Car Accident Case Review

By November 21, 2017Articles

Car Accident Legal Case Review – Calgary, Alberta

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

accident lawyers Calgary Peter Trieu

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.