Case citation: Russel v Russell, 2024 ABKB 182

The Alberta Court of King’s Bench recently released the newest personal injury decision of Russel v Russell, 2024 ABKB 182, which related to a significant single-motor vehicle accident. Liability, contributory negligence and damages were all addressed and analyzed. This decision serves as a useful reminder of the difficulties faced when assessing a young plaintiff’s claim and determining contributory negligence when the plaintiff fails to wear a seatbelt.

            Background

On December 24, 2015, the Plaintiff was travelling as a passenger in the front of a vehicle (truck) being driven by the Defendant (her stepfather). Her mother was also a passenger. All three were situated in the front seat with the Plaintiff seated in the middle. Initially, the Plaintiff was seated on the outside near the passenger window but switched with her mother (who was originally in the middle) so her mother could smoke near the open window. Unfortunately, the Defendant lost control of his vehicle after travelling over black ice on a high-speed highway and collided with the median. 

The Accident was significant resulting in the Plaintiff being trapped in the truck with her wrist “dangling” and the front of her shirt on fire. She was transported to the hospital afterwards and suffered a significant injury to her right wrist as well resulting in chronic pain and depression.

            Liability

The Defendant argued he was not liable for the Accident as it was unavoidable due to the presence of black ice on the highway. The Defendant further argued the Plaintiff was contributorily negligent for failing to wear a seatbelt.

The Court dismissed the Defendant’s argument that the Accident was unavoidable on the basis that the Defendant was travelling too fast for winter conditions. It was not entirely clear from the evidence if the Defendant was travelling at or just below the posted speed limit of 100 km per hour but he did admit at trial he was likely travelling too fast for the conditions. The Court (again) reiterated that drivers are expected to adapt to winter conditions which can include driving below the posted speed limit when the conditions warrant it.

Regarding the Plaintiff’s lack of a seat belt, the Court only granted a 5% reduction for contributory negligence despite her admitting she was not wearing a seatbelt and the Accident being significant. Interestingly, the Court accepted the evidence of the Plaintiff’s expert that a seatbelt would not have significantly reduced her injuries due to her large size (roughly 330 lbs). For example, her most significant injury was her right wrist and her seatbelt would not have prevented it from striking the dashboard given the momentum from her body weight. 

It also appears the Court took into consideration that the Plaintiff was initially wearing her seatbelt when she was situated by the window and then attempted to put on her seatbelt after she changed to the middle seat but could not due to the belt not being able to reach over her midriff. Ultimately, the Court found the Defendant’s actions “significantly more blameworthy” than the Plaintiff failing to wear her seatbelt.

            Injuries

The Plaintiff’s most significant injury was her right wrist which required three subsequent surgeries and resulted in a “significant impairment of function”. Further, she suffered a significant right ankle injury that required her to use a cane. She subsequently required surgery in 2022 which did significantly improve her right ankle pain.

The Plaintiff also suffered soft-tissue injuries to her neck and back which the Defendant attempted to argue was pre-existing as there was documented pre-Accident complaints of back pain. There were also signs of a predisposition to osteoarthritis but the Court found the evidence was insufficient to establish that but-for the Accident the Plaintiff would have experienced these types of symptoms (despite the experts agreeing the Plaintiff’s weight would place her at higher risk of osteoarthritis). Her neck pain was largely resolved two years after the Accident but the Court accepted she would suffer from “residual neck pain”.

The Court concluded the Plaintiff would suffer from permanent chronic pain (with resulting headaches) on her left side and shoulder blades down to her lower back, into her hip and left knee. Her chronic pain led to upset sleep and psychological injuries including anxiety and depression.

Lastly, the Court found the Plaintiff likely suffered a mild traumatic brain injury but she recovered from it and any alleged cognitive issues were likely due to her underlying chronic pain, sleep disruption and psychological injuries. 

            Damages

The Court awarded the Plaintiff $160,000 for general damages and tacked on an extra $7,500 for housekeeping capacity for a total award of $167,500. Insurers and defence counsel should be cognizant that this award includes a loss of housekeeping capacity aspect but she still received an award for housekeeping services provided by family members (discussed below).

Unfortunately, every other head of damages was not finalized and would need to be reassessed by the Parties’ economists as per the Court’s instructions and findings.

Regarding past loss of income, this case involved numerous hurdles that made it difficult to assess including a young plaintiff who was in the midst of changing career. Here, the Plaintiff fell just short of graduating from high school but went on to complete two years of a culinary certificate (out of three) resulting in her being employed at a series of jobs with her last being a pastry chef at the Grey Eagle casino. 

However, the Plaintiff had just been accepted into a journeyman carpenter pre-apprenticeship program prior to the Accident and had significantly reduced her hours at the Grey Eagle to just weekends. The Accident occurred just prior to her graduating from the course but she did end up passing it with accommodations a few months after the Accident (end of January 2016). She was unable to find employment after completing the course and submitted to the Court it was because she was wearing a cast on her right arm when she applied for jobs.

The Plaintiff changed career paths multiple times afterwards taking a legal assistant program and upgrading her high school courses but ended up finding employment at the front desk of Momentum Health in May 2022. She was working part-time while she participated in an LPN (licensed practical nurse) program. 

With that all said, the Plaintiff argued she would have been a journeyman carpenter but for the Accident. The Defendant argued there were too many barriers for her including her obesity, age and lack of experience. The Plaintiff’s cousin was also unable to obtain employment despite being in the same journeyman carpenter pre-apprenticeship program. The Defendant argued this was not a realistic career. 

At trial, the medical experts agreed that the Plaintiff was suitable for a medical office assistant role (which has a light and sedentary demand) but not for a journeyman carpenter. 

The Court was unable to give a final award for past and future loss of income and instead ruled on various issues, assumptions and contingencies for the Parties’ economists to apply in their calculation. Notably, the Court had to determine her-without Accident income and with-Accident income as well as the appropriate contingencies to apply. 

For the Plaintiff’s without-Accident income, the Court concluded there was a “real and substantial possibility” that the Plaintiff would have continued on the path of a journeyman carpenter and she was on the “cusp of a career change”. The Court found she was owed lost wages from July 1, 2016 (which is when the Court believed it was more likely than not she would have found a job as a journeyman carpenter) until retirement age. However, the Court did apply a past and future wage deduction of 20% for the risk she would not have gained employment. 

For the Plaintiff’s with-Accident income, the Court found the Plaintiff’s current desired career as a licensed practical nurse was not a likely career path given she could not stand for long periods of time or lift any significant weight. Her current role as a medical office assistant was her most realistic career path but she is only able to work 27 hours per week. The Court found she could have maintained this employment since May 2022 (which is when she gained employment with Momentum Health). For the Plaintiff’s with-Accident income, the Court determined she would work 27 hours per week from February 2022 until retirement age (while applying appropriate contingencies).

The Court directed the Parties’ economists to recalculate her past and future loss of income based on the numerous factors and contingencies it determined. Ultimately, her recalculated with-Accident income would be deducted from her without-Accident income to reach the final award. 

Regarding loss of housekeeping, the Court awarded two hours per month (calculated at $35 an hour) for heavy housekeeping tasks performed by family and friends from the date of the Accident to trial. The Plaintiff’s own reduced capacity was captured by her general damages award. She was also awarded light housekeeping costs for six weeks after each surgery at six hours per week at $35 per hour.

For the cost of future care, there was a disagreement over whether the Plaintiff’s award should be reduced given her eligibility to publicly funded health services available to First Nations (such as the Non-Insured Health Benefit). The Plaintiff argued this public funding was not guaranteed into the future while the Defendant argued she would be essentially receiving double recovery as the NIHB could not subrogate for its medical expenses. 

The Court determined the existence and particulars of the NIHB were not legislated and there was no guarantee that it would continue into the future. Further, the primary responsibility to compensate a plaintiff’s injuries should be borne by the defendant. Thus, the Court did not permit any deductions for the NIHB from the Plaintiff’s cost of future care claim.

Further, despite disagreement between medical experts, the Plaintiff was awarded physiotherapy for her injuries for eight weeks and three physiotherapy visits per year for the rest of her life. She was awarded a chiropractic or massage treatment once per month for the rest of her life despite it not being necessary and considered passive treatment. She was also awarded psychological sessions every two weeks for the next year followed by monthly sessions for an additional two years. Afterwards, she was entitled to “check-in” sessions three times per year for the rest of her life. 

The Court also awarded the Plaintiff funding to attend a private care chronic pain program despite a publicly funded program being available as there was a long wait list associated with the public program. However, the Court reduced it by 50% as she had been recommended years prior to joining this waitlist but was unable to explain why she failed to at trial.

As mentioned above, the Court did not provide final calculated amounts for any head of damage other than general damages.

            Conclusion

This decision will likely make it more difficult to argue contributory negligence when a plaintiff fails to wear a seatbelt. It also appears to suggest that wearing a seatbelt will not make a significant difference for a finding of contributory negligence when the collision is of a higher magnitude and the plaintiff is a larger individual (depending on the injuries). 

While a general damages award of $167,500 may seem high at first glance, the seriousness of the Plaintiff’s right wrist injury must be considered as it required three subsequent surgeries resulting in a permanent loss of function. This is not just a chronic pain case. Further, this award accounted for her own loss of housekeeping capacity which was assessed at $7,500. With that said, the Court also awarded her additional housekeeping costs for chores completed by family members.

It is also notable the Court did not reduce the Plaintiff’s future care award despite her having access to NIHB (publicly funded health services) finding it was not double recovery. 

Unfortunately, many of the heads of damages were not finalized in the decision and directed back to the Parties’ economists for recalculation as per the Court’s determination on various issues and contingencies. This decision can serve as a reminder of the difficulties, complications and costs associated with assessing claims for young plaintiffs.