April 7, 2010

Collection of Interest on Disbursements Schmolzer v. Higenbottam, 2009 ABQB 616.  [B.E. Romaine] The 35 year old male Plaintiff suffered soft tissue injuries and a mild traumatic brain injury or concussion. The court awarded general damages of $75,000. The court was asked to consider whether the Plaintiff was entitled to interest on the disbursements incurred to prosecute his claim. The court refused to grant the plaintiff interest on disbursements holding:
I agree with the Defendants that the facts of Bourgoin v. Ouellette [2009] N.B.J. No. 164 are distinguishable, and that in Mr. Schmolzer’s case, there is not a strong access to justice issue that would warrant an exceptional award of interest on disbursements. I therefore decline to grant interest on disbursements for expert fees.
It appears that the issue may still be argued depending on the particular circumstances of each case and whether there is an access to justice issue. Chronic Pain: Aggravation of an underlying “asymptomatic” injury. Do v. Sheffer, 2010 ABQB 86 [D. Lee] The male plaintiff was involved in collision in November 2002. The Plaintiff had a significant pre existing history of low back pain that included a surgical repair 10 months before the collision. The Plaintiff claimed for injuries to his thumb, neck pain, upper back pain and aggravation of low back pain. The court found that:
  • the Plaintiff had history of intermittent back pain prior to the collision;
  • the plaintiff had a satisfactory recovery from his surgery and was working full time at the time of the collision; and
  • the plaintiff suffered a significant aggravation to his lower back and new injuries to his neck and shoulder.
The court held that trauma resulted in much of the Plaintiffs ongoing complaints.  The court held that the collision and trauma was the cause of the plaintiff’s permanent disability. The court awarded $85,000 in general damages for continuing and permanent neck, shoulder and back injuries. As a side note, the court considered whether RRSP withdrawals should be compensated. The court refused to compensate for the withdrawal but seemed to cite lack of evidence as the reason. Lastly, notwithstanding the court finding a permanent disability, no award for past loss of housekeeping was granted and it was included the general damages. Personal Injury Refresher Adeshina et. al. [2010 ABQB 80] This case covers many issues relative to the practice of personal injury law including, standard of care, settlement offers, client updates, exchange of expert reports and advocacy.  This case will the subject of a loss prevention seminar in June. Rule 217 Within the case the court stated that Rule 217 is to be considered in a broad fashion.  In essence, when a plaintiff is served with a medical report under Rule 217 it triggers an obligation to disclose all “like reports”.  This should be interpreted to include all medical reports, health care provider reports and even raw testing data.   The distinction between a “physician” and “health care provider” is eliminated. If the report covers the plaintiffs injuries it is to be produced. Trial within a Trial The plaintiff sued all of his former lawyers for settling his claim for an improper amount.  The court rejected his claims and dismissed his action.  However, the court provisionally assessed the damages that were likely had his claim not been settled.   The court held his best case was in the range of $620,000. If the court had concerns about his credibility it was likely that he would not beat the first Formal offer of $275,000. The plaintiff complained of chronic pain, mild head injury, mild hearing loss, TMJ injury, right shoulder injury with surgery and depression. The plaintiff alleged that the injuries forced him to quit his job.  The court provisionally assessed general damages at $120,000 for the constellation of injuries. Informal” Offers and Costs Mahe v. Boulianne, 2010 ABCA 32 In this case the plaintiff was awarded in excess in $500,000 at trial for a fall from a pole. The defendant appealed alleging that the allocation of fault was too low. The court of appeal agreed and reduced damages awarded at trial [2010 ABCA 32]. Between the end of trial and the start of the appeal, the defendant offered to pay the limit of the policy of insurance being $500,000.   The offer was rejected. At the conclusion of the Appeal the claim was reduced to $375,000.  The defendant sought double costs from time of the offer to the conclusion of the appeal. The $500,000 was made on a “without prejudice basis” and did not refer to any of the Rules dealing with Formal Offers.  The Court of Appeal held that all offers, whether made without prejudice or not are privileged. However, the privilege is subject to an exception.  There is an exception in that “without prejudice” offers can be referred to when the merits of the dispute have been decided.   The court made it clear that “informal offers that arguably do not comply with the Rules can have an effect on costs”. This case reinforces the need to properly educate a client as to the nature of the offer and the upside and downside of accepting or rejecting it. Case Summaries Prepared by Craig G. Gillespie Cuming & Gillespie 403-571-0555 [email protected]

This entry was posted on April 7, 2010


Return to Case Summaries