Quantum of damages for severe low back pain requiring fusion surgery, neck pain, and a mild brain injury concussion.

By October 8, 2019Articles

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

accident lawyers Calgary Walter Kubitz

QUESTION PRESENTED:

Your client was involved in a motor vehicle accident in early 2013. Immediately following the accident, Ms. Client was assessed by EMS on the scene but they did not take her to the hospital. She did not experience pain right away, but after two days felt pain in her neck, back, and right shoulder.  Ms. Client drove herself to her family doctor the next day.

Ms. Client has an extensive medical history. She was diagnosed with degenerative disc disease in 2007. Ms. Client has had serious prior problems with both of her knees; both the left and right had been diagnosed with osteoarthritis. The right knee has had two arthroscopies and injections. She had a total right knee replacement surgery in 2009, and total left knee replacement surgery in 2010. Both knees recovered well.

An x-ray on her lumbar spine sacrum and coccyx in 2012 revealed multilevel degenerative change. She had discussed back surgery with her doctor pre-collision but decided not to proceed.

The day after the car accident, Ms. Client went to her family doctor complaining of headache, dizziness, neck pain that started at the shoulders and radiated into her arms, and pain on all movement of her neck and shoulder. Her family doctor diagnosed the injuries from the accident as WAD III with associated strain of the thoracic and lumbar spine, right hip, and shoulder. Further, in the opinion of the family doctor, the accident exacerbated the underlying pre-existing degenerative changes, except in her neck, which was a new injury. An expert diagnosed her with a mild traumatic brain injury that was caused by the accident. Ms. Client had lumbar facet injections in her lower back in 2013.

Ms. Client continued to complain that her right leg and back were getting worse. She had several nerve block injections on her lower back in 2014. To deal with her pain, Ms. Client had a decompression and fusion for spinal stenosis surgery on her low back in 2015. A dentist who saw Ms. Client claimed that the accident caused damage to the ligaments supporting her mandible. She can subluxate her mandible when she opens her mouth wide, and her TMJ’s occasionally emit a grating or clunking sound.

As a result of the accident, Ms. Client suffered from constant headache; ringing in her ears; jaw pain and discomfort; neck pain; shoulder pain; right arm pain; tingling in her right fingers; constant low back pain; pain in her right hip and buttocks that radiated down to her right leg; tingling in her right toes; and moderate depression and anxiety. The headaches, ear ringing, right arm pain, and the tingling in her right fingers resolved approximately two years after the accident. The jaw pain resolved, but there is still clicking. Ms. Client’s right hip pain, buttock pain, and right leg pain all resolved after her 2015 back surgery. However, she was left with permanent neck, shoulder and low back discomfort and ache.  

After the accident, she was on both short-term and long-term disability but returned to work on a part-time, modified duties basis in June 2013.  She quit her job in October 2015 due to the accident.

After the accident but before her surgery, Ms. Client reported that she had some difficulty with personal care. She had trouble sitting for long periods of time and some trouble with shopping, housework, and laundry. She was unable to walk more than five blocks and could not do any running or lift objects heavier than four kilograms. Ms. Client had difficulty concentrating, and she could not mow the grass, shovel snow, or swim as she did before the accident. After her surgery, things improved somewhat. She was able to walk using a cane or handrails and found it easier to sit for long periods. It became easier to lift things, prepare meals, and clean the house. She could mow her lawn in sections.

CONCLUSION:

The case law shows that plaintiffs with pre-existing conditions, with injuries similar in nature to those suffered by Ms. Client, will be granted higher general damage awards if their pre-existing conditions were asymptomatic when the accident occurred. General damages will also be higher if the plaintiff suffered a measure of psychological damage in addition to their physical injuries.

The most analogous case overall to Ms. Client’s situation is Partridge v. Buskop, 2019 BCSC 459. In this case, the 61-year old female plaintiff had significant pre-existing medical problems. She had not recovered from a previous accident, and had anxiety, anemia, and depression that was unresolved. The plaintiff sustained soft tissue injuries to her neck, right shoulder, mid-back, and low back regions, which exacerbated previous injuries to her back. Her pre-existing depression and anxiety, PTSD-like symptoms, dizziness, and migraine headaches were exacerbated. The plaintiff sustained a labyrinthine concussion and developed tinnitus; she was awarded $90,000 in general damages.

The most analogous Alberta case is Sorochan v. Bouchier, 2014 ABQB 37, in which the plaintiff suffered similar injuries to Ms. Client and had similar pre-existing injuries. The plaintiff was a 57-year old woman who was injured in a motor vehicle accident; she suffered headaches, neck pain, shoulder pain, and back pain. The back pain progressed and became chronic. The Sorochan plaintiff underwent injections in an attempt to deal with her pain. The court awarded $78,975 in general damages (inflation adjusted).

Other analogous cases set the general damage award for plaintiffs with similar injuries to Ms. Client’s, inflation adjusted, from a high of $162,450 to a low of $59,310, with an overall average amount of general damages awarded of $93,300. Analogous Alberta cases set the award, inflation adjusted, from a high of $96,135 to a low of $59,310. The average amount of damages awarded in similar Alberta cases was $73,895. Therefore, it seems that Ms. Client’s likely general damage award will range around $75,000 to $90,000.

The following cases are inflation-adjusted using the Economica index.

DISCUSSION:

Cantin v. Petersen, 2012 BCSC 549                                        $150,000         $162,450

The plaintiff in this case was injured in a motor vehicle accident in 2004; the defendant attempted to turn left immediately in front of her. The plaintiff argued that as a result of the accident, she suffered injuries to her upper and lower back, shoulders, neck, hips, leg, and feet; these injuries led to chronic pain, sacroiliac dysfunction, severe and ongoing headaches, and cognitive and psychological complications. Bruce J held that the plaintiff suffered bruised hands, thumbs, right elbow, left knee, and right shoulder, and these injures resolved quickly. She sustained a soft tissue strain to her lower back and hips, which caused pain in both her legs and feet; these injuries were caused by the collision. She also suffered a soft tissue strain of her neck, shoulders, and upper back and was diagnosed with a grade II soft tissue strain of the neck and low back due to the motor vehicle accident. While all of the medical experts were in consensus that the plaintiff suffered injuries in the accident, they disagreed as to the causes of her current complaints and symptoms. Bruce J held that the plaintiff was suffering from chronic pain in her upper and lower back regions and debilitating headaches. One of the medical experts testified that the plaintiff had a cognitive distortion, an unconscious complication of chronic pain, and an underlying sacroiliac joint malalignment that exacerbated and underlaid her low back problems. All experts agreed that the plaintiff had pre-existing weakness and pain symptoms in her upper body regions. She had episodic myalgic pain in her upper back region for at least two years prior to the accident that caused her considerable pain. Bruce J concluded that the plaintiff continued to suffer pain in her upper back, shoulders, and neck, and her headaches were also causally connected to her chronic pain syndrome in her upper and lower body. She had a medical history of chronic pain in her upper back, shoulders, and neck, and had seen numerous doctors and medical practitioners to try and deal with this. The plaintiff suffered emotional problems as a result of her pain, including anxiety and depression. Bruce J held that the plaintiff had experienced a significant deterioration since the accident; however, given the entrenched nature of her upper back, neck, and shoulder pain symptoms, it is likely that she would have deteriorated to a certain degree regardless of the accident. She was unable to work, had no social life, could not sleep, and suffered a cognitive decline in memory since the accident; her general damages were assessed at $150,000.

The damages suffered by the plaintiff in this case are similar to those of Ms. Client; however, this plaintiff was diagnosed with chronic pain. These damages likely represent the highest damage award that Ms. Client can expect.

Johnstone v. Rogic, 2018 BCSC 988                                       $145,000                     $145,000

In this case, the 42-year old female plaintiff was injured in a motor vehicle accident in 2013. She claimed to suffer soft tissue injuries to her neck and lower back that led to chronic pain and severe, debilitating headaches. Immediately after the accident, she had a significant headache and pain at the back of her neck; she was in shock. The next day, she felt extremely sore. The plaintiff saw a doctor several days after the accident complaining of pain and headaches. She eventually required a Butrans patch and Botox injections. Prior to the accident, the plaintiff suffered from Type 1 diabetes and fibromyalgia, but was not being treated for the fibromyalgia and the diabetes was controlled. Several medical experts diagnosed the plaintiff with chronic lumbar spine pain. Burke J concluded that the plaintiff’s fibromyalgia was exacerbated by the accident and she continued to experience pain; her prognosis was guarded. Burke J held that in order to restore the plaintiff to her pre-accident condition, he had to consider her pre-existing conditions but that the accident had a significant effect on all aspects of her life; he awarded her general damages of $145,000.

Given jurisdictional differences, it is not likely that Ms. Client will receive a general damage award that is this high. However, there are similarities between the Johnstone plaintiff and Ms. Client: both were females who are close in age and both had pre-existing conditions. The general damages awarded in this case may provide an argument for pushing Ms. Client’s range of general damages higher.

Hanger v. Shin, 2019 BCSC 99                                                $120,000                     $120,000

In this case, the 47-year old male plaintiff was injured when the defendant rear-ended him. He worked as a martial arts instructor and had several studios. The plaintiff had been in a significant motor vehicle accident in 2008, in which he received treatment for neck and back pain. This treatment included medial branch blocking. He was left with left-sided low back pain, but was in generally good health at the time of the accident being litigated. Immediately following the accident, the plaintiff had pain in his neck and back. He was taken to the hospital by ambulance but released the same day. After the accident, he complained of neck pain, increased back pain, numbness down his left leg, severe headaches, and depression. The neck pain resolved in about a year, but the back pain continued. The plaintiff received lumbar facet and trigger point injections, as well as RFA therapy; he was on anti-depressant medication. Branch J held that at the time of the accident, the plaintiff was only 75 percent recovered from the previous accident. The current accident caused renewed neck pain and exacerbated his residual back pain from the 2008 accident. The accident caused the plaintiff to suffer from soft tissue injuries to his neck and low back, including facet joint injuries and a re-aggravation of facet joint injuries at the L4/L5 level. The plaintiff had chronic headaches at least partially related to his neck injury; the accident triggered depression. Branch J awarded the plaintiff general damages of $120,000.

This case may provide a good argument for bolstering the upper range of general damages for Ms. Client. The Hanger plaintiff had pre-existing injuries and issues that were significant, similar to Ms. Client. After their motor vehicle accidents, both plaintiffs suffered soft tissue injuries, pain, numbness, and depression. Ms. Client and the Hanger plaintiff both underwent significant treatment in an attempt to alleviate their pain. While the different jurisdictions will likely mean that Ms. Client will not receive such a high damage award, this case provides a good argument for a higher award.

Murphy v. Jagerhofer, 2009 BCSC 335                                              $100,000         $115,100

The plaintiff in this case was 36 years old when his vehicle was rear-ended by the defendants’ vehicle; he was a financial advisor for a financial services company. He suffered soft tissue injuries to his neck and back with accompanying headaches, and later developed tinnitus, dizziness, and jaw pain. He suffered psychological symptoms of anxiety, depression, and PTSD. Prior to the accident, the plaintiff had fallen from a ladder in 1989 and suffered some broken bones in his foot and injuries to his neck and back. He had a minor injury of his neck and upper back playing rugby in 1990. In 1992, the plaintiff was in a motor vehicle accident and suffered soft tissue injuries to his neck and upper back. Beginning in 1998 and continuing into October 2006, the plaintiff had several knee surgeries to repair his anterior cruciate ligaments and meniscus; he also had some psychological problems. However, all of these injuries were largely asymptomatic at the time of the accident. Within a few days of the accident, he developed neck stiffness, headache, back pain, shoulder pain, chest pain, difficulty breathing, trouble sleeping, wrist pain, left groin pain, and rib pain; his chief complaints were his neck and back pain. A doctor stated that the plaintiff’s jaw pain was consistent with TMJ injury and myofascial pain of the masticatory muscles. Since the accident, the plaintiff had a fear of driving or being a passenger in a vehicle. Warren J held that based on the evidence, while the plaintiff had pre-existing conditions, these were all asymptomatic at the time of the accident. He suffered a moderate to severe whiplash type injury that had a significant physical and emotional effect; his back and neck pain caused him considerable pain, sleeplessness, headaches, and general body pain. The plaintiff experienced some hearing loss, tinnitus, and episodes of dizziness; TMJ arthralgia and myofascial pain; and emotional difficulty. General damages of $100,000 were awarded.

The injuries suffered by the plaintiff in this case are analogous to those of Ms. Client. While this plaintiff’s psychological damage appears to be more severe, he did not undergo the surgeries and injections that Ms. Client did in order to deal with pain. The general damage award in this case is likely at the upper range of damages that Ms. Client can expect.

Carroll v. Hunter, 2014 BCSC 2193, additional reasons in 2014 BCSC 2429                                                                                                                                                  $100,000         $105,300

In this case, the 47-year old plaintiff was injured in a motor vehicle accident. She alleged that she suffered intense neck pain, occipital headaches, and injuries to her upper back, shoulders, and arms. Seven years after the accident, she continued to complain of chronic neck pain, persistent headaches, and sleep deprivation. Immediately following the accident, the plaintiff experienced intense and persistent neck pain; the pain increased and interfered with her sleep. She experienced continuous pain in her neck and upper back; she tried trigger point lidocaine injections to provide relief. The injections worked in the short term, but did not provide long-term relief. She had botox injections into the muscles of her upper back and neck that caused her pain to intensify for a few days after the injection, but then gave her five weeks’ benefit. The plaintiff had dry needling treatment in her neck, but it didn’t help; she tried guided facet joint injections that gave her approximately three weeks’ relief each time. The plaintiff underwent radio-frequency lesioning on the right side at C3-C5, which provided her some relief for one month. An MRI from 2008 showed evidence of cervical disc degeneration, including a narrowing of the disc at C5-6, and a bone scan showed facet joint disease of the right cervical facet joint at C3-4. Pearlman J held that the plaintiff did have degenerative changes to her cervical spine in the form of osteoarthritis; however, they were asymptomatic and she had never before complained of neck pain. Pearlman J concluded that the plaintiff suffered soft tissue injuries to the right C2-C5 facet joints and adjacent neck muscles, and she sustained chronic neck pain, injury to her cervical facet joints. However, he held that the plaintiff’s multi-level disc herniations were not caused by the accident, but instead were the result of progressive degenerative change to the plaintiff’s cervical spine. The amount of general damages awarded was $100,000, with a 10 percent reduction for the risk that her degenerative disc disease would have become symptomatic in the future regardless of the defendants’ negligence.

The circumstances of this case are significantly similar to those of Ms. Client. Both plaintiffs sustained similar injuries and underwent similar methods to try and deal with their pain. This case may provide a good benchmark for a general damage award for Ms. Client, although possibly on the high side. 

Do v. Sheffer, 2010 ABQB 86, additional reasons in 2010 ABQB 422                                                                                                                                                $85,000                       $96,135

In this case, the plaintiff was injured in a motor vehicle accident and claimed he became totally disabled as a result. Prior to the accident, the plaintiff worked in medium to heavy labour and had a history of intermittent back pain with occasional flare-ups. He had been diagnosed with low back strain and associated pain and numbness in his leg and foot. The plaintiff had a left L5-S1 laminectomy and discectomy in 2002, after which he had a program of therapy and rehabilitation. After the accident, the plaintiff was taken to the hospital where x-rays showed moderately severe degenerative disc disease at L5-S1 but no other abnormalities, while the x-ray of the cervical spine showed mild degenerative disease. The plaintiff was diagnosed with multiple soft tissue injuries and painkillers and physiotherapy were prescribed. Lee J held that the plaintiff suffered an exacerbation of his prior back issues in the accident; these issues had generally resolved by the time of the accident. He also suffered an injury to his neck and shoulder. Although the neck and shoulder injury largely resolved, the plaintiff continued to have pain in his lower back that was caused by the accident. Lee J held that the plaintiff’s injuries were permanent and resulted in clinical impairment of his cervical spine. Further, the plaintiff was a thin skull, not a crumbling skull, plaintiff as his prior medical problems were asymptomatic. Lee J awarded the plaintiff $85,000 in general damages.

This plaintiff had pre-existing medical issues that were exacerbated by the motor vehicle accident he was involved in. He continued to have pain in his back, neck, and shoulder, similar to Ms. Client. The general damage award in this case may provide a good benchmark for the general damages that Ms. Client can expect to receive; her injuries were arguably more serious than what the Do plaintiff sustained.

Karst v. Foster, 2019 BCSC 1043                                            $90,000           $90,000

In this case, the 53-year old male plaintiff was injured in a motor vehicle accident when he was rear-ended by the defendant’s vehicle. Prior to the accident, the plaintiff was in generally good health. However, he had an arm injury that required him to undergo three surgeries, and he had pre-existing back pain. The plaintiff worked as a correctional officer. Immediately following the accident, the plaintiff felt a sharp pain in his upper back, along with headache and nausea; he felt shaken and his body was in pain. He did not go to the hospital, but managed to drive home. When he got home, the plaintiff started to vomit and was in significant physical pain. His wife drove him to the emergency room, where he was examined and discharged with painkillers. The plaintiff testified that since the accident, he has suffered chronic back pain as well as pain in his left leg; he could not sit still for more than 15 minutes without having to get up to stretch. The plaintiff had an epidural steroid injection that alleviated his pain somewhat, but the pain eventually returned. He underwent two lumbar medial branch nerve blocks, followed by a radiofrequency neurotomy. Horsman J held that he had no difficulty in concluding that the accident caused or contributed to the significant exacerbation of low back pain that the plaintiff experienced; the back pain has now become chronic. The plaintiff’s pre-existing conditions were exacerbated by the accident. Horsman J held that the plaintiff’s pain caused him constant fatigue as a result of interrupted sleep patterns due to pain; he was unable to continue with his job as a corrections officer. Horsman J awarded the plaintiff general damages of $90,000.

This case is very analogous to Ms. Client’s situation. Both plaintiffs had similar pre-existing conditions that were exacerbated by a motor vehicle accident. However, Ms. Client’s prior medical problems are more severe than the Karst plaintiff. This case may represent a good precedent for the upper range of general damages that Ms. Client can expect to receive.

Partridge v. Buskop, 2019 BCSC 459                                     $90,000           $90,000

In this case, the 61-year old female plaintiff was a medical transcriber who was injured in a motor vehicle accident in 2013; liability was admitted. The plaintiff had been in a previous accident in 2004, from which she had not yet made a full physical recover. Prior to the accident, she suffered from anxiety and depression, and she had an onset of medical problems, including anemia and back problems, earlier in 2013 before the accident. She claimed that the accident exacerbated her pre-existing medical problems. In the accident, the plaintiff’s head struck the window; she had to be pulled out of the vehicle because the door wouldn’t open and was taken by ambulance to the hospital. The plaintiff was shaking, vomiting, and crying at the hospital. She had a bad headache and was experiencing dizziness and ringing in her ears, as well as right shoulder pain and a swollen right ankle. She was discharged that night. After the accident, the plaintiff stayed in bed for two or three days, and she continued to suffer headaches, ringing in her ears, dizziness, vertigo, and sensitivity to noise. Her pre-existing depression got worse. Morellato J held that in the accident, the plaintiff suffered soft tissue injuries to her neck, right shoulder, mid-back, and low back regions, which exacerbated previous injuries to her back. Her pre-existing depression and anxiety, PTSD-like symptoms, dizziness, and migraine headaches were exacerbated. The plaintiff sustained a labyrinthine concussion and developed tinnitus. Morellato J awarded the plaintiff $90,000 in general damages.

This case is analogous to Ms. Client’s situation. Both plaintiffs were female of a similar age; both had a history of pre-existing conditions. They each sustained soft tissue injuries and depression, along with an exacerbation of their pre-existing injuries. The general damage award in this case likely represents the upper range of damages that Ms. Client will receive.

Park v. Targonski, 2015 BCSC 555                                         $80,000           $83,280

The 40-year old plaintiff in this case was a registered nurse who was born in Korea. She was rear-ended by the defendant’s vehicle in 2009; liability was not an issue. Prior to the accident, the plaintiff received 37 massage therapy treatments on her neck, back, and shoulder between 2006 and 2008; she also had physiotherapy in 2007 on her right arm. The plaintiff had been working very hard and taking on extra nursing shifts in the time leading up to the accident, and the physical toll of the job caused persistent aches, pains, and muscle stiffness in her neck, back, and shoulder. Immediately after the accident, the plaintiff exchanged information with the defendant and continued on her way to work; however, she felt a sharp pain on the right side of her neck. She went to a walk-in clinic and was given a muscle relaxant and painkiller. The plaintiff testified that her symptoms worsened over the weekend. She had pain in her neck, back and right arm, and was unable to put her arm behind her back; she had back spasms. She testified that for the first few months after the accident, she had severe neck pain every day and attended physiotherapy and massage therapy. The plaintiff had great difficulty performing her usual nursing tasks, and had to take time off work. She became depressed and went on to develop chronic pain with a profound psychological dimension. The plaintiff was given a series of corticosteroid and Botox injections in her back on ten occasions between September 2011 and June 2014. At the time of trial, the plaintiff testified that her physical symptoms and mood were stable but with ups and downs. Fitch J held that the plaintiff was experiencing neck, shoulder, and back pain prior to the accident, likely caused by her job and the extra shifts she was working. Her symptoms were intermittent but repeatedly symptomatic at the time of the accident, and likely would have continued if the accident had not occurred. The accident significantly aggravated her pre-existing pain; she went on to develop chronic pain after the accident with a deep-rooted psychological component. However, she failed to mitigate her damages by following the advice of her health care providers, and exaggerated her symptoms to the medical examiners. A general damage award of $80,000 was made. However, Fitch J deducted 10 percent for the plaintiff’s pre-existing condition and a further 20 percent for her failure to mitigate, for a total general damage award of $56,000.

The plaintiff appealed in Park v. Targonski, 2017 BCCA 134 with respect to the amount of the reduction. The British Columbia Court of Appeal allowed the appeal, to the extent of setting aside the 20 percent deduction for non-pecuniary damages, finding that the trial judge erred in concluding that the plaintiff failed to mitigate her losses.

The situation of the plaintiff in this case is quite similar to that of Ms. Client; both were middle-aged nurses who were involved in rear-end motor vehicle collisions and suffered neck, back, and shoulder injuries. However, there are some differences in terms of injuries. This plaintiff had quite a significant psychological component to her injuries that Ms. Client does not; in addition, Ms. Client’s pre-existing conditions are more serious than those of this plaintiff.

Sorochan v. Bouchier, 2014 ABQB 37                                                $75,000           $78,975

In this case, the 57-year old plaintiff was driving her vehicle and was stopped at a light when she was rear-ended by a large flatbed delivery truck driven by the defendant. The plaintiff did not experience any pain immediately following the accident and did not seek medical attention that day. She began to experience headaches within a few hours following the accident, and neck pain, shoulder pain, and pain at the top of her spine the day after. Her chief complaint was lumbar back pain that continued to bother her. The back pain led to pain radiating down her legs. The plaintiff received a nerve root injection in the lower spine that she found extremely painful, but did not help with the pain. She received cortisone spinal cord injections, but the pain continued. At the time of trial, the plaintiff was on a waitlist for a L3/5 instrumentation and decompression with interbody cages. A CT scan in March 2006 revealed bulging lumbar discs; the plaintiff’s lumbar spine had been asymptomatic prior to the accident. The plaintiff was a teacher; she had intended to work until age 65, but testified that the accident and subsequent pain forced her to retire earlier. An MRI scan performed in 2007 confirmed the presence of mild to moderate spinal stenosis. Belzil J concluded that the plaintiff sustained a 10.5 percent permanent partial disability as a result of the accident. Both the plaintiff and defense medical experts concluded that the plaintiff suffered a 21 percent permanent partial disability, but only half of this was attributable to the accident; the other half was based on pre-existing conditions. General damages in the amount of $75,000 were awarded.

The plaintiff appealed the division of causation that the accident was only responsible for half of her disability in Sorochan v. Bouchier, 2015 ABCA 212. The per curiam Court of Appeal held that a permanent impairment of 21 percent yields a general damages award of approximately $75,000. Therefore, even though the trial judge may have erred in failing to hold the respondent fully liable for the appellant’s injuries, the correct amount of damages was awarded.

This case is likely a good indicator of the general damage award that Ms. Client can expect. The plaintiff experienced similar injuries in a similar manner of accident; similar methods were undertaken in an attempt to deal with pain. While Ms. Client had more serious pre-existing injuries than this plaintiff appeared to, this case provides a good benchmark as to the damage award that she can expect.

Stevenson v. Thompson, 2017 ABQB 451                                          $75,000           $75,570

The plaintiff in this case was sitting in her parked car in a parking lot in 2008 reading a book when she was struck by a vehicle driven by the defendant. The plaintiff alleged she suffered a WAD II sprain/strain, which led to long-term chronic pain syndrome; she claimed to suffer from ongoing pain and dysfunction in her neck, back, and shoulder. In terms of her medical history, the plaintiff had some gynaecological problems; hypothyroidism; and hospitalization of two weeks’ time for adjustment disorder and depression. The plaintiff had a snowmobile accident in 2004 where she suffered lower back pain, shoulder pain, neck pain, tingling in her legs, and headaches. She was in a motor vehicle accident in 2006 where she sustained whiplash. She saw her family doctor in 2007 complaining of low back pain and tingling in her right thigh; she had a gallbladder attack in 2007. A chiropractor diagnosed her with a misalignment in her right sacroiliac joint in 2008. In 2008, she complained of headaches, low energy, stress, sleeplessness, digestive problems, and a desire to quit smoking. She had a fall in 2008 and complained of neck stiffness, headache, left wrist pain, nausea, sleeplessness, vision problems, numbness in her right hip, bruising on her forearms and weakness in her left hand; the diagnosis was whiplash. Shortly after the accident, the plaintiff complained of headache, stiffness in her neck, upper and lower back pain, right shoulder pain, lower leg and right thigh tingling; she continued to complain of pain in these areas. The plaintiff was diagnosed with carpal tunnel syndrome in 2010; she experienced several more slip and falls; was hospitalized for a stroke-like event; and had another motor vehicle accident. Park J held that subject to her ongoing difficulties with her hyperthyroidism and life-stress issues, the plaintiff was in good health on the day prior to the accident. The plaintiff’s chiropractor diagnosed her with a sprain and strain of grade 2 nature of the lumbar thoracic cervical spine and a WAD III injury. Park J accepted that the plaintiff suffered from chronic regional myofascial pain, cervicogenic headaches, and a chronic mechanical low back pain. Park J stated that prior to the accident, the plaintiff’s primary health concerns related to her hyperthyroid condition, depression issues, anxiety and stress issues, and sleep deprivation. The accident caused her to experience headaches, stiffness and pain in her neck, shoulders and arm; global loss of range of motion, difficulties with extension and muscle spasms; a sprain/strain of the lumbar, cervical, and thoracic spine; and a WAD II whiplash injury. The plaintiff was awarded $75,000 for general damages; this was reduced by 20 percent for her failure to mitigate.

The plaintiff in this case had pre-existing conditions that contributed to her injuries, but were exacerbated by the injuries sustained in the motor vehicle accident. The pre-existing injuries were different in nature than those of Ms. Client; they were arguably less severe, with the exception of this plaintiff’s psychological problems. However, this case may provide a good benchmark for the general damage award that Ms. Client can expect.

Kagrimanyan v. Weir, 2018 BCSC 1458                                             $75,000           $75,000

In this case, the 35-year old female plaintiff was injured in a motor vehicle accident, where the vehicle she was in was hit from behind by the defendant driver. Prior to the accident, the plaintiff was in generally good health. She had suffered from carpal tunnel syndrome, but this was successfully treated by elbow surgery; she had sustained a previous ankle injury that had also healed. In the accident, the plaintiff was wearing her seatbelt; her hand banged against the headrest. Immediately following the accident, the plaintiff felt shaky and scared but was able to drive home. That night, she had a headache and pain in the back of her head. She was very sore the next day and had a severe headache. She was prescribed painkillers, muscle relaxants, massage, and physiotherapy, but continued to suffer neck soreness and soreness in her back and between her shoulders. The plaintiff’s injuries included headaches and dizziness, and soft tissue injuries to her neck, upper back, and lower back extending into her left leg. She continued to experience pain in her neck and back. The plaintiff had chiropractic, massage, and physiotherapy treatments; she saw a physiatrist. Riley J agreed with the experts that the plaintiff suffered from chronic pain; her prospects for recovery were poor. Riley J awarded general damages of $75,000.

The general damage award in this case may present an accurate benchmark for the general damage award that Ms. Client can expect to receive. Both plaintiffs sustained soft tissue injuries to their necks and backs. However, Ms. Client’s injuries are arguably more serious, given that she required surgery to correct her back. Given this, and the differences in jurisdictions, Ms. Client should be awarded general damages on par with what was given out in this case.

Carrier v. Wan, 2007 ABQB 279                                                         $60,000           $70,920

The 57-year old plaintiff in this case was diagnosed with degenerative disc disease in his neck in 1997 and sciatica in his right leg in April 1999. In July 1999, he was struck from behind by the defendant’s vehicle, whose vehicle was then hit by another vehicle. The plaintiff was able to drive away from the scene and did not miss any time off work. In December of 2000 the plaintiff was involved in another motor vehicle accident, where he was in the process of turning left on a highway and was hit head on by an oncoming vehicle. Shortly after the 1999 accident, an x-ray of the plaintiff’s spine showed a grade I spondyolistheses of L5 on S1 and degenerative disc disease between L4 and L5, which pre-existed the 1999 accident. In December of 1999 a CT scan of the plaintiff’s lumbosacral spine showed diffuse annular disc bulging at L4-5 and L5-S1 and anterior spondyloistheses of L5 on S1. In October 2004, the plaintiff had an MRI of his vertebrae and right hip, which showed degeneration and disc prominence at the L4-5 and L5-S1 vertebral levels, a discreet tear in the wall of the L5-S1 vertebrae, and marked degenerative arthritic changes in his right hip. There was no evidence as to whether the tear of the hip arthritis was there before the 1999 or 2000 accidents. In November 2005, the plaintiff had a total right hip replacement. He was involved in anywhere between two to five motor vehicle accidents before the 1999 accident; he had pain in his shoulder and arm in 1997 and had chiropractor treatments; and commencing in 1998, he had pain in the right leg and lower back and had chiropractic treatments in 1999, prior to the accident. One of the central issues at trial was whether or not the 1999 accident caused or contributed to the development of arthritis in the plaintiff’s hip. A medical expert at trial testified that neither accident caused or contributed to the right hip arthritis. He testified that the plaintiff also had arthritis in his left hip, which was not injured in the accident. In his opinion, in the 1999 accident, the plaintiff sustained soft tissue injuries of a Grade II WAD injury in the cervical spine and lumbar strain in the lumbar spine; these injuries became chronic and symptomatic for many years. Upon considering all of the medical opinions, Coutu J concluded that in the 1999 accident, the plaintiff sustained a WAD III whiplash injury, including soft tissue injury to his cervical and thoracic spine, lumbar spine, lumbosacral area, pain in the sacroiliac joints with chronic inflammation and chronic pain, headaches, sleep disturbance, and depression. Coutu J awarded $60,000 in general damages.

The plaintiff appealed the amount of the award in Carrier v. Wan, 2008 ABCA 318. The per curiam Alberta Court of Appeal dismissed the appeal, finding that the trial judge made no error.

This case is perhaps the most analogous to Ms. Client’s. The plaintiff sustained similar injuries and had similar pre-existing conditions. This case is likely in line with the general damage award that Ms. Client can expect to receive.

Farbatuk v. Lagrimas, 2014 BCSC 1879                                 $60,000           $63,180

In this case, the 50-year old plaintiff sustained personal injuries when the defendant rear-ended him in a motor vehicle accident in December 2011. The plaintiff testified that after the collision, he was not visibly injured and was not in immediate pain; he sustained no cuts, bruises, or loss of consciousness. However, as the day progressed he stiffened and felt his back tighten up. He went to a walk-in clinic several days after the accident because of pain in his back and neck; he suffered back spasms and headaches. The plaintiff’s family doctor diagnosed him with Grade II whiplash associated disorder of the neck, middle, and lower back as a result of the accident. He also had a pre-existing asymptomatic diffuse idiopathic skeletal hyperostosis, which is a rare condition that is a bony formation or fusing of the ligaments that attach each vertebrae of the spine, causing them to become very stiff with a decreased range of motion. An orthopaedic surgeon found that the plaintiff had pre-existing degenerative changes in his cervical and thoracic spine that were asymptomatic prior to the date of the accident and degenerative facet joint changes were suspected. The accident caused soft tissue injuries to his cervical, thoracic, and lumbar spine. Kloegman J held that it was not proven on the balance of probabilities that the plaintiff suffered any aggravation or acceleration of a pre-existing condition from the accident. With respect to assessing general damages, prior to the accident the plaintiff was in good health and led an active life. Kloegman J awarded the plaintiff $60,000 in general damages.

While there are similarities to Ms. Client’s accident, this case may represent the lower end of damages that she can expect. This plaintiff also had significant pre-existing conditions, but did not go through the extensive measures that Ms. Client has in an attempt to resolve pain. The general damages awarded here may be at the lower end of what Ms. Client can expect.

McLean v. Parmar, 2015 ABQB 62                                         $60,000           $62,460

The 29-year old plaintiff in this case was hit by the defendant’s bus when it ran a red light; liability was not an issue. The plaintiff claimed that she suffered from severe soft tissue injury to her neck, shoulders and back, headaches, dizziness, injury to her TMJ’s, PTSD, depression, a concussion consistent with a mild brain injury, and chronic pain that lasted for approximately two and a half years. She was an accountant who had a second part-time job as a server in a pub; she had to quit work at the pub due to the accident. During the accident, the plaintiff did not lose consciousness, but severely panicked because the airbags deployed, causing her vehicle to fill with smoke; she thought she was going to die. The plaintiff did not go to the hospital. She couldn’t sleep that night because she was sore, scared, and experiencing back and neck pain. The plaintiff went to a walk-in clinic the next day, where the doctor noted she had a tender spine with restriction turning, shoulder pain with painful movement, and a tender back with decreased range of motion. She was diagnosed with whiplash and back strain, and physiotherapy and painkillers were ordered. The physiotherapist noted that the plaintiff had restricted range of motion of the neck and back, as well as pain and tenderness on both the right and left sides of her jaw, some radicular symptoms down her arm, and headaches; WAD II whiplash was diagnosed. She also had stress and depression problems. The plaintiff’s family doctor stated that the plaintiff suffered from a WAD II cervical strain/whiplash, muscular mid and upper back and right arm contusions and myalgia which resulted in mental and physical debilitation, mild reactive depression, PTSD, and a concussion that caused dizziness, vertigo for a period of time, headaches, and chronic pain. She suffered bilateral disc displacements and general pain in her TMJ’s. To deal with her pain, the plaintiff had prolotherapy injections to her neck and upper spine area nine times; she found this therapy helpful. Eidsvik J held that the WAD II injuries suffered by the plaintiff were not minor injuries within the meaning of the regulations because she was unable to continue working at the pub, and was unable to perform some of the tasks of her daily living as she used to. Eidsvik J assessed general damages for the plaintiffs’ injuries separately. For the moderate whiplash, concussion, and chronic pain, she would award $25,000; for the TMJ injury, $10,000 – $15,000; and for the PTSD and depression, $20,000 – $25,000.

This case may be instructive as to Ms. Client’s general damage award. Eidsvik J assessed damages by breaking them down into separate dollar values; many of the injuries suffered by this plaintiff were also sustained by Ms. Client. This plaintiff did not have the extensive pre-existing injuries of Ms. Client, and arguably suffered more serious psychological problems.

Howes v. Rousta, 2002 ABQB 1052, additional reasons in 2003 ABQB 132

                                                                                                            $45,000           $59,310

In this case, the 56-year old female plaintiff was injured in a motor vehicle accident. She was a nurse and a poet, and had worked in retail and journalism. The plaintiff’s vehicle was struck from behind by the defendant’s vehicle and the impact was not at high speed. The plaintiff was somewhat stunned but drove to her place of employment (at a hospital); her co-workers convinced her to go to the emergency department. The plaintiff had a fairly lengthy pre-existing medical history, including an episode of depression; a discectomy with periodic back pain thereafter; low back strain; pain in her right lumbar spine radiating down her right leg; an injury to her coccyx; further depression. When the plaintiff went to emergency after the accident, she complained of numbness to her right arm, back and right leg, and neck pain. A neurosurgeon noted degenerative spinal changes with loss of disc space and small osteophytes. The plaintiff told her family doctor that her chief concern was pain in the lower back radiating down her right leg; she was referred to the Canadian Back Institute. She later complained of shoulder pain and was given a steroid injection; an arthrogram revealed a normal shoulder. The plaintiff’s mental state deteriorated and she went into a manic phase and was diagnosed with bipolar disorder. With respect to general damages, Marceau J held that the plaintiff suffered a neck injury and back strain that essentially healed within 18 months; bilateral tendonitis in her shoulders while undergoing treatment that eventually resolved; mild chronic pain syndrome; and a decrease in her loss of enjoyment of life. Marceau J awarded $45,000 in general damages.

There are many similarities between this plaintiff and Ms. Client. While this plaintiff had more serious psychological trauma, Ms. Client underwent more extensive measures to try and heal her back injury. Both plaintiffs were female, of a similar age, and had a similar profe

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