A Review of Whiplash Decisions in Alberta

Transcription

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A Review of Whiplash
Decisions in Alberta
January 1994 - August 2012
A Review of Whiplash
Decisions in Alberta
January 1994 - August 2012
Contents
Mild Whiplash Case Summaries
Moderate Whiplash Case Summaries
Severe Whiplash Case Summaries
Contacts 1- 42
43 - 83
84 - 129
130
Preface
Purpose
This digest represents a reasonably comprehensive summary
of decisions rendered in Alberta courts between 1994 and
August, 2012 in cases where soft-tissue injuries (colloquially
known as “whiplash”) have been alleged.
In preparing this digest, it has not been our intention to
provide an in-depth analysis of each case or to speculate on
the merits of the quantum awarded. In our view, this task is
best left to the individual reader. Our goal is to identify as
many of the relevant cases as possible in order to give those
interested in the area a point of departure.
With the advent of the Minor Injury Regulation, AR
123/2004, we note that some of the awards included in this
summary, particularly the smaller awards, may not have
much value in assessing present day damages. However, they
remain included for historical and comparative purposes.
Format
For ease of reference, we have attempted to format this
digest in a user-friendly manner. First, cases are divided into
mild, moderate and severe whiplash related injuries and
are ordered chronologically. Second, where the decision is
otherwise unreported, we have referenced the Quicklaw cite
or the ECarswell cite. Third, wherever possible, the age of
the plaintiff is stated as at the date the cause of action arose.
Finally, we have also adjusted all damage awards for inflation
based on the Brown Economic Assessments Inc. Economics
Editor; inflationary updates are current to August, 2012.
We hope that this review will be of value to those practicing
personal injury law, be it for the plaintiff bar or the insurance
defence bar. To the extent that you have any questions
or comments or wish to offer suggestions for the future
improvement of this digest, we would be pleased to hear
from you.
Acknowledgements
The editors would like to extend their gratitude and
appreciation to the staff of the Norton Rose Canada LLP
library, particularly head librarian Judy Harvie, for their
efforts in assisting with the preparation of this compilation
as well as to the many associates and students who have
provided editorial and research assistance.
While we sincerely appreciate their assistance and input, as
always, we the editors are alone responsible for any errors or
omissions.
This review, as in the case of other bulletins and newsletters
distributed by our firm, is published by Norton Rose Canada
LLP to provide information on recent legal developments
and topical issues in various specific areas of law. Due to the
general nature of such publications, they should not be relied
upon as legal advice. Norton Rose Canada LLP would be
pleased to provide additional details or advice upon request.
Alan S. Rudakoff
Kevin E. Barr
ALBERTA MILD WHIPLASH CASE SUMMARY - JANUARY 1994 TO AUGUST 2012
MILD WHIPLASH CASE SUMMARIES
1
CALGARY: 1992003v1
Case Name
and
Citation
Age
Lum-Kam v. Semotiuk
(1994), 151 A.R. 138
(Q.B.).
Sex
Occupation
F
Claims:
Whiplash
TMJ
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
Plaintiff claimed to
be fully recovered
within eight months
after the accident.
$7,000.00
(less 25% for
pre-existing
injury)
Mr.
Justice
Lewis
March 17,
1994
Court rejected evidence of
TMJ injury caused by
accident.
Inflationary
Update
Cause of
Action
July 8, 1988
$10,850.00
The accident did cause or
contribute to the plaintiff's
already existing
headaches, neck and
upper back pain and
stiffness.
Case was at the low range
of awards.
Janiten v. Bibaud (1994),
20 Alta. L.R. (3d) 373
(Q.B.), affirmed on appeal
at (1997), 56 Alta. L.R.
(3d) 428.
36
M
Claims:
Whiplash
Mackie v. Wolfe (1994),
21 Alta. L.R. (3d) 11
(Q.B.), affirmed on appeal
at (1996), 41 Alta. L.R.
(3d) 28.
Note - the Court of Appeal
affirmed Justice Rawlins'
decision. Found that
fibromyalgia was not the
cause of the plaintiff's
ongoing symptoms.
Claims:
Whiplash
Fibromyalgia
41
F
Journeyman
Electrician
At the time of trial,
four years postaccident, plaintiff
claimed residual
pain prevented him
from working.
The plaintiff
complained that she
continued to suffer
from intermittent
pain from the
whiplash injury for
nine years up to
trial. The Court
found the injuries
should have
resolved within six
to eight months
post-accident.
2
CALGARY: 1992003v1
$17,500.00
Inflationary
Update
Mr.
Justice
Lefsrud
$27,055.00
$25,000.00
Inflationary
Update
$38,607.00
Madam
Justice
Rawlins
May 31, 1994 Objective evidence
indicated that the plaintiff
Cause of
should have recovered in
Action
six months but failed, due
to his consumption of
May 23, 1990
alcohol, cigarettes and
caffeine and his failure to
follow proper treatment.
June 10,
1994
Cause of
Action
July 1, 1985
Fibromyalgia was claimed.
The Court rejected the
fibromyalgia diagnoses,
finding that the plaintiff's
symptoms were
psychologically motivated
and not attributable to the
motor vehicle accident.
The plaintiff also failed to
mitigate and the damages
for her continuing disability
were reduced accordingly.
Case Name
and
Citation
Age
Kelly v. Hols (1994), 22
Alta. L.R. (3d) 338 (Q.B.).
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
F
Dental Hygienist
75% of the injuries
resolved within 15
months postaccident however,
the plaintiff
continuing to suffer
pain in neck and
headaches
continuing to trial.
$20,000.00
Mr.
Justice
Andrekson
August 25,
1994
Claims:
Whiplash
Simmie v. Parker (1994),
164 A.R. 178 (Q.B.),
affirmed on appeal at
(1996), 187 A.R. 307.
41
F
Condition should
have resolved itself
in three to four
months but for the
aggravation of the
pre-existing
condition and the
plaintiff's weight
problem which
exacerbated the
injury and recovery.
Claims:
Whiplash
Fibromyalgia
McCarroll v. Anderson
(1994), 163 A.R. 204
(Q.B.).
early
50's
F
Worked at a
bank
Plaintiff exaggerated
duration of injury.
Claims:
Whiplash
Inflationary
Update
$30,810.00
$12,000.00
Inflationary
Update
Madam
Justice
Rawlins
$18,411.00
Cause of
Action
November
22, 1994
The plaintiff claimed
fibromyalgia but as in
Mackie v. Wolfe (see
Cause of
moderate whiplash cases)
Action
the Court found that the
fibromyalgia was not
February 16,
proven to be related to the
1991
accident.
The plaintiff was not a
credible witness.
However, the plaintiff had
suffered some minor
discomfort as a result of
the accident, even if it was
just the aggravation of her
pre-existing problems.
$10,000.00
(less 25% for
liability)
Inflationary
Update
3
No element of permanent
impairment found.
February 11,
1990
$15,320.00
CALGARY: 1992003v1
Circumstances and
Details of Injuries
Sustained
Mr.
Justice
Hutchinson
December
15, 1994
Cause of
Action
March 11,
1990
Plaintiff was exaggerating
duration and extent of
injuries which were mild to
moderate in nature.
Case Name
and
Citation
Age
McCarroll v. Anderson
(1994), 163 A.R. 204
(Q.B.).
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
M
Salesperson
4 months.
$4,000.00
(less 25% for
liability)
Mr.
Justice
Hutchinson
December
15, 1994
The Court found that the
plaintiff was "slightly
injured" in the accident to
the extent that he suffered
a strain in his neck and
lower back region. The
accident occurred on
March 11, 1990, and the
plaintiff was totally
recovered by July 3, 1990.
Problems after that date
were unrelated to the
accident.
Claims:
Whiplash
Inflationary
Update
March 11,
1990
$6,128.00
Davies v. Chouinard
(1995), 166 A.R. 363
(Q.B.).
F
Teacher and
Assistant
Principal
Claims:
Whiplash
Psychological Injuries
50% of the plaintiff's
ongoing state was
attributed to the
accident and there
was a 2%
impairment related
to the accident.
$15,000.00
general
damages
Cause of
Action
Madam
Justice
Veit
$50,000.00
psychological
injuries
Inflationary
Update
February 28, Emotionally thin-skulled
1995
victim but you take the
victim as you find her.
Cause of
$15,000.00 awarded as
Action
general damages for
physical injuries and
January 30, $50,000.00 to compensate
1989
for the emotional injuries
and the lifestyle that she
lost.
$22,901.00
$76,337.00
Jessal v. Maxwell (1995),
167 A.R. 258 (Q.B.).
Claims:
Whiplash
Fibromyalgia
32
F
Part-time
accountant/
sales clerk
Plaintiff complained
of pain continuing
up to trial, but Court
found that the injury
should have
resolved within two
years post-accident.
$15,000.00
Inflationary
Update
$22,848.00
Mr.
Justice
Waite
March 9,
1995
Cause of
Action
March 4,
1993
Some indication that the
plaintiff lacked credibility
and exaggerated the
length of time she
suffered. In addition, she
failed to mitigate by losing
weight as instructed by
medical care-givers.
Note that the diagnosis of
fibromyalgia was rejected.
4
CALGARY: 1992003v1
Case Name
and
Citation
Watkins v. Goode and the
Administrator (1995), 29
Alta. L.R. (3d) 90 (Q.B.).
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
32
M
Labourer
20 months.
$12,000.00
Mr.
Justice
Lewis
April 20,
1995
Plaintiff's complaints of
ongoing hip pain were
subjective, suspect and
somewhat exaggerated.
He had not proven that
any of his complaints more
than 20 months postaccident were caused by
the accident. The
plaintiff's general damages
were assessed on the
basis of a mild whiplash
injury.
Inflationary
Update
Claims:
Whiplash
Ramsay v. Bain (1995),
170 A.R. 298 (Q.B.).
Claims:
Whiplash
$18,238.00
October 30,
1989
35
F
Part-time worker
Suffered
$15,000.00
considerable pain in (for the initial
the weeks and
injury plus
months following the $5,000.00 for
accident but no long aggravation of
term effects.
her chronic
pain postaccident.)
Inflationary
Update
$22,746.00
$7,582.00
5
CALGARY: 1992003v1
Cause of
Action
Madam
Justice
Veit
May 1, 1995
malingerer but she had
Cause of
suffered pre-existing
Action
injuries to those she
claimed were caused by
May 29, 1991
the accident which she
had failed to disclose to
her physicians.
Case Name
and
Citation
Theodore v. Monarch
Messenger Service Ltd.
(1995), 176 A.R. 287
(Q.B.).
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
33
M
Low level of
intellectual skills
and aptitudes
Court found that the
plaintiff may have
had some residual
back pain at trial,
but it was not
significantly
debilitating.
$5,500.00
(mild
whiplash)
Mr.
Justice
LoVecchio
Claims:
Whiplash
Psychological Injury
Gibson v. Reeves, [1995]
A.J. No. 1119 (Q.B.).
F
Word processor
for a law firm
Claims:
Whiplash
Tat (Calvin) v. Ellis (1996),
180 A.R. 44 (Q.B.), award
of general damages
upheld at (1999), 228 A.R.
(C.A.).
17
mo.
M
Infant
Accident caused
additional emotional
difficulties to an
already complicated
makeup.
Inflationary
Update
. The plaintiff
continued to suffer
chronic pain in her
lower back with
varying degrees at
the time of trial.
Two medical experts
diagnosed a 5%
impairment.
$25,000.00
Unclear.
November 6, Plaintiff found to be openly
1995
deceitful in Court and
lacked credibility. (Note
Cause of
that he represented
Action
himself.)
December
14, 1988
$14,998.00
Inflationary
Update
Mr.
Justice
Deyell
$37,494.00
November
30, 1995
Cause of
Action
October 12,
1988
Inflationary
Update
$1,494.00
Mr.
Justice
Sulatycky
February 5,
1996
Cause of
Action
August 20,
1988
6
Circumstances and
Details of Injuries
Sustained
$8,249.00
$1,000.00
Claims:
General Upset
Nervous Shock
Pain and Suffering
CALGARY: 1992003v1
$10,000.00
(emotional
injury)
Date of
Judgment
The plaintiff was
overweight and in poor
physical condition. This
contributed to her long
recovery and difficulties at
the time of trial.
Damages awarded for
“trauma of fright” only. No
damages for general
shock, nervous upset and
pain and suffering.
Case Name
and
Citation
Dykes v. Goczan (1996),
188 A.R. 355 (Q.B.).
Age
Sex
Occupation
F
Claims:
Whiplash
Headaches
Arm pain
Bee v. Sutherland (1996),
186 A.R. 8 (Q.B.).
Claims:
Whiplash
F
Substitute
teacher and
part-time sales
clerk.
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Pain continued for
one year after the
assault and flared
up for another year
when the plaintiff
returned to work.
$22,500.00
Mr.
Justice
Binder
April 17,
1996
Plaintiff was attacked from
behind by the defendant,
who pulled her head
Cause of
backwards and dragged
Action
her by her hair then struck
her face and jaw several
September 8, times.
1990
For six months following
the assault, the plaintiff
suffered from headaches,
back and shoulder pain,
muscle spasms, and
numbness and tingling in
her arm. For the six
months thereafter, the
plaintiff continued to suffer
symptoms but to a lesser
degree. The symptoms
became worse as the
plaintiff went back to work
and continued for the
duration of the next year.
Madam
Justice
Kenny
May 29, 1996 The Court held that on the
evidence, the plaintiff
Cause of
suffered from a mild to
Action
moderate whiplash injury
from which she continued
October 21,
to suffer from periodic
1989
pain. Her injuries did not
however, appear to "have
affected her work or her
physical activities to any
great degree".
Periodic complaints
of neck and back
pain persisting to
the date of trial.
$33,487.00
$20,000.00
Inflationary
Update
$29,711.00
7
CALGARY: 1992003v1
Inflationary
Update
Circumstances and
Details of Injuries
Sustained
Case Name
and
Citation
Kay v. Paquette (1996),
186 A.R. 236 (Q.B.).
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
26
M
Grade 10
education.
Worked for CNR
operating a
tamper
machine.
Motor vehicle
accident occurred
March 5, 1991.
Moderately severe
whiplash injury
$20,000.00
Mr.
Justice
Lefsrud
July 4, 1996
Previous accident causing
similar injuries and preexisting physical difficulties
as a result of his
employment taken into
account by Court in
making the award.
Claims:
Whiplash
Inflationary
Update
$29,601.00
Cause of
Action
March 5,
1991
Plaintiff not a malingerer.
Youssef v. Pickerl;
Youssef v. Schafer (1996),
43 Alta. L.R. (3d) 413
(Q.B.).
Claims:
Whiplash
36
F
Medical Doctor
in a Residency
Program
3 months.
$2,500.00
Inflationary
Update
Specializing in
Rheumatology;
worked parttime as a GP
$3,685.00
Mr.
Justice
Murray
September
18, 1996
The plaintiff was involved
in two motor vehicle
accidents. She sued on
Cause of
both. This judgment
Action
involves the first accident.
Award based on the
First:
finding that her injuries
August 7,
were largely resolved prior
1990
to the second accident
except for the odd upper
Second:
November 2, back spasm which only
affected her at night and
1990
on occasion in the morning
when she woke feeling
stiff.
Plaintiff was not found to
be credible.
8
CALGARY: 1992003v1
Case Name
and
Citation
Youssef v. Pickerl;
Youssef v. Schafer (1996),
43 Alta. L.R. (3d) 413
(Q.B.).
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
36
F
Medical Doctor
in a Residency
Program for
Rheumatology;
Worked part
time as a GP.
Neck and back
injury in large part
resolved 17 months
after the accident.
$25,000.00
(Figure
included
some loss of
income.)
Mr.
Justice
Murray
September
18, 1996
Plaintiff was involved in
two motor vehicle
accidents and she sued on
both. Injuries for the first
accident resolved before
the second accident and
were assessed separately.
Claims:
Whiplash
First:
August 7,
1990
Inflationary
Update
With respect to the second
accident, there were
Second:
serious concerns about
November 2, the authenticity and
1990
degree of pain and
disability. The Court found
that the plaintiff’s ongoing
problems were linked to
degenerative changes
rather than the second
accident.
$36,850.00
Danks v. Wouterse-Balko
(1996), 189 A.R. 224
(Q.B.).
Claims:
Whiplash
48
F
Realtor
Motor vehicle
accident occurred
July 7, 1992.
Nagging, continuous
backache continuing
up until date of trial
which would
continue to trouble
plaintiff but further
deterioration was
not expected to
occur.
9
CALGARY: 1992003v1
$25,000.00
(Judge took
pre-existing
condition into
account by
applying a
15%
discount.)
Inflationary
Update
$36,850.00
Cause of
Action
Mr.
Justice
Murray
September
18, 1996
Cause of
Action
July 7, 1992
“Eggshell skull situation.”
Trauma was imposed
upon a pre-existing
physical condition which
rendered the plaintiff
vulnerable to that condition
becoming symptomatic.
Plaintiff failed to mitigate
damages by performing
therapeutic exercises.
Case Name
and
Citation
Age
Bell v. Tilden Rental Inc.,
(1997), 47 Alta. L.R. (3d)
251 (C.A.).
Sex
Occupation
F
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Continued
complaints up to
time of trial.
Upheld award
of $25,000.00
Justices
Harradence
McFayden
Hunt
October 16,
1996
Claims:
Whiplash
Chronic Myofascial Pain
Hanson v. Heuchert,
(1997), 197 A.R. 46
(Q.B.).
Claims:
Whiplash
Inflationary
Update
$36,782.00
22
F
Employed with
the AMA
Accident occurred in
October of 1992.
Much of the pain
had diminished by
1995.
$18,000.00
(reduced by
30% for
liability.)
Inflationary
Update
$26,320.00
10
CALGARY: 1992003v1
Mr.
Justice
Dixon
Circumstances and
Details of Injuries
Sustained
Trial judge's findings
upheld. In particular,
found plaintiff not entirely
Cause of
credible. Trial judge found
Action
that the plaintiff suffered
moderate whiplash injury
Prior to June and was suffering from
1992
chronic myofascial pain
syndrome continuing to
trial but latter not caused
by accident. Other
intervening causes of
plaintiff's continuing pain
included marriage
problems pre-dating
accident and postaccident, accounting for
serious emotional stress.
Also, plaintiff failed to
follow physician's advice.
January 24,
1997
Cause of
Action
October 30,
1992
The plaintiff suffered a
mild to moderate whiplash
injury from which she
continued to suffer
periodic neck pain up to
trial.
Case Name
and
Citation
Silvaniuk v. Stevens
(1997), 195 A.R. 45
(Q.B.).
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
32
F
Secretary with
some
administrative
duties
Complaints
continuing to date of
trial.
$10,000.00
(physical
injuries)
Mr.
Justice
LoVecchio
February 5,
1997
TMJ complaints found to
be unrelated to the
accident.
Claims:
Whiplash
TMJ
Chronic Pain
Post Traumatic Stress
Psychological
$20,000.00
(psychological
impact)
January 17,
1991
Inflationary
Update
$14,584.00
16
M
$2,500.00
Inflationary
Update
$3,627.00
Claims:
Whiplash
11
CALGARY: 1992003v1
Plaintiff found to have
developed chronic pain as
a result of the accident,
but that she had an
exaggerated response to
pain. Her injuries were not
found to be permanent.
Failed to mitigate, mostly
in relation to special
damages but also should
have exercised more.
$29,169.00
Lachowski v. Dowell
Schlumberger Canada
Inc. et al., [1997] A.J. No.
528 (Q.B.).
Cause of
Action
Mr.
Justice
J.S. Moore
May 20, 1997 There is nothing in the
reasons indicating how the
Cause of
award of general damages
Action
was determined. The
December plaintiff did not have
19, 1990
serious injuries and they
healed quickly. The case
focussed on the claim of
the plaintiff Lachowski who
was more seriously
injured.
Case Name
and
Citation
West v. Zehir (1997), 204
A.R. 211 (Q.B.).
Claims:
Whiplash
Chronic Pain
Depression
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
51
M
Unemployed,
had worked as
an ad sales
representative
Complaints
trial. Court found
the injury to be
relatively mild and
should have
resolved itself within
three to six months.
The remaining
symptoms were
more likely the result
of degenerative
processes to the
plaintiff's spine
arising from the four
previous surgeries
undertaken after
previous back
injuries in the
1970's.
$7,500.00
Mr.
Justice
Wilkins
August 11,
1997
12
CALGARY: 1992003v1
Inflationary
Update
$10,828.00
Circumstances and
Details of Injuries
Sustained
Plaintiff had a pre-existing
back condition that
required a series of four
Cause of
separate surgical
Action
procedures. As a result,
the Court found that the
December 7, plaintiff was a "crumbling
1988
skull" v. "thin skull" plaintiff
and would not hold the
defendant liable for any
debilitating effects of the
pre-existing condition that
the plaintiff would have
experienced anyway.
The plaintiff represented
himself. The defence
raised several concerns
regarding credibility.
These concerns caused
the Court to very carefully
and somewhat skeptically
analyze the evidence of
the plaintiff concerning the
nature and extent of his
injuries and particularly the
issue of their causation by
the accident.
Case Name
and
Citation
Age
Korsbrek v. Dimarco,
[1997] A.J. No. 1152
(Q.B.); Aff'd [2000] A.J.
No. 323 (C.A.).
Sex
Occupation
F
Claims:
Soft Tissue injury to
back
Injured foot and hip
Knor v. Fehr (1997), 210
A.R. 33 (Q.B.).
Claims:
Whiplash
TMJ
Duration
General
Damages
Awarded
Judge
plaintiff’s back
injury, if caused by
the alleged accident,
should have healed
within four to six
months.
$4,000.00
(provisional
award of
damages)
Mr.
Justice
Clarke
$5,751.00
42
M
Truck Driver
and Farmer
Motor vehicle
accident occurred in
1986. Plaintiff
claimed TMJ was a
result of accident
and required
treatment up to trial.
Trial Judge found
that the plaintiff
suffered a mild to
moderate cervical
whiplash injury that
should have
resolved within 20
months postaccident.
13
CALGARY: 1992003v1
Inflationary
Update
$20,000.00
Inflationary
Update
$28,757.00
Mr.
Justice
Belzil
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
November 3, The parties to this action
1997
parked in adjacent parking
stalls and had a long
Cause of
standing dispute relating to
Action
damage to their vehicles
caused by opening car
October 27, doors into each others’
1993
vehicle. Each presented
conflicting versions of what
happened and the Court
found the plaintiff lacked
credibility. The Court
dismissed the action but
advised as to the award
that would have been
granted had it found for
the plaintiff.
November
12, 1997
Cause of
Action
July 3, 1986
case was in line with the
award in Bee v.
Sutherland (see moderate
whiplash cases), and
awarded damages
accordingly. Case could
also be considered in the
“moderate” category.
The plaintiff was found to
be lacking in credibility and
his evidence was
unreliable. Court found
that the TMJ disorder was
not caused by the
accident.
Case Name
and
Citation
Onofriechuk v. Dolman
(1998), 58 Alta. L.R. 296
(3d) (Q.B.).
Age
Sex
28
F
Occupation
Claims:
Scalp contusion
Whiplash
Required breast
reduction
Duration
General
Damages
Awarded
Judge
Date of
Judgment
The plaintiff
continued to
complain of
soreness in her
shoulders and
numbness in her
arm at the time of
trial.
$16,000.00
for whiplash
(reduced by
$3,000.00 for
failure to
mitigate.)
Mr.
Justice
McBain
February 5,
1998
Cause of
Action
November
27, 1992
Inflationary
Update
$22,960.00
Trotchie v. Gordon et al.,
[1998] A.J. No. 444 (Q.B.).
Claims:
Whiplash
M
Grade 6
education,
illiterate, worked
as a roofer prior
to accident.
Plaintiff suffered
$5,000.00
from prior neck
(reduced as
injuries. Also, the
the accident
day after the
found to have
accident, he fell
caused only
down the stairs and
50% of his
cut his head. The
injury)
Court found the
Inflationary
plaintiff suffered
Update
from a stiff and sore
neck from the motor
$7,166.00
vehicle accident and
falling down the
stairs for a period of
six months.
14
CALGARY: 1992003v1
Madam
Justice
Nation
April 27,
1998
Cause of
Action
March 6,
1992
Circumstances and
Details of Injuries
Sustained
The Court found the
plaintiff suffered a mild to
moderate whiplash injury.
plaintiff failed to mitigate.
She could not give
satisfactory evidence as to
why she did not pursue
physical therapy treatment
despite the evidence that
this treatment would likely
have helped.
Credibility of the plaintiff
was greatly in issue and
there was an allegation
that his claim was
fraudulent. Plaintiff found
to be a poor historian and
not very credible. The
Court did not find he was
fabricating his claim.
Plaintiff also found to have
failed to mitigate his
suffering by attending
physiotherapy, contrary to
the advice of two
physicians.
Case Name
and
Citation
Hilliard v. Grabinski
(1998), 221 A.R. 201
(Q.B.).
Claims:
Multiple contusions Soft
Tissue Injuries
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
40
F
Mother
Plaintiff’s complaints
continued to time of
trial.
$25,000.00
Mr.
Justice
Lee
She claimed to have
suffered a
permanent injury to
the lumbosacral
area of her back.
Inflationary
Update
$35,794.00
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
May 29, 1998 The Court found the
plaintiff was clearly injured
Cause of
in the accident and that
Action
she suffered some
ongoing pain.
December Surveillance videos
29, 1990
showed her to be more
capable of strenuous
activities than what she
testified. Her demeanor at
trial and display of physical
discomfort did not match
the normal movement
seen in the videos. Her
complaints also did not
match what was recorded
in the treatment notes and
charts. In addition, she
failed to seek treatment on
a regular basis, and some
non-attendance periods
lasted four months to two
and half years.
Also, she aggravated her
low back condition when
she slipped and fell on ice
in 1996.
15
CALGARY: 1992003v1
Case Name
and
Citation
S.F.P. v. MacDonald
(1999), 234 A.R. 273
(Q.B.).
Claims:
Brain Injury
Fibromyalgia
TMJ
Whiplash
Emotional Injury
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
34
F
Trained as a
Legal Assistant;
worked as a
receptionist in a
law firm
immediately
prior to the
accident.
Plaintiff continued to
complain up to trial.
The Court found that
the injuries caused
by the accident were
resolved within one
year of the accident.
$50,000.00
(whiplash
injury)
Madam
Justice
Veit
February 1,
1999
$14,000.00
(TMJ injury)
Inflationary
Update
$70,774.00
$19,817.00
Circumstances and
Details of Injuries
Sustained
The plaintiff had an
extensive and complicated
medical and psycho-social
Cause of
history prior to the
Action
accident. Prior to the
accident, she suffered all
July 11, 1994 of the symptoms which
she now attributes to the
accident. The plaintiff did
not prove, on a balance of
probabilities, that the
accident caused a brain
injury or fibromyalgia. She
proved that the accident
caused a mild soft tissue
neck injury and
aggravated her existing
TMJ dysfunction and other
pre-existing physical
problems, including those
with an emotional overlay.
In assessing general
damages for the whiplash
injury, the Court stated:
“[the plaintiff] suffered a
mild whiplash. However,
[the plaintiff] was a person
who took longer than the
average to recover from
injuries; the defendants
must take their victim as
they find her".
The Court did not find that
the plaintiff was a
malingerer and although
the Court did not accept
the plaintiff’s evidence on
some issues, the Court did
not think she was lying.
16
CALGARY: 1992003v1
Case Name
and
Citation
Lauff v. Seewalt (1999),
234 A.R. 305 (Q.B.).
Claims:
Whiplash
Headaches
Depression
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
61
M
Service
Manager at
Canadian Tire
The plaintiff had
returned to full
range of motion four
days after the
accident but pain
continued. (Note:
the Court found that
the pain would have
developed in any
event due to his
degenerative disc
disease but the
disease was
asymptomatic prior
to the accident.)
$12,000.00
Madam
Justice
Kent
March 10,
1999
Medical evidence showed
that the plaintiff had a
predisposition to
internalizing physical
ailments which manifested
as psychological
problems. The headaches
were caused by work
related stress and not the
accident.
Inflationary
Update
$16,959.00
Cause of
Action
September
11, 1992
The plaintiff had a preexisting degenerative disc
condition that was
accelerated by the
accident (the plaintiff was
a "crumbling skull" victim).
It was the acceleration of
this condition to which the
general damages were
related to.
plaintiff was prone to
exaggeration and to the
extent his evidence
differed from the other
witnesses, the Court did
not accept his evidence.
Silvaniuk v. Stevens
(1999), 244 A.R. 75
(C.A.).
$60,000.00
Inflationary
Update
$84,402.00
Justices
Conrad
Berger
Hunt
June 21,
1999
Cause of
Action
January 17,
1991
17
CALGARY: 1992003v1
The Court of Appeal
concluded that the trial
judge erred in finding that
the plaintiff had failed to
mitigate her damages.
Court of Appeal also
rejected that the plaintiff
was not candid with her
doctors as the trial judge
had found.
Case Name
and
Citation
Godkin v. Boresky (1999),
249 A.R. 383 (Q.B.).
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
45
F
Nursing Care
Attendant
All injuries from the
accident were
healed within just
over three months
post-accident, at the
latest. (December 6,
1996 – March 13,
1997).
$5,000.00
Madam
Justice
Veit
September
21, 1999
Claims:
Whiplash
Shum v. Mitchell (1999),
251 A.R. 177 (Q.B.).
Claims:
Whiplash
Knee injury
F
Waitress
Roughly one year
post accident the
plaintiff was
assessed at 1.5%
permanent partial
disability (the Court
felt that when
percentages were
this small the
inclination is to find
that there is no
permanent partial
disability).
The Court: "This
was a minor
whiplash of a
relatively short
duration, coupled
with a knee injury
which healed
quickly."
18
CALGARY: 1992003v1
Inflationary
Update
$6,986.00
$8,500.00
Inflationary
Update
$11,877.00
Mr.
Justice
Wilson
Circumstances and
Details of Injuries
Sustained
Mitigation issue arose due
to the plaintiff: (a) neither
taking the muscle relaxant
Cause of
analgesics prescribed for
Action
her nor returning to her
doctor to discuss why she
December 6, discontinued taking them,
1996
and (b) she did not discuss
her ongoing pain with her
doctor and therefore, she
did not explore additional
treatments that may have
been prescribed or
recommended (e.g.
physiotherapy, pain clinic,
new drugs, etc.).
September
28, 1999
Cause of
Action
July 18, 1990
The plaintiff was not found
to be credible and many
other complaints were
related back to preaccident injuries or
conditions.
Case Name
and
Citation
Age
Sex
Prusak v. Tranter, [1999]
A.J. No. 1291 (Q.B.);
(1999), 253 A.R. 289
(Q.B.).
Duration
Various
Potentially roughly
including:
one and a half
process serving, years, but continued
preparing
with massage
income tax
therapy for 23
returns,
months postaccounting and
accident.
legal secretary.
Claims:
Whiplash
Right Wrist Injury
Pugsley v. Wong (1999),
265 A.R. 80 (Q.B.).
Occupation
40
F
Government
Employee
Claims:
Pain and Suffering
TMJ
Knee Injury
Lower Back Injury
Complaints and
symptoms
trial.
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
$20,000.00
Mr.
Justice
Dea
November
12, 1999
Low back pain and left leg
injuries were rejected by
the Court as being
connected to this accident.
Inflationary
Update
$27,792.00
Cause of
Action
March 4,
1994
$12,000.00
Inflationary
Update
Madam
Justice
Johnstone
$16,629.00
The Court did not accept
the plaintiff as an accurate
reporter of her injuries.
December 3, Court found that the
1999
plaintiff did not act
reasonably in following the
Cause of
medical advice given to
Action
her and reduced damages
by 25% for failure to
June 22,
mitigate.
1995
Court held that the
plaintiff's injuries should
have resolved 12 to 24
months post-accident.
Court satisfied that the
plaintiff's cervical bruising
and tenderness to her
abdomen was resolved
shortly after the accident.
Mejia v. Omeasoo (2000),
257 A.R. 363 (Q.B.).
Claims:
Whiplash
Headaches
28
M
Painting
Subcontractor
Neck pain and
headaches resolved
six to seven months
post-accident, but
back pain continued.
Stopped attending
physiotherapy
(contrary to
recommendations)
10 months postaccident.
19
CALGARY: 1992003v1
$10,000.00
(factors in a
failure to
mitigate)
Inflationary
Update
$13,826.00
Mr.
Justice
Gallant
January 25,
2000
Cause of
Action
August 3,
1996
Plaintiff stopped attending
physiotherapy due to
allegedly being unable to
pay for treatments 10
months post-accident. By
15 months post accident,
the plaintiff did not appear
to be in any distress.
Case Name
and
Citation
Pettipas v. Klingbeil
(2000), 260 A.R. 1 (Q.B.).
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
49
M
CAPS Officer
Complaints
trial.
$14,000.00
Mr.
Justice
Hutchinson
February 11, Court satisfied that the
2000
plaintiff's injuries had been
exaggerated.
Cause of
Action
Injuries should have
resolved within 18 months
December post-accident.
10, 1992
Mr.
Justice
Hutchinson
February 11, Court satisfied that the
2000
plaintiff's injuries were
exaggerated.
Cause of
Action
resolved within 2 years
December post-accident.
10, 1992
Claims:
Pain and Suffering
Whiplash
Pettipas v. Klingbeil,
supra.
$19,315.00
43
F
Registered
Nurse
Claims:
Pain and Suffering
Whiplash
Complaints
trial.
F
Not stated.
Inflationary
Update
Mr.
Justice
Hawco
$10,289.00
54
M
Worked for a
construction
company
Complaints
$15,000.00
Inflationary
Update
$19,925.00
20
CALGARY: 1992003v1
Inflationary
Update
$7,500.00
Claims:
Trochanteric bursitis
(right hip)
Soft tissue injuries
Claims:
Chest pain
Right shoulder pain
Headaches
Neck pain
$18,000.00
$24,833.00
Schellenberg v. Surducan,
[2000] A.J. No. 94 (Q.B.).
Newlands v. Nielsen,
[2001] A.J. No. 534 (Q.B.).
Inflationary
Update
Mr.
Justice
Clarke
Damages
assessment
following a
binding Judicial
Dispute
Resolution
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
April 4, 2000 In a very short judgment,
the Court concluded that it
Cause of
was not satisfied that the
Action
bursitis was caused by the
accident.
July 11, 1995
The Court concluded that
the accident caused a
"mild soft tissue injury".
April 10,
2001
Cause of
Action
August 10,
1997
The plaintiff sought
general damages in the
sum of $45,000.00
however, the Court
concluded that with the
exception of the neck
injury, the balance of the
resolved within one year of
the accident.
Case Name
and
Citation
Wong v. Mejia, [2001] A.J.
No. 665 (Q.B.).
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
M
Part-time pizza
delivery person
Resolved within two
$5,500.00
Madam
Justice
Veit
May 17, 2001 Court agreed with
defendant counsel's
Cause of
submission that injuries
Action
that resolve within a few
months post-accident
November should be assessed on a
25, 1998
different scale than injuries
that persist beyond one
year.
Madam
Justice
Veit
May 17, 2001 The Court accepted the
Defendant Honda's
Cause of
submission that minor
Action
injuries that resolve within
three to four months
November should be valued at
25, 1998
$1,000.00 - $1,500.00 per
month. The Court
specifically stated that
"injuries that essentially
resolve within a few
months after the accident
should be assessed on a
different scale that injuries
year post-accident".
Claims:
Whiplash
Wong v. Mejia, supra.
$7,272.00
F
Claims:
Neck Spasms
Shoulder tenderness
Scapular tenderness
Ly v. Gilbert (2001), 2001
Carswell Alta. 1524 (Q.B.).
Claims:
Whiplash
Congenital fusion of the
C2-3 vertebra
Lumbar strain
Dental
Receptionist
Resolved within
three months postaccident.
$4,800.00
Inflationary
Update
$6,347.00
F
Installer on an
assembly line
Complained of
ongoing pain and
associated
limitations to the
date of trial.
21
CALGARY: 1992003v1
Inflationary
Update
$20,000.00
Inflationary
Update
$26,115.00
Madam
Justice
Nation
Date of
Judgment
October 26,
2001
Circumstances and
Details of Injuries
Sustained
Plaintiff complained of
headaches once or twice a
week, neck problems three
times a day and upper and
lower back stiffness three
to four times per week.
The Court, in assessing
general damages, rejected
the plaintiff’s evidence and
concluded that she
experienced occasional
neck pain but that her
back pain was largely
resolved.
Case Name
and
Citation
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
Ly v. Gilbert
33
M
Window installer
Complained of ongoing back, head,
neck and shoulder
pain to the date of
trial.
$25,000.00
Madam
Justice
Nation
October 26,
2001
the accident did “affect his
life, particularly during the
first year, but to a lesser
extent thereafter, except
for back problems that are
variable and largely work
related”.
Mr.
Justice
Verville
November
21, 2001
The Court accepted that
the plaintiff had on-going
difficulties and permanent
Cause of
partial disability (3% of
Action
whole body) with respect
to his shoulder and that he
July 10, 1998 may require surgery on his
shoulder sometime in the
future.
Mr.
Justice
Hawco
February 20, Action was against the
2002
vehicle manufacturer for
soft tissue injuries caused
Cause of
by alleged improper air
Action
bag deployment.
Claims:
Whiplash
Scoliosis of the left
lumbar spine
Ewen v. Dias [2001] A.J.
No. 1474 (Q.B.).
39
M
Claims:
Whiplash (shoulder
injury)
Deliva v. Chrysler Canada
(2002), 311 A.R. 196
(Q.B.).
Claims:
Whiplash
Headaches
M
Welder and lead
hand,
uneducated with
Grade 3 reading
level
Injury persisted to
date of trial.
$32,644.00
$25,000.00
Inflationary
Update
$32,711.00
Plaintiff experienced
headaches and
neck pain “on a
fairly frequent basis”
for approximately
eight months postaccident and as
often as three times
per week thereafter
to the date of trial.
22
CALGARY: 1992003v1
Inflationary
Update
$10,000.00
Inflationary
Update
$13,041.00
July 10, 1998 The Court described the
plaintiff’s injuries as “mild
to moderate”. The Court’s
decision considered the
fact that the plaintiff only
attended upon his doctor
three times post-accident
and failed to obtain
physiotherapy treatment
notwithstanding physician
referral.
Case Name
and
Citation
Smith v. Calgary Cooperative Assn. Ltd.
(2002), 310 A.R. 129
(Q.B.).
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
71
F
Recreational
dancer
Injuries fully
resolved seven
$20,000.00
(includes
Mr.
Justice
Mason
March 22,
2002
The plaintiff had a history
of left side complaints
related to causalgia and a
previous surgery. None of
the medical exams or tests
supported her pain to date
of trial.
Claims:
Whiplash (shoulder,
neck, back, thigh,
buttock)
Psychological injuries
and special
damages.)
Inflationary
Update
$26,039.00
23
CALGARY: 1992003v1
housekeeping
Cause of
Action
August 8,
1994
She was not found to be a
credible witness. Her
evidence as to how she
maintained an active
lifestyle prior to the
accident did not fit with her
medical condition,
complaints or past
treatments.
Case Name
and
Citation
Teichgraber v. Gallant,
[2003] A.J. No. 70 (Q.B.).
Claims:
Whiplash
Headaches
Ringing in left ear
Involuntary swallowing
Pain under the heart and
at elbow joints
Chronic Pain
Depression
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
32
M
Graphic
Designer
Plaintiff complained
of continuing pain in
his neck when
holding it erect,
along with pain in
his left and right
trapezius muscles
each shoulder and
down his left arm
into his fingers.
Also complained of
ongoing headaches.
$17,000.00
Mr.
Justice
Marshall
January 23,
2003
The plaintiff was rearended on March 26, 1995.
Though the plaintiff
complained of
considerable ongoing pain
to the date of trial, the
Court commented that it
had observed the plaintiff
during the course of the
trial and that it was not
apparent that he showed
any discomfort (i.e., was
able to freely move his
head).
Inflationary
Update
$21,401.00
Cause of
Action
March 26,
1995
plaintiff had “consciously
or unconsciously…
adopted a ‘sick person’
role and the resultant
benefits through the
years”. In setting quantum
for general damages, the
Court held that the plaintiff
was entitled to
“compensation for a
whiplash of a mild to
medium severity which
would have interfered with
few normal duties after six
months”.
24
CALGARY: 1992003v1
Case Name
and
Citation
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Krawchuk v. Mellor
th
(2003), 14 Alta. L.R. (4 )
369 (Q.B.).
Early
20’s
F
Student with
part-time work
The Court
specifically found
that the acute phase
of proven symptoms
lasted approximately
two months, flareups of pain
persisted on an
intermittent basis for
18 months and
mildly related
depression
continued for almost
two years.
$18,000.00
Madam
Justice
Greckol
Claims:
Whiplash
Depression
Singh v. Turna (2003),
337 A.R. 192 (Q.B.).
Claims:
Multiple soft tissue
injuries
Sprained right shoulder
Cervical-thoracic strain
Trochanters bursitus
C5-C6 radiculoptathy
The Court
concluded that the
plaintiff suffered mild
soft tissue injuries
that, in the ordinary
course, should have
resolved within a
few weeks or
25
CALGARY: 1992003v1
Inflationary
Update
$22,537.00
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
February 18, The Court was not prepared
to find that the plaintiff’s
2003
treatment process was
Cause of
unreasonable so as to
Action
warrant a reduction in
damages for failure to
August 13, mitigate. In addition, the
1999
Court rejected the argument
that the plaintiff was a
malingerer.
damages at $18,000.00, the
Court concluded that such
an award was “intended to
reflect both that the
continuing symptoms were
intermittent rather than
continuous in nature and
that there was only mild
correlation between the
injuries and the depression”.
$12,000.00
Inflationary
Update
$14,933.00
Mr.
Justice
Lee
March 11,
2003
Cause of
Action
January 21,
1999
The Court dismissed the
action on the basis that
liability had not been
established however, did
provisionally set damages.
damages, the Court
concluded that the
plaintiff's injuries should
have resolved within six
months post-accident. The
general damages
quantification was justified
on were awarded on the
basis of the Wong v. Mejia
scale of $1,000.00 $1,500.00 per month.
Case Name
and
Citation
Bouchard v. Sherwood
Park Finishing (1984) Ltd.,
[2003] A.J. No. 356 (Q.B.).
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
36
M
Dock hand
Plaintiff alleged that
accident injuries
persisted to the date
of trial. The Court
concluded that the
“fairly sever soft
tissue and
ligamentous injury”
should have
resolved no later
than seven months
post-accident.
$30,000.00
Mr.
Justice
Lefsrud
March 18,
2003
damages, the Court
concluded that the
credibility of the plaintiff had
been “impugned to such an
extent” that he “intentionally
and methodically mislead
not only his doctors,
consultants and friends, but
also this Court by, on a
continuing basis, grossly
exaggerating his complaints
and knowingly failing, when
interviewed by various
experts and others, to be a
candid historian.
Claims:
Whiplash type injuries to
the neck and shoulders
Jaw pain
Headaches
Depression
Constant pain
Prefontaine v. Martin,
[2003] A.J. No. 827 (Q.B.).
Claims:
Whiplash
Headaches
49
M
Unemployed
Plaintiff alleged that
he sustained a
cervical strain as a
consequence of the
accident. The day
following the
accident he
attended on his
family physician,
complaining of
headaches and
neck pain.
Inflationary
Update
$37,333.00
Cause of
Action
November
29, 1995
$6,000.00
Inflationary
Update
$7,373.00
Mr.
Justice
Belzil
June 26,
2003
Cause of
Action
March 22,
1998
The plaintiff was rear-ended
on March 22, 1998. Liability
for the accident was
admitted.
the accident could be
described as a “minor
impact”.
As prescribed by his family
physician, the plaintiff
attended at physiotherapy
for three months postaccident.
the plaintiff was 80%
recovered three months
post-accident. On the basis
of the decision in Wong v.
Mejia, $1,500.00 per month
was awarded for nonpecuniary damages.
26
CALGARY: 1992003v1
Case Name
and
Citation
Age
Sex
Occupation
Duration
Palpal-Latoc v. Berstad,
[2004] A.J. No. 240 (C.A.).
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
$12,000.00
Justices
McFadyen
Berger
Ritter
March 1,
2004
The matter came before
the Court of Appeal and an
appeal from the
assessment of damages
by Mr. Justice Brooker
sitting with a jury. The jury
awarded general damages
in the sum of $2,500.00.
Inflationary
Update
Claims:
Whiplash
$14,528.00
Cause of
Action
October 15,
1998
The Court of Appeal
concluded that the general
damages award was
inconsistent with award of
$7,403.83 for past loss of
earnings which extended
for a period of five months
post-accident.
The respondent cited the
decision in Wong v. Mejia
wherein the formula for
setting general damages
awards in minor whiplash
cases was assessed at
$1,000.00 to $1,500.00
per month. The Court of
Appeal declined "to review
or endorse" that range and
set general damages at
$12,000.00.
27
CALGARY: 1992003v1
Case Name
and
Citation
Floyd v. Couture, [2004]
A.J. No. 377 (Q.B.).
Claims:
Musculoligamentous
strain/whiplash
Osteoarthritis
Osteoporosis
Knee pain
Upper and lower back
pain
Depression
Age
Sex
45
M
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
Restoration of
antique cars
Complained of
ongoing symptoms
$2,000.00
Madam
Justice
Coutu
March 26,
2004
The plaintiff was rearended by the defendant in
October, 1997. The
plaintiff entered into a
settlement with the
defendant's insurance
adjuster. A final release
was executed and the
settlement cheque was
cashed.
(The Court
chose not to
set aside a
settlement
entered into
between the
plaintiff and
an insurance
adjuster less
than two
months postaccident.)
Inflationary
Update
$2,421.00
28
CALGARY: 1992003v1
Cause of
Action
October 19,
1997
The plaintiff commenced
an action alleging that he
only settled his property
damage and wage loss
claims and not his
personal injury claim.
the plaintiff settled his
entire claim at the time the
release was executed.
The Court went on to find
that although there was an
inequality of bargaining
power between the plaintiff
and the adjuster, the
adjuster did not use overt
undue influence or
pressure to conclude the
settlement. In addition,
though the settlement
amount "may not have
been at the top range,
neither was it so low as to
be unconscionable". At
the conclusion of trial, the
Court chose not to set
aside the settlement.
Case Name
and
Citation
Age
Cozicar v. Oliverio, [2004]
A.J. No. 727 (Q.B.)
Sex
F
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
Dental Lab
Technician
Complained of
ongoing symptoms
$25,000.00
Mr.
Justice
McMahon
June 9,
2004
The plaintiff and defendant
were involved in a T-bone
collision in January, 1997.
Claims:
Neck strain
Strain to trapezius
muscles
Strain to the right
shoulder
Contusion of the right
forearm
Contusion abrasions
and strain primarily to
the right wrist
Contusion to the right
hand
Larsen v. Bell and Larsen
v. Stirk, [2004] A.J. No.
739 (Q.B.)
Inflationary
Update
January 23,
1997
$30,155.00
39/40
F
Educated as a
Registered
Nurse
Complained of
ongoing symptoms
Claims:
Fibromyalgia
Chronic pain
$40,000.00
Inflationary
Update
$48,248.00
Cause of
Action
Mr.
Justice
Hillier
June 18,
2004
Cause of
Action
First
Accident:
January 29,
1996
Second
Accident:
December
27, 1997
29
CALGARY: 1992003v1
The Court noted that the
plaintiff was "in some pain
and for five months was
restricted in her household
work". The Court fixed
general damages at
$25,000.00 on the basis
that the plaintiff's soft
tissue injuries were
delayed in healing due to
the nature of her work.
The Court declined to
award expenses for
lyposuction related to
breast reduction surgery
and the cost of a gym
membership on the basis
that neither were causally
related to the accident.
both the first accident and
the second accident were
low impact collisions
however, "the soft tissue
injuries affected Ms.
Larsen to a greater extent
that many people". The
Court awarded general
damages of $40,000.00
"at the higher end of the
scale for mild whiplash".
Case Name
and
Citation
Pulak v. Sunshine Village
Corp., [2004] A.J. No. 857
(Prov. Ct.)
Age
Sex
69
M
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
Retired Lawyer
Four months.
$5,000.00
(inclusive of
$1,000.00 for
intermittent
future pain)
Associate
Chief
Judge
Scott
July 20,
2004
in an incident at the
Sunshine Village Ski
Resort when the Tow Bar
on the Wawa Run
suddenly came down on
his head. He was wearing
a ski helmet at the time of
the incident.
Claims:
Neck strain
Back injury
Inflationary
Update
$6,021.00
Cause of
Action
December
11, 2001
Shortly after the incident
the plaintiff complained of
"significant stiffness to the
right and left trapezoids
which limited his range of
motion". The Court found
that the plaintiff's spine
had been going through
degenerative changes for
approximately three years
prior to the accident.
The Court's award of
general damages was
predicated on the decision
in Wong v. Mejia that
"injuries that essentially
resolve within a few
months after the accident
should be assessed on a
different scale than injuries
year post-accident". The
Court accepted a range of
$1,000.00 to $1,500.00
per month "for nonpecuniary general
damages for relatively
minor injuries".
30
CALGARY: 1992003v1
Case Name
and
Citation
Axani v. QSR Edmonton
Ltd., [2004] A.J. No. 1457
(Prov. Ct.)
Age
Sex
66
F
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
Complained of
ongoing symptoms
$3,000.00
Judge
Ingram
November
25, 2004
The plaintiff was involved in
a "slip and fall" while
purchasing groceries. She
injured her right wrist and
suffered contusions to her
right shoulder, right hip and
right leg.
Claims:
Right wrist sprain
Contusions to the right
shoulder, right hip and
right leg
Reimer v. Polgar, [2005]
A.J. No. 373 (Q.B)
Claims:
Upper end Grade 1
whiplash injury with
upper and lower back
spasms
34
F
Mother of 3
Inflationary
Update
Cause of
Action
$3,592.00
October 29,
2000
4-5 months of acute
pain and discomfort.
$21,376.35
Judge
Hironaka
March 23,
2005
By commencement
of trial, plaintiff had
achieved recovery
to her pre-March
th
10 , 2004 condition.
Inflationary
Update
Cause of
Action
$25,457.00
March 10,
2004
there was "no medical
evidence sufficient …. to
conclude that her present
complaints were caused by
the accident which occurred
over four years ago; nor
was the injury ever
disabling. She continued to
be able to do the necessary
work to look after her
house, yard and garden".
This matter was
complicated by the fact the
plaintiff was involved in an
earlier motor vehicle
accident on May 26, 2003,
in which she also suffered
a whiplash type injury.
The plaintiff suffered
periodic pain and
discomfort after the May
26, 2003 accident for
which she received
massage and chiropractic
treatment.
The plaintiff was likely
susceptible to re-injury.
31
CALGARY: 1992003v1
Case Name
and
Citation
Faltous v. McKinley,
[2005] A.J. No. 1414
Age
Sex
50
M
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
Structural
engineer
All symptoms were
almost completely
resolved over a
period of two to two
and one-half years.
$18,000.00
Associate
Chief Justice
Wittmann
October 6,
2005
plaintiff had suffered a mild
soft tissue injury.
Claims:
Dizziness
Neck pain
Left hand numbness
Left side headaches
Left shoulder pain
Left facial pain
Left index finger
numbness
Faltous v. McKinley,
[2005] A.J. No. 1414
Claims:
Neck pain
Shoulder pain
Arm pain
Headaches
48
F
Masters in
Business
Administration
Ongoing to the date
of trial with
"lingering effects".
Extensive treatment
for the first two
$24,000.00
Inflationary
Update
$28,214.00
Cause of
Action
January 24,
1998
$21,161.00
32
CALGARY: 1992003v1
Inflationary
Update
Associate
Chief Justice
Wittmann
October 6,
2005
Cause of
Action
January 24,
1998
Of all of the plaintiff's
symptoms, the Court was
not prepared to make an
award for low back pain as
it was determined that that
complaint was not
materially contributed to by
the accident.
the plaintiff had sustained
a "mild to moderate
muscular-skeletal soft
tissue injury".
It was specifically held that
injuries sustained as a
result of the motor vehicle
accident caused pain at
work and prevented the
plaintiff from engaging in
certain recreational
activities factored into the
award.
Case Name
and
Citation
Worten v. Black, [2006]
A.J. No. 41 (Q.B.)
Age
Sex
M
Claims:
Soft tissue injury to the
upper torso and neck
Low grade headaches
Catastrophic depression
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Numerous over
the ten years
pre-accident.
3% permanent
partial disability.
$23,000.00
Mr.
Justice
Sanderman
January 17,
2006
Inflationary
Update
Cause of
Action
September
29, 1999
$26,835.00
Circumstances and
Details of Injuries
Sustained
This matter was
"remarkably straight
forward" from the
perspective of general
damages.
The Court was satisfied that
the plaintiff suffered a 3%
permanent partial disability.
Of greater significance was
the Court's refusal to
recognize a causal link
between the accident and
the plaintiff's depressive
state. No award was made
for loss of income and only
a minor (32 months) award
for loss of housekeeping.
Besler v, Dillabough
(2006), 391 A.R. 173
(C.A.)
Claims:
Headaches
Neck pain
F
Symptom
improvement six
months postaccident with no
further improvement
thereafter
$4,000.00
(jury award)
$12,000.00
(as awarded
by the Court
of Appeal)
Inflationary
Update
$4,564.00
$13,692.00
33
CALGARY: 1992003v1
Justices
Berger, Ritter
and Martin
August 3,
2006
Cause of
Action
April 26,
2001
A jury assessed general
damages at $4,000.00.
There was disagreement at
trial as to whether or not the
injuries lasted two to four
months or were persistent
to the date of trial. The
defendant's expert testified
that the symptoms should
have resolved within three
to six months.
The Court allowed the
plaintiff's appeal and set
general damages at
$12,000.00.
Case Name
and
Citation
Ethell v. Hudson's Bay
Co., [2006] A.J. No. 1086
(Prov. Ct.)
Age
Sex
64
F
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
Two months
$3,500.00
Associate
Chief Judge
Scott
August 14,
2006
The plaintiff was injured
while exiting the downtown
Bay store when the
automatic door swung shut.
The plaintiff was struck by
the door and sustained
severe bruising to her right
arm and strain to the right
rotator cuff muscles. The
plaintiff required seven
physiotherapy treatments
with hot packs, manipulation
and the use of pain killers
over a two month period
with some residual
discomfort and restriction on
activities during that period.
Inflationary
Update
Claims:
Muscle strain
Bruising
$3,993.00
Cause of
Action
May 2, 2003
The Court dismissed the
plaintiff's claim but
provisionally set damages in
the event of an appeal.
The Court concluded, on
the basis of Wong v. Mejia,
Prefontaine v. Martin and
Singh v. Turna, that
$2,500.00 for a two month
injury plus $1,000.00 for
subsequent intermittent pain
and restriction on activities
was appropriate.
34
CALGARY: 1992003v1
Case Name
and
Citation
Sra v. Zhu
[2007] A.J. No. 706 (Q.B.)
Age
Sex
54
M
Claims:
Back strain
Shoulder strain
Neck pain
Left knee pain
Headaches
TMJ pain
Kosy and Cunningham v.
Peyre Chyrsler
[2007] A.J. No. 1472
(Q.B.)
48
F
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
Driver for the
Edmonton
Transit Service
Disabled Adult
Transportation
System
The plaintiff had a
pre-existing history
of similar injuries
which affected his
medical condition.
He was also
involved in a
subsequent accident
$13,000.00
Mr. Justice Lee
June 25,
2007
the plaintiff's soft tissue
injuries "healed within three
or four months of the motor
vehicle accident".
Elder support
worker
Continuing to the
date of trial
Cause of
Action
$14,284.00
September
22, 2004
$25,000.00
Mr. Justice
Langston
December
19, 2007
Inflationary
Update
Claims:
Low back pain
Muscle spasms
$26,847.00
Cause of
Action
May 2, 2003
35
CALGARY: 1992003v1
Inflationary
Update
In addition, due to the
plaintiff's conflicting
evidence regarding his preexisting condition, his
credibility was called into
question.
The plaintiff Cunningham
experienced a restriction in
her non-work activities. She
ultimately returned to work
on a limited basis.
The Court specifically found
that the plaintiff's ability to
access therapeutic
treatment was restricted by
geography.
Case Name
and
Citation
Morrow v. Zhang
[2008] 421 A.R. 1 (Q.B.)
Age
Sex
29
F
Claims:
Soft tissue injuries to
neck and upper back
Tingling and numbness
in the arms
Pedersen v. Van
Thournout
[2008] A.J. No. 125 (Q.B.)
Claims:
Soft tissue injuries of
the neck, shoulders and
back
Wrist injury
28
F
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
Held various
positions
including with
Telus, as a flight
attendant and
as an
administrative
assistant. At
the time of trial
was a part-time
student at
Mount Royal
College
Not entirely clear.
The plaintiff was
continuing to
experience pain at
10 months postaccident and at 1.5
years post-accident
her doctor noted
that "gradual
improvement" had
occurred
$20,000.00
Mr. Justice
Wittmann
February 8,
2008
The plaintiff suffered from
back, shoulder and neck
pain prior to the accident
which had not totally
resolved at the time of the
accident. The plaintiff was
diagnosed with "moderate
whiplash". It appears that
the Court only accepted that
the plaintiff sustained a
minor whiplash injury.
Cause of
Action
$21,417.00
October 21,
2004
the plaintiff's "pre-accident
condition has had a minor
impact on her post-accident
symptoms".
Pharmaceutical Neck, shoulder and
representative back pain resolved a
month following the
accident however,
wrist pain was
continuing to the
time of trial
$15,000.00
Mr. Justice
Wittmann
February 8,
2008
Inflationary
Update
$16,063.00
Cause of
Action
March 22,
2005
36
CALGARY: 1992003v1
Inflationary
Update
plaintiff was "honest and
very credible". She did not
exaggerate her pain.
The plaintiff was diagnosed
with "chronic wrist flexor
tendonitis" however, no
evidence was provided as
to whether "the symptoms
will resolve or continue for a
determined period of time".
The Court assessed general
damages on the basis that
the wrist injury would last for
a two year period.
Case Name
and
Citation
Lawson v. Le
[2008] A.J. No. 928 (Q.B.)
Claims:
Back pain
Shoulder pain
Neck pain
Post-Traumatic Stress
Disorder ("PTSD")
Age
Sex
M
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
were resolved 18
months postaccident
$27,500.00
Madam Justice
Veit
June 12,
2008
the plaintiff had not
established that he suffered
from PTSD as a
consequence of the
accident.
Inflationary
Update
$29,104.00
Cause of
Action
February 7,
2001
In setting damages for soft
tissue injuries, the Court
specifically found that the
plaintiff did not miss a day
of work or a golf game
following the accident. In
addition, he continued to cut
his own grass and
continued with major
renovations and extensive
landscaping that had been
commenced prior to the
accident.
Counsel for the parties were
congratulated by the trial
judge for their use of the
summary trial process.
37
CALGARY: 1992003v1
Case Name
and
Citation
Moens v. Homburg L.P.
Management Inc.
(2009) CarswellAlta 135
(Q.B.)
Claims:
Upper and lower back
pain
Depression
Rosacea
Weight gain
Sleep apnea
Shingles
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
F
Receptionist
The Court
determined that the
plaintiff was free of
back pain within 2
years of the
accident
$24,500.00
Mr. Justice Gill
January 20,
2009
The plaintiff fell and injured
herself while descending
steps in front of her
workplace. The action
was dismissed and
damages were
provisionally set.
$25,476.00
Cause of
Action
October 29,
2003
38
CALGARY: 1992003v1
Inflationary
Update
the plaintiff had preexisting episodes of weight
gain, rosacea, shingles
and depression prior to the
slip and fall and that none
of those conditions were
"caused or significantly
aggravated by the
accident".
Case Name
and
Citation
Sidorsky v. Lowry
[2009] A.J. No. 421 (Q.B.)
Claims:
Back injury
Aggravation of a disc
herniation
Neck injury
Chronic pain
Age
Sex
51
M
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Investor in an
equity ventures
firm
The plaintiff had a
history of significant
back problems
dating back to 1987.
He experienced
significant
improvement over
time with periods of
pain following
specific events. The
Court concluded
that the plaintiff had
a "tendency to
exaggeration". As
at the date of trial he
enjoyed "reasonably
good health".
$1,000.00
Mr. Justice
Lutz
January 30,
2009
39
CALGARY: 1992003v1
Inflationary
Update
$1,040.00
Circumstances and
Details of Injuries
Sustained
The plaintiff sought
general damages in the
sum of $200,000 for pain
and suffering which
included three
Cause of
reherniations of his
Action
vertebral disc and three
May 14, 1997 operations.
the plaintiff "failed to
establish on a balance of
probabilities that 'but-for'
the Collision, the disc reherniation and subsequent
operations would have
occurred". There was,
however, sufficient
evidence to establish that
the plaintiff suffered from
mild, short-term,
intermittent neck pain
following the accident.
Case Name
and
Citation
Olsen v Jones, 2009
ABQB 371.
Age
Sex
50
M
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
Farmer
Ongoing
Would have
been $20,000
Mr. Justice
Crighton
June 26,
2009
The plaintiff claimed that
the defendant's
chiropractic treatment
caused soft tissue damage
to his back.
Inflationary
Update
Claims:
Severe neck pain
Left arm pain and
numbness
Headaches
Sleep disruption
Ear ringing
Leg numbness and pain
Cause of
Action
$20,797.00
November,
1997
plaintiff suffered from
stiffness and limited
mobility in his neck, pain in
his neck and left arm, and
numbness in his left arm
and left leg.
However, the Court held
that neither liability nor
causation had been
established.
40
CALGARY: 1992003v1
Case Name
and
Citation
Park v Jordan, [2009] AJ
No 1496.
Claims:
Arm injury
Soft tissue injury to
neck and back
Mild depression
Age
Sex
38
M
Occupation
Drilling rig
worker/Derrick
hand
Duration
General
Damages
Awarded
Some permanent
$4,000.00
loss of sensation
(soft tissue
and motor strength
injury in the plaintiff's right classified as a
arm.
minor injury,
and subject to
Back pain was 90% the cap. Had
resolved by
it not been for
December 2006. He the cap, the
will continue to
plaintiff would
experience episodes have received
of lower back pain
$7,500.00)
possibly forever.
(less 10% for
liability).
$75,000.00
(arm injury)
(less 10% for
liability).
Inflationary
Update
$4,159.00
$77,988.00
41
CALGARY: 1992003v1
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
Mr. Justice
Mahoney
June 29,
2009
The parties were involved
in a motor vehicle collision.
The plaintiff was
diagnosed with a split and
spiral fracture of his right
humeral shaft and
decreased sensation in the
distribution of the radial
nerve.
Cause of
Action
January 18,
2006
swelling, pain, limited
mobility and nerve
damage. He has
significant sensory and
motor dysfunction, which
was assessed as a 10
percent upper extremity
impairment.
The plaintiff is now limited
in his fine motor skills and
his ability to lift heavy
objects or bend.
His neck and back injury
was described as being on
the "low end of moderate
soft tissue injury."
Because of a pre-existing
back condition, the Court
found that the accident
aggravated, rather than
caused, the plaintiff's
condition.
Case Name
and
Citation
Sparrowhawk v
Zapoltinsky, 2012 ABQB
34.
Claims:
Jaw pain
Temporomandibular Joint
Disorder
Whiplash
Age
Sex
M
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
Permanent
(although the
degree of pain may
reduce if treated
properly)
This was not
an
assessment
of damages.
Rather the
Court was
deciding
whether or
not this
constitute a
'minor injury'
Madam Justice
Shelley
January 13,
2012
The plaintiff was rearended by the defendant.
Cause of
Action
The car accident caused
whiplash, and lumbar
spine and knee injuries.
The accident also caused
Temporomandibular Joint
Disorder (TMD).
March 1,
2005
The pain from the disorder
is constant, affects his
ability to eat and causes
pain in every day activities
(talking and yawning).
The court held that this is
not a 'minor injury':
1)The injury involved
damage to the TMJ's
cartilage and to his teeth.
Since neither cartilage nor
teeth are muscles,
tendons or ligaments, the
injury does not fit the
definition of a 'sprain' or
'strain.'
2)TMD is not a type of
WAD.
3) The injury constitutes a
serious 'impairment'
because: it impairs a
physical function; it causes
pain while performing a
"normal activity of daily
living"; it is permanent.
42
CALGARY: 1992003v1
ALBERTA MODERATE WHIPLASH CASE SUMMARY - JANUARY 1994 TO AUGUST 2012
MODERATE WHIPLASH CASE SUMMARIES
43
CALGARY: 1992003v1
Case Name
and
Citation
Martorana v. Lee (1994),
17 Alta. L.R. (3d) 409
(Q.B.).
Claims:
Whiplash
Chronic Pain
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
F
Sewing Machine
Operator
Plaintiff still
complaining of
severe pain five and
a half years postaccident, but three
years and three
months considered
by the Court to be
reasonable recovery
time.
$30,000.00
Mr.
Justice
Lomas
44
CALGARY: 1992003v1
Inflationary
Update
$46,565.00
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
February 18, The Court reviewed the
1994
evidence and was of the
opinion that the plaintiff's
Cause of
lack of conditioning, lack of
Action
exercise, general inactivity
and increasing weight had
August 26, all contributed to her
1989
continued pain. She failed
to prove that her
continuing chronic pain
was attributable to the
accident. She also
discontinued
physiotherapy after
one year and ignored
medical recommendations.
Case Name
and
Citation
Age
Stranden v. Le, [1994] A.J.
No. 428 (Q.B.).
Sex
F
Claims:
Whiplash
Migraines
Fibromyalgia
Ferguson v. Varzari and
National Salvage Ltd.,
(1994), 156 A.R. 33
(Q.B.).
Claims:
Whiplash
Chronic Pain
Occupation
Duration
Worked two
Complaints
jobs part-time continuing to time of
prior to accident
trial.
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
$30,000.00
Madam
Justice
Trussler
April 29,
1994
Minor collision but plaintiff
not wearing a seatbelt was
thrown into windshield and
ended up on car floor.
Inflationary
Update
$46,437.00
53
F
Registered
Nurse
The plaintiff
developed chronic
pain after her
physical injury had
healed.
45
CALGARY: 1992003v1
General
Damages
Awarded
$30,000.00
Inflationary
Update
$46,328.00
Cause of
Action
Plaintiff found to be
June 2, 1988 suffering from
fibromyalgia. Prior to
assessing damages, the
Court considered whether
ongoing complaints
caused by pre-existing
problems including two
prior accidents and preexisting migraine
condition. Also, the
plaintiff had a history of
abuse, a drug addiction
problem, problems with
her children and struggled
to continue her education.
Above factors taken into
account when assessing
damages.
Mr.
Justice
Prowse
June 28,
1994
The plaintiff's symptoms
were subjective in nature.
The plaintiff had 200
Cause of
physiotherapy treatments
Action
but no physiotherapist was
called to give evidence,
June 1, 1990
from which an adverse
inference was drawn.
Case Name
and
Citation
Badger v. Dowsett (1994),
156 A.R. 132 (Q.B.).
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
21
F
Commercial
Real Estate
Agent
Approximately three
years.
$16,000.00
Mr.
Justice
Ritter
June 29,
1994
The Court found the
plaintiff had suffered a
whiplash type injury in the
moderate range, but
probably at the low end of
that range. She had
suffered some discomfort
throughout the course of
approximately three years.
She participated in a
variety of physical sports
during this period, for
career advancement
purposes and her injuries
caused her discomfort
while doing so.
Claims:
Whiplash
Inflationary
Update
$24,708.00
Cause of
Action
June 11,
1990
Hunter v. Lobb (1994),
158 A.R. 157 (Q.B.).
27
M
Student
$40,000.00
Inflationary
Update
Claims:
Whiplash
Contusion to Left Shin
$61,621.00
August 10,
1994
Cause of
Action
December
16, 1986
46
CALGARY: 1992003v1
Mr.
Justice
Deyell
The evidence of the
plaintiff was exaggerated
as to the length of time
and intensity of pain.
Case Name
and
Citation
Weder v. Craig (1995),
166 A.R. 20 (Q.B.).
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
42
M
Travelling
Salesman
Plaintiff suffered
from a pre-existing
degenerative
condition (Charcot
Marie Tooth - a slow
progressive disease
which involved
weakness of the
legs and arms,
degrees of muscle
wasting and sensory
loss). The plaintiff
had pain from this
disease prior to the
accident but was still
able to work a full
day and function at
home.
$30,000.00
(less 50% for
pre-existing
condition)
Mr.
Justice
Andrekson
January 13,
1995
The plaintiff was a credible
forthright witness. He was
not a malingerer. It was
found on the evidence that
he experienced far greater
pain post-accident than he
did before.
Unable to work 18
months after the
accident and
continued to receive
treatment for her
injuries thereafter
(despite that fact
that no clinical
abnormalities had
been found).
$40,000.00
(less 25% for
liability.)
Claims:
Whiplash
Nicoll v. Lanz (1995), 29
Alta. L.R. (3d) 163 (Q.B.).
Claims:
Whiplash
Broken Rib
Depression
25
F
Secretary/ Truck
Driver
47
CALGARY: 1992003v1
Inflationary
Update
Cause of
Action
October 21,
1986
$45,890.00
Inflationary
Update
$60,929.00
Mr.
Justice
Langston
March 24,
1995
Cause of
Action
November
22, 1989
In addition to her physical
injuries, the plaintiff was
emotionally depressed
after the accident.
The plaintiff was quite
physically active in sports
prior to the accident. She
had however, visited
physiotherapists and
chiropractors in three
years prior to the accident.
Case Name
and
Citation
Gilchrist v. Oatway (1995),
168 A.R. 56 (Q.B.),
affirmed on appeal at
(1997), 46 Alta. L.R. (3d)
64 (C.A.).
Age
Sex
F
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
Continued to time of
trial with some
improvement over
time.
$40,000.00
Mr.
Justice
McDonald
April 18,
1995
The Court was satisfied on
the evidence that the
plaintiff was suffering from
fibromyalgia caused by the
accident. Her pre-accident
history was unremarkable
and gave no indication of
the development of
fibromyalgia.
Inflationary
Update
$60,794.00
Cause of
Action
December
23, 1989
Claims:
Whiplash
Fibromyalgia
(Compare this decision
with Mackie v. Wolfe
where fibromyalgia was
completely rejected by
Justice Rawlins.)
She was a genuine
witness who moderated
her complaints and she
demonstrated a desire and
made an effort to return to
her daily life.
48
CALGARY: 1992003v1
Case Name
and
Citation
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Jacques v. Passey (1995),
177 A.R. 178 (Q.B.), rev'd
on issues unrelated to
award of general damages
(1999) 73 Alta. L.R. (3d)
392 (C.A.).
Late
40's
F
Realtor
Motor vehicle
1990. Plaintiff
suffered soft tissue
injury to neck and
an aggravation of a
TMJ condition. She
also aggravated a
chronic low back
condition that had
been stable prior to
the accident. The
direct effects of the
accident should
have lasted 18
months to two years
following the
accident.
$27,500.00
Mr.
Justice
Mason
December
19, 1995
Claims:
Whiplash
Chronic Pain
Depression
TMJ
49
CALGARY: 1992003v1
Inflationary
Update
$41,186.00
Circumstances and
Details of Injuries
Sustained
Court evaluated evidence
and found that the direct
effects of the physical
Cause of
injury should have lasted
Action
for no more than two years
because (a) she did not
June 4, 1990 receive active treatment
for longer than two years;
(b) factors other than her
injuries contributed to her
complaints; (c) her journal
only documents the
injuries for two years; and
(d) the aggravation of her
TMJ condition was
resolved 18 months postaccident. With respect to
her continuing depression
and chronic pain, the
Court found her
depression was unrelated
to the accident and chronic
pain was at most 5-10%
related back to the
accident.
Case Name
and
Citation
McKay v. Stewart (1996),
182 A.R. 181 (Q.B.).
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
26
F
Dental Assistant
Motor vehicle
1986. By March
1995 she had
chronic neck and
low back pain
aggravated by
various activities but
no measurable
impairment.
$40,000.00
(soft tissue
injuries.)
Mr.
Justice
Matheson
March 21,
1996
Claims:
Whiplash
TMJ
TMJ injury but
plaintiff suffered
from pre-existing
problem that was
moderate to severe.
Cox v. Joyal (1996), 182
A.R. 244 (Q.B.).
Claims:
Whiplash
TMJ
Chronic Pain
28
F
Teacher
Moderate whiplash
injury should have
resolved in two
years but because it
was coupled with
the TMJ problems,
the award was
based on a four year
recovery. The TMJ
injury was caused
60% by the accident
and 40% by the preexisting condition.
She developed
chronic pain with
respect to her jaw,
neck and
headaches.
50
CALGARY: 1992003v1
$40,000.00
(TMJ less
40% for preexisting
condition.)
Cause of
Action
March 24,
1986
Circumstances and
Details of Injuries
Sustained
Plaintiff found to be a
credible and genuine
witness.
Plaintiff a “crumbling skull”
with respect to TMJ injury.
Inflationary
Update
$59,643.00
$59,643.00
TMJ
$40,000.00
(less 40% for
pre-existing
condition.)
Whiplash
$25,000.00
Inflationary
Update
$59,532.00
$37,207.00
Mr.
Justice
Marshall
April 1, 1996 Plaintiff’s credibility was in
question. The plaintiff also
Cause of
failed to mitigate her
Action
damages by seeking
reasonable treatment.
August 30,
1988
Case Name
and
Citation
Phillips v. Rost (1996), 40
Alta. L.R. (3d) 246 (Q.B.).
Claims:
Whiplash
Chronic Pain
Fibromyalgia
Psychological Injury
Age
Sex
Occupation
38
F
Homemaker
Duration
General
Damages
Awarded
Moderate to severe
$30,000.00
whiplash injury
(physical
affecting the neck
injury.)
and shoulder areas
resolved within three $45,000.00
(psychological
and a half years.
injury.)
Lasting
psychological
Inflationary
problems from
Update
accident continuing
to trial.
$44,483.00
$66,725.00
51
CALGARY: 1992003v1
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
Madam
Justice
Moreau
June 14,
1996
Court apparently rejected
the fibromyalgia diagnosis,
but awarded $45,000.00
for the chronic pain and
psychological injury,
finding she was a thin
skulled victim in this
regard.
Cause of
Action
December
20, 1988
Case Name
and
Citation
Buchanan v. Wassef
(1996), 191 A.R. 89
(Q.B.).
Claims:
Whiplash
Age
Sex
41
F
Occupation
Duration
Contract Courier Accident occurred
involves lifting
on June 25, 1990.
up to 50 lbs;
The Court held that
Had planned to the plaintiff suffered
start her own
a permanent
courier
disabling injury (5%
company
impairment) causing
constant pain,
headaches, and loss
of motion as a result
of the accident.
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
$50,000.00
Mr.
Justice
Perras
October 16,
1996
The accident appeared
minor causing only $165 in
damage to the plaintiff’s
vehicle.
Inflationary
Update
$73,564.00
Cause of
Action
June 25,
1990
There was evidence that
the plaintiff suffered from a
pre-existing degenerative
disc disease, which the
Court found to be
asymptomatic but made
her neck weak and more
vulnerable to whiplash
injury. She had been in a
motor vehicle accident in
1969 for which she
apparently sought
chiropractic treatment in
1978 and continued to
receive chiropractic
treatment between 1980
and 1989. She also
suffered stresses in her
personal life which Court
held were unrelated to her
ongoing symptoms.
Court found she was not a
malingerer.
52
CALGARY: 1992003v1
Case Name
and
Citation
Versfelt v. Semler, (1996),
192 A.R. 161 (Q.B.).
Claims:
Whiplash
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
35
M
Variety of jobs;
Owned his own
business at the
time of trial.
Continued to suffer
at the time of trial.
The Court however,
held that not all of
his suffering was
attributable to the
motor vehicle
accident.
$40,000.00
(less 25% for
pre-existing
injuries.)
Madam
Justice
Johnstone
November
29, 1996
The plaintiff had 29
accidents from 1976 to the
date of the trial, most of
which pre-dated the motor
vehicle accident.
Significantly, the plaintiff
was involved in a motor
vehicle accident a few
months prior to the one
sued upon and suffered
almost the same arm
injury. Due to the
complications in
determining causation, the
Court stated that it was
necessary to award a
moderate amount for nonpecuniary damages
reduced to account for
pre-existing conditions.
53
CALGARY: 1992003v1
Inflationary
Update
$58,755.00
Cause of
Action
November
13, 1991
Case Name
and
Citation
Herold v. MacElwain
(1997), 199A.R. 115
(Q.B.).
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
28
F
Worked in
collections at a
major bank.
The plaintiff was a
cyclist injured in an
accident where she
collided with an
open car door in
August of 1992.
She was 80-90%
improved at the time
of trial.
$30,000.00
(reduced by
1/3 for
liability)
Mr.
Justice
McBain
March 4,
1997
After looking at the range
of damages for similar
injuries, the Court turned
to factors which would
increase the award. In
particular, the Court
considered the following
factors: prior to the
accident, the plaintiff was
“sports oriented”; she
suffered fractures; she
injured her shoulder which
is a complex joint; she
suffered a permanent
injury which would be
prone to exacerbations of
neck and shoulder pain
with activities; and, her
athletic activities would be
limited.
Claims:
Orthopaedic Injuries
Whiplash
Reynolds v. Pohynayko
(1997), 202 A.R. 1 (Q.B.).
Claims:
Soft Tissue Damage
TMJ
Emotional Disruption
Chronic Pain
Depression
Brain Injury
16
F
Student
The TMJ injury was
serious and the
effects would likely
continue into the
future. The plaintiff
also suffered a post
traumatic syndrome,
leading to increased
sensitivity to pain
and other emotional
problems which
would likely have
resolved within two
years post-accident
but continued due to
her underlying
personality makeup.
54
CALGARY: 1992003v1
Inflationary
Update
Cause of
Action
August 19,
1992
$43,656.00
$55,000.00
Inflationary
Update
$79,914.00
Madam
Justice
Bielby
April 21,
1997
Cause of
Action
June 13,
1992
The award was lower than
more serious TMJ awards
such as Beger v.
MacAstocker Estate (see
severe whiplash case
summary) as her injury
was less severe.
evidence did not support
her claim that she suffered
a brain injury.
Case Name
and
Citation
Harbora v. McIvor, (1997),
202 A.R. 99 (Q.B.).
Claims:
Whiplash
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
37
F
Sales Rep for a
surgical supply
company
resolved within two
$40,000.00
Mr.
Justice
Binder
April 22,
1997
resolved within one year
post-accident. Plaintiff
suffered from a psychiatric
disorder called
somatization disorder prior
to the accident. Disorder
caused her to replace
stress with complaints of
pain, discomfort and
exhaustion. Therefore, it
was reasonable to extend
recovery to two years
post-accident, but injuries
not permanent.
Inflationary
Update
$58,120.00
Cause of
Action
December
23, 1989
Court found she would
have returned to her
original condition one year
post-accident but for
added stresses unrelated
to accident.
55
CALGARY: 1992003v1
Case Name
and
Citation
Marek Lachowski v.
Dowell Schlumberger
Canada Inc. et al., [1997]
A.J. No. 528 (Q.B.).
Claims:
Whiplash
Scalp lacerations
Myofascial strain
Chest contusions
Broken rib
Left leg pain/ numbness
Dizziness Psychological
Injury
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
43
M
Immigrated from
Poland where
he worked in
physical
education. In
Canada, he
worked as a taxi
driver and as a
hospital porter
The accident was in
1990. The plaintiff’s
status improved
after he consulted a
psychologist to deal
with the
psychological
aspect of his injury
in 1995.
$38,000.00
Mr.
Justice
J.S. Moore
Inflationary
Update
$55,134.00
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
May 20, 1997 Before the accident, the
plaintiff was no “couch
Cause of
potato”, after the accident,
Action
he was. His loss was
viewed by the Court as
December
more than that of a
19, 1990
sedentary person.
Note that plaintiff’s
symptoms persisted long
after his physical injuries
should have healed. His
physical injuries were
somehow converted into
psychological symptoms
which the psychologist
was able to cure. The
plaintiff was not penalized
for failing to see a
psychiatrist until five years
post-accident.
malingerer and he was
generally found to be
credible (except on his
evidence regarding loss of
income).
56
CALGARY: 1992003v1
Case Name
and
Citation
Foo-Fat v. Ahmed (1997),
57 Alta.. L.R. (3d) 388
(Q.B.).
Claims:
Whiplash
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
12
F
Dedicated and
accomplished
musician;
played the viola
and violin.
The injury should
have resolved within
eight to 12 weeks
post accident.
Plaintiff’s complaints
continued to trial.
$30,000.00
Mr.
Justice
Dixon
October 10,
1997
The plaintiff experienced
pain for a very long time.
She was significantly
improved by the time of
trial but experienced flare
ups of low back pain for
one week every five
weeks. She attended for
medical treatment
sporadically since the
accident but she was a
stoic and reserved
individual. She only raised
the issue of her back pain
when she was significantly
stressed. She did not fail
to mitigate. She was
found to be honest,
reliable, and the opposite
of a malingerer.
Inflationary
Update
$43,189.00
Cause of
Action
February 2,
1992
Note that the defendant
suggested that the cause
of the plaintiff’s ongoing
complaints were due to the
unrelenting practice and
performance grind
undertaken by a young
and slight artist. The
Court rejected the notion
that this should assist the
defence because even if
her post accident practice
regime aggravated the
injury, it was a non-tortious
cause and should not
serve to reduce damages
as per Athey v. Leonati
(SCC).
57
CALGARY: 1992003v1
Case Name
and
Citation
Philip v. Hironaka (1997),
210 A.R. 1 (Q.B.).
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
29
M
Truck Driver
and Heavy
Equipment
Operator
Pain continued to
date of trial.
$45,000.00
Mr.
Justice
Girgulis
Claims:
Spinal compression
fracture
Soft tissue injury to
shoulder
Lacerations and
bruising to head
Stevens v. Okrainec,
(1997), 210 A.R. 161
(Q.B.).
Claims:
Whiplash
Head Injury
Chronic Pain
$64,704.00
35
F
Accountant
Had the plaintiff not
suffered from a preexisting
degenerative
arthritic neck
condition, her
injuries should have
resolved within 18
months to two
years. Because of
the pre-existing
condition, her
injuries should have
resolved within four
years.
58
CALGARY: 1992003v1
Inflationary
Update
$45,000.00
Inflationary
Update
$64,704.00
Madam
Justice
Nash
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
November 7, Court concluded that the
1997
permanent in nature.
Cause of
Action
Plaintiff made reasonable
efforts to find alternative
August 30, employment.
1990
plaintiff's failure to wear a
seatbelt did not cause or
contribute to his injuries.
November
25, 1997
Cause of
Action
November
17, 1990
The evidence did not
establish chronic pain or
head injury.
plaintiff exaggerated the
degree of pain and the
existence of pain.
Award based on moderate
whiplash injury with
attendant headaches,
numbness and tingling in
the arms which should
have resolved within four
years.
Case Name
and
Citation
Age
Smith v. Smart (1998), 62
Alta. L.R. (3d) 126 (Q.B.).
Sex
M
Claims:
Whiplash
Droopy left eyelid and
lip
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
the plaintiff
continued to
experience
headaches a
number of times per
month. He also
experienced
ongoing pain and
stiffness in the right
side of his neck, and
these problems
continued to the
date of trial.
$40,000.00
Madam
Justice
Sulyma
June 11,
1998
Inflationary
Update
$57,195.00
Circumstances and
Details of Injuries
Sustained
X-rays revealed a preexisting degenerative disc
disease in the cervical
Cause of
spine. The pre-existing
Action
condition worsened the
prognosis for recovery.
February 10, There was a 5%
1994
impairment. The
defendant failed to show
the condition would have
been symptomatic in any
event. The entire 5%
impairment was found to
be due to the accident.
plaintiff suffered from
headaches and neck pain
since the accident. He
continued to experience
pain at the time of trial and
his activities and
enjoyment of life had been
impacted.
Neigel v. Ciplak, [1998]
A.J. No. 1779 (Q.B.).
Claims:
Whiplash
22
F
The majority of the
plaintiff’s problems
disappeared within
one year postaccident. A partial
disability was
minimal at the time
of trial.
59
CALGARY: 1992003v1
$22,000.00
Inflationary
Update
$31,345.00
Mr.
Justice
Murray
September
18, 1998
Cause of
Action
June 13,
1995
The plaintiff was said to
have suffered a moderate
neck and to a lesser
extent, back injury of the
soft tissue variety. The
evidence established that
the plaintiff would be left
with no permanent
disability and that any
remaining problems would
disappear within one year
of trial.
Case Name
and
Citation
Lylock v. Phan (1998),
235 A.R. 13 (Q.B.).
Claims:
Whiplash
Fibromyalgia
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
F
Police Officer
(six years from
retirement)
Continuing to trial.
$40,000.00
Mr.
Justice
Shannon
Inflationary
Update
$56,794.00
60
CALGARY: 1992003v1
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
December 7, The plaintiff suffered back,
1998
neck and shoulder pain as
a result of the accident.
Cause of
Two years later she was
Action
diagnosed with
fibromyalgia which the
July 21, 1993 Court found was
attributable to the
accident. The plaintiff
attended physiotherapy
and continued to work but
cut back on athletic
activities she enjoyed, and
constantly fought fatigue.
The Court was satisfied
that the accident
significantly impacted the
plaintiff’s prior active
lifestyle and that this would
continue indefinitely.
Damages based on both
moderate and severe
Alberta whiplash cases.
Case Name
and
Citation
Henhoeffer v. Lin, [1999]
A.J. No. 501 (Q.B.).
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
61
M
Upholsterer and
Carpenter; prior
occupations
included
farming, the
military and the
energy industry;
grade 8
education.
Plaintiff's condition
stabilized after 22
months at 2.5%
impairment of the
whole body.
$45,000.00
Mr.
Justice
Lutz
January 14,
1999
Injuries resulted from a
front-end collision wherein
his vehicle air bag
deployed and struck his
partially turned head.
Claims:
Whiplash
Related Injuries
(occasional pain
radiation into arms and
right leg with dizziness
and disorientation)
Inflationary
Update
$63,816.00
Cause of
Action
February 25, The plaintiff had prior
1995
lower back and leg
problems and sought, from
time to time, medical
attention for them but were
not sufficient to result in
him slowing down or
ceasing employment. His
prior condition made him
more vulnerable to a
whiplash type injury and
this accident was the last
straw that took the plaintiff
away from his
employment.
Damages award is noted
to be able to be higher as
a result of the plaintiff
being older.
Lowry v. Cram, [1999] A.J.
No. 911 (Q.B.); (1999),
249 A.R. 157 (Q.B.).
Claims:
Whiplash (Neck and Low
Back Pain)
Chronic Fibromyalgia
37
F
Various low
wage jobs.
Four years for
recovery to plateau
after second
accident (second
accident one year
after first).
Inflationary
Update
$63,202.00
61
CALGARY: 1992003v1
$45,000.00
(global
amount for
two
accidents.)
Mr.
Justice
J.S. Moore
July 22, 1999 Damages assessed
globally and reduced
Cause of
based upon "crumbling
Action
skull" principle by 35% to
determine amount for this
December
second accident.
13, 1993
Had a pre-existing low
back condition prior to
both accidents.
Case Name
and
Citation
Age
Vershoor v. AGT Ltd.
(1999), 253 A.R. 342
(Q.B.).
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
F
Homemaker,
occasional
bookkeeping for
husband's
welding
business.
Back condition
plateaued just over
11 months postaccident to remain
at a permanent
clinical impairment
of 6 to 7%.
$50,000.00
Madam
Justice
Sulyma
November
30, 1999
Plaintiff was found to have
failed to mitigate her
chronic pain complaint by
not attending at a more
extensive rehabilitation
program as recommended
by her doctor. This
contributed to the longstanding nature of the
damage from injury.
Claims:
Whiplash (neck and low
back)
Chronic Pain
Inflationary
Update
$69,480.00
Cause of
Action
November
26, 1991
Her low back strain
was held to have not
resulted in any
permanent longstanding disability
and any pain or loss
of function from this
complaint was
occasional and
minimal.
Stuwe v. McLeod (2000),
254 A.R. 296 (Q.B.).
Claims:
Whiplash
21
F
Co-manager of
a retail store.
Full recovery to preaccident (injured)
condition in three
years.
$30,000.00
Inflationary
Update
$41,479.00
Mr.
Justice
Wilkins
January 7,
2000
Cause of
Action
September
19, 1993
62
CALGARY: 1992003v1
a previous accident and
was still being treated at
the time of this accident.
Damages were assessed
for this accident based
upon her returning to her
prior injured condition
within three years of this
accident.
Case Name
and
Citation
Gould v. Holton (2000),
275 A.R. 80 (Q.B.).
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
26
F
Various
temporary jobs.
Worked only
periodically.
Injuries persisted to
the date of trial.
$50,000.00
Mr.
Justice
Clarke
November
22, 2000
Plaintiff did not fail to
mitigate her damages by
not following through with
physiotherapy and
chiropractic treatments as
they could not cure her
injuries.
Claims:
Whiplash
Lower Back Injury
Inflationary
Update
$67,163.00
Cause of
Action
November
17, 1989
Court held that the
whiplash injury had a
major impact physically
but that the main impact
was psychological.
Plaintiff had a previous low
back injury which was
exacerbated by the
accident.
plaintiff was one of the
small percentage of
whiplash injury victims
whose injury did not
resolve itself but rather
turned into myofascial
pain.
Vollrath v. Bruce (2000),
282 A.R. 364 (Q.B.).
41
M
Sanitation truck
driver
the date of trial.
Claims:
Back injury
Leg pain
$50,000.00
(reduced by
$25,000.00
due to preexisting
injuries.)
Inflationary
Update
$66,950.00
63
CALGARY: 1992003v1
Mr.
Justice
Lewis
December
20, 2000
Cause of
Action
April 19,
1995
plaintiff suffered from back
pain, nerve root
impingement and disc
degeneration problems
prior to the accident.
Case Name
and
Citation
Newlands v. Nielsen,
[2001], A.J. No. 534
(Q.B.).
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
F
Plaintiff not
working at the
time of the
accident. Court
awarded no loss
of income or
future loss of
income.
Complaints
$45,000.00
Mr.
Justice
Clarke
April 10,
2001
Medical evidence
accepted by the Court
found that the plaintiff
experienced a 2%
impairment of the cervical
spine but that shoulder
problems were unrelated
to the accident.
Claims:
Headaches
TMJ
Neck Strain
Trapezius muscle strain
Chest pain
Thoracic back strain
Post-traumatic stress
disorder
Shoulder strain
Rodriguez v. Patil, [2001]
A.J. No. 1485 (Q.B.).
Claims:
Whiplash (neck,
shoulder, upper back)
F
Janitorial and
child care
services
$59,776.00
Injuries persisting to
date of trial.
$38,000.00
Inflationary
Update
$49,721.00
64
CALGARY: 1992003v1
Inflationary
Update
Damages
assessment
Cause of
Action
following a
binding Judicial
Dispute
Resolution
August 10,
1997
Mr.
Justice
Perras
November
22, 2001
Plaintiff suffered significant
post-traumatic stress
disorder and depression
following the accident.
post-accident stressors
impacted on her PTSD
condition.
As a result of the motor
vehicle accident, the
plaintiff had some
Cause of
restricted movement in the
Action
cervical spine and
shoulder area. The Court
December 7, found that she would have
1996
pain, varying from time to
time in intensity, for the
rest of her life.
Case Name
and
Citation
Age
Dear v. Styre (2002), 318
A.R. 115 (Q.B.).
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
F
Computer
programmer
and consultant,
administrator for
financial planner
date of trial.
$35,000.00
Mr.
Justice
Slatter
May 3, 2002
Plaintiff held
various
occupations
however, most
consistently as
a nurse.
Resolved
approximately 18
months postaccident but
complicated by preaccident psychiatric
problems.
Claims:
Whiplash (shoulder,
neck and upper back)
Chronic Pain
Howes v. Rousta (2002),
331 A.R. 68 (Q.B.).
Claims:
back, neck and
shoulders
Bilateral tendonitis
Mild chronic pain
syndrome
55
F
Inflationary
Update
$45,432.00
$45,000.00
Inflationary
Update
$56,971.00
Mr.
Justice
Marceau
Circumstances and
Details of Injuries
Sustained
injuries in a previous motor
Cause of
vehicle accident, and also
Action
during a physiotherapy
treatment in 1996. The
February 28, 1997 motor vehicle
1997
accident aggravated her
pre-existing injuries,
interrupted her fertility
treatments and caused
general depression. 40%
of her ongoing disability
was attributable to the
1997 motor vehicle
accident.
December 2, At the outset, the Court
2002
noted that the plaintiff’s
injuries were largely
Cause of
subjective but found that
Action
the plaintiff’s chronic pain
syndrome was related to
February 27, the accident and that her
1997
mental condition was not
due to malingering or
deliberate exaggeration.
In fixing quantum, the
Court concluded that the
plaintiff suffered soft tissue
injuries and bi-lateral
tendonitis in the shoulders
while undergoing
treatment which resolved
within 18 months. The
Court concluded that no
permanent impairment
could be causally related
to the accident.
65
CALGARY: 1992003v1
Case Name
and
Citation
Jensen v. Thompson
(2002), 328 A.R. 354
(Q.B.).
Age
Sex
55
F
Claims:
Whiplash (shoulder and
neck)
Peakman v. Sogz, [2002]
A.J. No.1532 (Q.B.).
Claims:
Whiplash (neck, back,
legs)
Occupation
Duration
Senior Revenue Injuries persisting to
Canada
date of trial.
compliance
officer
Judge
$55,000.00
Madam
Justice
Erb
December 6, The Court found that the
plaintiff’s post-accident
2002
symptoms were unlikely to
abate in the future, and that
Cause of
they completely curtailed or
Action
greatly reduced her athletic
September activities. The Court took
into account the numerous
12, 1997
medical treatments she had
undergone over an
extended period of time,
including painful and
invasive intramuscular
stimulation, and the fact that
she was forced to give up
an exciting and challenging
career prematurely as a
result of the accident.
Madam
Justice
Rawlins
December 9, The plaintiff’s pre-existing
2002
conditions included
diabetes, a debilitating arm
Cause of
injury, and two motor
Action
vehicle accidents in 1994
and 1995. The Court found
June 16,
that the whiplash injury
1999
resulting from the 1999
accident developed into
depression and by reason
of his diabetes and preaccident medical history, it
would have taken him
longer to recover. His
employment would have
required accommodation
for the effects of the 1999
accident for at least two
years.
Inflationary
Update
$69,631.00
34
M
Glass cutter
Injuries resolved
within a few weeks
or months from the
accident.
$30,000.00
Inflationary
Update
$37,981.00
66
CALGARY: 1992003v1
General
Damages
Awarded
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
Case Name
and
Citation
Pavicic v. Pelchat, [2003]
A.J. No. 319 (Q.B.).
Age
Sex
51
F
Claims:
Fractured pelvis
Injury to sacroilic joint
Neck and back strain
Left shoulder strain
Sternoclavicular joint
strain
Occupation
Duration
Janitor
The plaintiff
continued to
(on leave due to
complain of accident
long-term
related symptoms
disability)
almost eight years
post-accident.
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
$55,000.00
Madam
Justice
Johnstone
March 10,
2003
pelvic fracture and
whiplash type injuries as a
result of the accident. The
pelvic fracture, in the
opinion of the Court, ought
to have resolved “quickly
without disability”.
Inflationary
Update
$68,445.00
Cause of
Action
October 11,
1994
In assessing damages, the
Court dound that the
plaintiff suffered a
permanent clinical
disablement of 10% of the
whole person. In addition,
the plaintiff suffered a
post-traumatic stress
disorder which did not
cause significant disability
from onset to resolution.
Yu v. Befus, [2003] A.J.
No. 1191 (Q.B.).
Claims:
Soft tissue injury
Headaches
Memory loss
M
Restaurant
Owner
The Court found
that, as of the date
of trial, the plaintiff
continued to suffer
residual long term
and depression.
67
CALGARY: 1992003v1
$40,000.00
Inflationary
Update
$48,685.00
Madam
Justice
Kenny
September 8, The Court concluded that
2003
“mild to moderate soft
Cause of
tissue injury”.
Action
October 13, damages, the Court found
the “generalized pain”
1999
primarily on the left hand
side continued to affect the
plaintiff’s left shoulder and
arm and chest wall. In
addition, he continued to
experience constant
headaches and resultant
memory loss.
Case Name
and
Citation
Pfob v. Bakalik, [2003]
A.J. No. 1204 (Q.B.)
upheld on appeal at [2004]
A.J. 1025 (C.A.).
Claims:
Muscular skeletal injury
Post concussion
syndrome
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
40
M
Contract courier
The plaintiff's low
back pain resolved
approximately five
months postaccident however,
concussion related
complaints and
musculoligamentous strain
to the neck,
shoulders and upper
back continued to
the date of trial.
$42,000.00
Madam
Justice
Erb
September
30, 2003
As a result of the accident,
the plaintiff attended at in
excess of 300 chiropractic
treatments.
68
CALGARY: 1992003v1
Inflationary
Update
$51,119.00
Cause of
Action
March 20,
1998
Notwithstanding
considerable debate, the
Court concluded that both
the post-concussion and
whiplash type injuries were
caused by the accident.
The Court specifically
found that “general
damages should reflect
the fact that Mr. Pfob has
had lifestyle changes,
periods of continuous
difficulty and at other times
intermittent problems”.
Case Name
and
Citation
Barriffe v. Janiten, [2003]
A.J. No. 1617 (Q.B.).
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
40
M
Welder
Complained of
chronic pain to the
date of trial.
$30,000.00
Mr.
Justice
MacCallum
December
19, 2003
Claims:
Neck and back strain
TMJ
Inflationary
Update
$36,374.00
Circumstances and
Details of Injuries
Sustained
the plaintiff’s neck sprain
resulted entirely from the
Cause of
accident and that his preAction
existing lower back
problem was exacerbated
February 26, by the accident.
1994
The Court aggressively
found “a complete failure
to mitigate”. The plaintiff
exaggerated his injuries
and was both observed
and filmed by his
neighbour completing
manual labour around the
house.
The plaintiff was entitled to
pain and suffering for three
and a half years postaccident.
Chriqui v. Duke, [2004]
A.J. No. 697 (Q.B.)
Claims:
Whiplash symptoms
Multiple sclerosis
symptoms
Depression symptoms
F
Operated
residential and
commercial
cleaning
business
Complained of
ongoing symptoms
Inflationary
Update
$48,248.00
Mr.
Justice
Chrumka
June 16,
2004
Cause of
Action
January 10,
1997
69
CALGARY: 1992003v1
$40,000.00
in a rear-end collision on
January 10, 1997.
plaintiff sustained a soft
tissue injury as a result of
the accident. It was not
prepared to conclude that
the multiple sclerosis
symptoms were triggered
by the accident. Likewise,
the Court also concluded
that the depression
symptoms were not
triggered as a
consequence of the motor
vehicle accident.
Case Name
and
Citation
Davidson v. Patten
[2004] A.J. No. 1339
(Q.B.)
Claims:
Dislocated and fractured
right first toe
Lacerated right first
finger
Multiple abrasions and
contusions
Burns to both hands
Upset and nervous
shock
Post-traumatic stress
disorder
Softening of the articular
cartilage of the right
knee
Muscular, ligamentous
and tendon injuries to
the knees
the spine
Headaches
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
42
F
Worked at a
liquor store
that she continued
to suffer the effects
of most of her
accident injuries to
the date of trial. The
assessment of the
plaintiff's ongoing
symptoms was
complicated by her
pre-accident history
including medication
use, migraine
headaches, sleep
difficulties and back
and neck pain.
$50,000.00
Mr. Justice
Mahoney
September
20, 2004
The defendant argued that
the plaintiff's claim was in
the nature of a crumbling
skull. The plaintiff argued
that she was a "healthy,
fully-functioning individual
prior to the accident".
70
CALGARY: 1992003v1
Inflationary
Update
$60,043.00
Cause of
Action
June 26,
1999
plaintiff, notwithstanding
the serious nature of the
accident, was "back to
pre-accident levels of
medication and
chiropractic treatment
within two years of the
accident". The Court
further held that the
plaintiff's "pre-existing
condition warrants a
modest reduction in
general damages". The
Court set the deduction
from general damages at
10% on the basis that,
prior to the accident, the
plaintiff was functioning
"adequately in her home
and working life".
Case Name
and
Citation
Dyck v. Wilkinson, [2004]
A.J. No. 1155 (Q.B.)
Age
Sex
43
M
Claims:
Cervical strain
Lumbar strain
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
Complained of
ongoing symptoms
$30,000.00
Mr.
Justice
Rooke
October 8,
2004
Although there was some
inconsistency in the various
medical reports produced at
trial, the Court concluded
that the plaintiff sustained a
"moderate cervical and
lumbar back strain with
some trochanteric bursitis of
the right hip" as a
consequence of the
accident. It was further
concluded that the plaintiff
would experience ongoing
pain in the future. The
Court was not prepared to
find that the plaintiff's
degenerative back condition
was caused or worsened as
a result of the accident or
that her depression was in
any way associated with the
accident.
Inflationary
Update
March 4,
1999
$35,978.00
Delahay v. Holder
(Estate), [2005] A.J. No.
446 (Q.B.)
Claims:
Rotator cuff injury to
right shoulder
F
By June 2000 the
plaintiff had
benefited from her
physiotherapy and
massage
treatments. She
enjoyed good
strength, motion and
stability in the
shoulder.
71
CALGARY: 1992003v1
$56,000.00
Inflationary
Update
$66,565.00
Cause of
Action
Mr.
Justice
Hart
April 18,
2005
Cause of
Action
November
28, 1998
The Court found that Ms.
Delahay failed to mitigate
her damages by
neglecting to attend
physiotherapy and
massage treatments after
June of 2000. This
resulted in a 20%
reduction in her award.
Case Name
and
Citation
Gilroy v. Schmidt, [2006]
A.J. No. 328 (Q.B.)
Claims:
Headaches
Neck pain
Shoulder pain
Disc herniation
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
44
M
Accountant
Chronic neck and
shoulder pain with
headaches
continuing to the
date of trial
$40,000.00
Madam Justice
Rowbotham
March 23,
2006
The Court determined that
the evidence clearly
established that the
plaintiff had pre-existing
degenerative changes to
his cervical spine but that
he did not suffer from them
prior to the accident. The
accident aggravated that
pre-existing condition such
chronic neck and shoulder
pain and headaches.
Inflationary
Update
$46,424.00
Cause of
Action
April 10,
2002
found a "moderate soft
tissue injury of a chronic
nature". The Court was
not prepared to find that
the plaintiff's disc
herniation and resulting
neurological symptoms
were caused by the
accident.
72
CALGARY: 1992003v1
Case Name
and
Citation
Katish v. Mergaert, [2006]
A.J. No. 832 (Q.B.)
Claims:
Depression
Anxiety
Neck pain
Right shoulder pain
Thoracic spine pain
Left lower back pain
Headaches
Age
Sex
F
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
that she had
ongoing soft tissue
complaints to the
date of trial
$40,000.00
Mr. Justice Lee
July 6, 2006
in two prior motor vehicle
accidents in the early
1990s. She also had
multiple "stints in hospital
for significant depression
in the mid-1999s, while
she was going through" a
divorce. The Court
acknowledged that the
plaintiff "did suffer at least
a whiplash injury" as a
result of the subject
accident. The issue was
whether or not various
other complaints,
particularly ongoing low
back pain, were caused by
the accident.
Inflationary
Update
$45,818.00
Cause of
Action
December,
2006
the plaintiff's soft tissue
whiplash injury should
have resolved in a matter
of months and that her
ongoing problems had
"origins other than this low
speed collision".
The Court awarded
general damages of
$40,000.00 "net of preexisting conditions for the
Plaintiff's 2000 whiplash
injury".
73
CALGARY: 1992003v1
Case Name
and
Citation
Wensel v. Calgary, [2007]
A.J. No. 402 (Q.B.)
Claims:
Headaches
Earaches
Fractured teeth
Snapped jaw
Sore neck
Thoracic numbness
Lumbar pain
Leg pain
Dizziness
Loss of balance
Fogginess
Noise disruption
Confusion
Disorientation
Difficulty sleeping
Difficulty breathing
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
61
F
Registered
Nurse
that the soft tissue
injuries persisted for
18 months postaccident
$35,000.00
Mr. Justice
Macleod
$38,812.00
Circumstances and
Details of Injuries
Sustained
April 5, 2007 The plaintiff argued that
the Court should take a
Cause of
"segmental approach" and
Action
award damages for a soft
tissue injury and a mild
April 2, 2003 brain injury separately.
The Court rejected that
argument on the basis that
there was a large amount
of overlap between the
symptoms.
the plaintiff suffered a 16
month soft tissue injury
that included injury to her
neck and upper back,
dizziness and aggravation
of her lower back
symptoms. She also
suffered a "Mild Traumatic
Brain Injury" on the
"mildest end of the
spectrum".
74
CALGARY: 1992003v1
Inflationary
Update
Date of
Judgment
Case Name
and
Citation
Gerlitz v. Lee
[2007] A.J. No. 872 (Q.B.)
Claims:
Back pain
Neck pain
Hip pain
Weight gain
Age
Sex
Occupation
Duration
General
Damages
Awarded
35
M
Martial arts
instructor
that he continued to
suffer from ongoing
pain to the date of
trial. The Court held
that he continued to
suffer from "flare
ups" as at the date
of trial.
$35,000.00
Inflationary
Update
$38,300.00
Judge
Date of
Judgment
Madam Justice July 25, 2007
Bensler
Cause of
Action
August 10,
2001
Circumstances and
Details of Injuries
Sustained
The Court categorized the
plaintiff's injuries as a
"whiplash in the mild to
moderate range" but that it
had a "disproportionate
effect on him because it
has, to some extent,
limited his ability to pursue
what has quite clearly
been his lifelong interest in
high-impact martial arts".
It is noteworthy that the
subject accident was a low
impact collision. The
Court accepted expert
evidence that the
defendant's vehicle likely
had not reach a speed in
excess of 4.5 km/h at the
time of impact.
75
CALGARY: 1992003v1
Case Name
and
Citation
Age
Sex
Occupation
Duration
General
Damages
Awarded
Katish v. Mergeart
(2007),[2008] 422 A.R. 28
(C.A.)
Judge
Date of
Judgment
Justices
Conrad,
Rowbotham
and Berger
October 2,
2007
Circumstances and
Details of Injuries
Sustained
The Court of Appeal
allowed the appeal and
reluctantly ordered a new
trial.
The Court of Appeal
concluded that the trial
judge made "contradictory
findings". In particular, it
was held that the
"contradiction of concern
is the trial judge's finding
that the plaintiffs' injury
should have resolved
within a few weeks (or at
the outside three months)
compared to his finding
that the plaintiff sustained
a moderately severe
whiplash for which he
awarded $40,000 general
damages. Those two
findings are totally
inconsistent".
Kosy and Cunningham v.
Peyre Chyrsler
2007 CarswellAlta 1790
(Q.B.)
Claims:
Neck pain
Low back pain
44
F
Administrative
position with the
Sucker Lake
First Nation
The plaintiff alleged
that as at 2005, her
neck pain had
lessened but that
there was no
change in her back
pain.
Mr. Justice
Langston
December
13, 2007
Inflationary
Update
$37,586.00
Cause of
Action
May 2, 2003
76
CALGARY: 1992003v1
$35,000.00
The plaintiff Kosy took her
vehicle to the defendant
dealership for servicing.
Five days following the
servicing, the left rear wheel
detached itself while in
travel at an approximate
speed of 100 km/h.
The plaintiff had a preexisting condition of
fibromyalgia. The Court
held that the accident
exacerbated that condition.
Case Name
and
Citation
Kassian v. Roy
[2008] A.J. No. 106 (Q.B.)
Claims
Neck pain
Shoulder pain
Back pain
TMJ pain
Headaches
Age
Sex
42
M
Occupation
Duration
Christian author The plaintiff claimed
and motivational
to have some
speaker
ongoing injuries to
the date of trial.
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
$40,000.00
Madam Justice
Acton
February 5,
2008
noted that it was
confronted with
contradictory evidence
from the plaintiff and the
medical experts which had
to be balanced against the
trial judge's own
observations and
impressions.
Inflationary
Update
$42,834.00
Cause of
Action
December
24, 2002
The Court held that,
following the accident, the
plaintiff had "an initial
period in which she was
unable to work,
experienced headaches
likely a consequence of
her TMJ disorder, and
experienced neck
(cervical), upper back
(thoracic) and lower back
(lumbar) pain". The Court
concluded that after May,
2004, the plaintiff would
"likely continue to have a
certain degree of
discomfort associated with
her cervical and thoracic
spine and associated
musculature. I find as fact
that the proportion of that
ongoing dysfunction is a
consequence of a preexisting arthritic condition,
and [the plaintiff's]
adopting an inappropriate
and harmful therapeutic
regime".
77
CALGARY: 1992003v1
Case Name
and
Citation
Bearchell v. King
[2008] A.J. No. 728 (Q.B.)
Claims:
Back pain
Left arm, wrist and hand
pain
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
20
F
Unemployed
and receiving
social
assistance
that the pain in her
back was ongoing.
$30,000.00
Mr. Justice
Marceau
June 27,
2008
Inflationary
Update
$31,749.00
Circumstances and
Details of Injuries
Sustained
Notwithstanding that the
plaintiff presented at trial
as "sad, who is in constant
Cause of
pain and unable to sit or
Action
stand for any length of
time", the Court held that it
November 7, had difficulty believing
2002
much of the plaintiff's
evidence.
Irrespective of the
plaintiff's "serious
credibility problems", the
Court found that there was
sufficient evidence that the
plaintiff injured her back in
the accident. The Court
went on to find that the
injuries sustained should
have healed in six weeks
to six months.
The trial judge, having
found a mild to moderate
soft tissue injury,
increased the "general
damages for pain and
suffering for the first six
months post-Accident
beyond what I believe
would be reasonable for a
more resilient person with
better coping skills who
sustained the same
injuries". The trial judge
however, also found a
failure to mitigate which
resulted in general
damages being "rounded
down".
78
CALGARY: 1992003v1
Case Name
and
Citation
Marchand v. Brar;
Marchand v. Ritter
[2008] A.J. No. 827 (Q.B.)
Claims:
Neck pain
Back pain
Myofacial chronic pain
condition
Leg pain
Headaches
Jaw pain
Shoulder pain
Age
Sex
Occupation
Duration
General
Damages
Awarded
40
F
Working
towards
receiving her
chartered
psychologist
designation
Continuing to the
date of trial. The
Court noted that
there was a prior
history of
headaches, jaw
pain, shoulder pain,
depression, anxiety
and panic attacks.
$50,000.00
(Accident #1)
$10,000.00
(Accident #2)
Inflationary
Update
$52,761.00
(Accident # 1)
$10,552.00
(Accident #2)
79
CALGARY: 1992003v1
Judge
Date of
Judgment
Madam Justice July 31, 2008
Eidsvik
Cause of
Action
April 10,
2001 and
June 21,
2004
Circumstances and
Details of Injuries
Sustained
The trial of this action
involved two separate
motor vehicle accidents.
The consolidated trial was
in respect of damages
only.
plaintiff "suffered very
serious soft tissue injuries
throughout most of her
body" as a result of
Accident #1 as well as
psychological trauma
(which she had recovered
from by December, 2006).
As a consequence of
Accident #2, the plaintiff
suffered no new injuries
however, that impact
exacerbated her
headaches, muscular pain
and "awakened her
psychological trauma from
Accident #1".
Case Name
and
Citation
Schuppli v Maclean,
[2010] AJ No 921 (QB).
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
77
F
Homemaker
Symptoms continue
with variation in
intensity.
$30,000.00
Madam Justice
Browne
August 6,
2010
Claims:
Moderate whiplash
Shoulder, neck, lower
back and hip pain
Headaches
Right leg feeling like it
might collapse
Inflationary
Update
Cause of
Action
$31,036.00
April 23,
2001
Circumstances and
Details of Injuries
Sustained
The plaintiff was a
passenger in a car that
was struck by the
defendant's car.
The plaintiff was an active
homemaker; the accident
limited her capacity to do
needlework projects,
baking, gardening and
looking after
grandchildren. It also
resulted in her having to
use a walker most of the
time.
In assessing damages, the
Court considered the
plaintiff's age and activity
level.
Schuppli v Maclean,
[2010] AJ No 921 (QB).
Claims:
Moderate whiplash
Dizziness
Stiffness
Numbness in hands
Neck and lower back
stiffness and pain
50
M
Sporadic
mechanic jobs
supplemented
with WCB
income
Ongoing
$40,000.00
Inflationary
Update
$41,381.00
August 6,
2010
Cause of
Action
April 23,
2001
80
CALGARY: 1992003v1
Madam Justice
Browne
The plaintiff was driving
his car when he was
struck by the defendant's
car.
The plaintiff continues to
experience headaches,
dizziness, neck pain,
stiffness, numbness and
lower back pain. He is now
limited in his ability to
participate in former
hobbies such as cycling,
rock climbing and martial
arts.
Case Name
and
Citation
Jomha v Hicks Estate,
2010 ABQB 551.
Claims:
TMJ
Back pain
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
27
M
Dentist
Headaches, jaw and
neck pain resolved
within months.
$25,000.00
Mr. Justice
Verville
August 27,
2010
The defendant and plaintiff
were involved in a motor
vehicle accident.
Father
The plaintiff
$25,863.00
continues to
experience back
pain. However, the Had causation
for the
ongoing back
injury caused by the
problems
accident resolved
been
within a year.
established,
general
damages
would have
been
$75,000.00
($77,590.00
updated for
inflation).
81
CALGARY: 1992003v1
Inflationary
Update
Cause of
Action
March 10,
1999
After the accident, the
plaintiff's jaw and neck
were in pain and he
suffered from headaches.
These symptoms cleared
up after a few months, and
the parties settled the
general damages claim
with respect to these
injuries for $5,000.
The plaintiff also claims
that his back was injured
as a result of the accident.
It was diagnosed as low
back strain with soft tissue
damage. An MRI showed
small degenerative
changes in the plaintiff's
spine. The Court found
that although the accident
did cause strain to the
plaintiff's back, the pain
caused by the accident
would have resolved
within one year. His
current pain is the result of
normal age-related
degeneration, aggravated
by the plaintiff's long-timer
body building activities.
Case Name
and
Citation
Age
Ward v Ward, [2010] AJ
No 1200 (QB).
nd
Claims: (Dixon, 2
plaintiff)
Head injury including
eye pain, fractured teeth,
jaw pain (TMJ) and some
memory loss and
cognitive impairment
Injuries to spine with
neck, mid-back and
lower-back pain
extending to hip
Internal injuries of
pulmonary contusion,
renal contusion and
esophageal hernia
Groin injury
Knee pain
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
M
Unemployed
Injuries resolved in
about one year postaccident with some
residual effects
lasting between two
and three years.
$30,000.00
Madam Justice
Moen
October 15,
2010
The defendant and plaintiff
were involved in a motor
vehicle accident.
$30,983.00
Cause of
Action
March 14,
2002
This case dealt primarily
with the damages awarded
to a second plaintiff (Ward)
with a debilitating brain
injury (who was awarded
$205,000).
Dixon had not established
the collision had caused
the TMJ.
accident caused softtissue and other injuries
including a head injury,
minor jaw and teeth
problems, knee and eye
pain, back problems,
headaches and memory
loss.
82
CALGARY: 1992003v1
Inflationary
Update
Case Name
and
Citation
Chokka v Hanson, 2011
ABQB 99.
Claims:
Shoulder pain
Neck pain
Back pain
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
F
Nurse
Although the lower
back pain is
ongoing, the Court
found that only 1 ½
years of the pain
was the result of the
accident. The typical
healing time for
similar injuries is 2
to 3 months.
$30,000.00
Mr. Justice
Hawco
March 2,
2011
Inflationary
Update
$30,853.00
Cause of
Action
May 10,
1999
Circumstances and
Details of Injuries
Sustained
A police cruiser ran a red
light and hit the plaintiff's
vehicle.
The plaintiff was
diagnosed as having soft
tissue damage, arthritis,
cervical spinal problems,
osteoarthritis in her right
shoulder and a lumbar
spinal dysfunction. She
claims to now suffer from
moderate to severe pain
doing nearly all activities.
plaintiff had pre-existing
medical problems that
were aggravated by the
accident. However the
accident did cause lower
back soft tissue injury.
83
CALGARY: 1992003v1
ALBERTA SEVERE WHIPLASH CASE SUMMARY - JANUARY 1994 TO AUGUST 2012
SEVERE WHIPLASH CASE SUMMARIES
84
CALGARY: 1992003v1
Case Name
and
Citation
McLaren v. Schwalbe
(1994), 16 Alta. L.R. (3d)
108 (Q.B.).
Age
Sex
34
F
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
Five years,
continuing up to the
date of trial.
$60,000.00
Madam
Justice
Picard
January 26,
1994
The plaintiff was a credible
witness. But for the
accident, the plaintiff
would not have required a
spinal fusion surgery.
Claims:
Whiplash
Van Paassen v. Burch
(1994), 159 A.R. 365
(Q.B.), varied on appeal at
[1995] A.J. No. 1044.
Inflationary
Update
$93,187.00
Cause of
Action
January 22,
1989
46
M
Welder with
specialized
tickets
The plaintiff's pain
endured to varying
degrees up to the
date of trial.
Claims:
Whiplash
$55,000.00
(less 25% for
liability.)
(At trial, the
award was
reduced a
further 10%
for failure to
wear seatbelt
- reversed on
appeal.)
Mr.
Justice
Dixon
October 6,
1994
Cause of
Action
January 22,
1986
significant pain in his lower
back and right leg areas
and this pain persisted, to
varying degrees, since
shortly after the accident
to the time of trial. The
plaintiff also suffered from
a pre-existing condition.
Inflationary
Update
$84,480.00
Brouwer v. Grewal (1995),
30 Alta. L.R. (3d) 244
(Q.B.)
F
Complaints
trial.
Claims:
Whiplash
TMJ/Broken Teeth
Depression
$55,000.00
($25,000.00
for the
emotional
injury, and
$30,000.00
for pain and
suffering.)
Inflationary
Update
$83,400.00
85
CALGARY: 1992003v1
Mr.
Justice
Marshall
May 31, 1995 In this case, the plaintiff
was rear ended by a police
Cause of
vehicle that had lost
Action
control on ice. The female
plaintiff's neck was turned
January 25,
at the point of collision
1992
causing her to suffer a soft
tissue injury to her neck
and shoulders, TMJ and
four cracked teeth. She
developed severe
depression as a result of
the ongoing pain.
Case Name
and
Citation
Brouwer, supra.
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
34
M
City Bus Driver
Permanent disability
of 7%.
$50,000.00
Mr.
Justice
Marshall
Claims:
Whiplash
Inflationary
Update
$75,819.00
Beger v. MacAstocker
Estate (1996), 45 Alta.
L.R. (3d) 16 (Q.B.).
Claims:
Whiplash
TMJ
Disorder
Fibromyalgia
48
F
Part-time
Instructor at NAIT
Accident occurred
May 1988.
Whiplash injury
persisting until trial;
TMJ problem also
persisting until trial,
and requiring future
care; ongoing
psychological injury
(post-traumatic
stress disorder).
$70,000.00
Inflationary
Update
$102,821.00
Mr.
Justice
Ritter
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
May 31, 1995 The male plaintiff would
not be able to work without
Cause of
pain, he was confined to
Action
splint shifts and driving
buses with power steering
January 25,
and he would no longer be
1992
able to engage in active
sports.
November
15, 1996
The accident occurred
when the defendant’s
vehicle rear-ended the
Cause of
plaintiff’s vehicle at a high
Action
rate of speed at a rural
intersection. Immediately
May 28, 1988 following the accident, the
defendant began to beat
up the plaintiff and
sexually assault her.
At trial, the Court found
that despite some
inconsistencies in the
evidence, the plaintiff was
a truthful and credible
witness. She had suffered
both a significant physical
and psychological injury.
None pre-existed the
accident or could be
blamed on the plaintiff.
Evidence did not support
finding of fibromyalgia.
86
CALGARY: 1992003v1
Case Name
and
Citation
Chan v. Maguire, [1997]
A.J. No. 413, affirmed on
appeal at [1999] 2 W.W.R.
67 (Q.B.).
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
20
F
Medical Student
Continuing to time of
trial; indefinite
prognosis for
recovery.
$60,000.00
Madam
Justice
Kent
$87,506.00
Claims:
Soft Tissue Injury
Sprain to left buttock
and hip
87
CALGARY: 1992003v1
Inflationary
Update
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
February 27, The plaintiff suffered a
1997
significant loss in the
quality of her life. She was
Cause of
a good student who
Action
became a mediocre
student. She withdrew
August 7,
from social activities. She
1992
was concerned with her
ability to have children.
that her condition would
not improve in the
foreseeable future and that
she would continue to
suffer pain and discomfort
for the indefinite future.
However, there was no
convincing evidence that
the problem would worsen.
The Court considered the
plaintiff’s loss of enjoyment
of her professional career
in setting damages.
Case Name
and
Citation
Quinton v. Deboice
(1997), 204 A.R. 60
(Q.B.).
Claims:
Severe Whiplash
Chronic neck and back
pain
Headaches
Depression/Anxiety
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
39
M
Self-employed
sand blaster and
industrial painter
with secure subcontract
The plaintiff’s back
pain was
permanent.
$40,000.00
Mr.
Justice
Moshansky
June 23,
1997
Accident occurred in April
1992. By March 1995, the
plaintiff had chronic pain
including headaches, back
and shoulder pain. The
Court found that he had
suffered a severe soft
tissue whiplash injury to
the neck and back,
including damage to his
spine indicated by vertical
lipping. He developed
symptoms of depression
and suffered prolonged
bouts. His back pain was
permanent but overall his
condition was helped by
active therapy and
depression medication.
He would never again be
able to resume physically
arduous occupations.
$57,920.00
Cause of
Action
April 10,
1992
88
CALGARY: 1992003v1
Inflationary
Update
Case Name
and
Citation
Bourassa v. Ryan (1997),
58 Alta. L.R. (3d) 362
(Q.B.).
Claims:
Whiplash
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
52
M
Roofer prior to
accident; has no
real trade or
profession,
illiterate.
Found to have
suffered an
impairment of the
whole person to the
extent of 20% due to
the accident.
$45,000.00
Mr.
Justice
Power
June 27,
1997
Notwithstanding evidence
of low impact collision,
plaintiff suffered a
permanent disabling injury
as a result of a rear end
collision.
Inflationary
Update
$65,160.00
Cause of
Action
August 22,
1990
The plaintiff had a
degenerative disc disease
prior to the accident which
left his low back more
vulnerable to whiplash
injury. The plaintiff was
found to be credible and
not a malingerer. Plaintiff
found to have genuinely
suffered a disabling injury
and did everything he
could to rehabilitate
himself.
89
CALGARY: 1992003v1
Case Name
and
Citation
Morris v. Budnarchuk
(1997), 204 A.R. 197
(Q.B.).
Claims:
Laceration to side of
head
Broken/cracked rib
Neck and shoulder pain
Right elbow pain
Carpal tunnel in wrist
Right knee pain
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
58
F
Occupation
Training
Consultant
The plaintiff had
been in three
accidents prior to
the November 3,
1993 accident in
which she sustained
the injuries claimed.
She had pre-existing
back and shoulder
pain. By the time of
trial, her neck and
back had resumed
pre-accident status.
It was said she had
increased pain in
this area for a
couple of years after
the accident. The
other problems
persisted.
$90,000.00
Mr.
Justice
June 28,
1997
The fourth accident was
the most severe. The
plaintiff found relief
through home based
physiotherapy. The Court
assessed the award by
considering the plaintiff’s
injuries globally and also
the fact that the loss of
amenities of life caused by
the accident were
significant.
90
CALGARY: 1992003v1
Inflationary
Update
$130,320.00
Sanderman
Cause of
Action
November
13, 1993
Note: this case may be
better placed in the
moderate whiplash
category if one were to
consider the damages for
that injury alone.
However, as the Court
assessed damages
globally, it is not possible
to determine what the
award for the shoulder and
back injury alone would
have been, so we have
placed this case in the
severe category due to the
overall nature and effect of
the injuries.
Case Name
and
Citation
Lowe v. Larue et al.,
[1998] 6 W.W.R. 760
(Q.B.)., general damages
upheld at (2000), 76 Alta.
L.R. (3d) 9 (C.A.).
Age
Sex
32
F
Claims:
Lacerations to face,
head arms
Broken ribs
Whiplash
Severe and Permanent
Injury to right wrist
Atkinson v. McGregor
(1998), 66 Alta. L.R. (3d)
289 (Q.B.).
Claims:
Tear of small bowel
Bruising
Fractured spine without
paralysis
Emotional pain
Torn back muscles
Leg pain
Occupation
Duration
Masters of Music Wrist injury was soft
Degree in
tissue in nature and
Trumpet from top had not improved at
U.S. school
all by the time of
trial. It was
permanent.
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
$65,000.00
Mr.
Justice
Hembroff
January 9,
1998
The plaintiff was found to
be entirely credible. The
wrist injury deprived her of
her gift for playing music.
This caused her to
experience some
emotional pain.
Inflationary
Update
$93,276.00
Cause of
Action
September
17, 1993
Note that none of the other
injuries, except for the
broken ribs, were
mentioned by the trial
judge. With respect to the
wrist, although there was
no explanation for why the
injury had not healed,
there was objective
evidence of injury and no
one suggested that the
pain was not real. The
plaintiff was in constant
pain, and the wrist injury
prevented her from
completing numerous daily
tasks such as driving,
washing dishes, dressing
etc.
F
High School
Student
By the time of trial,
the plaintiff still
experienced daily
pain, but it
fluctuated.
91
CALGARY: 1992003v1
General
Damages
Awarded
$85,000.00
Inflationary
Update
$121,539.00
Madam
Justice Veit
June 5, 1998 The plaintiff had a 12%
permanent impairment
Cause of
with significant physical
Action
and emotional suffering.
There was some mention
1993
that the plaintiff failed to
mitigate her loss by taking
advantage of
psychological and
vocational counselling.
Case Name
and
Citation
Wittmeier v. Scholes
(1999), 239 A.R. 42
(Q.B.).
Claims:
Neck pain
Low back pain
Chronic pain
Emotional Problems
Sciatic Nerve
Impingement
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
M
Dentist
Most of the injuries
sustained in the
accident resolved
prior to trial.
However, at trial the
plaintiff was still
suffering from an
impinged left sciatic
nerve that caused
him chronic pain on
the left side.
$125,000.00
(reduced by
36% for
liability.)
Mr.
Justice
Perras
January 7,
1999
The plaintiff was a young,
robust, physically active
man prior to the accident.
He enjoyed and
participated in a wide
variety of sports. He also
had a lot of stamina and
gave a lot of energy to his
dental practice. After the
accident, his ability to
participate in sports was
reduced to nonparticipation due to pain.
His pain became chronic,
and this was treated by a
monitored narcotics
program. Since the
accident, the plaintiff has
suffered extreme
emotional stages from
depression to extreme
optimism. It was found
that his whole body was
impaired by 10%. The
sciatic nerve irritation and
its impact was given the
most significant
consideration by the Court
when setting damages.
Inflationary
Update
$177,266.00
Cause of
Action
November
13, 1990
The Court found the
plaintiff was sufficiently
credible and had done
everything reasonable to
mitigate his damages.
92
CALGARY: 1992003v1
Case Name
and
Citation
S.A.B. v. Drift
Development Ltd. (1999),
236 A.R. 145 (Q.B.).
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
47
M
Trucking and
farming; limited
education.
Continued to
complain of pain to
trial.
$60,000.00
Mr.
Justice
Binder
Claims:
Whiplash (neck and
back injuries)
Chronic Pain
Emotional and
Inflationary
Update
$84,929.00
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
February 22, Prior existing degenerative
1999
changes and arthritis and
the injuries resulting from
Cause of
the accident caused the
Action
plaintiff's pain to become
chronic, severe and
January 25, permanent.
1992
Plaintiff did not fail to
mitigate damages by not
attending a rehabilitation
clinic that he was not
advised about.
Clinical impairment of the
plaintiff was assessed at
15% of the whole person.
The Court noted that this
assessment does not
measure pain and was
strictly tied to range of
motion only. This range of
motion assessment does
not equate to intensity of
pain which can be less, or
in this case, greater.
Whitfield v. Calhoun
(1999), 242 A.R. 201
(Q.B.).
Claims:
Whiplash
Chronic Pain (back and
neck)
(Personality Disorder)
24
M
Welder
More than eight
years post-accident,
the plaintiff still was
limited in his
physical abilities as
a result of his neck
and back pain.
Inflationary
Update
$120,126.00
Madam
Justice
Paperny
March 24,
1999
Cause of
Action
September
30, 1990
In his youth, the plaintiff
had been diagnosed with a
personality disorder and
the accident made this
prior condition significantly
worse. The Court applied
the "crumbling skull"
principle.
The plaintiff was
diagnosed post accident
with a "schizoid, paranoid,
personality disorder”.
93
CALGARY: 1992003v1
$85,000.00
Case Name
and
Citation
Hughes v. Gillingham
(1999), 247 A.R. 201
(Q.B.).
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
42
M
Shipper-receiver
Complaints
continued to trial.
$65,000.00
Mr.
Justice
Lefsrud
July 6, 1999
Claims:
Whiplash
TMJ
Emotional Injuries
Headaches
Inflationary
Update
$91,292.00
Cause of
Action
June 11,
1995
Circumstances and
Details of Injuries
Sustained
Pre-existing problems
included: haemophilia,
hepatitis, HIV positive,
arthritis in joints,
osteoarthritis, and severe
back problems.
The plaintiff was assessed
based on "crumbling skull"
principles.
the plaintiff's injuries could
be diagnosed as a
moderately severe
whiplash, TMJ, emotional
distress (anxiety), but
substantially reduced the
damages award due to
pre-existing conditions.
94
CALGARY: 1992003v1
Case Name
and
Citation
Cherwoniak v. Walker
(1999), 81 Alta. L.R. (3d)
214 (Q.B.); Aff'd [2001]
A.J. No. 859 (C.A.).
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
57
M
Regional Parts
Manager for
General Motors.
Continued to
complain of pain to
trial.
$75,000.00
Mr.
Justice
Mason
September
10, 1999
Prior back surgery in his
30s with occasional
lumbar strain and back
spasms, but basically
recovered prior to
accident. Post-accident
back condition related
entirely to accident.
Inflationary
Update
$104,794.00
Claims:
Whiplash (disc
herniation)
Fractured Ribs
Chest Pain
Cause of
Action
August 4,
1993
The plaintiff's serious back
injury was not noticed
immediately after accident
due to being masked by
other pain.
Back pain due to disc
herniation increased for
roughly three years postaccident until it 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.
Khalil v. Gunn (1999), 254
A.R. 238 (Q.B.).
Claims:
Whiplash
knees and shoulder
Chronic Pain
49
F
Realtor
Not fully recovered
from injuries by time
of trial (more than
six years postaccident).
The Court noted that
she will continue to
have discomfort in
her work for some
time.
95
CALGARY: 1992003v1
$60,000.00
Inflationary
Update
$83,147.00
Mr.
Justice
Medhurst
December 8, The plaintiff was found to
1999
be a "thin skulled" victim.
Cause of
Action
June 10,
1993
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.
Case Name
and
Citation
Lam v. Sorochan Estate
(2000), 259 A.R. 270
(Q.B.).
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
45
M
Registered
Engineering
Technologist
Continuing to date
of trial.
$80,000.00
Mr.
Justice
Murray
Claims:
Lower Back Strain
Inflationary
Update
$110,370.00
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
February 17, The Court deemed the
2000
action to be a "unique
case in that the plaintiff
Cause of
was seriously physically
Action
impaired prior to the
accident". The plaintiff had
March 7,
contracted polio at the age
1992
of nine months and as an
infant had had a
laminectomy of the L4-5 of
his lumbar spine.
the accident was the
cause of the plaintiff's
injury and that but for the
accident the plaintiff would
have been functionally
independent for many
years.
that further physio and
occupational therapy
would not materially
improve the plaintiff's
position.
96
CALGARY: 1992003v1
Case Name
and
Citation
Age
Guthmiller v. Krahn
(2000), 268 A.R. 369
(Q.B.).
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
M
Track hoe
operator
Continuing to date
of trial.
$65,000.00
Mr.
Justice
McIntyre
June 27,
2000
the plaintiff's injuries were
quite severe in that he was
unable to stand still for
more than 20 minutes, his
neck was in constant pain,
he had constant
generalized headaches,
he now has an abnormal
head position with reduced
range of motion of the
head and pain in the left
elbow.
Claims:
the head and neck
Ye v. McConnell, [2001] 6
W.W.R. 562 (Q.B.).
Claims:
the neck, shoulder and
back
Inflationary
Update
$88,693.00
Cause of
Action
November
30, 1995
35
M
Welder
Continuing to date
of trial.
(Court of the view
that injuries would
persist for another
year.)
$70,000.00
Inflationary
Update
$93,648.00
Mr.
Justice
Hawco
January 15,
2001
Cause of
Action
March 13,
1997
The plaintiff was a refugee
who came to Canada in
1995. His history (solitary
confinement for four years,
combat as a freedom
fighter) was deemed to be
relevant to state of health
at trial.
Soft tissue injuries to the
plaintiff's neck, shoulder
and back left him with a
permanent impairment of
7%.
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.
97
CALGARY: 1992003v1
Case Name
and
Citation
Dushynski v. Rumsey
(2001), 94 Alta. L.R. (3d)
26 (Q.B.).
Claims:
the neck and shoulders
Spinal and back injuries
Leg injuries
TMJ
Kidney Damage Chronic
Pain Syndrome
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
42
F
Part-time
custodian and
cafeteria worker
Continuing to date
of trial
(range of motion
had returned two
years post-accident
with continuing pain)
$125,000.00
Madam
Justice
Moen
June 14,
2001
The plaintiff was a victim of
four accidents between
1985 and 1993. This action
involved the effects of the
fourth accident.
98
CALGARY: 1992003v1
Inflationary
Update
$164,533.00
Cause of
Action
October 3,
1993
Prior to the fourth accident,
the plaintiff had returned to
work on a full-time basis.
the fourth accident caused
neck and shoulder injuries
with severe pain limiting the
plaintiff's range of motion
until December 1995 and
thereafter there was
continuing pain. In addition,
the fourth accident caused
severe spinal strain in the
cervical and lumbar spine.
Case Name
and
Citation
Moser v. Derksen (2002),
th
6 Alta. L.R. (4 ) 107
(Q.B.).
Claims:
neck and lumbar spine
Pain radiating into right
arm and thumb
Frontal occipital
headaches
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
42
F
Secretarial Work
Musculoligamentous
$60,000.00
Madam
Justice
Rowbotham
injury to neck and
back should have
resolved within 21
months to two years
after the first
accident.
Inflationary
Update
$77,723.00
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
July 15, 2002 The plaintiff was involved
in three motor vehicle
Cause of
accidents in 1995.
Action
As a consequence of the
accidents, the plaintiff
First:
April 3, 1995 suffered moderate soft
tissue injuries. Prior to the
Second:
accidents, the plaintiff was
August 3,
diagnosed with
1995
somatization disorder.
Third:
the accidents aggravated
September the pre-existing
29, 1995
psychological condition.
In setting quantum, the
Court made a global
assessment that took into
account the plaintiff’s preexisting somatization
disorder.
99
CALGARY: 1992003v1
Case Name
and
Citation
Age
Byron v. Larson, [2003]
A.J. No. 359 (Q.B.).
15, 17
Claims:
Whiplash pain in the
neck and back
Fibromyalgia
Chronic fatigue
syndrome
Headaches
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
F
Student at time of
accidents.
The plaintiff alleged
that she continued
to suffer from
fibromyalgia and
chronic fatigue
syndrome with
attendant
psychological
problems to the date
of trial.
$60,000.00
Madam
Justice
Kent
March 18,
2003
Dushynski v. Rumsey,
th
(2003), 16 Alta. L.R. (4 )
237 (C.A.).
$74,667.00
Cause of
Action
First:
April 16,
1996
in two separate accidents
as a teenager. The
plaintiff continued to feel
some pain prior to the
second accident but felt
that she was “coping”.
fibromyalgia is a syndrome
with no known cause
Second:
May 25, 1997 which can be triggered by
trauma and stress. In
assessing general
damages, the Court found
from fibromyalgia and
chronic pain as a result of
the accidents and that she
would never be completely
pain free.
Justices
McFadyen
Picard
Ritter
100
CALGARY: 1992003v1
Inflationary
Update
Circumstances and
Details of Injuries
Sustained
May 23, 2003 The Court of Appeal
upheld the trial division
general damages award.
The Court of Appeal
specifically concluded that
“the general damage
award of $125,000.00 may
well be at the high end but
we find it is not so far out
of line that this court ought
to interfere with the
decision of trial judge who
had extensive opportunity
to assess the respondent
and the medical evidence”.
Case Name
and
Citation
Roth v. Fischer, [2003]
A.J. No. 1272 (Q.B.).
Claims:
Myofascial pain
Ligamentous instability
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
F
Greenhouse
labourer and
waitress
that her injuries
were incapacitating
and persisted to the
date of trial.
$65,000.00
Madam
Justice
Romaine
August 21,
2003
The Court accepted that
the plaintiff suffered from
myofascial pain syndrome
as a result of the accident
and that the ligamentous
injury to the cervical spine
was not related to “normal
age-related degenerative
changes”. The Court did
however, reject the claim
that the plaintiff’s
headaches were caused
by the accident.
Inflationary
Update
$79,330.00
Cause of
Action
September
25, 1995
The Court determined that
the plaintiff suffered
“relatively significant
injuries from the accident
that have resulted in a mild
but permanent partial
disability estimated…as
being a 5% impairment of
the whole person”.
101
CALGARY: 1992003v1
Case Name
and
Citation
Lynne v. Taylor, [2004]
A.J. No. 755 (Q.B.)
Claims:
Chest pain
Right knee pain
Right shoulder pain
Right elbow pain
Neck pain
Shoulder pain
Decreased range of
motion
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
29
F
Working towards
completion of
Certified
Management
Accountant
program.
Unclear as to when
the plaintiff, if ever,
returns to her preaccident state as
she has been
involved in four
previous accidents
and one subsequent
accident.
$60,000.00
Mr.
Justice
Clackson
June 25,
2004
the plaintiff experienced
aggravation of her
previous injuries for a
period of three years and
was left with a permanent
disability of 4%. An
assessment of the
plaintiff's medical condition
was extremely difficult in
light of the prior accidents
and subsequent accident.
Inflationary
Update
$72,373.00
Cause of
Action
September
17, 1996
The Court rejected the
plaintiff's claim that her
fibromyalgia was caused
in whole or in part by the
subject's accident.
102
CALGARY: 1992003v1
Case Name
and
Citation
Davidson v. Patten
[2004] A.J. No. 1126
(Q.B.)
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
48
M
Concrete finisher
Ongoing to the date
of trial
$105,000.00
Mr. Justice
Mahoney
September
20, 2004
The plaintiff was
hospitalized for 12 days
following the accident
(which the Court described
as "violent") and
underwent multiple
surgeries for accident
injuries.
Claims:
Open fracture of the
femur
Intra-articular fracture of
the femur condyle
Fracture of the right
patella
Posterior cruciate
ligament tear
Collapsed lung
Lacerations to the arms
Contusions and
abrasions
the spine and neck
Blood and fluid loss
Temporary nervous
shock
Impermanent closed
head injury associated
with loss of
consciousness
Memory loss (events of
the collision)
$126,091.00
Cause of
Action
June 26,
1999
The Court found that as a
consequence of his
accident injuries, the
plaintiff has "trouble
squatting, kneeling and
using stairs or a ladder.
He limps and his right
knee does not bend or
straighten normally. He
has numbness, some pain,
tiredness and low sitting
and driving tolerance. His
condition, though stable to
a degree since the
accident, shows signs of
worsening". The Court
further held that the
injuries sustained by the
plaintiff compared closely
to the injuries sustained in
Wade v. Baxter.
103
CALGARY: 1992003v1
Inflationary
Update
Case Name
and
Citation
Dyck v. Wilkinson, [2004]
A.J. No. 1155 (Q.B.)
Claims:
Severe cervical and
lumbar strain
Disc herniation
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
19
F
Unemployed at
the time of the
accident due to
pregnancy
Complained of
ongoing symptoms
$110,000.00
Mr.
Justice
Rooke
October 8,
2004
The plaintiff was a
passenger in her mother's
vehicle at the time of the
accident.
Inflationary
Update
$131,918.00
Cause of
Action
March 4,
1999
the plaintiff suffered a mild
cervical strain and mild
lumbar back strain as well
as a "L-5 S1 nerve root
compression with disc
prolapse (herniation)",
causing moderately severe
and ongoing back and
right leg pain for which
surgical intervention was
unsuccessful.
The Court further found a
13% whole body
impairment and the
development of posttraumatic anxiety reaction
which required pain and
stress management
counselling.
104
CALGARY: 1992003v1
Case Name
and
Citation
Flis v. Chan, [2004] A.J.
No. 1360 (Q.B.)
Claims:
Chronic pain
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
M
Unemployed
Complained of
ongoing symptoms
to the date trial.
$60,000.00
Madam
Justice
Moreau
November
23, 2004
As a consequence of
having been involved in an
accident in 1993, the Court
was a "crumbling skull".
Prior to the 1996 accident,
he maintained a
"sedentary" lifestyle.
Inflationary
Update
$71,842.00
Cause of
Action
April 23,
1996
The Court set general
damages at $60,000.00 to
"compensate the Plaintiff
for an initially serious and
painful exacerbation of his
previous active injuries
and for some minor new
injuries which, I find, do
not materially affect his
functionability".
The Court was firm that
although the 1996
accident had delayed his
recovery from his earlier
injuries…"he had been
substantially restored to
his original position by
2000".
105
CALGARY: 1992003v1
Case Name
and
Citation
Goertzen v. Sandstra,
[2005] A.J. No. 1134
(Q.B.)
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
M
Labourer
Chronic pain
continuing to the
date of trial.
$70,000.00
Mr.
Justice
Hawco
August 23,
2005
"mild whiplash" to his
neck. The fact scenario
however, was complicated
by the psychological
injuries which the Court
concluded were "real" to
the plaintiff. This included
depression and anxiety.
These injuries were
exacerbated by a second
accident as well as
physical conditions and
"stresses" unrelated to
either accident.
Claims:
Chronic pain
Neck pain
Back pain
Shoulder pain
Major depression
Generalized Anxiety
Disorder
Inflationary
Update
$82,765.00
Cause of
Action
January 10,
2002
the defendants were not
required to compensate
the plaintiff for "the
additional anxiety that the
unrelated stressors" had
on the plaintiff. Significant
awards were made for
past and future lost
income.
106
CALGARY: 1992003v1
Case Name
and
Citation
Age
Sex
Occupation
Duration
General
Damages
Awarded
Lynne v. Taylor, [2006]
A.J. No. 18 (C.A.)
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
Justices
Russell,
Paperny and
O'Brien
January 13,
2006
The plaintiff appealed on
the basis of whether or not
the subject accident
caused or materially
contributed to her
condition of fibromyalgia.
The Court of Appeal
concluded that the "trial
judge misapprehended the
evidence" on the issue of
the plaintiff's fibromyalgia.
It also concluded that the
trial judge "failed to
properly apply the material
contribution test for
causation" which "caused
him to overlook relevant
evidence".
The appeal was allowed
and a new trial ordered on
the basis that "the
evidence must be
assessed afresh to
determine whether the
accident caused or
contributed to [the
plaintiff's] fibromyalgia and
the inquiry must include
whether it caused any preexisting symptoms to
become worse".
107
CALGARY: 1992003v1
Case Name
and
Citation
Imbir v. Barron, [2006]
A.J. No. 742 (Q.B.)
Claims:
Myofascial pain
Neck pain
Shoulder pain
Low back pain
Headaches
TMJ
Numbness and tingling
in left arm and fingers
Fibromyalgia
Insomnia
Depression
Emotional distress
Eating disorder
Memory and
concentration
Irritability
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
35
F
Self-employed
restaurant/
catering business
Ongoing to the date
of trial
$65,000.00
Madam
Justice
Phillips
Inflationary
Update
$74,719.00
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
June 9, 2006 The Court noted that the
plaintiff's complaints were
Cause of
extremely difficult to
Action
assess under the
circumstances. On the
October 31, totality of the evidence, the
1998
plaintiff suffered a WAD II
"whiplash-associated
injury".
The Court was not
prepared to find that the
plaintiff's low back
complaints, dysfunctional
voiding, jaw pain, cognitive
complaints, difficulties
swallowing, eating
disorder and posttraumatic stress disorder
were related to the
accident. The Court did
find that some depression
and sleep difficulties were
related to the accident.
The Court also specifically
found that it was
reasonable to conclude
that her "pain disorder
should have ceased to
have a significant impact
upon her life" in early
2001.
The Court also noted
some significant credibility
concerns.
108
CALGARY: 1992003v1
Case Name
and
Citation
Weston v. Regan, [2006]
A.J. No. 1049 (Q.B.)
Claims:
Scalp
Facial injuries
Leg injuries
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
M
Owner of an oil
and gas servicing
company
Superficial injuries
healed quickly
however, other
injuries persisted to
varying degrees to
date of trial
$125,000.00
Madam
Justice Kenny
August 18,
2006
Inflationary
Update
$142,622.00
Cause of
Action
November
25, 1998
Circumstances and
Details of Injuries
Sustained
superficial facial injuries
and fractured femurs
which required the
insertion of metal rods. A
subsequent left knee
ligament tear was also
diagnosed. The plaintiff
had been unable to walk
for several months and
was confined to a
wheelchair. He had to
"learn to walk again".
the injuries sustained by
the plaintiff were "quite
serious". He regularly
attended at physiotherapy
for the first several months
following the accident
however, became
frustrated and regressed.
As the accident occurred
in the course of his
employment, the Court
concluded, in regard to
ongoing treatment, that the
plaintiff "failed to
appreciate" that his
recovery, medical
appointments and
treatment were his
employment at the time. It
was the Court's
expectation that he would
devote his "full energies
during that period of time
to [his] recovery"
109
CALGARY: 1992003v1
Case Name
and
Citation
Vetter v. Goodman
th
(2007), 74 Alta L.R. (4 )
244 (Q.B.)
(The trial judge's decision
regarding liability was
appealed (2008), 92 Alta
th
L.R. (4 ) 13. The appeal
was dismissed)
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
35
M
Employed as a
welder and
measurer of
sheet metal
that some injuries
had resolved but
that others were
continuing. The
issue of duration
was complicated by
subsequent injuries.
$75,000.00
Madam
Justice
Horner
March 26,
2007
The plaintiff was
congenitally deaf and
resided with his parents
and brother.
Claims:
Myofacial pain
Chronic pain
Adjustment disorder
Depression
Anxiety
Bruising
Back pain radiating into
the right buttock
Left shoulder pain
Chest pain
Groin pain
110
CALGARY: 1992003v1
Inflationary
Update
$83,540.00
Cause of
Action
June 11,
2000
The trial judge made the
specific finding that the
plaintiff's shoulder injury
resolved within six months
of the accident with
intermittent flare-ups
thereafter. The Court also
held that the plaintiff's
back injury had "somewhat
resolved" by February,
2004 when it was
exasperated by two
subsequent injuries. The
Court held that the plaintiff
was "as a result of his
back pain and attendant
depression, at least 50%
permanently disabled, for
which the motor vehicle
accident is 40%
responsible, with 10%
being the muffin bowl
incident [subsequent
injury] and 50% being preexisting disc
degeneration".
Case Name
and
Citation
Thiessen v. Selke, [2007]
A.J. No. 400 (Q.B.)
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
36
F
Meat
trimmer/butcher
Ongoing to the date
of trial
$60,000.00
Mr. Justice
Mahoney
April 11,
2007
Claims:
Neck pain
Back pain
Headaches
Whiplash injury
Inflationary
Update
$66,535.00
Circumstances and
Details of Injuries
Sustained
plaintiff experienced
constant pain in her lower
Cause of
back persisting to the date
Action
of trial with difficulties
sitting for long periods of
November 1, time. She could only walk
2000
for a few minutes at a time
without having to stop,
experienced ongoing
difficulties sleeping,
headaches, shoulder pain
and neck pain. Two
experts found a permanent
disability of a total of 15%
to the whole person.
The defendant sought to
have general damages
decreased on the basis
that the plaintiff, who
weighed approximately
400 pounds at the time of
the accident, failed to
decrease her weight in the
recovery process. The
defendant was unable to
establish that the plaintiff
had failed to take
treatment or failed to try
and lose weight in an effort
to resolve her injuries.
111
CALGARY: 1992003v1
Case Name
and
Citation
Carrier v. Wan, [2007] A.J.
No. 481 (Q.B.)
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
57
M
Pipefitter
Ongoing to the date
of trial
$60,000.00
Madam
Justice Coutu
April 27,
2007
The assessment of
damages was complicated
by the fact that the plaintiff
"had two or three or,
possibly, up to five motor
vehicle accidents" before
the subject accident. He
was also involved in a
subsequent accident 17
months later. He also had
a hip replacement in 2005.
Claims:
WAD III whiplash
Injury to back and spine
Sacroiliac joint pain
Right hip pain
Chronic and disabling
pain
Inflationary
Update
$66,535.00
Cause of
Action
July 1, 1999
WAD III whiplash injury,
"including soft tissue injury
to his cervical and thoracic
spine, lumbar spine,
lumbosacral area, pain in
the sacroiliac joints with
chronic inflammation and
chronic pain". He also
"suffered from headaches,
sleep disturbance and
depression". The plaintiff
failed to prove that his hip
replacement was caused
by the accident.
damages, the Court took
into account the "ongoing
nature and chronic nature
of [his] soft tissue injuries
and, his sleep problems
and depression and the
impact that his injuries
have had on his
recreational activities".
112
CALGARY: 1992003v1
Case Name
and
Citation
Seich v. Tobin
[2007] A.J. No. 871 (Q.B.)
Claims:
Right wrist injury
Shoulder pain
Brain injury
Back pain
Hip pain
Neck pain
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
21
M
Seismic crew
worker who was
completing a
mechanics
program at the
time of the
accident
The soft tissue
injuries were largely
resolved three to
four years postaccident. The
plaintiff continued to
have wrist and
shoulder pain to the
date of trial
$80,000.00
Madam
Justice Kent
Inflationary
Update
$87,544.00
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
July 25, 2007 The Court held that the
plaintiff suffered from a 5%
Cause of
full body disability in his
Action
wrist and hand and that his
shoulder continued to be
October 16, painful. In addition, as a
2001
result of the accident, the
plaintiff suffered a mild
brain injury that "did not
result in any long term
deficits". The award of
general damages included
an amount for impaired
housekeeping ability.
noted that the plaintiff
worked as a bike courier, a
physically demanding
profession, from 2002 until
a few months before trial.
The trial judge considered
that to be a factor in
finding that, but for the
condition of his wrist and
hand, the plaintiff could do
physically demanding
work.
113
CALGARY: 1992003v1
Case Name
and
Citation
Labrecque v.
Heimbeckner
[2007] A.J. No. 1462
(Q.B.)
Claims:
Traumatic brain injury
Cosmetic scarring
Ankle injury
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
27
F
Main source of
income prior to
the accident was
social assistance
The most significant
injury suffered by
the Plaintiff was the
traumatic brain
injury that required a
daily caretaker.
$200,000.00
Mr. Justice
Macleod
August 3,
2007
in a high speed collision
with an RCMP vehicle. As
a consequence of the
accident, she sustained
physical injuries (i.e., ankle
and scarring) and a
traumatic brain injury.
Cause of
Action
Inflationary
Update
December
30, 2001
$218,011.00
The plaintiff had a
complicated medical
history which included preaccident hospitalization for
a motor vehicle accident,
addictive disorders and
psychiatric considerations.
The plaintiff continued to
struggle with drug
addiction following the
subject accident.
The most difficult question,
in light of the plaintiff's preaccident history, was
whether the traumatic
brain injury sustained in
the subject accident
"contributes to her existing
symptoms and deficits".
Davidson v. Patten
[2008] 425 A.R. 186 (C.A.)
Justices Hunt,
Berger and
O'Brien
114
CALGARY: 1992003v1
February 22, In the trial decision, the
2008
plaintiff was awarded
$5,000.00 for loss of
housekeeping as part of
general damages. The
Court of Appeal added a
further $45,000.00 for
household management
and housekeeping
assistance.
Case Name
and
Citation
O'Scolai v. Antrajenda
[2008] A.J. No. 495 (Q.B.)
Claims:
Neck pain
Back pain
Shoulder pain
Chronic pain
Nausea
Vomiting
Headaches
TMJ pain
Right hand and arm pain
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
50
F
Hairdresser
Continuing to the
date of trial though
there was
improvement in the
TMJ condition. The
Court noted that the
plaintiff looked
"unwell" at trial.
$75,000.00
Madam
Justice Read
May 1, 2008
damages, the Court
continued to suffer "a
degree of pain in her neck
and shoulders as well as
in her TMJ joint and has
some reduction of motion
in her neck". It was also
found however, that the
plaintiff was "consciously
exaggerating her
symptoms".
Inflationary
Update
$79,662.00
Cause of
Action
January 25,
2004
The Court further found
that while the plaintiff
suffered a severe whiplash
type injury, it should have
improved. The injuries
were not of the same
severity or duration as
those reported in
Dushynski v. Rumsey.
115
CALGARY: 1992003v1
Case Name
and
Citation
Pedherney v. Jensen
[2008] A.J. No. 787 (Q.B.)
Claims:
Neck pain
Backache
Tingling sensation in
two fingers on left hand
Rib pain
Left shoulder pain
Fibromyalgia
Weight gain
Depression
Conversion disorder
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
49
F
Worked for a
home study
computer
program relating
to interior design
The plaintiff
continued to
complain of various
symptoms to the
time of trial
$90,000.00
Mr. Justice
Rooke
June 10,
2008
Inflationary
Update
$95,248.00
Circumstances and
Details of Injuries
Sustained
damages, the Court
specifically held that the
Cause of
plaintiff was not "an
Action
accurate reporter of her
own history (pre or post
September 9, collision)".
1995
The Court held that the
plaintiff was "entitled to
damages recognizing her
pain from the date of the
collision until September,
2001". The Court found
that the plaintiff's accident
related injuries consisted
of "a moderate to severe
whiplash injury, probably
more to the severe side of
that scale…".
The Court also found that
there was "an aggravation
of her underlying [sic]
psychiatric condition, and
that the collision probably
caused it to present itself
as a full blown condition
sooner than would have
happened without trauma".
116
CALGARY: 1992003v1
Case Name
and
Citation
Wozniak (Next Friend of)
v. Alexander
[2008] A.J. No. 788 (Q.B.)
Claims:
Compound fracture of
the heel bone
Nerve damage
Laceration of tendons
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
17
F
Project
coordinator at
Home Depot
Consequences of
her foot injury will
continue to effect
her for the rest of
her life.
$120,000.00
Mr. Justice
Macleod
Inflationary
Update
$126,627.00
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
July 15, 2008 The plaintiff's foot was
nearly severed by the
Cause of
propeller of an outboard
Action
power boat motor.
July 23, 2004 As a consequence of the
accident, the plaintiff was
rushed to hospital and
required ankle fusion
surgery as well as screws
to hold the fractures in
place. She fractured the
small bone in the lower
leg, the outside ankle bone
and her heel bone.
The Court found that while
the plaintiff had made "a
pretty good recovery under
the circumstances", the
consequence of her
accident injuries were
permanent. The Court
held that the plaintiff's life
"will be much less active
and much more painful as
a result of this injury. She
has restrictive movement
in her right foot, she
cannot walk normally and
she cannot participate in
many activities or even
walking or standing for
long periods of time".
117
CALGARY: 1992003v1
Case Name
and
Citation
Carrier v. Wan
[2008] A.J. No. 1033
(C.A.)
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
57
M
Pipefitter
Ongoing to the date
of trial
$60,000.00
Justices
Martin,
Watson and
Rowbotham
Claims:
WAD III whiplash injury
to back and spine
Sacroiliac joint pain
Right hip pain
Chronic and disabling
pain
Inflationary
Update
$66,535.00
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
September 9, The plaintiff appealed the
2008
trial judge's decision on
the basis that the subject
accident not only caused
soft tissue injuries but also
caused or materially
contributed to the
accelerated onset of an
arthritic condition in his
right hip which impaired
his income earning ability.
The issue on appeal was
causation for which the
expert evidence was
"central". The Court of
Appeal held that causation
was a question of fact
reviewable only on the
standard of palpable and
overriding error. The
appellant did not identify
any "palpable fact-finding
error" and, as such, the
appeal was dismissed.
118
CALGARY: 1992003v1
Case Name
and
Citation
Diakow v Hughes, 2008
ABQB 567 upheld at 2009
ABCA 206.
Claims:
Back pain
Rib pain
Neck pain
Headaches
Depression
Bladder and bowel
problems
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
46
F
Formerly VicePresident, Benefit
Services at
Alberta Blue
Cross
(Unemployed at
time of incident);
intense pain for one
year. She continues
to experience minor
discomfort in her
back.
$70,000.00
Mr. Justice
Côté,
September
17, 2008
The plaintiff was struck by
the defendant's car.
Madam
Justice
Conrad,
Cause of
Action
Mother of 2
The bladder
problem resolved
after 5 days. The
bowel problem was
sporadic and
ongoing.
Inflationary
Update
$73,447.00
Madam
Justice
Rowbotham
She sustained bruises and
fractures of two ribs,
fractures of the sacrum
November 7, and pelvis and a
2002
compression fracture to
two of her vertebrae. She
wore a neck brace for 5
months. Following the
removal of the brace, the
plaintiff walked with a
walker for 2-3 months and
a cane for 5 months. She
will continue to have
residual minor discomfort
in her lower back forever.
Since the accident, the
Plaintiff has limited
mobility, difficulty bending
and lifting. Her ability to do
former hobbies, such as
dance or golf, is limited.
She is suffering from
depression. The Court
found that the plaintiff had
a pre-existing mental
health condition, but that
the accident delayed
treatment for that condition
by one year, thereby
slowing her recovery and
causing damage.
119
CALGARY: 1992003v1
Case Name
and
Citation
Norminton v. B & B
Electronics Ltd. [2009]
A.J. 27 (Q.B.)
Claims:
Bruising
Contusions
Calf injury
Ankle injury
Tingling in right leg
Low back pain
Buttock pain
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
61
F
Elementary
school teacher
Continuing to the
date of trial. The
Court specifically
found that the
plaintiff's "physical
and psychological
injuries will continue
to manifest
themselves
throughout her life".
$55,000.00
Mr. Justice
Manderscheid
January 12,
2009
The plaintiff sued the
manufacturer of a car
starter installed on the
plaintiff's daughter's
vehicle. The Court found
that the car starter was
improperly designed and
manufactured. The
plaintiff was pinned
against her garage as a
consequence of the faulty
operation of the car
starter. The manufacturer
of the car starter did not
attend the trial. The trial
proceeded pursuant to
Rule 245 of the Alberta
Rules of Court.
Inflationary
Update
Cause of
Action
$57,187.00
January 28,
2000
plaintiff suffered bruising
and soft tissue injuries to
her legs and an
aggravation of a preexisting degenerative
lower back condition. She
also suffered emotionally
from the impact of the
injuries.
noted that the plaintiff was
"extremely credible".
120
CALGARY: 1992003v1
Case Name
and
Citation
Russell v. Turcott
[2009] A.J. No. 144 (Q.B.)
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
21
F
Held a variety of
jobs
Continuing to the
date of trial
$115,000.00
Mr. Justice
Rooke
February 6,
2009
Counsel for the plaintiff
argued that the injuries
sustained were similar to
those at issue in
Dushynski v. Rumsey and
thereby justified a general
damages award of
$140,000. The Court
found that the injuries
sustained by the plaintiff in
Dushynski were more
extensive. The trial judge
reasoned that had he
heard the case at bar and
Dushynski at the same
time, he would have
awarded the plaintiff in the
subject action $90,000 (in
2001 dollars). On the
basis of inflation, the
present value of the award
was $113,500 which he
rounded up to $115,000.
Claims:
Whiplash
TMJ pain and discomfort
Chronic pain syndrome
Post-traumatic pain
syndrome
Somatoform pain
disorder
Psychological effects
fibromyalgia
Regional myofascial
pain syndrome
Depression
General anxiety disorder
Mood disorder
Inflationary
Update
$119,369.00
Cause of
Action
December
16, 2001
The Court also thoroughly
canvassed the argument
of impecuniosity in the
context of the failure to
mitigate. The Court
ultimately held that the
plaintiff's "impecuniosity
relieves her of the duty to
pursue those forms of
treatment that she simply
could not afford".
121
CALGARY: 1992003v1
Case Name
and
Citation
Prosser v 20 Vic
Management Inc, 2009
ABQB 177 upheld at 2010
ABCA 57.
Claims:
Lower back pain
Arm pain
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
39
F
Accountant,
Senior Position
At time of trial, the
plaintiff was still
experiencing pain.
$100,000.00
(less 50% for
liability)
Mr.
Justice
Cairns
March 19,
2009
It is likely that some
residual pain is
permanent.
Inflationary
Update
The plaintiff tripped over a
protruding fence at edge of
temporary construction
zone.
$103,721.00
Cause of
Action
Before the accident, the
February 29, plaintiff had recurring
2000
shoulder, neck and back
pain.
After the fall, the plaintiff
was diagnosed with soft
tissue injuries, multiple
contusions and left and
right sciatica down to her
calf.
She continues to
experience lower back
pain. This pain affects her
every-day activities (i.e.,
she experiences pain if
she sits for a prolonged
period of time).
122
CALGARY: 1992003v1
Case Name
and
Citation
Schmolzer v Higenbottam,
2009 ABQB 522.
Claims:
Brain injury
Neck pain
Back pain
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
35
M
Commercial Pilot
The brain injury is
permanent.
$75,000.00
Madam
Justice
Romaine
September
11, 2009
in a motor vehicle
accident.
The soft tissue
injuries healed
within 10 to 12
months.
Inflationary
Update
$78,266.00
Cause of
Action
After the accident, the
plaintiff complained of a
November 1, sore chest, sore neck, a
2000
laceration above his left
orbital ridge and sore
arms. The plaintiff suffered
a concussion and mild
brain injury during the
accident. He had a loss of
consciousness for 3 to 4
seconds.
Following the accident, he
continued to have a sore
neck and back. The Court
found that he suffered a
brain injury in the accident,
which forced him to quit
piloting, as he was having
difficulty concentrating and
had a decreased reaction
time.
123
CALGARY: 1992003v1
Case Name
and
Citation
Egglestone v Cox, 2009
ABQB 584.
Claims:
Depression
Neck pain
Back pain
Headaches and pressure
in his ears and nose
Loss of mental capacity
(poor memory,
decreased problemsolving abilities)
Personality change and
problems with
interpersonal
relationships
Age
Sex
54
M
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
The physical
impairments and
depression lasted
15 months to 2
years.
$75,000.00
Mr. Justice
Wilkins
October 7,
2009
in an automobile accident.
In addition to significant
bruising and cuts to his
face and back, the
accident caused the
plaintiff's neck to fracture
resulting in an 8% whole
body impairment with no
residual motor impairment.
He also experienced
significant muscular
ligament injuries to his
neck, upper back,
shoulders and arm which
caused him significant
pain for 2 years. Although
the plaintiff continued to
experience pain beyond 2
years, the Court found that
the residual pain was the
result of the plaintiff's
depressive condition,
which the accident had
exacerbated.
The chronic pain
lasted over 2 years.
Inflationary
Update
$78,261.00
Cause of
Action
July 1, 2004
The Court held that there
was insufficient evidence
to establish any of his
other claims.
124
CALGARY: 1992003v1
Case Name
and
Citation
Loffler v Cosman, [2010]
AJ No 314 (ABQB).
Claims:
Herniated cervical disc
Numbness in arm and
hand
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
40
M
Material Handler
The neck pain was
resolved by the
surgery which
occurred December
11, 2001. Recovery
from the surgery
was 'lengthy'.
Would have
been
$85,000.00
Mr. Justice
Mahoney
March 12,
2010
The plaintiff claims the
defendant negligently
performed chiropractic
manipulations to his neck,
resulting in a herniated
cervical disc. The Court
found that the defendant's
actions were a necessary
contribution to the
condition, but that the
defendant did not fall
below the standard of
care.
The numbness in
his right hand and
arm is permanent.
Inflationary
Update
$88,320.00
Cause of
Action
January 19,
2001
Immediately following the
adjustment, the plaintiff
experienced severe neck,
arm and hand pain. He
was diagnosed as
suffering from a right sided
back sprain and eventually
a herniated disc. As a
result, the plaintiff
underwent a spinal fusion
surgery, which has a long
recovery period.
The plaintiff has
permanent residual
problems, including a
numbness in his right hand
and arm that will require
medication and therapy.
His level of activity will be
reduced as a result of the
injury.
125
CALGARY: 1992003v1
Case Name
and
Citation
Do v Sheffer, [2010] AJ
No 325 (QB).
Claims:
Lower back pain
Upper back and chest
pain
Neck and shoulder pain
Numbness of legs and
big toe
Jaw and mouth pain
Thumb tenderness
Headaches
Erectile dysfunction
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
M
Machinist
Permanent
impairment of
cervical spine (2%)
$85,000.00
Mr. Justice
Lee
March 25,
2010
in a motor vehicle
accident.
Ongoing lower back
problems
Thumb pain
resolved in days
Other injuries and
pain all resolved
within a few years.
Inflationary
Update
$88,320.00
Cause of
Action
November
16, 2002
accident had aggravated a
prior asymptomatic back
condition (that had
stabilized before accident),
which resulted in a
permanent impairment of
the plaintiff's cervical
spine, rendering the
plaintiff disabled and
unable to work in his
former occupation.
causation for the erectile
dysfunction was not made
out.
126
CALGARY: 1992003v1
Case Name
and
Citation
Meehan v Holt, [2010] AJ
No 603 (QB).
Claims:
Severe headaches
Lower and mid back
pain
Neck pain
Right shoulder pain and
impingement
Jaw pain (TMJ injury)
Numbness of hands
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
31
F
Chiropractor
The plaintiff
continued to
experience jaw pain
and numbness in
her hands at the
time of trial.
$90,000.00
Mr. Justice
Sullivan
The mid and lower
back pain was
largely resolved
after 7 months.
The headaches
resolved after
70 months
The shoulder injury
healed after 2 years.
the neck injury was
largely resolved.
The neck injuries
took longer to heal
because of
degenerative disc
disease.
127
CALGARY: 1992003v1
Inflationary
Update
$93,311.00
Date of
Judgment
Circumstances and
Details of Injuries
Sustained
May 28, 2010 The plaintiff and defendant
were in a motor vehicle
Cause of
accident.
Action
The plaintiff had preSeptember 8, existing degenerative disc
1998
disease, which, coupled
with hypermobility, made
her more prone to injury.
At the time of trial, the
plaintiff still could not eat
certain types of foods and
her sporting activities were
curtailed. Her sleep
pattern remained
disturbed.
plaintiff was "self-limiting "
in her perception of what
she could do; this was in
contrast to what experts
said she should be
capable of.
Case Name
and
Citation
McNulty v Edmonton
(City), 2011 ABQB 297.
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
52
M
Welder
Permanent
$85,000.00
(less 50% for
liability)
Mr. Justice
Lee
May 2, 2011
Claims:
Ripped three of the four
quadriceps muscles.
Inflationary
Update
$86,999.00
Cause of
Action
August 2000
Circumstances and
Details of Injuries
Sustained
The plaintiff fell 16 inches
off the edge of a deck,
damaging his quadriceps
muscles and requiring
surgery.
The pain was debilitating
to the point of prohibiting
him from working for
almost 2 years.
have pain and limited
mobility in his knee.
128
CALGARY: 1992003v1
Case Name
and
Citation
Chisholm v Lindsay, 2012
ABQB 81, upheld at 2012
ABQB 349.
Claims:
Right knee problems
TMJ
Chronic pain and fatigue
Headaches
Psychological distress
(Post-Traumatic Stress
Disorder)
Age
Sex
Occupation
Duration
General
Damages
Awarded
Judge
Date of
Judgment
31
F
Special
Education
Teacher and
Mother
At time of trial,
symptoms were
ongoing and
seemingly
permanent.
$90,000.00
Madam
Justice Kenny
February 3,
2012
Inflationary
Update
$90,309.00
Cause of
Action
April 25,
2005
Circumstances and
Details of Injuries
Sustained
The plaintiff was sitting in
a parked car when the
defendant rear-ended her
vehicle.
The plaintiff complained of
headaches, cervical and
lumbar pain,
temporomandibular joint
(TMJ) pain, right knee and
right wrist pain. The
plaintiff also suffered mild
traumatic brain injury and
partial symptoms of posttraumatic stress disorder.
The accident also made
her more vulnerable to
future stresses and
accidents.
have weekly headaches,
chronic fatigue, chronic
pain in her back, shoulder
and knee, and associated
psychological difficulties.
129
CALGARY: 1992003v1
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A Review of Whiplash Decisions in Alberta

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