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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

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

December 2007

The One Percent Rule Revisited

In Danek v. Calgary (City), 2007 ABQB 670 the Defendant City of Calgary took the position that the Administrator of the Motor Vehicle Accident Claims Act was responsible for paying a portion of a judgment where liability was joint. In short, the City took issue with the 1% Rule. The court disagreed with the City and confirmed that in cases involving multiple tortfeasors, the Administrator does not contribute if any other party is at least 1% liable. The Fund is a recovery source of last resort.

Master Hanebury

The Right to a Nominee during a Rule 217 Examination

In Nistor v. Kankolongo, 2007 ABQB 684 the Plaintiff wanted to have his own nominee present during a Rule 217 Psychological exam. The Defendant objected citing concerns that a third party nominee may negatively impact the quality of testing. The court disagreed with the Defendant and directed that the nominee be present. The court confirmed the principle that the Plaintiff’s right to have a nominee present is absolute.

M.B. Bielby

No Liability for a Municipality for Trees Near an Intersection

In Malmas Estate v. Mittelstadt, 2007 ABQB 648 the Defendants issued a Third Party Notice against the County of Wetaskiwin No. 10 for failing to erect signage at an uncontrolled intersection and for failing to clear trees that allegedly obscured the intersection. The County brought a motion for summary judgment on the grounds that section 533 of the Municipal Government Act provided a complete defence. The court agreed and held that a County cannot be liable for a decision not to control an intersection or for trees that might obscure the intersection. The principles of stare decisis should be followed.

S. Sanderman

Minor Soft Tissue Injures: British Columbia

In Dadson v. Gallo, [2007] B.C.J. No. 2215, the female plaintiff suffered a minor injury in a low impact collision. The plaintiff maintained that her injuries were acute for 6 months and generally symptomatic for 17 months. The court disagreed and held that the injuries “were resolved sometime within four to six months from the date of the accident.” The court was of the view that strain was no worse than Grade II and awarded $15,000.00 for general damages. The court also awarded loss of housekeeping of $3,000.00.

D. Satanove

Post Traumatic Stress Only: Damages for Nervous Shock

In Arnold v. Cartwright Estate, [2007] B.C.J. the male plaintiff attended at the scene of an accident and assisted with first aid on the victims, three of who died. Eleven months later the plaintiff suffered a panic attack and was diagnoses with post traumatic stress and bipolar disorder. The court awarded damages for the post traumatic stress finding that it was sufficiently connected to the accident. The court did not award damages for losses it determined flowed from the bi-polar disorder. For Post Traumatic Stress Disorder symptoms lasting 12 to 18 months the court awarded $10,000.00 for general damages.

G.B. Butler

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

*If you have interesting cases that you think should be summarized please email me the citation for review.

Multiple Injuries with Chronic Pain

In Park v. Heimbeckner, 2007 ABQB, 386 the 29 year old male plaintiff suffered serious injuries when he was ejected from a vehicle involved in a high speed collision on December 30th, 2001. The plaintiff suffered eight fractures to his cervical spine, a minor closed head injury, a broken right foot, a severe injury to his and a torn rotator cuff on his left shoulder. Additionally, the plaintiff suffered from a laceration on his scalp which required a skin graft and four surgical procedures. The court concluded that as a result of his injuries the plaintiff was in constant severe pain and suffered from bouts of depression and sexual dysfunction. For the significant injuries and ongoing chronic pain the court awarded $160,000.00 for general damages.

It should be noted that notwithstanding the seriousness of the injuries, the court did not award damages for loss of housekeeping and instead factored the amount into the general damages.

Mild to Moderate Soft Tissue Injury at Low Speed

In Gerlitz v. Lee, 2007 ABQB 495, the 25 year old male plaintiff was rear ended in August of 2001. The evidence suggested that there was minimal damage to either vehicle and that the speed of the defendant vehicle was around 4.5 km/h. The plaintiff suffered from neck pain and back pain after the collision. Notwithstanding treatment the plaintiff complained of ongoing back pain to the time of trial (6 years). The court concluded that collision caused a “whiplash type injury in the mild to moderate range” and awarded $35,000.00 in general damages.

It should be noted that at the time of the Collision the Plaintiff was a martial arts instructor. He claimed between $700,000 - $3,000,000.00 in loss of income and earning capacity as a result of his inability to run his business. The court accepted that loss of earning capacity can be proven on a simple probability basis however found no evidence to justify a large award. The court awarded $68,000.00 for loss of income.

Minor Brain Injury, Fractured Wrist and Moderate Soft Tissue Injuries

In Seich v. Tobin, 2007 ABQB 492 the 21 year old male plaintiff was injured when his motorcycle struck a van. Liability was in issue and apportioned equally. The court concluded that the plaintiff sustained a fractured wrist with ongoing impairment, moderate soft tissue injuries to his neck and back which lasted 3-4 years, and a mild brain injury that did not cause any long term deficits. The court awarded $80,000.00 in general damages and reduced the amount by half for liability. Again this award was inclusive of housekeeping damages.

Production of Medical Charts

In Prasad v. Weber, 2007 ABQB, the female plaintiff filed a claim alleging ongoing injuries to her neck, shoulders and back etc. The injuries were alleged to be permanent and ongoing – i.e. “chronic”. At discovery defence counsel requested a number of medical charts from the Alberta Statement of Benefits. The plaintiff refused on the basis that they were not relevant.

The Master directed the charts be produced and the Justice, on appeal, agreed. The court concluded that the starting point for relevancy and materiality was the pleadings. In this case, the pleadings alleged an ongoing “chronic” injury. The defence maintained that the injuries could have been caused by other sources. The court agreed that the “mere fact that a plaintiff puts their health into issue does not entitle a Defendant to review the Plaintiff’s entire medical history and to the medical chart records of any treating physician . . .” However, the court went on to say that when the Plaintiff “raised the issue of her severe and ongoing pain . . .” the records of any treatment provider that could disclose pain would be relevant. The court directed that the records be ordered and produced subject to any objections over relevance.

This decision seems to suggest that if the allegations are in the nature of an ongoing “chronic” injury the entire medical history may be relevant, and at the very least, needs to be canvassed. From a practice perspective, it appears that all records on the SOBP should be ordered and then reviewed for relevance.

Soft Tissue and TMJ Injury

In Sra v. Zhu, 2007 ABQB 426, the 54 year old male plaintiff was injured when he was t-boned 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 in general damages and held that higher awards are for cases involving permanent partial disability or there is a long period of recovery or chronic pain. The court included loss of housekeeping in this general damages.

Case Summaries Prepared by
Craig G. Gillespie
McNally Cuming Raymaker
403-571-0555
cgillespie@mcnallycuming.com

*If you have interesting cases that you think should be summarized please email me the citation for review.