Kohlendorfer v Northcott, 2017 ABQB 114

Court of Queen’s Bench of Alberta Citation: Kohlendorfer v Northcott, 2017 ABQB 114 Date: 20170216 Docket: 0303 24014 Registry: Edmonton Between: Stephan Kohlendorfer Anne-Marie Kohlendorfer Plaintiffs - and - Adam Northcott Yvette Marie Richard Defendants Corrected judgment: A corrigendum was issued on March 1, 2017; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Decision of the of the Honourable Mr. Justice T.D. Clackson _______________________________________________________ I. Introduction

[ 1 ] On Saturday, January 5, 2002, Mr. Kohlendorfer and his wife were rear ended. Almost 15 years later, the matter came before me to determine the extent of the Kohlendorfers’ damages, if any, as a result of the collision. Mrs. Kohlendorfer’s claim was resolved before trial. In Mr. Kohlendorfer’s claim, liability was admitted but the defence position is that the impact was so minor, and at such a low speed, that the injuries Mr. Kohlendorfer claims to have suffered could not have been caused by the collision. II.

Circumstances and General Damages [ 2 ] The Plaintiff was driving a one-ton pick-up truck with about 200-300 kilograms of cargo in the box of the truck. He had been stopped for approximately 5 seconds, at the intersection of 95A Street and 118th Avenue, Edmonton, Alberta, when he was struck from behind by a Honda Civic driven by the Defendant, Northcott (and owned by the Defendant, Yvette Richard).

The Civic went under the bumper of the Plaintiff’s truck. [ 3 ] The repairs to the Plaintiff’s truck were done for under $700.00, although the Plaintiff maintains that these repairs did not capture all the damages done to the truck. He maintains that the rear bumper of the truck had shifted, sticking out from the body to the right and that the frame of the truck was bent. The evidence does not support that assertion. Despite the Plaintiff’s feelings on the subject, it is plain that his truck suffered less than $700 damage. [ 4 ] Mr.

Northcott, the Defendant, testified and conceded that he has no independent memory whatsoever of the events. When he testified, he had reviewed a statement he purportedly gave to someone, but he did not recall who that person was or what the person looked like. He didn’t recall giving the statement, and had no idea whether the statement was either accurate or complete. As a result, his evidence added no probative value to this proceeding. [ 5 ] The Plaintiff said at the time of the accident his head was about a foot from the headrest of his seat, although he did not measure the distance.

He speculated that he probably had his head turned to the right towards his wife who was to his right, because he thinks they were talking. He said he did not tense/brace up or in any way anticipate the collision. [ 6 ] The Plaintiff said he felt nauseated at the time, but thought nothing of it. He believed the nausea would pass. He said that by the time he got to his employer’s yard, his neck muscles had stiffened up. [ 7 ] The Plaintiff’s work history is predominantly oil related.

He worked his way up from floor hand (or “roughneck”) to rig manager. [ 8 ] After the accident, he continued to work but took time off, initially, and then took advantage of breaks caused by rig moves or breakup to pursue relief at a natural hot spring. [ 9 ] Since the time the accident occurred, the Plaintiff said he has suffered from neck pain and headaches. He only gets relief from hot springs, hot water, deep-massage, rolling his shoulders, general movement and an herbal remedy known as white willow, which is a natural form of analgesic.

He has, since the accident, regularly visited the Nevada Hot Springs area for 2 to 4 weeks stints seeking relief. He usually drives to Nevada with his wife. A one way trip of about 2200 km. [ 10 ] After visits to a natural hot spring, the Plaintiff said he would feel better and return; only to again be compromised in his ability to work. This pattern continued until he realized in 2004 that he was a danger to himself as well as others and could not perform the job safely or quickly enough. He said he had to find something else.

I will have more to say about the Plaintiff’s employment and his prospects when I deal with his claimed income loss. At this juncture, it is enough to note that the Plaintiff pursued other interests in an attempt to retrain, but ultimately, by 2012, he had ceased to work. He remains unemployed. [ 11 ] He goes by himself to the Yukon, where he has mineral claims, a trip of about 26 hours. He does that a couple of times a year to engage in what he described as prospecting. This activity involves using a back-hoe, which he runs and, presumably, other physical exertions.

He also, frequents the hot springs in Laird, B.C. on his way to the Yukon. [ 12 ] Before the accident, prospecting appears to have been the Plaintiff’s passion as he made his work fit around his prospecting. Prior to the accident, he spent 2 full years, 1999 and 2000, prospecting, and only returned to regular employment in 2001, when he ran out of money. He continues to indulge that passion despite his claimed injuries. [ 13 ] The Plaintiff turned 70 at the time of trial.

When the accident happened, he was 55. [ 14 ] Much of this case turns upon the Plaintiff’s credibility. [ 15 ] Every expert who testified relied to some extent on the information they gleaned from the Plaintiff. There isn’t much truly objective evidence to establish the truth of the Plaintiff’s complaints. The objective evidence which exists tends to show that the Plaintiff does not have or could not have the injuries he claims.

In this regard, I note that the Defendants argue that, objectively, the degree of force applied to the Plaintiff in the accident was simply incapable of producing the claimed injuries. [ 16 ] In 2006, and again in 2012, there were surveillance videos done of Mr. Kohlendorfer. From these videos, it is plain that Mr. Kohlendorfer appears to be strong and active and can seemingly move his neck and shoulders, relatively freely.

He does appear to have a chin jut or chin forward or a kind of forward leaning posture, which various witnesses commented upon. [ 17 ] The Plaintiff did not say whether that posture is natural or accident related. The fulcrum for the posture appears to be the belt- line and the Plaintiff did have some significant back injuries years prior to the accident in question. Dr. Hu, an expert orthopedic surgeon, called by the Defendant’s testified that when he saw the Plaintiff in 2015, the Plaintiff had limited movement of his hips, which were in an unnatural position and arthritic.

He was of the opinion that the Plaintiff’s posture was compromised because of these abnormalities. I understood as well that the hip abnormalities were congenital or at least preceded the accident. Therefore, the forward leaning posture was a feature of the Plaintiff’s life at the time of the accident.

[ 18 ] The Plaintiff denied having had any problems with his neck or with headaches before the collision and denied he had any pre- existing Temporomandibular Joint Disorders [TMJ] dysfunction. He said he now has a problem with TMJ as a result of the accident, although, he did not mention the matter to his dentist or doctor until 3 years after the collision. When the Plaintiff saw his dentist 14 months after the accident, the record indicates he completed a dental form, which asked the question whether he had noticed popping, clicking or problems with his jaw joints.

The Plaintiff answered in the negative, and made no complaint. On that occasion, he had a bite adjustment done because he said his teeth were out of line. When he was asked to explain why he did not complain before 2005, he said it was because he did not realize the alleged pain was caused by the accident. [ 19 ] Frankly, that answer makes no sense to me. The question of whether the Plaintiff believed the pain was caused by the accident or not is separate from the issue of whether the pain existed.

In other words, while interrelated, the information about the cause of a pain is logically independent of the factual existence of the pain. If the Plaintiff’s pain existed at the time he saw his dentist, one would have, objectively, expected the Plaintiff to complain about the pain to the people – such as his dentist or his doctor – who could have provided professional services to relieve his pain, whether it was accident related or not. [ 20 ] The Plaintiff further testified that he can handle pain.

He gave evidence that the year prior to this trial he had a terrible toothache on a bad tooth while he was in the Yukon prospecting. He said his prospecting location was 500 km to a dentist; so, he made himself a tool and extracted the tooth himself, presumably without anything to deaden the pain. [ 21 ] If the story is true, the fact that he was able to pry his tooth out when he, supposedly, had ongoing TMJ issues, suggests to me that his jaw problems at that time must have been relatively minor, if they existed at all.

Otherwise, I would have expected the use of the crudely created tool, with his jaw as a fulcrum, to have had significant and lasting repercussions. The lack of any record of complaint, post self-extraction, is quite telling. [ 22 ] The experts, who independently examined Mr. Kohlendofer, for the Defendants, concluded that Mr. Kohlendofer did not suffer injuries, or at most suffered minor injuries, in the accident. The following facts were relied upon by them in coming to their conclusions: (

a) The force of the accident/collision was insufficient to cause the injury (

b) There were pre-existing degenerative changes in Mr. Kohlendofer’s cervical spine. (

c) The Plaintiff did not seek medical assistance in a timely way after the accident. (

d) The Plaintiff’s range of motion is, and was, normal; and as such, undermines his complaints. (

e) The Plaintiff’s posture, coupled with degenerative change, is the likely cause of his claimed difficulties. (

f) There are no trigger points identified. (

g) The Plaintiff is out of condition. (

h) The Plaintiff did not follow recommendations for active treatment and medications; despite the fact the chiropractic treatments he did receive had helped him. [ 23 ] The Plaintiff’s case is based on the following: (

a) The Plaintiff has no symptoms before the accident. (

b) The Plaintiff could have been turned slightly, and that may invalidate the collision study data. (

c) There was some initial restricted motion consistent with the way the Plaintiff may have moved biomechanically in the collision. (

d) The Plaintiff did not consult a doctor because he had no family doctor, and was relying on insurance to arrange medical consultation. (

e) While chiropractic treatment helped, the Plaintiff could not afford to continue. (

f) He has had, and remains with, some restriction of his range of motion unless force is applied by the examiner. (

g) His functional abilities are compromised. [ 24 ] As I have said, the Plaintiff’s credibility is a central factor in this litigation. He claims that his TMJ problems are related to the accident. The evidence I pointed to earlier, undermines that claim, and reflects on the Plaintiff’s credibility generally. [ 25 ] He claims erectile dysfunction as accident related, but the evidence does not support any neurological complications or blood circulation issues resulting from the accident. Again, this claim reflects on the Plaintiff’s credibility.

From time to time, the Plaintiff claimed to have fallen, to have whole body tingling and other odd inexplicable sequelae. Those claims appear to be, at best, exaggerations; and as such, impact the Plaintiff’s credibility. [ 26 ] T he fact that he made many of these complaints to experts, none of whom did anything responsive shows how befuddling, and thus, lacking in merit, the claims are. [ 27 ] The Plaintiff testified that he never had neck pain or headaches before the accident. Given the fact that the Plaintiff was 56

years old at the time, he could not have been completely truthful on this account. In this regard, while I do not believe the Plaintiff when he said he had never had headaches or pain pre-accident, I do accept that the Plaintiff had no serious pain problems with his neck or persistent headaches before the accident. If he had, I would have expected him to pursue medical relief. There is no evidence that he did.

Nonetheless, the Plaintiff’s testimony that, at his age, he had never experienced neck pain or headaches strikes me as exaggerations that bear on his credibility. [ 28 ] In my view, in the world of personal injury litigation where so much turns on subjective complaint, the court is entitled to expect the utmost honesty from a plaintiff.

Obviously, where the plaintiff claims sequelae which are not borne out by the evidence, the Court must remain open-minded but must also exercise caution when assessing the plaintiff’s subjective claims when they are at odds with or inconsistent with the objective evidence before the Court. Although the sequelae are not supported by the objective evidence, the plaintiff might actually be experiencing the claimed sequelae from a subjective, individual perspective.

However, where the plaintiff, in the course of testifying, wilfully exaggerates or complains of symptoms that the medical profession and its practitioners are not familiar with, that plaintiff’s credibility is significantly undermined. In cases such as that, the Court must be wary and concerned about such testimony. Simply accepting the plaintiff’s word at face value is neither wise nor fair to the defendant. That is the situation here.

Consequently, some objective evidence or proof of the Plaintiff’s claims is necessary in this case. [ 29 ] Consistently from 2002 to 2006, the Plaintiff effectively demonstrated reduced range of motion particularly with extending his neck (tipping his head back). Dr. McMillan, Dr. Russell, Mr. Mierzejewski and Dr. Shumborski all confirm that fact. The Defendant agreed that determining the limitations of motion are to some degree subjective, as the doctor measuring the range of motion must rely to some extent on the Plaintiff’s representation.

However, objective confirmation of the Plaintiff’s subjective experience can be obtained through observing the reactions and motion demonstrated by the Plaintiff in unguarded situations. Most of the doctors who measured the Plaintiff’s range of motion concluded that, in unguarded observation, the Plaintiff has greater range of motion than measured in guarded moments, although none could confirm that the Plaintiff had full extension of his cervical spine. [ 30 ] Increased range of motion by the Plaintiff was also demonstrated by the surveillance video.

That video, however, does not specifically confirm that the Plaintiff was able to extend his neck more than he would want this Court to believe. [ 31 ] The Plaintiff’s restriction in terms of extending his neck continues to a lesser degree to the present. Dr. Naidu, Dr. Apel, Dr. Hu, Mr. McGregor and Dr.

Wilson confirm as much. [ 32 ] It appears that there was cervical tenderness or palpation for a period, but in the last number of years, tenderness or palpation was not always present, and if found, was not consistent. [ 33 ] In the result, one can objectively confirm that the Plaintiff had a limitation of cervical extension which has improved marginally, but remains.

He also has had some tenderness on palpation of the musculature in his neck and shoulder area for some time, but that cannot be confirmed any longer. [ 34 ] It is reasonable and logical to partially attribute those deficits and injuries to the accident. However, as I have said, the Defendant’s position is that the accident could not have caused (or be solely responsible for) these injuries. [ 35 ] This was a very low speed collision. On the evidence before me, the Defendant may have been travelling at a speed of at most 13 kph at impact. The collision severity factor was no more than 3 kph.

I accept the evidence presented to me by James Graham and Craig Good. It is extremely unlikely that such a collision would have caused injury. Of course, every accident is different and while injury is unlikely at such a low speed, the whole of the evidence must be considered to determine if injury did, in fact, occur. Mr. Kohlendorfer had no family doctor and had no real medical history. His last health concerns occurred years before this accident and had been dealt with by the Workers’ Compensation Board [WCB].

The fact that he called the Alberta Motor Association [AMA] on the day of the accident, and again on Monday, January 7, 2002, because of his pain indicates the truth in his complaint. I accept his evidence that he was hurt. There is no basis upon which I could conclude that Mr. Kohlendorfer saw an opportunity to make a buck and pounced on it. The problem lies with reconciling the nature of the low speed collision and the scope of injury and pain that the Plaintiff claims. [ 36 ] In that context, the Plaintiff’s course of action following the accident makes perfect sense.

He waited for AMA to find him a doctor to fix his problem, as he had with the WCB. Meanwhile, he needed relief. He had heard about the natural mineral hot springs and, by virtue of his personality, the natural curative properties of a hot spring made sense to him. The fact that he felt better and returned to work also makes sense. Why he went to see a lawyer was not explained, and seems out of character for him; but the fact that he did is certainly no reason to doubt his credibility. Similarly, the fact that he saw Dr. Shumborski is also no reason to doubt his evidence.

He was hurt; AMA hadn’t helped him; so, he saw a lawyer, then Dr. Shumborski. [ 37 ] From March 2002 until September 2002, the Plaintiff went from 90% range of motion with pain to 100% in slight pain. He reported on October 25, 2002 that he no longer had headaches. Although his range of motion relative to neck extension was normal, it was only achieved with pain. In my view, there is nothing unusual or suspicious in most of that. Having concluded as I have, that the Plaintiff was injured in the accident despite the low speed, a recovery period was to be expected.

Indeed, as the Defendant pointed out, and most of the doctors confirmed, a period of recovery for soft tissue neck injury or WAD is in the range of 12 weeks to a year. [ 38 ] What is unusual is that although the Plaintiff was improving as would be expected, on December 30, 2002, Dr. Shumborski’s chart indicates the Plaintiff’s neck was still sore and “very tender.” At his visit on that date to Dr. Shumborski’s office, approximately 12 months post-accident, the Plaintiff told Dr. Shumborski that he was getting worse. Why?

In the circumstances of the evidence regarding the low speed collision and the reported course of medical improvements from March 2002, through October 25, 2002, there is no medical explanation for the Plaintiff to report to Dr. Shumborski that he is very tender or suggest he is getting worse. Especially not when he testified that the hot springs “therapy” was a real help to him. [ 39 ] Significantly, after the January 5, 2002 accident, the Plaintiff and his wife drove to Nevada and spent two weeks at the hot spring there. At the time of the accident, he was working as a relief rig manager.

However, because of the accident and his trip to the Nevada Hot Springs seeking relief, he lost the Northwest Territories job with Wilson Drilling Ltd. The Plaintiff subsequently returned to work with Wilson Drilling Ltd. on January 31, 2002, as a relief driller in Hinton. He stayed in that position until mid-March, 2002, when

he travelled back to the Nevada hot springs for two weeks. When the Plaintiff returned from Nevada, he worked for Wilson Drilling Ltd. until the spring break-up in April, 2002. The Plaintiff’s evidence is that he worked with Wilson Drilling Ltd either until April 19, 2002 (direct examination) or April 27, 2002 (cross-examination); however, his Record of Employment for Wilson Drilling indicates April 21, 2002. [ 40 ] He did not get a call back from Wilson Drilling after the 2002 spring break-up, as he had expected. He did not work for the rest of 2002.

I do not know whether that was because he did not look for work of because he was trying to get better. Nonetheless, I do know that he made another 3-week trip to the Nevada hot springs in the fall of 2002. [ 41 ] This is a convenient point to resolve the dispute as to the Plaintiff’s employment. He had been a rig manager or tool push in the past. However, he took 2 years off to prospect, when he returned in 2001, he was a relief rig manager and a driller. There is no evidence before me to suggest that he would have become a full-time rig manager or continue as a relief manager.

I have concluded that the Plaintiff’s history suggests he would be employed as a driller, which was the case for 2002 through to April 19, 2004, when he stopped working for Nabors Drilling; he started working with Nabors Drilling on January 9, 2003. Although the duties of rig manager were not explained, I think the title implies less hands-on and more of a management type role. On the other hand, being a driller is hands on, physical, dangerous and involves neck extension because of the need to look up multiple meters to observe the mechanical process associated with operating a drilling rig.

That is obviously significant for the Plaintiff. [ 42 ] The fact that the Plaintiff was not working, and therefore not forced to extend his neck, causes me to discount work as the reason for the Plaintiff’s reported deterioration in 2002. [ 43 ] In 2002, the Plaintiff first saw Dr. Blair Schmaus, who was qualified as an expert in chiropractic treatment. His chart noted 5 visits by the Plaintiff between July 3 and August 30, 2002, and suggested that the Plaintiff was benefitting from the treatments received as well as improving. Dr.

Schmaus did not see the Plaintiff again until May 2003, when the Plaintiff complained about the nodule in his neck (which remains today). Dr. Schmaus did not see a need to treat the Plaintiff at that time. [ 44 ] The Plaintiff was also assessed by Dr. Russell, an orthopaedic surgeon, in May 2002. Dr. Russell concluded that the Plaintiff had a disability which could improve with treatment. As I said, Dr. Schmaus’ evidence confirmed that prognostication as do the notes of Dr. Shumborski. Dr.

Russell was also unable to produce pain on palpation of the Plaintiff’s neck and upper back. [ 45 ] The picture is consistent. The Plaintiff was hurt, found relief in heat and rest, improved with treatment, and appeared to be on the road to what appears to be in the range of “normal” recovery. [ 46 ] The Plaintiff obtained no further treatment, except during the May 2003 visit to Dr. Schmaus, until April 2005. The Plaintiff’s evidence was that he could not afford treatment, and none was recommended. However, in 2003, he earned $74,000.

Given the improvement he had experienced, the Defendant argues that, if he was indeed suffering he would have and should have pursued treatment. The fact he did not, the Defendant argues, indicates he was not really hurt and that he is not being truthful. Alternatively, if he had pursued treatment, the Plaintiff would not have continued to experience the problems he claims he had. [ 47 ] I think the Defendant is right on both counts. The Plaintiff has convinced himself that the ongoing problems he believes he has are related to this extremely low impact vehicle accident.

Just as he did not accept that his truck was properly repaired, he has attributed all his perceived problems to the accident. [ 48 ] There are simply too many reasons to reject the Plaintiff’s claims. They are as follows: (

i) He was getting better from what had to have been a minor occurrence, as the literature predicted. Then inexplicably he regressed. (ii) He made a number of extraordinary claims and complaints which were largely recognized by the doctors as inexplicable; an example is what was reported by Dr. Hu in July 2015 as follows: Mr. Kohlendorfer described that he had a number of episodes of “paralysis”. He described falling at least twice, but in fact restated that he had fallen 10 times from the time of the incident onwards. In describing the symptoms, Mr.

Kohlendorfer described the falls as being related to severe pain in the neck and upper back region. As a result of this severe pain, he would “lose control of his body”. As soon as he fell, the symptoms would abate, and he does not recall having any numbness or tingling related to these incidents. Mr. Kohlendorfer also was quite vocal about the effects of prior assessments performed for this particular incident. He described attending Dr. Vincelli and having some manner of manipulation or pressure applied to his lower cervical region.

This was described as the cause of a severe amount of pain which resulted in an accentuation of local pressure in the lower neck region, and a permanent worsening of a lump in the lower neck region. This was associated with throbbing pain symptoms. Mr. Kohlendorfer also described that when he attended Dr. McMillan for an assessment, there was some manner of neck manipulation, and he has been experiencing burning pain symptoms in that region since the time of the incident. Mr. Kohlendorfer also described attending Dr.

Gordon Russell, and he had some manner of examination which caused rotation and loading of the neck. Mr. Kohlendorfer believes that this was when the lump originated in this neck. Furthermore, Mr. Kohlendorfer recalls that the assessment done by Dr. Vincelli was approximately August 2 years ago, and since then he has been steadily going downhill. (iii) When specifically tested for range of motion, his measurements were often less than was apparent while being observed doing other things in the course of the examination.

(iv) His range of motion was inconsistent. (

v) He actively resisted Dr. Apel’s attempts to passively measure his range of motion. A rather difficult thing to do to for someone who claims pain and headaches. Notably, he did not complain that he was in pain after Dr. Apel’s assessment of him. (vi) His symptomatology has progressed from neck pain and headaches to shoulders and upper back; again, an unusual course of development. (vii) He had no demonstrated tender points or trigger points in Dr.

Apel’s examination, despite having maintained that he was no better off then (in 2011) than he was after the 2002 accident. (viii) He did not pursue further treatment despite having benefitted from chiropractic care in 2002. (ix) He claimed that his jaw pain was related to the accident, despite having denied any problems in his visit to his dentist fourteen months after the accident. (

x) He drives long distances, frequently, to Nevada and the Northwest Territories. (xi) He continues to prospect and engage in physical labor, despite his reported functional limitations. [ 49 ] Against the foregoing concerns, are the reports of Dr. Russell and Dr. McMillan. Both observed restricted range of motion, particularly with extension. In my view, that is not a function of continuing injury, rather, it is a function of lack of treatment.

The Plaintiff’s failure to engage in active therapeutic efforts to recover is, at least, as likely an explanation for the restriction found as is the accident. [ 50 ] It is also reasonable to conclude that the degenerative changes in Mr. Kohlendorfer’s cervical spine and his age are, potentially, the reasons for his continuing complaints. Dr. Hu offered this: (p. 16) It is likely that Mr. Kohlendorfer will continue to have symptoms on a waxing and waning basis. The symptoms in the spinal column represent the progression of degenerative changes, and these symptoms that Mr.

Kohlendorfer reports are consistent with his chronological age. The likelihood of having neck or back pain symptoms is a direct relationship to age, and it would be unusual if Mr. Kohlendorfer did not have pain symptoms in these regions.

I do not believe that the motor vehicle collision had any deleterious effects on the progression of the aging process, and it is more likely than not, that current symptoms represent a continuation of the normal aging process. [ 51 ] In saying that the Plaintiff’s degenerative changes and age are potential factors in his ongoing complaints, I am cognisant of the fact that the Plaintiff did complain to AMA almost immediately after the accident. Thus, while Dr.

Hu’s understanding was that the Plaintiff had not sought treatment after the accident, that issue or situation does not appear to have been a primary factor in the conclusion reached by Dr. Hu. [ 52 ] In the end, the Plaintiff had the burden of proof and in cases such as this, where the injury claimed cannot be objectively confirmed, the Plaintiff’s credibility is critical to meeting that burden. In this case, I am not convinced that the Plaintiff’s continuing complaints are related to the accident.

Furthermore, I have concluded that the Plaintiff has wilfully exaggerated his conditions both with the medical professionals he saw and with me. His claim, in my view, can be attributed to the accident for a maximum period of a year. Beyond that, I agree with Dr. Hu and Dr. Apel, that the Plaintiff’s complaints, to the extent they are legitimate, are a function of the age of his body. In particular, the long standing deficit relating to Mr. Kohlendorfer’s hips, which caused his forward leaning posture and the resulting neck extension, as I understood Dr.

Hu, is reasonably suspected to be the cause of the Plaintiff’s complaints that are legitimate. [ 53 ] The Plaintiff’s counsel painted his client as an unsophisticated person who does not understand the system. That is not an accurate portrait. The Plaintiff knew to contact AMA for repairs to his vehicle and to seek medical assistance. He was capable of securing the insurance payment for the loan on his vehicle on the basis of disability. He explained a complicated government program that allowed him to take advantage of work done by others on the claims that he had purchased.

He is obviously a capable person. [ 54 ] As a result of the new minor injury regime in force in most provinces, there is not much current precedent to assist in assessing general damages.

Nevertheless, based upon the existing jurisprudence and allowing for inflation, I have concluded that an award of $23,000 as general damages is appropriate in the circumstances of this present case: Singh v Turna , 2003 ABQB 224 , 337 AR 192; Teichgraber v Galant , 2003 ABQB 58 , [2003] CarswellAlta 56; Lawson v Le , 2008 ABQB 275 , 452 AR 106; Morales v Nielsen , 2009 BCSC 1890 , 2009 CarswellBC 3773; and Bae v Vasquez , 2013 BCSC 542 , 2013 CarswellBC 802.

III. Temporomandibular Joint Issues [ 55 ] As is apparent, nothing has been awarded to the Plaintiff for his claim of Temporomandibular Joint Dysfunction [TMJD]. As I said earlier, I have discounted that claim. However, some further explanation is necessary. Dr. Thomas testified that individuals can end up with TMJD in the absence of trauma. He also testified that those persons who have TMJD as a result of rear-end flexion extension injury to the neck usually develop symptoms within 8 to 12 weeks. Plainly, the Plaintiff had no symptoms in that period. Further, Dr.

Thomas testified about a third category of persons who develop TMJD, those who have cervical issues and then eventually develop TMJD symptoms. He said that symptoms develop in those circumstances in 1 to 2 years. In this case, the Plaintiff expressly denied any symptoms 15 months post-accident and made no complaints of symptoms until almost 3 years post-accident. [ 56 ] In the circumstances, as I have said, I am not satisfied that the Plaintiff’s reported problems with his TMJ were caused by this accident. IV.

Remaining Claim [ 57 ] Given my conclusions, the Plaintiff’s claims for special damages and future care costs are dismissed. V. Income Loss A. Past [ 58 ] It is difficult to identify the Plaintiff’s income loss in 2002. He plainly lost approximately 6 weeks work in the period from the accident until spring break-up. However, although he did expect to get a call-back after the spring break-up, he did not.

Since he testified that, around this period of time, he did not tell prospective employers about his injuries, the explanations for not working the balance of 2002 are that there was no work available to him or he was not looking. I had the sense that he was focused on getting better and did not really start looking for work until the fall of 2002. In my view, therefore, the most sensible approach is to use his 2001 earnings as predictive of his 2002 earnings. In 2001, he earned $66,221.00. Therefore, since he actually earned $24,435.00 in 2002, his loss is $41,786.00. B.

Provisional Income Loss [ 59 ] Ordinarily, in cases such as this, it behooves the trial judge to make provisional findings relative to all heads of damage and, to the extent that there are findings of fact necessary to such claims, make those findings of fact. In this case, given my findings – including that a period of recovery for soft tissue neck injury or WAD is in the range of 12 weeks to a year – there is no wage or income loss after 2003. However, in keeping with usual practice, I will make the findings necessary to calculate the loss between 2003 and trial. [ 60 ] I was told that Mr.

Kohlendorfer intended to work on the rigs and prospect during his time off. By that, I think he meant he intended to follow the pattern he had demonstrated pre-accident. I think the evidence supports the conclusion that Mr. Kohlendorfer really had two jobs. He earned income from his oilfield employment and was prepared to earn no income while he pursued his dream of wealth from prospecting. I see no reason not to credit Mr. Kohlendorfer’s intent to continue as he had. The only limitations being himself and job availability. However, Dr.

Hu’s opinion that the forward posture of the Plaintiff would cause unnatural extension of the Plaintiff’s neck in order for him to achieve functional balance, when coupled with degenerative change, does suggest that Mr. Kohlendorfer future as a driller would have been compromised, in any event, even without the accident. [ 61 ] The prospect that Mr. Kohlendorfer may have moved back into the position of rig manager is a reasonable one, given his past history and the fact that he was in that role at the time of the accident, although only on a temporary basis.

Therefore, continuing as a driller for a period of a year or two, followed by becoming a rig manager, seems reasonable. However, neither Mr. Benning nor Dr. Jenkins prepared their reports based on those assumptions. Both assumed the Plaintiff would have continued as a driller. Dr. Jenkins predicted retirement at 70. I think it is more realistic that Mr. Kohlendorfer would have only continued past 65, if he was managing a rig. Drilling could reasonably be seen to be beyond Mr. Kohlendorfer’s abilities by the time he was 65. That is certainly in keeping with statistics provided to me.

I would have assessed his loss based on becoming a rig manager in 2004 and continuing on as such until he turned 65. That reflects the health limitations that the Plaintiff had. However, because of his passion for prospecting, I would have discounted his income for the entire period by 25% to reflect his love of prospecting and the loss of income associated with pursuing that enterprise. [ 62 ] In my view, Mr. Benning’s assessment of the annual income is more accurate, and I accept his opinions on the subject. In terms of negative labor market contingencies, I think Dr. Jenkins has it right.

If I were predicting the future, I would be more inclined to adopt Mr. Benning’s approach on this subject, but we are predicting the past and I think the census survey results adequately reflect the negative contingencies actually experienced by the average male driller or rig manager of Mr. Kohlendorfer’s age. Therefore, Dr. Jenkins allowance for risk of “future” disability of 0.59% per year appears to me to be reasonable. [ 63 ] The one remaining issue that requires resolution in Mr.

Kohlendorfer’s claim for past income loss is his resignation from Paladin Security [Paladin], where he worked between December 12, 2007 and June 14, 2009. It is clear that he resigned at the suggestion of his employer. It is also clear that the choice was forced upon him when he took time off to prospect having just returned from a hot springs session in Nevada. He testified that the deal he had with Paladin accommodated both, but Paladin, on the occasion of his resignation, refused to allow him the time off. His resignation was not because of the accident, it was because he wished to pursue his other interests.

Since the date of that resignation, all his efforts to obtain employment have been fruitless.

[ 64 ] In my view, by resigning, he broke the chain of causation; and the loss he suffered regarding that part of his income, from the point of resignation forward, is his sole responsibility. However, the income he was earning at Paladin was less than the income he averaged in the oil industry. The oil industry portion of his loss would have continued to accrue, even if he had not resigned from Paladin. That part of his loss continued to accrue up to the age of 65, in 2011. [ 65 ] Plainly, the Paladin income needs to be adjusted to reflect the growth of money and both positive and negative contingencies.

The base income is what he earned for 2008, while working at Paladin. [ 66 ] As well, it is apparent that his employment with Paladin was not full time as the Plaintiff wished to continue to prospect. There was no evidence to suggest any reason why the Plaintiff could not have worked full time, and I think it is reasonable to assume that he could. [ 67 ] As a result, his actual income for 2008 must be considered to have been doubled what he reported or $35,961.

Therefore, that is the base income which must be deducted after adjustment for positive and negative contingencies from his income loss claim for the period beyond 2003. VI. Interest [ 68 ] The Defendant argued that the delay in prosecuting this action should result in a reduction of the interest ordinarily awarded. I disagree. The delay here is ridiculous. However, it does not appear that the Defendant was particularly cooperative. Furthermore, there were a number of different legal counsel involved on both sides.

While much of the delay is the responsibility of the Plaintiff, with some cooperation from the Defendant this trial could have been dealt with much sooner than it was. Therefore prejudgment interest is payable for the whole period. VII. Conclusion [ 69 ] The Plaintiff is awarded $23,000 for general damages and income loss of $41,786 and prejudgment interest. The parties may address the question of costs on appointment. Heard from November 14 th – December 2 nd , 2016. Dated at the City of Edmonton, Alberta this 15 th day of February, 2017. T.D. Clackson J.C.Q.B.A. Appearances: Mr. H. Berndt for the Plaintiffs Mr.

P. Stein, Q.C. and Ms. T.A. Frizzell for the Defendants _______________________________________________________

Corrigendum of the Decision of The Honourable Mr. Justice T.D. Clackson _______________________________________________________ Please note the citation line has been corrected to read: Citation: Kohlendorfer v Northcott, 2017 ABQB 114 Also, note that the date heard has been changed to read: Heard from November 14 th – December 2 nd , 2016 .