Phillips v. Rost, (1996) 185 A.R. 241 (QB)

• Judge: Moreau, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: June 14, 1996
• Citations: (1996), 185 A.R. 241 (QB)

Phillips v. Rost (1996), 185 A.R. 241 (QB)

MLB headnote and full text

Lorain Gail Phillips and Gary Phillips (plaintiffs) v. Brenda Anne Rost (defendant)

(Action No. 9003-23933)

Indexed As: Phillips v. Rost

Alberta Court of Queen's Bench

Judicial District of Edmonton

Moreau, J.

June 14, 1996.

Summary:

The now 45 year old female plaintiff was injured in a December 1988 motor vehicle accident. The plaintiff and her husband sued the defendant driver for damages. At issue was liability, including contributory negli­gence, causation and the entitlement to and quantum of damages.

The Alberta Court of Queen's Bench allowed the action. The plaintiff and defen­dant were both negligent and liability was apportioned 50% to each. The court assessed damages accordingly.

Damage Awards - Topic 11

Injury and death - Continuing pain - Chronic pain syndrome - A 37 year old female plaintiff suffered a moderate to severe whiplash in 1988 - Her physical injuries resolved in 3-3.5 years - She continued to suffer chronic pain, major depression and cognitive deficits (memory loss, confusion, etc.) - Dramatic personal­ity change - Previously enjoyed life to its fullest, being a very gregarious person involved in many social and recreational activities - The Alberta Court of Queen's Bench assessed $30,000 general damages for nonpecuniary loss for the whiplash injury and related physical injuries, and $45,000 general damages for her chronic pain, depression and related psychological complaints - See paragraphs 147 to 176.

Damage Awards - Topic 178

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

Damage Awards - Topic 204

Injury and death - Psychological injuries - Depression - [See Damage Awards - Topic 11 ].

Damage Awards - Topic 495

Injury and death - General damage awards - Loss of housekeeping capacity - The now 45 year old female plaintiff was injured in 1988 - Prior to the injury, she was an immaculate housekeeper who spent an average of 34 hours per week on housework and yardwork - Her capacity to do housework was curtailed - From the date of her injury to January 1995, she spent 12 hours per week on housework and thereafter 9.5 hours per week to the date of trial - The Alberta Court of Queen's Bench awarded the plaintiff damages for past loss of housekeeping capacity, being the hours of work "undone", less a five hour per week contingency deduction multiplied by the appropriate hourly wage rate - The court awarded the plaintiff $13,814 for loss of future housekeeping capacity for two years from the date of trial - See paragraphs 185 to 197.

Damage Awards - Topic 585

Torts - Injury to third parties - Loss of consortium - A now 45 year old female plaintiff was injured in 1988 - Before the accident, she and her husband enjoyed an active and healthy sexual relationship - Since then, sexual relations occurred only once per month or less - The plaintiff was disinterested in sex - The future of the marriage was uncertain - The Alberta Court of Queen's Bench was not satisfied that the husband's loss of the society and comfort of his wife was permanent - The court assessed $10,000 general damages for loss of consortium - See paragraphs 198 to 205.

Damages - Topic 595

Limits of compensatory damages - Predis­position to damage (thin skull rule) - Personal injury - Victim's mental condi­tion - A 37 year old female plaintiff suf­fered a moderate to severe whiplash in 1988 - Her physical injuries resolved in 3-3.5 years - She continued to suffer chronic pain, major depression and cogni­tive deficits (memory loss, confusion, etc.) - Her psychological problems had no identified organic cause - The plaintiff was found to be credible and not a malin­gerer - She had two episodes of reactive depression in the two years before 1988 - The Alberta Court of Queen's Bench found a causal link between the 1988 accident and the plaintiff's present psychological problems - The plaintiff had a latent sus­ceptibility to depression, which the acci­dent triggered - The principle that the tortfeasor takes the victim as he finds him applied equally to the egg shell personality - See paragraphs 147 to 176.

Torts - Topic 61

Negligence - Causation - Causal connec­tion - [See Damages - Topic 595 ].

Torts - Topic 438

Negligence - Motor vehicle - Rules of the road - Intersections - Entering - Yield or stop sign - The plaintiff and defendant collided in a four-way stop intersection - Both had stopped - There was no inde­pendent witnesses or physical evidence to establish the exact point of impact - There was no evidence to determine which vehicle entered the intersection first (i.e., dominant vehicle with right of way) - Neither driver saw the other - The Alberta Court of Queen's Bench held that had each driver kept a proper lookout, they would have seen each other in time to avoid the collision - Both were at fault, although the evidence did not permit the court to deter­mine the respective degrees of fault - The court applied s. 1(1) of the Contributory Negligence Act and apportioned fault at 50% for each driver - See paragraphs 3 to 25.

Torts - Topic 6604

Defences - Contributory negligence - Apportionment of fault - Not practicable -[See Torts - Topic 438 ].

Cases Noticed:

Bothwell v. Gallaway et al., [1951] O.R. 50 (C.A.), refd to. [para. 20].

Dawes v. Reliance Fish Co. (1952), 7 W.W.R.(N.S.) 468 (B.C.S.C.), refd to. [para. 20].

Walker v. Brownlee and Harmon, [1952] 2 D.L.R. 450 (S.C.C.), refd to. [para. 20].

Hanson and Hanson v. Yakimchuk (1980), 26 A.R. 269 (Q.B.), refd to. [para. 20].

Goble v. McMahon, [1950] 2 W.W.R. 222 (Alta. S.C.), refd to. [para. 20].

Mazepa v. Ewaskiw (1953), 10 W.W.R.(N.S.) 565 (Alta. T.D.), refd to. [para. 20].

Taylor et al. v. Hofer and Hutterian Brethern Church of Waterton (1986), 67 A.R. 269; 42 Alta. L.R.(2d) 276 (Q.B.), affd. (1987), 76 A.R. 317; 50 Alta. L.R.(2d) 260 (C.A.), refd to. [para. 21].

McLaren v. Schwalbe (1994), 148 A.R. 1; 16 Alta L.R.(3d) 108 (Q.B.), refd to. [para. 21].

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. 153].

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. [para. 157].

Davies v. Chouinard (1995), 166 A.R. 363 (Q.B.), refd to. [para. 159].

Buteikis v. Adams, [1994] 7 W.W.R. 119 (B.C.S.C.), refd to. [para. 160].

Fischer v. Von Tettenborn (1992), 134 A.R. 81; 5 Alta. L.R.(3d) 272 (Q.B.), refd to. [para. 169].

Lindal v. Lindal, [1981] 2 S.C.R. 629; 39 N.R. 361, refd to. [para. 173].

Logozar v. Golder (1992), 136 A.R. 363; 7 Alta. L.R.(3d) 44 (Q.B.), refd to. [para. 173].

Martorana v. Lee (1994), 150 A.R. 167 (Q.B.), refd to. [para. 173].

Henry v. Zenith; Johnson v. Zenith (1993), 35 B.C.A.C. 316; 57 W.A.C. 316; 82 B.C.L.R.(2d) 186 (C.A.), refd to. [para. 176].

Gilchrist v. Oatway (1995), 168 A.R. 56; 29 Alta. L.R.(3d) 241 (Q.B.), refd to. [para. 176].

Simpson v. Bender et al. (1995), 176 A.R. 34; 34 Alta. L.R.(3d) 370 (Q.B.), refd to. [para. 187].

Fobel v. Dean and MacDonald (1991), 93 Sask.R. 103; 4 W.A.C. 103; 83 D.L.R.(4th) 385 (C.A.), refd to. [para. 193].

Woelk v. Halvorson, [1980] 2 S.C.R. 430; 33 N.R. 232; 24 A.R. 620, refd to. [para. 200].

Campbell Estate v. Calgary Power Ltd. (1986), 70 A.R. 161 (Q.B.), refd to. [para. 201].

Ramsay et al. v. Ducharme (1984), 56 A.R. 275 (Q.B.), refd to. [para. 202].

Brouwer v. Grewal and Edmonton (City) (1995), 168 A.R. 342; 30 Alta. L.R.(2d) 244 (Q.B.), refd to. [para. 203].

Labonte v. Sowers (1994), 158 A.R. 350; 24 Alta. L.R.(3d) 53 (Q.B.), refd to. [para. 204].

Cooper v. Miller (No. 1), [1994] 1 S.C.R. 359; 164 N.R. 81; 41 B.C.A.C. 1; 66 W.A.C. 1, refd to. [para. 226].

Cunningham v. Wheeler; Cooper v. Miller; Shanks v. McNee - see Cooper v. Miller (No. 1).

Statutes Noticed:

Contributory Negligence Act, R.S.A. 1980, c. C-23, sect. 1(1) [para. 18].

Highway Traffic Act, R.S.A. 1980, c. H-7, sect. 95(1), sect. 99 [para. 17].

Authors and Works Noticed:

Cooper-Stephenson, K.D., and Saunders, I.B., Personal Injury Damages in Canada (1981), p. 373 [para. 173].

Gualtieri, C.T., The Problem of Mild Brain Injury (1995), Neuropsychiatry, Neuro­psychology and Behavioral Neurology, vol. 8, no. 2, pp. 131 [para. 128]; 132, 133 [para. 104]; 134 [para. 130].

Linden, Allen M., Canadian Tort Law (5th Ed. 1993), generally [para. 160].

McAllister, Thomas W., Mild Traumatic Brain Injury and the Postconcus­sive Syndrome in Neuropsychiatry of Trau­matic Brain Injury, c. 11, p. 384 [para. 120].

Murphy, K.C., Chronic Pain Syndrome: What Is It, and How Can We Help?, generally [para. 87].

United States, Department of Labour's Bureau of Labour Statistics, Bulletin 2254, generally [para. 177].

Counsel:

Jeffrey H. Mayan and Colleen M. Cebuliak (Milner Fenerty), for the plaintiffs;

Wallace L. Benkendorf, Q.C., and Barry M. Benkendorf (Corbett & Co.), for the defendant.

This action was heard before Moreau, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on June 14, 1996.

                                                 

INDEX

I. Facts 2

II. Liability 3

A. Evidence of the Parties 3

B. Expert Evidence 8

C. Law 17

D. Conclusion 22

III. Causation and Damage 26

A. Evidence on causation and damage 26

i) The accident 27

ii) Previous condition 28

a) Lay evidence 29

b) Dr. Schwalfenberg 46

iii) Post-accident condition 50

a) Lay evidence 50

b) Expert evidence 63

B. Findings146

IV. Assessment of Damages147

A. Pain, suffering, loss of enjoyment

and amenities of life147

B. Loss of income177

C. Loss of housekeeping capacity185

D. Loss of consortium198

E. Special damages206

F. Cost of future care219

G. Exchange rate227

H. Other228

I. Costs 231