITY

PLAINTIFF

DEFENDANT

Gosling v. Roper 2002 ABCA 71

0%

100%

Although the Court of Appeal opined that the trial judge confused contributory negligence with apportionment of liability, the CA noted that this error was harmless, and affirmed the following findings of fact (para 28):

“(a)   There is no suggestion that [Gosling] actively encouraged [Roper] to drink while at the bar. She knew he was drinking and sat with him for almost one hour. For the rest of the evening she was socializing with friends and not in [Roper’s] company.

(b)   She did inquire about the Defendant’s ability to drive his car before leaving the bar location.

(c)   She said there was no indication of impairment on the part of [Roper], such as staggering, slurring of speech prior to leaving the bar before the accident.

(d)   [Roper] had, in the past, had a reputation as a good driver. On this occasion, he drove at a high rate of speed which was probably a contributory cause of the accident.”

[29]    The learned trial judge then stated (at A.B. 852 – Reasons for Judgment):

“Both the Plaintiff and the Defendant had been drinking over the course of the evening at the bar, but there was no evidence that the Defendant’s behaviour was such that his driving ability came into question.”

[30]    Mindful of the foregoing, the trial judge concluded (at A.B. 853 – Reasons for Judgment):

“Given the circumstances of this case, I am not satisfied that the Plaintiff knew or that she should have known that the Defendant’s ability to drive was impaired by alcohol to the extent that she understood the risk and agreed to drive with him, notwithstanding his impairment.”

Accordingly, the Court of Appeal upheld the trial judge’s finding that the Plaintiff was not contributorily negligent.

CASE

LIABILITY

PLAINTIFF

DEFENDANT

Pilon v. Janveaux 2006 CarswellOnt 1211, [2006] O.J. No. 887 (Court of Appeal)

21.3%

Driver: 66.5%;

Bar: 14.2%

The Plaintiff suffered a serious brain injury as a result of a collision and brought an action against the driver, owner of the vehicle and tavern where he and the driver became intoxicated.

The Defendant driver and owner admitted 100% responsibility for the collision, but the jury was tasked with quantifying the plaintiff’s contributory negligence. At trial, the jury apportioned 17.5% responsibility to the Plaintiff for failing to take reasonable precautions for his own safety and 18% for failing to wear his seatbelt—thereby attributing 35.5% of the damages to the plaintiff’s contributory negligence (para 3).

However, the jury was not asked to determine to what extent, if any, the defendant tavern that served the two men (plaintiff & defendant driver) was responsible for (para 4):

a.) Contributing to the plaintiff’s damages and his contributory negligence by over-serving him to the point of intoxication thereby impairing his judgment with respect to:

    1. Accepting a ride with an intoxicated driver; and
    2. Failing to put on a seatbelt.

The Court of Appeal did not overturn the jury’s finding that the Plaintiff was 35.5% contributorily negligent. Rather, the Court apportioned liability between the plaintiff and the defendant tavern of the 35.5% responsibility of the plaintiff’s own injuries as follows:

  • 60% (of 35.5%) to the Plaintiff = 21.3%
  • 40% (of 35.5%) to the Tavern = 14.2%

The Court opined that the 60/40 apportionment of 35.5% accounted for the (para 13):

a.) Fact that plaintiff must ultimately be held accountable for his own actions;
b.) Reality that the plaintiff’s ability to lookout for himself was compromised in part by the tavern over-serving him.

Although the plaintiff must bear the majority of the responsibility for his contributory negligence (60%), the tavern was assigned a significant percentage (40%) (para 13).

Accordingly, the Court of Appeal found the Plaintiff responsible for 21.3% of the damages and the Defendants, collectively responsible for 78.7% of the damages, which is apportioned as follows:

Party

Liability Apportionment

Plaintiff

21.3%

Driver / Owner

64.5%

Tavern

14.2%

TOTAL

100%

CASE

LIABILITY

PLAINTIFF

DEFENDANT

Suran v. Auluck 2017 BCSC 472

25%

Driver #1 (Chrysler 300): 65%;

Driver #2 (Cadillac): 10%

The deceased was a passenger (para 170) in a Chrysler 300 that was involved in a street race with a Cadillac that had gone awry. The deceased was unable to extricate himself from the Chrylser 300 when it caught fire, and his body was found partially seated on the right front passenger’s seat area with his feet trapped between the right front passenger’s door and the ground (para 4).

The Court found that:

1.) The driver of the Chrysler 300 and his deceased passenger were intoxicated on the night of the collision (para 177);

2.) The deceased passenger was in a state of moderate to severe intoxication;

3.) The deceased passenger had several opportunities to resist entering the car with the defendant driver, including stops at a gas station, a Pub, a friend’s residence, and the Defendant driver of the Cadillac’s residence (para 178);

The Court concluded that (para 181):

1.) The deceased passenger did not take reasonable care for his safety by being a passenger in a car driven by a person he likely knew to be intoxicated;

2.) The deceased passenger was likely not wearing a seatbelt;

3.) There was some evidence that the deceased passenger tried to slow the driver down;

4.) There was no evidence that the deceased passenger actively encouraged the erratic dangerous behavior of the Defendant driver;

Accordingly, the Court concluded that the deceased passenger’s contributory negligence should be set at 25% (para 181). The Court found the driver of the Chrysler 300 65% liable and the driver of the Cadillac 10% liable (para 196).

CASE

LIABILITY

PLAINTIFF

DEFENDANT

Allercott v. Larocque 1996 CarswellBC 131, [1996] B.C.W.L.D. 524

50%

50%

Although the collision was caused solely by the Defendant’s negligence, the Plaintiff was found 50% contributorily negligent on the following grounds (para 25):

1.) The Plaintiff accepted a last minute joy ride in a stolen car that was about to be abandoned;

2.) The Plaintiff knew of the Defendant’s lack of driving experience;

3.) The Plaintiff knew that the Defendant:

    1. Had not had any sleep;
    2. Had been drinking beer and breaking into cars;
    3. Had been joyriding (para 25)

The Plaintiff did not use a seatbelt which was functional and available to him—had he been wearing the seatbelt, he probably would not have been ejected from the car and his head injury would probably not have occurred.

CASE

LIABILITY

PLAINTIFF

DEFENDANT

Nielsen v. Brunet Estate 1994 CarswellBC 375

45%

65%

The Plaintiff was injured while a passenger in his own vehicle, when the Plaintiff’s vehicle was driven by the deceased Defendant. The Court of Appeal upheld the trial judge’s finding that the plaintiff should be found contributorily negligent on the following grounds:

1.) Neither the Plaintiff, nor the Defendant were wearing seatbelts, and both were ejected from the vehicle;

2.) The Plaintiff and Defendant had consumed a considerable amount of alcohol in the hours before the collision, and were both intoxicated at the time of the collision (the Plaintiff began consuming alcohol at noon on the day of the collision, and the Defendant joined him at 2:00 p.m. They continued drinking until about 10:00 p.m. (para 5);

3.) The Plaintiff was employed as a professional truck driver with many years of experience (para 6);

At trial, the trial judge was persuaded that the Plaintiff’s degree of contributory negligence was high, given that the Plaintiff:

1.) Agreed to be a passenger in a vehicle driven by the Defendant, in the circumstances of alcohol consumption between the both of them; and

2.) The Plaintiff’s responses in cross-examination to questions as to his readiness to be a passenger with drivers who were under the influence (para 6)

The Court of Appeal found that the trial judge did not err in his apportionment of fault and upheld the trial judge’s finding of 45% contributory negligence to the Plaintiff.

CASE

LIABILITY

PLAINTIFF

DEFENDANT

Telford v. Hogan 2014 BCSC 1925

35%

65%

The plaintiff passenger suffered injuries whilst riding in a vehicle with the impaired Defendant driver.

The Court found that the Defendant bore more responsibility for the collision than the Plaintiff for the following reasons (para 81):

1.) Driving whilst intoxicated

2.) Driving at an excessive speed on the highway which contributed her not being in a position to recover from Plaintiff’s interference with the steering wheel;

However, the Court found the Plaintiff contributorily negligent because:

1.) The Plaintiff had put herself in a severely intoxicated state and also interfered with the Defendant’s steering wheel (para 81);

2.) The Plaintiff was well aware that the Defendant was drinking over the course of the day, had particular knowledge of the quantity of the Defendant’s alcohol consumption (as the majority of alcohol supplied to the Defendant driver came from the plaintiff’s own drink container) (paras 89, 103, 105)

Accordingly, the Court found the Plaintiff 35% contributorily negligent. Although there were allegations that the Plaintiff was contributorily negligent arising from her failure to wear a seatbelt, this issue was to be decided at a later time, failing agreement of the parties (para 5).

CASE

LIABILITY

PLAINTIFF

DEFENDANT

Glanville v. Moberg 2014 BCSC 1336

30%

70%

The Court found the Defendant 70% liable and Plaintiff passenger 30% contributorily negligent for the following reasons:

1.) The Plaintiff was voluntarily riding with an impaired driver (para 114);

    1. The Plaintiff was aware or ought to have been aware that the Defendant’s ability to drive was impaired by alcohol;
    2. The Plaintiff’s judgment may have been clouded by his own alcohol consumption when he agreed to ride with the Defendant;
    3. The Plaintiff was a “voluntary” passenger in the Defendant’s vehicle;
    4. The Plaintiff was unable to take reasonable care of himself because he drank himself into a significant state of intoxication (para 122)

2.)The Defendant displayed obvious signs of impairment immediately following the collision (para 115);

3.)The Defendant was not only negligent, but reckless—whereby he chose to drive aggressively, erratically, and at an excessive speed while very impaired;

Although the Court found that the Plaintiff was not properly wearing his seatbelt (para 117), the Court also concluded that there was no medical or engineering evidence that the Plaintiff’s injuries would have been prevented or lessened if the shoulder portion of the seatbelt had been worn (para 121.

Accordingly, the Court found the Plaintiff 30% contributorily negligent.

CASE

LIABILITY

PLAINTIFF

DEFENDANT

Landreau v. Tremblay 2008 CarswellOnt 10885, 170 A.C.W.S. (3d) 676

35%

65%

In this case, the Court found the Plaintiff 35% contributorily negligent when he was injured (after being thrown from a pick-up truck bed on an off-road trail) on the following grounds:

1.) The Plaintiff was riding in the box of a truck, regardless of whether or not there was room for him in the cab of the truck (para 12);

2.) The Plaintiff sat on a cooler, unrestrained, facing the front of the truck and rollbars instead of on the floor and in the middle of the box;

3.) The Plaintiff did this after having had a few drinks, knowing that:

    1. The driver had a few drinks; and
    2. That they were intending to go off-road on a hunting trail

Accordingly, the Court found the Plaintiff 35% contributorily negligent because:

1.) The Plaintiff’s conduct showed a want of reasonable care for his own safety, and if he had conducted himself in a reasonable manner, his injuries would have been avoided or lessened (para 14);

2.) The Plaintiff’s conduct of riding in a box of a truck was more blameworthy than simply not wearing a seatbelt while seated in a cab of a vehicle;

CASE

LIABILITY

PLAINTIFF

DEFENDANT

Holton v. MacKinnon 2005 BCSC 41

30%

Driver: 40%; Tavern #1: 15%

Tavern #2: 15%

The Plaintiff became a quadriplegic as a result of a collision whereby the Court found the Plaintiff 30% contributorily negligent, the Defendant driver 40% liable, and Tavern #1 and Tavern #2 each 15% liable (para 440).

The Court enunciated the following principles (para 440):

1.) A driver who drinks himself into a state of intoxication must bear a substantial portion of the fault;

2.) A Plaintiff who drinks himself into a state of intoxication so that he is unable to care for himself, must also bear a substantial portion, although less so than the driver;

3.) A Commercial host should bear a relatively substantial portion as well, although in this case, the substantial fault was shared by 2 commercial hosts.

The Court found the Plaintiff contributorily negligent on the following grounds (para 438):

1.) The Plaintiff was drinking throughout the evening and early hours of the following morning with his companions;

2.) The Plaintiff had ample time, before becoming seriously intoxicated, to observe and appreciate that his driver, like him was drinking continuously and was becoming, and became intoxicated (para 438);

3.) The Plaintiff knew or ought to have known that if the defendant driver drove them home, the plaintiff could be harmed, and the Plaintiff would have been able to assess the situation;

4.) By drinking until he was seriously intoxicated, the Plaintiff did not, in his own interests, take reasonable care of himself and contributed to this lack of care to the injury he eventually suffered (para 438).

CASE

LIABILITY

PLAINTIFF

DEFENDANT

Colebank v. Kropinske 2002 BCSC 436

75%

25%

The Plaintiff a passenger in a car driven by her defendant boyfriend. The Court found the Plaintiff 75% contributorily negligent for injuries she suffered after falling out of the car on the following basis:

1.) The Plaintiff failed to take reasonable care for her safety by pulling on her door handle, leaning out of the vehicle such that her head, one leg and half of her body were out of the door of the car (para 2). The defendant had a grip on her arm, but lost his grip and the plaintiff fell out as a result;

2.) Although the Plaintiff had been drinking and using marijuana, the Plaintiff must have known of the risk to her safety by telling the defendant she could jump out of the car, roll, and walk home, thereby accepting the risk to her physical harm (para 15);

The Court found the Defendant 25% liable because (para 17):

1.) He knew or should have known of the risk the plaintiff would exit the car while it was moving;

2.) He failed to discharge his duty to ensure that she was seat belted (although this played a relatively small role in what happened);

3.) He supplied the Plaintiff with alcoholic beverages and marijuana, knowing that when the Plaintiff was intoxicated, she could be uncontrollable;

4.) The defendant drove too fast in all the circumstances that were known to him and he should have slowed his rate of speed below the posted speed limit

CASE

LIABILITY

PLAINTIFF

DEFENDANT

Robinson v. Williams Estate 2005 ABQB 659

25%

75%

The Court found the Plaintiff 25% contributorily negligent for the injuries he suffered on the following basis:

1.) The Plaintiff had a duty of care to look out for his own well-being (para 124);

2.) The Plaintiff breached that duty of care by knowingly and willingly getting into a car with a drunk driver who was about to go on a pre-dawn pleasure trip up a narrow winding mountain road that did not have guard rails (para 125) (para 129)

3.) It was reasonably foreseeable to the Plaintiff that serious harm would befall the occupants of the vehicle (para 131);

4.) The Court found that this was:

    1. Not a situation where the driver continued to drink alcohol after getting into a vehicle;
    2. Not a situation where the driver decided on a destination or a situation where the driver had to confront an unexpected crisis during the course of travel;
    3. Not a situation of necessity: there was no need for the Plaintiff to get into the car—the Plaintiff was not stranded far from home without available alternate means of transportation;

Thurs, the Court concluded that the standard of care required of the Plaintiff was not to enter the Defendant’s vehicle (para 131).

The Court found that the Plaintiff’s actions were not as blameworthy as the Defendant, given that:

1.) The Plaintiff’s actions in knowingly and willingly getting into a vehicle with a drunk driver was not in contravention of the Criminal Code;

2.) The Defendant was drunk, tired, emotionally upset and his vehicle was not in perfect working order (para 130);

3.) The Defendant drove too fast, at night, down a narrow, winding mountain road.

The Court applied the comparative blameworthiness approach, where, if the Court is unable to establish different degrees of fault, liability for the damage should be apportioned equally (para 132). In this case, the Court concluded that:

1.) Because drunk driving is prohibited in both Canadian criminal and Alberta provincial law; and,

2.) It is not against the law to become a willing and knowing passenger in a vehicle driven by a drunk driver;

The Defendant driver in this case was more blameworthy for the injury to the Plaintiff. The court indicated that there may have been an argument in favour of a higher level of blameworthiness upon the Plaintiff, since (para 132):

1.) The Plaintiff could have easily and cheaply avoided injury altogether by showing reasonable care for his own safety; and

2.) The Plaintiff’s negligence occurred at the outset of the incident rather than during the course of a series of events;

However, the defendants only argued for a 25% degree of blameworthiness upon the Plaintiff and the Court agreed with the 25% apportionment.

CASE

LIABILITY

PLAINTIFF

DEFENDANT

Jones v. Cheesbrough 2003 ABQB 196

40%

60%

The Plaintiff passenger suffered significant injuries in her own vehicle that was driven by the Defendant. By applying the test set out in Heller, The Court found the Plaintiff 40% liable and the Defendant 60% liable for the following reasons:

1.) The Defendant’s actions included (para 28):

    1. Driving the vehicle with a very high blood concentration;
    2. Dangerous driving causing bodily harm contrary to section 245(3) of the Criminal Code of Canada (to which he pled guilty and was convicted); and
    3. Driving at a grossly excessive speed;

2.) The Plaintiff’s actions included (para 28):

a. Riding as a passenger in her own vehicle while it was being driven by a person having a very high blood alcohol concentration (the Court opined that despite the Plaintiff’s high blood concentration, she would have been able to observe the Defendant’s degree of impairment (para 19); and

b. Failing to wear an available seatbelt which would have materially reduced the extent of her injuries (para 14);

In this case, the Court opined that there was a considerable degree of blameworthiness between the Plaintiff and Defendant (para 30). The Court ultimately found that the Defendant’s blameworthiness exceeded that of the Plaintiff’s and apportioned 60% liability to the Defendant, and 40% to the Plaintiff (para 30).

CASE

LIABILITY

PLAINTIFF

DEFENDANT

Michell v. Duncan 1985 CarswellBC 2235

50%

50%

The Plaintiff was rendered a paraplegic when the truck in which he was a passenger collided with another vehicle. The collision was found to be wholly the fault of the defendant driver of the truck.

However, the Court found the Plaintiff 50% liable on the following grounds:

1.) The Plaintiff was not wearing a seatbelt and his injuries would have been less severe if he had worn one (and thus, was held to be 20% responsible for his injuries for failure to wear a seatbelt) (paragraphs 2 & 8);

2.) The Plaintiff was held to be an additional 30% responsible for his injuries for riding with a driver that he knew, or should have known to be impaired, especially considering that:

    1. The Plaintiff had several opportunities to leave the truck after the journey commenced and the Defendant had been driving wildly (paras 9-10);

In our present case, we suggested that Michell pre-dated the Contributory negligence tests that have been applied in subsequent case law such as Heller v. Martens, given that such a result in the Michell case does not account for the heightened blameworthiness of the Defendant and would not serve the objectives of tort law, namely, compensating the injured and deterring the tortfeasor (see Heller, para 26-27).

The lawyers at Kubitz & Company are honored to represent Plaintiffs. We do not act for insurance companies. We thrive on pursuing a robust analysis of our cases and thinking through the merits and pitfalls of the claims that come through our office. Call us at 403-250-7100 for a consultation with one of our lawyers if you have been injured in a collision and are thinking of, or are unsure of whether you ought to pursue a claim or not.

[*END NOTE]:  This was discussed by J. Veit in the Robinson v. Williams Estate QB decision (2005 ABQB 659) where she writes, “With respect, I am of the view that the Gosling decision — which is a causation analysis — has, in effect, been over-ruled by the subsequent appeal decision in Heller v. Martens [2002CarswellAlta 657 (Alta. C.A.)] which has established comparative blameworthiness as the approach that supercedes the causation approach in Alberta. In coming to this conclusion, I note that although the Gosling and Heller panels were different, in the subsequent decision of Chae v. Min, Paperny J.A., who was part of the panel on Gosling, adopted Heller as the law in Alberta. Alternatively, even if Heller does not over-rule Gosling, because Heller is the last word on the subject of contributory negligence from our Court of Appeal, the rules of stare decisis require a trial judge to follow Heller. (para 14).

 

Peter Trieu, a personal injury lawyer in Calgary, Alberta