Jensen v. Thompson et al., 2002 ABQB 1066

• Judge: Erb, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 13, 2002
• Citations: 2002 ABQB 1066;(2002), 328 A.R. 354 (QB)

Jensen v. Thompson (2002), 328 A.R. 354 (QB)

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. DE.055

Donald Jensen and Emma Jensen (plaintiffs) v. Ernest J. Thompson and Calgary International Auto and Truck Show Inc. (defendants)

(Action No. 9901-10249; 2002 ABQB 1066)

Indexed As: Jensen v. Thompson et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Erb, J.

December 6, 2002.

Summary:

The plaintiff suffered a whiplash injury in a motor vehicle accident. Liability for the accident was admitted.

The Alberta Court of Queen's Bench assessed the plaintiff's damages and awarded judgment accordingly.

Damage Awards - Topic 178

Injury and death - Neck injuries - Whiplash - The plaintiff suffered a whiplash injury when she was 55 years old - Her difficulties had not resolved and were unlikely to abate in the future - The injury had had a substantial impact on her life - Participation in athletic activities had been curtailed or greatly reduced - The plaintiff had difficulty driving for lengthy periods and had to stop frequently to use a tens machine to relax her muscles and to rest - The plaintiff had had numerous medical treatments, including painful and invasive Intra Muscular Stimulation with its attendant risks, 150 physiotherapy treatments, massage and chiropractic care - The Alberta Court of Queen's Bench awarded the plaintiff general damages of $55,000 for pain and suffering and loss of amenities of life - See paragraphs 79 to 81.

Damage Awards - Topic 495

Injury and death - General damage awards - Loss of housekeeping capacity - The plaintiff suffered a whiplash injury when she was 55 years old - Her difficulties had not resolved and were unlikely to abate in the future - The Alberta Court of Queen's Bench found that the plaintiff would continue to do her housework, but at a slower pace - The court awarded general damages of $7,500 for loss of housekeeping capacity - See paragraphs 95 to 96.

Damages - Topic 596

Limits of compensatory damages - Predisposition to damage (thin skull or crumbling skull rule) - Personal injury - Victim's physical condition - The plaintiff was in a motor vehicle which was struck from behind by the defendant's vehicle - The plaintiff sued for damages for a whiplash injury - The defendant argued that because of the low impact of the collision, the plaintiff's injury must be exaggerated or pre-existing or, in any event, that the accident did not cause or contribute to the injury - The Alberta Court of Queen's Bench rejected the argument - The court referred to factors which could cause some individuals to be more susceptible to injury in rear end collisions - Each of the risk factors were relevant to the plaintiff's situation at the time of the accident - Further, in situations where the injury was caused by the negligent act, but was more serious than would be generally expected because of a plaintiff's susceptibility to more serious injury, the defendant was still fully liable - The court found that the plaintiff's injuries were caused by the accident - See paragraphs 39 to 53.

Damages - Topic 1012

Mitigation - In tort - Personal injuries - Employment - The plaintiff suffered a whiplash injury when she was 55 years old - Her difficulties had not resolved - The plaintiff had worked as a compliance officer specializing in NAFTA for Revenue Canada - She opted for medical retirement - The defendant argued that the plaintiff failed to mitigate her damages by accepting alternate employment - The occupations advanced were hotel desk clerk and secretarial positions based on a report provided by Columbia Vocational Assessments - The Alberta Court of Queen's Bench found that the plaintiff did not breach her duty to mitigate - The plaintiff did not have to accept a lesser position to mitigate her damages - Alternate employment had to be suitable given her education, training and experience - An individual was not required to take alternate employment which was trivial, menial or inconsequential or for which they were overqualified or unsuited by background - Work as a hotel desk clerk or secretary were not suitable alternate employment choices for an internationally respected senior Revenue Canada compliance officer - See paragraphs 54 to 70.

Damages - Topic 1742

Deductions for payments or assistance by third parties - Contractually - From employer - Pensions - The plaintiff suffered a whiplash injury when she was 55 years old - Her difficulties had not resolved - The plaintiff had worked as a compliance officer for Revenue Canada - She opted for medical retirement at the age of 59, four years short of when she would have been entitled to a full pension - Medical retirement provided less pension income than what she would have been entitled to receive had she retired at full pension - The Alberta Court of Queen's Bench held that the plaintiff was entitled to the difference between the medical retirement pension she had received and full retirement, in addition to her income loss, as a collateral benefit arising from her collective agreement - See paragraph 101.

Torts - Topic 51

Negligence - Causation - General principles - [See Damages - Topic 596 ].

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, refd to. [para. 47].

Janiak v. Ippolito, [1985] 1 S.C.R. 146; 57 N.R. 241; 9 O.A.C. 1; 16 D.L.R.(4th) 1; 31 C.C.L.T. 113, refd to. [para. 56].

Labonte v. Sowers (1994), 158 A.R. 350 (Q.B.), refd to. [para. 57].

Sucharov v. Revere (Paul) Life Insurance Co. v. Sucharov, [1983] 2 S.C.R. 541; 50 N.R. 144; 26 Man.R.(2d) 161; 5 D.L.R.(4th) 199, refd to. [para. 62].

McCulloch v. Calgary (City) and Calgary Civic Employees Benefit Society (1986), 62 A.R. 209; 15 C.C.L.I. 222 (Q.B.), refd to. [para. 68].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182; 83 D.L.R.(3d) 452; [1978] 1 W.W.R. 577; 3 C.C.L.T. 225, refd to. [para. 78].

Thornton v. Board of School Trustees of School District No. 57 (Prince George) et al., [1978] 2 S.C.R. 267; 19 N.R. 552; 83 D.L.R.(3d) 480; [1978] 1 W.W.R. 607; 3 C.C.L.T. 257, refd to. [para. 78].

Teno et al. v. Arnold et al., [1978] 2 S.C.R. 287; 19 N.R. 1; 3 C.C.L.T. 372; 83 D.L.R.(3d) 609, refd to. [para. 78].

Dushynski v. Rumsey (2001), 295 A.R. 309; 94 Alta. L.R.(3d) 26 (Q.B.), refd to. [para. 78].

Wade v. Baxter (2001), 302 A.R. 1; 98 Alta. L.R.(3d) 230 (Q.B.), refd to. [para. 78].

Bourassa v. Ryan, [1997] A.R. Uned. 201; 58 Alta. L.R.(3d) 362 (Q.B.), refd to. [para. 78].

Vershoor et al. v. AGT Ltd. et al. (1999), 253 A.R. 342 (Q.B.), refd to. [para. 78].

Ferguson v. Varzari & National Salvage Ltd. (1994), 156 A.R. 33 (Q.B.), refd to. [para. 78].

Fox v. Benko (1993), 140 A.R. 62 (Q.B.), refd to. [para. 78].

Lachowski et al. v. Dowell Schlumberger Canada Inc. et al., [1997] A.R. Uned. 143 (Q.B.), refd to. [para. 78].

Lauff v. Seewalt et al. (1999), 234 A.R. 305 (Q.B.), refd to. [para. 78].

Onofriechuk v. Dolman (1998), 214 A.R. 262 (Q.B.), refd to. [para. 78].

Fobel v. Dean and MacDonald, [1991] 6 W.W.R. 408; 93 Sask.R. 103; 4 W.A.C. 103 (C.A.), refd to. [para. 84].

Peter v. Beblow, [1993] 1 S.C.R. 980; 150 N.R. 1; 23 B.C.A.C. 81; 39 W.A.C. 81; 101 D.L.R.(4th) 621; [1993] 3 W.W.R. 337; 77 B.C.L.R.(2d) 1; 48 E.T.R. 1; 44 R.F.L.(3d) 329, refd to. [para. 86].

Benstead v. Murphy (1994), 157 A.R. 198; 77 W.A.C. 198 (C.A.), refd to. [para. 86].

Tat v. Ellis (1999), 228 A.R. 263; 188 W.A.C. 263 (C.A.), refd to. [para. 86].

McLaren v. Schwalbe (1994), 148 A.R. 1; 16 Alta. L.R.(3d) 108 (Q.B.), refd to. [para. 87].

Ratych v. Bloomer, [1990] 1 S.C.R. 940; 107 N.R. 335; 39 O.A.C. 103; 69 D.L.R.(4th) 25; 30 C.C.E.L. 161; 3 C.C.L.T.(2d) 1, refd to. [para. 101].

Guy v. Trizec Equities Ltd., [1979] 2 S.C.R. 756; 27 N.R. 301; 32 N.S.R.(2d) 345; 54 A.P.R. 345, refd to. [para. 101].

Authors and Works Noticed:

Cooper-Stephenson, Kenneth D., and Saunders, Iwan B., Personal Injury Damages in Canada (1981), p. 171 [para. 57].

Couch on Insurance (2nd Rev. Ed. 1983), s. 53:118 [para. 62].

McAra, Personal Injury Damages in Alberta, generally [para. 78].

Norwood, Life Insurance Law of Canada (1993), generally [para. 68].

Counsel:

Donald L. McFarlane and Barry Steinfeld, for the plaintiffs;

Raymond A. Coad, Q.C., and Mylene Tiessen, for the defendants.

This action was heard on November 13, 2002, before Erb, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on December 6, 2002.