Mackie v. Wolfe, (1994) 153 A.R. 81 (QB)

• Judge: Rawlins, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: June 10, 1994
• Citations: (1994), 153 A.R. 81 (QB)

Mackie v. Wolfe (1994), 153 A.R. 81 (QB)

MLB headnote and full text

Yvonne Mackie and Ronald Mackie (plaintiffs) v. Patrick Wolfe (defendant)

(Action No. 9201-12776)

Indexed As: Mackie v. Wolfe

Alberta Court of Queen's Bench

Judicial District of Calgary

Rawlins, J.

June 10, 1994.

Summary:

The plaintiffs brought a negligence action for damages against the defendant truck driver for personal injuries suffered in a motor vehicle accident.

The Alberta Court of Queen's Bench found the defendant negligent and 85% at fault and the male plaintiff contributorily negligent and 15% at fault. The court assessed dam­ages accordingly.

Damage Awards - Topic 11

Injury and death - Continuing pain - A 41 year old woman suffered a mild whiplash injury in 1985, which should have healed in six-eight months - Nine years later, some doctors diagnosed her pain as "fibro­myalgia", caused by the accident - The Alberta Court of Queen's Bench accepted expert opinions that "fibromyalgia" did not exist and that the woman's pain was not caused by the accident, but by a psycho­logical personality disorder that pre-existed the accident - The court assessed $25,000 general damages for nonpecuniary loss for the six-eight month recovery period for whiplash - If the woman had "fibromyalgia" caused by the accident, the court would have assessed $35,000 dam­ages, reduced 85% by the woman's failure to mitigate by failing to follow prescribed treatment - Since the woman's pain was not caused by the accident, the court declined to award damages for lost future income, future care or for the husband's claim for loss of consortium - The court stated that the "thin skull" rule did not apply where the pain was inevitable with or without the accident.

Damage Awards - Topic 178

Injury and death - Neck injuries - Whip­lash - [See Damage Awards - Topic 11 ].

Damage Awards - Topic 488

Injury and death - General damage awards - Cost of housekeeping services - A 41 year old woman suffered a mild whiplash injury - The expected recovery period was six-eight months, with no residual prob­lems - The Alberta Court of Queen's Bench assessed $800 general damages for the cost of housekeeping services for the recovery period.

Damage Awards - Topic 489

Injury and death - General damage awards - Cost of future care - [See Damage Awards - Topic 11 ].

Damage Awards - Topic 493

Injury and death - General damage awards - Loss of prospective earnings - [See Damage Awards - Topic 11 ].

Damages - Topic 596

Limits of compensatory damages - Pre­disposition to damage (Thin Skull Rule) - Personal injury - Victim's physical condi­tion - [See Damage Awards - Topic 11 ].

Damages - Topic 1011

Mitigation - Tort - Personal injuries - Treatment for - [See Damage Awards - Topic 11 ].

Damages - Topic 1261

Losses by third parties - Loss of consor­tium - Loss of society, companionship and comfort - [See Damage Awards - Topic 11 ].

Torts - Topic 418

Negligence - Motor vehicle - Rules of the road - Right of way - Duty to yield - The plaintiff motor vehicle driver saw the defendant's truck parked on the shoulder of the road and saw the truck begin to pull out and merge into the driving lane - The plaintiff chose to try and pass the defen­dant, but the truck collided with the passenger side of the plaintiff's vehicle - The Alberta Court of Queen's Bench found the defendant negligent and 85% at fault for failing to yield the right of way and the plaintiff contributorily negligent and 15% at fault for failing to take proper defensive or evasive action to avoid the collision - The plaintiff could have reduced his speed, braked or sounded his horn - See para­graphs 8 to 17.

Torts - Topic 552

Negligence - Motor vehicle - Evidence and burden of proof - Failure to avoid situation created by other driver - [See Torts - Topic 418 ].

Torts - Topic 6610

Defences - Contributory negligence - Motor vehicle accidents - [See Torts - Topic 418 ].

Cases Noticed:

Jaswal v. Tait et al. (1987), 15 B.C.L.R.(2d) 232 (S.C.), refd to. [para. 9].

Rose Estate v. Belanger, [1984] 2 W.W.R. 505; 25 Man.R.(2d) 277 (Q.B.), refd to. [para. 11].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94; 72 D.L.R.(4th) 289; 4 C.C.L.T.(2d) 229, refd to. [para. 208].

Maslen v. Rubenstein, [1994] 1 W.W.R. 53; 33 B.C.A.C. 182; 54 W.A.C. 182 (C.A.), refd to. [para. 213].

Johnston v. Murchison (1993), 112 Nfld. & P.E.I.R. 181; 350 A.P.R. 181 (P.E.I.T.D.), disagreed with [para. 219].

Fobel v. Dean (1991), 93 Sask.R. 103; 4 W.A.C. 103; 9 C.C.L.T.(2d) 87 (C.A.), refd to. [para. 250].

Kraft v. Robbins (1992), 136 A.R. 331; 7 Alta. L.R.(3d) 91 (Q.B.), refd to. [para. 251].

McLaren v. Schwalbe (1994), 148 A.R. 1 (Q.B.), refd to. [para. 251].

Acheson v. Dory (1993), 138 A.R. 241; 8 Alta. L.R.(3d) 128 (Q.B.),refd to. [para. 251].

Korpela v. March (1993), 138 A.R. 179; 9 Alta. L.R.(3d) 117 (Q.B.), refd to. [para. 251].

Logozar v. Golder (1992), 136 A.R. 363 (Q.B.), refd to. [para. 251].

Ramsay et al. v. Ducharme (1984), 56 A.R. 275 (Q.B.), refd to. [para. 264].

Forlano v. Lane (1981), 65 A.R. 156 (C.A.), refd to. [para. 265].

Woelk v. Halvorson, [1980] 2 S.C.R. 430; 33 N.R. 232; 24 A.R. 620; [1981] 1 W.W.R. 289; 14 C.C.L.T. 181; 114 D.L.R.(3d) 385, refd to. [para. 266].

Authors and Works Noticed:

American College of Rheumatology, Multi Center Committee Report (1990), gen­erally [para. 50].

Butcher Expert Systems Report, generally [paras. 177, 179, 181, 184, 186].

Journal of Arthritis and Rheumatism (1990), vol. 33, No. 2, generally [para. 50].

Lees-Haley, Paul, A Fake Bad Scale on the MMPI-2 for Personal Injury Claim­ants (Psychological Reports 1991), pp. 203 to 210 [para. 188].

Shorter, Edward, From Paralysis to Fatigue, a History of Psychosomatic Illness in the Modern Era, pp. 307 [paras. 158, 159]; 308 [para. 159]; 309 [paras. 160, 161]; 310 [paras. 161, 162]; 311 [paras. 163; 164].

Counsel:

K.P. Feehan and D.L. Picco, for the plain­tiffs;

C.S. Brooker, Q.C. and S.E. Cozens, for the defendant.

This action was heard before Rawlins, J., of the Alberta Court of Queen's Bench, Judicial District of Calgary, who delivered the following judgment on June 10, 1994.