Case Bites for January 29, 2024

Last week’s Court Rulings from the Alberta Court of King’s Bench, Court of Appeal and SCC.

Edited by Amanda Kostek and Christie Dewar
Armbruster v. Nutting, 2024 ABKB 36
Trial | Bodily Injury | Failure to Mitigate

This was a trial decision for bodily injuries arising out of a motor vehicle accident where the following damages were awarded:

  • General damages $70,000;
  • Special damages $51,898;
  • Future care $30,000;
  • Crown claim $7,765.
  • Total $159,663 less 40% for failure to mitigate.

The Plaintiff alleged ongoing chronic pain, psychological issues, and TMJ injuries that were so debilitating that it led to two medical leaves from his employment. In contrast, the Defence position was that he exaggerated his symptoms and his injuries should have resolved within 6-12 months of the collision.

At the time of the collision, the Plaintiff operated through a subcontracting company as a business development officer. He testified that his contract was terminated due to poor performance, but this was not substantiated by independent evidence. Instead, the termination letter gave no reason or cause for termination.

Within a few months of his termination, he obtained a new job with a better salary at Mark’s Hauling Ltd. Shortly thereafter he went on a four month medical leave, but this leave was not supported by medical evidence. The issue before the court was whether he actually went on a medical leave or simply stopped working. The evidence suggested he requested a note for medical leave after he was off work. The Court noted credibility issues under oath and commented that the “Plaintiff has significantly misrepresented the situation under oath. He has also done so, although not under oath, when meeting with his experts.” Since the reports were relied on by his economist, those assumptions were rejected. The Court went on to say that the Plaintiff gave “false testimony and assertions designed to help advance his claim.” Ultimately, the Court said the following:

[44]        If all his varying and ever changing explanations do not demonstrate a pattern of deceit, then they must surely lead to no other conclusion than that he is neither credible nor reliable, when recounting his past.  Either way, the court will not make findings based on his testimony absent confirmatory or corroborative evidence.

Social media evidence was tendered at Trial. It demonstrated that he was “excited, engaged, and enthusiastic when dealing with other people.” In addition, he organized golf tournaments, and posted a series of You Tube videos entitled “Coaches Corner” in 2020 and 2021. He hosted 8 videos each lasting  1 – 1.5 hours with 6-10 people participating in each video on the topic of coaching hockey players. The videos demonstrated he was able to speak clearly, organize and moderate discussion, demonstrate good recall- all with no signs of discomfort. He also posted two videos outlining his personal, political and economic views. He was focused, never at a loss, and did not demonstrate any discomfort. At least one video was recorded while he was driving. This later video played a role in the Court’s rejection of his PTSD diagnosis, because the Court was not satisfied that he would have recorded a video while driving if he had such a diagnosis.

The Court drew an adverse inference from the Plaintiff’s failure to call witnesses from his employment who could speak to his poor work performance.

In terms of general damages, the Court noted that this was “not much more than a glorified fender bender” notwithstanding that both vehicles were written off. The Court accepted that the Plaintiff suffered whiplash, minor concussion, long term neck and back pain, as well as headaches that waxed and waned in the following years. However, his injuries should have resolved no later than 12 months after the collision. As a result, although the Court awarded $70,000 in generals damages, it reduced all head of damage by 40% for failure to mitigate.