Not many personal injury cases go to trial in Alberta, so when a personal injury action does go to trial, we are all listening to the decision and looking for lessons to apply to new cases. Mason v. Thompson, 2020 ABQB 76, a chronic pain case, is not the exception. This recent decision by the Court of Queen’s Bench of Alberta provides us with guidance for handling chronic pain cases, calculating future loss of income, and assessing cost of care.
Mr. Mason, a realtor, was involved in two collisions – first on November 10, 2009 and the second one on February 28, 2011 (the “Accidents”). Defence counsel successfully established that Mr. Mason’s pre-existing medical conditions included degenerative changes in his spine resulting low back pain, neck pain, and shoulder pain. Because of the Accidents, Mr. Mason suffered soft tissue injuries to his neck and back, headaches, poor sleep, and anxiety. In 2016, Mr. Mason underwent neck surgery. However, his symptoms remained unchanged and ongoing at the time of the trial. Mr. Mason was involved in a third accident in January 2018, but his evidence was that he was back to his pre-2018 accident status by the time of the trial.
When assessing general damages, Justice A.D. Macleod highlighted that Mr. Mason would have had some of his symptoms at some point in his life regardless of the Accidents. However, he assessed his general damages, including housekeeping, at $165,000.00.
Prior to the Accidents, Mr. Mason’s income was high, but irregular. Since the Accident, he had essentially not worked. Defence counsel argued that Mr. Mason should have been able to work, at least, part time. Justice A.D. Macleod took into account that the real estate market has been weaker in the past few years. He also accepted that Mr. Mason should have carried on with his career, at least, at a reduced level.
Justice A.D. Macleod did not accept the approach of the plaintiff’s economic expert – “there is no point in pretending, with all of the uncertainties, that we can precisely assess Mr. Mason’s lost income. At best, assigning a number is an educated guess based upon all of the evidence”.
Mr. Mason claimed $845,186.00 in past loss of income and $682,244.00 in future loss of income. Justice A.D. Macleod decided to award a lump sum of $500,000.00 for both past and future loss of income.
In terms of cost of future care, Justice A.D. Macleod determined that Botox injection were not beneficial. Similarly, he stated that exercise equipment and its replacement was not recoverable – “exercise is beneficial to all of us whether or not we have had the misfortune of being involved in an accident.” Justice A.D. Macleod also cut back drastically massage therapy, pointing out that Mr. Mason enjoyed massage therapies before the Accident. He did allow continued counseling, and assigned the global figure of $35,000.00.
There are many lessons to be learned from Mason v. Thompson, 2020 ABQB 76. For instance, the courts continue to make substantial awards for general damages in chronic pain cases, even when the plaintiff’s symptoms are largely subjective. In addition, future loss of income can rarely be calculated precisely, and the courts will often make an educated guess based upon all of the evidence. Finally, future care claims must be limited to treatments that are specific to the accident-related injuries, and not for general health.
