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Pre-Judgment Interest: Date of injury not claim

Willeson v. Calgary (City) [2008] A.J. No. 564. The plaintiff sustained soft tissue injuries and a concussion. At trial, the judge awarded $45,000 for general damages. The judge held that pre-judgment interest was to be calculated from the time the Statement of Claim was served not the date of the accident. The Court of Appeal upheld the award of general damages. The Court went to hold that interest is to be calculated from the date of the accident as that is when the defendant was aware of a claim.

Soft Tissue Injury: One Year

Deo v. Wong, [2008] B.C.J. No. 466 the plaintiff suffered soft tissue injuries in a collision. The court concluded that the soft tissue injuries to the plaintiff’s neck and back resolved within 1 year. The plaintiff also developed knee pain 6 months after the collision. At trial the court awarded $36,650 for all of the injuries including the knee. On appeal, the court held that the knee injury was not related and reduced the damages by $7,000.  The British Columbia Court of Appeal supported and affirmed an award of $29,650 for a moderate soft tissue injury that resolved within one year.

Chronic Pain

O’Scolai v. Antrajenda [2008] A.J. No. 495 the female plaintiff was rear ended in what the court called a minor collision. After 4 years, the plaintiff had not returned to work and was suffering from neck pain, shoulder pain, TMJ pain, weakness in her limbs, nausea and vomiting. After a period of time the plaintiff developed a severe abnormal posture in her neck.

The court considered issues of causation and credibility. The court noted that the plaintiff had prior complaints of pain in her neck and shoulder that was noted to be severe at times. The court also concluded that the plaintiff deliberately exaggerated her symptoms.

The court concluded that the plaintiff suffered from an aggravation of neck and shoulder pain, TMJ pain, nausea and vomiting. The court concluded that the plaintiff’s abnormal neck posture and weakness in her limbs were not caused by the collision. The court concluded that after the passing of 4 years the plaintiff did continue to have a degree of pain in her neck and jaw as well as reduced range of motion but that the severity was exaggerated. The court awarded $75,000 for general damages.  [Justice Read]

Case Summaries Prepared by
Craig G. Gillespie
Cuming, Gillespie & Raymaker
403-571-0555 cgillespie@cuminggillespie.com

The national certification hearing on Vioxx is now set for June 24-27 in Toronto, Canada.

Kelly Cryderman, Calgary Herald
Published: Sunday, April 20, 2008

Minutes after paying $60 in fees for a $300 loan, Terry Hartley just shrugs.
“This one’s not bad,” Hartley, 47, says of the interest on the week-long loan. “It’s not cheap, but it’s better than some of them.”
Hartley, a courier who earns about $600 a week said he’s recently declared bankruptcy — fallout from his divorce and “wasting money.” He has a bank account, but no line of credit.
Two weeks ago, he fell behind on some bills and had to go for an advance at a payday loan company on Macleod Trail.
“You can only get half of what your paycheque is,” he said.
One week later, Hartley went back. This time to take out a loan to pay off almost all of the first loan, which he didn’t have the money to pay off.
The cost of two weeks grace: another $60.
“That’s more or less all it is — convenience,” Hartley said, shrugging once more, adding he hopes he won’t have to get a cash advance again this year.
When a borrower like Hartley takes out another loan to cover the first, with new fees, it’s termed a “rollover” in the payday loan industry. Rollovers have been banned by larger payday loan companies, as they trap some borrowers in a cycle of loans.
Alongside other provinces, the Alberta government is now grappling with rollovers and other contentious issues as it debates how to properly police the rapidly growing payday loan industry. This week will see the end of consultations on new regulations for the industry.
While there has been little attention paid by people not intimately involved, it will be no easy task for the government to come up with rules that please both businesses and consumer advocates.
Some see payday loan companies as shady exploiters of the poor and desperate, or those with bad credit. Others say they provide a much-needed service that banks and credit unions won’t touch, in part due to the high number of defaults on loans.
“The payday loan industry is one that evokes strong opinions from both sides,” said Brock Ketcham, who is leading the Alberta government’s review of the industry in the consumer services branch.
The people who use payday loans are charged $20 to $50 for every $100 they borrow to tide them over until payday. Money Mart, the Cash Store, Western Cash Mart or EZ Cash Advance and numerous others are all firms that provide small, short-term loans with high interest-rates and fees that in some instances add up to 1,000 per cent or more, if calculated on an annual basis.
Whether it be rising consumer costs or an increasingly willing attitude when it comes to taking on debt, Canadians have not shied away from using services offered by the payday loan companies
From just a handful of stores in the early 1990s, Canada now has at least 1,350 payday loan outlets, with more than 250 of those storefronts in Alberta.
“All you have to do is compare a Yellow Pages today with one three or four years ago, and you would see there’s a very significant rise in the number of outlets,” Ketcham said.
The province itself has a strong connection to the industry. The Canadian payday loan industry has its longest histories in B.C. and Alberta, and the two largest providers in the country — Money Mart and Cash Store Financial (formerly known as Rentcash Inc.) — both were founded in Edmonton.
(page 1 of 3) - full article is available here.

Excerpt posted for your convenience from Canada.com, no copyright or ownership of this article is claimed by cuminggillespie.com. The full article is available here.

In February, 2003, I suffered a massive heart attack while a hospital patient.

On February 17, 2003, my wife and I took our two dogs for a walk. I started to have difficulty breathing, was red in the face, became panicky and was sweating even though it was very cold outside. I told my wife that I thought that I was having a heart attack.My wife drove me to the hospital. Upon presentation in Emergency I was sweating, breathing rapidly and my fingers, hand and arms were numb and tingly and I could not catch my breath.The Emergency physician diagnosed acute anxiety and hyperventilation.I was admitted to hospital. The next evening I sustained a massive heart attack.

My life has significantly changed since my massive heart attack - the functional capacity of my heart has been dramatically reduced. I used to be a power engineer at a sour gas plant who enjoyed big game hunting and fishing. I can no longer work and spend most of my time in a reclining chair in front of the television.

I retained the legal services of Bill McNally & Pamela Fischer and launched a medical malpractice law suit. A Justice of the Court of Queen’s Bench of Alberta found that the Emergency Physician was negligent in my care in that he failed to order the required tests for a 45-year-old smoker who arrived in the Emergency Department with my symptoms.

Bill and Pam handled my case in a professional manner and demonstrated a real sense of understanding and compassion with respect to the hurdles I was facing as a result of my sustaining such a life-altering injury. Their successful handling on my case resulted in me being awarded a significant sum of money and this has had a fundamental effect on my life for which I am grateful.

Bob Zazelenchuk

In February, 2002, my life changed forever when I dislocated my right shoulder and sustained a fracture to my humeral head, tore my rotator cuff and damaged the nerves in my shoulder. I subsequently developed a frozen shoulder. I am right-handed and today I live with severe chronic pain which interferes with my sleep and adversely affects all of my daily activities.

I am an elementary school teacher by profession - a vocation which I loved. On February 4, 2002, I took my science class outside to trace their shadows on the sidewalk. As I was walking on the sidewalk of the school yard I stepped on a patch of snow which was situated below a drain spout which channelled water off of the school’s gym roof onto the sidewalk. I fell heavily onto my right shoulder. Shear ice lay under the skiff of snow in a depression in the sidewalk.

I retained Pamela Fischer to represent my legal interests. Pam helped me through the litigation process, concluding with a Judicial Dispute Resolution before the Honourable Madam Justice Romaine. Pam was very professional and compassionate. She understood my medical complications and my fear of the legal process. She obtained a very good settlement for me which will allow me to attend at a Chronic Pain Clinic in an effort to improve the quality of my life. I am fortunate to have had the benefit of Pam’s legal expertise and personal assistance.

Debra S.

To whom it may concern:

My mother was involved in a car versus pedestrian accident on November 23, 2005. She sustained a burst fracture of T12 vertebral body. She had an interior spine decompression at the T11 L1 level with instrumentation and left iliac crest bone graft. She has complete motor loss below T12 and remains with incomplete sensory loss at and below the same level. In short, she was left a paraplegic.

My family and I were totally shocked and really felt helpless until we found McNally Cuming Raymaker. Mr. James Cuming and Mr. Craig Gillespie came to the Foothills Hospital and visited my mom. They did a great job and considered everything for my mom. They contacted social workers; they contacted the Calgary Health Region; found us a brace company and wheel chair company; dealt with the insurance company and they even found a nursing house for my mother’s recovery.

My mother is a resident of P.R. China and after her surgery she had to go back to China to continue therapy. In the next two years, Mr. James Cuming and Mr. Craig Gillespie did a lot of hard work to make everything work well. It was not only a big difference between two health care systems, but it was also very hard to find someone that is good at both languages and being a certified doctor by the Canadian Health system. At the end of 2007, they got the maximum compensation from the insurance company and my mother accepted the offer. Right now, although my mom is still in a wheelchair everyday, I would say we got the best result in this situation. My whole family really appreciates McNally Cuming Raymaker, their professionalism, their understanding, their hard work and their highly efficient team. I highly recommend their services to anybody who truly needs help.

Zhong Wei

On October 10th 2003 I was involved in a motor vehicle accident which changed my life forever. In a instant my hip, leg and back were fractured along with many other injuries. As I lay there, on the road, I could feel the sensation slowly leaving my legs and I ended up with a spinal cord injury.

After a couple of days I woke up and looked down at myself and I said “what a mess”. The next day I called McNally, Cuming Raymaker and I’m glad I did.

In the following week I met with James Cuming, a lawyer for McNally Cuming Raymaker, who explained to my wife and myself exactly what would happen in the following months if we decided to use them to represent me in my lawsuit.

From the beginning I trusted Jamie’s advise because of his commitment to me and his depth of knowledge and experience in the field of personal injury litigation. He explained to me that this litigation would be a long and difficult process. This prepared me for the ordeal that was to follow.

I was quite depressed after my 5 month stay in the hospital and I was convinced that I wasn’t gong to get better.

However, with Jamie’s encouragement, I realized that one day this whole nightmare would be over. During the next four years Jamie encouraged me to stay strong because at times I became quit discouraged. I was impressed with his professionalism and dedication to me and my case and with his knowledge of personal injury law.

As the final day (mediation) approached I was quite stressed, realizing this settlement would change my life one way or another. Jamie Cuming and Craig Gillespie joined forces and persevered and obtained a suitable and substantial settlement for me.

I highly recommend the firm of Cuming , Gillespie & Raymaker.

Russ Bray

Mild to Moderate Soft Tissue Injuries: The Essential Collection

Palpal-Latoc v. Berstad, [2004] A.J. No. 240 the plaintiff suffered injuries which persisted for only seven months. At trial the jury awarded $2,500.00 for general damages. On Appeal, the Court held that $2,500.00 for a seven month injury was inordinately low and substituted an award of $12,000.00 for general damages [updated $13,500].

Sra v. Zhu, 2007 ABQB 426, the 54 year old male plaintiff was injured when he was tboned in a red light intersection collision. He suffered from lower back pain, neck pain and TMJ pain. The court was of the view that he had pre-existing injuries and was also in a subsequent accident. The court had concerns over the plaintiff’s credibility. The court held that his injuries resolved within three to four months. The court awarded $13,000.00 [updated $13,500] in general damages.

Reimer v. Polgar, [2005] A.J. No. 373 (Prov Ct.) the plaintiff suffered soft tissue injuries that were symptomatic for 11 months and were expected to continue on an intermittent basis for some time into the future. The court awarded general damages of $16,500 for the acute phase of less than 1 year plus an additional $3,000 for the ongoing intermittent pain for a total of $19,500.00 updated [$20,750].

Teichgraber v. Gallant, [2003] A.J. No. 70 the plaintiff suffered soft tissue injuries in a very low impact collision. The court had concerns over the plaintiff=s credibility and found that many symptoms were exaggerated. The court was of the view that the plaintiff suffered a mild to moderate soft tissue injury to his neck and back which lasted six months and should have completely resolved after a short period of further intermittent pain. In this case the court assessed the general damages of at $17,000.00. [Updated $18,600].

Krawchuk v. Mellor, [2003] A.J. No. 216 the female plaintiff was rear ended and suffered soft tissue injuries. For only two months she had acute pain and then had lingering intermittent pain for 15 more months. The court awarded $18,000.00 in general damages [updated $19,725] for the two month acute injury combined with the ongoing intermittent and occasional pain.

Morrow v. Zhang, 2008 ABQB 98 the court considered the constitutionality of the Alberta Government “Cap” on soft tissue injuries. The court held that the cap was unconstitutional. In doing so the court assessed damages for two soft tissue injuries:

Pearl Morrow v. Jian Yue Zhang

The 34 year old female plaintiff suffered soft tissue injuries to her neck and upper back but was noted to have a history neck and back pain that predated the Collision. She experienced some tingling and numbness for 6 months post Collision. She was diagnosed with having a “WAD II” injury and mild lumbar strain and attended for 21 physiotherapy treatments. She also attended for 13 chiropractic adjustments and several massage therapy treatments. It was noted that the plaintiff had injuries that were acute for approximately 10 months with gradual improvement over 18 months. Balancing the plaintiffs moderate soft tissue injuries and her underlying medical history the court awarded $20,000.00 in General Damages. Wittmann J.

Brea Pederson v. Darin James Van Thournout et. al.

The 32 year old female plaintiff was rear ended while yielding to pedestrians. The plaintiff suffered soft tissue injuries to her neck, shoulders, back and wrists. Her neck, shoulder and back pain resolved within one month of the Collision. She continued to have wrist pain on an ongoing intermittent basis. The Certified Examiner suggested that the Plaintiff suffered a Grade II soft tissue injury to her neck and back and an injury to her wrist. For soft tissue injuries and the Grade I wrist strain injury the Court awarded $15,000.00 in General Damages. Wittmann J.

Ly v. Gilbert, 2001 CarswellAlta 1524 (Q.B.) two plaintiffs, both 36, suffered soft tissue injuries to their neck and back. Both had pre-existing injuries that were relatively asymptomatic at the time of the accident. They had decreased range of motion and tenderness with pain. The injuries, for the most part, resolved after one year with some ongoing minimal stiffness. The court awarded $25,000.00 [updated $29,000] and $20,000.00 [updated $23,200] respectively.

Dyck v. Wilkinson, [2004] A.J. No. 1155 the female plaintiff suffered neck and lower back pain with some hip pain that lasted approximately 18 months. The Court found that she would also have some intermittent ongoing pain beyond that time but none of her normal activities were restricted. The plaintiff had underlying degenerative disc disease that the Court held was not worsened by the accident. The Court also refused to accept that the Plaintiff had suffered from any permanent or partial impairment. In this case, with soft tissue injuries lasting approximately 18 months, Justice Rooke awarded $30,000.00 in general damages [updated $32,500].

Case Summaries Prepared by
Craig G. Gillespie
Cuming, Gillespie & Raymaker
403-571-0555 cgillespie@cuminggillespie.com

A Communication to Class Members from the National Counsel Team:

In recent days and months, there has been significant media coverage about developments in Vioxx litigation, both in Canada and in the United States and you may be confused about what these developments mean and how they affect your rights. This update aims to provide you with some explanations and assistance in understanding the current situation with Vioxx litigation in Canada.

In November, 2007, Merck & Co. announced that it had agreed conditionally to settle a significant portion of the Vioxx claims in the U.S., setting aside approximately $4.85 billion to do so. Even though those cases deal with the exact same drug as the Canadian litigation, Merck has, to date, made no effort to establish a parallel settlement for Canadian users of Vioxx and Merck Frosst Canada Ltd. has publicly and repeatedly stated its intention to vigorously defend all Vioxx lawsuits in Canada.

The defendants have raised various procedural hurdles which have slowed the progress of the litigation. As a result, all Vioxx lawsuits in Canada remain in various stages of litigation. In Ontario, there is a proposed national class action which has been brought on behalf of all Canadian users of Vioxx and their family members. A consortium of 19 eminent law firms from all across Canada has come together to collectively represent Canadians in this lawsuit and advance the strongest case possible. At this stage, all Canadians who took Vioxx (and their family members) are covered by this lawsuit, whether they take any active steps to contact counsel or not.

The Ontario action was originally scheduled to proceed to its certification hearing in October, 2007. This hearing is a mandatory step in the litigation process and decides whether or not the action should be allowed to proceed as a single class action lawsuit, for the benefit of all class members. Shortly before the Ontario hearing was scheduled to proceed, the defendants sought and were granted an adjournment in order to conduct cross-examinations of various witnesses. The rescheduled hearing was set to commence on February 13, 2008, but only several days before the certification hearing, the defendants sought to have Mr. Allan Rock, Q.C., the firm of Sutts, Strosberg LLP and the National Counsel Team disqualified as a result of Mr. Rock’s previous political career, during which he served, among other things, as the federal Minister of Health. As a result of this last minute motion, the certification hearing was, once again, adjourned.

Mr. Justice Maurice Cullity of the Ontario Superior Court of Justice heard the removal motion on February 15, 2008. In a decision released on February 26, 2008, his Honour decided that Mr. Rock would have no further involvement in this case; however, Sutts, Strosberg LLP and the rest of the National Counsel Team remain as counsel in this action and strongly believe that the certification hearing should be rescheduled as soon as possible, and hopefully no later than April, 2008.

On November 9, 2006, Justice Andre Denis of the Quebec Superior Court authorized a class action for Quebec residents who suffered damages caused by the use of Vioxx. That case pertains to residents of Quebec only and is also continuing to work its way through the legal system.

In further recent Canadian Vioxx news, a separate case launched in Saskatchewan was certified as a class action in a decision released on February 20, 2008. We welcome the decision of Mr. Justice John Klebuc in determining that litigation related to Vioxx is an appropriate case for certification; however, we note also that Merck has already indicated its intention to appeal that decision which will likely stay the certification decision and any related certification order. Practically speaking, this means that this case will be on hold until Merck’s appeal rights are exhausted.

We should also note that the decision allows Canadians who do not reside in Saskatchewan to participate in the class action on an “opt in” basis. If you do not reside in Saskatchewan but choose to “opt in” to this action, you may be precluded from participating in the Ontario action or be represented by the National Counsel Team. It will be very important to consider how your rights will be affected before deciding whether or not to opt in to the Saskatchewan class action. Again, in view of Merck’s intention to appeal Mr. Justice Klebuk’s decision, it is likely that this aspect of the case will be on hold pending the appeals process as well.

Because Merck has not, to date, indicated any willingness to make any settlement proposal for Canadian Vioxx users, in spite of their multi-billion dollar settlement proposal in the US, the current strategy of the National Counsel Team is to drive the Ontario litigation forward and deal with the case on the merits. The time for class members to make any necessary decisions about how to advance their individual claims will arise after these various proceedings have been finally determined following a common issues trial. It is unfortunately not possible to predict with certainty how long this process may take; however updates will be provided as they become available.

As members of the National Counsel Team, we wish to express our appreciation to all class members for their patience to date with this complex litigation and we wish to assure you all that everything is being done to ensure that you receive the justice you so rightly deserve.

Cuming, Gillespie & Raymaker are very happy to announce the addition of Lerners LLP of London, Ontario to the National Class Action Team for the Accutane litigation. Lerners LLP brings a wealth of experience and talent to the class action which will be proceeding shortly through the Ontario Superior Court. James Cuming of Cuming, Gillespie & Raymaker is one of the primary counsel on the national class action claim.

We will continue to keep our clients apprised as to the progress of the Accutane National Class Action which will be proceeding on Ontario.