Dushynski v. Rumsey, 2001 ABQB 513

• Judge: Moen, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: May 05, 2001
• Citations: 2001 ABQB 513;(2001), 295 A.R. 309 (QB)

Dushynski v. Rumsey (2001), 295 A.R. 309 (QB)

MLB headnote and full text

Temp. Cite: [2001] A.R. TBEd. JN.076

Halina Dushynski (plaintiff) v. Frederick D. Rumsey (defendant)

(Action No. 9403 22849; 2001 ABQB 513)

Indexed As: Dushynski v. Rumsey

Alberta Court of Queen's Bench

Judicial District of Edmonton

Moen, J.

June 14, 2001.

Summary:

The plaintiff suffered numerous injuries in four successive motor vehicle accidents. She was not responsible for any of them. At issue was compensation for injuries she sustained from the fourth accident.

The Alberta Court of Queen's Bench held that the fourth accident significantly impacted on her earlier injuries, caused new injuries, and most importantly, resulted in a permanent injury: chronic pain syndrome. The court calculated damages accordingly.

Damage Awards - Topic 11

Injury and death - General - Continuing pain (incl. fibromyalgia, myofascial and chronic pain) - The plaintiff suffered numerous injuries in four successive motor vehicle accidents - She was not responsible for any of the accidents - At issue was compensation for injuries she sustained from the fourth accident - The Alberta Court of Queen's Bench held that the fourth accident caused, or significantly contributed to, the plaintiff's injuries - Particularly, the court concluded that the accident exacerbated a pre-existing TMJ injury and was responsible for 25% of the plaintiff's TMJ problems; caused neck and shoulder injuries temporarily limiting her range of motion; caused a severe spinal strain in her cervical and lumbar spine, with pain in her dorsal and thoracic spine; caused contusions to her left hip and thigh, her right knee and ankle, and a haematoma on her left foot; caused a hernia in her left thigh where muscle tissue bulged out from a tear in the fascia, requiring surgery; contused her left kidney, causing some pain and discomfort; and caused development of chronic pain syndrome, making return to work impossible - The court assessed general damages of $125,000 - See paragraphs 1 to 177.

Damage Awards - Topic 14

Injury and death - General - Condition aggravated by subsequent event (incl. subsequent injury) - [See Damage Awards - Topic 11 ].

Damage Awards - Topic 111

Injury and death - Head injuries - Jaw - The plaintiff suffered numerous injuries in four successive motor vehicle accidents - She was not responsible for any of the accidents - At issue was compensation for injuries she sustained from the fourth accident - The Alberta Court of Queen's Bench held that the fourth accident caused, or significantly contributed to, the plaintiff's injuries - Particularly, the court concluded that the accident exacerbated a pre-existing TMJ injury and was responsible for 25% of the plaintiff's TMJ problems - Consequently, the fourth accident defendant was responsible for 25% of the total that was paid for the plaintiff's TMJ therapy - See paragraph 178.

Damage Awards - Topic 150

Injury and death - Multiple injuries - General - [See Damage Awards - Topic 11 ].

Damage Awards - Topic 201

Injury and death - Psychological injuries -Emotional reaction causing mental or physical symptoms - [See first Damages -Topic 1011 ].

Damage Awards - Topic 210

Injury and death - Psychological injuries -Aggravation of psychological injuries - [See first Damages - Topic 1011 ].

Damage Awards - Topic 453

Injury and death - Special damage awards - Loss of wages - The plaintiff suffered numerous injuries in four successive motor vehicle accidents - She was not responsible for any of the accidents - At issue was compensation for injuries she sustained from the fourth accident - The Alberta Court of Queen's Bench held that the fourth accident caused, or significantly contributed to, the plaintiff's injuries - Particularly, the court concluded that the accident caused the plaintiff to develop chronic pain syndrome, making her unable to return to work at her present job as a full-time school custodial assistant - The court noted that the plaintiff would likely work until 65 years of age given that she had no other source of income to support her until receiving CPP and Old Age Security - Thus, taking into account the plaintiff's age, her training and experience, and her injuries, the court calculated the plaintiff's total future loss of earning capacity of $334,330 - See paragraphs 206 to 212.

Damage Awards - Topic 454

Injury and death - Special damage awards - Pre-trial loss of earning capacity - The plaintiff suffered numerous injuries in four successive motor vehicle accidents - She was not responsible for any of the accidents - At issue was compensation for injuries she sustained from the fourth accident - The Alberta Court of Queen's Bench held that the fourth accident caused, or significantly contributed to, the plaintiff's injuries - Particularly, the court concluded that the accident caused the plaintiff to develop chronic pain syndrome, making her unable to return to work at her present job as a full-time school custodial assistant - Considering the plaintiff's age, her training and experience, and her injuries, the court calculated the plaintiff's pre-trial loss of regular earning capacity at $167,357, pre-trial loss of overtime earning capacity $5,795.30 and the loss of non-statutory fringe benefits of $14,511.43, all of which was attributable to the fourth accident - See paragraphs 181 to 205.

Damage Awards - Topic 455

Injury and death - Special damage awards - Transportation - The plaintiff suffered numerous injuries in four successive motor vehicle accidents - She was not responsible for any of the accidents - Compensation for injuries she sustained from the fourth accident were at issue - In awarding compensation, the Alberta Court of Queen's Bench held that the plaintiff was entitled a lump sum of $1,000 for transportation expenses to and from doctors, physiotherapists, specialists, and other therapists - Particularly, the court concluded that this was reasonable given the number of doctors and therapists that she had seen in the last 7 years - See paragraph 180.

Damage Awards - Topic 460

Injury and death - Special damage awards - Loss of housekeeping capacity - The plaintiff suffered numerous injuries in four successive motor vehicle accidents - She was not responsible for any of the accidents - At issue was compensation for injuries she sustained from the fourth accident - The Alberta Court of Queen's Bench held that the fourth accident caused, or significantly contributed to, the plaintiff's injuries - Particularly, the court concluded that the fourth accident caused the plaintiff to develop chronic pain syndrome - Had the chronic pain syndrome not resulted from the fourth accident, the plaintiff would have recovered most, if not all of her ability to perform most household chores - Therefore, even though the plaintiff did not suffer any immediate change in her ability to do house work as a result of the fourth accident, the chronic pain syndrome limited the plaintiff's ability to do housework to "light housework" for the rest of her life - The court calculated awarded housekeeping for 8 hours per week both before trial, and a lump sum award of $100,000 for future loss of household services - See paragraphs 213 to 225.

Damages - Topic 591

Limits of compensatory damages - Predisposition to damage (thin skull or crumbling skull rule) - "Thin skull" or "crumbling skull" - The Alberta Court of Queen's Bench stated that the "crumbling skull" rule recognized that a pre-existing condition was inherent in the plaintiff's original position - "The defendant need not put the plaintiff in a position better than his or her original position ... The defendant is liable for the additional damage but not the pre-existing ... Likewise, if there is a measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future, regardless of the defendant's negligence, then this can be taken into account in reducing the overall award. ... This is consistent with the general rule that the plaintiff must be returned to the position he would have been in, with all of its attendant risks and shortcomings, and not a better position" - See paragraph 169.

Damages - Topic 591

Limits of compensatory damages - Predisposition to damage (thin skull or crumbling skull rule) - "Thin skull" or "crumbling skull" - The Alberta Court of Queen's Bench reviewed the "crumbling skull" rule, stating that intervening events that would have caused the same injury even if the negligence had not occurred are to be considered when assessing damages in personal injury cases - "The principle underlying this application of intervening events is that the plaintiff is to be put in the same position that he or she would have been in, but not in a better position" - See paragraphs 168 and 169.

Damages - Topic 595

Limits of compensatory damages - Predisposition to damage (thin skull or crumbling skull rule) - Personal injury - Victim's mental condition - [See first Damages - Topic 1011 ].

Damages - Topic 596

Limits of compensatory damages - Predisposition to damage (thin skull or crumbling skull rule) - Personal injury - Victim's physical condition - [See first Damages - Topic 1011 ].

Damages - Topic 1011

Mitigation - In tort - Personal injuries - Treatment for - The plaintiff was involved in four motor vehicle accidents in nine years for which she was not responsible - Regarding the fourth accident, the Alberta Court of Queen's Bench awarded the plaintiff $125,000 general damages - The defendant alleged that the plaintiff failed to mitigate her damages by not pursuing reasonable recommendations for pain management counselling - The court held the plaintiff did not fail to mitigate - She could not afford the recommended treatment - Moreover, even if she had been able to afford counselling, the evidence indicated that her ability to decide to seek treatment was compromised by the accidents - Particularly, she was told by certain doctors that she had no objective injuries - From this, she concluded that the doctors felt she was malingering or that she was crazy - Four accidents in such a short period of time rendered her unable to recognize that her pain had a psychological overlay - The defendant had to take the plaintiff as he found her - Someone with a pre-existing condition making her injuries more long-lasting and someone who would become depressed when confronted with stress - See paragraphs 226 to 242.

Damages - Topic 1011

Mitigation - In tort - Personal injuries - Treatment for - The Alberta Court of Queen's Bench stated that the "general principle underlying mitigation is that the defendant should not be held liable for damages which the plaintiff could have reasonably avoided. The test for mitigation in a personal injury action is whether the plaintiff has acted reasonably in respect of his or her injuries, which includes submitting to reasonable medical treatment and following appropriate medical advice. The initial burden of proof requires the plaintiff to prove damages and quantum; but if the defendant alleges that the plaintiff failed to mitigate damages, the burden of proof then moves to the defendant" - See paragraphs 226 and 227.

Torts - Topic 54

Negligence - Causation - "But for" test - The Alberta Court of Queen's Bench reviewed the causation principles enunciated by the Supreme Court of Canada in Athey v. Leonati, pertaining to causation in personal injuries cases - See paragraphs 16 and 17.

Cases Noticed:

Athey v. Leonati et al., [1996] 3 S.C.R. 458; 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243; 140 D.L.R.(4th) 235; 31 C.C.L.T.(2d) 113; [1997] 1 W.W.R. 97, refd to. [para. 16].

Mackie v. Wolfe (1994), 153 A.R. 81; 21 Alta. L.R.(3d) 11 (Q.B.), refd to. [para. 142].

Cox v. Joyal et al. (1996), 182 A.R. 244 (Q.B.), refd to. [paras. 142, 148, footnote 3].

Buteikis v. Adams (1994), 90 B.C.L.R.(2d) 213 (S.C.), varied (1996), 23 B.C.L.R.(3d) 353 (S.C.), refd to. [paras. 142, 148, footnote 4].

Janiak v. Ippolito, [1985] 1 S.C.R. 146; 57 N.R. 241; 9 O.A.C. 1; 16 D.L.R.(4th) 1, refd to. [paras. 149, 231, footnotes 5, 17, 19].

Pryor v. Bains (1986), 69 B.C.L.R. 395 (C.A.), refd to. [para. 151, footnote 6].

Reid et al. v. Joy et al. (1999), 181 Nfld. & P.E.I.R. 246; 550 A.P.R. 246 (Nfld. C.A.), refd to. [para. 154, footnote 7].

S.A.B. et al. v. Drift Developments Ltd. et al. (1999), 236 A.R. 145 (Q.B.), refd to. [para. 155, footnote 8].

Cranwill v. James et al. (1997), 193 A.R. 204; 135 W.A.C. 204 (C.A.), application for leave to appeal denied (1997), 223 N.R. 227; 212 A.R. 235; 168 W.A.C. 235 (S.C.C.), refd to. [para. 155, footnote 9].

Ye v. McConnell et al. (2001) 282 A.R. 73 (Q.B.), refd to. [para. 155, footnote 10].

Beger v. MacAstocker Estate (1996), 192 A.R. 241 (Q.B.), additional reasons (1996), 194 A.R. 397; 45 Alta. L.R.(3d) 161 (Q.B.), refd to. [para. 159, footnote 11].

Jobling v. Associated Dairies Ltd., [1981] 2 All E.R. 752 (H.L.), refd to. [para. 167].

Penner v. Mitchell (1978), 10 A.R. 555; 89 D.L.R.(3d) 343 (C.A.), refd to. [para. 167].

Simmie v. Parker and Unger (1994), 164 A.R. 178 (Q.B.), affd. (1996), 187 A.R. 307; 127 W.A.C. 307 (C.A.), refd to. [para. 172, footnote 12].

Matorana v. Lee (1994), 150 A.R. 167; 17 Alta. L.R.(3d) 409 (Q.B.), refd to. [para. 172; footnote 12].

Logozar v. Golder (1992), 136 A.R. 363; 7 Alta. L.R.(3d) 44 (Q.B.), affd. (1994), 157 A.R. 102; 77 W.A.C. 102; 23 Alta. L.R.(3d) 210 (C.A.), refd to. [para. 172, footnote 12].

Bell v. Tilden Car Rental Inc. et al. (1996), 196 A.R. 142; 141 W.A.C. 142; 44 Alta. L.R.(3d) 152 (C.A.), refd to. [para. 172, footnote 12].

Pettipas v. Klingbeil et al. (2000), 260 A.R. 1 (Q.B.), refd to. [para. 172, footnote 12].

Sczebel v. Silverston; Sczebel v. Mel's Blasting & Painting Ltd. and Massie (1988), 85 A.R. 293; 59 Alta. L.R.(2d) 165 (Q.B.), refd to. [para. 173, footnote 13].

Wittmeier v. Scholes (1999), 239 A.R. 42 (Q.B.), refd to. [para. 173, footnote 13].

Morris v. Budnarchuk (1997), 204 A.R. 197 (Q.B.), affd. (1999), 228 A.R. 158; 188 W.A.C. 158 (C.A.), refd to. [para. 173, footnote 13].

Buchanan v. Wassef (1996), 191 A.R. 89 (Q.B.), refd to. [para. 173, footnote 13].

McKay v. Stewart (1996), 182 A.R. 181 (Q.B.), refd to. [para. 173, footnote 13].

Philips v. Rost (1996), 185 A.R. 241; 40 Alta. L.R.(3d) 246 (Q.B.), refd to. [para. 173, footnote 13].

Santoro v. Raban (2000), 265 A.R. 1 (Q.B.), refd to. [para. 180, footnote 14].

Smith v. Pang (1993), 83 B.C.L.R.(2d) 298 (S.C.), refd to. [para. 191, footnote 15].

Silvaniuk v. Stevens (1999), 244 A.R. 75; 209 W.A.C. 75 (C.A.), refd to. [para. 230; footnote 16].

Elloway v. Boomars (1968), 69 D.L.R.(2d) 605 (B.C.S.C.), refd to. [para. 231, footnote 18].

Costello and Dickhoff v. Calgary (City) (1997), 209 A.R. 1; 160 W.A.C. 1; 53 Alta. L.R.(3d) 15 (C.A.), application for leave to appeal dismissed (1997), 227 N.R. 149; 212 A.R. 398; 168 W.A.C. 398 (S.C.C.), refd to. [para. 233, footnote 20].

Panarctic Oils Ltd. v. Menasco Manufacturing Co. (1983), 41 A.R. 451 (C.A.), refd to. [para. 233].

Payzu v. Saunders, [1919] 2 K.B. 581, refd to. [para. 233].

Michaels et al. v. Red Deer College, [1976] 2 S.C.R. 324; 5 N.R. 99; [1975] 5 W.W.R. 575; 57 D.L.R.(3d) 386, refd to. [para. 233].

Banco de Portugal v. Waterlow & Sons, [1932] A.C. 452 (H.L.), refd to. [para. 233].

Costello and Costello v. Cormier Enterprises (1980), 28 N.B.R.(2d) 398; 63 A.P.R. 398; 108 D.L.R.(3d) 472 (C.A.), refd to. [para. 233].

Lesters Leathers & Skins Co. v. Home & Overseas Beers Brokers (1948), 64 T.L.R. 569 (C.A.), refd to. [para. 233].

Marsan v. Grank Trunk Pacific Railway (1912), 1 W.W.R. 693 (Alta. C.A.), refd to. [para. 233].

Pilkington v. Wood, [1953] Ch. 770, refd to. [para. 233].

Authors and Works Noticed:

Klar, Lewis, Case Comment on Mackie v. Wolfe, Tort Law (1997) (Update), generally [para. 146, footnote 2].

Counsel:

Helmut Berndt, for the plaintiff;

Dane C. Wintermute and Carla Lamash, for the defendant.

This action was heard on May 5, 2001, before Moen, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on June 14, 2001.