The Plaintiff, Ms. Artindale-Eeles, was involved in two collisions as she was driving her vehicle to work in the early morning of April 9, 2010 near Canadian Forces Base Wainwright where she served as the Cleaning Services Supervisor.
At the time of the first collision, it was still dark with icy roads and blowing snow. As she was coming over a railway overpass, she saw a van stopped ahead of her which she collided with despite braking immediately. This collision occurred at speeds of about 20 to 30 kilometres per hour and Ms. Artindale-Eeles was uninjured. When emergency workers attended the scene, the fire chief instructed Ms. Artindale-Eeles to wait insider her vehicle for RCMP to arrive (she did so with her vehicle backed up one car length from the van and her four-way flashers on).
The second collision occurred forty-five minutes after the first collision, when an RCMP vehicle struck Ms. Artindale-Eeles’ vehicle from behind, causing it to spin roughly 180 degrees. She did not describe the speed or force of this second collision in either her RCMP statement or in her signed Notice of Loss. Photographs show damage to the rear left quarter panel of her vehicle. The vehicle’s air bags were not deployed in either collision.
Ms. Artindale-Eeles was transported to Wainright Hospital where she was attended by Dr. Letley who recorded her complaints as “pain in the C-spine, left spine/clavicle and right knee”. After reviewing the X-rays he’d ordered, Dr. Letley charted “soft tissue injury”, prescribed an analgesic muscle relaxant (but no pain medication) and discharged Ms. Artindale-Eeles. She re-attended the hospital on April 12, 2010 due to concerns with increased coughing and the triage nurse charted tenderness of the ribs on the right side. Dr. Letley saw Ms. Artindale-Eeles again on this re-attendance and ordered X-rays for the chest and right ribs with negative results.
The Court’s Reasoning and Analysis
At trial, credibility and causation were at issue. In regard to credibility, Ms. Artindale-Eeles’s evidence changed a number of times. On April 15, 2010, she executed a somewhat longer description of the collisions for her insurers, which described her injuries as: “whiplash, strain left shoulder and upper left shoulder blade and upper back.” The judge noted that “…Ms. Artindale-Eeles was quick to provide or address details without much concern for what was in the records.” In addition to this, her testimony differed from direct to cross-examinations.
As for the issue of causation, Ms. Artindale-Eeles had a litany of pre-existing health concerns that included: neck, shoulder and back pain on the left side; depression with prior PTSD; a sustained history of various types of headaches and knotted muscles; insomnia and sleep apnea still in active treatment; and diabetes, high blood pressure and cholesterol levels. Ms. Artindale-Eeles’s evidence that her health was “good” prior to the collisions as she was only experiencing sporadic symptoms.
Then there were several post-collision injuries. In December 2010 and again in October 2011, Ms. Artindale-Eeles fell down the stairs at home, and in March 2011 had slipped and fallen at her worksite. These conditions informed a number of important aspects in assessing causation, that Ms. Artindale-Eeles was more vulnerable or susceptible to injuries than others and presented with a history of more prolonged recovery periods.
Causation was also at issue between the first collision, and the second collision. The defendants argued that the first collision that Ms. Artindale-Eeles was involved in on April 9, 2010, which was an at-fault collision could have been the cause of Ms. Artindale-Eeles’s injuries as it had occurred just forty-five minutes before she was impacted by the RCMP vehicle. However, the Court rejected this argument and found that there was no evidence that the at-fault collision had caused any injuries.
The judge found that the injury resulting from the slip and fall was an exacerbation of the injuries from the collisions, and that Ms. Artindale-Eeles sustained a soft tissue injury to the shoulder and neck region, attributed to the collisions (the shoulder injury became chronic due to pre-existing vulnerabilities including anxiety, age, diabetes, headaches and other prior issues with chronic pain). Interestingly, the Court found that Ms. Artindale-Eeles suffered a full thickness tear of her shoulder as a result of a slip and fall in 2011, but still tied this injury back to the second collision using the but for test, on the basis that but for the second collision, Ms. Artindale-Eeles may not have suffered a more significant left shoulder injury as a result of the slip and fall incident. The Court opined these were foreseeable exacerbations attributable to the collisions:
[205] In this case, I find the exacerbations caused by the Post-Collision Incidents were individually foreseeable as reasonable risks in daily living. It was reasonably within the contemplation of the Defendants that the Plaintiff would aggravate her injuries in the course of her day-to-day living. All four of the Post-Collision Incidents occurred in the context of typical injuries that take place in everyday life. The first two, including the most damaging slip and fall, occurred during the first year; all four arose while Ms. Artindale-Eeles was still on restricted work duties. Therefore, the Post-Collision Incidents affecting the left shoulder area were not too remote to hold the Defendants liable
Damages Assessment
Ultimately, Ms. Artindale-Eeles was awarded $88,000.00 in general damages for both physical and psychological injuries. The Court concluded that as a result of the collision, Ms. Artindale-Eeles suffered from a posterior glenohumeral joint instability to the left shoulder affected her range of motion and particularly the ability to raise and use her arm above her head, soft tissue damage to her neck, clavicle and surrounding area and a relapse with respect to PTSD, accompanied by a driving phobia.
In addition, the Plaintiff claimed that she suffered a past income loss, and was forced to retire early causing her to lose valuable pension benefits. The Plaintiff sought $120,000 in past income loss by using Ms. Artindale-Eeles top-end earnings from the previous fifteen years and arguing that she was unable to meet these hours after the collision. The Court dismissed this argument and found that while Ms. Artindale-Eeles did reduce her hours for a period of time after the collisions, she would not have worked forty-hours per week but for the collisions. In total, $42,650.00 was awarded for past income loss. Her claim that she was forced to retire early due to the collisions was found to not be reasonably foreseeable to the defendants.
Finally, Ms. Artindale-Eeles’s claim for cost of future care was reduced substantially from $91,490 to just $12,500 inclusive of future housekeeping costs. This was because Ms. Artindale-Eeles’s chronic but stable injury could not “justify most of the items recommended”. Furthermore, Ms. Artindale-Eeles admitted during cross-examination that she had no intention to pursue a number of recommendations made in the cost of future care report, leading to a sharp reduction to this award.
Discussion and Implications for Personal Injury Claims
The decision and the damages awarded to Ms. Artindale-Eeles provides interesting implications for personal injury and insurance law as it relates to claims involving plaintiffs with pre-existing issues and post-collision incidents and issues. It also provides a stark reminder that poor credibility does not always translate to a substantially reduced damages award.
The Court’s discussion of the impact of the first collision versus the second collision on Ms. Artindale-Eeles’s health was interesting and to the benefit of the Plaintiff. Specifically, Ms. Artindale-Eeles downplayed the severity of the first collision, calling it a “tap”, and exaggerated the severity of the second collision calling it a “high speed” collision. The Court disagreed with these characterizations, yet found that Ms. Artindale-Eeles did not suffer an injury as a result of the first collision. This may have been due to a lack of evidence specifically indicating that the first collision was capable of causing injuries. In that regard, a biomechanical expert was apparently not retained by the defendants, and it is interesting to consider whether this would have impacted the Court’s reasoning had one been retained. Interestingly, the Court appears to have given Ms. Artindale-Eeles the benefit of the doubt (despite her credibility issues) when she testified that the first collision did not cause any injuries. Despite this, the Court refers to the first and second collision together as the Collisions throughout, but makes no clear reduction in respect of the damages award due to the presence of the first collision.
In total, the $88,000 awarded for general damages does not seem high for a typical chronic pain case in Alberta, but having regard to the fact that Ms. Artindale-Eeles was not credible, had significant pre-existing issues, was involved in the first collision just forty-five minutes before the second collision, and had a number of slip and fall incidents after the collision, one could view this award as generous given the circumstances. Notably, Dr. Flaschner opined that he was unable to “distinguish whether that pain was the result of the Collisions, the March 2011 slip and fall or a combination.”
Ms. Artindale-Eeles’s credibility appears to have factored into the Court’s decision to not award Ms. Artindale-Eeles with damages associated with her early retirement, or her plan to work part-time after her eventual retirement. The Court noted that Ms. Artindale-Eeles was not a credible witness, and had not met the evidentiary burden to prove that she would have returned to part-time work but for the collisions.
Finally, the Court’s willingness to slash an unreasonable claim for future cost of care using a common sense approach is commended. Insurers are often presented with incredibly unreasonable future cost of care claims when it is obvious most of the items claimed will not be pursued by the plaintiff or are even necessary. The within decision is helpful to the defence in this regard.
The main takeaway here is that credibility continues to be a significant factor in subjective chronic pain cases as seen in the cases of Russell v Russell, 2024 ABKB 182 and Armbruster v Nutting, 2024 ABKB 36. However, inconsistent evidence and a general lack of credibility does not mean that a Court will substantially reduce the damages awarded to a plaintiff. As seen in this case, Ms. Artindale-Eeles was still awarded $88,000 in general damages. The within case also provides a stark reminder that pre-existing injuries and symptoms, and post-accident injuries will not insulate a defendant from a more substantially general damages award. The but for test can be unforgiving, as evidenced by the Court’s decision. Despite this, the Court appears to have taken Ms. Artindale-Eeles’s credibility into consideration with respect to the income loss claim, and the future cost of care claim, substantially reducing both of these claims and ultimately awarded Ms. Artindale-Eeles just $166,730 plus interest, costs and disbursements, an award that most insurers would be happy with in a fourteen year old chronic pain case at trial.
