Labrecque v. Heimbeckner et al., 2007 ABQB 501

• Judge: Macleod, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: June 20, 2006
• Citations: 2007 ABQB 501;(2007), 434 A.R. 181 (QB)

Labrecque v. Heimbeckner (2007), 434 A.R. 181 (QB)

MLB headnote and full text

Temp. Cite: [2008] A.R. TBEd. JA.091

Sarah Lee Labrecque (plaintiff) v. Beverley A. Heimbeckner, the Royal Canadian Mounted Police, Charmaine I. Phillips and Her Majesty The Queen in Right of Canada, as represented by the Solicitor General of Canada (defendants)

(0301-10317; 2007 ABQB 501)

Indexed As: Labrecque v. Heimbeckner et al.

Alberta Court of Queen's Bench

Judicial District of Calgary

Macleod, J.

August 3, 2007.

Summary:

The 27 year old plaintiff was a passenger in a 2001 high speed collision with an R.C.M.P. vehicle. The defendants admitted liability. The most contentious issues were causation and the plaintiff's future prospects, particularly given her prescription drug abuse, a personality disorder for which she was receiving no treatment (except for more medication) and chronic pelvic pain.

The Alberta Court of Queen's Bench allowed the action and assessed damages accordingly.

Damage Awards - Topic 73.1

Injury and death - Body injuries - Scarring - [See Damage Awards - Topic 102 ].

Damage Awards - Topic 102

Injury and death - Head injuries - Brain damage - The 27 year old plaintiff was seriously injured in a motor vehicle accident, suffering a fractured humerus, fractured clavicle, compression fracture of her lower spine, complex fracture of her left calcaneus, scarring and a closed head injury - The plaintiff claimed that she suffered a moderate brain injury which was responsible for her present condition - The defendants claimed that she suffered only a mild brain injury and that her present condition resulted primarily from her pre-existing prescription drug addiction and her personality disorder - The Alberta Court of Queen's Bench held that causation was established where the injuries materially contributed to the plaintiff's present condition and personality change - However, her pre-existing problems impacted her ability to recover and made her more susceptible to the consequences she suffered in the first place - But for the accident "life would have presented a considerable challenge to [the plaintiff]" - The plaintiff currently remained unable to cope with life, lacked ambition or motivation, suffered memory and attention deficits and severe bouts of depression, and had low self-esteem - Her long-standing sleep disorder, personality disorder and drug addiction, which continued, were not the responsibility of the defendants - She had to rely daily on a care-giver - Her most serious injuries were her brain injury, her facial scarring and an ankle injury which resulted in a permanent limp - The court awarded $200,000 general damages for non-pecuniary loss - See paragraphs 147 to 155.

Damage Awards - Topic 125

Injury and death - Leg injuries - Ankle - [See Damage Awards - Topic 102 ].

Damage Awards - Topic 487.1

Injury and death - General damage awards - Necessary services provided by family members - The 27 year old plaintiff was seriously injured in a motor vehicle accident, suffering a fractured humerus, fractured clavicle, compression fracture of her lower spine, complex fracture of her left calcaneus, scarring and a closed head injury - The plaintiff claimed that she suffered a moderate brain injury which was responsible for her present condition - The defendants claimed that she suffered only a mild brain injury and that her present condition resulted primarily from her pre-existing prescription drug addiction and her personality disorder - The plaintiff currently remained unable to cope with life, lacked ambition or motivation, suffered memory and attention deficits and severe bouts of depression, and had low self-esteem - Her long-standing sleep disorder, personality disorder and drug addiction, which continued, were not the responsibility of the defendants - She had to rely daily on a care-giver, so her father purchased and renovated an acreage close to his home for the plaintiff's residence, on the recommendation of doctors, to make her accessible for care and medical services - The Alberta Court of Queen's Bench awarded the plaintiff an "in trust" claim of $61,410.88 for services provided by her parents to assist in her care and rehabilitation - The purchase of the acreage was also a valid "in trust" claim for which the court awarded $230,000 - The savings to the plaintiff because she no longer had to incur rental costs for housing she would have otherwise incurred but for the accident was accounted for by a 40% reduction ($72,000) in her award for lost income and diminished earning capacity - See paragraphs 250 to 279.

Damage Awards - Topic 489

Injury and death - General damage awards - Cost of future care and treatment - The 27 year old plaintiff was seriously injured in a motor vehicle accident, suffering a fractured humerus, fractured clavicle, compression fracture of her lower spine, complex fracture of her left calcaneus, scarring and a closed head injury - The plaintiff claimed that she suffered a moderate brain injury which was responsible for her present condition - The defendants claimed that she suffered only a mild brain injury and that her present condition resulted primarily from her pre-existing prescription drug addiction and her personality disorder - The Alberta Court of Queen's Bench held that causation was established where the injuries materially contributed to the plaintiff's present condition and personality change - However, her pre-existing problems impacted her ability to recover and made her more susceptible to the consequences she suffered in the first place - But for the accident "life would have presented a considerable challenge to [the plaintiff]" - The plaintiff currently remained unable to cope with life, lacked ambition or motivation, suffered memory and attention deficits and severe bouts of depression, and had low self-esteem - Her long-standing sleep disorder, personality disorder and drug addiction, which continued, were not the responsibility of the defendants - She had to rely daily on a care-giver - Her most serious injuries were her brain injury, her facial scarring and an ankle injury which resulted in a permanent limp - The court awarded the plaintiff $481,850 damages for the cost of future care and treatment - In fixing the amount, the court applied a negative 10% contingency for the plaintiff's reduced life expectancy due to her drug addiction - The cost of psychiatric care and psychological and family counseling was reduced a further 5% to reflect the plaintiff's history of failing to undertake recommended treatment (i.e., some of future care costs would not be incurred) - The court declined to apply a negative contingency for the discretionary benefits received by the plaintiff under the Assumed Income for the Severely Handicapped Act, because it was mere speculation that such benefits would continue once the plaintiff received her damage award - The future care award was grossed up 10% to compensate for tax implications - See paragraphs 184 to 237, 242.

Damage Awards - Topic 492

Injury and death - General damage awards - Loss of earning capacity - A 27 year old plaintiff had a "spotty" employment history ($4,012 income from 1997 to 2001) because of her involvement in abusive relationships, a prescription drug addiction, a personality disorder and chronic pelvic pain - Following a December 2001 accident, she suffered injuries, including a closed head injury (brain damage), which negatively impacted her future employability - The plaintiff submitted that her pre-accident employment history had little effect on her claim for diminished earning capacity, where there was a possibility that she would have entered the conventional labour market in the future - The Alberta Court of Queen's Bench held that the plaintiff's earning capacity was negatively affected by her injuries, but it had already been compromised by her pre-existing drug dependency and personality disorder - Any damage award had to reflect the possibility that the plaintiff's drug dependancy would have rendered her unable to pursue full time employment - The court awarded $180,000 general damages for loss of past income and diminished earning capacity, reduced to $108,000 (40% discount) to reflect the reality that but for the accident the plaintiff would have needed to incur an expense for housing, which she no longer would have to incur because of an in trust award for the cost of purchasing an acreage so that she could live near her father to permit accessible care and medical treatment - See paragraphs 156 to 172.

Damage Awards - Topic 492.1

Injury and death - General damage awards - Pretrial income loss - [See Damage Awards - Topic 492 ].

Damage Awards - Topic 580

Torts - Injury to third parties - General and special damages for personal care of injured person - [See Damage Awards - Topic 487.1 ].

Damages - Topic 595

Limits of compensatory damages - Predisposition to damage (thin skull or crumbling skull rule) - Personal injury - Victim's mental condition - [See Damage Awards - Topic 102 ].

Damages - Topic 596

Limits of compensatory damages - Predisposition to damage (thin skull or crumbling skull rule) - Personal injury - Victim's physical condition - [See Damage Awards - Topic 102 ].

Damages - Topic 1542

General damages - General damages for personal injury - Structured settlement or award - The 27 year old plaintiff was seriously injured in a motor vehicle accident, suffering, inter alia, a brain injury that left her unable to live independently and manage her financial affairs - Her total damage award was almost $1.2 Million - Section 19.1 of the Judicature Act provided that the judge "may" order a structured judgment (award paid in periodic payments) - The Alberta Court of Queen's Bench held that the plaintiff appeared to be an ideal candidate for a structured judgment where she had no ability to manage any significant amount of money, was unable to set financial priorities in a mature way and was susceptible to the influence of others - There was a significant danger that she would dissipate her damage award - However, given the reduction of her award for negative contingencies, it was impossible to devise a table of periodic payments which would match her future care requirements - The best interests of the plaintiff would be to keep the funds out of her hands and in the hands of a trustee to be invested and administered under the Dependent Adults Act - The court declined to order a structured judgment if a trustee was appointed to control the funds on the plaintiff's behalf - If such arrangements could not be made, the court reserved the right to reconsider ordering a structured judgment - If such arrangements were made, financial management and investment advice would be required, for which the court would award $60,000 - See paragraphs 238 to 241.

Damages - Topic 1543.1

General damages - General damages for personal injury - Loss of future interdependent relationship - The 27 year old female plaintiff, severely injured in a motor vehicle accident, claimed $75,000 damages for loss of opportunity to marry or shared family income, arguing that she was rendered unable to sustain an interdependent relationship and lost the corresponding financial interdependency - The Alberta Court of Queen's Bench rejected the claim - The plaintiff failed to show that entering into an interdependent relationship would have resulted in an economic advantage - She also failed to prove the probable economic value of any such loss on the evidence - No statistical, economic or actuarial evidence was presented to prove the loss - See paragraphs 173 to 182.

Damages - Topic 1548

General damages - General damages for personal injury - Management of fund fee (investment counseling) - [See Damages - Topic 1542 ].

Damages - Topic 1628

General damages - Considerations in assessing general damages - Potential income tax liability - [See Damage Awards - Topic 489 ].

Damages - Topic 1772

Deductions for payments or assistance by third parties - By statute or government - Family support services respecting handicapped family members - [See Damage Awards - Topic 489 ].

Torts - Topic 61

Negligence - Causation - Causal connection - [See Damage Awards - Topic 102 ].

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. 96].

Vetter et al. v. Goodman et al., [2007] A.R. Uned. 207; 2007 ABQB 199; 156 A.C.W.S.(3d) 955, refd to. [para. 144].

Andrews et al. v. Grand & Toy (Alberta) Ltd. et al., [1978] 2 S.C.R. 229; 19 N.R. 50; 8 A.R. 182, refd to. [para. 147].

Bourbonnis v. Gauvreau (2003), 344 A.R. 110; 2003 ABQB 952, refd to. [para. 152].

Madge v. Meyer et al. (1999), 256 A.R. 201; 1999 ABQB 1017, refd to. [para. 153].

Reilly v. Lynn (2003), 178 B.C.A.C. 69; 292 W.A.C. 69; 2003 BCCA 49, refd to. [para. 153].

Thibert et al. v. Zaw-Tun et al., [2006] A.R. Uned. 375; 64 Alta. L.R.(4th) 41; 2006 ABQB 423, refd to. [para. 154].

Cleghorn v. Dunbar (2005), 285 N.B.R.(2d) 163; 744 A.P.R. 163; 2005 NBQB 247 (T.D.), refd to. [para. 154].

Vanghel v. Johnston (G.N.) Equipment Co. et al. (2005), 272 Sask.R. 263; 2005 SKQB 452, refd to. [para. 154].

Jacques v. Passey and Calgary (City) (1999), 244 A.R. 330; 209 W.A.C. 330; 1999 ABCA 299, refd to. [para. 160].

Anderson v. James et al. (1992), 7 B.C.A.C. 205; 15 W.A.C. 205; 87 D.L.R.(4th) 419 (C.A.), refd to. [para. 160].

Lowe v. Laure (2000), 250 A.R. 220; 213 W.A.C. 220; 2000 ABCA 28, refd to. [para. 162].

Reekie et al. v. Messervey et al. (1989), 59 D.L.R.(4th) 481 (B.C.C.A.), varied [1990] 1 S.C.R. 219; 104 N.R. 387, refd to. [para. 173].

Belyea v. Hammond (2000), 231 N.B.R.(2d) 305; 597 A.P.R. 305; 193 D.L.R.(4th) 476; 2000 NBCA 41, refd to. [para. 177].

Grimard v. Berry et al. (1992), 102 Sask.R. 137 (Q.B.), refd to. [para. 178].

Hartwick v. Simser, [2004] O.T.C. 917; 134 A.C.W.S.(3d) 825 (Sup. Ct.), refd to. [para. 180].

Herman et al. v. Public Trustee (Alta.) et al. (2005), 388 A.R. 84; 2005 ABQB 926, refd to. [para. 181].

MacDonald v. Alderson and Manitoba, [1982] 3 W.W.R. 385; 15 Man.R.(2d) 35 (C.A.), leave to appeal refused [1983] 1 W.W.R. li; 45 N.R. 180; 17 Man.R.(2d) 180 (S.C.C.), refd to. [para. 184].

Wade v. Baxter (2001), 302 A.R. 1; 2001 ABQB 812, refd to. [para. 184].

Milina v. Bartsch (1985), 49 B.C.L.R.(2d) 33 (B.C.S.C.), refd to. [para. 184].

Mann v. Ross - see Mann v. Maccaig-Ross.

Mann v. Maccaig-Ross, [1998] B.C.T.C. Uned. 307; 78 A.C.W.S.(3d) 70 (S.C.), refd to. [para. 184].

Wenden v. Trikha et al. (1991), 116 A.R. 81 (Q.B.), refd to. [para. 214].

Lewis v. Todd et al., [1980] 2 S.C.R. 694; 34 N.R. 1, refd to. [para. 215].

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, refd to. [para. 222].

Houle et al. v. Calgary (City) and Canada Safeway Ltd. (1983), 44 A.R. 271 (Q.B.), varied (1985), 60 A.R. 366; 20 D.L.R.(4th) 15 (C.A.), leave to appeal refused (1985), 62 N.R. 394; 63 A.R. 79; 20 D.L.R.(4th) 15 (S.C.C.), refd to. [para. 228].

Plume v. Weir - see Little Plume v. Weir et al.

Little Plume v. Weir et al., [1999] 3 W.W.R. 348; 220 A.R. 332; 1998 ABQB 523, refd to. [para. 229].

D.G. v. Farooqui, [2003] A.J. No. 1707 (Q.B.), refd to. [para. 230].

Fullerton v. Delair et al., [2006] 9 W.W.R. 205; 228 B.C.A.C. 291; 376 W.A.C. 291; 2006 BCCA 339, refd to. [para. 231].

MacCabe v. Board of Education of Westlock (Roman Catholic Separate) School District No. 110 et al., [1999] 8 W.W.R. 1; 243 A.R. 280 (Q.B.), varied [2001] 1 W.W.R.  610; 293 A.R. 41; 257 W.A.C. 41; 2001 ABCA 257, refd to. [para. 251].

Falls v. Falls, [1995] B.C.J. No. 968 (S.C.), refd to. [para. 251].

Authors and Works Noticed:

Cooper-Stevenson, Kenneth D., and Saunders, Iwan B., Personal Injury Damages in Canada (2nd Ed. 1996), pp. 415 [para. 221]; 449 [para. 213].

Counsel:

Gary Bigg and Jill Murray (Gary J. Bigg Professional Corp.), for the plaintiff;

Kristine M. Eidsvik, Q.C., and Andrew P. Wilson (Bennett Jones LLP, for the defendant, Beverley A. Heimbeckner;

David Stam (Department of Justice), for the defendants, Royal Canadian Mounted Police, Charmaine I. Phillips and Her Majesty The Queen in Right of Canada, as represented by the Solicitor General of Canada.

This action was heard between April 10 and June 20, 2006, before Macleod, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on August 3, 2007.