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Preserving AISH and Disability Benefits After Settling a Personal Injury Claim in Alberta and BC

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Preserving AISH and Disability Benefits After Settling a Personal Injury Claim in Alberta and British Columbia.

Article written by Alena Storton, an Articling Student for Kubitz and Company, a firm of Personal Injury Lawyers in Calgary, Alberta.

Introduction

If you have experienced a severe injury or chronic pain stemming from an injury, you may know that disability benefits are, oftentimes, an essential source of financial stability for individuals in this type of situation. When those injuries have been caused by someone else’s negligence, it can be anxiety-inducing to contemplate losing such a vital source of assistance solely because you would like that person to compensate you for the losses you suffered. There are, however, several methods to preserve those life-sustaining disability benefits, while also receiving settlement money that can help you get back on your feet and plan for the future.

This article first describes the income and asset calculations under the Alberta Assured Income for the Severely Handicapped Act1 and British Columbia Employment and Assistance for Persons with Disabilities Act,2 and what types of income and assets are exempt from that calculation. This article will briefly evaluate the positive and negative aspects of each of these exempt income and assets in the context of a settlement payment. Finally, the article will provide a recommendation on which option may be best.

The options and recommendation are assessed in the context of a man who suffered a severe traumatic brain injury and other debilitating injuries as a result of a motor vehicle accident – for ease of reference, this article will refer to this man as the “client”.

Background

The client currently resides in Alberta and has been receiving benefits under the AISH Act. The client is a dependent adult as a result of his severe brain injury. The client is considering moving to British Columbia within the next few years. If he moves, the client will apply for benefits under the Disabilities Act.

Alberta Benefits

1. Eligibility for AISH Benefits

In Alberta, persons with severe disabilities may receive financial assistance through the AISH Act. Under the AISH Act, a person may receive a living allowance, personal benefit, child benefit, and health benefit, depending on whether he or she meets the criteria in the AISH Act and regulations. A person is eligible to receive AISH benefits if he or she is a Canadian citizen or permanent resident, ordinarily resides in Alberta, is at least 18 years old, and has a severe, ongoing handicap. In addition, the person’s income, or his or her income combined with a cohabitating partner, must be less than the maximum amount allowed in the AISH Act and the corresponding regulations. In addition, to be eligible for a living allowance or health benefit under AISH, the total value of the person’s assets must be $100,000 or less. The asset limit for a personal benefit or child benefit under the AISH Act is even more stringent – it requires that the total value of the person’s assets were $3,000 or less.3

Despite the income and asset provisions in the AISH Act, the director may exempt an individual from the income requirement if that person is applying for a health benefit and the Minister concludes that he or she is in circumstances of financial hardship. The Minister may also exempt a person from the $3,000 asset limit for a personal benefit if the Minister is of the opinion that the person is in circumstances of financial hardship.4

2. Cohabitating Partners

Section 1(2) of the Assured Income for the Severely Handicapped General Regulation5 defines a cohabitating partner as a person with whom the person resides, and any of the following apply: is the person’s spouse, has a relationship of interdependence (as defined in the Adult Interdependent Relationships Act),6 or has a natural or adopted child. In this case, the client does not have a cohabitating partner.

3. Calculating Income and Assets under AISH Act

a. Income

Income, for the purposes of the AISH Act, is calculated according to Schedule 1, section 1 in the AISH Regulation. The types of income in this section include: income that is reportable under the Income Tax Act of Canada of the type that is not exempted by the AISH Regulation,7 and trust income when the director deems it to be income.8

In Schedule 1, Table 1, the AISH Regulation establishes the types of income that are entirely exempt from the income calculation in the AISH Act, meaning it does not impact the amount of AISH benefits someone will receive. The exemptions that may be most relevant to this client are:

  • cash gifts;
  • certain tax refunds;
  • payments from a registered disability savings plan.

Some income is partially exempt, meaning that only part of the value is taken into account for the purpose of calculating AISH benefits. Under Schedule 1, Table 2, partially exempt income includes:

  • trust income;
  • non-pension annuity income;
  • investment income.

An individual may earn up to $200 per month in trust income without impacting an AISH living allowance. After $200, 75% of the trust income is subtracted from the monthly living allowance.

b. Assets

Schedule 2 in the AISH Regulation establishes the way in which assets are determined for AISH benefits. The value of each asset is considered its market value, minus any debt that has been secured against that asset at a reasonable interest rate.9 Schedule 2, section 2(2)(a)-(j) states that the following assets are exempt:

  1. one principal residence [which means one home or the home quarter section of a farm in which the AISH beneficiary ordinarily resides];
  2. one vehicle and one vehicle adapted to accommodate the handicap of the applicant or client or his or her cohabiting partner or dependent child;
  3. a locked-in retirement account; (c.1) a registered disability savings plan under section 146.4 of the Income Tax Act (Canada);
  4. clothing and reasonable household items;
  5. a prepaid funeral;
  6. repealed SA 2018 c 12 s 2;
  7. an asset held by a trustee in a bankruptcy proceeding;
  8. a non-commutable annuity purchased on or before February 1, 2002;
  9. a payment received from the Government of Canada or Alberta exempted by the Minister for the purpose of this clause and any asset to the extent it was purchased with that payment;
  10. an asset exempted by a director if it is disposed of within the time specified by the director.

On June 11, 2018, amendments to the AISH Act came into force to allow for more flexibility in relation to money obtained by individuals who receive or wish to qualify for AISH benefits. Section 3.1 of the AISH Act creates the following exclusions to the calculation of assets for AISH benefits:

  • the value of assets held in trust for the benefit of the person receiving AISH benefits;
  • money received if that money is
    • not considered income under the AISH Regulation
    • within 365 days of being received, invested in an asset that the AISH Regulation establishes for this purpose.
  • For investing money received, the AISH Regulation designates the following assets as exempt:

    • a trust in which the person is a beneficiary;
    • assets described in section 2(2)(a) to (e) [included above].10

    British Columbia Benefits

    1. Eligibility for Disability Assistance Benefits

    In British Columbia, individuals who have received the “Person with Disabilities” (PWD) designation may receive financial support through the Employment and Assistance for Persons with Disabilities Act.11 Under section 2 of the Disabilities Act, the minister may designate someone as a PWD if the person is at least 18 years of age and (in the opinion of a medical or nurse practitioner) has a mental or physical impairment that is likely to last for at least 2 years. In addition, that mental or physical impairment must (in the opinion of a prescribed professional) significantly restrict the person’s ability to perform activities of daily living, either on a continuous basis or periodically for extended amounts of time. An impaired ability to perform everyday living activities may be indicated by the person using an assistive device, receiving significant help from another person, or receiving the assistance of a service animal. There may also be some employment-related obligations under the Disabilities Act, when required by the minister, but those almost certainly will not apply here because the client is incapable of retaining employment.

    2. Calculating Income and Assets under Disabilities Act

    a. Income

    According to section 9 of the Employment and Assistance for Persons with Disabilities Regulation,12 income is determined in accordance with Schedule B. To be eligible for disability assistance, a person’s income cannot equal or exceed the amount of disability assistance that he or she would be entitled to under Schedule A,13 as the amount of disability assistance provided in a calendar month may not exceed the amount determined under Schedule A less the net income determined under Schedule B.14

    Section 1 of Schedule B provides certain exempted sources of income, meaning it will not impact the amount of disability assistance a person may receive. The exemptions that are relevant to this client in the settlement context are: money withdrawn from a registered disabilities savings plan and gifts.15

    In some circumstances, a person may receive money that was not considered earned for the purposes of the Disabilities Act and Regulation, such money is referred to as “unearned income”. Unearned income includes annuities, gifts of annuities, and trusts.16 Schedule B specifies that when calculating net income, “all unearned income must be included, except the deductions permitted under section 6 and any income exempted under sections 7 and 8.”17

    The unearned income exemptions in section 7 include a payment made from a trust or from a structured settlement annuity payment to an individual with the PWD designation if the payment is exclusively used for “(i) disability-related costs, (ii) the acquisition of a… place of residence, (iii) a registered education savings plan, or (iv) a registered disability savings plan”.18 A person with a disability, who has a temporary exemption of assets under section 12(1) of the Disabilities Regulation (discussed below), may also expend money from a registered disability savings plan or trust if the money is solely used for disability-related costs.19 Similarly, if a person with a disability uses a structured settlement annuity payment for disability-related costs to promote independence, that payment is exempt from the calculation of net income.20 To be considered a structured settlement, the settlement must be related to damages caused by a personal injury or death, and the settlement agreement must require the defendant to make periodic payments for a set amount of time or purchase a single premium annuity contract.21 The exemptions in section 8 relate to the Minister’s discretion to exempt unearned income that is used for certain educational costs.

    b. Assets

    Section 10(2) of the Disabilities Regulation establishes that a person will not be eligible for disability assistance if his or her total value of assets exceeds prescribed limits. Importantly for this case, the limit for an individual who has been designated as a PWD is $100,000.22

    The following assets are considered exempt under section 10(1)(a) – (ccc) in the Disabilities Regulation and may be relevant to this case:

    • clothing and necessary household equipment;
    • one motor vehicle generally used for day to day transportation needs;
    • a place of residence;
    • money received or to be received from a mortgage on, or an agreement for sale of, the previous place of residence if the money is
      • applied to the amount owning on the current place of residence, or
      • used to pay rent for the current place of residence
    • certain federal and provincial tax credits (see 10(1)(f)-(g));
    • funds held in, or money withdrawn from, a registered disability savings plan.
    • In certain circumstances, assets received by a person with the PWD designation, or a person receiving special care (in a private hospital or special care facility, other than a drug or alcohol treatment facility), will be exempted for a certain amount of time. During that time, the assets will not impact the asset limits. This temporary exemption applies when the minister is satisfied that the person intends to create a registered disability savings plan or trust, and the person will contribute some or all of the asset to that registered disability savings plan or trust.23 The exemption starts on the day that the person receives the asset and ends three months after that date. This date may be extended if the minister is satisfied that the person is reasonably attempting to establish the registered disability savings plan or trust. The exemption date will end if the exemption ceases to exist, or because the person contributes all of the assets to the registered disability savings plan or trust, the person no longer intends to contribute the assets to a registered disability savings plan or trust, or the person contributes some of the assets and does not intend to contributing the remaining portion.24

      The Disabilities Regulation also provides an exemption for asset development accounts, as well as assets held in trust for a person with the PWD designation25 A beneficial interest in real or personal property held in, one or more, trusts will be exempt up to an aggregate value of $200,000, or higher if approved by the minister.26 The minister will generally authorize a higher limit for the value of a trust if he or she is satisfied that there are special circumstances that will result in the disabled person experiencing lifetime disability-related costs that exceed $200,000.27 Disability-related costs refers to the cost of providing a person with disabilities with caregiver services or other services that relate to a person’s disability, renovations to the person’s place of residence to accommodate disability-related needs, or maintenance of the place of residence.28/sup> Before setting up a trust, the British Columbia government should review and approve it in order to ensure it qualifies for the exemption.

      Methods of Preserving AISH and Disability Assistance

      Given these statutory parameters, the most effective ways to preserve AISH or Disability Assistance while receiving a settlement payment are likely to invest the money in a registered disability saving plan, a trust, a vehicle or residence, or arrange a structured settlement.

      A registered disability savings plan (RDSP) is considered an exempt asset in both Alberta and British Columbia, and payments from a RDSP are generally not considered income for the purposes of assistance. RDSPs provide versatility for relocating. Once funds have been invested in a RDSP, the money can be accessed from more than one province and it can be transferred to another RDSP. An RDSP also enables the settlement funds to grow over time through this investment. There are, however, some drawbacks to investing settlement funds in RDSPs. First, there is a lifetime contribution limit of $200,000 for a beneficiary under a RDSP. Second, a RDSP is generally a long-term investment. Payments from the RDSP begin when the beneficiary is 60 years old and withdrawing money before that time may cost more due to taxes.

      Similar to an RDSP, the payments that a beneficiary receives under a structured settlement are not considered income for the purposes of AISH, and may be exempt “unearned income” under the Disabilities Act and Regulation. Structured settlement payments are not taxable under the Income Tax Act29 of Canada.30 Consequently, these payments do not meet the definition of “income” under the AISH Act, which, in part, refers to income reportable under the Income Tax Act that is not exempted under the AISH Regulation. In British Columbia, structured settlement funds are exempt from the income calculation, so long as the money is spent on disability-related costs for the purpose of supporting independence or on disability-related costs, the acquisition of a place of residence, a registered education savings plan, or a registered disability savings plan.

      A trust is also an exempt asset in Alberta and British Columbia, although in British Columbia exempt trusts are generally limited to $200,000. Trusts may be more flexible than an RDSP, as the amount invested and the payment schedule and size can be determined when the trust is established. In British Columbia, payments from a trust are not considered income, so long as it is used to pay for disability-related costs to promote independence, or disability-related costs, the acquisition of a place of residence, a registered education savings plan, or a registered disability savings plan. In Alberta, however, income from a trust can significantly limit the amount of a living allowance provided under AISH. Although the value of the trust is exempt, payments from a trust are only exempted under AISH if it is below $200 per month. Beyond that amount, 75% of the payment from a trust is considered income and will reduce the monthly living allowance accordingly.31

      Finally, a personal injury settlement payment may be used to purchase a personal residence or vehicle, both of which are exempt assets in Alberta and British Columbia. A fully accessible house and vehicle may help the person live a comfortable life, but it also ties the settlements funds into property that cannot be easily converted to pay for the necessaries of daily living.

      Recommendation for the Client

      Given the client’s circumstances, he will most likely want to invest settlement money in a way that preserves his AISH benefits to the fullest extent, while still being versatile enough to support his day-to-day needs and allow him to potentially move to British Columbia. We recommend that the client negotiate with the defendant’s insurer to place as much money as possible into a structured settlement. Any funds in excess of the amount that is structured can be put into savings (up to a maximum of $100,000), a trust, an RDSP, or a locked-in retirement account, as best suited to the client’s needs. Alternatively, part of those excess funds could be used to purchase an accessible house and vehicle as a means of providing stable and appropriate housing and transportation. The client has one year from the date he receives the settlement money to transfer the funds into one of these exempt or partially exempt assets. After that year, his AISH eligibility will be impacted by these funds. If the client moves to British Columbia, he could sell the residence or vehicle. He then has at least a three-month period to invest it into an exempt asset in British Columbia.

      Article was written by Alena Storton, an Articling Student for Kubitz and Company, a firm of Personal Injury Lawyers in Calgary, Alberta.

      This article is not intended to give legal advice, but only general information. Legal advice specific to your situation should be sought from a lawyer experienced in the field of personal injury law in Alberta or British Columbia, as the case may be.

      1 SA 2006, c A-45.1 [AISH Act].
      2 SBC 2002, c 41 [Disabilities Act].
      3 AISH Act, supra note 1, s 3(1)-(3).
      4 Ibid, s 3(4).
      5 Alta Reg 91/2007 [AISH Regulation].
      6 SA 2002, c A-4.5.
      7 Supra note 5, Schedule 1, s 1(1)(a).
      8 Ibid, Schedule 1, s (1)(d).
      9 Ibid, Schedule 2, s 1(1)-(2).
      10 Ibid, s 3.
      11 Supra note 2.
      12 BC Reg 81/2016 [Disabilities Regulation].
      13 Ibid, s 9(2).
      14 Ibid, s 24.
      15 Ibid, Schedule B, s 1(xxxiv), (xlix).
      16 Ibid, s 1(1).
      17 Ibid, Schedule B, s 1(d).
      18 Ibid, Schedule B, s 7(1)(d)-(d.1).
      19 Ibid, Schedule B, s 7(1)(d.2).
      20 Ibid, Schedule B, s 7(1)(d.3)(ii).
      21 Ibid, Schedule B, s 7(2).
      22 Ibid, s 10(2)(a).
      23 Ibid, s 12.1.
      24 Ibid.
      25 Ibid, s 10(1)(y).
      26 Ibid, s 12(2).
      27 Ibid, s 12(3).
      28 Please note, these aspects of “disability-related costs” are the most likely to be relevant to this case. For a full definition, please see Disabilities Regulation section 12(1).
      29 RSC 1985, c 1 (5th Supp).
      30 Canada Revenue Agency, Interpretation Bulletin, IT-365R2, “Damages, Settlements and Similar Receipts” (8 May 1987), s 5.
      31 Government of Alberta, Your guide to AISH: the Assured Income for the Severely Handicapped Program (2018), online: Government of Alberta https://open.alberta.ca/dataset/928e010e-6b26-46af-a8e2-8c938e5f1b10/resource/12f5fa8a-8980-43a5-9907-713d7bfa2140/download/your-guide-to-aish-july2018.pdf at 15.

Liability For a Car Hitting A Jogger Crossing In A Crosswalk in Calgary and Suffering A Brain Injury.

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Liability For a Car Hitting A Jogger Crossing In A Crosswalk in Calgary and Suffering A Brain Injury

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

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Mr. Jogger was jogging a route that he had covered over 1,000 times before over the last 20 years. He was jogging running on the sidewalk. The weather was cool with no snow nor rain and the streets were dry. The area was well lit with streetlights. Mr. Jogger was wearing a red jacket with light pants, gloves, and running shoes. This clothing did not have reflective tape on it. He did not have a light on his head or any other part of his body. He was not listening to an iPod or other musical device. He was wearing his glasses, and they were clear. He did not have a dog with him.
At about three quarters of the way through his run he came to an intersection with a marked crosswalk. Because of his brain injury, he has no memory of events, but believes that he slowed as he came to the corner of the intersection. He cannot recall whether he stopped. He was familiar with the sightlines for traffic as cars came through the intersection. He looked to his left to see if there was any traffic coming and didn’t see any traffic. He looked to his right and saw a set of approaching headlights farther up the road to his right. There was a playground zone to the right of the intersection, so a lower speed limit was mandated for this car. The defendant’s vehicle would have been driving through this playground zone. Mr. Jogger stepped out into the marked crosswalk. He does not remember whether he jogged across the crosswalk, nor does he remember whether he sprinted or sped up as he tried to cross the road. Normally he would jog through the intersection. He thought he had more than enough time to cross the intersection with how far back the headlights of the car were on the road to his right.
The defence will be taking the position that Mr. Jogger was contributorily negligent in that he:
-Was not wearing reflective tape on his clothing, nor a light on his head or on any other part of his body;
-Stepped out too soon in front of the defendant’s car, without having time to safely cross the intersection– failure to keep a proper lookout; and
-Sped up or sprinted across the crosswalk– he was sprinting through the intersection to get past traffic.

CONCLUSION:

The maximum exposure to contributory negligence of Mr. Jogger is likely 25% to 33% This is based on cases in which the plaintiff was held to be contributorily negligent because they were wearing dark clothing and walked quickly across the crosswalk. Here it should be noted that Mr. Jogger was not really wearing dark clothing – his jacket was red and he was wearing light pants. The defence critique will be that his clothing did not have reflective tape on it, nor was he wearing a headlamp or a light attached to his body. We have not found case law to suggest that reflective taping is a requirement without which one will be held to be contributorily negligent, other than in cases of the plaintiff riding a bicycle without a headlight, and they also did not have reflective clothing, or where they have been dressed all in black or dark clothing and did not have reflective clothing. We have not found a case where a plaintiff was held to be contributorily negligent because they did not have a headlamp or a light attached to their body.

Further, there is no evidence from Mr. Jogger as to the speed at which he crossed in the marked crosswalk. He doesn’t remember because of his brain injury. His usual habit was to jog. In the cases in which contributory negligence is attributed to the plaintiff for speeding through the intersection, the plaintiff has usually been in a rush, for example to catch a bus, and the implicit suggestion is that they were distracted and not paying attention to the traffic because they were rushing – thus, failure to keep a proper lookout. This does not seem to be the case on our facts.

Thus the maximum likely exposure of Mr. Jogger for contributory negligence is 25%/33%, and, depending on how the evidence plays out, no contributory negligence may in fact be found.
(This matter resolved at mediation with 20% contributory negligence on Mr. Jogger).

DISCUSSION:

Failure to wear reflective clothing or a headlamp/light attached to another part of the body

In O’Connor v. James, 2009 BCSC 1119 the British Columbia Court of Appeal reversed the trial judge’s finding of 90% contributory negligence on the part of the plaintiff who was dressed entirely in black, without reflective clothing, and was walking in a roadway when struck by the vehicle driven by the defendant. The Court of Appeal varied this finding of contributory negligence to 50%. Here, on our facts, Mr. Jogger was wearing a red jacket and light pants, and was crossing at a marked crosswalk. This case is therefore highly distinguishable.

In Matkin v. Hogg, 2015 BCSC 560 the plaintiff was riding a bicycle at night without a helmet or an illuminated headlight on the bicycle. The court also mentions that it would have “been prudent” for her to wear reflective clothing. She was wearing light coloured clothing, none of which was reflective. The accident occurred at dusk. She had consumed alcohol and marijuana. The defendant was found to be the more plausible witness. The plaintiff was found to be 65% contributorily negligent. The major grievance of the plaintiff seems to have been the failure to have an illuminated headlight on her bicycle, and she also failed to obey a stop sign, and slow down. This case thus seems distinguishable.

In Quade v. Schwartz, 2009 BCCA 73 the plaintiff was riding his bicycle through an intersection when he collided with the car driven by the defendant, which turned left in front of him. The bicycle did not have a headlight or reflectors and all of the plaintiff’s clothing was black. The trial judge found the plaintiff to be 75% at fault. He stated: “Given that [the plaintiff] had no headlights or reflectors on his bicycle, Mr. Quaid was also negligent in wearing dark clothing instead of bright and reflective clothing”. The British Columbia Court of Appeal varied this to hold the plaintiff and defendant equally at fault, given the trial judge’s finding that the defendant should have seen the plaintiff in the well-lit intersection. Again, in this case, the plaintiff was without a headlight on his bicycle, and was dressed in dark clothing – thus this is distinguishable on the facts.

In Grela v. Sydor, 2001 ABQB 980, 302 AR 289, the 46-year-old deaf deceased was walking on the roadway in the early morning hours in winter wearing dark clothing, with his back to the oncoming traffic. He was held to be one third contributorily negligent. There was no mention of reflective clothing in this case. Mr. Jogger was dressed in a red jacket in light pants, was walking on the sidewalk, and crossing at a marked crosswalk. Thus this case is distinguishable.

Failure to keep a proper lookout/sprinting across the intersection

In Yurchi v. Johnston, 2006 ABQB 25, 394 AR 158, the plaintiff was crossing the street at an unmarked corner to catch a bus. He was wearing all dark clothing and had a hood pulled over his head so his face was difficult to see. “His clothing camouflaged him in the night darkness making him extremely difficult to see.” The collision occurred at 5 PM during heavy rush hour traffic in winter–like weather. The plaintiff was walking quickly in order to catch the bus. He walked into the defendant’s vehicle by stepping off the median when the defendant was only seconds away from entering the intersection. “… It was reckless for him not to hold up at the median.” The inference is that he was not paying proper attention to his environment because he was rushing to catch the bus. There was a well–lit intersection with marked crosswalks where he could have safely crossed the street one block away. The plaintiff was held to be one third responsible. On our facts, Mr. Jogger was wearing a red jacket and light pants, was not rushing, and crossed at a marked crosswalk. This case is therefore distinguishable.

In Cornell v. Arrell (1988), 3 YR 154, a decision of the Yukon Supreme Court, the plaintiff pedestrian was crossing at an intersection when she was hit by the defendant’s motorcycle. There was no marked crosswalk at the place where the plaintiff crossed. It was a clear sunny afternoon in August. The plaintiff was in a hurry as she had a lot of things to get done and was looking forward to a long weekend. She was, in her own words, proceeding at a very hurried pace. The defendant was convicted of dangerous driving. The plaintiff and defendant were held equally liable. Here the plaintiff admitted that she was rushing and thus inferentially not paying proper attention. On our facts Mr. Jogger answered in questioning that he had to slow down when he came to the marked crosswalk, and possibly stopped – thus he was not rushing.

In McMullen v. Lyon (1984), 66 AR 14, the plaintiff pedestrian was crossing at a crosswalk with her head down, walking quickly and not looking at oncoming traffic. She was held to be 25% contributorily negligent by the Alberta Court of Appeal. The accident took place at 8:25 AM in February, and the streets were icy. The trial judge had found no negligence on the part of the plaintiff, but this was overturned on appeal. The trial judge was primarily overturned on his finding that a crosswalk was “sacred territory”.

A finding of no contributory negligence

In Schuttler v. Anderson, 1999 ABQB 321, 243 AR 109, the defendant was found to be fully liable. The defendant’s motor vehicle collided with the plaintiff in a marked crosswalk. The accident took place at 6:45 PM in December. The plaintiff was wearing a light coloured ski jacket (light grey) and looked both ways before entering the crosswalk. There was a crosswalk sign. The plaintiff proceeded at a slow pace. When he was in the crosswalk he was blinded by the lights of the defendant and froze. It was held that the plaintiff did all that he could reasonably be expected to do once aware of the risk. The defendant was convicted of failing to yield the right-of-way to a pedestrian within a crosswalk. Similar to this case, Mr. Jogger was wearing light coloured clothing, looked both ways before crossing the marked crosswalk, and likely jogged across the crosswalk, in accordance with his usual habit. This case thus supports the argument that there should be no finding of contributory negligence of Mr. Jogger.

In Gulati v. Chan, 2015 BCSC 431, the plaintiff pedestrian was struck by a motor vehicle while walking at a marked pedestrian crosswalk. She looked to her right and left before entering the crosswalk and did not see any traffic coming in her direction. The defendant argued that the plaintiff should be held between 10 to 20% at fault for the accident because she failed to avoid his on–coming vehicle which, he stated, was a visible and foreseeable risk to her. The vehicle she saw approaching did not stop at the stop sign. The defendant was issued an uncontested violation ticket alleging that he drove without due care and attention and failed to yield to the pedestrian. The court held that it was not unreasonable for the plaintiff to believe that the defendant’s vehicle would stop at the stop sign. The defendant was held to be 100% liable for the accident. Like this plaintiff, Mr. Jogger crossed at a marked crosswalk and looked in both directions before entering the crosswalk.

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

Intervening Injuries

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

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One of the most challenging problems when advancing a claim for personal injuries following an accident is proving the injuries actually occurred. This problem is further emphasized if you’ve had health concerns in the past due to previous accidents, sports, or other activities, or health concerns, or you’ve sustained an intervening injury due to another car accident, a sports injury, or the onset of some other condition after your car accident, but before your claim is resolved. The insurance company and the courts will carefully scrutinize your medical history to determine whether your claimed symptoms are attributable to injuries sustained in the accident, or whether they are related to an incident or condition wholly separate. This is part two of a two-part article dealing with the impact of unrelated injuries.

Injuries Part 2 – Intervening Injuries

calgary injury lawyers article kubitzOnce you’ve been involved in an accident or sustained an injury for which you’ve commenced a legal claim, the process is a methodical one which may take an extended period of time to resolve. While the process is ongoing, our clients continue to live their lives by continuing to work, remain active with their families and in the community, and continue with their routines to the best of their ability. Unfortunately, while doing so, some people sustain further injury due to some other incident. Examples of this include sustaining an injury while playing sports, developing a medical condition or being involved in a subsequent accident. Your claim may be impacted, depending on what or how the injury occurred or what it affects.

If you’ve sustained an injury to your neck and back, which is the subject of a legal claim and subsequently injure your leg in a sports accident, it’s unlikely that your claim will be impacted, because the injuries are divisible. That is, it is easy to discern and separate the injured areas from your legal claim versus your unrelated incident. However, if your injured leg impacted your posture which aggravated your neck and back, that may be taken into consideration when assessing the range of damages.

Consider again if you’ve sustained an injury to your neck and back, which is the subject of a legal claim. Subsequently, you develop a genetic medical condition which causes pain all over your body (including the neck and back). In that case, the injuries may not be as easily divisible, since you now suffer a condition which is superimposed onto the original injury you suffered. In this case, it may be necessary to consult with medical experts investigate and answer these key questions:

(a) Was the subsequent condition related to or caused by the accident?
(b) How, if at all, did the subsequent condition aggravate the accident injuries or vice versa?

Finally, consider if you’ve sustained an injury to your neck and back, which is the subject of a legal claim. Then, your neck and back are subsequently injured in yet another accident prior to recovering fully from your injuries from the first accident. Both parties who caused the injuries and subsequent aggravation may share apportioned responsibility for your injuries’ duration, severity, and impact on your life. This is because it may not be possible to determine when the effects of one injury end and the next one begins. Therefore, when your claim is assessed upon resolution, they may be valuated together as a single sum, rather than separately. Alternatively, if you’ve injured your neck and back but fully recovered prior to the second incident, both injuries may be considered and valuated separately as it is discernable as to when one injury resolved and the next one began.

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

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

Pre-Existing Injuries

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

accident lawyers Calgary Ryan Lee

One of the most challenging problems when advancing a claim for personal injuries following an accident is proving the injuries actually occurred. This problem is further emphasized if you’ve had health concerns in the past due to previous accidents, sports, or other activities, or health concerns, or you’ve sustained an intervening injury due to another car accident, a sports injury, or the onset of some other condition after your car accident, but before your claim is resolved. The insurance company and the courts will carefully scrutinize your medical history to determine whether your claimed symptoms are attributable to injuries sustained in the accident, or whether they are related to an incident or condition wholly separate. This is part one of a two-part article dealing with the impact of unrelated injuries.

Injuries Part 1 – Pre-Existing Injuries

Generally, prior health concerns are only relevant if they are at issue in the claim. What this means, is that if you are claiming that the car accident in which you were involved caused an injury to your neck and your back, a broken pinky would not be relevant to your claim. However, if you’ve suffered from chronic neck issues for any reason, and the car accident caused the neck pain to worsen or aggravate, then it will be important to investigate if your problems impacted your accident-related injuries, and to what extent.

There are two general rules to consider when dealing with pre-existing health concerns. They are known as the “thin skull” and “crumbling skull” rules.

The “thin skull” rule serves to show that an individual who is more susceptible to injury due to some prior condition is still entitled to full compensation for their injuries. If, for example, you were involved in a cycling accident as a child, which broke your wrist. The injury healed but was left weakened and prone to further injury. You had learned to deal with it and it was functional and stable. However, after the accident, your wrist, being in vulnerable state before the accident, was injured. It does not matter if an “average” wrist may/would not have been injured. Your wrist was in a stable, position before the accident, therefore entitling you to full compensation.

The “crumbling skull” rule serves to show that if your medical condition was in a state of deterioration, it may impact the compensation to which you are entitled. For example, consider if you suffered from a progressive illness which, over a period of years, is expected to cause you increasingly severe pain symptoms in your neck. However, at the time of the accident, you were still functional, with minimal pain or no pain at all. If you sustained a neck injury in an accident, a key question is this: if the accident never occurred, would your neck symptoms have progressively worsened on their own to the level that your illness would have caused in any event? The accident may have caused your neck symptoms to flare up to a severe level, but if the evidence shows that your neck symptoms would have risen to that level in any event, your compensation would be reduced to account for the fact that you would have endured a similar chronic pain condition even if the accident had never occurred.

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

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

Whiplash in a Rear-End Collision

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Select Case Summaries for Whiplash in a Rear-End Collision

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

accident lawyers Calgary Peter Trieu

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

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

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

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

Collision date:  April 27, 2011

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

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

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

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

The Plaintiff(s)(para 161):

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

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

 

 

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

2016 CarswellBC 2418, 2016 BCSC 1620

$60,000.00 $60,578.00

Collision date:  February 25, 2013

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

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

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

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

 

 

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

2017 CarswellBC 674, 2017 BCSC 395

$70,000.00 $70,193.00

Collision date:  September 10, 2012

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

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

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

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

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

 

 

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

2016 CarswellBC 2504, 2016 BCSC 1662

$60,000.00 $60,552.00

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

Collision #2:  September 11, 2012;

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

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

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

The Court found that:

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

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

 

 

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

2015 CarswellBC 2202, 2015 BCSC 1351

$75,000.00 $76,896.00

Collision date:  November 22, 2011

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

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

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

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

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

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

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

The court accepted that (para 77):

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

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

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

Peter Trieu, a personal injury lawyer in Calgary, Alberta

Car Accident: Quantum of Damages for a Moderate Brain Injury

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

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

accident lawyers Calgary Walter Kubitz

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

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

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

Discussion:

The following cases are inflation-adjusted to January 2018.

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

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

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

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

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

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

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

2015 BCSC 2355

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

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

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

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

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

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

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

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

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

Division No. 61, 2012 ABQB 611

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

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

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

2015 ABQB 527

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

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

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

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

CONTRIBUTORY NEGLIGENCE

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CONTRIBUTORY NEGLIGENCE (Bicycle Accident)

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

accident lawyers Calgary Peter Trieu

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

Cases:

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

60%

Plaintiff

40%

 

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

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

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

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

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

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

 

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

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

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

 

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

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

 

Defendant

85%

Plaintiff

15%

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

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

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

 

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

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

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

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

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

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

 

The court found:

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

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

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

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

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

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

100%

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

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

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

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

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

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

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

75%

Plaintiff

25%

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

The court found that:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Car Accident Case Review

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Car Accident Legal Case Review – Calgary, Alberta

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

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

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

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

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

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

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

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

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

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

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

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

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

Case General

Damage Award

Inflation Adjusted Damage Award
Frayne v. Alleman

2006 CarswellBC 3348, 2006 BCSC 1988

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

 

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

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

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

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

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

Case General

Damage Award

Inflation Adjusted Damage Award
Tchao v. Bourdon

2009 CarswellBC 287, 2009 BCSC 147

$70,000.00 $77.500.00

 

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

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

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

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

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

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

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

Case General

Damage Award

Inflation Adjusted Damage Award
Hartnett v. Leischner

2008 CarswellBC 2506, 2008 BCSC 1589

$60,000.00

(para. 87)

$66,899.99

 

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

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

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

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

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

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

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

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

 

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

2016 CarswellBC 591, 2016 BCSC 381

$65,000.00 $65,367.00

Collision date:  April 14, 2014

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

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

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

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

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

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

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

 

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

2015 CarswellBC 2749, 2015 BCSC 1740

$70,000.00 $70,968.00

Collision date:  July 14, 2011

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

 

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

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

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

 

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

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

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Calgary Car Accident Sample Case:

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

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

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

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

 

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

 

CONCLUSION:

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

 

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

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

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

 

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

 

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

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

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

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

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

 

 

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

 

 

Accident:

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

 

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

 

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

 

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

 

Pre-Accident:

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

Since the Accident:

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

 

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

 

The following paragraphs provide further comment on more particularized injuries:

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

DISCUSSION:

  1. Scenario 1 cases

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

 

  1. Scenario 2 cases

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

 

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

 

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

 

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

 

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

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

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

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

 

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

 

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

 

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

 

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

 

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

 

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

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

 

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

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