Meehan et al. v. Holt, 2010 ABQB 287

• Judge: Sullivan, J.
• Court: Court of Queen''s Bench of Alberta (Canada)
• Case Date: Thursday November 19, 2009
• Citations: 2010 ABQB 287;(2010), 485 A.R. 1 (QB)

Meehan v. Holt (2010), 485 A.R. 1 (QB)

MLB headnote and full text

Temp. Cite: [2010] A.R. TBEd. JN.013

Ronald R. Meehan and Debra L. Hogan (plaintiffs) v. Harold R. Holt and Kristen M. Holt (defendants)

(0001 11307; 2010 ABQB 287)

Indexed As: Meehan et al. v. Holt

Alberta Court of Queen's Bench

Judicial District of Calgary

Sullivan, J.

May 28, 2010.

Summary:

In 1998, Hogan, a chiropractor, was a front seat passenger in a vehicle driven by Meehan. On entering an intersection, the vehicle struck Holt's vehicle (minor impact). There was minimal damage to the vehicles. Hogan was wearing her seatbelt. Her injuries were "non impact". Hogan (now 42 years old), claimed damages against Holt. Meehan had settled his claim. While liability had been admitted, causation was at issue. The parties disagreed on the extent to which Hogan's current condition was caused by the collision. They also differed in their approach to what constituted the proper test for causation. There was further disagreement as to the extent, if any, that Hogan's injuries had caused a loss of her ability to earn income.

The Alberta Court of Queen's Bench awarded the following amounts: (a) general damages: $90,000; (b) loss of income: (i) past: $40,000 and (ii) future: nil; (c) loss of capacity: $50,000; (d) loss of housekeeping capacity: (i) past (special damages): $5,000, and (ii) future: $1,000; (e) cost of care: (i) past: $39,570.14, and (ii) future: $27,265. The global award therefore totalled $252,835.14.

Damage Awards - Topic 11

Injury and death - General - Continuing pain (incl. fibromyalgia, myofascial and chronic pain syndrome - [See Damage Awards - Topic 498 ].

Damage Awards - Topic 50

Injury and death - Body injuries - General - [See Damage Awards - Topic 498 ].

Damage Awards - Topic 111

Injury and death - Head injuries - Jaw - [See Damage Awards - Topic 498 ].

Damage Awards - Topic 453

Injury and death - Special damage awards - Loss of wages - The plaintiff was a 42 year old chiropractor - She was employed at two clinics at the time of the collision in 1998 - In 2000, she opened her own clinic - The evidence was that the plaintiff had always intended to open her own clinic, regardless of the collision - She claimed a "very sizeable" loss of income for both past and future income - The Alberta Court of Queen's Bench found that the plaintiff had not proven a future loss of income - With her symptoms, the plaintiff was capable of treating some 11 patients per day (her threshold) - If she was treating up to her threshold but was prohibited from taking on additional patients due to her symptoms, she would have a claim for a loss - On the evidence, the plaintiff was not even treating up to her threshold - As such, she failed to demonstrate on a balance of probabilities that her injuries had prevented her from earning what she otherwise would have - Given that the plaintiff failed to achieve her threshold, she had not demonstrated an income loss associated with her clinic - Thus, her proven future loss of income was nil - See paragraphs 326 to 341.

Damage Awards - Topic 457

Injury and death - Special damage awards - Cost of therapy - The plaintiff, a 42 year old chiropractor, attended for some 740 chiropractic treatments, 400 massage therapy treatments and 150 physiotherapy treatments - She argued that she relied on the treatments to manage her pain and to allow her to continue with her practice of chiropractic - The experts differed in their opinions as to whether the treatment course was required - The Alberta Court of Queen's Bench stated that "[t]he job of the court is to determine whether the treatment sought by a plaintiff was reasonable and necessary in the circumstances ... The question is not whether the treatment cures the condition. The question is whether the treatment is reasonable, although this must involve a consideration as to whether the treatment is of benefit to the Plaintiff" - In the end, the court found that the number of treatments were excessive and unreasonable, and awarded the plaintiff 25% of her claim for past cost of care - See paragraphs 377 to 402.

Damage Awards - Topic 461

Injury and death - Special damage awards - Cost of future care - The plaintiff's cost of future care claim was largely based on the report pertaining to the functional capacity evaluations - She was already 11 years post collision - The Alberta Court of Queen's Bench addressed each care category in turn - The court disallowed the medical costs for controversial drugs that the plaintiff was "open to trying" - It was unlikely that a chronic pain program would assist the plaintiff - The court awarded the plaintiff the full amount for ongoing dental splints, as recommended by her treatment providers - Not all of the aids to daily living could be considered medically necessary or reasonable - The costs associated with an ergonomic workstation were neither necessary nor reasonable - In the end result, the court found that the plaintiff's total cost of future care claim amounted to $27,265 - See paragraphs 405 to 424.

Damage Awards - Topic 482

Injury and death - General damage awards - Global awards - [See Damage Awards - Topic 498 ].

Damage Awards - Topic 492

Injury and death - General damage awards - Loss of earning capacity - The Alberta Court of Queen's Bench stated that "[w]hen a plaintiff suffers an injury which reduces his or her ability to earn an income, a capital asset has been diminished. For this the plaintiff must be compensated ... Loss of capacity must be established as a reasonable possibility, and not as mere speculation ... In assessing damages for loss of capacity, regard may be had to, inter alia, the following factors: has the plaintiff been rendered less capable overall from earning income from all types of employment; is the plaintiff less marketable to potential employers; and, has the plaintiff lost the ability to take advantage of all job opportunities which might otherwise have been open to him or her" - See paragraphs 348 and 349.

Damage Awards - Topic 492

Injury and death - General damage awards - Loss of earning capacity - The plaintiff was self-employed as a chiropractor - Expert evidence supported her claim that she could not treat as many patients post-collision - The Alberta Court of Queen's Bench accepted that the plaintiff had suffered a loss of capacity as a result of her injuries - "While the value of this loss is often calculated based upon future loss of earnings, this approach is not always feasible" - In the case at bar, the plaintiff had not proven such a loss - The court awarded her $50,000 for what it found to be a "mild reduction" in her working capacity - In quantifying the award, the court found that factors other than the collision were negatively affecting the plaintiff's business - See paragraphs 350 to 355.

Damage Awards - Topic 495

Injury and death - General damage awards - Loss of housekeeping capacity - The plaintiff moved into her 1,200 square feet condo a week before the collision - Her injuries had largely resolved - She claimed for both past ($40,000) and future ($140,000) loss of housekeeping - She argued that it took her much longer to complete housekeeping tasks and came with the cost of symptom aggravation - The Alberta Court of Queen's Bench awarded the plaintiff $5,000 in non-pecuniary damages to reflect a minor past loss of capacity and found that she had established a future loss of housekeeping claim in the amount of $1,000 - The plaintiff's evidence concerning her housekeeping abilities was "largely unreliable" - Her evidence was difficult to reconcile with her ability to maintain a near-daily workout regiment and play weekly golf, and did not accord with the results of her functional evaluation testing - In addition, the plaintiff's pre-collision housekeeping activities were "rather limited" - See paragraphs 356 to 376.

Damage Awards - Topic 498

Injury and death - General damage awards - Pain and suffering, loss of amenities and other nonpecuniary damages - The Alberta Court of Queen's Bench found that the plaintiff suffered a musculoligamentous strain injury to the neck and back as well as resultant headaches, hand numbness and a shoulder injury, which had resolved - She had also suffered an injury to her TMJ (jaw) - The defendants submitted that the appropriate award for general damages was $50,000 - The plaintiff submitted that a proper award was between $125,000 to $150,000 - Given the case law, the court found that the plaintiff was entitled to $90,000 in general damages - The plaintiff's ongoing pain was less than that suffered in Wittmeier v. Scholes (1999), where the plaintiff's injuries were so great that they necessitated ongoing methadone treatment - Nor was this a case for damages "at the high end" of the scale - The duration and severity of the injuries were greater than what was seen in the authorities put forth by the defendants - There was no evidence that the plaintiff was malingering or consciously engaged in symptom exaggeration for financial gain - See paragraphs 262 to 297.

Damages - Topic 591

Limits of compensatory damages - Predisposition to damage (thin skull or crumbling skull rule) - "Thin skull" or "crumbling skull" - The parties disagreed as to whether the plaintiff represented a "thin" versus a "crumbling skull" type of plaintiff - The Alberta Court of Queen's Bench stated that "the distinction between 'thin' versus 'crumbling' often causes some confusion. I find that the British Columbia Court of Appeal's reasoning in T.W.N.A. v. Clarke, 2003 ... assists in simplifying this principle. After examining various ways of classifying a 'thin' versus a 'crumbling' plaintiff, the court simply states that '... a pre-existing condition, whether it is quiescent or active, is part of the plaintiff's original position'" - After establishing the plaintiff's pre-existing conditions, the court addressed general damages, "keeping in mind that the Defendants are liable for any additional damage caused by the collision, but not any pre-existing damage" - See paragraphs 232 to 255.

Damages - Topic 1421

Special damages - Loss of business or professional income - Proof - [See Damage Awards - Topic 453 ].

Damages - Topic 1545

General damages - General damages for personal injury - Aggravation of pre-existing condition - [See Damages - Topic 591 ].

Torts - Topic 54

Negligence - Causation - Test for (incl. "but for" test and "material contribution" test) - Causation was at issue - The expert opinions differed on causation - The plaintiff's primary argument was that but for the collision, she would not be suffering her present injuries; that even if she had developed a learned illness behaviour, there was nothing in her medical history to support a claim that such a condition might have developed absent the collision - In the alternative, she submitted that the court might establish causation using the "material contribution" test - The Alberta Court of Queen's Bench agreed with the defendant's position that the appropriate test was the but for test regardless of which medical model was put forward - The "but for" test was applicable to multi-cause injuries and remained the primary test for causation; the "material contribution" test was reserved for special circumstances - See paragraphs 221 to 228.

Torts - Topic 54

Negligence - Causation - Test for (incl. "but for" test and "material contribution" test) - There was some debate over the extent to which the plaintiff's pre-existing condition factored into her current medical state - An expert opined that the collision had a "minor" contribution to the plaintiff's overall long term symptoms - The Alberta Court of Queen's Bench, utilizing the "but for" test, found that but for the collision, the plaintiff would not be suffering from her present injuries (shoulder impingement, hand numbness, back pain) and that the collision materially contributed to her jaw pain, neck pain and related headaches - "[E]ven if it has become difficult to distinguish between the effects of aging/time and the effects of the collision, at the end of the day ... both the collision and the pre-existing degenerative changes were necessary to produce her current condition" - See paragraphs 229 to 231.

Torts - Topic 62

Negligence - Causation - Intervening causes (novus actus interveniens) - The Alberta Court of Queen's Bench addressed the argument that the chain of causation had been broken (allusions of improper medical treatment surfaced in the reports of certain experts) - "It is clear that the onus rests on the defendants to prove that any intervening medical error was negligent" - On the facts before the court, the defendants had not established a break in causation - Nor was this an appropriate case for apportionment - See paragraphs 256 to 261.

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, consd. [para. 221].

Hanke v. Resurfice Corp. et al., [2007] 1 S.C.R. 333; 357 N.R. 175; 404 A.R. 333; 394 W.A.C. 333; 2007 SCC 7, consd. [para. 221].

Ball v. Imperial Oil Resources Ltd. (2010), 477 A.R. 251; 483 W.A.C. 251; 2010 ABCA 111, refd to. [para. 223].

Sidorsky v. Lowry et al. (2009), 463 A.R. 153; 3 Alta. L.R.(5th) 55; 2009 ABQB 68, refd to. [para. 228].

Dushynski v. Rumsey (2003), 327 A.R. 373; 296 W.A.C. 373; 2003 ABCA 164, refd to. [para. 234].

Dushynski v. Rumsey (2001), 295 A.R. 309; 2001 ABQB 513, refd to. [para. 235].

Pavicic v. Pelchat (2003), 332 A.R. 213; 2003 ABQB 19, refd to. [para. 236].

Whitfield v. Calhoun (1999), 242 A.R. 201; 1999 ABQB 244, refd to. [para. 237].

O'Scolai et al. v. Antrajenda (2008), 447 A.R. 114; 2008 ABQB 257, refd to. [para. 237].

S.F.P. v. MacDonald et al. (1999), 234 A.R. 273; 1999 ABQB 75, refd to. [para. 237].

Harbora v. McIvor et al. (1997), 202 A.R. 99 (Q.B.), refd to. [para. 237].

Russell v. Turcott, [2009] A.R. Uned. 184; 2009 ABQB 19, refd to. [para. 237].

T.W.N.A. et al. v. Clarke et al. (2003), 190 B.C.A.C. 250; 311 W.A.C. 250; 235 D.L.R.(4th) 13; 2003 BCCA 670, refd to. [para. 238].

Logozar v. Golder (1994), 157 A.R. 102; 77 W.A.C. 102 (C.A.), refd to. [para. 259].

Papp v. LeClerc (1977), 77 D.L.R.(3d) 536 (Ont. C.A.), refd to. [para. 259].

Willeson et al. v. Calgary (City) et al., [2007] A.R. Uned. 258; 2007 ABQB 117, revd. in part [2008] A.R. Uned. 76; 2008 ABCA 197, consd. [para. 288].

Ross v. Isaacs, [2001] N.B.R.(2d) (Supp.) No. 96; 2001 NBQB 234, consd. [para. 288].

Epp v. Balaton et al., [2003] A.R. Uned. 607; [2004] 4 W.W.R. 99; 2003 ABQB 822, consd. [para. 288].

Wittmeier v. Scholes (1999), 239 A.R. 42; 1999 ABQB 4, consd. [para. 288].

Prosser v. 20 Vic Management Inc. (2009), 8 Alta. L.R.(5th) 68; 2009 ABQB 177, consd. [para. 288].

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. 348].

Lowe v. Larue (2000), 250 A.R. 220; 213 W.A.C. 220; 2000 ABCA 28, refd to. [para. 348].

Olson et al. v. General Accident Assurance Co. of Canada (1998), 218 A.R. 310; 1998 ABQB 405, revd. in part (2001), 281 A.R. 327; 248 W.A.C. 327; 2001 ABCA 91, refd to. [para. 349].

Kwei et al. v. Boisclair et al. (1991), 6 B.C.A.C. 314; 13 W.A.C. 314; 60 B.C.L.R.(2d) 393 (C.A.), refd to. [para. 349].

Ganderton v. Brown et al., [2004] A.R. Uned. 356; 33 Alta. L.R.(4th) 271; 2004 ABQB 366, refd to. [para. 350].

Madge v. Meyer et al. (1999), 256 A.R. 201; 1999 ABQB 1017, affd. (2001), 281 A.R. 143; 248 W.A.C. 143; 2001 ABCA 97, consd. [para. 351].

Pallos v. Insurance Corp. of British Columbia (1995), 53 B.C.A.C. 310; 87 W.A.C. 310; 100 B.C.L.R.(2d) 260 (C.A.), refd to. [para. 355].

McIntyre v. Docherty et al. (2009), 264 O.A.C. 237; 308 D.L.R.(4th) 213; 2009 ONCA 448, refd to. [para. 356].

Wade v. Baxter (2001), 302 A.R. 1; 2001 ABQB 812, refd to. [para. 356].

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. 356].

Johnston v. Martyn et al. (1998), 226 A.R. 388; 1998 ABQB 725, refd to. [para. 356].

Campbell-MacIsaac et al. v. Deveaux et al. (2004), 224 N.S.R.(2d) 315; 708 A.P.R. 315; 2004 NSCA 87, appld. [para. 391].

Pfob v. Bakalik, [2003] A.R. Uned. 545; 25 Alta. L.R.(4th) 152; 2003 ABQB 819, affd. (2004), 354 A.R. 359; 329 W.A.C. 359; 2004 ABCA 278, refd to. [para. 395].

Birt v. General Accident Assurance Co. et al. (2003), 222 Nfld. & P.E.I.R. 43; 663 A.P.R. 43; 2003 PESCTD 13, refd to. [para. 398].

Labrecque v. Heimbeckner et al. (2007), 434 A.R. 181; 2007 ABQB 501, appld. [para. 414].

Authors and Works Noticed:

Cooper-Stevenson, Kenneth D., and Saunders, Iwan B., Personal Injury Damages in Canada (2nd Ed. 1996), p. 166 [para. 392].Klar, Lewis N., Tort Law (3rd Ed. 2003), pp. 435, 436 [para. 237].

Counsel:

Simon J. Muller and Judd Blit, for the plaintiffs;

T. Thomas Mudry and Gordon M. Bradley, for the defendants.

This action was heard on November 19, 2009, by Sullivan, J., of the Alberta Court of Queen's Bench, who delivered the following judgment and reasons for judgment, dated at Calgary, Alberta, on May 28, 2010.