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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:


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





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






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


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




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

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

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


(para. 87)



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:

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.



  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.




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.



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.



  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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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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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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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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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:






Gosling v. Roper 2002 ABCA 71



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.





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


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:


Liability Apportionment



Driver / Owner










Suran v. Auluck 2017 BCSC 472


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).





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



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.





Nielsen v. Brunet Estate 1994 CarswellBC 375



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.





Telford v. Hogan 2014 BCSC 1925



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).





Glanville v. Moberg 2014 BCSC 1336



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.





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



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;





Holton v. MacKinnon 2005 BCSC 41


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).





Colebank v. Kropinske 2002 BCSC 436



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





Robinson v. Williams Estate 2005 ABQB 659



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.





Jones v. Cheesbrough 2003 ABQB 196



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).





Michell v. Duncan 1985 CarswellBC 2235



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

Possible Range of Values for a Severe Brain Injury with Numerous Fractures and a Prior Brain Injury

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Assume that Mr. Plaintiff, was injured in a motor vehicle accident. The driver of the car, in which he was a passenger, was impaired and the car rolled. Mr. Plaintiff was seriously injured and was hospitalized for approximately four months immediately following the accident. He was in intensive care for the first couple of weeks immediately following the accident. His Glasgow Coma scale was 3/15 at the start of the hospital stay.

Other medical interventions resulting from the accident that took place during the hospital stay included:

  • Left eye surgery;
  • Incision and drainage of tibia, fibula fracture;
  • Exploratory laparotomy;
  • Fixation of facial fractures and wiring of jaw;
  • Tracheostomy and closure of laparotomy;
  • Open reduction and internal fixation left tibia, fibula fracture and open reduction and internal fixation of the left elbow fracture as well as PEG tube placement; and
  • Transposition and flap closure to left lower extremity deficit and exploration of facial fractures for query entrapped lateral rectus muscle.

After the hospital stay, Mr. Plaintiff attended physiotherapy at the hospital and attended at the Brain Injury Relearning Service Centre. After the hospital stay, Mr. Plaintiff had day surgery on his left elbow and left ulnar nerve. He also had right knee surgery after the accident but it appears this was not due to the accident.

Prior to the accident, Mr. Plaintiff had suffered some minor to moderate injuries. These included the following:

  • Head and neck injury 11 years prior due to diving off a wharf;
  • Brain injury, intracranial hemorrhage, basal skull fracture, apex fracture, left TMJ fracture and left facial nerve palsy 6 years prior due to a prior accident. This required some surgery and hospitalization;
  • Hit back of head 5 years prior due to a fall;
  • Struck in face with jaw pain and left neck pain 4 years prior due to being hit in face; and
  • Foot fracture 3 years prior due to being assaulted at work;

It appears to be established in the documentation that Mr. Plaintiff was suffering from some cognitive impairments prior to the accident. However, it also appears to be the consensus on the file that the accident caused significant brain damage and was of a much greater magnitude than any previous cognitive impairments.

Mr. Plaintiff resumed employment on a part time basis approximately two years after the accident. He has since maintained some employment since that time however he is unable to do very demanding physical work.

For the purposes of this quantum assessment, Mr. Plaintiff’s injuries resulting from the accident are considered as follows:

  • Amnesia with respect to the details of the accident and events immediately preceding;
  • Broken left arm and leg;
  • Left side facial fractures and broken neck;
  • Stomach surgery for exploration of injuries with resulting scar on his abdomen;
  • Tracheostomy scar;
  • Hardware in arm and jaw;
  • Severe traumatic brain injury;
  • Left subarachnoid haemorrage;
  • Diffuse axonal injury;
  • Vertebral fracture of C2 and spinous process fracture of C7;
  • Left comminuted supra condylar fracture;
  • Left open tibia and fibula fractures; bilateral pulmonary contusions;
  • Chemical burns on torso;
  • Entrapment of left rectus muscle; and
  • Intimal tear of internal carotid artery.

Mr. Plaintiff currently suffers from the following as a result of the accident:

  • Painful left leg for which he uses extra strength tylenol. There is also significant deformity with respect to this leg;
  • Cannot extend his left arm fully due to elbow broken in accident;
  • Personality change including more mood swings;
  • Currently uses Synthroid for thyroid issues;
  • Cognitive impairment, easily overwhelmed and confused
  • Bad balance and cannot run;
  • Missing part of left visual field. It is also noted there is facial scarring on his left side;
  • Hearing is weak on left side;
  • Reduced sensitivity in taste and smell;
  • Numbness in left pinky;
  • Memory problems;
  • Requires eye drops for his left eye (which he still cannot completely close);
  • Altered speech; and
  • Potential 23% whole person impairment for orthopedic injuries and potential whole person impairment of 42%

Clearly, the pain and suffering experienced by Mr. Plaintiff resulting from the accident is significant. His ability to enjoy his life to the fullest has been seriously compromised given his injuries. He has also had to follow a different career path given his inability to do any physically demanding work.

According to the Bank of Canada inflation index, the current trilogy cap is $366,384.18.


Alberta case law suggests general damages ranging from $230,000 to $250,000. Two outlying British Columbia cases are presented where the damage awards exceeded $330,000.

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

The cases (discussed in detail below) are presented in the order of most relevant to Mr. Plaintiff’s situation, having regard to the amount of the damage award as well, to least relevant.

Ward v. Ward, 2010 ABQB 654, [2010] AJ No 1200

Damage Award: $205,000

Inflation Adjusted Damage Award: $230,000

The 16-year-old male plaintiff (Cory Ward) was injured when he was a passenger in a vehicle that was involved in a motor vehicle accident. As a result, he suffered extensive internal and external injuries. He almost died twice en route to the hospital and required immediate surgeries to be kept alive. He was in a coma for 19 days. He suffered multiple brain hemorrhages, diffuse axonal injuries, multiple fractures to skull including a jaw fracture, mandible, shoulder blade, ribs and pelvis, liver lacerations and blood and air in the space between his lungs.

As result of the injuries, the plaintiff maintained he was totally and permanently disabled and would require supervision for the rest of his life. The defence argued that while he did suffer a severe brain injury and multiple physical injuries which would have some permanent effect, he had made a good recovery from his injuries.

The plaintiff had done various kinds of therapy following the accident including physio, OT, speech therapy, neuropsychology, and social work. He also took part in rehab for his brain injuries. He had to relearn various skills while in rehab including basic life skills like toileting, grooming, feeding, speaking, etc.

The plaintiff did make great strides in recovery and it was reported that he became independent in self-care but his memory was poor and he was a greater risk of experiencing seizures because of the accident. His gross and fine motor skills were sufficiently impaired such that he would not be safe on such things as ladders, scaffolding or stilts. He was assessed as having a 17% whole body impairment due to the physical injuries and a 20% impairment of the whole person due to the cognitive impairments. Using a combined value, total impairment was 34%. While the plaintiff was well within the range of being physically functional in the home setting and able to manage basic self-care tasks, he had significant cognitive and behavioural deficits and would require guardianship and trusteeship. Cognitively, he was at a very low level prior to the accident and the court concluded he would not have completed high school in any event.

Plaintiff’s counsel argued given his severe brain injury, his young age and long life expectancy that general damages were appropriately in the range of $250,000.00 to $300,000.00. It was admitted by plaintiff’s counsel and recognized by the court that the cap amount is generally reserved for the most severe cases involving both physical and mental disability.

Defence counsel argued that the plaintiff had made a good recovery and damages were in the range of $175,000 to $205,000 arguing that the top end in a brain injury case is reserved for a case where the plaintiff has suffered almost total physical debilitation but still has retained their mental faculties and therefore experience the full range of mental anguish for what they have lost.

The court reviewed the cases of the plaintiff and defendant (many of which are covered in this memo) and made an award of $205,000 for general damages in this case. This amount inflation adjusted is $230,000.

Madge v. Meyer, 1999 ABQB 1017, aff’d 2001 ABCA 97, [1999] AJ No 1566

Damage Award: $150,000

Inflation Adjusted Damage Award: $212,000

A 53-year-old- male was severely injured in a motor vehicle accident. He had no memory of the collision or aftermath and was in the ICU for approximately 3 weeks. Upon admission, his Glasgow Coma Scale Score was 3/15. He remained at the hospital for a total of approximately 3 months. The plaintiff’s injuries included: a basal skull fracture with accompanying severe brain injury, left femoral fracture requiring open reduction and internal fixation, right cranial nerve palsy resulting in double vision, left side hemiparesis (weakness) and scars to voice box (due to intubation). He required surgery to repair his broken femur by way of nailing. When the plaintiff was discharged from his physio, it was noted he was fully independent and functional level was normal with his main complaint being of tiredness. The only formal rehabilitation he received after being released from the hospital was 15 physiotherapy sessions. He did attend for brain injury rehab for approximately 2 weeks over a year after his accident.

The court found that while the plaintiff had suffered a significant physical and mental disability because of the injuries from the accident, he was sufficient in daily care and was able to contribute to his home and work environment (farming) on a reduced basis. In terms of pre-accident history, the plaintiff had a long history of complaints regarding his health. However, the court found none of these impacted the injuries he suffered from the accident.

The court (at paragraph 242) found that the general damage awards in cases such as these with traumatic brain injuries ranged from $125,000 to $133,000 (in 2017 that would be $177,000 to $188,000).

At paragraph 243 the court stated:

It must be remembered that the purpose of non-pecuniary damages is to compensate the plaintiff for losses by way of an award of damages to the extent that money can be used to purchase solace for the losses that have been sustained. Here, Madge, age 53 at the time of the accident, suffered a severe brain injury, left temporal fracture, right cranial nerve palsy, scars to the voice box and left sided herniparesis. He required extensive hospitalization as well as orthopaedic surgery. He suffered complications in the hospital. He is not the man he was pre-accident and more importantly, he understands that and feels it and must deal with it daily. In my judgment, having regard to the cases, the legal principles applicable, Madge’s age, injuries, treatment and permanent disabilities, pain and suffering, an appropriate award for non-pecuniary damages would be $150,000.

Crackel v. Miller, 2003 ABQB 781, aff’d 2004 ABCA 374, [2003] AJ No 1160

Damage Award: $180,000

Inflation Adjusted Damage Award: $227,000

 The 35-year-old male plaintiff was injured in a motor vehicle accident when the vehicle he was driving drove into the back of a three tonne truck that was parked on the side of the road due to mechanical issues. He was hospitalized for approximately two months and suffered from amnesia for at least two weeks after the accident. He suffered a severe traumatic brain injury as a result of the accident. He made a remarkable physical recovery from his injuries but continued to suffer from cognitive and emotional difficulties in the aftermath. His intellectual abilities recovered to close to the level they were at pre-accident but he had greater difficulty recalling verbal information, more so than visual information. He suffered anger management issues resulting from the accident. The plaintiff also suffered a fractured skull in the left frontal sinus area and a subdural haematoma, an open left distal radius and ulna fracture, a burst fracture of the first lumbar vertebra and transverse fracture of the third left metacarpal. He also lost his sense of smell as a result of the accident. He had continued pain and limited movement in the mid-low back and left wrist.

The plaintiff’s medical expert assessed the plaintiff with a 5% whole person permanent, partial disability due to the loss of motion in the left wrist, a 1% whole person permanent, partial disability due to the diminished back flexion and extension resulting in a 6% whole person permanent, partial disability.

After considering the case law presented, the court found this case similar to Madge v. Meyer and awarded $180,000 in general damages.

Labrecque v. Heimbeckner, 2007 ABQB 501, [2007] AJ No 1462

Damage Award: $200,000

Inflation Adjusted Damage Award: $254,000

The female plaintiff was injured in a motor vehicle accident. She was thrown from the vehicle and badly injured. The plaintiff had an extensive pre-existing medical history including substance abuse, a personality disorder and general mental issues. She was involved in two previous motor vehicle accidents although did not suffer any serious injuries in either.

As a result of the accident in question, she suffered a fractured right humerus, a fractured clavicle, a compression fracture of the lower spine, a complex fracture to her left calcaneus. She also suffered multiple abrasions, cuts and bruises to her head, face and body and significant scarring as a result of the “gravel rash” from the accident. She also suffered a brain injury and was unconscious for a period of time after the accident.

Plaintiff’s counsel argued it was a moderate brain injury whereas defence counsel argued it was at best, a mild brain injury and that her situation was primarily the result of her drug dependency and personality disorder which existed prior to the accident. She was discharged from the hospital approximately three weeks after the accident. She moved back to her home where she was essentially bedridden for two or three months. She did attend physiotherapy sessions for about three months after arriving home from the hospital (approximately 19 visits). She continued to have difficulties with short term memory and multi-tasking. She attended at the Brain Injury Centre at the Foothills Medical Centre where she accessed physio, OT, chiro, massage and psychology.

Given the plaintiff’s extensive drug abuse and mental health issues, the court struggled with the issue of whether the plaintiff did suffer a traumatic brain injury. After reviewing the evidence, the court concluded that she did suffer a traumatic brain injury as a result of the accident. She became incapable of living independently from the help of her family and care givers. She was not able to run a business, look after herself, her son or her property without daily assistance.

On the other hand, the court recognized that her drug dependency prior to the accident was a major complicating factor and would have significantly interfered with her life in any event if not treated. As a result, the court concluded she was entitled to $200,000 in general damages. The Court at paragraphs 147 to 155 reviews its reasoning in granting that order noting that this case did not justify an award of the upper limit. It appears the court may have allotted $150,000 for the brain injury (relying on Madge v. Meyer and Bourbonnais v. Gavreau) and $50,000 for the physical injuries for a total non-pecuniary award of $200,000.

Bourbonnais v. Gauvreau, 2003 ABQB 952, varied on other grounds 2005 ABCA 154, [2003] AJ No 1429

Damage Award: $150,000

Inflation Adjusted Damage Award: $189,000

The 35-year-old male plaintiff was injured when he was hit by a vehicle while riding his bike. He suffered a severe brain injury resulting in a 12% impairment of the whole person. He also suffered a broken arm and rib, a punctured lung and multiple lacerations and abrasions. He continued to have cognitive impairments and significant speech and fatigue problems. He also lost his sense of smell. He continued to receive regular chiropractic treatments and required such treatments for the foreseeable future.

He suffered amnesia immediately after the accident and did not remember the following three weeks. While the plaintiff suffered a very severe brain injury, he made a remarkable recovery and was able to teach a college level computer programming course. The court awarded $150,000 in general damages and gave the following summary of injuries at paragraphs 165 and 166:

He sustained a very severe traumatic brain injury with extensive deficits that will affect him for the rest of his life. The deficits include: on-going limitations of his right shoulder; the total loss of his sense of taste and smell; significant fatigue and reduced endurance which will impact his ability to work and to enjoy the physical leisure activities in which he excelled. In general, his level of intellectual function has been reduced from a high level to a low average level. His ability to acquire new information has been negatively affected. When his fatigue increases, there is the resulting loss of word finding ability and difficulty in speech. Extreme fatigue in early 2002 raised fears of incontinence.

Dr. Nagy testified as to the other medical issues which he may now face as a result of his brain injury and the risk of subsequent injury to his brain. Those include a higher risk of epilepsy and increased vulnerability to future stroke and brain injury. In addition, Mr. Bourbonnais sustained physical injuries which included fractures to the right humerus; fractured right acromium and third right rib; a hole drilled into his skull to insert a drain to relieve the pressure on his brain; punctured right lung and scarring from his shoulder to his elbow.

Calahasen v. Northland School Division No. 61, 2012 ABQB 611, [2012] AJ No 1058

Damage Award: $135,000

Inflation Adjusted Damage Award: $137,900

The 40-year-old male plaintiff was injured when he was assaulted by a group of people. He suffered a moderate-severe brain injury, fractures including facial fractures, dylopia, ongoing pain and depression, cognitive impairment, PTSD, post-concussion syndrome, decreased senses, dizziness, fatigue and speech difficulties. His enjoyment and quality of life were severely compromised.

He underwent surgery to address the facial fractures and multiple plates were inserted. He experienced double vision for two years due to his left eye being lower than his right eye. His face remained misshapen. Cognitively, he suffered short term memory loss and difficulty with calculation and attention. He experienced constant facial pain, blurry vision and watery eyes all resulting from the assault. He medicated using Tylenol 4 on a regular basis to control the facial pain. He has also suffered from gait changes, decreased gross motor coordination, speech difficulties and exacerbation of emotional anxiety and stress.

The assault and corresponding injuries had a grave impact on the plaintiff. He became reclusive with sleep disruption and it impacted his family as well. He had concerns he was a burden to his wife.

Plaintiff’s counsel submitted the appropriate range of general damages was between $125,000 and $150,000. The court awarded $135,000.

Izony v. Weidlich, 2006 BCSC 1315, [2006] BCJ No 1986

Damage Award: $275,000

Inflation Adjusted Damage Award: $330,000

The male plaintiff was injured in a motor vehicle accident. He alleged the following injuries:

  • L4 burst fracture;
  • Grade 3B open proximal left tibia fracture associated with distal segmental fibula fracture;
  • Posterior fracture dislocation of the right acetabulum;
  • Fracture of the left distal radius;
  • Fracture of the right radius;
  • Comminuted mid-shaft fracture of the right humerus;
  • Fracture of the sternum;
  • Multiple rib fractures;
  • Pulmonary contusion;
  • Cardiac contusion;
  • Abdominal wall laceration;
  • Multi-system organ failure;
  • Systemic MRSA (methicillin resistant staphylococcus aureus) infection resulting in infection of his left tibia;
  • Hyperbilirubinemia;
  • Hyperkalemia;
  • Renal failure;
  • Liver failure;
  • Pneumonia;
  • Traumatic brain injury;
  • Hearing loss;
  • Depression;
  • Hernia at abdominal incision; and
  • Sexual dysfunction.

The plaintiff underwent numerous surgeries and was left with extensive scarring. He continued to suffer from decreased mobility, chronic pain and effects from his brain injury. He complained of difficulties with attention, concentration and memory and could no longer multi-task.

The court found that the plaintiff had suffered a mild traumatic brain injury resulting in cognitive impairment. The court also found the injuries suffered caused him pain which caused some difficulty and decrease in sexual activity. His most serious limitations were his physical ones, notably his decreased mobility due to the multiple surgeries he underwent after the accident. He developed a staph infection from these surgeries. The head of his femur was removed, leaving his right hip joint unstable and thus, he was unable to walk long distances. The court found that while he suffered some decrease in mobility, he was not completely helpless and continued to enjoy hiking, fishing and hunting. He did not experience continual pain but rather when the weather changed or when he was required to move strenuously. When medication was required he used Tylenol #3. The court awarded $275,000 for general damages.

Coulter v. Ball, 2005 BCCA 199, 39 B.C.L.R. (4th) 82

Damage Award: $284,000

Inflation Adjusted Damage Award: $348,000

The plaintiff Coulter was a passenger in a vehicle that was driven by Ball. The accident occurred when Ball attempted to cross the highway and collided with a vehicle driven by Leduc. Coulter suffered a serious injury to the frontal lobe of his brain and suffered other injuries, including a fractured mandible, fractured clavicle, fractured pelvis and bruised kidneys.

The trial judge awarded general damages at the rough upper limit of $284,000 primarily because of the extent of the brain injury. The trial judge accepted the defence theory that before the accident the plaintiff was distractible, exercised poor judgement and impulse control, and that he was aggressive, becoming more rude and confrontational when drinking. She found that after the accident Coulter was socially isolated in the sense that he was unable to form and maintain friendships, he exhibited emotional volatility, disinhibition, and had an inability to interpret social situations and presented a danger to himself and to others. He had lost the psychological benefits of engaging in competitive employment. He required a committee for the management of his financial affairs. While the negative traits of his personality and lifestyle were present before the accident, they were accentuated by the accident to the extent that his functional ability was substantially impaired. The degree of impairment was within the “catastrophic” category, sufficient to support an award at the rough upper limit of pecuniary damages.

This general damage award was upheld on appeal.


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

Credibility in Personal Injury – Part 2

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This article is part 2 and a continuation of our article named Credibility in Personal Injury – Part 1 posted on February 26, 2016.

There is no diagnostic technique, machine or medical device that can objectively prove or disprove chronic pain or soft tissue whiplash injuries. Without “objective” evidence or proof of the plaintiff’s injury in chronic pain or whiplash cases, the court relies heavily upon the subjective evidence provided by the plaintiff when making its judgment. It is crucial then that the plaintiff’s evidence to the court be truthful and believable. If it is not, there may be serious consequences to the plaintiff’s claim.

The importance of credibility has again been emphasized by two decisions rendered within a week of each other in February 2017: Kohlendorfer v Northcott, 2016 ABQB 114, and, Petz v Duguay, 2017 ABQB 0090.

In Kohlendorfer, Justice Clackson comments about the importance of credibility (at paragraph 28):

In my view, in the world of personal injury litigation where so much turns on subjective complaint, the court is entitled to expect the utmost honesty from a plaintiff. Obviously, where the plaintiff claims sequelae which are not borne out by evidence, the Court must remain open-minded but must also exercise caution when assessing the plaintiff’s subjective claims when they are at odds with or inconsistent with the objective evidence before the Court. Although the sequelae are not supported by the objective evidence, the plaintiff might actually be experiencing the claimed sequelae from a subjective, individual perspective. However, where the plaintiff, in the course of testifying, wilfully exaggerates or complains of symptoms that the medical profession and its practitioners are not familiar with, that plaintiff’s credibility is significantly undermined. In cases such as that, the Court must be wary and concerned about such testimony. Simply accepting the plaintiff’s word at face value is neither wise nor fair to the defendant. That is the situation here. Consequently, some objective evidence or proof of the Plaintiff’s claims is necessary in this case.

In both cases, the Plaintiffs were seeking hundreds of thousands of dollars, but because the judge did not believe them, Mr. Kohlendorfer was only awarded $23,000.00 for pain and suffering plus $41,786.00 for income loss, and Ms. Petz was only awarded $50,000.00 for pain and suffering plus past loss of income and expenses for a total of $76,028.00. Both of these plaintiffs will likely have to pay punishing court costs to the defendants for failing to beat the defendant’s formal offers.

The facts that damaged Mr. Kohlendorfer’s credibility include:

  1. There was only $700 damage to the back of Mr. Kohlendorfer’s pickup truck when he was struck by a Honda Civic;
  2. He did not see a doctor after the collision as he expected the insurance company to find a doctor for him;
  3. He saw a lawyer before he saw his family doctor;
  4. Mr. Kohlendorfer’s treatment primarily consisted of visiting a hot spring in Nevada, massage therapy, rolling his shoulders, and herbal remedies;
  5. He did not see a chiropractor until six months after the collision, whom he only saw five times;
  6. Mr. Kohlendorfer did not mention any jaw symptoms to his dentist or doctor until three years after the collision;
  7. Despite his claimed injuries, he continued to conduct prospecting in the Yukon, a physical activity;
  8. Surveillance videos showed Mr. Kohlendorfer appearing to be strong and active and moving his neck and shoulders freely;
  9. The plaintiff’s posture along with age-related degenerative change could explain the plaintiff’s ongoing difficulties;
  10. He complained of symptoms that were medically unexplainable such as a number of episodes of paralysis;
  11. His range of motion when formally tested was less than his range of motion when he was being observed discretely;
  12. His symptoms spread from his neck, to his shoulders and then to his upper back over time, which is unusual;
  13. He continued to drive long-distances to Nevada and the Northwest Territories, and to engage in physical labour, despite his reported functional limitations;
  14. He was 55-years of age when the collision occurred, and his symptoms are consistent with his chronological age from the normal aging process; and,
  15. A judge concluded that “Mr. Kohlendorfer saw an opportunity to make a buck and pounced on it”.

Justice Clackson concluded that Mr. Kohlendorfer’s injury lasted a maximum of one year and awarded $23,000.00 for general damages.

The factors that damaged Ms. Petz’s credibility include:

  1. While testifying at trial, Ms. Petz described her pain as ranging from a 3 to 8 out of 10, but when her hair got in her face while giving evidence, she shook her head left to right quickly to reorganize her hair, and the quick motion did not seem to bother her neck and head; consequently there were inconsistencies between her reported ability and the observations made by the judge at trial;
  2. Surveillance video taken of Ms. Petz showed her moving her household, including lifting boxes and household items with no signs of pain except for one instance where she briefly took her left arm and touched the back of her neck. The court did not accept her evidence that boxes she was lifting were “quite light”;
  3. Ms. Petz would attend on her family doctor and not mention any pain complaints, but when she was assessed in the same time period for medical legal purposes, she complained of serious chronic pain;
  4. Her own family doctor testified that over the last ten years of dealing with Ms. Petz, the doctor had doubts about her pain;
  5. Ms. Petz saw over 20 health care professionals since the collision. At one point she was seeing three family physicians at the same time and was not happy with any of them.
  6. She went to see a certain family physician on the advice of her lawyer, and this new physician, after treating her 29 times, told her to go back to her current doctors and stay there;
  7. Her psychiatrist testified that Ms. Petz demonstrated disproportionate reactions to any injuries she had suffered;
  8. Ms. Petz helped renovate her house by painting. She had no problems doing this;
  9. While being formally assessed for litigation purposes by a doctor retained by the defendant, Ms. Petz said she was unable to move her neck or use her left arm, but when observed informally, she was able to perform these movements easily, in a normal rhythm, and without any signs of discomfort; and,
  10. During the defence psychiatric examination Ms. Petz was able to sit for 1-1/2 to 2 hours with no obvious pain demonstration or difficulty.

Justice Sullivan found that Ms. Petz’ perceived level of pain could not be reasonably explained by reference to any organic cause, and as such her credibility was of utmost importance. Justice Sullivan did not find Ms. Petz to be a credible witness. He noted:

  1. That Ms. Petz provided inadequate explanations for the inconsistencies in her testimony;
  2. The contents of the surveillance video and Ms. Petz response thereto;
  3. The medical evidence of symptom amplification;
  4. Dr. Safran’s doubts about Ms. Petz’s pain;
  5. The correlation between the events in the litigation, such as Questioning, and Ms. Petz’s reports of pain to her doctors;
  6. The inconsistency in Ms. Petz’s reports of pain to her family physicians versus her reports of pain to doctors providing IMEs for the litigation;
  7. Ms. Petz’s extreme preoccupation with the litigation and the financial gain flowing therefrom (a source of “secondary gain”); and,
  8. Ms. Petz’s dissatisfaction with any health care provider that did not give her a favourable report with respect to the litigation.

Justice Sullivan found that Ms. Petz had recovered from her accident-related injuries about four years after the accident, or five months after the surveillance video, and awarded her general damages of $50,000.00 plus $21,710.00 for past loss of income and $4,318 for out-of-pocket $4,318.00 for a total of $76,028.00.

In conclusion, as chronic pain and whiplash cases usually have no objective proof, the credibility of the plaintiff is absolutely crucial in these types of cases.

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