Caution: All the legal precedents on this page were obtained through years of work by personal injury lawyers taking complex medical-legal cases to trial against a reluctant multi-million-dollar auto insurance company intent on paying the least amount. Victims of auto accidents without legal counsel have neither the knowledge and experience or the leverage of taking their case to trial to force a multi-million-dollar auto insurance company to pay a fair settlement. If you are an unrepresented victim of a motor vehicle collision it is highly recommended you obtain legal counsel if you wish to even remotely come close to the dollar values in the case precedents shown on these pages.If you have been injured in a serious accident our team can help you receive the compensation you deserve. Book a free consultation with one of our personal injury lawyers in Red Deer, Calgary or Edmonton.
Wrongful Death or Fatal Car or Truck Accident Claim
If you have been involved in an auto vehicle accident in Alberta, you may be entitled to significant financial compensation for your losses. Your Alberta Car Accident Settlements may include an amount for general damages for pain and suffering, inconvenience and loss of amenities of life, as well as all other losses which flow from the motor vehicle collision such as wage loss, past and future, loss of housekeeping capacity, treatment costs for the future, and other heads of damages.
- Damages for sorrow and bereavement,
- Loss of income for the widow (Mrs. Baker) while she was on long term disability due to grief,
- Special damages,
- Past and future economic contributions to the Baker household by the deceased including past and future loss of housekeeping,
- Loss of dependency for household income and financial services.
The deceased, Mr. Baker was an entrepreneur at the time of his death but had a higher earning previously as a full-time school teacher which complicated the calculation of the loss of dependency on income for the widow and surviving child. The deceased was 56 years old at the time of his death, his surviving widow, also a full-time teacher was 54 years old and his son was 14 years old.
Before calculating the loss of dependency on income calculation, the court stated, “the estimation of pecuniary loss due to a wrongful death can be a daunting exercise. No one can predict with certainty how a person’s career might have unfolded had his or her life not be brought to an untimely end”. Paragraph 99, page 17. With this daunting task the court rightly noted that future events need not be proven on a balance of probabilities (which is appropriate for past events), but only on simple probability which is something more than mere speculation and the case is made out for the future.
Predicting the deceased’s future income is a complex calculation requiring an analysis of the deceased’s academic and work related qualifications, his employment history, and the financial situation of any company that the deceased was running at the time of his death. In this particular case, the loss of dependency calculation on income was low because the deceased had almost a non-existent income through very poor entrepreneurial investments or business ventures over the 8 years prior to his death, with the result that the court concluded the loss of dependency would be based on an annual income of only $23,099.00 in 2016 Dollars. Thus, the loss of dependency on income for the widow and child is of course lower.
In calculating the loss of dependency of household services the court found that the deceased was active in the household and spent a considerable amount of time on household maintenance and upkeep as well as cooking, cleaning and child rearing. Thus, the court accepted the surviving widows estimate of the deceased’s weekly time spent on household services even though the estimate exceeded the Canadian statistical average by over two times. Again, the court had the economic experts re-calculate the loss of dependency on housekeeping amount based upon the courts accepted assumptions and thus we do not have an exact amount in the Judgment.
Finally, in this case the widow claimed for a personal loss of income as she was unable to return to her job as a teacher after the death of her husband and indeed was on disability payments receiving only 70% of her income for three and a half years after the accident and then took retirement. Thus, she claimed for the 30% loss she would have earned.
Unfortunately, the personal injury lawyer for the widowed victim (following previous case precedents) did not lead medical or psychiatric evidence as to the extreme amount of grief and depression she suffered after the loss of her husband and therefore the court did not award this amount as Alberta courts have done in other cases. The court wrongly concluded, in Handel Law Firm’s opinion, that any income loss that the widow suffered was “occasioned by the bereavement and sorrow she felt as a result of Mr. Baker’s death… as such it is not separately compensable under the Fatal Accidents Act of Alberta”, page 32, paragraph 203.
In our respectful opinion, even if the income loss is occasioned by bereavement and sorrow, the claim is for incapacity because of wrongful death. Bereavement damages in Alberta are just general damages for pain and suffering with a stipulated amount. Bereavement and sorrow, even though compensable under the Fatal Accidents Act, does not specifically preclude a loss of income flowing from the wrongful death. If it did, any injury victim who receives compensation for general damages for pain and suffering, would be precluded, on Justice Neufeld’s reasoning from obtaining a loss of income claim. Of course, this is not the case as injury victims in Alberta are routinely compensated for general damages for pain and suffering as well as their loss of income which flowed from those injuries which caused pain and suffering.
The total Judgment was for $343,000 PLUS costs. This total award does not include any dependency loss on income – just loss on housekeeping capacity, tax gross-up, bereavement and special damages. There was no loss of income on dependency because the widow’s income (as a teacher) was so much higher than the decedent’s income.
Handel Law Firm acted for a lady in her thirties who lost her husband who was a farmer and left behind three children. The complicating factor in the calculation of the future loss of dependency on the farming income was the fact that the deceased farmer also in his thirties had a loose undefined partnership farming operation with other family members.
This made calculating the loss of future income complicated. To further complicate matters, the deceased farmer also had an off-farm job at which he was paid very well. The matter proceeded through questioning and extensive document production and extensive agricultural experts combined with economic experts resulting in competing assumptions turning the case into a war of experts. As well, there was an issue of liability for the collision itself – in other words, who was at fault. The matter was ultimately settled one month before a scheduled three and a half week trial for $1,256,428.00, plus cost of the victim’s experts paid by the defendant auto insurance company, updated to 2017 dollars is $1,337,046.00.
Handel Law Firm acted for a lady who lost her husband due to the Defendant’s negligence in veering over the center line at 7 a.m. and crashing head on into our client’s husband. The deceased left surviving his wife and 3 children. There was an argument about whether or not the Defendant was on the job at the time and under the Workers Compensation Act of Alberta if he was on the job, and our client’s husband was on the job, then there is not a civil claim and benefits are limited to the Workers Compensation Act Pension.
Therefore there was a great risk if the Defendant was found to be on the job that there would not be a claim at all. We had to proceed to the Workers Compensation Appeals Board to prove that the Defendant was not on the job and thus a civil claim could be pursued. Nevertheless, our firm pursued this matter through several appeals and was successful in achieving a settlement before trial of $1,382,864.00 for the widow and 3 children securing her future, and the future of her children with funds payable to the children when they turned 18 for the loss of support and dependency on their father. Updated for inflation to 2017 the award would be $1,471,595.00.
This was a high risk case for our firm which we pursued on behalf of our client as we strongly believed in the position of our client and her right to entitlement for the wrongful death of her husband and to receive benefits under the Fatal Accidents Act of $1,382,864.00 in addition to the WCB Widows pension.
Alberta Car Accident Settlements & Benefits
The amount that can be claimed for a wrongful death is a function of who is left behind. For example, the sole income earner in a family at a young age with a spouse dependant on the deceased’s income along with children will result in a very large claim. Whereas the tragic loss of a child unfortunately, in the eyes of the law, only awards an amount for the grief, and loss of care, guidance, and companionship to the parents, plus out of pocket expenses for the funeral and burial.
Under the Fatal Accidents Act (FAA) of Alberta claims which may be made include the following:
a) Expenses incurred for the care and well being of the deceased between time of injury and death may be claimed by a spouse, adult interdependent partner, parent, child, brother or sister under section 7(a) of the FAA.
b) Travel and accommodation expenses incurred in visiting the deceased between the time of the injury and death. This may be claimed by the spouse, adult, interdependent partner, parent, child, brother or sister under section 7(b) of the FAA.
c) Funeral expenses. Expenses of the funeral and the disposal of the body of the deceased, including all things supplied and services rendered in connection with the funeral and disposal may be claimed by the spouse, adult interdependent partner, parent, child, brother or sister under section 7(c) of the FAA. Simple proof of actual expenses is all that is needed.
d) Fees paid for grief counselling that was provided for the benefit of the spouse, adult interdependent partner, parent, child, brother or sister of the deceased, which is claimed under section 7(d) of the FAA. Proof of actual expenses needed.
If the deceased was gainfully employed supporting or partially supporting a spouse and children, the claim that can be made is very large as it calculates the deceased’s future income over the balance of the deceased’s working life had he or she lived. This is called a ‘Loss of Dependency Claim’. The calculation, for example, for a deceased family income earner would be as follows:
Calculate the expected gross income of the deceased had he/she lived over the balance of the deceased’s working life utilizing the deceased’s historical earning rate updated for inflation, which may also be increased for work productivity/promotion. Subtract the income taxes that the deceased would have paid to arrive at a net income. Add the annual cash value of the fringe benefits the deceased had at work for such benefits as a pension plan, health benefits, dental benefits and disability benefits all of which can be calculated to result in a cash equivalent to be added to the net income.
Then a deduction must be made for the deceased’s personal expenditures that he or she would have made had he or she survived. This amount can vary depending on the number of people in the family with 20% as a benchmark. The amount of personal expenditures decreasing as the number of children increase.
Then apply a divorce contingency deduction on the basis that many marriages end in divorce. Finally, depending upon the age of the deceased, a re-marriage contingency would also be applied. The amount now arrived at is the potential settlement amount for the loss of dependency head of damages only. As this is paid immediately and in full on settlement or Judgment, a present value calculation must be made to reflect the fact that the recipient can invest the lump sum and earn additional income which would result in over compensation if a deduction for present value was not made.
Above is the calculation for the loss of dependency claim, in addition to a loss of a dependency claim family members also have an amount claimable for the grief, and loss of care, guidance, and companionship. As of May 1, 2013 in Alberta the amount for bereavement for fatal collisions occurring after May 1, 2013 is $82,000 to a surviving spouse or interdependent partner, $82,000 to the parent or parents divided equally, and $49,000 to each surviving child of the deceased even if the “child” is now an adult. Interest is added to these amounts to the date of payment or settlement of the fatal car accident insurance claim. This amount is updated for inflation.
Another head of damages is a loss of housekeeping services claim, which is particularly important and can be quite large for the deceased who was primarily responsible for taking care of the household and child rearing. This calculation is made based upon the hours the deceased worked in the household for such items as shopping, meal preparation, cleaning, child care, transportation services, maintenance, repairs indoor and outdoor, etc.
Wrongful death claims are a complex area of law that results in very different claim amounts depending on which family member was the victim of a fatal motor vehicle accident. In the event who was at fault for the accident is not immediately clear, it is very important to seek legal counsel as soon as possible to preserve any evidence from the motor vehicle accident.
When the plaintiffs discovered this through the litigation process they applied to the court to amend their Statement of Claim to add a claim for punitive damages. The defendant doctor and his insurance company appealed the court granting the application to add a claim for punitive damages and on appeal the defendant and insurance company were successful and the punitive damages were struck out. Therefore the plaintiff’s husband and children appealed to a higher court still which allowed their appeal and reinstated their claim for punitive damages against the doctor for altering the records.
Part of the reason this was contested is a statue in Alberta allows an estate to claim for damages suffered by the deceased, but the statue in Alberta only allows the deceased’s estate to claim for damages suffered by the deceased and specifically excludes punitive damages. However here the plaintiffs were bringing a claim under the Fatal Accidents Act which is different, and so the issue was whether punitive damages can be claimed under the Fatal Accidents Act.
The Court of Appeal found that, if proven, the doctors alleged egregious conduct might have impeded the deceased’s ability to pursue her claim, as well as the ability of her dependants to pursue the claim rising from her death under the Fatal Accidents Act, and therefore allowed the issue of punitive damages to proceed to trial.
A Decision of Justice C.P. Phillips of the Alberta Court of Queen’s Bench. In this case Mr. Matthews was killed in a motor vehicle accident when the vehicle he was driving struck a delivery truck which was stopped because it ran out of gas and partially obstructed the far left lane of a major roadway in the City of Calgary. Ms. Matthews and Mr. Matthews married in May 1995. Ms. Matthews was 30 years old when Mr. Mathews died in the collision on February 25, 2007. The Matthews’ two children were born in May 1997 and December 1999. Mr. Mathews had another son, from a prior relationship, and at the time of his death was paying $100.00 per month in child support
The Court commented that, “it has often been remarked, and is unquestionably true, that no award of monetary damages can fully compensate for the loss of a cherished family member. Through the Fatal Accidents Act, the Legislature has established the awards to be made in general damages for the loss of love and affection. A dependency claim, on the other hand, is purely pecuniary. It should account only for the actual loss of income to the surviving family. The most appropriate method for arriving at an accurate assessment is one that accounts for family income and the amount of that income the deceased would have consumed solely for his or her own benefit.”
In this case Ms. Matthews had been, for much of the marriage, the primary bread winner for the family. At the time of the accident, this young couple had recently invested in a home in Calgary and had little equity in it, was raising two children and contemplating a third. They did not have a budget for their household nor did Mr. Matthews have a private pension plan. At issue was how long Ms. Mathews would have continued working absent the accident. Evidence from Ms. Mathews was that she would have continued working, absent the accident, until Mr. Matthews earned $100,000.00 per year. The Court found however, that Ms. Matthews would have opted to continue to employ her considerable abilities, working in some capacity, though perhaps part-time. As a result the court applied a methodology for assessing the loss of dependency claim that is called a cross-dependency approach and thus the family income projection included Ms. Matthews projected income from part-time employment after January 1st, 2006.
Both the Plaintiff and the defendant hired an economist to project the future loss of dependency claim. The Plaintiff hired Dr. Atkins an Associate Professor in the Department of Economics at the University of Calgary with a doctorate in Applied Econometrics, which is a measurement of economic data and its relationship to day to day activities. The Defendants hired Mr. Darren Benning President of PETA Consultants Ltd. from Vancouver, BC. Mr. Benning has a Master’s degree in Economics and has appeared in the courts of British Columbia and Alberta numerous times for Defendants to give opinion evidence in respect to the valuation of economic losses.
The Court found Mr. Benning’s projections of Mr. Matthews’ and Ms. Matthews’ income to be reasonable and preferred Mr. Benning’s approach over that of Dr. Atkins.
The Court awarded Ms. Matthews $75,000.00 in bereavement damages and each of the three children $45,000.00 in bereavement damages. The Court then went on to award $755,660.00 for the claim for loss of dependency on Mr. Matthews future income and loss of dependency on Mr. Matthews’ future household services that he would have provided to Ms. Matthews and her two children. This figure factors in applying a divorce contingency and a re-marriage contingency based upon Statistics Canada figures. Thus, the total Judgment was $965,660.00, updated to 2017 for inflation the award is $1,072,074.00.
He had been married for over 10 years, they had one daughter and as well the plaintiff had legally adopted his wife’s son. The deceased’s wife was awarded $40,000 for grief and loss of the care, guidance, and companionship, (note for deaths in 2017 this award would be $82,000) and each of the children were awarded $25,000 ($49,000 in 2017) for grief and loss of care, guidance, and companionship of their father.
In addition, a large loss of dependency on the deceased’s income was awarded based upon the deceased’s income growing as he was promoted until retirement age of 62. The appropriate dependency rate for calculating the dependency claim was 78% when the deceased’s wife and two children were all in the home reducing to 74% when one of the children left home and then reducing to 72% when only the deceased’s spouse remained in the home. The court utilized a cross dependency approach which means the deceased’s wife’s income was taken into account in that she would have spent a portion of her income on the deceased. Negative contingency amounts were applied for unemployment, disability, mortality, divorce and re-marriage. Fringe benefits were added to the deceased’s income to be calculated at 6% with a productivity factor added in as well at 0.75%. The court directed the experts to re-calculate the loss of dependency amount based upon the foregoing assumptions. Annual housekeeping damages were awarded at $3,541 per year (updated to 2017 is $5,058) and then increased when the last child left home to $3,927 per year (updated to 2017 is $5,610).
Released on May 8th 2007 by Mr. Justice Slade
Dr. Johnson was an ophthalmologist earning $1,250,000 per year and was 63 years of age when he died in the accident; thus he had only 12 years left to work with a retirement age found by the judge of 75. The court made an award of $5,869,233.00 to the widow for a loss of financial support in this exceptionally high income earner case. Justice Slade also awarded a further $500,000 for the “loss of value of potential business enterprises” for a total award of financial compensation of $6,400,000, or updated for inflation to 2017 the award is $7,675,836, which is the second largest fatal accident award in Canadian history to 2017.
Joseph Palmquist was born in 1975 and was not quite 30 years old when he died. His wife Connie Palmquist was born in 1974. She was 31 when her husband died and 36 years old at the date of trial. The Palmquists married on July 31, 1999 and have three children: Michelle, born in 2000 and twins Joseph Palmquist Jr. and Megan Palmquist, born in 2002. Michelle was four years old when her father died. The twins were not yet three. Michelle was nine at the date of trial and the twins were seven.
Mr. Palmquist had a high school diploma but had not taken any post-secondary education. Mrs. Palmquist did not finish high school.
Joseph Palmquist had been employed as a sheet metal worker since 1999 with Almac Metal Industries Ltd., first as a labourer and then as a crew chief. His income tax returns showed the following income in the five years before his death: 2000 – $52,144; 2001 – $58,225 ; 2002 – $41,724 ; 2003 – $55,714 ; 2004 – $64,140. He had earned $9,367 in 2005 prior to his death on February 22. He worked long hours and would usually go to work between 6:00 and 7:00 am and return home between 6:00 and 7:00 in the evening. Often, he worked at least one day on the weekend and sometimes he would work all weekend.
Mrs. Palmquist had worked at various rather low level jobs such as a server and as a home cleaner for a company called Mini-Maid. However, she stopped working outside the home when she became pregnant with Michelle. When her husband died, she had not worked outside of the home since. She testified that she and Mr. Palmquist had agreed to her being home because they did not want anyone else raising their children.
Mrs. Palmquist’s evidence was that Mr. Palmquist was a good father who helped with both the children and the household tasks notwithstanding his busy work schedule. He and Mrs. Palmquist took turns cooking dinner and he helped to feed the children and to give them their baths. He did the lawn mowing and most of the snow shovelling at their home and cultivated a small garden. He also did the repair and maintenance work around the house and on their vehicle. He did his own laundry and helped with shopping.
Joseph Palmquist was an avid hunter and fisherman. He went hunting eight or nine weekends a year and once a year would take a week off to go hunting.
Mr. Palmquist earned $20 per hour at the time of his death. He was in the habit of working many hours of overtime for which he would earn time and a half. The men who have the same position as did Mr. Palmquist at Almac received a raise in September of 2008 and now earn $30 an hour. Had he lived, Mr. Palmquist would also now be earning $30 per hour.
Mr. Palmquist was in good over all health when he died. He did not smoke although he did drink alcohol, and was in the habit of having a couple of beers after work. Mrs. Palmquist was also in good health then, as she is now. She does smoke about one-half pack of cigarettes a day but does not drink alcohol. Neither used any recreational drugs and neither had any history of depression or other mental health issues.
While they had their differences and sometimes argued over money or Mr. Palmquist’s hunting and fishing trips, their marriage was basically sound. They had never formally separated although Mrs. Palmquist testified that she had asked Mr. Palmquist to leave for a day or two more than once after a disagreement. They had never consulted counsellors, lawyers or begun divorce proceedings.
Madam Justice Read directed the experts to re-calculate the loss of dependency based upon the assumptions she found that should be applied to the loss of dependency for the widow of Mr. Palmquist and the award was just over $1 million for the loss of dependency on income and housekeeping alone. Added to that would be the bereavement and out of pocket expenses for the total Judgment. In 2017 dollars the total Judgment would be $1,444,642.00
In this case the court was asked to determine whether the reference to “child” under section 8 of the Fatal Accidents Act of Alberta entitles step-children to receive bereavement damages. If not, the court was then asked to determine whether the current provision was unconstitutional on the basis that it unfairly discriminates between a biological child and a step-child, contrary to section 15 of the Canadian Charter of Rights and Freedoms.
The court found that in fatal accident cases s.8 does not include “step-children” in the class of recipients entitled to receive compensation under the Act and that failure to include step-children in the definition of “child” under the Act is not discriminatory under s. 15 of the Charter.
Quadriplegia is paralysis caused by injury that results in a partial or total loss of use of all four limbs and torso.
Decision heard January 20th, 2016, amended April 14th, 2016. The plaintiff, Jared Edwards, is a 36-year-old male, development mentally delayed as a result of a anoxic brain injury suffered shortly after his birth. Unfortunately, when Jared was attending the defendant’s six-week summer camp for the disabled he fell while entering a sailboat and suffered what the neurologist called an immediate quadriplegia with ascending recovery (legs before arms) of a variable degree. The neurologist states that Jared is far from his pre-accident neurological baseline and that he is totally and permanently disabled. He will require attendant assistance in all activities.
The action was commenced in April 2014 and October 2015 the parties agreed to settle this action for $2,750,000 inclusive of costs and taxes. Case went to trial on liability only.
A significant component of any quadriplegia case is the cost of future care which in Jared’s case was broken down as follows:
- Attendant Care (Private care costs from 7 AM to 11 PM, seven days a week at $26 an hour): $131,144/year
- Home Modifications: $173,658.85
- Transportation and Vehicle Accessibility: $84,895.70 initial cost, plus Annual Needs Cost of $19,346.28/year
- Second Wheelchair (partially funded by initial cost $3,524 plus annual costs of the government): $1,612.50 until 2023 and then $1,819.15 thereafter
- Height Adjustable Bed and Recline Chair: $13,180 initial cost. Annual Reserve: $2,218
- Bathroom Equipment Supplies: $7,540 initial cost. Annual Reserve: $1,337.40
- Feeding Equipment: $1,168 initial cost. Annual Reserve: $142.16
- Exercise and Treatment Equipment: $17,812 initial cost. Annual Reserve: $19,602
- Medication Costs (including Botox Injections): $8,250.91/year
- Health and Personal Care Supplies (including Incontinence Products): $2,716/year
- Physiotherapy (Year One to Four): $41,795/year. After Year Four $1,435/year
- Occupational Therapy (Year One to Four): $10,505/year. After Year Four $1,540/year
- Osteopath Treatment: $3,168/year. After Year One $1,584/year
- Speech Language Pathology Treatment: $900/year
- Rehabilitation Therapist: $20,020/year
- Social Work/Case Management (Year One and Two): $4,800/year. After Year Two: $1,800/year
- Leisure and Recreation Needs: $16,766/year
- Weekend or Evening Caregiver Respite: $13,520/year
Total Annual Costs: $222,114.25.
Total Initial/Other Costs: $362,046.55
As indicated above the settlement and present value of the case resulted in a settlement of $2,750,000.00. Case went to trial on liability only.
The 71-year-old female suffered catastrophic injuries in a slip and fall due to dangerous stair conditions which resulted in a serious fracture of a second cervical vertebrae causing quadriplegia. Her life expectancy was halved as a result of the unfortunate fall. General damages for pain and suffering and inconvenience and loss of amenities of life was set at $326,000.00 updated to 2017 is $364,059.00. Cost of future care was set at $1,000,000.00 with special damages at $828,000.00. The husband received $100,000.00 for loss of household services under the Family Law Act and $670,000.00 for special damages plus $85,000.00 for loss of care and companionship. The daughter received $30,000.00 under the Family Law Act and the other daughter and son received $48,000.00 each.
The plaintiff Robinson used crutches until May 5th, 2005 and following this he developed a mobility method using a wide stance and slow movement of his feet. Regarding general damages for pain and suffering the court referred to Andrews vs. Grand and Toy Alberta Ltd. the Supreme Court of Canada trilogy of 1978 which put a cap on damages for pain and suffering at the time in 1978 of $100,000 which in 2017 dollars is approximately $382,000 (note other heads of damages in the 1978 trilogy cases resulted in a total Judgment in 2017 dollars of just over $2,300,000 for each case). In the Robinson case in 2008 the cap was $309,000 on the basis that, unlike cases emanating from the United States, in Canada, the Supreme Court of Canada felt we should place an upper limit on damage awards for pain and suffering.
Thus, the Alberta court must follow the cap guidelines and we have the ridiculous low amount the Alberta court awarded the partial quadriplegia and “apparent permanence of the damage flowing therefrom” of general damages for pain and suffering of only $150,000. The Judgment included other smaller amounts for loss of earning capacity, loss of housekeeping and special damages, but because the victim was 51 years of age and working part time, those amounts were small.
Infant plaintiff suffered brain damage during his delivery. As a result of the injury the plaintiff became a quadriplegic and suffered from cerebral palsy. The infant plaintiff was dependent in all aspects of daily care including dressing and personal hygiene. He could assist somewhat with self feeding with assistive devices. The infant plaintiff’s condition was permanent and incurable and he would always have neurological deficits which would greatly impair his mobility, intellect and independence. He would be dependent on attendant care for the balance of his life. General Damages for pain and suffering were assessed at $293,780, updated for inflation to 2017 is $394,744.00. Also ordered was $3,220,603 for cost of future care, and $900,000 for future loss of income. For claims under the Family Law Act the judge ordered $65,000 each to plaintiff father and plaintiff mother, and $20,000 each to plaintiff brother and plaintiff sister.
The plaintiff, age 47, was rendered a quadriplegic as a result of a motor vehicle accident. She suffered a bi-lateral C6-7 fracture dislocation with complete spinal cord injury at C7. She required assistance with all activities of daily living, and suffered from physical pain and a depressed mood. She developed a pressure sore on her left buttock. The plaintiff would require catheter drainage for the rest of her life and was at ongoing risk of recurrent bladder infections and upper urinary tract infections. Overall, plaintiff’s injuries were catastrophic and she was permanently unemployable. The judge awarded general damages for pain and suffering in the amount of $294,980, updated for inflation to 2017 is $381,145.00. Damages for loss of future income for this 47 year old female plaintiff were set in the amount of $267,791.
This was a settlement so it is not reported in the case law books like the majority of the cases on this page. This case involved a young man who fell out of the second story of a barn while intoxicated. Liability was an issue. The facts are important in that the barn owner near Red Deer, Alberta approached this particular young man and his friends while they were drinking at a local bar and asked for help unloading his shipment of hay that was being delivered to his barn. The shipment of hay had to be unloaded at the second story. It was an important finding of fact at Questioning that the barn owner knew the young man was intoxicated, indeed he had enlisted his help at a local bar. The barn had an unsecured exit, in other words it was not properly locked and the man fell out landing on his neck and suffered a spinal cord injury at C-7 of the spine. This resulted in incomplete quadriplegic.
Liability issues involved of course included the fact that the victim was intoxicated, so there was potential contributory negligence for working while intoxicated. Contributory negligence serves to reduce the amount of a victim’s claim as the victim is not entirely innocent. So, for example, if a victim is found to be 40% at fault his or her damage claim for injuries in Calgary would be reduced by 40%. Of course at the same time in this particular case the barn owner knew the worker was intoxicated.
The bar where the young man was allegedly over served was also sued. This is called “commercial host liability” and it is imposed on bars when they over serve patrons, know they are getting drunk, do nothing to assist with their departure such as calling a taxi, and all the while making a profit on the sale of the liquor. Understandably, the courts have held bars to a certain standard given the business is making money and should be held accountable for the consequences of over serving alcohol and releasing drunk patrons onto public streets. As an aside, in Alberta, indeed in all of Canada, no court has yet held private households liable for over serving, partly because a private household (called social host liability) is not trained, or licensed, and is not serving alcohol as a business to make a profit. Nevertheless, if you are holding a private office Christmas party, for example, we still recommend you purchase social host liability insurance just in case.
Factoring in contributory negligence and all of the other above issues the matter was settled prior to trial for $1.2 million in damages. If not for contributory negligence issues this case would have been worth far more in personal injury damages for a young man with incomplete quadriplegia.
Paraplegia is paralysis caused by injury resulting in an impairment in motor or sensory function of the lower half (legs).
In this case, two male victims brought a claim against the defendant. The court assessed each of the plaintiffs claims. Both victims were male and 22 years of age.
The first plaintiff suffered a severe and catastrophic brain injury along with an upper spinal injury. This injury resulted in placing the victim in a halo because of the upper spine and neck injuries. The injuries resulted in loss of bladder and bowel control, taste, sense of hunger, sense of smell, and sense of temperature. The plaintiff required medication in order to engage in sexual intercourse. Unfortunately, the victim suffered upsetting problems with social, family and romantic relationships and his memory was impacted significantly and he has a significant loss of enjoyment of life.
The court awarded $310,000.00 for general damages for pain and suffering, inconvenience and loss of amenities of life updated to 2017 is $373,632.00 which is the maximum the court can award as a result of the Supreme Court of Canada decision in Andrews in 1978 capping general damages for pain and suffering. This victim was also awarded $8,646,900.00 in cost of future care. $15,100.00 past wage loss, future wage loss was set at $1,871,600.00. A management fee to manage the above mentioned amounts was set at $525,925.00. The mother of the victim was awarded $75,000.00 as was the father also awarded $75,000.00.
The second victim plaintiff (also male 22 years old) was a paraplegic, had rods inserted to brace his spine, resulting in loss of bowel and bladder control. He underwent experimental stem cell surgery. He made some progress with intensive rehabilitation programming. It was found by the court that it was unlikely he will work in an income generating career for this 22-year-old. Numerous changes of course had to be made to the physical layout of the residence which was accomplished through the victim engaging in intensive rehabilitation advancing from no mobility to control his lower body to being able to pull himself up to a crawl position.
The victim was awarded $310,000.00 for general damages for pain and suffering, updated to 2017 dollars is $373,632.00. The second victim also received a future wage loss of $2,800,320.00 and a past wage loss of $55,400.00. Special damages were determined at $74,813.78.
The largest award was for the cost of future care for this 22-year-old male which was set at $8,880,000.00. Housing costs and renovations were set at $374,800.00. Clerical Management fee to administer the foregoing amounts were set at $447,164.00. The mother of the victim received $75,000.00 and the father of the victim received $60,000.00 with the sister receiving $30,000.00 under the Family Law Act.
A mother of three children suffered fractures to her neck at C3 and C7 and T2 and T3 resulting in paraplegia. The collision occurred as she was driving down a hill on a narrow road that was full of ruts and covered with snow and ice, a school bus approached from the opposite direction and when our client attempted to slow she began to fish-tail and collided head on with the school bus. She was unable to work and without her income the family’s future was dire. The municipality was sued for improper maintenance of the road and the bus driver was sued for failing to steer to the right to avoid the collision. A settlement was achieved for $2.5 million dollars prior to trial, which gave the mother of three children peace of mind knowing that her future income needs and treatment needs were fulfilled.
The victim, a 15 year old student at the time of the accident, was a passenger on the motorcycle of the defendant. He suffered severe injuries to his spinal cord and brachial plexus, which caused him to become completely paralyzed below the nipple area of his chest. He was permanently confined to a wheelchair. He was left permanently without sensation or voluntary movement in his lower extremities and lacked voluntary control of bowel, bladder, and sexual function. He suffered spasticity in his lower extremities at times. This was a catastrophic case which justifies an award of non-pecuniary damages (for pain and suffering) at the rough upper limit fixed by the Supreme Court of Canada trilogy of cases. The court awarded damages for pain and suffering at $293,000, updated for inflation to 2017 is $393,427.00. As well the court awarded $520,000 for loss of future income.
The plaintiff, age 39, was very seriously injured in a fall from a ladder, he suffered a broken back with a burst fracture of the L1 vertebra with marked compression of the spinal cord, incomplete paraplegia, no motor function in the legs, a sensation level at L3, remarkably reduced perineal sensation and reduced anal ton. Surgery was required 3 months post accident, after which he needed catheterization every 4 to 6 hours, required the use of bulking agents and digital stimulation in order to defecate, had a reduced sexual function, suffered seriously impaired motor power and reduced sensation in the legs and was given an overall diagnosis of cauda equina syndrome. He required a prosthesis to correct a drop foot, and was able to walk only with the aid of 2 canes in a “spastic” gape. He later improved to the use of only 1 cane. 7 years post accident, he continued to have limitations of back movement, chronic back pain, sensory of motor deficits in both legs and required self catheterization to void. The judge ordered $130,000 for general damages for pain and suffering updated to 2017 is $167,974.00.
Self employed plaintiff, age 33, was riding on a snowmobile when he hit an icy snow bank, turned over and was crushed by the snowmobile. He sustained fractures to his spinal cord, and injuries to organs such as the bladder and intestine. Plaintiff was permanently confined to a wheelchair. He became sexually dysfunctional, which caused a major stress in his marriage. The plaintiff developed tendonitis in his left shoulder from continually hoisting himself in and out of his adapted motor vehicle. The plaintiff could only work part time in his landscaping business because of physical limitations and fatigue. The plaintiff’s confinement to a wheelchair deprived him of life’s pleasures and generated a dependency on others to which the plaintiff did not adapt at all. The court deemed the plaintiff 85%, not totally, handicapped since his upper body and faculties were still intact. Based on the 1978 Supreme Court of Canada trilogy, which set a ceiling on pain and suffering claims, this court assessed non-pecuniary damages for pain and suffering at $211,000 which corresponded to 85% of $248,000 in present day dollars. Damages for loss of income and future cost of care were awarded in addition to this amount.
Fractured or Broken Sternum
The sternum is the breast bone located in the centre of the chest. Injury occurs in 5-8% of people who experience significant blunt chest trauma in a motor vehicle collision when the still moving chest strikes a steering wheel, dashboard, seat belt or airbag. Depending on the injuries and different circumstances, the average settlement amount for fractured sternum might vary.
This is not a fractured sternum case but soft tissue injuries in and around the sternum including the neck, shoulders and back. The injuries were combined with depression, nightmares and post traumatic stress disorder along with chronic lower back pain. The court awarded $85,000.00 for general damages for pain and suffering which included an unspecified deduction for the plaintiff’s failure to mitigate or properly follow all of her doctor’s orders. The court also awarded $6,066.38 for out of pocket expenses. The court found a past loss of income, pre-tax, of $104,758.88. For the cost of future care the court awarded $22,400.00 for cognitive behaviour therapy and counselling, $22,500.00 for rehabilitation program, $1,600.00 for massage therapy, $750.00 for vocational counselling and an amount to be determined by agreement for medication, $106,922.95 for assistive devices and equipment for a total of $154,172.95 for cost of future care.
The court also awarded $106,935.00 for loss of future income earning capacity, $2,750.00 for loss of housekeeping capacity and $2,500.00 for an in-trust claim, for a total Judgment of $414,815.
The 52-year-old female owner/operator of a laundromat, plaintiff, suffered a fractured sternum, partial rotator cuff tear, soft-tissue injuries to her neck, depression, chronic pain, sleep interruption and anxiety. The court awarded $110,000 for general damages for pain and suffering, inconvenience, loss of amenities of life and loss of enjoyment of life in a Judgment dated August 31st, 2016.
In addition to the general damages for pain and suffering the court awarded $9,377 for past loss of income earning capacity, $29,750 for damages for future loss of income earning capacity, $15,675 damages for past loss of homemaking capacity and, $11,199 for future loss of homemaking capacity, and $6,100 for cost of future care and $2,142.66 in special damages.
The Trial Judge held that the motorist did sustain injury by aggravating past complaints of back and shoulder pain as well as suffering new injuries to his jaw, sternum and knee, but the subject accident was not the only cause of his back complaints although it did worsen his back complaints for some time. The Trial Judge held that the back pain should have resolved within two years. The Trial Judge held the motorist magnified the symptoms both physically and psychologically so that it could not be said incapable of recovery. The motorist victim did suffer from depression as a result of the accident near Red Deer but due to his work situation and his prior injuries, he was already susceptible to depression and thus the Trial Judge labeled him a “crumbling skull” victim in terms of psychological injuries.
As well, there is some possibility that the innocent victim motorist would have lost his full-time position even without the subject accident and so that had to be taken into consideration. Finally, the Plaintiff did not complete the recommended psychotherapy and was reliant on pain killers and thus continuing pain, depression and anxiety were treatable but did entitle nevertheless, as indicated above, the motorist to an award for $60,000.00 for general damages for pain and suffering. The total judgment granted to the Plaintiff and his personal injury lawyer then was $559,529.00 updated to 2017 dollars is $595,431.00. This amount was upheld by the Alberta Court of Appeal.
Very Severe Brain Injury
A very severe brain injury is defined as a brain injury resulting in a loss of consciousness of greater than 6 hours and a Glasgow Coma scale of 3-8. The result is often cognitive deficits, speech and language problems, sensory problems, perceptual, vision problems, hearing problems, smell, taste, seizures, physical changes and social-emotional changes.
S.(K.) (Litigation representative of) vs. Willox 2016 ABQB 42
The minor plaintiff suffered a severe neurological condition leading to developmental delays, blindness in one eye and severe autism spectrum disorder. General damages for pain and suffering were assessed at the upper end of the limit based upon the Supreme Court of Canada cap – which is the most one can receive in Canada for general damages for pain and suffering which is $371,000.00 updated to 2017 dollars.
Minor son was severely disabled and would not be able to work as an adult. He may or may not be able to live independently in the future. The minor son was very sensitive to external stimuli and would need assistance with aids at school. Great deal of the trial concerned the possibility that after the injury the minor son would have proceeded to post secondary education and thus the calculation of his future income loss would be higher based upon a post secondary education versus the insurance company arguing he only would have went to Trade School. Further disputes about shortened life expectancy due to the health issues. The life expectancy of course affects the resulting future loss of income and future treatment costs. The court found the minor son would need significant future care costs including assistants to help with needs and therapy for speech and communication. Parents could supervise care but professional workers were needed on an everyday basis to meet the minor sons needs.
A 45 year old male suffered a severe brain injury when his left eye was pierced by an arrow and the arrow lodged into his brain. He suffered from ongoing partial deafness in addition to his cognitive problems and mobility problems. General damages for pain and suffering were set at $225,000.00 updated to 2017 is $251,267.00. The court also awarded loss of future income of $1,500,000.00. The cost of future care is set at $1,087,342.00 which was reduced by 15% for contingencies. Note in this particular case the damage award was reduced by 50% due to contributory negligence of the victim.
In a case that revolved largely around the contributory negligence actions of the plaintiff for swinging on a lamp post, which lamp post then collapsed dropping the plaintiff two storeys onto concrete, the court awarded damages for a severe brain injury. The victim suffered a severe brain injury from impacting the concrete from a two storey fall. He was in hospital for 5 weeks before engaging in extensive rehabilitation. The unfortunate victim suffered impaired executive functioning which affected his pre-accident employment. He also had mood and anxiety problems which subsequently led to a major depression. Also, affecting his employment were cognitive deficits as a result of the severe brain injury.
Accepting evidence from experts of the percentage higher risk of developing Alzheimer’s disease as a result of the brain injury, the British Columbia Court awarded $250,000.00 in general damages for pain and suffering, inconvenience and loss of amenities of life. In this particular case, the award was then reduced by 65% due to contributory negligence. However, the value of the case is for general damages for pain and suffering (called non-pecuniary damages) for a severe brain injury awarded in 2016 in British Columbia.
Other heads of damages of course were awarded with respect to loss of income etc. but that is specific to the plaintiff and so the precedent value is really in the amount for general damages for pain and suffering.
Handel Law Firm acted for a 2.5 year old boy who suffered a brain injury of an undisclosed extent at the time given his young age in a side impact collision in which his aunt was driving the vehicle. Given the young age it was impossible for the neuro-psychologists for either side to determine the full extent of his brain deficits until he went to school and matured. Therefore we carried the case for many years until the young boy was in school in Red Deer and we could determine that he did indeed have detriments which would affect his educational attainments in the future and his work aspirations in the future as well.
Unfortunately there was only $1 million third party liability limits on the wrongdoer’s vehicle and so the claim was settled with the wrongdoer’s insurance company paying out the $1 million limits for the benefit of the young boy to be held in trust by the Public Trustee of Alberta until he turns 18. Funds are available for the benefit of the boy for care and needs from the Public Trustee payable to the mother until the boy turns 18.
This is another example of why people should carry more than $1 million third party liability insurance as claims often exceed $1 million and if you are the wrongdoer, you are personally liable for any claims over $1 million. See our previous blog post about third party liability limits and our recommendations under the web page blog.
Handel Law Firm settled a case involving a 15 year old young woman at the time who was in a serious roll-over accident involving her boyfriend and her brother who was killed in the roll-over. We took on the case despite the fact that the risk was very significant, and other law firms had refused to accept the case, in that it was unclear who the driver of the vehicle was. Our client Mary was tragically brain injured and could not remember who the driver was and her brother did not survive to tell the story. Our client’s boyfriend said that our client was the driver, so the initial evidence was only that our client was the driver.
In Alberta of course in a single vehicle accident if you are the driver you cannot make a claim, only the innocent victims or passengers can. Therefore we had to demonstrate our client was a passenger, in addition to proving her injuries. We sued several parties including the County for the poor road conditions right where the accident occurred. There were an array of senior insurance accident claims lawyers from litigation firms in Edmonton and Calgary, 7 counsel in all opposing our case. We took on this case out of what we perceived to be an ethical duty to pursue it, to determine the truth, and the answer was certainly not clear. We invested huge disbursements in the case and were ultimately successful in achieving a $2 million dollar settlement, updated for inflation to 2017 is $2,146,212.00, securing our clients future treatment needs, and income needs, and sparing the family further emotional trauma from having to proceed to trial. The matter was settled 3 days prior to a scheduled 3.5 week trial.
Red Deer. 28 year-old plaintiff suffered multiple injuries when he was struck by a police car while riding his bicycle. The injury victim suffered a closed-head injury with frontal lobe brain injury, facial fractures and scarring, a deep laceration to his forehead, a nasal fracture requiring prosthesis, right ankle fracture, right toe fractures, a cervical spine fracture (without paralysis), and soft-tissue injuries. He had permanent facial disfigurement as a result of the injury to his face. He was left with chronic pain and post-traumatic stress disorder, nightmares, flashbacks and depression.
The assessment of the case was complicated by the fact that this man had a very difficult life prior to this unfortunate accident with numerous pre-existing problems including back pain, headaches, depression, consumption of alcohol and marijuana. Therefore, the court found as a result of the plaintiff’s difficult upbringing that he would likely have not worked much even absent the accident. Before reducing by 40 percent for the plaintiff’s contributory negligence, the justice awarded the 28-year-old plaintiff general damages in the amount of $250,000, plus $112,500 for loss of future earning capacity, and $4,843,850 for cost of future care, updated to 2017 for inflation the award is $5,540,414.00. Handel Law Firm – Red Deer case comment. This case underlines the difficulty when an innocent victim has pre-existing problems. The court reduced the plaintiff’s claim by a significant amount for these pre-existing problems and the plaintiff’s personal injury lawyer should have kept the focus on the actual injuries caused by the accident rather than allowing the defendant insurance company’s lawyers to focus on the pre-existing issues.
The Plaintiff was assaulted by a group of 10 to 15 people. The Plaintiff sustained brain injury and facial deformity. The Plaintiff suffered ongoing psychological and emotional problems and continues to suffer pain from facial fractures. The physical, emotional, cognitive and psychological injuries were permanent. Medical doctors told the Plaintiff not to undertake jobs that would be too physically demanding or would require tasks involving memory or extended mental concentration. The Plaintiff was receiving Canada Pension Plan disability benefits and he was deemed not to be employable. The Plaintiff’s injuries prevented him from participating in sports. The Plaintiff’s lawyer took this serious personal injury case to trial and at trial the Plaintiff was awarded total damages of $1.084 million against the defendant’s Alberta insurance company. The award was broken down as follows:
general damages for pain and suffering $135,000,
punitive damages $35,000,
present value of past loss of earnings $134,824,
present value of future loss of earning capacity $325,262,
future cost of care $453,914. Total Judgment was $914,170, updated for inflation to 2017 dollars is $981,001.
Plaintiff, age 16, suffered severe injuries in a motor vehicle accident. He was struck in the frontal lobe area of the head, leaving him a hemiplegic with diminished mental capacity. The plaintiff’s other injuries included pulmonary contusions, pneumothorax, fractured spleen and fracture of the right clavicle. The plaintiff’s head injury left him mentally and physically totally disabled. He required 24 hour, 7 day supervision for the rest of his life. The plaintiff did not comprehend his disabilities. He would never be employed. The plaintiff’s learning capabilities were severely limited and he experienced behavioral problems including violent mood swings. The plaintiff could walk short distances but would always be reliant on a wheelchair. He will never drive a car. The judge awarded general damages for pain and suffering in the amount of $235,000. The court also awarded $766,334 for future loss of earnings and $2,300,361 for cost of future care, for a total Judgment of $3,301,695, updated for inflation to 2017 dollars is $4,438,012.
The plaintiff, age 23, suffered a traumatic brain injury, severe depression, stunted psychological growth, and permanent facial scarring arising from a serious motor vehicle accident. The jury awarded him a total of $3,031,177 in damages, including $2,000,000 in non-pecuniary (pain and suffering) damages. The defendants applied to reduce the amount of the non-pecuniary award to the ceiling limit set by the Supreme Court of Canada in the 1978 trilogy of cases. The application was allowed and the judge reduced the jury’s award for non-pecuniary damages only to $294,700, updated to 2017 is $396,124. The amounts awarded by the jury on other heads of damages were not disturbed.
Plaintiff, a 30 year old computer programmer, was struck by a motor vehicle while riding his bicycle. He sustained a severe brain injury with 3 weeks of post-traumatic amnesia. In addition to the brain injury, plaintiff suffered a closed mid shaft fracture of the right humerus requiring surgery, a closed fracture of the right acromion, a fractured third right rib, a punctured right lung requiring the insertion of a chest tube, and deep laceration to the back of his head, lacerations to the right elbow and right distal forearm, lacerations to the right shoulder, and abrasions to his entire back and the back of his right knee. The deficits the plaintiff developed as a result of the brain injury were extensive and permanent. His level of intellectual function had been reduced from a high level to a low average level. His ability to acquire new information was negatively affected, with increased fatigue, there is a resulting loss of word finding ability and difficulty in speech. Plaintiff’s brain injury resulted in a 12% impairment of the whole person. 4 of the 8 major lobes of plaintiff’s brain were compromised. The plaintiff had made a very remarkable recovery from his injuries that had allowed him to teach a college level computer programming course. Plaintiff had an intense commitment, to his own recovery. Justice Feehan assessed plaintiff’s non-pecuniary damages for pain and suffering at $150,000, updated to 2017 is $201,624. The court also awarded $5,000 for cost of future care and $2,470,800 for future loss of income, updated to 2017 is $3,327,876.00.
Plaintiff was a passenger in a vehicle involved in a high-speed collision with an RCMP vehicle. Plaintiff was thrown from vehicle and suffered severe orthopaedic and a severe brain injury. Injuries had a great impact on the plaintiff’s self-esteem and enjoyment of life. Plaintiff suffered from prior substance abuse problems. The court had to take into account that the plaintiff was not entitled to compensation to the extent that her pre-existing problems would have affected her life in any event. The court awarding $200,000 in general damages. Diminished earning capacity of $108,000, cost of care $482,950, loss of housekeeping capacity $2,000, interest claim for care by family members $291,410.80, a management fee of $60,000, grossed up for income tax on cost of care $48,185 for a total Judgment of $1,198,037.11, plus prejudgment interest, updated for inflation to 2017 dollars is $1,436,865.00.
Spinal Compression Fractures
A spinal compression fracture often occurs in people who have pre-existing osteoporosis. However, it can also occur in very severe collisions with young healthy people. A spinal compression fracture is usually defined as a vertebral bone in the spine that has decreased by at least 15-20% in height due to the fracture. The compression fracture can occur anywhere in the vertebrae but they tend to occur in motor vehicle collisions most commonly in the thoracic spine (upper back). Compression fractures rarely occur above the T-7 level of the spine. However, they can occur regularly in the lumbar segments or the lower back.
In a Judgment on September 9th, 2016 Justice J.R. Dillon awarded $200,000 for general damages for pain and suffering, inconvenience and loss of amenities of life for a disc protrusion at L5-S1 requiring a discectomy surgery with a second surgery causing leak of spinal fluid into the victim’s back, ultimately resulting in a disc fusion at L5-S1. The victim also suffered major depressive disorder, post-traumatic stress disorder, injury to the facial area including intense pain in the eye.
The 26-year-old self-employed victim was contracted as a first aid attendant on the night of April 20th, 2008 when the motor-vehicle collision occurred with a drunk driver driving a gray F-350 vehicle which slammed into the plaintiff/victim at 160 kilometres per hour. In addition to the $200,000 for general damages for pain and suffering the court awarded $375,000 for past wage loss, $1.4 million for future loss of earning capacity, $43,918.17 for cost of future care and $50,376.15 for special damages for a total Judgment of $2,069,294.32. Regarding the large future loss of earning capacity award, the court found that the victim had established that many occupations for which she was previously suited before the collision to work in are now permanently closed to her. The court also found the victim also established that there’s a possibility of her returning to part-time work only in a job requiring light or limited strength and most likely paying minimum wage.
The court concluded after reviewing all of the evidence, and what the court characterized as the position of the defendant insurance company to be, “so speculative as to be nonsense”, arrived at the conclusion that the plaintiff before the collision likely would have made about $80,000 per year in her first-aid business and would have worked until age 65. Now she will only maintain part-time employment at a rate of about $25,000 per year into the future. Assessing this annual loss and taking into consideration both positive and negative contingencies, as well as the discount factor without expert assistance before the court, an award of $1.4 million for loss of future earning capacity was awarded.
In this case a male warehouse worker suffered an L4 – 5 discogenic injury and in aggravation of a previously asymptomatic congenital dysplastic L3 – 4 facet joint. The Plaintiff will remain compromised in his ability to perform heavy physical work due to persistent back pain.
The defendant insurance company said that the Plaintiff was a malingerer, that he lacked ambition and was lazy and that he was exaggerating his symptoms in that it was just a soft tissue injury. This common argument by defendant insurance company’s was not accepted by the court, the court awarded general damages for pain and suffering in the amount of $85,000.00, the court also awarded past loss of income for the Plaintiff’s work at Cool Air after some argument between experts in the classic battle of economic experts with Mr. Benning economist for the Plaintiff. There was a dispute about economic assumptions as well and there was a concern with the court not accepting the Plaintiffs reason for not working for 2 years, from 2011 – 2013, attributable to the accident, so it was discounted by one half. In the end the court awarded approximately $69,000.00 for past loss of income.
Future loss of income was again the subject of argument by the experts and the approach taken by the economist Mr. Benning was not accepted by the court, because the court did not accept that the Plaintiff would go on to become a Refrigeration and Air Conditioning Mechanic. Nevertheless the court found that due to the added restrictions to the Plaintiff’s capabilities that there was a “real and substantial possibility of loss of income in the future, whether from his current job or other future employment”. The court compensated the Plaintiff with a loss of a capital asset in the amount of $200,000.00.
Alberta Courts could certainly learn from this case as Alberta Courts are far too conservative when it comes to awarding loss of future earning capacity or loss of a capital asset for individuals who use their body (i.e.. labourers to earn an income) and that body has been injured in a motor vehicle crash of bolts and steel versus muscle tendon and sinew. The Alberta Courts, and in particular the courts in Calgary, are far too conservative and far too concerned with insurance company premiums and award significantly less compared to British Columbia Courts.
The court then awarded $17,325.00 for additional rehabilitation another $5,000.00 for future costs for a total award of $358,925.49, updated for inflation to 2017 is $375,574.23.
One would be very hard pressed to obtain this type of award for an L4 – 5 disk injury in a Calgary Court of Queen’s Bench trial. Calgary Court of Queen’s Bench judges are noted for being very conservative i.e.. stingy with awards compared to Edmonton Justices and compared to other Justices in other cities in Alberta such as Red Deer. It is time for Calgary Justices to remember the principle that was enunciated by Chief Justice Dickson when the Supreme Court of Canada placed the $100,000.00 cap on the most tragic injuries – which is the cap was based upon full compensation for all other heads of damages. In this case this would include future loss of earning capacity, therefore for Calgary Justices to lack courage and error on the side of the defendant wrongdoer rather than the innocent plaintiff and thus provide extremely low awards and make unsupported assumptions that the Plaintiff will be just fine in the future rather than awarding full damages is contrary to the Supreme Court of Canada’s clear direction in Andrews vs. Grand & Toy that given the cap on general damages in pain and suffering Plaintiffs must be fully compensated for other heads of damages.
The plaintiff, an 80-year-old male, was involved in a motor vehicle/electric scooter accident on September 14, 2000 wherein he suffered pain to his head, shoulder, hip, knee, ankle, back & groin, an elbow abrasion, and a fractured spine. At the time of judgment (September 22, 2003) the plaintiff continued to suffer ongoing symptomatology. The plaintiff was awarded $65,000.00 for general damages. Updated to 2017 is $87,371.00.
The plaintiff, a 72-year-old male at the time of trial, was involved in a motor vehicle accident in October 1995 wherein he sustained injuries to his head, chest, neck and shoulder, a fractured neck requiring surgery, headaches and depression. At the time of the trial the plaintiff’s head and neck injuries had completely resolved. The plaintiff was awarded $70,000.00 for general damages. Updated to 2017 is $94,091.00.
The plaintiff, a 32-year-old male, was involved in a boating accident on September 2, 1995 wherein he sustained a compression fracture of his spine resulting in back pain. At the time of the trial the plaintiff’s symptoms were ongoing. The plaintiff was awarded $75,000.00 for general damages, updated to 2017 is $107,133.00.
The plaintiff, a 10-year-old female, was involved in a motor vehicle accident on July 2, 1990 wherein she sustained back and leg pain, a compression fracture of L-5, and disc degeneration. At the time of trial, ongoing symptoms were expected to progress and pain to intensify until the required spinal fusion could take place. The plaintiff was awarded $85,000.00 for general damages, updated to 2017 is $118,506.00.
The female plaintiff was involved in a single vehicle accident on October 3, 1998 wherein she suffered back pain after car accident, psychological difficulties, compression fractures to her spine, soft tissue injury to her neck, back and arm, depression and chronic pain. At the time of the trial the plaintiff continued to suffer from ongoing back problems and depression. The plaintiff was awarded $45,000.00 due to an intervening event which exacerbated her condition, updated to 2017 is $62,739.00.
Plaintiff suffered at least eight fractures throughout his spine as well as a minor head injury, broken foot, severe injury to his knee, injury to his rotator cuff, and abrasions about his body. Part of the plaintiff’s scalp required several skin graft surgeries while other abrasions resulted in scaring. Plaintiff subsequently saw a psychiatrist for episodes of depression. Plaintiff was awarded $160,000 in general damages. Past loss of income prior to trial of $59,000. The plaintiff was also awarded $284,000 for loss of future income and was awarded the amount of $60,000 for the cost of future care including treatment for arthritis for a Total Judgment of $565,327.92 plus interest, updated for inflation to 2017 is $678,026.59, an example of another low award by Alberta courts given the severe injuries.
A male plaintiff, a Journeyman Electrician, suffered multiple fractures of the upper thoracic vertebra T1 to T5 including compression fractures of the T3 and T4 vertebra of his spine. He also had two fractured ribs and the muscles to his shoulder blades were torn. After more than eight years he continued to have ongoing pain and was assessed a permanent disability between sixteen percent and thirty three percent. The court awarded $125,000 in general damages for pain and suffering, $400,400 for past loss of wages, $252,700 for loss of future earning capacity, $17,500 for past loss of housekeeping capacity, and $50,000 for a future loss of housekeeping capacity, for a total Judgment of $735,698.55, updated to 2017 dollars is $846,562.22. All of the foregoing amounts were reduced by twenty five percent for the contributory negligence of the plaintiff in contributing to his own accident. Date of the decision is December 16, 2008, a decision of Justice E.A. Marshall.
Chronic pain is defined as any pain lasting beyond 6 months. The seminal decision by the Supreme Court of Canada in 2003 of Nova Scotia Workers Compensation Board vs. Martin  2 S.C.R. 504. The court recognized that chronic pain disability is real and disabling regardless of the name medical professionals may put on the condition.
The 40-year-old female plaintiff who was a teacher in a private school sustained injuries in a motor vehicle collision. At the time of the collision she was working full-time, 5 days a week, earning $76,000-$80,000.00 a year. It was a finding of fact by the court after disputed expert evidence that the victim suffered from chronic myofascial pain syndrome and post traumatic thoracic outlet syndrome. She also had paresthesia in her left arm as a result of the thoracic outlet syndrome which ranged from mild to moderate. Overall condition since the collision has improved at least 50%. The numbness is not disabling. The plaintiff has some physical limitations however the court found she was able to carry out normal day to day activities including teaching with additional work support and prep time, thus she is able to perform her teaching duties including leading or assisting after-school extracurricular activities. For general damages for pain and suffering the court awarded $80,000.00. For loss of income earning capacity, the plaintiff was seeking $300,000-$400,000.00. The defendant insurance company argued that she would be able to continue working 5 days a week just as she had before the accident and thus the award should be zero. The court found that the victim was less able overall and less capable of earning income and that she has been rendered less capable from earning income from all types of employment and assessed damages somewhat arbitrarily for loss of earning capacity at $50,000.00. For cost of future care the plaintiff was seeking $230,000-$331,000.00. The total award for cost of future care was $128,795.00. The court also awarded $6,750.88 for special damages incurred to the date of trial for a total Judgment of $265,545.88.
A motor vehicle collision occurred October 7th, 2010. Trial was in late 2015. The 35-year-old male industrial painter suffered pain in his neck and back which resulted in chronic pain syndrome, and also resulted in depression which typically follows chronic pain. The court only awarded $70,000 for general damages for pain and suffering, but it should be noted the impact was slight as the accident only pushed the plaintiff’s vehicle forward two feet. The plaintiff was awarded all of the following heads of damages:
- General damages $70,000
- Past wage loss $25,840
- Loss of future earning capacity $75,000
- Cost of future care $7,500
- Special damages $14,014.05
Total Judgment $192,354.05
Updated for inflation the award in 2017 would be $196,534.00. It should be noted that this case is possibly as low as it is because the court found the plaintiff failed to mitigate his damages by not attending a gym and improving his physical condition to reduce his symptoms which was recommended by several doctors.
Motor vehicle accident of August 14, 2008 in which the plaintiff claims chronic pain. At the time of trial the female singer was 42 years of age, she suffered bruising and deformity under the breasts, displaced breast implant, reconstructive surgery, soft tissue injury and pain in her neck, jaw, upper back, shoulders, breasts and chest, functional thoracic outlet syndrome in shoulder, headaches and TMJ.
One of the main issues was the loss of future earning capacity claim for her lost singing career; the plaintiff claimed $1,535,000.00 for the future and $375,000.00 for the past. The court ultimately awarded loss of future earning capacity of $175,000.00 and loss past earning capacity of $40,000.00, general damages for pain and suffering $120,000.00, future cost of care $10,000.00, special damages of $7,911.37 for a total judgment of $352,911.37, updated to 2017 is $369,280.00.
This case was unique in that the plaintiff argued she would have “made it” as a Bette Midler tribute artist in Reno and on to Las Vegas had the accident not occurred, earning $50,000.00 to $100,000.00 per year. Evidence was heard about her past singing career from various witnesses and quasi experts in the singing field all of which was unimpressive to the court, resulting in the above noted, significantly less, award for loss of future earning capacity compared to what the plaintiff was seeking.
In a motor vehicle/motorcycle accident on August 15, 2009 the 46 year old male plaintiff suffered loss of consciousness, injuries to his shoulders, ribs, lower back, chest wall, tennis elbow, pain in his hip and ankle, erectile dysfunction, driving anxiety and chronic pain. The plaintiff was a custom designer and manufacturer of motorcycles. The plaintiff claimed $350,000.00 for past loss of earning capacity and $1.3 million for loss of future earning capacity.
The court awarded past loss of earning capacity of $95,000.00 subject to “netting” for income tax, $325,000.00 for loss of future earning capacity (fundamentally less than what the plaintiff was seeking) costs of future care of $30,630.00 which involved future shoulder surgery and $105,000.00 for general damages for pain and suffering, for a total Judgment of $555,630.00 updated to 2017 is $581,402.00.
In a trial heard before the Honourable Verhoeven the plaintiff a 35 year old registered nurse was a very unfortunate woman having suffered injuries in four motor vehicle accidents occurring from 2007-2012, the plaintiff argued that the injuries caused her chronic soft tissue pain to several areas of her body and chronic headaches and forced her to curtail her working hours from full-time to part-time.
The defendant insurance company argued that the plaintiff sustained mild to moderate soft tissue injuries only which were exacerbated by the subsequent 3 accidents, the defendants contend that the plaintiff’s evidence is not credible or reliable in general. In fact, incredibly the plaintiff has been involved in a total of 10 motor vehicle accidents in her life time and this trial relates to 4 out of the 5 most recent accidents. The trial judge heard from a number of expert witnesses including a chiropractor Dr. Kleim but the court found with respect to Dr. Kleim that, although his evidence was useful in terms of the treatment history and the plaintiffs complaints from time to time, the court placed no weight on his formal medical opinions for a number of reasons, including the fact he is not a medical doctor and therefore lacks appropriate qualifications to provide medical opinions in the full sense. In the courts view he lacked appropriate objectivity, he over stated matters such as referring to accidents as “severe” when they were minor; he described most of the plaintiff’s conditions as “severe” and the judge found “some of his evidence had an unrealistic error or precision, such as his comment that if she does not receive at least one chiropractic treatment every two weeks she has a greater than 95% of her condition worsening, with potential for total disability”. The court did not accept the chiropractor’s opinion that she would benefit from regular chiropractic treatment, indeed the court found in view of the overwhelming evidence that the plaintiff would benefit from exercise and remaining as active as possible, the court found it is more likely that over reliance on passive treatments, such as chiropractic has hindered the plaintiff’s recovery.
In the end the court awarded general damages for pain and suffering of $60,000.00, loss of earning $70,400.00, loss of future earning capacity $225,000.00, cost of future care of $14,400.00, loss of homemaking capacity $10,000.00, special damages of $6,000.00, for a total trial judgment of $385,800.00 plus costs in favor of the plaintiff, updated to 2017 is $403,695.00.
An unfortunate 25 year old male plaintiff suffered four accidents and the first two accidents were the subject of this trial and the second two accidents were not involved in this trial so deduction would have to be made for the consequences of the two accidents not before the court at this trial. In the first accident the plaintiff was struck while riding his electric scooter, he suffered injuries to his neck, back, shoulder, hand, knee, and thumb. In the second accident, five months later the plaintiff suffered injuries resulting in soft tissue pain of a generalized nature, some of his injuries resolved at the time of trail however his left shoulder was more susceptible to further injury due to impingement. His left shoulder and neck continued to bother him intermittently and would have a functional impact on his ability to engage in heavy labour and in addition the plaintiff was left with significant ongoing chronic lower back pain which resulted from an injury to his lumbar spine.
Not surprisingly given the number of accidents the plaintiff suffered from depression and post-traumatic stress and had difficulty sleeping and had flashbacks to the accidents. Unfortunately he was a young person at the time and had not settled on a career path making an assessment of the future loss of earning capacity difficult for the trial judge. Even with ongoing treatment the prognosis for recovery was “guarded”. The trial judge awarded $70,000.00 for general damages for pain and suffering, inconvenience and loss of amenities of life, and loss of enjoyment of life, plus $150,000.00 for loss of future earning capacity, plus $5,000.00 for costs of future care, for a total Judgment of $225,000.00, updated to 2017 for inflation results in an award of $239,438.00.
This is not an Alberta case but it can be used as a guideline as to what a Fort McMurray Justice might do with the case, although the amount awarded for loss of future earning capacity (over $1 million) is certainly higher than Alberta Justices typically award, but perhaps Alberta Justices could learn from this case how debilitating these chronic pain cases really are to the individual. Chronic pain cases are notoriously difficult to prove as pain is a subjective experience in the absence of objective evidence such as a fracture or other laboratory result or nerve conduction studies or electromyography. The defendant auto-insurance companies always argue that the plaintiff is either malingering or suffering from a somatoform disorder or psychological disorder.
In this case a 27-year-old pharmaceutical representative suffered injuries when she was struck from behind. She suffered pain in her neck and back. She, as a result of the injuries, took early maternity leave. She had a pregnancy and could not return to full-time work after her first child. Prior to the accident she was very active. She had extensive treatments and consultations with 27 doctors which resulted in multiple diagnoses. At the time of trial, the 27-year-old plaintiff continued to suffer from chronic pain and permanent effects 14 years after the accident. The expert medical doctor indicated a negligible possibility of future improvement. Plaintiff was unable to remain standing or sitting for any extended period of time at the time of trial. She was diagnosed as suffering from adjustment disorder associated with her depressed mood. She was a highly educated individual. Her family life was greatly affected by her condition. The trial justice awarded only $75,000 in general damages for pain and suffering, which is an incredibly low amount given the permanent diagnosis. However, the justice did award $1,044,412 for loss of future earning capacity, $10,000 for cost of future care and $29,000 for loss of future housekeeping capacity for a total Judgment of $1,158,412, updated for inflation to 2017 is $1,235,249.00.
The 27 year old female Plaintiff was seat belted and stopped at a stop sign in a 60km zone. The Defendant’s vehicle struck the Plaintiff from behind and did not show visible signs of slowing down. The Plaintiff suffered the following injuries: moderate to severe whiplash injury (pain from her neck to her waist), injury to jaw with immediate headaches, chronic pain, fibromyalgia, and TMJ. Other issues followed: post-traumatic stress disorder, depression, tender points and general anxiety disorder. The Defendants admitted liability but argued that there was a lack of mitigation on the part of the Plaintiff.
The Court held that there was no lack of mitigation or failure of the Plaintiff to follow medical advice. The Plaintiff followed up on the treatment specifically prescribed. The Plaintiff s actions in the context were reasonable. The damages that the Plaintiff is entitled to should not be reduced. Her failure to seek treatments at the earliest possible time does not amount to a lack of mitigation considering her poor financial circumstances. The Court held that the Plaintiff is entitled to use impecuniosity as an excuse for any lack of mitigation that depends on finances. Impecuniosity relieves the Plaintiff from her duty to pursue those forms of treatment that she simply could not afford. There was therefore no actionable lack of mitigation.
The following damages were awarded by the court: $115,000 for non-pecuniary; $155,000 for loss of past income; $100,000 for loss of income by future earning capacity; $105,000 for future cost of care; $43,300 for past housekeeping; $25,000 for future housekeeping; $15,500 for special damages. The sub-total for pecuniary damages came to $443,800. For both pecuniary and non-pecuniary damages, the total cost came to $558,800. With interest, the overall total came to $621,600, updated to 2017 dollars is $691,503. [J.C.Q.B.A. J.D. Rooke]
Police were called to possible break and enter in progress suspected to involve a violent offender police arrived and discovered no break and enter, plaintiff just happened to be passing by along with a known associate who was a violent offender. One officer spoke to the plaintiff, an interaction between the plaintiff and another officer became violent, the officers left the injured plaintiff alone on the street; the plaintiffs testicle was ruptured and he required surgery. Plaintiff had chronic pain requiring constant medication. Plaintiffs ability to work was restricted by pain and drowsiness caused by medication. Plaintiff and crown brought action against police officer and the police chief for damages and cost of plaintiffs medical care respectively. Action allowed. Plaintiffs current job as truck driver caused him pain, and with his medication causing drowsiness, his competitiveness was significantly reduced. Plaintiffs injury struck at the center of what he had to offer employer, which was his physical labour. Everyday music causes plaintiff pain, and his ability to have a normal sexual relationship was compromised. Plaintiff was 22 when he sustained injury and it will impact virtually all of his adult life, and impact virtually all facets of his life. There is no prognosis for improvement. Despite these horrendous findings, a conservative Alberta Court of Queen’s Bench only awarded the plaintiff $120,000 in general damages for pain and suffering. The court also awarded the plaintiff $14,016 for past loss of income, $35,000 for future loss of earning capacity, $35,000 for future treatment costs and $5,000 in punitive damages for the police officers conduct for a total Judgment of $209,016.00, updated to 2017 is $232,744.
Affirmed by the Alberta Court of Appeal, 2011 Carswell Alta 12 ABCA
Plaintiff was 49 years of age at the relevant time she was a passenger in a motor vehicle and commenced an action for damages and the trial judge awarded $90,000 for general damages for pain and suffering, updated for inflation to 2017 is $103,405. The defendant appealed to the Alberta Court of Appeal. Alberta Court of Appeal found injuries consisted of moderate to severe whiplash injury and exacerbation of pre-existing psychiatric condition. Plaintiff’s condition manifested into full somatoform conversion disorder in September 2001, 6 years post collision. Plaintiff experienced varying degrees of pain during that period, which was attributable to the accident. Plaintiff was entitled to damages recognizing her pain from date of collision till September 2001 (6 years post collision). Although plaintiff was found to have suffered whiplash injury resultant of accident, she was not found to have suffered fibromyalgia or chronic pain syndrome having regard to all of the evidence. The plaintiffs symptoms that lead to this erroneous diagnosis were based on almost purely subjective responses of the plaintiff. After it would be expected that her physical injuries would have resolved, aggravation of her pre-existing psychological condition caused the plaintiff to somatize her symptoms. Without this disorder the plaintiffs injuries from the collision would have resolved after a year or two, at most. Even with aggravation of her pre-existing psychological condition, the plaintiffs injuries would have resolved by September 21st if not for onset of somatoform conversion disorder caused by the plaintiffs pre-existing psychiatric condition which formerly manifested in 2000 to 2001. There was aggravation of plaintiffs psychiatric condition and the accident probably caused the condition to become full blown sooner than would have occurred without the trauma.
This section outlines loss of income either through a mathematical calculation of loss of wages projected into the future based upon impairment, or a lump sum arbitrary award for “loss of earning capacity” which the court resorts to when a mathematical calculation is not a satisfactory way of making the calculation. Read the cases below for this important distinction, however, the predictability of which way the court will go is very difficult.
The plaintiff was injured when she was rear-ended by the defendant’s vehicle. At the time of the accident the plaintiff was working full time as a special education teacher. In the accident she suffered TMJ pain, chronic pain and fatigue, mild traumatic brain injury and right knee problems.
When the plaintiff victim returned to work she was very tired at work and could not do any of the physical aspects of her job for the rest of the term. She then had some maternity leave and returned part time and then took a second maternity leave and then brought action for damages. The plaintiff was awarded $125,000 for loss of earning capacity (updated to 2017 dollars is $134,411), not a defined future income stream loss as the court said it was not established that the victim would be unable to work full time in the future. Rather this was an appropriate case to award a loss of earning capacity as a result of the victim clearly being rendered less capable of earning income as a result of her injuries suffered. She would continue to suffer some fatigue and pain from time to time in the future and the court found that this would impact her future loss of income going forward.
The court did not award a defined or mathematical calculation of a future loss of income based upon not working so many hours per week for so many years into the future.
It is unfortunate the court did not proceed with a defined future loss of income stream as a calculation would undoubtedly have far exceeded $125,000, as even a small loss per week over a long-term future for a middle-aged woman is a large loss.
Unfortunately, the Alberta Court of Queen’s Bench continues to shy away from awarding full compensation to victims of motor vehicle claims and accepts the argument of defendant auto insurance companies’ lawyers that a lump-sum future loss of income will adequately compensate the victim.
This ignores the Supreme Court of Canada trilogy from 1978 in Andrews vs. Grand & Toy which capped damages for pain and suffering, and in the process said it is only doing this on the assumption that the victim would receive full compensation for other heads of damages.
The Alberta Court of Queen’s Bench continuing to give the benefit of the doubt on future losses to the wrongdoer and his or her auto insurance company while at the same time being forced to apply the cap on pain and suffering as per the Supreme Court of Canada direction from 1978, results in routine under compensation of victims of accidents in Alberta to the benefit of multinational, for-profit auto insurance companies.
At the time of the accident the plaintiff was working full-time as a special education teacher, she returned to work but was extremely tired and did not do the physical aspects of her job, she then took a maternity leave and then returned to school part-time as she felt she could not deal with full-time job duties. The plaintiff’s claim asked for damages for loss of future income. Strangely the Court of Queen’s Bench only awarded $125,000.00 for loss of earning capacity. This is odd given the court made a finding that the plaintiff “might work full-time sometime in the future” and that the plaintiff had been rendered less capable of earning income as a result of injuries suffered. When the court has made a finding that the plaintiff has been rendered less capable of earning income, to then only award $125,000.00 is to trivialize the loss of income of the plaintiff in the opinion of Handel Law Firm. The plaintiff was awarded a total of $346,734.91, updated to 2017 is $350,595.
In this Alberta case, presided over by Madame Justice Romaine, there was an issue as to whether or not the court should award loss of future income on a mathematical basis or a lump-sum loss of earning capacity claim as urged by the defendant auto insurance company.
In this case the 32-year-old plaintiff was in a motorcycle collision in which he suffered injuries to his left knee, right shoulder, neck, left wrist and jaw, which he alleged affected his vocational, recreational and housekeeping abilities. At the time of trial the plaintiff was no longer working as a driller and had begun working at a funeral home.
The court concluded that where a plaintiff’s loss of earning capacity, “can be mathematically calculated by the usual method in order to compensate him fully for the value of his lost asset,” that is the proper approach to take. Ordering a lump-sum loss of earning capacity on the other hand is appropriate where the plaintiff at the time of trial or at settlement is back working at his pre-accident job and there is some concern that in the future the plaintiff may not be able to work full time at that job. In those circumstances it is appropriate for a court to take that contingency, assuming it is not mere speculation, into consideration and award a lump-sum award for future loss of earning capacity.
But in this present case clearly the plaintiff was unable to continue at his pre-accident position and therefore, there was economic expert evidence of the mathematical difference between his pre-accident job and his current employment as an embalmer at a funeral home which has a lower income. The difference between these two wages was awarded to the plaintiff for the loss of income claim. In conclusion the court awarded general damages of $75,000. For the loss of income, the court directed the experts to recalculate the amount of the difference between his job as a driller and his current job at a funeral home and crematorium with the assumption that the plaintiff will retire at age 65 and a 3% unemployment contingency. Taking into consideration Alberta Health services which are free, the future cost of care was set at $6,200; special damages at $4,402.66; plus pre-judgment interest on the sums awarded for general damages, past loss of income and special damages.
In this case Justice B. M. Greyell, in a decision of April 4, 2014, reviewed the law on loss of earning capacity commencing at paragraph 128 of the decision where the court stated, quoting a previous decision of the B.C Court of Appeal in Perren vs. Lalari, 2010 BCCA 140 (CanLII), that a Plaintiff must always prove that there is a real and substantial possibility of a future event leading to an income loss. If the Plaintiff discharges that burden of proof, then depending upon the facts of the case, the Plaintiff may prove the quantification of that loss of earning capacity, either on an earning approach, or a capital asset approach. The earnings approach will be more useful when the loss is more easily measurable, and the capital asset approach is more useful when the loss is not as easily measurable.
Note that when proving future losses the burden of proof is not on a balance of probabilities, it is a lower burden of proof of simple probability. The phrase “real and substantial possibility” sometimes misleads judges about the burden of proof on future events as it is only simple probability. In Handel Law Firm’s opinion the phrase “real and substantial possibility” appears to convey a higher burden of proof than actually exists for future events in civil cases. See Athey vs. Leonati, 1996 CanLII 183(SCC) where the court reiterated the standard of proof to be applied when evaluating hypothetical events that may affect an award as simple probability, not the balance of probabilities. The court went on to state that possibilities and probabilities, chances, opportunities, and risks must all be considered, so long as they are a real and substantial possibility and not mere speculation. So in Handel Law Firm’s view as long as the future events are not mere speculation, but they were opportunities that are now lost and risks that the Plaintiff will now have then the Plaintiff should be compensated for it. In this particular case a court awarded a quarter of a million dollars for loss of income earning capacity for a 49 year old Plaintiff who experienced headaches, pain in neck, shoulder and lower back.
The Alberta Court of Appeal in the City of Calgary v. Elizabeth Costello and Maryann Dickhoff, 1997 A.J. No. 888, Par. 127, recognized that compensation may be awarded for the loss of an opportunity to gain a work benefit or to avoid a work detriment, even if that opportunity is quantified at something less than 51%. The Alberta Court of Appeal goes on to comment that the burden of proof for this future event is different than the standard burden of proof in proving past events. One need not prove the loss of earning capacity claim on a balance of probabilities, something less is acceptable.
The Alberta Court of Appeal in Lowe v. Larue, 2000 A.J. No. 55 also commented on this head of damages called loss of earning capacity, “the authorities cited support the principle that where a future loss of earning capacity has been established as at least a reasonable possibility and not mere speculation, the loss of a chance or an opportunity to earn a certain level of income in the future may be taken into account in calculating the loss of future income, a loss of which may otherwise be difficult or impossible to assess” (page 9, par. 51). Although in the Lowe case on the facts, because there was a finding of fact by the Trial Judge that the Plaintiff would not suffer a future income loss attributable to the injury, it therefore followed logically that the court could not then go on to make an award for a loss of earning capacity. However the Court of Appeal reiterated the principle applicable that when some future loss for the Plaintiff was reasonably possible then there is a difficult problem of quantification which may be resolved by application of an award of a lump sum for loss of earning capacity.
In addition to the Alberta Court of Appeal, the British Columbia Court of Appeal on February 11, 1999 had the opportunity in the case of Parypa v. Wickware, 1999 B.C.J. 270 to comment on the loss of earning capacity claim. With respect to the loss of earning capacity the court stated that it is “loss of earning capacity as a capital asset that requires compensation”. As well the court had the following to say: “Because it is impairment that is being redressed even a plaintiff who is apparently going to be able to earn as much as he could have earned if not injured or who, with retraining, on the balance of probabilities will be able to do so, is entitled to some compensation for the impairment. He is entitled to it because for the rest of his life some occupations will be closed to him and it is impossible to say that over his working life the impairment will not harm his income earning capacity”.
The Court of Appeal went on to state that some of the considerations to be taken into account in assessing the value of a lost asset include:
- Whether the plaintiff was less capable overall;
- Whether a plaintiff was less marketable;
- Whether the plaintiff had lost the ability to take advantage of all job opportunities which might have been available had he not been injured;
- Whether the plaintiff was less valuable to himself as a wage earner.
Alberta Court of Appeal
On February 9, 2003, the Respondent Warpal Minhas, then 50 years old, was injured in a motor vehicle accident which occurred on Highway 2 north of Calgary. A car driven by Kimberley Hayden and owned by Brian Parczen crossed the centre median and collided with the car driven by Mr. Minhas. Liability was conceded by the Appellants and the trial concerned only quantum of damages.
Mr. Minhas was found to have suffered a number of injuries because of the accident, notably a fractured sternum, a TMJ injury, an injury to his right knee, and aggravation of back and neck pain from a previous accident. He was also found to have suffered emotional and psychological injury – depression and a fear of driving particularly on the highway.
Just weeks before the accident, Mr. Minhas had started a new full-time job with a commercial cleaning company, Rose Building Maintenance Ltd., and a new part-time job as a driving instructor with Royal Driving School. His injuries caused him to have to leave both positions.
At trial, nine years post-accident, he remained off work.
The only issue on appeal is the trial judge’s calculation of the Respondent’s past and future earning loss. $222,012.13 ($331,166 including prejudgment interest), was awarded to compensate the Respondent for past lost income in respect to his position with Rose and $176,363, in respect to future lost income, again in respect to his position with Rose.
The trial judge awarded no amount for the lost income claim from Mr. Minhas’ part-time position at Royal Driving School, concluding that Mr. Minhas had not proven that he would have continued to work at Royal but for the accident. There is no appeal from this portion of the decision.
The experts who testified to Mr. Minhas’ psychological injuries disagreed about the extent of his accident-related injuries. The evidence was that Mr. Minhas had pre-existing psychological problems. The neuro-psychologist and psychologists called by Mr. Minhas were generally of the view that he would not be able to return to work. Dr. Keegan, a neuro-psychologist relied upon by the defendants, concluded that Mr. Minhas would have some ongoing psychological problems and should get treatment. He was of the view that Mr. Minhas was exaggerating his symptoms and was not credible. However, Dr. Keegan did not testify as to Mr Minhas’ employability.
The trial judge noted that Mr. Minhas was vulnerable to depression and that the experts he called relied on Mr. Minhas’ impugned self-reporting. He concluded that the accident caused as aggravation of pain and that, together with the loss of his “dream job” at Rose, triggered his depression.
The trial judge did not make a factual finding respecting if and when Mr. Minhas’ psychological injuries would render him capable of returning to employment. Instead he concluded that Mr. Minhas’ work history showed he had no success in obtaining comparable employment other than at Rose and impliedly determined Mr. Minhas would be unlikely to work again unless at Rose..
From his reasons it is clear that the trial judge accepted that the position at Rose was Mr. Minhas’ “dream job” and concluded that, were it not for the accident, he would have continued to work there until his retirement. The calculation of past loss of income is based upon the evidence that Mr. Minhas would have earned $378,425 in 2003 and thereafter, $385,200 per year, subject to certain calculations to take into account inflation, productivity increases and expectations respecting wage growth as well as the value of fringe benefits. He concluded Mr. Minhas would have retired at age 65. The trial judge dealt with the possibility that the disabilities Mr. Minhas suffered from pre-accident would have rendered him incapable of continuing his job at Rose by reducing by 10% the pre-trial and post-judgment loss of income award. He dealt with the possibility that Mr. Minhas would have lost his job at Rose for reasons other than the accident by a further reduction of 25%. Finally, he reduced both the pre- and post-judgment loss of income capacity award by a further 15% to reflect Mr. Minhas’ utter failure to mitigate.
The Respondent argues that the reduction of 15% properly assesses the possibility that he will find another such golden opportunity as the Rose position and therefore should not be disturbed. However, in doing so, he misconceives what the Appellants are required to compensate him for. As Dickson, J. said in the seminal case of Andrews v. Grand & Toy( Alta) Ltd. ,1978 CanLII 1 (SCC), 1978 2 S.C.R. 229 at 251 – “it is not loss of earnings but, rather, loss of earning capacity of which compensation must be made.” While the Rose position was Mr. Minhas’ “golden opportunity” and was lost because of the accident, the Appellants must compensate Mr. Minhas for his lost capacity to work, not for his lost job at Rose.
In order to do so a judge would normally consider the likely duration of the plaintiff’s working life, both theoretically, assuming the accident had not occurred and in fact, now that he has been injured. Here, however, there was no specific evidence about when Mr. Minhas could return to work, notwithstanding his psychological injuries. The trial judge accepted Dr. Keegan’s opinion that Mr. Minhas exaggerated his symptoms and found him to be an unreliable witness, concluding that he had tried to portray himself as more disabled than he actually was. However, the evidence before him did not clearly establish if or when the Respondent could return to work.
The trial judge would have been in the best position to make this finding of fact and did not do so. Given the paucity of evidence, we cannot say this was an error. While many trial judges would have assessed damages for loss of income by comparing what Mr. Minhas would have earned had the accident not occurred with the most probable outlook given his injuries, the adjustment downward by fixed percentage amounts is an acceptable alternative in this case. Although a reduction of only 15% to account for Mr. Minhas’ failure to mitigate is low, given the standard of review, we will not disturb it.
While there might have been a different reasonable way to allow for the plaintiff’s losses and to calculate damages accordingly, assessment for loss of income capacity is an area where more than one method of remedying the loss could be proper. The test for reversing a trial judgment is not whether some alternative disposition would have been reasonable, still less whether we ourselves would have adopted one had we heard the trial. The test is whether the one adopted was unreasonable by such a clear margin that an appeal court which saw none of the witnesses should intervene. We cannot say that the method chosen by the trial judge applied a wrong principle of law or that the result was patently unreasonable and wholly erroneous. The appeal is dismissed. Appeal heard on September 5, 2013.
Plaintiff, a twenty one year old warehouseman/salesman, experiencing onset of pain in his right sacroiliac joint two to three weeks after his involvement in forceful rear-end collision. Plaintiff still experiencing pain off and on at trial five and a half years later, and court expecting his residual injury to be permanent – Court awarding $50,000.00 for non-pecuniary damages (updated to 2017 is $71,568), $20,000.00 for past wage loss, $40,000.00 for impaired earning capacity (updated to 2017 is $57,254), the award for impaired earning capacity recognizing that the plaintiff’s disability might have only a minimal effect in the future with appropriate therapy, but also recognizing that plaintiff had been rendered somewhat restricted in his occupational options. Finally, $5,300.00 for future care costs was awarded.
Elevator repair man with a patella femoral syndrome returned to work completely normal duties at the time of trial and therefore, no ongoing wage loss. Nevertheless, the court awarded $40,000.00 for loss of earning capacity (updated to 2017 for inflation is $61,413) on the basis that there will likely be some interruption of working capacity in the future as a result of the knee injury, and recognizing that some occupations are now forever closed to the plaintiff as a result of the knee injury.
The Plaintiff suffered a whiplash type injury that affected the cervical thoracic spine and the trapezius area. The court awarded $38,000.00 in general damages for pain and suffering. Regarding loss of earning capacity the Plaintiff had a spotty work history and continued to work at various part-time jobs after the accident as she did before the accident. The court made it a finding of fact that it is difficult to say she had lost her earning capacity because she was able to function in her present work environment. As well there was not a functional capacity evaluation to pinpoint any loss of capacity with precision. The court also found that her capacity for future earnings was “impacted minimally”. Nevertheless the court awarded $20,000.00 for loss of future earning capacity (updated to 2017 is $28,627). The court also awarded $8,000.00 for past and future loss of housekeeping capacity as when she did housework she was tender in certain muscle areas the next day. The court found the evidence “somewhat thin” with respect to this claim.
Plaintiff had a prior rotator cuff injury which had affected her ability to work as a hotel chambermaid. The court found that the Plaintiff had suffered a moderate to severe neck soft tissue injury and a moderately severe strain of her upper and lower back in the accident. She also had soft tissue injuries to her knees, thighs and a TMJ injury. She was off work for four months after the accident. She had returned to work but had suffered continuing pain. Her symptoms continued to the time of trial four years after the accident. She was expected to recover within another year from the date of trial. She was awarded $50,000.00 in non-pecuniary damages (updated to 2017 for inflation is $69,851) and past loss of wages $6,520.00. The injury to her neck and spine was expected to continue to affect her ability to carry and lift. She was awarded $65,000.00 in loss of future earning capacity (updated to 2017 is $90,807).
MVA July 27, 1994. Plaintiff was an active athlete and had been employed with Canadian Airlines as a male clerk. The Plaintiff suffered soft tissue injuries in the accident but had a prior history of fibromyalgia together with degenerative arthritis in both knees. Nevertheless, the court awarded $200,000.00 for loss of future earning capacity (updated to 2017 is $295,856) plus $10,000.00 for cost of retraining.
51 year old Plaintiff suffered injuries in three minor motor vehicle accidents within 18 months. She missed a little time from work after the first two accidents but after the third accident was off for a year and a half and returned to find that she could manage only with great difficulty and quit after one year. Diagnosis was myofascial pain syndrome injury. A court awarded $50,000.00 for loss of opportunity or capacity to earn income in the future (updated to 2017 is $76,766).
A 12 year old Plaintiff at the time involved in a motor vehicle accident in 1992. The Plaintiff suffered injuries to her low back and suffered from pain and discomfort in playing her violin in which she was very accomplished. The Plaintiff was awarded $110,000.00 for two years of loss of opportunity in relation to her ability to pursue her violin playing, updated to 2017 is $172,089.
The Plaintiff was a talented athlete who wanted to pursue a professional baseball career. He had played two successful seasons in the farm system of a major baseball team and was offered a contract to try for a position with an “A” level team. In the accident the Plaintiff suffered injury to his left knee. Arthroscopic examination of the Plaintiff’s knee approximately a year after the accident determined that the Plaintiff would not be able to return to his former baseball career. The Plaintiff was awarded $175,000.00 as compensation for loss of opportunity to pursue a career as a professional baseball player (updated to 2017 is $280,003). The Court of Appeal held that it was appropriate to calculate damages for loss of opportunity as a lump sum and affirmed the award.
MTBI Mild Traumatic Brain Injury
A Mild Traumatic Brain Injury, also known as a concussion, is the most common type of traumatic brain injury and it is typically defined as a head injury with a temporary loss of brain function. MRI and CAT scans are often normal. The person nevertheless has cognitive problems such as headaches, difficulty thinking, memory problems, attention deficits, mood swings and frustrations. These injuries are commonly overlooked especially if there are other more serious injuries. Approximately 15% of people with a mild traumatic brain injury have symptoms that last one year or more. That of course means 85% of people heal from mild traumatic brain injury within one year. Therefore, if you have a brain injury lasting more than one year you should probably be looking in the moderate to severe categories.
The victim suffered a head injury which was classified as a mild traumatic brain injury (concussion), soft tissue injuries which included pain in the neck and back. The mild traumatic brain injury resulted in symptoms of headaches, anxiety, cognitive problems, combined with memory difficulties. The court awarded $80,000.00 for general damages for pain and suffering.
The plaintiff sustained injuries in a motorcycle accident when she was rear ended while stopped at a red light. The plaintiff sustained a mild traumatic brain injury which resulted in cognitive deficits, vertigo, anxiety, depression and headaches. Her other injuries ended up causing chronic pain. She argued that the mild traumatic brain injury resulted in a permanent partial disability that impaired her ability to earn income as a costume designer for theatre, film and television. The plaintiff argued she should have general damages for pain and suffering of $225,000.00. The defendant insurance company argued a fair award for damages for pain and suffering was $80,000.00 to $90,000.00. Court awarded $150,000.00 for general damages, for pain and suffering, however the court reduced the award by 10% to reflect the plaintiffs pre-existing symptomatic condition.
The court also awarded $29,838.00 for past loss of opportunity to earn income up to the date of trial. For the future loss of earning capacity claim the court noted the burden of proof is less than the balance of probabilities, it is simple probability – less “proof” required because no one knows the future. The plaintiff argued that future loss of earning capacity should be approximately $845,000.00. The defendant argued the future loss of earning capacity should be $56,000 to $113,000.00. The court assessed the damages for future loss of earning capacity in the amount of $225,000.00. The court also awarded $28,800.00 for cost of future care, $8,068.95 for special damages for out of pocket expenses she had incurred. The total Judgment was $459,868.95, updated to 2017 dollars is $464,989.
Betty Wong was 80 years of age on June 24th, 2012 when she was rear-ended by the defendant. The impact was sufficient to write off both vehicles and cause the airbags to deploy in the defendant’s vehicle. Furthermore, the collision was sufficient to cause the plaintiff, Mrs. Wong, to bite down on a dental bridge so hard that the pressure broke the tooth that supported the bridge. All of the medical experts who testified at trial agreed that the plaintiff, Mrs. Wong, suffered a mild traumatic brain injury that triggered an acute onset of dementia-related symptoms. Unfortunately for Mrs. Wong the symptoms have continued and worsened since September 2012.
The defendants argued that the plaintiff had preexisting Alzheimer’s disease and that regardless of the head injury she would have developed this condition. This opinion was disputed by the plaintiff’s expert. The court found that the plaintiff had a form of latent Alzheimer’s disease or dementia and that it was asymptomatic prior to the accident.
It was noted that one of the experts testified that all persons who’ve reached the age of 80 are likely to have plaque in their brain that may have the potential to develop symptoms that resemble dementia or Alzheimer’s disease.
Thus this case fits squarely in the “thin skull” term as defined by the Supreme Court of Canada and not a “crumbling skull” and thus the defendant is 100% responsible for all of the injuries as you take your victim as you find her and in this case she was asymptomatic and the motor-vehicle accident triggered the injuries.
The plaintiff was awarded $185,000 for general damages for pain and suffering for the mild traumatic brain injury which developed the onset of dementia or Alzheimer’s. As well, she received special damages for out-of-pocket expenses and nursing in the amount of $3,913.56 and dental costs for total out-of-pocket special damages of $10,377.
With respect to cost of future care there was actuary evidence that she will survive for another nine years, thus the cost of future care in this scenario, including home care and therapies, residential care, and medications ranges from $882,991 to $1,229,981. The plaintiff asked for the average of these care estimates or $1,000,000.
There was some issue about given Mrs. Wong’s elderly age that she would have been moving to homecare in any event. At the end of the day the court awarded one year of homecare in the amount of $68,292, three years of residential care for Mrs. Wong and her husband and a further three years of residential care for Mrs. Wong alone which was $681,090, plus seven years of medication expenses for Mrs. Wong $5,285, for a total of $754,667 for cost of future care.
Mrs. Wong also made a claim for interference with homemaking capacity of $8,120 for past and future loss of housekeeping function.
In summary the court awarded:
- General Damages: $180,000
- Special Damages: $10,377
Cost of Future Care
- One Year in Home Care: $68,292
- Residential Care: $681,090
- Medications: $5,285
- Past and Future Loss of Housekeeping: $8,120
- In Trust Claim: $46,800
- Management Fee: $5,000
Total Judgment: $1,004,964, updated to 2017 dollars is $1,284,094
The plaintiff, Ms. Sutherland, from Rocky Mountain House, Alberta, suffered a mild traumatic brain injury, physical injuries to her neck and lower back, head, tongue and jaw as well as post concussion symptoms, symptoms of post traumatic stress disorder (PTSD) depression and post traumatic seizure disorder.
She was rear-ended on a highway at 100km/h while she was stopped to make a left hand turn. The accident occurred in 2006, and it went to a four week trial. The plaintiff sought general damages for pain and suffering of $195,000.00. The defendant insurance company said damages for pain and suffering were worth $90,000.00. The court awarded $135,000.00 for general damages for pain and suffering, updated to 2017 is $141,549.
The court also awarded a past and future loss of income claim and loss of opportunity to take a better job during the period in which she was severely injured. She was awarded a loss of income of $7,929.00 and her expected earnings in the new position from 2008 to the end of 2012 (when the court felt she could have taken that job even absent the accident) would be $256,678.00, but from that amount would have be to deducted income from other sources that the plaintiff would have earned to arrive at the final loss of opportunity damages. The court also awarded $40,000.00 for loss of capacity/competitive advantage after reviewing the previous authorities on loss of housekeeping capacity claims, and awarded for loss of housekeeping capacity past and future $25,000.00.
The court only awarded $2,500.00 for future cost of care. Finally the plaintiff’s husband, Mr. Sutherland, claimed loss of consortium, which is a claim that hinges on the evidence that as a result of the plaintiff’s collision related injuries the husband has been deprived of her “society and comfort”. There is often evidence of interference with sexual relations, but also may include evidence of other tort related conflict in the marriage that causes the claimant harm or distress. In this case the court found the evidence on the interference with sexual relations vague and frankly trivial. There was some evidence of stress and increase responsibilities on the husband, in the end the court only awarded the husband $7,500.00 for loss of consortium.
Handel Law Firm Viewpoint: this is typical of Alberta courts to undervalue the significance an injury has on the victim’s spouse or loved one. Sure the evidence on sexual relations may have been vague, that is because no one likes discussing the details of their sex life in an open court; because evidence is vague does not mean the loss is trivial. Alberta courts continue to under compensate innocent victims to the benefit of foreign owned multi-national private for-profit auto insurance companies operating in Alberta; forgetting the direction from the Supreme Court of Canada in the trilogy cases which capped general damages for pain and suffering FOR THE MOST SEVERE INJURIES in today’s dollars (April, 2017) at $394,455 (FOR A QUADRIPLEGIC!), ON THE CONDITION THAT THE PLAINTIFF WILL BE FULLY COMPENSATED IN ALL OTHER HEADS OF DAMAGES. In other words, the Alberta Court of Queen’s Bench should error on the side of over compensating innocent victims for other heads of damages because general damages for pain and suffering have been severely curtailed by the Supreme Court of Canada.
32 year old plaintiff suffered a “mild” traumatic brain injury. It is our law firm’s view that there is no such thing as a mild traumatic brain injury as any injury to the brain is very serious. However this phrase is used in the medical community to differentiate that type of injury from a moderate brain injury and a severe brain injury. In this case the plaintiff had ongoing cognitive difficulties. He also suffered neck and back injuries and psychological injuries. Loss of past income and loss of future income as the plaintiff continued off work.
The court awarded $175,000.00 for pain and suffering, $238,500.00 for past loss of income, $525,000.00 for loss of future earning capacity, $10,750.00 for cost of future care, and $16,577.00 for out of pocket expenses, for a total Judgment of $1,010,750, updated to 2017 dollars is $1,059,785.00.
There really should not be a term “mild traumatic brain injury” as no brain injury is mild; any type of brain injury is serious business. Nevertheless, it is a term routinely used and in this particular case, which decision was rendered March 31, 2014, the plaintiff victim suffered a mild traumatic brain injury as a result of a bang to the head resulting in stitches to the head and pain in the neck, shoulders, hip and back. The 27 year old female university student from Edmonton also suffered “lazy” foot which caused her to trip and stumble, which understandably lead to irritability, fatigue and depression. Finally she had pain in her mid-back and upper-back. The court awarded her, in British Columbia, $175,000.00 for general damages for pain and suffering, which is an award that would be difficult to duplicate in Edmonton, Alberta for this type of injury.
Unfortunately, as is often the case, this personal injury case descended into a battle of experts; in this case two neuropsychologists, who were both thorough and steadfast in their opinions. Dr. Allison was of the opinion that the plaintiff had ongoing cognitive and related difficulties which were the effects of a mild traumatic brain injury. Dr. Wilkinson on the other hand felt that the victim’s current cognitive difficulties were attributable to excessive anxiety, hypervigilance about her physical condition and then speculated about audio-vestibular problems resulting in noise intolerance. The court found this ladder conclusion to be “very speculative” noting that no other physician had recommended a specialist such as a eyes, ears, nose, throat specialist to investigate her alleged noise intolerance. The court preferred Dr. Allison’s views over that of the defendant’s doctor.
The court found a loss of income of 23.75 months when multiplied by the victims average earnings of $6,000.00 resulted in a total loss of income of $142,500.00.
The court also went on to assess that the victim lost the opportunity to pursue a higher income at the oil sands in Fort McMurray earning an income of $120,000.00 a year. The court applied, of course, some contingencies for the potential that she would not have pursued that absent the accident, but nevertheless awarded $96,000.00 for this potential loss.
The court then determined the loss of future earning capacity given that the plaintiff victim’s problems were ongoing, and again the defendant insurance company attempted to reject the suggestion that the victim would have worked in Fort McMurray in the Alberta oil patch and instead wanted to rely on her old earnings with her bachelor’s degree in chemistry with a lower income. The court found that had she proceeded with the oil patch in Fort McMurray she would have earned an addition $525,000.00 over her lifetime and awarded her this amount. Again it would be difficult to convince a Justice of the Court of Queen’s Bench in Edmonton to award these figures, but certainly the Alberta Justices must take note of the approach of B.C. Justices in insuring victims receive full compensation and deciding any doubt in favor of the victim and also remembering that proof of future events is not on a balance of probabilities, but on a lower standard of simple probability. This important fact is often seemingly forgotten by Justices of the Alberta Court of Queen’s Bench in their decisions.
The victim in this case was also awarded special damages of $21,078.62 and costs of future care of $10,750.00. Total judgment was for $965,827.10, updated to 2017 is $1,012,682 for a “mild” traumatic brain injury with ongoing cognitive problems which the court found were permanent. So again, in our view, one should not classify this as “mild” traumatic brain injury, but that is the terminology used in the case.
The Plaintiff, a 59-year-old hospital administrator, suffered injuries which included a post concussion syndrome or mild traumatic brain injury with cognitive and emotional difficulties that continued at some degree at the time of trial. At the time of trial, she had not recovered her pre-accident level of cognitive functioning. She had chronic pain that impacted her ability to function at home. In a finding that would be unlikely for a Red Deer Court of Queen’s Bench Justice (as this is a British Columbia case which tends to be more generous}, the Court found that the hospital administrator would likely have progressive deterioration and therefore awarded $150,000 for loss of future earning capacity for a mild traumatic brain injury. The Court also awarded general damages for pain and suffering, inconvenience and the loss of amenities of life of $100,000, plus $41,833 for cost of future care for a total Judgment of $291,833, updated for inflation to 2017 is $311,190.
With respect to the courts quantification of general damages for Mild Traumatic Brain Injuries, we refer you to the following cases:
A fourteen year old female suffered a brief loss of consciousness and a mild right parietal contusion, as well she suffered mild hearing loss and required hearing aids. The plaintiff was in the hospital for two days. These injuries resulted in a permanent hearing impairment. The court awarded the plaintiff $30,000.00 in general damages, which, updated to 2017 would be $46,060.00.
Plaintiff was injured in a head-on collision. Immediately after the accident, the plaintiff was unconscious. He hit his head and suffered a laceration, but by the time the ambulance arrived was up and about. He spent twelve hours under observation in the ED. He alleged he had suffered a head injury that prevented him from working. His CT Scan was negative. He complained of trouble concentrating, violent headaches, occasional ringing in his ears. A neurologist described the symptoms as typical for a concussion. The plaintiff suffered amnesia for less than an hour. The plaintiff’s personal physician said there was no significant disability from the accident. A neuropsychologist indicated the results indicated problems from alcoholism rather than a head injury. The court concluded that the plaintiff had suffered a concussion, the symptoms of which resolved within a year of the accident. The court awarded the plaintiff $35,000.00 in non-pecuniary damages, which, updated to 2017 would be $51,775.
The court was satisfied on a balance of probabilities that the plaintiff did suffer a closed head injury in the accident, but that it was not nearly of the magnitude that the plaintiff would lead the court to believe. The court was of the opinion that the mild closed head injury suffered by the plaintiff in the accident led to increased feelings of depression and anxiety, some mild cognitive deficits that should not prevent the plaintiff from returning to his former occupation, and some personality changes, but not to the extent that the plaintiff claimed. These problems should have cleared up within three years of the date of the accident, at most. The court awarded to the plaintiff $35,000.00 in general damages, which, updated to 2017 would be $58,159.00.
The plaintiff, who was a sandblaster and painter, had his upper portion of his body hurled forward by the force of the impact, causing his head to strike the mirror mounted on the windshield before he was bounced backwards into the seat. He complained of immediate “buzzing” in his head and of a tingling sensation in his fingers. Plaintiff suffered severe soft tissue whiplash to his back and neck. He suffered damage to his spine which led to vertebral lipping. He was diagnosed as suffering a slight concussion. The plaintiff suffered headaches over the three years following the accident. The court awarded $40,000.00 in general damages, which, updated to 2017 would be $62,578.
The plaintiff, who was employed as a car salesman, suffered head, back and neck injuries. Two years after the accident, he was diagnosed with having sustained serious psychological injuries as a result of the accident, including intellectual impairment, post-traumatic stress disorder, memory problems and depression. The plaintiff was unable to work for three months following the accident. The court awarded $50,000.00 to the plaintiff in general damages, which, updated to 2017 would be $78,220.
A fifty two year old male plaintiff fell thirty feet in a ski chairlift accident, and suffered numerous physical injuries: multiple fractures to his ribs, bruising to his back and buttock, a fractured right forearm, a nerve injury to the left forearm, lumbar and cervical soft tissue strains, four chipped and two fractured teeth. A local doctor said he has no loss of consciousness and only a minor head wound, and was not confused or disorientated at the accident site, yet he had chipped and fractured teeth, usually a good indication of head strike. The court concluded that the plaintiff had suffered a mild traumatic brain injury in the accident. Since the accident, the plaintiff had experienced difficulties in memory, organization and anger. On impact, the plaintiff had sustained a momentary loss of consciousness and periods afterward of altered awareness. He had suffered from post-traumatic amnesia. The court awarded $125,000.00 in non-pecuniary damages, which, updated to 2017 would be $184,912.00.
Fractured or Broken Ankle
Three bones make up the ankle joint. There is the tibia, which is the shin bone, the fibula, which is the smaller bone of the lower leg, and the talus, a small bone that sits between the heel bone and the tibia and fibula. Fractured or broken ankle means that one of the three bones of the ankle joint is fractured or broken. Note that often there is severe ligament damage in addition to the fracture.
A female fell off a deck and fractured her ankle which required surgery. The lady had ongoing pain in her ankle and a minor injury in her back. It was a finding by the court based upon expert medical evidence that the victim had a 10 to 15% risk of post-traumatic arthritis. General damages of $30,000.00 was awarded (updated to 2017 is $33,502), plus $10,000.00 for loss of income.
A 31 year old male suffered a fractured ankle. The fractured ankle was not diagnosed at first and so the misdiagnosis caused psychiatric illness including anxiety and depressive emotional states. The court awarded $2,500.00 for the misdiagnosis and $150,000.00 for the psychological injury including the fractured ankle, updated to 2017 is $170,304.
The female in her mid 40’s suffered a serious ankle injury while cross country skiing. The female victim was a former elite athlete and her sporting activities were fundamentally changed after the accident which was evident by the fact that she could not walk for more than 15 minutes without exacerbating the pain in her ankle. The court awarded $90,000.00 for general damages for pain and suffering (updated to 2017 is $100,411), plus $20,170.00 for special damages for out of pocket expenses.
The 22-year-old plaintiff suffered a fractured tibia and fibula which was treated by open reduction and internal fixation. The fracture was of the lower part of the tibia and the fibula near the ankle. Her recovery was hampered by infection and osteoarthritis and she will probably never regain full mobility in her ankle. Her gait was affected and she had difficulty walking on stairs. She was unable to run, ride a bicycle, skate or ski. She was left with scars which she considers ugly and she avoided wearing dresses and shorts. She would probably require ankle fusion in the future. General damages for pain and suffering, inconvenience and loss of amenities of life were assessed at $70,000.00, updated for inflation to 2017 is $87,409.00. It was unlikely given the plaintiff’s career path that the ankle disability would play much of a roll in her future employability, nevertheless the court awarded $20,000.00, updated to 2017 is $24,974.00, for future loss of earning capacity.
Sixty years old at time of trial, the plaintiff suffered injuries to his neck, shoulders, left knee and left ankle. His ankle injury was the most serious of the injuries and had not resolved by the date of trial. He underwent three steroid injection treatments with the ankle injury but they did not cure it. The prognosis was that deterioration would likely result in future surgery. Plaintiff attended 225 physiotherapy sessions. He became sedentary and deconditioned and gained weight because the ankle injury reduced his mobility. Court awarded $75,000.00 for general damages for pain and suffering, updated to 2017 in 2017 dollars the award is equal to $95,038.00 based upon the Consumer Price Index inflation factor.
Plaintiff, aged 49, suffered a broken ankle while using the waterslide at the defendant’s water park. He sustained a displaced fracture of the distal fibula involving the fibular malleolus and a displaced posterior lip fracture of the distal fibula. Both required open reduction. Plaintiff made a rapid recovery, playing a full round of golf eight months post accident, with some fatigue. Minor residual effect included numbness on the outside of his foot, ankle, and the two smallest toes on his foot. He also experienced tremors in his leg, and the plaintiff was at an increased risk at developing future problems with his ankle. The plaintiff was awarded General Damages in the amount of $45,000.00, or $60,610 in 2017 dollars.
Plaintiff sustained a displaced fracture of her right ankle when she was ejected from a night club by one of the club’s employees. She underwent open reduction and internal fixation of her ankle at the hospital. The ankle was fixed with two screws and a plate after which she spent seven weeks in a cast. She would have an increased risk of arthritis, and might eventually require a fusion. She was left with unsightly scarring on the ankle, and no longer had the strength or mobility in her ankle to dance. The court awarded $55,000.00 in General Damages, or $74,079 in 2017 dollars.
Plaintiff, aged 51, suffered a fractured dislocation of his ankle after surgery and after his convalescence permanent stiffness was expected in his ankle. Although the plaintiff claimed he was totally unemployable, such a submission was not accepted by the court. The court warded General Damages in the amount of $45,000.00 updated to 2017 is $95,456.00 for General Damages for pain and suffering
The plaintiff suffered a fractured ankle requiring surgery and resulting in continuing pain and restricted activities. The court awarded non-pecuniary damages of $35,000 (updated to 2017 is $59,678).
The plaintiff required surgery for ankle fractures, required a cast and crutches and was in bed for weeks. The court took into account the length of time of pain and suffering and awarded non-pecuniary damages of $50,000 (updated to 2017 is $69,851).
The plaintiff suffered a fracture which was splinted, followed by surgery, casting and physiotherapy. There was scarring and continuing pain. The court awarded general damages in the amount of $50,000 (updated to March, 2017 is $80,001).
The plaintiff’s fractured ankle required surgery. There was osteoarthritis of the talus, but the prognosis was “quite good”. The court awarded non-pecuniary damages of $40,000 (updated to 2017 is $67,147).
The plaintiff’s ankle was crushed, requiring surgery and resulting in scarring. There was continuing pain and numbness and the ankle occasionally “gave out”. The court awarded non-pecuniary damages of $45,000 (updated to 2017 is $69,090).
This was a serious injury involving a talus fracture. The court took into account the degree of permanency of the injury and awarded non-pecuniary damages of $60,000 (updated for inflation to 2017 dollars is $77,766.
Fractured or Broken Femur
The femur or thigh bone is the longest and strongest bone in your body. Motor vehicle collisions are the number one cause of femur fractures. Fractures are often located in the “femoral” shaft which is the area running between the hip and where the bone begins to widen at the knee.
The male plaintiff, in an unusual incident, suffered serious injuries to his leg, knee, and ankle as a result of the defendant’s defective electrical pallet jack. The injuries ended his career as a truck driver resulting in a substantially reduced family income. The court awarded the husband $125,000.00 for pain and suffering, $799,100.00 for present day value of loss earnings, and $26,100.00 for future costs of care, for a total Judgment of $950,200, updated for inflation to 2017 is $996,297. In Alberta there can be a loss of consortium claim, but the awards are usually minimal $3,000.00 to $5,000.00. Here in this case, in Ontario, the wife brought a claim under the Family Law Act for loss of care, guidance, and companionship given her husband was so seriously injured and the court awarded her $30,000.00. This is an example of how Red Deer and Calgary Court of Queen’s Bench Judges could follow in awarding spouses significant damages when the other spouse is severely injured completely altering the marital relationship.
The Plaintiff aged 10 sustained a fractured left femur, fractured left wrist, minor TMJ strain, and abrasion of the lower right chest. She was hospitalized for 24 days. The Plaintiff recovered to virtually complete function, but there remained a future possibility of mechanical back pain later in life, from the permanent minor leg length discrepancy. Throughout her life she would probably have to use a lift in her shoes to avoid difficulties. The court assessed general damages at $50,000.00 in August 1999, updated to 2017 is $75,999.00.
The Plaintiff aged 43 suffered a multiple comminuted intra-articular fracture of the distal right femur. The leg was left with considerable scarring. The Plaintiff often frequently tripped while walking and relied on his cane. Following the accident, the Plaintiff was unable to work at his taxidermy business for several months. Non-pecuniary damages were assessed at $65,000.00 in 1999, updated to 2017 is $98,799.00.
The Plaintiff aged 13 suffered a fractured right femur, a fractured left ulna and radius; lacerations of the right forehead, lacerations on the right side of the face and mouth, and laceration of the left hand. Several surgical operations were required. The Plaintiff made a good recovery but a number of embarrassing residual scars remained and her leg was slightly atrophied. The court awarded $75,000.00 in general damages in 1998, updated to 2017 is $115,355.00.
The Plaintiff fractured her right femur in an accident. The fracture required surgery and the Plaintiff was hospitalized for seven weeks. There was expert evidence that a fractured femur was one of the most difficult breaks to repair surgically and took longer than other fractures to heal. The court found that the fracture had aggravated the Plaintiff’s pre-existing knee problems. She was awarded $85,000.00 in general damages, updated to 2017 dollars for inflation is $118,959.00.
Fractured or Broken Fibula or Tibia
The lower leg is made up of two bones, the tibia and fibula. The tibia is the larger of the two bones, it supports most of the weight and is an important part of both the knee joint and the ankle joint. There are many different types of tibial fractures, the most common cause of tibia fractures are motor vehicle or motorcycle collisions. Often in severe collisions the bone is broken into several pieces called a comminuted fracture.
65 year-old plaintiff suffered tibia fractures to her right leg, was hospitalized for several weeks and had two operations to repair damage. Healing was slow due to an MRSA infection. The plaintiff had substantial limitations on her activity level due to the accident, and had to pace herself with housework. She was, however, able to walk without a crutch or cane. She was awarded general damages of $70,000 (adjusting for inflation to 2017 is $77,714).
Appeal on loss of income dismissed in 2011 Carswell BC 661 (BCCA)
Plaintiff suffered a crush-type fracture to his left tibia and a fracture of the fibula. He was in hospital for 4 days and had one surgery. There was some evidence of a possibility of permanent disability, but it was not probable. The plaintiff was awarded general damages of $85,000 (adjusting for inflation to 2017 is $94,457).
Plaintiff suffered fractured ribs and compound fracture of left tibia and fibula requiring surgical insertion of a plate and rod, as well as a skin graft. He was hospitalized for 10 days, and was re-admitted 4 months later because of infection requiring a second surgery. The plaintiff by the time of trial (almost 8 years later) was able to walk without assistance, and could ride a bicycle from time to time. General damages were assessed at $90,000 (adjusting for inflation to 2017 is $99,918).
Plaintiff suffered tibial and fibula fractures with a number of fragments. He was in the hospital for almost 3 weeks, and healing was slow due to infection and swelling. He had a skin graft and a bone graft. Almost 5 years later, he suffered from daily sharp pain in his leg and ankle with limited mobility using a cane. The plaintiff was awarded general damages of $100,000 (adjusting for inflation to 2017 is $127,516).
Plaintiff suffered a compound fracture of the tibia and a fracture of the fibula on her left leg. She had surgery and spent 6 days in hospital where she developed a bone infection. Four surgeries and over two years after the accident, the bone fusion at the fracture site had not occurred, and another bone graft was being contemplated at the time of trial. She was limited to a sedentary lifestyle, and had permanent stiffness in her ankle. General damages were assessed at $85,000 (adjusting for inflation to 2017 is $130,238).
Plaintiff when riding motorcycle struck by vehicle and sustained a fractured tibia and fibula. Trial court and court of appeal agreed with general damage assessment of $125,000 as the plaintiff developed chronic pain, with permanent disability and long term pain in his foot with walking on uneven ground and prolonged standing (adjusting for inflation to 2017 is $138,908).
Plaintiff suffered a comminuted fracture of the tibia and fibula. Surgery was performed, but the plaintiff continued to have pain at the fracture site, resulting in a second surgery replacing a surgical nail. The plaintiff contracted a staph infection, which had to be treated. The fracture healed, but the plaintiff continued to experience pain and discomfort 6 ½ years after the accident. The plaintiff was awarded general damages of $150,000 (adjusting for inflation to 2017 is $194,019).
Fractured or Broken Foot
This is a complex area of fractures as the human foot has 26 bones. The foot is divided into three parts: the hind foot, the mid foot, and the fore foot. There are two bones in the hind foot. Five smaller bones in the mid foot. The long part of the foot is called the fore foot and contains 19 bones.
A 78 year old female Plaintiff, a pedestrian, suffered knee bruising and swelling with pain in her knee and leg. Further she had foot pain and a “cross-over toe” condition that required foot surgery. She suffered psychological problems, nightmares, and difficulty sleeping. General damages for pain and suffering were awarded in the amount of $50,000.00. Trial occurred January 7 – 10, 2014 with Judgment rendered January 24, 2014, a speedy production of reasons for Judgment that unfortunately our Alberta Courts cannot duplicate due to the understaffing of Justices in Alberta. The court also awarded $9,689.45 for special damages and $2,000.00 for costs of future care. Updating the Judgment for inflation to 2017 is a total Judgment of $64,797.00.
In this case the 35 year old female, who was a Registered Nurse, suffered injuries to her ankle and foot but did not include fractures of the foot. There was chronic soft tissue swelling and there was also aggravation of soft tissue pain in her back, neck, hips, and shoulders as well as aggravation of chronic headaches. Finally there was significant aggravation of thoracic outlet syndrome in her arm and mild ulnar nerve injury. Red Deer personal injury counsel would obtain a similar award that the court awarded in this case of $75,000.00 for general damages for pain and suffering, updated to 2017 is $78,779.00. In this case the court did award 20% reduction for failure to mitigate as oddly, given the plaintiff was a nurse, she did not follow all of the instructions of her medical practitioners.
The 35 year old plaintiff suffered a fractured left malleolus with some comminution, osteochondritis dissecans, a fracture of the lisfranc joint and the 2nd, 3rd and 4th metatarsal necks. He was disabled for one year, when he became pain free as a result of arthroscopic surgery. He was at high risk for premature arthritis and remained permanently unable to engage in some former sporting activities. General damages of $40,000 ($65,581 in 2017 dollars) were awarded.
The 28 year old plaintiff suffered a lisfranc fracture of the left foot, fractures of the second, third and fourth metatarsals and dislocation of the fourth and fifth toes and a broken left hand. He had surgery and pins inserted and was off his foot for three and one half months when he returned to work but could only stand for one hour at a time. At trial he had lumps on his foot that hurt when he tread and that prevented him from wearing boots or slip on shoes. General damages of $35,000 ($66,620 in 2017 dollars) were awarded.
The 17 year old plaintiff suffered a fracture of the left femur, multiple mid foot fractures of the left foot, a rupture of the right Achilles tendon, a tear of a ligament in her left knee. She underwent a closed reduction to the fracture to her left foot. She was still suffering some aching and cramping at trial and had a good prospect of developing arthrosis. General damages of $75,000 ($113,998 in 2017 dollars) were awarded.
Fractured or Broken Elbow
Your elbow is a complex joint formed by three bones, the humerus or the upper arm bone which runs from your shoulder to your elbow. The radius and ulna are the bones of the forearm and they run from the elbow to the wrist. Fractures to the elbow will often result in damage to the other structures of the elbow resulting in problems with movement, blood vessel function and nerve function.
The Plaintiff fractured his left forearm and left elbow. He also had some bruising on his shin and muscle strains. The fracture to the forearm and elbow required surgery which involved an orthopedic surgeon inserting steel rods into his arm and leaving the victim with a visible 9-inch scar. The court awarded $50,000.00 for general damages for the pain and suffering, updated to 2017 is $55,784.
Plaintiff age 79 suffered a broken elbow and related injuries when he fell or was knocked to the ice while skating at a public arena. X-rays showed a broken bone and compression on the ulnar nerve. The next day he underwent an operation under general anesthetic. Two five inch pins and a wire were used to stabilize the break. One of the pins started to come out on its own, and the pins were removed under local anesthetic. The wire was later removed under general anesthetic because it was causing the plaintiff pain. Plaintiff was left with restricted elbow flexion and loss of strength in his arm. Justice Cameron awarded plaintiff non-pecuniary damages for pain and suffering in the amount of $27,500 updated to 2017 is $37,106.
Plaintiff severely injured her right elbow as she sustained a fracture to the right capitellum and required open reduction and internal fixation of the intra-articular fracture with gross displacement under general anesthesia. The elbow was successfully reconstructed, but chronic pain still continued two years post accident. Plaintiff was left with a nine centimeter scar on her elbow. Her range of motion was compromised to a minor degree. Justice Day awarded General Damages in the amount of $75,000 updated to 2017 dollars is $98,030.
Fractured or Broken Forearm
Your forearm is made up of two bones, the radius and ulna. In a motor vehicle collision, typically both the radius and ulna are fractured or broken. As with all fractures, it is important to distinguish a mid shaft fracture from a fracture near a joint. Any fracture near a joint will attract far higher damages by a court of law due to the fact that it is very likely osteoarthritis or other complications will develop later in life at the site of the fracture.
42-year-old female victim suffered a fracture to her right forearm near the wrist area which substantially resolved within a relatively short time. Complicating the assessment of general damages for pain and suffering she also sustained a fracture of the malleolus and fibula which required open reduction and internal fixation. Court assessed general damages at $60,000.00, (updated to 2017 is $61,606) and for loss of competitive advantage $10,000.00, Ontario Health subrogated claim $12,833.78 and the court awarded costs in favour of the victim for legal fees and doctor’s reports of $34,532.42.
A 48-year-old woman suffered a mildly comminuted but un-displaced fracture of the left distal ulna shaft (forearm) which remained in a cast for approximately 10 weeks. She returned to work as a Purchasing Clerk a couple of months after the incident, but eventually she was unable to physically tolerate the work. Because of all her injuries the plaintiff’s pre-existing Parkinson’s Disease was aggravated for a period of up to two years because of anxiety and stress. The court awarded $30,000.00 for both the exacerbation of those symptoms and complications arising from the ulna (forearm) fracture. Updating $30,000.00 at the time of trial for inflation to January, 2017 is $38,773.00.
The plaintiff sustained a compound fracture of the right distal ulna (forearm bone on the side opposite to the thumb) along with a major laceration of the right forearm and soft tissue injuries. Treatment for the right forearm included a plate for the ulna fracture and reconstructed plastic surgery of the wound site. General damages for pain and suffering were assessed at $75,000.00 with $35,000.00 assessed for the fractured forearm and $40,000.00 for her ensuing depression. Updated to 2017, the fractured forearm award of $35,000.00 in 2017 dollars is $45,764.00.
Plaintiff age 28 was seriously injured when the motorcycle that he was riding collided with the defendant’s vehicle. Plaintiff’s injuries included compound fractures to the left radius and ulna (forearm bones) with soft tissue loss in the region of the fractures, intra-articular fracture of the left distal radius, fracture and dislocation of the right wrist requiring external fixation, carpal tunnel syndrome to the right wrist, wounds to the left arm which required a large skin graft from the left thigh, road rash on the right hip and left elbow, osteoarthritis in his left and right wrists and mild depression that lasted for a few months. He was left with a fourteen percent permanent partial disability, which will increase over time to twenty percent. Justice Verville awarded General Damages for pain and suffering and loss of amenities of life in the amount of $95,000 updated to 2017 is $113,370. As well, Justice Verville awarded Future Loss of Income in the amount of $263,375.
When dealing with a fractured shoulder, one must distinguish between the different types of fractures in that area. Specifically, shoulder fractures often involve the clavicle (collar bone), humerus, and the scapula (shoulder blade). The fracture is often in the upper part of the humerus and scapula. As well, a shoulder injury may not involve a fracture but a separated shoulder. Care must be taken to make this distinction.
The court found the plaintiff victim suffered from subacromial impingement of the shoulder, pain in her neck, back and shoulder for several months. The pain gradually improved but she has been left with less severe pain in her shoulder and neck with occasional low back pain. The court made a finding of fact that she will experience improvement in her symptoms with active rehabilitation particularly with respect to the low back and shoulder, but even with active rehabilitation she will continue to suffer from occasional pain in her neck and to a lesser extent in her low back and shoulder for the rest of her life.
The injury was characterized as a subacromial impingement of the shoulder. Court awarded $75,000.00 for general damages for pain and suffering, minus 10% for the plaintiff’s failure to participate in a regular sustained program of active rehabilitation. For the past loss of wage claim it is important to note that wage loss amounts, of course, are a function of whether the victim before the claim was a high or low income earner. In this case, the victim was a low-income earner at Walmart so the past loss of income earning capacity claim was set at $16,000.00. For the future loss of earning capacity claim the court awarded $120,000.00. The plaintiff was seeking $600,000.00. The court reduced the amount from what was claimed by the plaintiff as a result of contingencies not properly reflected by the plaintiff’s economist. In the end the courts award is a reflection of only a $5,000.00 a year loss going into the future.
For the cost of future care the court awarded $1,500.00 for special damages for out of pocket expenses paid to the day of trial, $6,187.50. Total Judgment was $225,587.50, updated to 2017 is $228,506.33.
Judgment was granted February 26th, 2015 in the amount of $75,000.00 for a rotator cuff syndrome. Although this did not involve an actual fracture of the shoulder, the rotator cuff syndrome had a prognosis by doctors involved that it may get worse and that surgery may be required. In addition, the innocent victim, who was 53 years of age at the time of the trial, suffered myofascial pain in his neck, bruising to his arm, chest and knee and soft tissue injuries. Finally as a result of the injuries, he suffered sleep disruption, which interfered initially with travel plans to Medicine Hat, Alberta and his occupation as a carpet cleaner was interfered with for approximately three weeks after the collision.
One of the issues at trial concerned the Plaintiff’s entitlement to loss of capacity to earn income and whether he failed to mitigate by refusing to undergo surgery. The surgery was not recommended by the Plaintiff’s surgeon, Dr. Tarazi, but was recommended by the Defendant insurance company’s orthopedic surgeon, Dr. Goel. The Court found Dr. Tarazi’s opinion to be more reasonable in terms of his assessment of the risks and benefits of surgery for the Plaintiff.
Regarding the loss of earning capacity, the Court quoted Kenneth D. Cooper-Stephenson in Personal Injury Damages in Canada, Second Edition (Scarborough Ontario: Carswell, 1996) at 205 to 206:
“The essence of the task under this head of damages is to award compensation for any pecuniary loss which will result from an inability to work.
‘Loss of the value of work’ is the substance of the claim – loss of the value of any work the Plaintiff would have done but for the accident but now will be unable to do. The loss framed in this way may be measured in different ways. Sometimes it will be measured with reference to the actual earnings the Plaintiff would have received: sometimes by a replacement cost evaluation of tasks which the Plaintiff would now be unable to perform, sometimes by an assessment of reduced company profits; and sometimes by the amount of secondary income loss such as shared family income.”
The Court correctly noted that the burden of proof on past events is on a balance of probabilities and that with respect to future events it is a different burden of proof and hypothetical possibilities would be taken into consideration by a Court, so long as they are real and substantial rather than mere speculation.
In the end, the Court awarded a continuing loss of $7,500.00 to $10,000.00 per year until the Plaintiff turns 65, and took into consideration factors such as increased income in some years and a decrease in others, and awarded as a reasonable amount for loss of future earning capacity of $125,000.00. Cost of future care was awarded in the amount of $15,000.00 for Dr. Tarazi’s recommendations for manual therapy 15 – 20 times per year.
In summary, the Plaintiff achieved a total Judgment of $249,250.64, updated to 2017 dollars for inflation is $251,538.25.
Although this case did not involve an actual fracture in the bones of the shoulder joint, it did involve a partial rotator cuff tear along with soft tissue injuries and pain to the neck and back, headaches, exacerbation of pre-existing depression and anxiety.
The 43 year old male who was a Contract Sales Representative required two shoulder surgeries, would have permanent pain and a progressively deteriorating shoulder injury to his dominant right arm. So although this did not involve a fracture, such a severe rotator cuff tear with this prognosis was worse than many fractures in the shoulder joint. In this case the court awarded $120,000.00 for general damages for pain and suffering, updated to 2017 dollars for inflation is $128,188.55. which would be an award that a Edmonton Court of Queen’s Bench Court would likely award for a similar injury on similar facts with a similar prognosis.
This is an Ontario case, but it can still be used as a precedent as to what a Calgary Justice might do with a similar case in Alberta. In this case the 49-year-old female hairdresser suffered a fractured shoulder joint with a torn rotator cuff. The torn rotator cuff had what’s known in the medical community as a full-thickness tear. She had ongoing shoulder pain. The fact that she was a hairdresser with a shoulder injury made the nature of the injury much worse for this unfortunate 49 year old as holding her arms up utilizing the shoulder muscles caused additional pain. She had a cortisone injection which allowed her to be pain free but only for a couple of months and then the pain returned after two months. The doctor suggested cortisone injections once per year would be beneficial. Surgery was not an option and she opted for the cortisone injections in the future. Physiotherapy was recommended but the plaintiff did not pursue it as she did not have the funds.
In what can only be considered a justice who does not appreciate how a hairdresser performs her duties holding her arms up eight hours a day, the justice only awarded $50,000 in general damages for pain and suffering. However the justice then went on to award $144,530.79 for future treatment costs, including physio, and including $75,735 for housekeeping chores to age 70 and $50,114 for gardening, window cleaning and curtain washing up to age 70. So the justice was fair with respect to those amounts, in our opinion. The justice also awarded loss of income of $5,639, but only $12,000 of loss of future income was awarded from age 49 to age 65 given her part-time work. Total Judgment was $338,487.23, updated to 2017 is $355,542. Handel Law Firm case comment: this is another example of a justice under compensating a victim. $50,000 for the pain and suffering given the fractured shoulder joint with a torn rotator cuff impacting her ability to engage in her occupation, causing ongoing pain with future very painful cortisone injection shots, is simply inadequate compensation.
Verville, J., awarded $25,000.00 in General Damages to a 39 year old male welder, updated to 2017 is $35,848. The Plaintiff began having problems with his shoulder two or three days after the accident. He also injured his wrist, neck and lower back. The wrist and back problems were found by the court to not be related to the accident as they were not mentioned for a significant period of time after the accident. The shoulder problem affected overhead work. He received physiotherapy and some cortisone injections for the shoulder. The orthopaedic surgeon assessed a 3% impairment in relation to the shoulder and stated that future surgery was a possibility. There would be a six month recovery period if surgery was necessary.
Plaintiff suffered a dislocated left shoulder in a motor vehicle accident. The injury was treated initially by carrying out a closed reduction under a general anesthetic. Movement of the shoulder was painful and restricted for several years after the accident. Physiotherapy helped in mobilizing the Plaintiff’s arm and he discontinued treatment. He was left with a permanent but minor restriction in movement. He also sustained fractures of his first molar on both the right and left upper jaw. Parrett, J. assessed non-pecuniary damages at $25,000.00, updated to 2017 is $35,848.
The Plaintiff sustained a shoulder injury which did not impair her from working throughout the time leading up to trial. She had injections and physiotherapy which did not help her shoulder. She was referred to an orthopaedic surgeon who performed surgery which did not help and so another orthopaedic surgeon performed a second surgery which brought the shoulder back to normal and was moving properly. She was able to do activities of daily living without significant dysfunction although the judge found that she may never completely recover from the shoulder injury. The judge assessed damages for the shoulder injury at $20,000.00, plus an additional $10,000.00 for the depression from the motor vehicle accident, for a total of $30,000.00 in general damages, updated to 2017 is $47,017.
The Plaintiff, a 36 year old left handed truck driver, suffered a soft tissue injury to his left shoulder in a motor vehicle accident. The injury restricted the Plaintiff’s ability to do loading-unloading work and also had a significant impact on his ability to enjoy fishing, water skiing and camping. He would have to deal with a weakened and painful left shoulder for the foreseeable future. Smith, J. assessed non-pecuniary damages at $30,000.00, updated to 2017 is $44,458.
Thirty-two year old Plaintiff landed on his right shoulder when he slipped on a wet floor at a hockey arena suffering soft tissue injuries to the right shoulder and neck. He was off work for four weeks and then worked part-time for five months. He continued to suffer constant pain in his right trapezius muscle and headaches. At trial four years after the accident Jenkins, J. found that the Plaintiff was one of the 15% of Plaintiffs with soft tissue injuries who do not heal within a few months of the accident and who develop chronic pain. The Plaintiff adapted to his condition and was able to carry on a relatively normal life. Damages for pain and suffering were assessed at $40,000.00, updated to 2017 is $59,145.
The plaintiff was injured in a car accident on August 25, 1994. The plaintiff experienced initial low-back pain, neck and shoulder pain, numbness in his arms and tender trapezius muscles. Full recovery was expected in 12 months. He was diagnosed with myofascial pain syndrome and mild rotator cuff tenderness although other diagnoses included musculoligamentous neck pain and back pain with nerve root impairment. The plaintiff’s symptoms had continued for six years post accident. General damages were awarded in the amount of $60,000.00, updated to 2017 is $86,034.
Fractured or Broken Wrist
Typically, a broken wrist involves a fracture in the larger of the two bones in the forearm. The bone will often break at the lower end close to where it connects to the hand on the thumb side of the wrist. The distal radius bone is the most common fracture when people fall on an outstretched hand. The other bone in the wrist area which is often broken is the ulna. Note also that fractures in the wrist can often extend to fractures into the hand. It is important to treat a fractured wrist quickly otherwise the bones may heal without proper alignment which will then have long term consequences.
In a bicycle pedestrian accident heard before the Honourable Justice Fenlon in November of 2013 a 61 year old plaintiff was walking along a trail with his wife, the defendant bicycling along this same trail traveling in the same direction lost control and drove into the plaintiff striking him in the back, the plaintiff’s left hand came down hard on the pavement, he broke his left wrist and was transported to the hospital. His hand is permanently fixed in a claw like position. Given his age of 61 years he will have arthritis setting into the wrist, specifically the orthopaedic surgeon testified of a comminuted fracture involving his left distal radius and ulna. The court awarded $65,000.00 for loss of future earning capacity plus $80,000.00 for general damages for pain and suffering, $ 1,387.00 for special expenses, $500.00 for cost of future care, past wage loss of $79,215.00 for a total award of $226,102.00 with costs in favor of the plaintiff, updated to 2017 dollars is $241,530. It should be noted that the occupation of the 61 year old plaintiff was that of a sushi Chef and therefore obviously a fracture of the left wrist leaving it in a claw like position was a very serious injury.
The Plaintiff a 13 year old student was injured when he was struck by a vehicle while riding his bicycle. He flew through the air approximately ten feet and landed on his left arm resulting in a fracture to the arm just above the wrist. The surgery to repair the fracture to his arm left a permanent scar. The plaintiff suffered periodic pain and ligament weakness in his arm and pain in his wrist. It was concluded that the plaintiff would have a permanent disability in his left wrist measured at ten degrees of flexion and twenty degrees of extension. The permanent disability was assessed at six percent impairment of the left upper extremity and four percent total body impairment. Mr. Justice Germain assessed General Damages in the amount $42,500 updated to 2017 is $55,182.
Fractured or Broken Nose
A broken nose is any crack or fracture in the bony portion of the nose. A blow to the face from the airbag in a motor vehicle collision is a common source of a broken nose. Minor nose fractures may not require medical treatment but it is important to be assessed by a doctor to see if there is a misalignment. Misalignment will cause many long-term problems which will again affect the damages from a court when the misalignment cannot be surgically rectified.
The court also awarded $35,000.00 for past loss of income, $100,000.00 for future loss of income, $3,335.00 for cost of future care and $1,335.00 for special damages for out of pocket expenses paid prior to trial. Total Judgment $239,670.00, updated to 2017 dollars is $242,771.
54 year old plaintiff suffered an injury to his nose which involved nasal problems which then resulted in significant psychological symptoms from post traumatic stress disorder caused by the first of three motor vehicle accidents. The plaintiff was not wearing his seatbelt and so there is an issue of contributory negligence for not wearing a seatbelt. It is our law firm’s view that of course people should wear their seatbelts, but the routine deduction of 15% to 25% for failure to wear a seatbelt fails to recognize that absent the negligence of the person in the other vehicle the seatbelt would not have been necessary in the first place! In this case the court deducted the plaintiffs claim by 25% for failure to wear a seatbelt which in our view is wholly unsupported given the fact that the accident would not have happened but for the negligence of the person in the other vehicle.
Nevertheless, the plaintiff was awarded $120,000.00 for pain and suffering, $100,000.00 for future income loss, $40,000.00 for past income loss, $20,000.00 for cost of future care including potential nasal surgery, and $13,255.00 for out of pocket expenses, for a total Judgment of $293,255, updated to 2017 is $306,980. The treating psychologist from Edmonton was not called at trial.
Plaintiff suffered a broken nose when kicked in the face by the defendant. Plaintiff was a 16 year old student at the time of the unprovoked assault. The plaintiff felt extreme pain in his face and neck. He was bleeding heavily. At hospital, X-rays revealed that his nose was broken. He had a severe headache, sore neck, two black eyes, bruising, swelling and minor cuts and scabs across his face. His nose was tender for approximately two months after the assault. He had difficulty breathing and had to endure two surgeries to repair a septal deviation. Mr. Justice Neilson awarded non-pecuniary damages in the amount of $15,000 updated to 2017 is $19,476, plus punitive damages in amount of $1,000.
Fractured or Broken Pelvis
With the advent of wide spread use of seat belts, pelvic fractures especially in high speed collisions has become more common. The pelvis is a butterfly-shape group of bones at the base of the spine. The pelvis consists of the pubis, ilium and ischium bones (among others) held together by ligaments. The damages awarded for fractured pelvis vary widely due to the wide range in nature of fractured pelvis from mild to severe with resulting pins and plates inserted with sometimes multiple surgeries.
The victim, Miss Kweon, suffered multiple fractures to the pelvis as a result of the collision. The fractures healed but the evidence was clear that the victim would continue to experience pain in her pelvis and lower back areas and the consequence of this was to foreclose any possibility of her working in any occupation involving heavy labour. The victim also suffered soft tissue injuries to her neck and shoulders and she would still have sporadic pain in that area. The victim also suffered a mild traumatic brain injury, however the court found that any ongoing cognitive issues were related to psychological issues rather than the brain injury. The court awarded $175,000.00 for general damages for pain and suffering. For the past loss of wages, the court awarded $75,000.00 and future loss of earning capacity $165,000.00 in that any heavy labour occupations would be forever closed to this victim. Cost of future care was set at $24,000.00 and special damages for out of pocket expenses was $3,702.00. Total Judgment of $442,702.00, updated for inflation to 2017 dollars is $448,431.
This was a motor vehicle pedestrian accident which is always a very serious situation for the pedestrian. The pedestrian was thrown almost thirty feet and suffered a compression injury of the pelvis consisting of fractures to several bones. She also suffered a fracture to her left fibula (the lower leg bone). Slight pelvis deformity that may affect the Plaintiff’s ability to give birth, fractured rib, injury to the spleen, very mild traumatic brain injury with some cognitive difficulties, a bone spur on the SI joint. The victim was in the hospital for 28 days, had stitches on her knee and leg and a visible scar on her knee and ankle. She was awarded $130,000.00 for general damages for pain and suffering, which were reduced by 15% for contributory negligence. The Plaintiff was also awarded past wage loss of $105,946.55, future loss of earning capacity of $420,000.00, cost of future care $87,038.00, special damages for treatment etc. $16,987.52 for a total Judgment of $759,972.07. The plaintiff was entitled to 85% of the Judgment as she was 15% contributory negligence. So a 15% reduction for her responsibility results in a Judgment of $645,976.26, updated to 2017 is 662,537.
The plaintiff suffered an undisplaced fracture of the acetabulum of the hip, undisplaced fracture of talus bone of the ankle, a fractured navicular bone of the foot , pain in the hip, ankle and foot, soft tissue injuries to the hip and ankle which then resulted in degenerate changes to the hip. In an extremely low award which would be higher in Calgary or Edmonton, Alberta the court only awarded $80,000.00 for general damages for pain and suffering, inconvenience and loss of amenities of life and loss of enjoyment of life for these serious fractures focusing on the fact that they were undisplaced. Updated to 2017 dollars the award is $84,031. However, despite the fact that they were undisplaced, there was still a finding of degenerate changes to the hip which long term should have attracted higher damages than only $80,000.00.
An unfortunate 21 year old female was in a serious motor vehicle accident, and when she was struck immediately beside the place she was sitting and as a result suffered fractures to her hip and fractures to her pelvis, injuries to her sacrum, neck, shoulder areas, lower back, and a cut above her eye as well as ongoing headaches.
The fractures were significant enough to require surgical treatment with insertion of plates and screws to her hip and pelvis, she was immobile/ bedridden for two months after the accident. Then for several months she was only in a wheelchair before her hip injuries were ready for weight-bearing. The court found she would require future surgical intervention and her injuries were at a high risk of development of post-traumatic osteoarthritis. Her sacrum although not fractured would continue to cause her pain and discomfort and she eventually, not surprisingly, as a result of the significant injuries, developed depression. The defendant’s insurance company argued that she failed to mitigate her damages by following all the courses of treatment but this argument was rejected as the plaintiff had followed one course of treatment ordered by one of her medical doctors and that has long been held by courts to be sufficient.
The extent of the injuries rendered her unable to complete her pre-accident employment or to continue with her pre-accident employment so she would have to change her employment and in addition her employment would be interrupted in the future with future hip replacement surgeries.
The court awarded $150,000.00 for general damages for pain and suffering plus $250,000.00 for loss of future earning capacity, plus $33,266.00 for costs of future care, it is likely a Calgary Court of Queen’s Bench Justice would award these amounts even though this is a BC case, however the loss of future earning capacity would at $250,000.00 likely be at the very high end for a Calgary lawyer to achieve on these particular facts. Total Judgment of $433,266, updated to 2017 is $462,829.
Plaintiff age 47 suffered a pelvic injury, a compression fracture of the first lumbar vertebra, a fracture of the transverse process of the fifth vertebra on the left side, severe abrasions to both shoulders and a severe contusion wound to the back. The entire left half of the pelvis was detached from the right and was freely movable without any movement by the plaintiff. Plaintiff made a remarkable recovery but was left with a total combined permanent partial impairment of between twenty and twenty-five percent of the whole body. His stamina was reduced and his recreational and physical activities were significantly curtailed. General Damages were assessed by Mr. Justice Binder at $85,000 for pain and suffering, updated to 2017 is $121,882. The court also awarded damages for Loss of Earning Capacity in excess of $500,000 for this high income earner.
Plaintiff at age 21 sustained severe pelvic fractures: fractures of the left acetabulum involving the anterior and posterior columns, with an oblique fracture through the dome of the acetabulum and widening of the sacroiliac joints. She underwent two operations within days of the accident in which plates were fixed to her hipbone. There remained a persisting cumulating fracture extending through the left acetabular dome with a separated fragment.
Although the operations were successful and recovery was as good as to be expected, there remained a significant permanent disability. Plaintiff had a stiff left hip and frequent back pain. Sexual intercourse was painful. For several months plaintiff suffered Post Traumatic Stress Disorder, which manifested itself in the form of migraines and concerns about driving. Unsightly surgical scars about three feet in length remained across the plaintiff’s left hip extending down the front of the leg and vertically on the buttock extending down the side of the leg. Plaintiff would develop arthritic problems in the hip in the future. Mr. Justice Low assessed plaintiff’s impairment of Future Earning Capacity as a business manager at $85,000 updated to 2017 is $129,198 and non- pecuniary damages for pain and suffering at $95,000 updated to 2017 is $144,398.
Leg amputations are somewhat rare, so many of the cases are out of province and older. The range appears in 2017 to be between $135,000 and $275,000, with a very odd case at $95,000 (adjusting for interest), note that amputations above the knee are worth considerably more than below the knee but for the one odd case.
18-year-old female fell as a result of the defendant’s failure to erect a “No Exit” sign. She suffered severe frost bite resulting in the loss of 8 fingers and both legs being amputated below the knee. She was in the hospital for 3 months. She had phantom pain in her legs and fingers. General damages for pain and suffering was assessed at $275,000.00 updated to 2017 equals $306,810.00. $23,000.00 in past loss of income was awarded and $267,359.00 in loss of future income. Special damages for wheelchair accessibility and renovations set at $227,594.00 and other out of pocket expenses $5,000.00.
Plaintiff suffered a left leg amputation below the knee, had his spleen removed, and suffered injuries to his left femur and hip, and lung bruising. The plaintiff was hospitalized for about 2 months, and had to undergo a further surgery. The plaintiff was awarded general damages of $110,000 (adjusting for inflation to 2017 is $209,378).
The plaintiff had his leg amputated below the knee. The stump required 3 revisions resulting in a knee amputation. The plaintiff adapted to the prostheses and was expected to return to work 6 years after the amputation. The claim was dismissed, but had there been liability, he would have been awarded general damages of $80,000 (adjusting for inflation to 2017 is $159,237).
His special damages included:
- Capital expenditures such as a microwave, cordless phone, TV, bed foam
- Relocation to larger community with better amenities (he was from Vulcan) of $56,000
- Non-recurring future care expenses of $30,345 for prosthetics, bath lift, upgrading car to minivan, sitting/sleeping equipment
- $110,337 for recurring expenses based on life expectancy of another 11.86 years, costs not to be reduced simply because he might be assisted under AADL and extended benefits.
A fracture in the knee area is a prime example of a case which must be dealt with very specifically with the individual diagnosis since there are many bones involved (four bones come together at the knee) and numerous ligaments so assessing damages for a knee injury, either fracture or torn ligaments is very difficult and one must be very precise about the nature of the fracture as well as the prognosis before arriving a fair amount for compensation always bearing in mind that the development of osteoarthritis in the knee will be an ever present risk as a result of a fracture in the knee area and damages should be increased accordingly.
In a Judgment handed down on January 16, 2017, the court awarded damages to the victim from two motor vehicle accidents which resulted in contusions to her left knee, multiple bruises, soft tissue injuries to her neck, and connective tissue injuries to both shoulders. At the time of trial, several years later, the connective tissue in the knee injury continued to cause pain and discomfort well beyond the normal recovery time, but the court found these injuries would not be permanently disabling and would continue to improve with proper treatment. Unfortunately for the victim all of her injuries were exacerbated by the second accident. The victim also suffered psychologically from the motor vehicle collisions which was part of the dispute at trial and whether her anxiety and insomnia was pre-existing or not. The plaintiff suggested general damages for pain and suffering should be $195,000.00 and the defendant submitted that $100,000.00 was more appropriate for the award and the court sided with the plaintiff victim and awarded $175,000.00 for pain and suffering.
For the past loss of wages the plaintiff victim attempted to return to work three separate times, all unsuccessfully and was awarded $200,000.00 for the past loss of income. For the loss of future earning capacity claim, this is facts specific to the victim and the victim’s history of income, and the court awarded $308,000.00 for loss of future earning capacity. The court awarded $25,000.00 for cost of future care which included physiotherapy, massage therapy and additional occupational therapy support, a better mattress with replacements, medications for both her pain and her psychological condition. The court also awarded $47,965.48 for out of pocket expenses incurred to the date of trial for a total Judgment of $755,965.48. Handel Law Firm take: this court was generous to the plaintiff victim with respect to the general damages for pain and suffering award and it is unlikely an Alberta Court would award this amount.
19 year old male student pilot suffered a knee injury which required knee surgery, he had ongoing knee pain flare-ups for two years after the accident, in addition he had back pain, neck pain and headaches. Other than the knee injury which required surgery the other injuries were soft tissue, or connective tissue injuries as they should more properly be called. Soft tissue is not a term known to medicine from a technical point of view rather they are connective tissues, and from a legal argument point of view, in Handel Law Firm’s opinion, using the phrase connective tissue gives the tissue the importance that it deserves. In any event, in this case the judge only awarded $40,000.00 for general damages for pain and suffering, (updated to 2017 dollars is $42,015) which given the knee surgery the 19 year old male underwent and given the ongoing periodic flare-ups, this is certainly less than a Red Deer Court of Queen’s Bench Justice would do if this matter were heard in Alberta so this case has limited precedent value in Alberta and Judge Tim McEwan certainly was very stingy with general damages for this knee injury requiring knee surgery.
A 25 year old female suffered a knee injury with no fracture or observable derangement. The court awarded $20,000.00 for General Damages, updated to 2017 is $33,293, despite the fact that the young lady was complaining of pain in her knee 6 years after the injury, although the court did not find any objective sign of knee problems.
A 37 year old female suffered traumatic chondromalacia to both knees. As you know chondromalacia is swelling, pain and degenerative changes to the knee. The Plaintiff had surgery on her knee 3 and 1/2 years after the accident and continued to complain of pain in her left knee at the time of trial, 6 years after the accident. Nevertheless the court only awarded $25,000.00 in General Damages, updated to 2017 dollars is $41,616.
A female suffered traumatic chondromalacia to her knee which required surgery of her knee one year post accident. The court found that the pain in her knee would likely continue indefinitely. The court awarded $30,000.00 in General Damages, updated to 2017 would be $53,938.
A female suffered a serious permanent injury to her knee after a horse bite. She was very dependent for 6 months after the accident. The injury stabilized after 3 years but the court found that the Plaintiff had suffered a serious permanent injury to her knee and the court awarded $40,000.00 for general damages, updated to 2017 is $67,267.
A 32 year old female waitress injured her knee and required surgery 6 months after the accident. She continued to experience low grade pain at the trial. The court found that the pain and discomfort would be permanent and also some possibility of degenerative changes and future surgery. The court awarded $50,000.00 in general damages, updated to 2017 the award would be $95,172.
A 34 year old male cargo handler suffered an injury to his left knee. He complained of pain and discomfort through to the trial and there was the possibility of degenerative problems in his left knee. The court awarded $52,000.00 in general damages, updated to 2017 is $86,562.
An 18 year old male, university student suffered a knee injury that would require some type of procedure in the distant future and would likely end up with an artificial replacement for his knee joint. The court awarded $58,000.00 in general damages for pain and suffering, updated to 2017 is $95,092.
Plaintiff (17) suffered a facial wound, knee injury, low back pain and abdominal pain in a motor vehicle accident. The majority of the injuries had healed within a short time, however the Plaintiff was left with a facial scar and instability of her right knee. Prior to the accident the Plaintiff had exercised intensively. Her ability to exercise had been affected and she had difficulties with jogging. The Plaintiff was awarded $40,000.00 in non-pecuniary damages, updated to 2017 is $55,981. The court also awarded $3,500.00 in past loss of wages and $20,000.00 in loss of earning capacity.
To help you understand what is exactly going on with the bursitis in the trochanter area, the above diagram illustrates where the trochanter is in the hip area; it is the bone that you can feel on the lateral side of your hip. The question that then remains is where does the bursitis set in as bursitis is usually associated with fluid in a joint as an inflammation. However, directly over the greater trochanter of the hip, is the trochanteric bursa, a fluid filled sac, that allows tendons and ligaments to move without rubbing on the underlying bony structures. Thus, because the great trochanter “sticks out” on the hip and there is muscle and ligaments attached rubbing over top there is a fluid filled bursa sac to allow those ligaments to move without actual rubbing on the underlying bony structures. This is where the problem is for many accident victims as this sac has been inflamed from the motor vehicle accident and, thus, is the source of pain.
The plaintiff’s hip was injured during childbirth while under the influence of epidural anaesthetic as her leg was allowed to drop off the side of the bed. The injury to the hip ultimately found by the court, although vigorously contested, included four sources of pain: a torn labrum, osteoarthritis, inflammation or synovitis in the hip joint, and injury to the soft tissues surrounding the hip. Hip replacement surgery would be a necessity in the future for the victim. In awarding general damages for pain and suffering, the court stated that it recognises and was influenced by the probability that much of the victim’s disabling pain could be dealt with surgically and recognising that the surgical option would require repetition at least once, more likely twice. The court awarded $100,000.00 for pain and suffering. For the loss of income claim the court of course looks at the particular victim’s income earning history and here the victim earned $86,000.00 in 2006, $105,000.00 in 2007 and $168,000.00 in 2008. The court awarded loss of income prior to trial of $775,000.00.
For the loss of future earning capacity claim, the amount was mitigated by the fact the court found hip surgery would likely be very helpful and therefore awarded $275,000.00 for future loss of earning capacity. The court awarded $4,500.00 for future cost of physiotherapy after the future surgeries and $17,415.08 for out of pocket expenses incurred to the date of trial for a total Judgment of $1,171,915.00.
Plaintiff, age 63, suffered injuries to the right hip and chest when he slipped and fell on premises owned by Defendant. Two of his teeth were loosened and he eventually lost one of them. The mouth and chest injuries were painful for a few weeks but then resolved. The hip injury, however, left Plaintiff with trochanteric bursitis, which was unlikely to get better. Plaintiff was left with a limp and a restricted ability to lift his leg. He was unable to walk for appreciable distances. Tidman, J. assessed General Damages at $25,000.00 for this case judgment of 2000, updated to 2017 is $37,048.
Plaintiff suffered moderate cervical and lumbar back strain and trochanteric bursitis of her right hip. Plaintiff’s injuries had substantially subsided by the time she returned to work. It was found she will have some continuing discomfort periodically and episodically in the future when her condition is stressed by normal work or other activities. Plaintiff was awarded general non-pecuniary damages of $30,000.00. updated to 2017 is $38,995.
The Plaintiff sustained a minor lower leg injury and some soft tissue damage in the hip area. He had no functional hip problem before the accident in spite of his high level of exercise associated with weight lifting. There was little, if any, objective evidence of Plaintiff’s continuing complaints after the first 18 months post-accident, yet his subjective complaints gradually worsened to the point where he believed he was unable to work at the time of trial. Non-pecuniary loss was assessed by Macauley, J. at $30,000.00, updated to 2017 is $44,507.
Plaintiff, a 78-year-old woman, had received soft tissue injuries when her motor vehicle was rear-ended by defendant’s vehicle. Liability was admitted. As a result of the accident, plaintiff had suffered headaches, acute neck and back strain and strain to her right hip. Degenerative disease in her hip had been asymptomatic prior to the accident. She had a period of total disability lasting about three weeks. Thereafter, in the six years following the accident, she continued to experience pain in her right buttock and hip, requiring treatment with regular pain and anti-inflammatory medications. Prior to the accident, plaintiff had lived an extremely active and physical lifestyle that included gardening, tending to horses at a stable, taking long walks, and working part-time at a community centre. Her activities had been curtailed because of the injuries suffered in the accident. Plaintiff was entitled to $32,500.00 general non-pecuniary damages, $286.00 for past loss of income, $926.00 special damages and $2,520.00 for cost of future care, for a total of $36,232.00. General non-pecuniary damages updated to 2017 is $48,492.
Plaintiff, age 27, suffered cuts to the head, injuries to the shoulder, neck, lower back and left hip. Her injuries resolved except for the hip injury which continued to be painful on an intermittent basis. Plaintiff had difficulty sitting or standing for long periods of time. Hawco, J. awarded General Damages in the amount of $35,000.00, updated to 2017 is $53,892.
Plaintiff, an 18 year old high school student, suffered a soft tissue neck injury with headaches, soft tissue lower back injury and a chronic right trochanteric bursitis. The Plaintiff’s injury to her neck quickly resolved. The injury to her lower back continued to be intermittent discomfort. The bursitis improved some with physiotherapy where the Plaintiff was reporting up to 85% pre-accident condition. Bursitis pain varied depending on the type of activity. Prognosis for the bursitis remained guarded with a probability of permanency given the passage of some two and one-half years since the original injury. Chamberlist, J. fixed Plaintiff’s non pecuniary damages at $40,000.00, updated to 2017 is $61,591.
Fractured Thumbs and Fingers
The Plaintiff, age 55, suffered injuries as a result of a trip and fall on broken glass. Her ring finger would not straighten properly and she had a permanent injury assessed at 2% at the time of trial. In an award that would likely mirror what a Judge in Grande Prairie would do, the Court awarded $18,000 for pain and suffering for the fractured ring finger combined with several cuts to her back and nose, updated to 2017 dollars the award would be $19,249. The Court divided the damages between $12,000 for disability and disfigurement and $6,000 for pain and suffering. Alberta Courts do not typically separate out the disfigurement amount from the pain and suffering award but the $18,000 is very similar to what a Grande Prairie Court of Queen’s Bench Justice would do with this type of fracture to the ring finger.
34-year-old male plaintiff had his hand struck by a hockey stick resulting in nondisplaced fractures involving the fifth finger as well as transverse fracture and misalignment of the fourth metacarpal. The victim underwent two surgeries as a result of the fracture. Despite the surgeries, the plaintiff victim continued to experience ongoing pain as well as extreme sensitivity to cold. General damages were assessed by the court at $20,000.00 for pain and suffering updated to 2017 is $24,105.
Plaintiff number three suffered from a concussion, resulted in headaches for an eight month period. She had lacerations and abrasions of forehead and thumb. Her thumb required surgery and extensive time to recover. Loss of delicacy of sensation in thumb is permanent. General damages were assessed at $6,500.00, which, updated to 2017 is $10,430.
The plaintiff suffered mild soft tissue injuries to her neck and upper back, a broken thumb, and a mild strain of the ankles and hands. As a result of her injuries, the plaintiff, for almost a period of four years, suffered a psychological disorder. She was unable to attend her employment intermittently for some nine months. She suffered no permanent injuries and had sufficiently recovered from the effects of the accident at the time of this trial (trial June 1995, accident August 1990). General damages were assessed at $30,000.00, which, updated to 2017 is $49,420.
The plaintiff, then twenty six, was driving a truck in the course of his employment when his vehicle was struck by a car driven by the defendant, who failed to maneuver his car at a curve in the road. The plaintiff suffered a fractured thumb, a contusion to his right knee, and some soft tissue injury in the neck and upper back. General damages were assessed at 15,000.00, which, updated to 2017 is $25,650.
Non-pecuniary damages for pain and suffering involving sprained thumb, headaches, sore neck, nausea and dizziness were awarded in the amount of $12,500.00, which, updated to 2017 is $25,545.
It is very important to emphasize that TMJ injuries are NOT CAPPED under Alberta’s minor injury legislation as per decided case law in Alberta: Sparrowhawk v. Zaplotinsky 2012 ABQB 34 and MacLean v. Parmar, 2015 A.J. No. 214, ABQB.
If you have a TMJ injury do not accept the insurance adjuster’s suggestion that TMJ injuries are capped soft tissue injuries. Call our office immediately at 403-314-1199 for a free consultation.
The single issue in this case was whether or not a TMJ injury was capped under Alberta’s minor injury legislation. The court held that there are three independent reasons to conclude that TMJ injuries are not capped:
- the tooth and cartilage injuries are not muscle, tendon, ligament, or WAD injuries,
- the jaw injury caused serious impairment, and
- all injuries treated principally by dentists, such as TMD and tooth injury, are never minor injuries.
The parties appeared before the court with the single issue of whether a jaw injury caused by the March 1, 2005 collision was a “minor injury”, as defined by the Insurance Act, R.S.A. 2000, c. I‑3, Minor Injury Regulation, Alta. Reg. 123/2004 and Diagnostic and Treatment Protocols Regulation, Alta. Reg. 122/2004, and so damages were not decided by the court as the parties had agreed to damages subject to the issue of the cap.
The innocent victim was injured when his motorcycle was rear-ended on Highway 97 in Kelowna, BC. The victim sustained a TMJ injury as well as chipped teeth which the court found after considering all of the expert evidence that those injuries were likely to resolve with appropriate treatment. The victim also would continue to suffer from chronic pain and cognitive and memory problems in the future and would likely have flare-ups in both his physical and psychological symptoms from time to time. For general damages for pain and suffering the court noted that general damages are particular to each plaintiff. In this particular case, the victim had ongoing symptoms for four years to the day of trial with little improvement and a guarded prognosis for full recovery and therefore set general damages at $175,000.00. Court awarded $60,000.00 for past loss of income. Noting the victim was only 28 years of age at the time of the collision, the court made a significant award for future loss of income earning capacity at $850,000.00. The victim prior to the accident had a good job with Rapattack (fighting forest fires) which was a very competitive position to get as only 150–225 are selected out of 1,500 applicants and he had clear goals to become a police officer and the court found that he likely would have succeeded getting into the police force or would have become a fire fighter. Now due to the injuries in the collision, he is limited to the types of work he can do both physically and cognitively
The court awarded $60,000.00 for cost of future care, and special damages were agreed between the parties at $15,993.91, for a total Judgment of $1,233,105.91.
This award would be difficult to duplicate before a Justice in either Edmonton or Calgary as the Justices in British Columbia are more understanding of victims and the consequences of motor vehicle collisions, whereas in Alberta the Justices tend to be focused on the effect on insurance premiums for the public.
S.F.P. therefore supports the recent trend in the courts to award separate damages for these TMJ injuries.
The plaintiff was in a motor vehicle accident and suffered a Temporomandibular Joint (TMJ) pain, right knee pain, right wrist pain, headaches, cervical and lumbar pain and mild traumatic brain injury with post- traumatic stress disorder. Dr. Blair Bennet and Dr. Marc Bennet of Edmonton were the Plaintiff’s treating dentists. They indicated her dental history prior to the accident was unremarkable other than occasional jaw clicking. After the accident, the Plaintiff complained of headaches, sore teeth, difficulty chewing, and difficulty opening her mouth wide. The dentists diagnosed her with temporomandibular pain and dysfunction related to the accident. Dr. Blair Bennett indicated that it was his standard practice to assess every patient’s temporomandibular joints as part of every dental exam and there was no mention of such TMJ pain or dysfunction by the Plaintiff prior to the accident. An Edmonton personal injury lawyer brought a claim for general damages in the range of $150,000.00 to $175,000.00, the plaintiff was awarded $90,000.00 in general damages, updated for inflation to 2017 dollars $97,056.
The court found that the plaintiff did have a mild traumatic brain injury (at Handel Law Firm we do not consider any brain injury to be “mild”) as well as partial symptoms of post-traumatic stress disorder.
The plaintiff’s pre-accident medical history was attempted to be the focus of the trial by the defendant’s counsel, however the court found that the plaintiff’s pre-accident medical history did not in fact show anything that would cause her current symptoms other than the subject motor vehicle accident.
Found in favour of a Plaintiff who was struck with a fist in the left jaw area and suffered what was described as a serious TMJ injury. The court did not deal with a soft tissue whiplash injury, but only the TMJ dysfunction. The injury resulted in a permanent disorder, quantified at about an 8% disability of the whole person. The Plaintiff was treated with splint therapy. This was not the type of injury that would require costly or painful surgery. The Plaintiff was awarded $18,000.00 in general damages, $5,000.00 for past dental costs and $16,500.00 for future care costs, for a total Judgment of $39,500, updated to 2017 is $56,702.
The Plaintiff was rear-ended by the Defendant. A thirty-five year old female suffered TMJ dysfunction, headaches, chronic pain in the neck, back, shoulder and hip. Mr. Justice Binder awarded $40,000.00 for this 1989 accident (Judgment 1997), which, updated to 2017 is $62,759.
Madam Justice Sulyma awarded $50,000.00 for a TMJ dysfunction, neck and lower back pain, headaches, chronic pain, and depression, which, updated to 2017 is $74,179. The Plaintiff was involved in prior and subsequent accidents which raised causation issues. Nevertheless, the court concluded that as a result of the accident, the Plaintiff exacerbated her pre-existing TMJ dysfunction and sustained the other injuries alleged.
This case involved a rather severe TMJ injury, the effects of which would be felt by the Plaintiff indefinitely. The Plaintiff was awarded $55,000.00, which, updated to 2017 dollars is $86,293. Although the award was not specifically distributed between the soft tissue injury to the back, the TMJ injury, the chronic pain, emotional disruption and depression, all of which was found to be related to the accident, the award is significantly higher than what one would expect for just a whiplash injury.
The Plaintiff cracked four teeth in the accident and suffered TMJ dysfunctional symptoms that were caused by the accident. She still used splint therapy by the time of trial. For her chronic pain she was awarded $55,000.00, which, updated to 2017 dollars is $90,273.
A forty-two year old male suffered TMJ dysfunction, neck and shoulder pain, cut to left ear, and bruising of the head. Mr. Justice Lefsrud awarded $60,000.00 in general damages from this 1995 motor vehicle accident, which, updated to 2017 is $91,299.
The Plaintiff had a clear TMJ dysfunction caused by the accident. She would require surgery and splint therapy. She also suffered with spinal problems and chronic pain. General damages were assessed at $70,000.00, which, updated to 2017 is $107,784.
An inmate fell at a correctional facility due to unsafe premises. As a result of his slip and fall he suffered a pinched nerve of the spine at C-7, depression, neck twitching, a full-thickness tear of his shoulder, pain in his back, neck and shoulder. The court awarded $100,000 for general damages for pain and suffering, updated to 2017 is $102,677. This amount was reduced by 30 percent due to contributory negligence of the plaintiff in not properly watching where he was walking. So the plaintiff ended up with $70,000.
Thirty-four-year-old female was struck in the head and neck with a heavy box. She sustained a major injury to her cervical spine causing her pre-existing spinal condition to become symptomatic. It was a finding of fact by the court from disputed medical evidence that the injury resulted in a spinal cord compression which then resulted in permanent damage to her spinal nerves causing weakness on the left upper side and some sensory symptoms on the left side of the body. The court awarded $75,000.00 for general damages for pain and suffering updated to 2017 dollars is $86,420.00. The court also awarded $400,000.00 for loss of competitive advantage, $6,970.00 for babysitting and $16,160.25 for Ontario Health subrogated claim, plus $20,000.00 to the husband.
Eighteen-year-old female suffered injuries to her neck which resulted in tingling in the left arm and numbness down the left arm along with pain in the left arm. The victim proved to the satisfaction of the court that she had a serious impairment interfering substantially with her ability to perform her usual activities of daily living and employment. Jury assessed general damages for pain and suffering at $45,000.00, updated to 2017 dollars is $54,237.00. Future financial loss of $25,000.00 was also awarded.
Plaintiff, due to collision with the Defendant, suffered bruises from the seat belt on his shoulder and chest, neck pain which resolved quickly, low back pain in the L3-L5 area causing “entrapment of a nerve root, provably L-5”, sciatic pain and leg pain with pins and needles in his legs. Surgery on the suspected entrapped sciatic nerve did not relieve the pain, will be left with chronic pain on the left side, including the left buttock, and a 10% impairment.
The court stated impinged and damaged nerves have a range of $50,000.00 to $115,000.00. Here the court awarded $125,000.00, updated to 2017 dollars is $190,207.
44 year old dentist suffered an impinged nerve root at C-8. His condition was unlikely to improve in the future, surgery had risky complications. Court awarded $60,000.00 in general damages in 1993 updated to 2017 dollars is $101,102.
Post-Traumatic Stress Disorder
The plaintiff victim was a police informer and the fact that she was a police informer was revealed to her neighbours by the police department which caused considerable stress, anxiety and emotional and psychological injury because of the actions of the victim’s neighbours. The victim received $345,000.00 for general damages for pain and suffering, inconvenience, loss of amenities of life and loss of enjoyment of life for Post Traumatic Stress Disorder along with high anxiety, emotional and psychological injury, depression, and sleep disruption. The victims husband received $65,000.00 for the emotional disturbance and each child of the family received $25,000.00 (There were two children), for a total Judgment of $460,000.00.
The victim in a motor vehicle accident standing in a store was struck by a vehicle driven into the building. She suffered a capsular tear of breast implants, which required bilateral revision surgery to replace both implants, bleeding following surgery, breast pain, scare tissue pain, reduced sensation and numbness in the breasts. All of these symptoms led to depression and given the nature of the vehicle being driven into the building, Post-Traumatic Stress Disorder. She had insomnia, concerns with concentration memory and cognitive difficulties that were from the Post-Traumatic Stress Disorder and/or a mild traumatic brain injury. The court awarded $135,000.00 for general damages for pain and suffering.
The victim was considered a thin skull victim at the time of a sexual assault which resulted in nightmares and Post-Traumatic Stress Disorder. The thin skull doctrine means a victim may have a disposition to react more severely to a trauma, but as long as that disposition did not, pre-incident, have active symptoms, the wrongdoer cannot argue successfully for a reduction of injuries. In other words, the wrongdoer takes his or her victim as he finds her. In this case the court awarded $140,000.00 for general damages for pain and suffering for a severe Post-Traumatic Stress Disorder case (updated to 2017 dollars is $141,968) which in the opinion of Handel Law Firm is a damage award in all of the circumstances, too low, from this Nova Scotia court for this victim. Nova Scotia courts are known for being too stingy in compensating victims.
In this case the 43 year old female hair dresser part time, and home-maker part time, had a very difficult time with some significant physical and psychological injuries, her physical injuries were fairly minor soft tissue injuries with chronic pain in her neck, shoulders, arms, back and legs. However her psychological symptoms were overwhelming which included post traumatic stress disorder (PTSD) chronic sleep disruption leading to severe depression. With respect to the prognosis the doctors who testified indicated that the prognosis was ongoing and likely to continue. Counsel for the plaintiff in this case achieved an award which would be similar to what a Medicine Hat personal injury lawyer could achieve even though this is a British Columbia case it still has very strong precedent value in Alberta as British Columbia has many more personal injury cases going to court than Alberta. So in Alberta we must rely upon the guidance of British Columbia trial judgments as there are significantly more trial judgments in British Columbia, apparently as a result of the litigious nature of the insurance company defending these in British Columbia – ICBC. The award was $130,000.00 for general damages for pain and suffering, inconvenience, loss of enjoyment of life and loss of amenities of life, updated to 2017 is $136,701.
The Plaintiff, a 36-year-old pharmaceutical company employee, suffered injuries in a significant motor vehicle collision. The Plaintiff’s daughter and sisters were passengers in the vehicle and the Plaintiff was pregnant at the time of the accident. As a result, the 36-year-old Plaintiff suffered distress over concerns for her family and unborn child. The concerns for her unborn child lasted several hours before the hospital was able to confirm that the fetus was fine. She has some soft tissue injuries to her neck and back but the main injury at trial was the post traumatic stress around the significant motor vehicle accident and the concern of the 36 year- old Plaintiff for her family. In an award similar to what a Medicine Hat Justice would do, the BC Court awarded $90,000 for general damages for the post traumatic stress disorder, updated to 2017 is $96,247. It should be noted that the Plaintiff’s post traumatic stress disorder symptoms included headaches, anxiety, depression and fatigue. Her emotional condition did improve with treatment. The Plaintiff asked for damages for ongoing disability that would impact her future earning capacity but this was rejected by the Court which would likely be similar to what an Alberta Court would do as the nature of the future prognosis was not severe.
With respect to the psychological injury or the diagnosis of post traumatic stress disorder with the symptoms outlined above, we believe a court of law would look to guidance from the following cases:
A forty-nine year old plaintiff sustained a mild to moderate whiplash as a result of a motor vehicle accident. He now experienced depression and exhibited symptoms akin to post traumatic stress disorder. The plaintiff continued to enjoy his membership in numerous community organizations and functioned quite normally as long as he was not put in a stressful environment. He continued to perform rather fulfilling physical work, including cutting firewood and assisting in shingling a roof. The court assessed general damages at $45,000.00, updated to 2017 is $68,475.
A major aspect of the plaintiff’s ongoing problems related to depression, a professed loss of short term memory and right left confusion. Although the plaintiff alleged a mild brain injury, the court concluded that the lack of memory or right left confusion were not caused by any organic damage, rather, these symptoms were due to depression. The plaintiff was awarded $30,000.00 for the physical injury and $25,000.00 for the emotional injuries for a total of $55,000.00 in general damages, updated to 2017 is $90,273.
As well, it is worth emphasizing that a case involving a moderate whiplash injury with a psychological component the court is willing to award far in excess of the moderate injury category. This is often seen when the court divides the award between the physical injury and the psychological component.
Brent L. Handel, Q.C., and Cheryl Yingst-Bartel argued the McLaren case before the Alberta Court of Appeal and on September 14, 2011 the Court of Appeal released its decision cited as granting our appeal and dismissing entirely the defendant insurance company’s appeal. The effect of the decision was to remove any liability on the Plaintiff whatsoever with the result that the trial judgment of $345,862.02, plus taxable costs and disbursements, was increased by the Court of Appeal to $645,969.41, plus an award of double costs in favour of our client for beating a formal offer made early in the litigation. The double taxable costs and disbursements award alone was $200,951.36. This Court of Appeal case now represents the latest on the duty to supervise a learning operator and the latest comments from the Alberta Court of Appeal with respect to causation, especially as it relates to a supervisor.
Loss of Housekeeping Claim
The law in Alberta generally on Loss of Housekeeping claims was originally established by Mr. Justice Slatter in the case of Wade v. Baxter  A.J. No. 1471, October 25, 2001 where the court outlined the alternatives available to the plaintiff when the injury prevents performance of household tasks:
“When a person is injured and can no longer perform all of her household tasks, she has a number of options including:
- she can simply “do without”. In other words she can not clear the snow, or not mow the lawn, or not vacuum, or at least not do so as often.
- she can soldier on and complete the tasks herself. In many cases this will involve a cost to her in terms of increased pain, and in a loss of extra time that could otherwise be devoted to leisure activities or resting.
- she can hire replacement labour to actually complete the tasks that she is no long able to do at her previous level of efficiency.
- she can rely on family and friends for assistance.
From a legal perspective, it does not make any difference which option the Plaintiff chooses. The loss of housekeeping capacity is the same in each one, and the award of damages should be identical. It is irrelevant that the Plaintiff may receive an award for loss of housekeeping capacity, and never expend any of it on third parties for the purposes of having that housekeeping done. To argue otherwise is to confuse the assessment of the loss of capacity with the quantification of the loss. That the Plaintiff can still do some tasks, but more slowly and with pain, is also relevant” (Paragraph 142).
It is important to note that, in this case as in many cases, the Plaintiff is able to do some of the household chores but it takes longer and increases pain and results in a worsening of the injury. Justice Slatter in the above case commented on this situation, “just because the Plaintiff continues to do some light work does not mean that there is no loss of capacity with respect to those tasks. If the tasks must be done at the cost of increased pain, that represents a loss of capacity which must be compensated. If the tasks take longer than they would have previously, the lost leisure time also represents a loss of capacity which must be compensated” (Paragraph 146).
The Alberta Court of Appeal in this 2015 decision overturned the trial Judgment of Mr. Justice Belzil from 2014 with respect to numerous heads of damages including the loss of housekeeping award.
It was found that that the victim had a 21% permanent partial disability following the collision. The trial judge reduced the housekeeping award by 25% because he was of the view there was a pre-existing condition, but the Alberta Court of Appeal overturned this and said the housekeeping claim should not be reduced. Therefore, the Alberta Court of Appeal awarded for past loss of housekeeping up to the date of trial, $8,546.00.
With respect to future loss of housekeeping awards the trial judge was also in error for making a reduction for pre-existing condition and therefore the Alberta Court of Appeal adjusted the future loss of housekeeping services award to $20,000.00, updated for inflation to 2017 is $20,535.
With all due respect to our Alberta Court of Appeal, to award a victim with a 21% permanent partial disability only $20,000.00 for future loss of housekeeping is a continuation of the long standing conscious or unconscious undervaluation as a society of housekeeping services. This victim was permanently disabled – this means for life – and thus $20,000.00 represents only a very small fraction of the cost/value of housekeeping services over the rest of her life.
The 31-year-old plaintiff victim was found to have the following injuries by the trial Judge: right knee contusion, TMJ, chronic pain, chronic fatigue, cognitive difficulties found to be a mild traumatic brain injury with partial P.T.S.D. The court awarded $90,000.00 for general damages for pain and suffering With respect to the loss of housekeeping claim the victim’s lawyer presented expert evidence from an occupational therapist with respect to housekeeping abilities which was then quantified by an economist. The plaintiff was seeking past loss of housekeeping of $16,978.00 and a future loss of housekeeping claim of $148,389.00. The defendant auto insurance company said the loss of housekeeping claim should be zero.
The court awarded a past loss of housekeeping claim of $4,250.00 and a future loss of housekeeping award of $35,000.00, for a total of $39,250, updated to 2017 is $42,327. Of interest the court also awarded $125,000.00 for loss of earning capacity.
The courts define the “severe” category as devastating suffering with some objective findings of injury, and the suffering lasts for an indefinite period of time and has a significant effect on the life of the Plaintiff. There is often a percentage finding of a permanent partial disability, or a WAD III or WAD IV finding.
Whiplash Settlement Amounts Alberta
Awards for severe soft tissue injuries in the last few years show that there is a prevailing range between $75,000.00 and $140,000.00 for the most serious soft tissue injuries, (excluding wage loss, past and future) with some cases well beyond this range.
An Alberta decision of Mr. Justice Belzil on January 20th, 2014 which involved primary pain to the plaintiff’s lower back from a bulging lumbar disc. The plaintiff at the time of trial was 65 years of age, resides in Two Hills, Alberta as a retired teacher. She was an elementary school teacher for many years in Two Hills, which is part of the St. Paul School Division and typically taught grades four and five. Prior to the motor-vehicle accident she had no difficulties teaching and carried out her teaching duties on a full-time basis. She was also a Town Councillor in Two Hills, started in 2001 and she had no difficulty carrying out her duties as a Town Councillor and as a teacher at the same time. The motor-vehicle accident occurred August 17th, 2005. The victim attempted returning to work off and on, but by March 2006 her family physician, as a result of a C.T. scan revealing a bulging lumbar disc, told her to stop work immediately. Originally the plaintiff was planning to teach until age 65 and retire. As a result of the accident, however, she ended up retiring December 31st, 2006. In October 2010 she ran for the position of Mayor of Two Hills and was elected for a three-year term.
C.T. scans revealed moderate spinal stenosis at the L3-4 and L4-5 level which the neurosurgeon said would be expected of a person of her age. The orthopedic surgeon for the plaintiff and the orthopedic surgeon for the defendant auto insurance company both agreed that the plaintiff has a 21% permanent partial disability.
One of the issues at trial was whether her current condition was from the pre-existing spinal stenosis and she would have ended up this way absent the accident or whether the motor-vehicle caused or only exacerbated her pre-existing condition.
The court found that the plaintiff proved on a balance of probabilities the defendant caused injury to her that resulted in a 10.5% permanent partial disability attributable to the motor-vehicle accident.
Counsel for the plaintiff was asking for $125,000 for general damages for pain and suffering and counsel for the defendant auto insurance company suggested an award of $40,000 would be appropriate. The court awarded $75,000 for general damages for pain and suffering, updated to 2017 is $78,866.
Loss of income. Unfortunately for the plaintiff the court found that the plaintiff’s decision to retire effective December 31st, 2006 was voluntary and that she failed to prove that she would have retired at a later date had the motor-vehicle accident of August 17th, 2005 not occurred. As a result, the plaintiff’s claim for loss of income for the period July 1st, 2007 to June 8th, 2013 which was a very large claim for the plaintiff was dismissed.
Loss of housekeeping claim. The plaintiff also advanced a claim for loss of housekeeping services which was calculated by her economist at pre-trial loss of services of $101,000 and future loss of household services at $106,000, discounted for present value. The defendants submitted that zero should be awarded for this head of damages.
Although the plaintiff had a detailed economist report on loss of housekeeping using statistics, the court quoted Justice Rawlins in the case of Willeson vs. Calgary (City) 2007 ABQB 117 where Justice Rawlins observed that the use of detailed reports from economists should be restricted to serious cases involving hospitalization followed by lengthy periods of rehabilitation. Justice Rawlins also observed that statistical averages have limited value in relation to a given plaintiff without further evidence. In other words statistical averages must be backed up by the plaintiff’s own evidence of the pre-accident loss of housekeeping chores versus post-accident loss of housekeeping chores. However, here the court did find a permanent partial disability of 10.5% caused by the defendant’s conduct. The court said although this is not trivial, it does not justify a detailed calculation of loss of housekeeping claim utilizing an economist.
The court reimbursed the plaintiff for the $8,546 she paid out of pocket for housekeeping services (one would have thought this would have been very persuasive evidence with respect to her significant loss of housekeeping) and then deducted an amount for her pre-existing condition unrelated to the accident and only awarded her $6,400 which is ridiculously low. The court then went on to award the plaintiff with a 10.5% permanent partial disability, who’s only 65 years of age and thus has typically 15 years of housekeeping chores left, J. Belzil only awards are $10,000 for future housekeeping. Again, this is a ridiculously low amount for 15 years of housekeeping chores with a 10.5% permanent partial disability finding. It is astounding how our Alberta courts are so stingy with their awards with respect to housekeeping chores. Perhaps there are too many members of the bench who have not engaged in the strenuous activity of housekeeping themselves to appreciate the difficulty of housekeeping chores, let alone the difficulty of housekeeping chores with a 10.5% permanent partial disability.
In the end the court awarded the following amounts: General damages, $75,000, plus prejudgment interest; loss of income for the period July 1st, 2007 to June 8th, 2013, nil; loss of pension benefits, nil; loss of income claim as assistant principal, nil; loss of housekeeping services to date of trial, $6,400; future loss of housekeeping services, $10,000; special damages, $2,000.
So the total Judgment is just over $90,000 for a woman at age 55, 10 years later goes to trial and is now aged 65 with a finding of a 10.5% permanent partial disability receives this astoundingly low amount from Mr. Justice Belzil. It is not clear or it is unknown, of course, whether or not the defendants made a formal offer prior to trial under the rules of court for even one dollar more than this Judgment amount. But if they did, then that means that the defendants have their costs paid by the plaintiff and in addition the plaintiff must pay all of her own costs. The end result would be the plaintiff in this case would end up with almost nothing!
Given the low award, the plaintiff appealed to the Alberta Court of Appeal which heard the case and filed its decision on June 22, 2015. One of the plaintiff’s arguments was that the trial judge, Justice Belzil, misapplied causation principles and made a deduction for pre-existing conditions contrary to the decision of Athey vs. Leonati which clearly held that non-tortious contributing causes of injuries, i.e. pre-existing conditions, does not reduce the extent of the wrongdoer responsibility. The Alberta Court of Appeal agreed that the trial judge was in error for making a deduction for her pre-existing condition. However, the Court of Appeal went on to say that the $75,000 awarded even at the end of the day was still an appropriate amount for general damages for pain and suffering and so did not overturn the actual amount despite the error of law on causation discussion.
Again, with the loss of housekeeping claim Justice Paul Belzil failing to attribute all of the plaintiff’s disability to the accident was an error and the deduction of 25% by the trial judge, the Court of Appeal commented, it was unclear where this came from. Therefore, the Court of Appeal restored the full amount of out-of-pocket expenses of $8,546 and the Court of Appeal also increased the future loss of housekeeping capacity from $10,000 to $20,000 for future loss of housekeeping services given her 10.5% permanent partial disability.
Loss of income, again, the Court of Appeal concluded that Justice Belzil made a palpable and overriding error in deciding that there was insufficient evidence at trial to award the plaintiff compensation for loss of future income. The Court of Appeal stated that the plaintiff proved this loss and awarded $50,820.00 as a result.
The Court of Appeal said that Justice Belzil, when he concluded that the plaintiff’s decision to retire was voluntary and that she failed to prove she would have retired at a later date had she not been in the motor-vehicle accident, was a palpable and overriding error. This is because firstly the Court of Appeal said Justice Belzil wrongly applied evidence as to the plaintiff’s retirement plans post-accident as if they were admissions of her intention had she not been injured in that accident. As well, the Court of Appeal said Justice Belzil wrongly drew a negative inference from her failure to apply for Long-Term Disability Benefits rather than retire, where that inference was not available on the evidence. Finally, Justice Belzil was in error when he supported his conclusion through reference to statistical data that was, in the Court of Appeal’s opinion insufficiently precise for that purpose. The Alberta Court of Appeal also overturned Justice Belzil on denying the loss of pension benefits from working less and awarded the plaintiff a global award of $15,000 for loss of pension benefits from working less.
Overall, it was a significant victory for the plaintiff at the Alberta Court of Appeal overturning Justice Belzil’s trial decision findings which the Court of Appeal found were replete with errors and unsupported assumptions in his reasoning.
The Plaintiff innocent victim in the motor vehicle collision suffered a severe whiplash injury to his neck which included a herniated disc which resulted in leg numbness and tingling as well as mechanical pain in his back and moderate to severe myofascial pain. The disc herniation occurred at C5/6 and C6/7 which also resulted in cervical stenosis. The victim was left with numbness and tingling which also went down into his arms. One of the issues was the pre-existing condition of the victim as the innocent victim had latent (meaning it was not an active symptom) neurological condition of his his back and neck. The court found the victim was a “crumbling skull” victim which means that absent the accident the victim’s condition would have deteriorated in any event. Therefore the wrongdoer in this case is not responsible for 100% of the damages to the victim since the victim would have deteriorated as the result of his pre-existing latent condition in any event.
The wrongdoer is however liable for the acceleration and exacerbation of that condition and for which the court awarded $90,000.00 in general damages for pain and suffering. The plaintiff was requesting $100,000.00 from the court for general damages, plus $400,000.00 loss of earning capacity, plus $3,600.00 special damages, plus $91,000,00 cost of future care including past and future loss of homemaking capacity. In the end the court awarded past loss of earning capacity of $100,000.00, future loss of earning capacity at $230,000.00, special damages at $2,685.00, cost of future care at $25,500.00, past and future losses of homemaking capacity at $17,500.00, plus costs in favour of the Plaintiff. One should note that the defendant auto insurance company was claiming that the award for future loss of earning capacity should be $0.00.
The Plaintiff suffered from soft tissue injuries, as well as a broken rib, and was emotionally depressed after the accident. Langston J. awarded $40,000.00 in general damages (subject to a deduction for liability), updated to 2017 is $65,653. In that case, the Plaintiff was unable to work for 18 months after the accident, and continued to receive treatment for her injuries after 18 months, notwithstanding the fact that no clinical abnormalities had been found.
The Plaintiff was awarded $40,000.00, updated to 2017 is $62,759. The Plaintiff continued to suffer headaches over the 3 years following the accident for which he took medication. He suffered from ongoing back pain which improved with an active physiotherapy program, but which still prevented him from returning to his sandblasting and painting occupation. He would never again be able to resume physically arduous occupations. Objective evidence of the severe soft tissue was damage to his spine indicated by a vertebral lipping. He suffered from long periods of depression.
A female police officer suffered back, neck and shoulder pain as a result of the accident. Two years later she is diagnosed with fibromyalgia, which the court found was attributable to the accident. She constantly fought fatigue. The court awarded $40,000.00 in general damages, updated to 2017 is $61,591.
A thirty-seven year old female with complaints of whiplash in her neck and lower back as well as fibromyalgia and psychological injuries. It took four years for her recovery to plateau after the second accident (second accident one year after first). Damages assessed globally and reduced based upon “crumbling skull” principle by 35% to determine the amount for this second accident. Mr. Justice J.S. Moore awarded $45,000.00 for both MVAs, updated to 2017 is $68,475.
The Plaintiff was “rear ended” by a motor vehicle, and suffered a soft tissue injury to her neck and shoulders, and other symptoms. She also developed severe depression as a result of the pain arising from the soft tissue injuries and other symptoms. Marshall J. awarded the Plaintiff $55,000.00 in general damages, updated to 2017 is $90,273.
The Plaintiff dentist suffered from continued discomfort rendering the continued practice of dentistry impossible. There was little likelihood of improvement, and the Plaintiff’s life was adversely affected in most respects. The Plaintiff’s pain was described as a constant low grade nagging pain which was not expected to improve. Murray J. awarded general damages in the amount of $60,000.00, updated to 2017 is $101,012.
A fourty-nine year old female realtor suffered whiplash injury, soft tissue injuries to the knees and shoulder, chronic pain and psychological injuries. She was not fully recovered from injuries by the time of trial, more than six years post-mva. The court noted that she will continue to have discomfort in her work for some time. The Plaintiff was found to be a “thin skulled” victim. The court found the Plaintiff prone to exaggeration, but was not a malingerer. It was also noted that the Plaintiff did not follow the recovery program suggested to her which may have aggravated her damages. Mr. Justice Medhurst awarded $60,000.00, updated to 2017 is $91,299.
As a result of the accident, the Plaintiff suffered a ligamentous injury to her cervical spine, and myofascial pain. The Plaintiff’s injuries were significant and resulted in a mild but permanent partial disability, estimated as being a five percent impairment of the whole person. Plaintiff would possibly be able to obtain temporary and partial relief from pain through specialized physiotherapy. The Plaintiff was encouraged to consider surgery as a possible option in the future. Justice Romaine assessed Plaintiff’s General Damages at $65,000.00 which, updated to 2017 is $87,801.
General damages upheld by the Alberta Court of Appeal at (2000) 76 Alta. L.R. (3d) 9. A thirty-two year old female suffered lacerations to her face, head, arms, broken ribs, whiplash and a severe and permanent injury to her right wrist. She had a Master’s Degree in music and could not play her trumpet. She was at a top U.S.A. school. The wrist injury was of a soft tissue nature. The Plaintiff was found to be credible. There was no explanation as to why the wrist injury had not healed, but no one suggested that the pain was not real. Mr. Justice Hembroff awarded $65,000.00 in general damages, updated to 2017 is $100,085.
A thirty-five year old male welder suffered soft tissue injuries to the neck, shoulder and back. The pain continued to the date of trial. The court was of the view that injuries would persist for another year. There was a finding of a permanent impairment of 7% due to the Plaintiff’s neck, shoulder and back. The Plaintiff also suffered from post-traumatic stress disorder; however, the Plaintiff was served with divorce papers one year post-accident which caused significant psychological problems. The court was of the view that the accident was at least a partial cause of the Plaintiff’s post-traumatic stress disorder. Mr. Justice Hawco awarded $70,000.00 in general damages, updated to 2017 is $100,484.
A fifty-seven year old male parts manager for General Motors suffered a disc herniation, whiplash, fractured ribs, and chest pain. The pain continued to the time of trial. He had prior back surgery in his thirties with occasional lumbar strain and back spasms, but basically recovered prior to accident. Three years later the back pain was no longer controllable with narcotics and two risky surgeries were required. A reasonable recovery occurred post surgery but the Plaintiff will continue to suffer pain, discomfort, and restriction in the short and long-term future. Mr. Justice Mason awarded $75,000.00 in general damages which was upheld by the Alberta Court of Appeal, updated to 2017 is $134,993.
Plaintiff (27) injured in a motor vehicle accident suffered a rupture of the lumbosacral disc. He had a previous injury at the same site which had been surgically repaired in 1992. Nine months after the motor vehicle accident he had surgery to alleviate left sciatic pain. He was a classic thin skull victim in that his pre-accident condition was asymptomatic. It was likely that his back condition is now permanent. He was awarded $85,000.00 in non-pecuniary damages, updated to 2017 is $119,091, and $60,000.00 in future housekeeping and maintenance.
The accident occurred in 1993 and judgment was received in 1998. By the time of trial she still experienced daily pain from a fractured spine without paralysis, tear of small bowel, emotional pain and leg pain. The Plaintiff had a 12% permanent impairment with significant physical and emotional suffering. There was some mention that the Plaintiff failed to mitigate her loss by taking advantage of psychological and vocational counselling. Madam Justice Veit awarded $85,000.00 for general damages, updated to 2017 is $130,880.
The Plaintiff was a young, robust, physically active man prior to the accident. He developed neck pain, low back pain, which developed into chronic pain, which was so severe that it was treated by a monitored narcotics program. Since the accident, the Plaintiff has suffered extreme emotional stages from depression to extreme optimism. The Plaintiff was found to have a 10% whole body impairment. The only remaining injury at trial was a impinged left sciatic nerve that caused him chronic pain on the left side. Justice Perras awarded $125,000.00 in general damages, updated to 2017 for inflation is $190,207.
The Alberta Court of Queen’s Bench awarded the forty-nine year old Plaintiff $125,000.00 in damages for pain and suffering, updated to 2017 is $179,436, as well as loss of income of over $500,000.00. The Plaintiff had been involved in three earlier rear-end accidents. After the third accident she was off work for thirteen months and at the time of the fourth accident (this case) she had continuing TMJ pain and sometimes severe pain in her neck, back, arm and shoulder, as well as chronic pain syndrome. The specific areas of neck and back pain were said to be quite different after the fourth accident. The dental expert attributed 25% of her overall jaw problems to the fourth accident.
The doctors agreed that there is a significant psychological component to her pain, which they described using different terms: chronic pain syndrome, post-traumatic fibrositis, fibromyalgia, soft tissue syndrome, Adjustment Disorder with Depressed Mood, and Somatoform Disorder. She failed the malingering test and overstated her symptoms.
One orthopaedic surgeon testified that fibromyalgia and chronic pain syndrome did not exist. In his opinion, if there were no objective findings to cause pain, then the pain does not exist. The court did not accept his views.
The defence argued that the Plaintiff was not a credible witness and she exaggerated her evidence.
The court found that the fourth accident caused or materially contributed to a re-injury to her neck and back, resulting in permanent chronic pain syndrome. Objective findings disappeared eventually, but she still experienced pain. Her emotional estate was fragile and she was a thin skulled Plaintiff. The fourth accident was the “final straw” that caused a chronic pain syndrome that would affect her for the balance of her life.
The Plaintiff dentist suffered from continued discomfort rendering the continued practice of dentistry impossible. There was little likelihood of improvement, and the Plaintiff’s life was adversely affected in most respects. The Plaintiff’s pain was described as a constant low grade nagging pain which was not expected to improve. Murray J. awarded general damages in the amount of $60,000.00, updated to 2017 for inflation is $101,012.
All of the above cases illustrate that there is a range for the awards of general damages for pain and suffering only (excluding wage loss past and future) for serious soft tissue injuries between $75,000.00 and 140,000.00 adjusted for inflation to 2017 with some cases well beyond this range based upon the specific facts.
The victim suffered injuries in a motor vehicle accident which resulted in an aggravation of pre-existing chronic back pain. The court found that the victim now suffered from myofascial pain, soft tissue injury with pain in the neck and upper back. The court found aggravation of pre-existing chronic mid and lower back pain, aggravation of OCD symptoms and aggravation of pre-existing depression. The court awarded $75,000.00 for general damages for pain and suffering which was reduced by 15% for failure to mitigate by following proper treatment recommended by the treating doctors. Failure to mitigate was of course a separate issue from the issue of aggravation of pre-existing condition.
The victim, injured in a motor vehicle collision, suffered an aggravation of an injury to the rotator cuff as well as an aggravation of injury to previous reconstructed ACL in the knee. The victim also suffered aggravation of pain and soft tissue injuries in the back and neck. In addition to the aggravation of pre-existing injuries the victim suffered injuries to her feet, ankles, knees, hips and hand. Court awarded general damages for pain and suffering of $150,000.00. The court found a “thin skull” victim with respect to pre-existing condition in the left knee and right shoulder which means there is not a deduction for pre-existing since the pre-existing was asymptomatic and would not have gotten worse, but for the accident. The victim was found to be a “crumbling skull” victim for the carpel tunnel syndrome as that was already active with pain prior to the accident and would have gotten worse even without the accident.
In this case a 40 year old female Registered Nurse suffered soft tissue injuries and pain in her neck, back and shoulders. In addition to those injuries the accident brought on an episode of clinical depression of moderate severity. The plaintiff received a series of corticosteroid and Botox injections in an effort to reduce the pain from the spasms and inflammation in her back. The court found that the Plaintiff was not credible and that she was prone to exaggerate her symptoms. For example, during testimony in the witness box, she would bend over and hang her head down between questions, stretching and bending and exhibiting pain related behaviour. These examples were noted by other doctors who examined her.
In the end the court found that the Plaintiff had pre-existing conditions and even absent the accident she likely would have continued to experience intermittent episodes of neck, back, shoulder and headache symptoms.
The court found that the motor vehicle accident significantly aggravated the Plaintiff’s pre-existing, intermittent pain condition. The court awarded the Plaintiff $80,000.00 for general damages for pain and suffering and then made a reduction of 10% for her pre-existing condition and the likelihood that her pain symptoms would have caused some suffering and loss of enjoyment of life if the accident had not occurred.
The Plaintiff also failed to follow an exercise program despite the fact that the doctors agreed that a mild exercise program would have helped her symptoms. Therefore the court reduced her damage claim by an additional 20% to take into account the Plaintiff’s failure to mitigate. Thus she was awarded $56,000.00 in general damages for pain and suffering.
The Plaintiff was awarded just over $3,000.00 for past loss of income and made a claim for future loss of earning capacity. The court found however that the Plaintiff’s future earning capacity had only been minimally impaired by the injuries and that the plaintiff was capable of working full-time hours plus extra casual shifts in light duty nursing. The court found that any impairment to take on casual shifts above full time working hours was quite modest, but nevertheless awarded her $50,000.00 for future loss of earning capacity.
The plaintiff was seeking an award of $16,440.00 for loss of housekeeping capacity. The court found in its view of all of the evidence that the case does not justify an award for loss of housekeeping capacity. The court in fact found that some of the doctors suggested that doing house work may actually assist the plaintiff in improving her physical conditioning since the plaintiff was de-conditioned.
The plaintiff had incurred substantial expenses for physical therapy, acupuncture, massage therapy, chiropractic treatments, counselling, prescription medication and for travel costs to attend appointments. The amount was slightly over $20,000.00 in expenses for massage therapy alone. The Plaintiff’s total claim was $49,428.37 for all of her special damages. The defendant insurance company argued the special damage claim should be limited to $16,496.33 for various treatments and mileage. The court did not accept the position of the defendants. However, having said that, it is clear the plaintiff would have continued to attend massage therapy to address her pre-existing condition had her accident not occurred and reduced the damage claim for massage therapy to $3,600.00. The court awarded the Plaintiff her other special damages which brought the total of special damages to $45,828.37.
The Plaintiff was seeking costs of future care between $60,000.00 to $160,000.00. The court rightly noted that recovering damages for future items is not determined on a balance of probabilities but on a lower burden of proof and one need only show a real and substantial possibility that she will incur the future care costs as a result of the accident. The future expenses do not have to be a medical necessity but they must be medically justified and reasonable. In the end the court awarded $19,500.00 for cost of future care.
Total Judgment for the Plaintiff then was $364,428.12 which was a good recovery for the Plaintiff given her pre-existing condition, failure to mitigate and given the findings of lack of credibility with respect to the Plaintiff with exaggerating her symptoms.
The Plaintiff, originally from Poland, was involved in no less than five motor vehicle accidents. All of the accidents were heard and tried at the same time. The Plaintiff sustained only minor injuries in all of the accidents with four of the accidents whiplash type injuries. Notwithstanding this, the Plaintiff claimed significant and substantial life changing injuries. She did not have a personal injury lawyer and therefore was self-represented. Nevertheless, the trial went ahead as it was apparent that she was capable of proceeding on her own.
The Plaintiff claimed she had back pain, shaky legs, itchy feet, hot temperatures, depression, blurry vision, weakness, neck pains and headaches.
The Defendant’s five auto insurance companies acknowledged liability but argued issues of causation and quantum of damages. They claim that the Plaintiff’s injuries from each of the accidents should have resolved themselves within a few months or less and did not cause the Plaintiff any permanent impairment.
The Plaintiff called, as one of her expert witnesses, a university student at the University of Lethbridge taking her Masters’ degree in counselling, and a University of Lethbridge Health and Science Professor, Dr. Bonnie Lee, who was Ms. Howe’s supervisor. Dr. Lee did a joint session with Ms. Howe and the Plaintiff. The experts described the Plaintiff as having many issues but Dr. Lee advised that she was not in a position to write a letter for Court.
Regarding the Plaintiff’s loss of wage claim, there was a contradiction in the evidence. For example, with respect to disability benefit applications by the Plaintiff, the Plaintiff replied to a truss manufacturing company in Fort MacLeod, Alberta stating that she could start work immediately and was prepared to commute to Fort Macleod, a round trip distance of 100 km each day from Lethbridge. She also claimed the company would soon be moving to Lethbridge although there was no evidence the company was moving to Lethbridge.
The Defendant insurance companies called one of their favorite expert medical witnesses, Dr. Ian Clarke, who is qualified as an expert in pain medicine and specialties applied to pain medicine. He has given 3,000 to 4,000 independent medical examinations and has given evidence in Court 150 to 200 times. Unfortunately, there is no evidence before the Court as to how many times Dr. Clarke has testified for Defendants versus how many times he has testified for Plaintiffs. In the writer’s 25 years experience, every single case this writer has read, Dr. Clarke has testified for the Defendants. Clarke expressed the opinion that it was likely that the accidents produced a sprain/strain of the neck muscles equivalent to a whiplash associated disorder at level Wad I or Wad II and those injuries are defined in the “Diagnostic Injury Protocols Regulation, Alta Reg. 122/2004”.
Again the Court found the Plaintiff’s evidence to lack credibility. The Court went on to say that this Plaintiff, who was self-represented, in other words did not have a lawyer, had conduct throughout the course of the litigation that was marked by “exaggeration, deception, and manipulation.” The Court precluded she was an “untrustworthy witness”. These are very strong statements for a Court in Alberta to make. In the end, the Court awarded her only $11,500.00 (updated to 2017 is $11,988) for the first and fifth motor vehicle accidents. The actions for the second, third and fourth motor vehicle accidents were dismissed as not causing injuries in her current state.
Likely, the Defendants served a formal offer for more than the Judgment amount which means the Plaintiff likely, although no one knows for sure, owes the Defendant insurance company money for costs given the small award the Plaintiff achieved. It should be noted that the Defendant insurance companies, because there were five accidents, had five separate lawyers from five separate law firms, so the Plaintiff, if she did not achieve a Judgment in excess of any formal offer the Defendants sent to her, would owe a huge amount of costs which, given the Justice’s finding of her complete lack of reliability and trustworthiness, is an appropriate ending to a complete waste of the court’s time in this case.
The 49 year old Plaintiff was in an accident in 2008 however he had been injured in previous accidents in 1996 and 1997. The issue was whether or not the Plaintiff had completely resolved from his previous accidents before the injuries in 2008. The Defendants argued that he had not resolved his injuries and therefore the amount to be recovered in the 2008 accident should be very limited. The court made a finding of fact that when the third accident occurred in April 2008 the Plaintiff was 90% improved from the injuries sustained in the second and first accident and that he was able to perform well at work prior to the 2008 accident. Further the court stated it was clear that the Plaintiff had ongoing problems with his neck, left shoulder, lower back, and leg pain which had persisted from the date of the 2008 accident to the date of trial.
In the result the total Judgment awarded was $458,156.68 which was broken down as general damages for pain and suffering of $85,000.00 (updated to 2017 is $89,381) loss of past income of $21,000.00, loss of income earning capacity $250,000.00 (note this is a significant award for future income capacity and see our heading loss of earning capacity for further details), cost of future care of $17,820.00, housekeeping services of $100,000.00 (again this is a significant sum awarded for housekeeping services which Alberta Justices could learn from), and special damages agreed on of $5,336.68.
In a decision of Mr. Justice Belzil of the Alberta Court of Queen’s Bench in Edmonton issued March 27th, 2014, the Court dealt with previous conditions of lumbar spondylosis with age-related degenerative spinal stenosis, multi-level, Sjogren’s syndrome, an inflammatory condition with associated possible systemic lupus erythematosus and associated Sjogren’s condition, and fourthly scoliosis. The accident occurred in 2005. The Plaintiff at trial was 65 years of age and resides in Two Hills, Alberta and is a retired teacher. In 2005, she was operating her motor vehicle in Edmonton and stopped at a red light when a large flatbed delivery truck rear-ended her pushing her vehicle into the intersection. Her vehicle sustained significant damage.
The Court made a finding that the collision caused, notwithstanding the above-noted pre-existing injuries, the following: exacerbation of lumbar spondylosis, whiplash associated disorder 1 – resolved and involvement of intermittent pain consequent to spinal stenosis but unrelated to the motor vehicle accident. The Court basically found that because of the Plaintiff’s pre-existing lower back pain, the accident was causative of her low back problem and her low back symptoms are, in a balance of probabilities, attributed more to her progressive condition of spinal stenosis, age-related spondylosis, at multiple levels, and not the motor vehicle accident. The orthopaedic surgeons testified that the Plaintiff has a 21% permanent partial disability but they strongly disagreed as to what extent, if any, the motor vehicle collision of 2005 caused her current permanent partial disability. The Court concluded that the motor vehicle accident, on a balance of probabilities, caused a permanent partial disability of 10.5% and found the other 10.5% permanent partial disability unrelated to the motor vehicle accident.
Edmonton counsel for the Plaintiff asked for $125,000 for general damages whereas counsel for the Defendant said $40,000 would appropriate. The Court awarded $75,000, updated to 2017 is $77,008. The Court declined to award anything for loss of future income citing her pre-existing problems. For the loss of household services claim, the Court awarded $6,400 for past loss of household services and $10,000 for future loss of household services.
The innocent 71-year-old victim, an accountant and bookkeeper, had prior to the accident undergone multiple hip surgeries including hip replacement surgeries and also suffered pre-existing arthritis in her left knee. Hardware installed in a prior surgery was broken in the accident and had to be cut and replaced with new hardware inserted. The plaintiff spent four months in rehabilitation. She missed 21 months of work after the accident as a 71-year-old accountant and bookkeeper. At the time of trial she continued to suffer pain. The court reduced the award by 20 percent for the contingencies that she would have had to undergo knee or hip surgery in any event. The innocent victim and the personal injury lawyer was awarded general damages in the amount of $72,000 (updated to 2017 is $76,998), plus $16,000 for loss of future earning capacity plus $16,000 for cost of future care. Handel Law Firm – case comment- this case underlines the difficulty when plaintiffs in their 70’s are working. The amount of the loss of future income is small due to the statistical analysis; therefore, the court should have granted this plaintiff a much higher amount for general damages for pain and suffering than $72,000 given the horrific nature of these injuries and the ultimate small award overall.
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