Article edited by Walter W. Kubitz, Q.C., a personal injury lawyer in Calgary, Alberta.
Chronic pain neck and back, headaches, TMJ, anxiety, depression, somatic symptom disorder, and torn knee meniscus.
Ms. Plaintiff was in a motor vehicle accident.
She was showing signs of shock (trembling and confusion) and experiencing increasing pain in her face, neck, back, hip, and both knees, along with a sore stomach. Ms. Plaintiff suffered headaches every day after the accident, along with constant neck and back pain. She had pain in her lower back and a stiff left hip. Ms. Plaintiff had jaw pain and was found to have sustained two or three broken teeth on her lower right side, along with a chipped upper front tooth. These teeth needed root canals to repair. She had a sore right wrist and elbow, and her left knee was scraped and swollen with fluid in it. Ms. Plaintiff had a black left eye, and she had chemical burns on her face from the airbag. She was diagnosed with a grade 2 sprain to her left spine, hip, and forearm; a WAD II injury; and a patellofemoral contusion. She had occasional dizzy spells and was nervous driving. Ms. Plaintiff was also diagnosed with TMJ dysfunction.
Ms. Plaintiff had some pre-existing medical conditions. She had a poorly functioning gallbladder with acalculus cholecystitis. She was a smoker and has suffered extensive left maxillary chronic sinusitis. Ms. Plaintiff’s dentist noted some tooth decay and a tooth that was fractured prior to the accident. She was supposed to go for a crown and some restorative work on her teeth, but she never showed up, claiming to have anxiety about seeing the dentist. Ms. Plaintiff had pre-existing stresses in her life and suffered from some depression issues. An MRI showed mild degenerative disc disease, mild central spinal stenosis, and mild facetal osteoarthritis.
After the accident, Ms. Plaintiff’s health and mental state declined; she had extensive treatment to deal with her pain and medical issues. Ms. Plaintiff underwent physiotherapy, chiropractic, massage, and acupuncture. She had cortisone injections in her neck, left shoulder, one hip, and both knees; she had Botox injections for her headaches. Ms. Plaintiff had meniscus surgery on both knees. She had a left partial medial meniscectomy: this revealed a left knee medial meniscal tear. Arthroscopic surgery on her right knee revealed an unstable, bucket-handle medial meniscal tear. However, the right knee injury was determined to probably be unrelated to the accident. Ms. Plaintiff has a custom-made oral orthotic from her TMJ dysfunction. She has had problems with this appliance.
Perhaps the most significant lasting injuries from the accident are to Ms. Plaintiff’s state of mind. She has been diagnosed with significant and severe depression. She has concentration and memory problems and chronic, moderate to severe PTSD. Ms. Plaintiff has generalized anxiety disorder that is chronic to moderate. She suffers from chronic pain. Ms. Plaintiff has been diagnosed with a chronic somatic symptom disorder that is moderate to severe.
Ms. Plaintiff has been diagnosed with chronic pain and has some pre-existing and post-accident emotional issues and stressors, but the accident and subsequent chronic pain has significantly contributed to her current emotional status. Close family members passed away or were hospitalized after the accident. Ms. Plaintiff has had several falls since the accident. Her head collided with her dog and she suffered a concussion. There may be some mitigation issues raised by defense counsel, as Ms. Plaintiff did not see a family doctor for years after the accident. Due to her anxiety about dentists, she has not gone for regular dental maintenance. She occasionally misses scheduled therapy appointments.
Although it has been nearly 13 years since the accident, Ms. Plaintiff continues to complain of jaw and dental issues. She has cervicothoracic pain on a consistent basis, affecting the left side greater than the right. She has low back pain on an intermittent basis radiating into the left hip. Ms. Plaintiff continues to suffer from bilateral knee pain, neck pain, left shoulder pain, and face pain. Most significantly, Ms. Plaintiff suffers from headache, stress, anxiety, panic attacks, depression, and the somatoform disorder.
There are several cases that are analogous to Ms. Plaintiff’s situation.
The most analogous case overall to Ms. Plaintiff’s is Russell v. Turcott, 2009 ABQB 19, additional reasons in 2009 ABQB 236. The Russell plaintiff suffered whiplash and depression; TMJ injury; chronic pain syndrome; PTSD; fibromyalgia; regional myofascial pain syndrome; a generalized anxiety disorder; and a major depressive disorder secondary to chronic pain. This plaintiff was of a similar age to Ms. Plaintiff and also had some pre-existing health problems. However, she did not require surgery, as Ms. Plaintiff did (for her knee). Rooke J awarded the plaintiff $132,365 in general damages (inflation adjusted).
Another very analogous case is the recently decided Firman v. Asadi, 2019 BCSC 270. In this case, the 40-year old female plaintiff was injured when the defendant’s vehicle t-boned her vehicle. The Firman plaintiff suffered left hip injury including torn labrum that required surgery; thoracic outlet syndrome requiring surgery; whiplash injuries and resultant chronic pain in her upper back, left shoulder, and arm; left shoulder tendinopathy; chronic headaches; and mood or psychiatric disorders including depression, anxiety, and somatic symptom disorder. These injuries drastically affected her life and personality. Verhoeven J awarded the plaintiff $170,000 in general damages (inflation adjusted).
Other analogous cases set the general damage award for plaintiffs with similar injuries to Ms. Plaintiff’s, inflation adjusted, from a high of $170,000 to a low of $79,080, with an overall average amount of general damages awarded of $127,645. Analogous Alberta cases set the award, inflation adjusted, from a high of $168,375 to a low of $79,080. The average amount of general damages awarded in similar Alberta cases was $$118,980. Therefore, it seems that Ms. Plaintiff’s likely general damage award will range around $120,000 to $130,000.
The following cases are inflation-adjusted using the Economica index.
Firman v. Asadi, 2019 BCSC 270 $170,000 $170,000
In this recent case, the 40-year old female plaintiff was injured in a motor vehicle accident. The defendants denied liability. The vehicles collided in a t-bone fashion at an uncontrolled intersection. Verhoeven J held that the defendant was in the wrong and liable for the accident. Immediately following the collision, the plaintiff felt pain in her chest, clavicle, and left shoulder; she heard a pop in her left hip; and her whole upper body hurt.
The plaintiff did not go to the hospital and did not see a doctor about her accident injuries until several months later. At the time she went to walk-in clinic, the plaintiff was complaining of soreness in her left neck and left chest areas, left groin area, numbness and tingling in her left little finger, and headaches 4-5 times per week. A doctor diagnosed suspected left cervical radiculopathy (compressed nerves in her neck causing the hand and arm symptoms) and cervicogenic headaches. An MRI showed a labral tear in her left hip; another doctor diagnosed thoracic outlet syndrome.
The plaintiff underwent arthroscopic surgery to repair her left hip labral tear; the surgery was successful. She later had surgery for her thoracic outlet syndrome that consisted of left trans-axillary first rib resection. Prior to the accident, the plaintiff was healthy and fit, and she was functioning with no real difficulty. Verhoeven J held that the injuries sustained by the plaintiff in the accident were left hip injury including torn labrum that required surgery; thoracic outlet syndrome requiring surgery; whiplash injuries and resultant chronic pain in her upper back, left shoulder, and arm; left shoulder tendinopathy; chronic headaches; and mood or psychiatric disorders including depression, anxiety, and somatic symptom disorder. The prognosis for substantial improvement was poor. Verhoeven J assessed the plaintiff’s general damages at $170,000.
There are many similarities between this case and Ms. Plaintiff’s situation; this case may present a good benchmark for the upper range of general damages that she may be awarded. The Firman plaintiff suffered very similar injuries to Ms. Plaintiff, in a similar accident, and she was of a similar age. While this plaintiff had the hip surgery, Ms. Plaintiff had knee surgery. Both plaintiffs had psychological injuries including depression and a somatic symptom disorder. While it was decided in a different jurisdiction, this very recent and very analogous case may be a good benchmark for the upper limit of general damages that Ms. Plaintiff could receive.
Dushynski v. Rumsey, 2001 ABQB 513 $125,000 $168,375
In this case, the 49-year old female plaintiff was the victim of four accidents between 1985 and 1993, and she was injured in each accident. The first accident did not have any long term effects, and the plaintiff returned to her job as a school custodian shortly after; she was off work for 5 weeks after the second accident; she was off work for 16 months after the third accident; and she claimed it was impossible for her to return to work after the fourth accident. This action involved the fourth accident, where the plaintiff was t-boned by the defendant. In the last three accidents, the plaintiff suffered injuries to her neck, back and shoulders, a concussion, injuries to her left leg, and a bruised kidney.
Following the accident, the plaintiff was taken to hospital with a chest wall contusion, bruising and pain in the left flank area, and a kidney contusion. She was diagnosed with arm pain and numbness in both hands, a concussion, chest pain, limited range of motion in her neck and back, and TMJ pain. She had severe neck pain and limited range of motion that resolved. The pain in her cervical and lumbar spine was ongoing and were exacerbated by the fourth accident. She sustained a severe spinal strain in her cervical and lumbar spine with pain in her dorsal and thoracic spine in the accident; in addition, the plaintiff’s TMJ issues were exacerbated. Moen J held that prior to the fourth accident, the plaintiff’s psychological condition was likely fragile, and it was pushed over the edge by the defendant’s conduct. The fourth accident caused chronic pain syndrome that the plaintiff would suffer with for the rest of her life. Moen J awarded the plaintiff $125,000 in general damages.
The defendant appealed the damage award in Dushynski v. Rumsey, 2003 ABCA 164. The per curiam Court of Appeal held that the general damage award was on the high end, but not so far out of line that it required interference. The appeal was dismissed but for a reduction in the award for loss of household services.
This case presents many similarities to Ms. Plaintiff’s injuries. Both plaintiffs were females of a similar age, and the accidents were similar in circumstance. It is arguable that Ms. Plaintiff’s injuries were worse than those sustained by the Dushynski plaintiff, given that her knee injury required surgery and her psychological damage was more severe. However, both plaintiffs had TMJ problems, neck and back injuries, and mental trauma. This case likely presents a good comparison for the upper limit of general damages that Ms. Plaintiff may expect to receive.
Cornish v. Khunkhun, 2015 BCSC 52, additional reasons in 2015 BCSC 832 $160,000 $166,560
In this case, the 58-year old plaintiff was injured in a motor vehicle accident. She was knocked unconscious in the accident, but went to the hospital by taxi, not ambulance. Immediately after the accident, she felt pain in her back and groin and felt light-headed. She claimed she suffered from regular headaches, pain in her neck and shoulder, and back pain; she also has dizziness, memory issues, and depression. A psychiatrist for the defendant testified that the plaintiff met the criteria for Somatic Symptom Disorder; he concluded that she was not suffering from the disorder immediately prior to the accident, and the accident either precipitated a relapse or exacerbated pre-existing symptoms of the disorder.
The plaintiff had previously injured her back and had undergone two surgeries. Skolrood J held that the plaintiff suffered from a major depressive disorder as well as the somatic symptom disorder, which resulted in her experiencing chronic pain; the accident aggravated her condition and was the cause of her somatic symptom disorder. The plaintiff had confusion and memory loss from her depressive disorder. Given the ongoing nature of the symptoms and their impact on her enjoyment of life, the court awarded general damages of $160,000.
The Cornish plaintiff suffered from a somatic symptom disorder along with major depression, similar to what Ms. Plaintiff suffered. Ms. Plaintiff had more severe physical injuries given her knee injury and subsequent surgery and TMJ problems.
Brundige v. Bolton, 2018 BCSC 1843 $165,000 $165,000
In this case, the 46-year old female plaintiff was injured when a stolen truck driven by the defendant t-boned her vehicle as she was stopped at a stop sign. Immediately after the accident, the plaintiff developed pain in her neck, back, shoulder, left arm, and left leg; she was taken by ambulance to the hospital and released later that day. The plaintiff attended physiotherapy, active rehabilitation, and massage therapy but her pain never subsided. She had been sexually abused as a child. The plaintiff was in two motor vehicle collisions in the 1990s in which she suffered neck and back injuries, headaches, and was diagnosed with reflex sympathy dystrophy in her right arm. However, she maintained that her health was good at the time of the accident. At the scene of the accident, the plaintiff complained of pain in her neck and shoulder, a mild headache, pain radiating to her left arm, and pain in her left hip; she was treated and released with a diagnosis of soft tissue injuries. Her family doctor later diagnosed her with a grade II soft tissue injury to her back and possibly a grade III injury to her neck. The pain never eased and there was no physical etiology found to explain it. She became more depressed and medication was prescribed; she found it hard to sleep and had headaches.
The plaintiff received injections in her hip and was diagnosed with chronic soft tissue and back pain. A psychiatrist diagnosed the plaintiff with Adjustment Disorder with Depressed Mood and Somatic Symptom Disorder. Butler J held that there was no doubt the plaintiff had suffered soft tissue injuries to her neck and lower back; she suffered neck, back, and pelvic myofascial and musculoskeletal injuries in the accident that had significantly improved. Butler J also held that the plaintiff had proved on the balance of probabilities that she was suffering from an Adjustment Disorder and somatoform disorder. Butler J awarded the plaintiff $165,000 in general damages.
This case is very similar to the situation facing Ms. Plaintiff. Both plaintiffs were females injured in similar accidents. Both had some pre-existing injuries that were asymptomatic at the time of their accidents; both Ms. Plaintiff and the Brundige plaintiff suffered soft tissue injuries that never resolved, depression and mental injuries, and a somatoform disorder. Ms. Plaintiff had knee problems, while the Brundige plaintiff had hip issues. This case likely presents a good benchmark for the amount of general damages that Ms. Plaintiff will be awarded.
Godbout v. Notter, 2018 BCSC 1043, additional reasons in 2019 BCSC 1481 $157,500 $157,500
In this case, the 55-year old male plaintiff was injured when his tractor-trailer unit fell on its side after an impact with the defendant’s vehicle and slid down the highway. Prior to the accident, the plaintiff had minimal health problems and no symptoms of back or neck pain. The day after the accident, he had pain in his left shoulder, neck, and back, along with headaches and dizziness. He continued to suffer from left arm and shoulder tightness and pain as well as neck pain; he had headaches two to three times per week and only slept a couple of hours each night. He continued to relive the accident and have nightmares about it. The plaintiff had stress and anxiety about the accident along with mood swings, a lack of sexual desire, anxiety, fear, and depression. A psychiatrist testified that the plaintiff had a somatic symptom disorder with prominent pain and PTSD. Jenkins J held that the plaintiff suffered neck pain that became increasingly worse; he suffered headaches, vertigo, and dizziness. The plaintiff had chronic PTSD and a severe somatic symptom disorder. Jenkins J awarded $175,000 in general damages to be reduced by 10 percent for the plaintiff’s failure to seek psychological help earlier.
This case has some similarities to Ms. Plaintiff’s situation, although Ms. Plaintiff suffered worse physical injuries than the Godbout plaintiff did. This plaintiff did not have any pre-existing injuries like Ms. Plaintiff did. Both plaintiffs suffered physical injuries in the form of neck pain and headaches, and both had PTSD and a somatic symptom disorder. However, Ms. Plaintiff also had the knee problem that required surgery and TMJ injuries. Her general damage award may be on par with, or higher than, what was awarded to the Godbout plaintiff.
Sutherland v. Encana Corp., 2014 ABQB 182 , additional reasons in 2014 ABQB 601 $135,000 $142,155
In this case, the plaintiff driver was stopped on the highway, intending to turn left, when she was struck from behind by the defendant driver at high speed. The defendant admitted liability for the accident. Immediately after the accident, another person on the scene described the plaintiff as conscious but subdued and dazed, and she needed support once she had exited her vehicle. The plaintiff was bleeding from the left side of her head and from her mouth. The same person stopped by the plaintiff’s house later that same night, and he said the plaintiff did not recognize him and did not seem to remember anything about the collision that morning. She was taken by ambulance to the hospital where her head wound was stitched up and the glass was removed; she was discharged that day, but had problems remembering what had happened in the accident. The plaintiff’s husband noted that during the evening, the plaintiff was twitching unusually, mainly in her extremities but also in her core. These twitching incidents continued; she would come out of them disoriented, not remembering what had happened, but anxious. The episodes were preceded by the plaintiff complaining of severe headaches, stress, or fatigue. Immediately after the accident, the plaintiff had very little recognition as to what had happened. She recalled severe low back pain and headache, along with some neck pain. The plaintiff testified that she became depressed and suicidal, and she attributed this to the accident and its effects. However, there was some evidence that the plaintiff was experiencing other social stressors, including kidney surgery and a diagnosis of cancer. Michalyshyn J held that the plaintiff was suffering from post-concussion syndrome and depression that was primarily caused by the accident. He held that the accident caused the plaintiff to sustain a mild traumatic brain injury with other factors, namely pain, depression, anxiety, PTSD, and seizures. The accident also caused the plaintiff post-traumatic seizures. However, she chose not to report the seizures to her doctors until at least nine months after they began to occur, which led to a delay in diagnosis, medication, and controlling of the disorder. Physically, in the accident, the plaintiff sustained injuries to her neck and low back, head, tongue, and jaw. Her depression was caused by the accident, as were her post-traumatic seizures. The seizures were a permanent, life-long condition and medication would always be necessary. Michalyshyn J awarded the plaintiff $135,000 in general damages.
Ms. Plaintiff’s general damage award may be on par with or slightly higher than what was given to the Sutherland plaintiff. Both plaintiffs were women who were left with soft tissue injuries, jaw problems, and depression after their accidents. It is also noteworthy that this is a case from Alberta. However, Ms. Plaintiff has the additional diagnoses of knee injuries requiring surgery and a somatoform disorder. Ms. Plaintiff can likely expect a slightly higher general damage award than what was given out here.
Russell v. Turcott, 2009 ABQB 19, additional reasons in 2009 ABQB 236 $115,000 $132,365
The 21-year old female plaintiff in this case was driving when she stopped at a red light in a 60 km/h zone. The defendant’s vehicle rear-ended the plaintiff’s vehicle without slowing down. Rooke J described the impact as significant. The plaintiff was wearing her seatbelt at the time of the accident and had both hands on the steering wheel, but the force of the impact caused her to strike her jaw on the steering wheel. Although she did not lose consciousness, she suffered immediate pain in her neck and all over. She was taken by ambulance to the hospital where she was found to have no fractures or bony injuries; the plaintiff was discharged later that day wearing a cervical collar with a diagnosis of whiplash. She suffered a moderate to severe whiplash injury as well as injury to her jaw and almost immediate headaches; over the course of time, this manifested itself into chronic pain syndrome, fibromyalgia, and a TMJ injury. Other doctors also opined that she had PTSD, depression, tender points, and a generalized anxiety disorder. The plaintiff claimed to be healthy prior to the accident, but her medical history indicated otherwise. She had a history of sexual assault and resulting depression, a grand mal seizure due to a reaction to the drug Gravol, hospitalization for pneumonia, pain in her ankle, hip, and shoulder, strep throat, and further depression. The plaintiff was in a car accident from which she complained of a concussion, neck pain, stiffness, lower back pain, nervousness, depression, loss of sleep, headaches, fatigue, and dizziness. In spite of her prior medical history, Rooke J held that the defendants were responsible for all injuries and complaints of the plaintiff.
After the accident, the plaintiff frequently went to the emergency room complaining of pain. She was diagnosed with mood disorder secondary to medical illness (major depressive disorder secondary to chronic pain) and was sent to the Pain Clinic in Calgary. The plaintiff also received trigger point injections that provided her with some temporary pain relief. On the evidence, Rooke J concluded that in the accident, the plaintiff sustained whiplash and depression; TMJ injury; chronic pain syndrome; PTSD; fibromyalgia; regional myofascial pain syndrome; a generalized anxiety disorder; and a major depressive disorder secondary to chronic pain. Rooke J assessed the plaintiff’s general damages at $115,000.
This is the most analogous case to Ms. Plaintiff’s situation. The plaintiff suffered very similar injuries including the TMJ problem and soft tissue injuries. Like Ms. Plaintiff, the Russell plaintiff suffered from depression and chronic pain. She underwent injections to manage her pain and was referred to the Calgary pain clinic. She also had some pre-existing problems, similar to Ms. Plaintiff. However, Ms. Plaintiff did require surgery on her knee. Given the similarities between the cases, it is likely that Ms. Plaintiff may receive a general damage award similar to what was awarded in this case.
Elpel v. Glover, 2018 BCSC 1404 $115,000 $115,000
In this case, the 53-year old female plaintiff was stopped at an intersection when she was rear ended by a vehicle owned by one of the defendants and driven by the other. The plaintiff was married with two children and worked as a bookkeeper and house cleaner while caring for her family prior to the accident. The plaintiff claimed that as a result of the accident, she suffers from chronic pain in her legs, hip girdle, low back, neck and shoulders, fibromyalgia, fatigue, and depression; she claimed her chronic pain had disabled her from employment. Pearlman J held that the collision was relatively low impact. Immediately after the accident, the plaintiff developed a headache and tension and stiffness in her neck and back. She visited her family doctor several days later complaining that her head, neck, and shoulders all hurt and her whole body ached; she suffered from sleep disruption, pain in her head, neck, back and right hip, and symptoms of depression including suicidal ideation. This pain has all been continuous. One of the medical experts in the case testified that the plaintiff had chronic cervicogenic headaches, mechanical neck pain, mechanical lumbrosacral back pain, sleep disturbance, and psychological distress/night disturbance with no evidence of neurological impairment. Pearlman J held that the plaintiff sustained minor soft tissue injuries to her neck and upper back in the accident that developed into chronic pain in these areas and in her legs and hip girdle. She also developed a somatic symptom disorder and depression related to her chronic pain. While her history of sexual abuse rendered her more susceptible to psychological injury, she would not have suffered chronic pain, somatic symptom disorder, and depression if not for the accident. Pearlman J assessed her general damages at $115,000.
The plaintiff in this case is similar to Ms. Plaintiff in that both suffered mental injuries in the form of depression, PTSD, and a somatoform disorder. Both had soft tissue injuries that continued to plague them years after the accident that developed into chronic pain. However, Ms. Plaintiff’s physical injuries were somewhat more serious than what was sustained by this plaintiff; the general damage award in this case represents the lower end of the scale of damages that she can expect to receive.
Evans v. Keill, 2018 BCSC 1651 $110,000
The 34-year old female plaintiff in this case was in a vehicle that was struck from behind by a vehicle owned by the defendants. The day after the accident, the plaintiff had severe pain in her neck, back, and trapezius muscles; her family doctor diagnosed soft tissue injuries to her cervical spine and trapezius muscles. She alleged that the accident caused her severe headaches, migraines, neck pain, back pain, sleep loss, and mental illness that permanently interfered with her ability to do physical work and required her to limit her recreational and social pursuits.
The plaintiff was off work after the accident and was unable to perform her job as a produce manager at a grocery store after her return and was demoted. She lost her life insurance and disability benefits because she could not accept the requisite hours. After the accident, the plaintiff stopped exercising and socializing, and began drinking heavily. The plaintiff alleged that the accident caused severe headaches, migraines, neck pain, back pain, and mental illness. Matthews J held that the evidence was clear that the plaintiff had soft tissue injuries to her neck, shoulder, and upper back; these injuries led to chronic myofascial pain that affects the muscles and muscle lining in the area of her neck, shoulders, and upper back. She had cervicogenic headaches as well as migraine headaches featuring severe pain, sensitivity to light, nausea, and vomiting. Matthews J held that the plaintiff became depressed as a result of her injuries; she suffered from a somatic symptom disorder and had at least one suicide attempt. She had chronic pain in her neck and upper back, experiences headaches and migraines; her pain had improved by about 60 percent but had plateaued at its present level and was now permanent and unlikely to improve.
Matthews J held that a major component of damages in this case were the relatively young age of the plaintiff and the fact that she would have to live with her injuries for many years. Matthews J assessed general damages at $110,000.
The plaintiff in this case sustained very similar injuries to those suffered by Ms. Plaintiff. Both had cervicogenic headaches, depression, and a somatoform disorder. However, in addition to these injuries Ms. Plaintiff has had knee surgery and has TMJ dysfunction. Her general damage award should be higher than what was awarded in this case.
Curry v. Power, 2015 BCSC 610 $100,000 $104,100
In this case, the 44-year old plaintiff alleged he suffered left-sided thoracic outlet syndrome, a right hip joint injury, cervical spine injury, and depression in a motor vehicle accident. The plaintiff was taken by ambulance to the hospital after the impact and released. He said the next morning he had pain in his neck, arms, hips, and back. He suffered a stabbing pain in his forearm and an anterior cervical discectomy was performed. The plaintiff said his hips had not healed since the accident and his gait was affected; he has pain in the backside of his left shoulder blade and a tingling or numbness in his fingers if his left arm is raised for any length of time. The plaintiff’s psychiatric expert testified that the plaintiff had a major depressive disorder and likely had a persistent somatic symptom disorder with predominant pain of moderate severity; the defendant’s psychiatric expert stated that the plaintiff did not have any type of somatic symptom disorder. Tindale J agreed with the plaintiff’s psychiatrist and held that he was suffering from a major depressive disorder as well as a persistent somatic symptom disorder caused by the accident. He concluded that the plaintiff suffered a significant neck injury that required surgery, a significant injury to his right hip that would likely require surgery, MPS, chronic pain, and depression; general damages of $100,000 were awarded.
This case has many parallels to Ms. Plaintiff’s. While it was Ms. Plaintiff’s knee that required surgery, for the Curry plaintiff it was his hip. He also had a major depressive disorder, chronic pain, and a somatoform disorder. However, the general damages awarded in this case are somewhat on the lower end of the range of general damages that Ms. Plaintiff should receive.
Chisholm v. Lindsay, 2012 ABQB 81 $90,000 $97,470
In this case, the plaintiff was a 31-year old woman who was injured when she was sitting in her vehicle in a parking lot eating lunch and she was struck from behind by the defendant’s vehicle. She had not been wearing her seatbelt at the time of the collision. She was transported to the hospital for further examination after the EMT noted slight dizziness, weakness, facial pain and swelling; the plaintiff’s blood pressure and pulse rate were also elevated. The emergency room doctor diagnosed facial contusions. At the time of the accident, the plaintiff worked full-time as a special education teacher. The plaintiff went to a physician three days after the accident complaining of headache, neck pain, back pain, sore teeth, facial swelling, and a bump on the head. The doctor noted decreased range of motion in her neck, plus pain in her neck, spine and right knee, as well as facial swelling and contusions: these symptoms were consistent with a WAD II injury.
The plaintiff went to physiotherapy and the physiotherapist’s impression was that she had sustained a sprain/strain injury to her TMJ, cervical (WAD 3), thoracic and lumbar spine. She also sustained a nerve root compression, a right medial meniscus injury and a right strained wrist. Since the accident, the plaintiff stated that she has had chronic pain, headaches, a sore neck and sore left shoulder, and low back pain. She occasionally has a flare-up of the TMJ injury, but a splint helps; her major issue is fatigue, as she stated she was chronically tired all of the time. One of her psychiatrists diagnosed her with PTSD and a mild traumatic brain injury. Kenny J held that the plaintiff suffered these issues and they were the result of the accident. Kenny J also held that none of the plaintiff’s pre-accident history was related to her current symptoms. She had chronic pain that led to a 10 percent whole person impairment. Kenny J awarded general damages of $90,000.
Both parties appealed the damage award in Chisholm v. Lindsay, 2015 ABCA 179. The Court of Appeal found that the trial judge had made no palpable or overriding error, nor had she misapprehended the evidence, and dismissed the appeal with respect to general damages.
While the Chisholm plaintiff suffered TMJ, whiplash, chronic pain, and PTSD similar to Ms. Plaintiff, overall her damages were less significant than those sustained by Ms. Plaintiff. Ms. Plaintiff had the knee surgery, major depression, and somatoform disorder. Her general damage award will likely be higher than what was awarded here.
Ganderton v. Brown, 2004 ABQB 366 $75,000 $94,425
In this case, the plaintiff was seeking damages for injuries he sustained during a motor vehicle accident; the defendant admitted liability. The plaintiff was struck from behind. Immediately after the accident, the plaintiff had pain in his occipital area, pain along his neck, across his shoulders, and into his scapular area; he also had pain in his wrist, weakness in the biceps area and left forearm, and continuous TMJ pain. Several years after the accident, the plaintiff dove into a lake and experienced a neck spasm and searing pain down his arm that turned out to be a rupture of his C5/6 cervical disc. The plaintiff argued that the accident caused the ruptured disc. Prior to the accident, the plaintiff worked as a dentist and he was in good health and was extremely physically active. After the accident, the plaintiff had pain in his shoulders, bilateral neck pain, bilateral TMJ pain, and a headache; the muscles on his face were tender. He went to his doctor that day and was prescribed painkillers. He eventually sought chiropractic, acupuncture, massage, and physiotherapy treatment. Over time, the symptoms from his injuries waxed and waned. After he jumped in the lake, the plaintiff was in considerable pain. He had left neck pain, left arm paraesthesia, trouble sleeping, decreased range of motion, and poor grip strength. He underwent a discectomy and spinal fusion for the removal of the disc and the replacement of the disc with a piece of bone. The plaintiff continued to suffer from intermittent neck pain, scapular pain, shoulder pain, TMJ, and numbness in his hand. Moen J concluded that the problems suffered by the plaintiff were caused by a tear in his disc annulus caused by the accident, which eventually resulted in the ruptured disc and the necessity for the operation. Moen J awarded the plaintiff $75,000 in general damages.
While somewhat different in terms of the injuries suffered by the plaintiffs, this case was included because parallels can be drawn between the injuries suffered. Both plaintiffs suffered TMJ injuries. While the Ganderton plaintiff had a back issue that required surgery, Ms. Plaintiff had the knee problem that required surgery. However, Ms. Plaintiff can likely expect a higher general damage award than what was awarded here because of her far more serious and debilitating psychological injuries in the form of the major depression and somatoform disorder.
Hrnic v. Bero Investments Ltd., 2018 BCSC 1880 $85,000 $85,000
In this case, the 54-year old female plaintiff’s vehicle was struck from behind at a red light with enough force to push the next vehicle into another vehicle, but the damage to the plaintiff’s vehicle was only cosmetic. The plaintiff suffered soft tissue injuries to her neck and lower back that healed but she developed a very severe and somewhat unusual nerve and muscular pain that became chronic, and she never returned to work. The plaintiff underwent various treatments in an attempt to relieve her symptoms, although there were some medications she would not try. The plaintiff brought an action against the defendants for damages.
At the scene, she felt neck pain, light-headedness, and shock. She later developed symptoms that included shooting pain from her neck into her ear and from her jaw into her eyes; a burning/numbing sensation in her face; dilated pupils; drooping of her lip; pain in her neck and along the length of her back; shooting pain into her left leg; and a feeling of weakness throughout her whole body. These complaints expanded to include swelling of her left eye; throbbing left-side chest and rib pain; urinary urgency; slurred speech; and ringing in her ears. She underwent prolotherapy injections and some psychological treatment. A psychiatrist diagnosed her with a persistent somatic symptom disorder of moderate severity that predated the accident. Saunders J held that the plaintiff suffered physical injuries in the accident and that she suffered at the time of the accident from a pre-existing but not disabling somatic symptom disorder that was aggravated by the accident. This would not have become disabling but for the accident. Saunders J awarded the plaintiff general damages of $85,000.
There are similarities between this plaintiff and Ms. Plaintiff, although Ms. Plaintiff’s injuries were more significant than what this plaintiff suffered. Ms. Plaintiff and the Hrnic plaintiff were diagnosed with chronic pain and a somatic symptom disorder. The somatoform disorder may have predated the accident, but it was not disabling. An analogy can be drawn between this and Ms. Plaintiff’s depression that likely predated her accident. Ms. Plaintiff’s physical injuries were more extensive than what the Hrnic plaintiff suffered, and her general damage award will likely be higher than what was awarded in this case.
Moser v. Derksen, 2002 ABQB 679 $60,000 $79,080
In this case, the 49-year old female plaintiff was in three separate motor vehicle accidents in 1995. In the first accident, the plaintiff received soft tissue injuries to her neck, back, and hip; in the second accident, the plaintiff’s neck and head were injured. The plaintiff was diagnosed with a somatization disorder and alleged that the accidents aggravated her condition. The plaintiff’s prior medical history was lengthy, with numerous complaints of physical and mental ailments. The evidence was that the plaintiff had suffered a tragedy prior to the first accident with the death of her husband. In 2001, the plaintiff was diagnosed with a somatization disorder; the diagnosing psychiatrist testified that the condition was aggravated by the death of the plaintiff’s husband. A different psychiatrist, hired by the plaintiff, disagreed. Rowbotham J held that the plaintiff suffered physical injuries to her neck, lower back, right arm, and right hand; she also suffered the psychiatric injury due to the aggravation of her pre-existing somatic disorder. Rowbowtham J concluded that the plaintiff was a crumbling skull plaintiff and was only entitled to damages for the aggravation of her pre-existing condition. The evidence showed that the somatic disorder was pre-existing but undiagnosed until the time of trial; however, there was no failure to mitigate on the part of the plaintiff. General damages of $60,000 were awarded.
This case was included because it represents an Alberta plaintiff who was diagnosed with a somatoform disorder. Ms. Plaintiff’s general damages will be higher than what the Moser plaintiff was awarded because her physical damages were far more serious, given the additional TMJ dysfunction and knee surgery. However, defense counsel may reference this case as the Moser plaintiff was found to be a crumbling skull plaintiff, not a thin skull plaintiff, who also suffered from a somatization disorder. Ms. Plaintiff will have a higher general damage award than what was given here.
Article edited by Walter W. Kubitz, Q.C. a personal injury lawyer in Calgary, Alberta.