In Russell v Russell, 2024 ABKB 182, Ms. Russell was injured in a single vehicle collision and sought $200,000.00 in general damages for pain and suffering. On December 24, 2015, Ms. Russell was riding in a truck, seated on the single bench seat between her mother and stepfather. Her stepfather, Mr. Chiefmoon, lost control of the truck as they were approaching a bridge just outside of Lethbridge. By all accounts, Mr. Chiefmoon had been driving too fast for the winter conditions and caused the truck to collide with a cement median. Ms. Russell was trapped in the truck with “her wrist dangling, her foot under the dashboard, and the front of her shirt on fire.” She was not wearing a seatbelt at the time of the collision.
Justice J.R. Ashcroft found that Ms. Russell breached her duty to protect herself by travelling as a passenger in a vehicle without seatbelt and deducted 5 percent from her award for contributory negligence. Ms. Russell had initially been in the passenger seat and wearing a seatbelt but, when she switched to the middle seat at her mother’s request, did not engage the seatbelt as it was rendered inaccessible due to the large size of Ms. Russell, her mother, and Mr. Chiefmoon. Although not wearing a seatbelt did show a lapse in judgment on the part of Ms. Russell, it did not show a reckless indifference to the safety of others (the discount of 15-25 percent across all heads of damages as put forth by Mr. Chiefmoon was not warranted in this case).
As a result of the collision, Ms. Russell sustained serious injuries to her right wrist and right ankle. Despite undergoing three surgeries on her wrist in an attempt to increase functioning and decrease pain, she has only experienced some improvement. Experts for both sides have confirmed that Ms. Russell has severe, permanent impairment in her wrist that significantly interferes with her functioning. One and a half years after the collision, she still has pain in her ankle. The injury to her right ankle caused a change to Ms. Russell’s gait, which gait change put her at risk of developing low back pain. Ms. Russell did not see any lasting improvement to her right ankle until a 2022 surgery (after this surgery she was able to stop using a cane).
The judge also found that in addition to the chronic wrist pain, Ms. Russell continues to suffer from residual neck pain, back pain, and knee pain, as part of ongoing chronic pain on her left side caused by the collision. Although Ms. Russell does also experience chronic pain on her right side, this pain is more limited to her right wrist and right elbow. Part of the ongoing chronic pain experienced by Ms. Russell includes headaches. These physical symptoms are all compounded by Ms. Russell’s diagnosis of Persistent Depressive Disorder with Anxious Distress, which would not have occurred but for Mr. Chiefmoon’s negligence. After the collision, Ms. Russell would lay in bed for long periods to reduce pain. This led to her gaining a significant amount of weight which further impacted her ability to exercise and recover and contributed to her depression.
At trial, a family member described Ms. Russell as having been a motherly figure in her community who tackled life with strength and resilience. Since the collision, her ability to do so has become severely impacted; she is socially withdrawn, experiences ongoing chronic pain, and her employment and other activities are impacted. The judge remarked that she is now a “fragile person whose ability to cope with her injuries and tackle life’s challenges has been severely impacted.” In their damages analysis, the judge paid special attention to Dirk v Toews, 2019 ABQB 176 [Dirk] where they previously awarded $185,000.00 in general damages. Ms. Russell suffered injuries that were in no way minimal, but less severe that the plaintiff in Dirk, who suffered several fractures to her leg, ankle, and rib. Ms. Russell was awarded $160,000.00 in general damages for pain and suffering and an additional $7,500.00 for the pain and suffering experienced when performing light housekeeping tasks.
The judge also awarded loss of income and future cost of care in an amount to be determined by experts pursuant to the formula laid out by the judge.
Implications
The Russell v Russell case has implications for insurance law in relation to the assessment of contributory negligence for failing to wear a seatbelt, and for damage assessments generally.
Seat Belt Defence
As referenced above, in this case, the Court only applied a 5% factor of contributory negligence for Ms. Russell’s failure to wear a seatbelt. This is far below the “typical” 25% reduction set in cases such as the seminal case of Heller v Martens, 2002 ABCA 122.
The nominal amount of contributory negligence applied in this case was largely due to the nature of the injuries suffered by Ms. Russell, and the mechanics of the accident generally. Ms. Russell suffered a significant wrist and ankle injury. In considering the expert evidence tendered by the parties, the Court held that given the mechanics of the accident, a seatbelt would not have prevented Ms. Russell’s wrist from striking the dashboard as she was bracing for impact. The Court also found that her ankle injury would likely not have been prevented by the seatbelt use. The ankle and wrist injuries were Ms. Russell’s main injuries and therefore, a higher factor of contributory negligence was not warranted.
Ultimately 5% contributory negligence was assigned using the comparative blameworthiness approach, and accepting that Ms. Russell would not have suffered a MTBI had she been wearing a seatbelt.
This case provides a good reminder for counsel that the failure to wear a seatbelt does not automatically lead to a reduction in damages for contributory negligence. As always, defence counsel need to demonstrate that the use of a seatbelt would have prevented or reduced the severity of the injuries complained of by the plaintiff by tendering cohesive expert evidence in support of their position.
Damages
As referenced above, Ms. Russell was awarded a significant general damages award of $160,000.00. In addition, the Court awarded $7,500.00 in past housekeeping losses to be “rolled in” with the general damages award. In total, $167,500.00 was awarded.
It must be recognized that Ms. Russell not only had chronic pain as a result of the Accident, but also had objective injuries to her right wrist and right ankle. Specifically, she required three surgeries on her wrist and was left with residual impairment, pain, a loss of strength and reduced mobility in the wrist and fingers. Similarly, she required right ankle surgery and the Court held that her injury was serious and debilitating. As such, the Russell v Russellcase will have limited applicability to subjective chronic pain cases where objective injuries are absent. Ms. Russell’s injuries are far more severe and objective in nature thereby warranting a higher general damages award.
The Court’s decision to “roll in” housekeeping into the general damages award, which is a trend that is becoming more prevalent in personal injury case law since Justice C.A. Kent used this method in Seich v. Tobin, 2007 ABQB 492.
Finally, the Court did not precisely identify the overall value of Ms. Russell’s award for income loss and rather referred the calculation back to the expert economists. However, it is clear that a substantial income loss award was made comparing Ms. Russell’s without-accident income to her with-accident income. Again, Ms. Russell’s with-accident income earning capacity was substantially impacted due to her inability to work in anything other than a sedentary job due to her ongoing objective wrist and ankle issues. Most notably, the Court did not simply make a lump sum earning capacity award as has been seen in recent cases such as Jones v Stepanenko, 2016 ABQB 295 or Smith v Obuck, 2019 ABQB 593. Instead, the Court opted to rely on the expert evidence and economist calculations to come to a more pecuniary assessment of Ms. Russell’s income loss. The Court has tended to shy away from precise calculations of future income loss. However, if the Court opts to use this methodology going forward, as Justice Ashcroft did, it can be expected that past and future income loss awards will increase.
Noah Hodgson
Partner
Alisen Kotyk
Student-at-Law