September 12, 2007

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 Cuming & Gillespie Lawyers 403-571-0555 [email protected] *If you have interesting cases that you think should be summarized please email me the citation for review.


This entry was posted on September 12, 2007


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