Whiplash in a Rear-End Collision

By May 10, 2018Articles

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