Versfelt v. Semler, (1996) 192 A.R. 161 (QB)

• Judge: Johnstone, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: November 29, 1996
• Citations: (1996), 192 A.R. 161 (QB)

Versfelt v. Semler (1996), 192 A.R. 161 (QB)

MLB headnote and full text

Wayne Alex Versfelt (plaintiff) v. Norman Brian Semler (defendant)

(Action No. 9303-01567)

Indexed As: Versfelt v. Semler

Alberta Court of Queen's Bench

Judicial District of Edmonton

Johnstone, J.

November 29, 1996.

Summary:

The plaintiff brought a negligence action for damages against the defendant for injuries suffered in a motor vehicle accident. The defendant admitted liability, leaving quantum of damages to be determined. At issue was, inter alia, the effect of the plain­tiff's pre-existing condition and injuries subsequent to the 1991 accident and the alleged failure to mitigate.

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

Damage Awards - Topic 57

Injury and death - Body injuries - Shoul­der - The 35 year old plaintiff was injured in a 1991 motor vehicle accident - Sig­nificant pain in shoulder, neck and lower back, persisting to the date of trial - How­ever, the plaintiff was involved in 29 accidents or incidents before 1991, all involving cervical or lower back injury and pain, and several accidents after 1991 - The Alberta Court of Queen's Bench assessed $40,000 general damages for nonpecuniary loss - The court reduced damages by 25% to reflect the plaintiff's pre-existing conditions and subsequent accidents - Given the magnitude of the pre-1991 accidents and injuries, the plain­tiff failed to prove on a balance of prob­abilities that all of his injuries were caused solely by the 1991 accident - See para­graphs 123 to 125.

Damage Awards - Topic 70

Injury and death - Body injuries - Back - Aggravation of pre-existing condition - [See Damage Awards - Topic 57 ].

Damage Awards - Topic 177

Injury and death - Neck injuries - Aggra­vation of pre-existing condition - [See Damage Awards - Topic 57 ].

Damages - Topic 596

Limits of compensatory damages - Predis­position to damage (Thin skull rule) - Personal injury - Victim's physical condi­tion - The plaintiff was injured in a 1991 motor vehicle accident - He injured his shoulder, which was previously injured (dislocated) several months before the 1991 accident - The plaintiff submitted that the thin skull rule applied (i.e., de­fendant took him as he found him, bad shoulder and all) - The Alberta Court of Queen's Bench held that the rule did not apply - It applied only where the plaintiff "would never have been expected to have suffered from his previous condition again", which was not the case here - The plaintiff's prior condition was relevant, as it constituted a pre-existing and continuing disability aggravated by the 1991 accident - See paragraphs 128 to 129.

Damages - Topic 1012

Mitigation - In tort - Personal injuries - Employment - The plaintiff was injured in a 1991 motor vehicle accident - He suf­fered significant shoulder, neck and lower back pain - The plaintiff returned to work soon after the accident, contrary to medical advice, thereby prolonging his recovery - The Alberta Court of Queen's Bench held that there was no failure to mitigate - The plaintiff returned to work to protect his business interests - Had he not done so, there would have been a corresponding in­crease in his claim for loss of income - Accordingly, the court stated that "there will therefore be no reduction of the dam­ages I assess for failure to mitigate" - See paragraphs 125 to 126.

Damages - Topic 1422

Special damages - Loss of corporate op­portunity - The plaintiff was injured in a motor vehicle accident - Because of his inability to perform his work, he was forced to sell his remaining 24 shares in his partnership (valued at $4,000/share) for $2,708/share - The Alberta Court of Queen's Bench awarded the plaintiff $31,008 in damages for loss of corporate opportunity, being the price differential between $4,000 and $2,708/share multi­plied by the number of shares (24) - See paragraphs 147 to 152.

Damages - Topic 1545

General damages - Personal injury - Aggravation of pre-existing condition - [See Damage Awards - Topic 57 ].

Damages - Topic 1746

Deductions for payments or assistance by third parties - Contractually - Insurance - Accident and sickness benefits (incl. dis­ability) - An injured plaintiff received $16,730.71 in short term disability pay­ments under a group insurance policy - There was no evidence that the plaintiff contributed to the insurance premiums - Absent such proof, the Alberta Court of Queen's Bench held that the disability payments were to be deducted from the plaintiff's damage award - However, where the insurer (in a separate action) had counterclaimed against the plaintiff for a return of the benefits (subrogated claim), the court ordered that the defendant pay the $16,730.71 to the plaintiff, to be held in trust - If the insurer's subrogation claim succeeded, the plaintiff was to pay the monies to the insurer - If the claim failed, the monies were to be paid to the defend­ant - See paragraphs 161 to 167.

Torts - Topic 61

Negligence - Causation - Causal connec­tion - The 35 year old plaintiff injured his lower back in a 1991 motor vehicle acci­dent - Prior to the accident, the plaintiff had been involved in 29 separate accidents or incidents involving some back injury or pain - In 1993, the plaintiff had surgery for a sequestered disc protrusion - The Alberta Court of Queen's Bench held that the plaintiff failed to prove a causal con­nection between the defendant's negligence and the plaintiff's disc protrusion - Given the multiple traumas predating the acci­dent, the court was not satisfied that the 1991 accident materially contributed to the disc protrusion - In the event of error, the court provisionally assessed $25,000 gen­eral damages for nonpecuniary loss - See paragraphs 136 to 143.

Cases Noticed:

Cox v. Joyal et al. (1996), 182 A.R. 244 (Q.B.), refd to. [para. 2].

McLaren v. Schwalbe (1994), 148 A.R. 1 (Q.B.), refd to. [para. 2].

Van Paassen v. Burch et al. (1994), 159 A.R. 365 (Q.B.), refd to. [para. 2].

Danjanovich v. Buma, [1970] 3 O.R. 604 (C.A.), refd to. [para. 3].

Hooiveld v. Van Biert, [1994] 4 W.W.R. 143; 36 B.C.A.C. 19; 58 W.A.C. 19 (C.A.), refd to. [para. 3].

Pryor v. Bains (1986), 69 B.C.L.R. 395 (C.A.), refd to. [para. 3].

Comrie v. Blacklaw and Blacklaw Industries Equipment Ltd. (1988), 91 A.R. 254; 63 Alta. L.R.(2d) 297 (Q.B.), varied (1989), 98 A.R. 346; 67 Alta. L.R.(2d) 201 (C.A.), refd to. [para. 3].

Davies v. Chouinard (1995), 166 A.R. 363 (Q.B.), refd to. [para. 3].

Lum-Kam v. Semotiuk (1994), 151 A.R. 138 (Q.B.), refd to. [para. 3].

Olson v. New Home Certification Program of Alberta (1986), 69 A.R. 356 (Q.B.), refd to. [para. 3].

Dillion v. LeRoux, [1994] 6 W.W.R. 280; 42 B.C.A.C. 176; 67 W.A.C. 176 (C.A.), refd to. [para. 3].

Bourque v. Wells (1990), 106 N.B.R.(2d) 1; 265 A.P.R. 1; 69 D.L.R.(4th) 121 (T.D.), refd to. [para. 3].

Price v. Garcha (1988), 44 C.C.L.T. 1 (B.C.S.C.), affd. (1989), 2 C.C.L.T.(2d) 265 (B.C.C.A.), refd to. [para. 3].

Wiley v. Tymar Management Inc., [1995] 3 W.W.R. 684 (B.C.S.C.), refd to. [para. 3].

Cordick v. Soares (1992), 123 A.R. 133; 85 Alta. L.R.(2d) 367 (Q.B.), refd to. [para. 3].

McGinn, McGurk, Hutchinson and Baird v. Jonzon et al. (1986), 73 A.R. 264 (Q.B.), refd to. [para. 3].

Burroughs v. Singh and M.S. Trucking & Transportation Inc. (1994), 142 A.R. 1 (Q.B.), refd to. [para. 3].

Hunter v. Peavoy (1985), 62 A.R. 251 (Q.B.), refd to. [para. 3].

Kashuba v. Ey (1992), 4 Alta. L.R.(3d) 9 (Q.B.), refd to. [para. 3].

Kelly v. Hols (1994), 22 Alta. L.R.(3d) 338 (Q.B.), refd to. [para. 3].

Kinsella v. McLean (1991), 82 Alta. L.R.(2d) 216 (Q.B.), refd to. [para. 3].

Fischer v. Von Tettenborn (1993), 134 A.R. 81; 5 Alta. L.R.(3d) 272 (Q.B.), refd to. [para. 4].

Martorana v. Lee (1994), 150 A.R. 167 (Q.B.), refd to. [para. 3].

Janiten v. Bibaud (1994), 153 A.R. 214; 20 Alta. L.R.(3d) 373 (Q.B.), refd to. [para. 3].

L.A. Furniture and Appliances Ltd. v. 330061 Alberta Ltd. (1988), 92 A.R. 111 (Q.B.), refd to. [para. 3].

Robertson v. McLeod Young Weir Ltd. (1986), 71 A.R. 312; 45 Alta. L.R.(2d) 390 (C.A.), refd to. [para. 3].

Shulist et al. v. Hunt and Hunt Real Estate Corp. (1987), 78 A.R. 188; 51 Alta. L.R.(2d) 69 (Q.B.), refd to. [para. 3].

Dulieu v. White & Sons, [1901] 2 K.B. 669 (K.B.), refd to. [para. 5].

Snell v. Farrell, [1990] 2 S.C.R. 311; 110 N.R. 200; 107 N.B.R.(2d) 94; 267 A.P.R. 94, refd to. [para. 5].

McGhee v. National Coal Board, [1972] 3 All E.R. 1008 (H.L.), refd to. [para. 5].

Athey v. Leonati et al. (1996), 203 N.R. 36; 81 B.C.A.C. 243; 132 W.A.C. 243, refd to. [para. 5].

Horsley (Next friend of) v. Ship Ogopogo, [1972] 2 S.C.R. 441, refd to. [para. 5].

Myers v. Peel County Board of Education, [1981] 2 S.C.R. 21; 37 N.R. 227, refd to. [para. 5].

Bonnington Castings Ltd. v. Wardlaw, [1956] 1 All E.R. 615 (H.L.), refd to. [para. 5].

R. v. Pinske (1988), 30 B.C.L.R.(2d) 114 (C.A.), affd. [1989] 2 S.C.R. 979; 100 N.R. 399, refd to. [para. 5].

Miller v. Minister of Pensions, [1947] 2 All E.R. 372 (K.B.), refd to. [para. 5].

Ratych v. Bloomer, [1990] 1 S.C.R. 940; 107 N.R. 335; 39 O.A.C. 103, refd to. [para. 5].

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

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. 5].

Bradburn v. Great Western Railway Co. (1874), L.R. 10 Ex. 1, refd to. [para. 5].

Boarelli v. Flannigan, [1973] 3 O.R. 69 (C.A.), refd to. [para. 5].

Miller v. Minister of Pensions, [1947] 2 All E.R. 372 (K.B.), refd to. [para. 142].

Statutes Noticed:

Judgment Interest Act, S.A. 1984, c. J-0.5, generally [para. 6].

Authors and Works Noticed:

Boden, Scott D., Wiesel, Sam W., Laws Jr., Edward R., Rothman, Richard H., The Aging Spine, Essentials of Pathophysiology, Diagnosis, and Treatment, pp. 29 to 31 [para. 4].

Dee, Roger, Principles of Orthopaedic Practice, pp. 1003 to 1009 [para. 4].

Floman, Yizhar, Disorders of the Lumbar Spine, pp. 361 to 365 [para. 4].

Kirkaldy-Willis, William H., and Burton, Charles V., Managing Low Back Pain (3rd Ed.), pp. 132 to 137 [para. 4].

Linden, Canadian Tort Law (5th Ed. 1993), pp. 98, 99 [para. 3].

McCulloch, John, and Transfeldt, Ensor, Macnab's Backache (3rd Ed.), pp. 274 to 391 [para. 4].

Salter, Robert Bruce, The Musculoskeletal Sys­tem (2nd Ed.), pp. 227 to 231 [para. 4].

Counsel:

Donald J. Kennedy (Kennedy & Co.), for the plaintiff;

Eleanor A. Olzsewski (Brownlee Fryett), for the defendant.