Publisher’s Note2018 — Release 4Previous release was 2018-3

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Goldsmith

Damages for Personal Injury andDeath — Digest Service

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This service provides the most comprehensive and up-to-date collectionof court decisions in which damages for personal injury or death havebeen awarded. It keeps subscribers abreast of the latest quantum ofdamages judgments and provides a wealth of cases upon which theresearcher may draw.

What’s New in this Update:This release features an update to the legal memo: “What is the court’saim when awarding damages in fatalities?” and updates to the casedigests.

Case Law HighlightsHead-on collision - Whiplash - Chronic pain syndrome - Adjustmentdisorder - Depressed mood - Somatic Symptom Disorder - Plaintiff,aged 40, suffered injuries as a result of a head-on collision. Shedeveloped whiplash-type symptoms that over time developed intochronic pain syndrome that was characterized by a pre-occupation withand anxiety about her symptoms. She was also diagnosed as sufferingfrom adjustment disorder and depressed mood, and Somatic Symptom

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Disorder. The prognosis for her psychiatric conditions were guarded.Prior to the accident plaintiff had a history of some episodes ofdepression or depressed mood and periodic back pain. Plaintiff’spsychological vulnerabilities existed before the accident and occasionalback complaints predisposed her to a poor recovery from her whiplashinjuries suffered in the accident. At a trial by judge and jury plaintiff wasawarded damages. Defendant now brought a threshold motion. Theevidence established that plaintiff had proven on a balance ofprobabilities that her accident related injuries, particularly the SomaticSymptom Disorder, created a permanent and serious impairment ofher physical and psychological functioning. She suffered from ongoingpain which depressed her and significantly restricted her physicalcapabilities. Physically demanding activities were accompanied bysignificant pain. Hackland (C.T.) J. awarded plaintiff general damagesin the amount of $33,000, as well as $21,000 for loss of futurehousekeeping capacity, as assessed by the jury. [Originally digested inGoldsmith’s Damages for Personal Injury and Death at §2016-26.39,§2016-52.29, and §2016-53B.8]. The Court of Appeal (Pardu (G.) J.A.,Trotter (G.T.) J.A., and Paciocco (D.) J.A. concurring) dismisseddefendant’s appeal, finding that all errors alleged by defendant eitherindividually or cumulatively approached anywhere near a miscarriageof justice.

Corbett v. Odorico

(2017), 2017 ONCA 887, 2017 CarswellOnt 18072 (Ont. C.A.)

Motor vehicle collision - Multiple fractures - Soft tissue injury -difficulty breathing - Ruptured spleen diagnosed after discharge fromhospital - Surgery for spleen - Chronic pain - Unable to work - A 47-year-old tree faller, suffered multiple injuries when defendant’soncoming tractor trailer turned left into the path of plaintiff’s motor-cycle, causing a collision. Plaintiff was knocked from his motorcycle, andlanded on the road unconscious. He woke up in hospital. He sufferedthree fractured ribs, a fractured collarbone, a fractured wrist, his lungshad collapsed, and he suffered soft tissue injuries to his neck, shoulderarea, and back. He had a cut under his chin, a black eye, and hadbruising down the left side of his body. He had difficulty breathing onseveral occasions after his discharge from hospital and he feared that hewould die. He returned to the hospital emergency ward 11 days afterthe accident and was admitted into the intensive care unit. He wasfound to be suffering from a ruptured spleen and required surgery. Inthe operating room a tube was placed in his chest and more than onelitre of blood was drained from his heart sac. He spent approximatelytwo weeks in hospital. During the next two months he suffered fromintense chest pain and had great difficulty breathing. He was unable to

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sleep and he suffered headaches, as well as dizziness and light-headedness. He remained off work for 10 months, but when he triedto return he found that he could not safely fell trees because of thephysical limitations caused by his injuries. He was unable to return tohis physically active lifestyle. He was worried about the future and howhe would be able to support himself, and suffered emotional distress.He had ongoing driving phobia and feared that he would be hit again.He was unable to perform routine maintenance around his property.His main ongoing difficulties were pain in his chest area and his neck,with ongoing anxiety. His ongoing chronic pain was expected to bepermanent. But for the injuries suffered in the accident plaintiff wouldhave been able to continue working as a faller to age 67 to 70, andwould not have had difficulty finding work. As a result of his injuries hewas no longer able to work in this role, and his earning capacity wassubstantially reduced. Murray J. awarded plaintiff general damages inthe amount of $145,000, as well as $475,000 for loss of future earningcapacity, and $33,000 for cost of future care. [Originally digested inGoldsmith’s Damages for Personal Injury and Death at §2017-26.43,§2017-27.6, §2017-29.2, §2017-32.3, and §2017-53.23]. The Court ofAppeal (Saunders J.A., Fenlon J.A., and Dickson J.A. concurring)dismissed defendant’s appeal, finding that the trial judge did not err inher findings relating to liability for the accident, or in her assessment ofdamages for loss of past and future earning capacity.

Ranahan v. Iron Horse Enterprises & Logistics Inc.

2018 CarswellBC 558, 2018 BCCA 75 (B.C. C.A.)

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