This is a fantastic decision that proceeded to trial in early 2019 and was scheduled over 4 weeks.  It is a decision from the Court of Queen’s Bench of Alberta and was recently published as Warner v. Calgary Regional Health Authority (Rockyview General Hospital), 2020 ABQB 172 (CanLII).

It is educational and will cover the following topics: 

1. Complex Regional Pain Syndrome;
2. Causation;
3. Independent intervening events;
4. The principle of “thin skull” vs. “crumbling skull”; and
5. Future Cost of Care.

Complex Regional Pain Syndrome

The Plaintiff in this case was for a number of years receiving long term disability  benefits for a kidney condition for which she was hospitalized.  While in hospital she developed complex regional pain syndrome after two nurses dropped her in the process of being transferred from a commode to the hospital bed in February of 2005. 

The standard practice for this particular patient was that three nurses were required to transfer her when being moved.  On this particular day, there were not enough nurses to meet this requirement. While the Defendants admitted they owed a duty of care to the Plaintiff and the standard of care had been breached, quantum of this case was in dispute.

During the transfer, the Plaintiff’s left hip struck the guardrail of the bed.  The top of her left foot also struck either the guardrail or mattress or both.  The Plaintiff immediately developed nerve pain running up and down her leg.  Her foot also became internally rotated, red and inflamed.  This resulted in severe pain.  She was unable to move her left leg or her left foot and underwent surgery to correct the internal rotation of her left foot.  She undergoes nerve blocks.  Her pain levels are as high as 10 out of 10.  The Plaintiff is unable to use her left leg and uses a wheelchair and crutches to move around.  Her quality of life has been severely impacted.  She requires assistance to move in different positions, with bathing and also when she uses the toilet.  CRPS has resulted in a permanent disability and the Plaintiff has not been able to work since this incident.  Her home has been renovated and altered for her permanent care and she has a nurse to assist with her care during the week. 

I have written several articles on the topic of Complex Regional Pain Syndrome and as the title of the syndrome suggests, it is complex.  For ease of reference, I quote my articles on this specific topic:

1. Symptoms, criteria and treatment of complex regional pain syndrome (“CRPS”);
2. What do we know about complex regional pain syndrome (“CRPS”) and systemic CRPS?

For anyone who suffers with CRPS, it is a debilitating chronic pain condition.  This is clearly established in this case, with damages being awarded in the sum of $1,572,536.06.

The breakdown of the awarded damages are noted:

1.    General damages for non-pecuniary loss – $234,000.00 plus interest under the Judgment Interest Act, RSA 2000, c J-1.
2.    Future loss of earning capacity – $50,000.00 plus applicable interest.  
3.    Future care costs – $1,019,020.11 plus applicable interest.
4.    Special damages – $199,515.95 plus applicable interest.
5.    In trust claim for Mr. Warner – $70,000.00 plus applicable interest.

The total damages owed is:  $1,572,536.06

Causation

Causation was a major factor in this case, and a complex one.  The onus of proof lies with the Plaintiff.  Let’s review the law on the topic of causation, and if you have not reviewed these leading cases, a review of them is recommended:

The Plaintiff does not need to prove that the negligence was the sole cause of the injuries: Clements v Clements, 2012 SCC 32 at paras 7-8 [Clements]; Athey v Leonati, 1996 CanLII 183 (SCC), [1996] 3 SCR 458 at paras 13 & 17, 140 DLR (4^th) 235 [Athey].

The relevant test to assess causation is whether the plaintiff’s loss would have occurred but for the tortfeasor’s negligence: Clements at para 8. In Resurfice Corp v Hanke, 2007 SCC 7, the Court clarified that the but for test recognizes that compensation for negligence should only be made “where a substantial connection between the injury and defendant’s conduct is present”: at para 23.

The Court accepted the evidence of the Plaintiff and causation has been established.  In this case, the Plaintiff was deemed to be credible and an honest witness.  The Court accepted her testimony and concluded:  “I am satisfied that Ms. Warner has proven on a balance of probabilities that but for the Transfer Accident, she would not have suffered the injuries to her left foot and to her left leg, including the paralysis and CRPS; and the general weakening of her functionality and the muscle and joint tightness associated with the use of a wheelchair.”

A few points to note:

1. The court agreed that the symptoms were unusual;
2. The pain symptoms are subjective, however, the Plaintiff was credible (always helpful);
3. The severe pain that she described was much different than anything she experienced before;
4. The witnesses, including experts, also believed the Plaintiff;
5. The court attributed the Plaintiff’s inability to use her left leg and foot due to the paralysis and pain to the transfer accident;
6. CRPS may be caused by trauma, however slight, including the psychology of the patient;
7. The expert in this case was certain that the injury to the left foot was a result of trauma that had set off the CRPS;
8. The expert in this case described this injury as a process which, if not treated immediately and aggressively, would result in drastic consequences;
9. The expert in this case was of the opinion that this injury had been drastically undertreated;
10. The expert opined that he was unable to “stave off the ultimate consequence” of a useless left foot and the resulting paralysis.

Independent Intervening Events

There are defences that are raised to reduce an award of damages and in this case the defence argued that there were two intervening events that significantly worsened the Plaintiff’s symptoms and therefore, there should be a substantial reduction of damages.

In order to succeed in such a reduction, the onus of proof of this argument lies with the Defendants.  An independent intervening event is an event that is unrelated to the incident that caused the injury (or the “tort”).  The independent intervening tort occurs after the Plaintiff has suffered the subject injury that the claim is about and the argument is that from that point forward the damages should be reduced. 

These are the cases that were referenced in this case on this subject:

A finding of an independent intervening event does not necessarily result in a break in the chain of causation and a finding of no liability: see Jobling v Associated Dairies Ltd, [1981] 2 All ER 752 (HL) [Jobling]; see also Penner v Mitchell (1978), 1978 ALTASCAD 201 (CanLII), 89 DLR (3d) 343 (ABCA) [Penner]. As noted in Athey, an independent intervening event can result in a reduction of damages, which reflects the impact of the event and upholds the principle that a defendant must return the plaintiff to their original position: at paras 31-33, citing Jobling and Penner.

When assessing this argument, here is a helpful quote from this decision:

To determine whether there are independent intervening events that should result in a reduction of damages, I must consider Ms. Warner’s position before and after the Transfer Accident, since it is the difference in these positions that make up Ms. Warner’s loss: Athey at para 32

The two intervening events that result post the transfer accident was an infection “C. Difficile” and two “Handi-bus accidents”.

The Court accepted that the C. Difficile was an independent intervening event  and assessed this to be a 10% reduction of the award of damages.

The Court was not prepared to reduce damages as a result of the two Handi-bus accidents as these were considered to be remote and unforesseable incidents that were minor and did not worsen the functional ability of the Plaintiff.  These independent intervening events did not affect the Plaintiff’s original position or injured position and there was no reduction granted.

Thin Skull v. Crumbling Skull

We will review the law referenced in regards to the principle of thin skull vs. crumbling skull.  The defence argument of crumbling skull is often raised.  If successful in proving that this case falls under the principle of crumbling skull, the Court will reduce the damages.

It is important to pay close attention to the pre-existing injuries or pre-existing psychological conditions of the Plaintiff as these are raised to argue crumbling skull.  The Plaintiff in this case argued that this case falls under the “thin skull rule.”

Let’s review the difference between the thin skull principle and the crumbling skull principle as there is at times confusion between these important principles.

I will quote directly from this case:

The thin-skull victim is one whose condition was stable and but for the accident, would have remained stable: Athey at paras 34-35. Under the thin skull rule, the defendant must take the plaintiff as they are found and compensate them accordingly: Athey at para 47; Blackwater at para 79. The usual example of the thin skull victim is that a plaintiff is injured in an accident, and because the plaintiff had osteoporosis, the arm bone broke more severely than it would have otherwise and took longer to heal: Dushynski 1 at para 141. 

The crumbling-skull victim is one whose condition was deteriorating before the accident, and therefore the tortfeasor is not responsible for entire condition of the plaintiff after the accident: Athey at paras 34-35. Under the crumbling skull rule, the defendant does not need to compensate the plaintiff if they would have experienced the loss claimed despite the tortfeasor’s negligence: Athey at para 53. An extreme example of the crumbling skull victim is that a plaintiff has a severely infected thumb, is then involved in an accident causing the thumb to be severed, but medical evidence shows that the thumb was so infected it would have been amputated in any event: Dushynski 1 at para 140. 

The Court of Appeal in Dushynski 2 clarified the difference between the thin skull and crumbling skull rule at para 5:

Where the defendant’s action triggers injury in a plaintiff with a latent condition, the defendant will be liable for the full amount of the damages because he has injured a “thin skull” person. Where the plaintiff is asymptomatic but has a degenerative disease or has a symptomatic existing injury, the defendant is liable only for the further injury his actions cause to the “crumbling skull” plaintiff.

In Janiak v Ippolito, 1985 CanLII 62 (SCC), [1985] 1 SCR 146 at para 10,16 DLR (4^th) 1 [Janiak], the Supreme Court stated:

It is, of course, well established that damages for aggravated injuries consequent on some pre‑existing infirmity of the plaintiff are recoverable even if the infirmity is of a psychological nature: [citations omitted]. […] Indeed, it would seem that the (locus classicus) of the “thin skull rule”, the decision of Kennedy J. in Dulieu v. White & Sons, [1901] 2 K.B. 669, was in fact a case of aggravated injuries which were triggered by the impact of the defendant’s tortious act on the plaintiff’s inchoate psychological hypersensitivity.

The Court’s conclusion on this topic is noted:

There was no evidence or measurable risk that she would have experienced the left leg and foot paralysis, or the CRPS despite the Transfer Accident. Rather, her injuries were merely made more severe than they would have been otherwise been.

A tortfeasor must take the victim as found. As such, there are no grounds to reduce the damage award on the basis that Ms. Warner is a crumbling skull victim.

Future Cost of Care

The award under this head of damages was significant.  The total was $1,019,020.11 and I simply would like to underscore the test that has been noted and the referenced law on this topic.

The Court states:

The test for assessing future cost of care is whether the cost is “reasonably necessary to preserve the patient’s health”:

Sutherland v Encana Corporation, 2014 ABQB 182 at paras 623-625, citing Milina v Bartsch (1985) 1985 CanLII 179 (BC SC), 49 BCLR (2d) 33 (BCSC). The plaintiff must show there is “some evidentiary link drawn between the physician’s assessment of pain, disability, and recommended treatment and the care recommended by a qualified health care professional”: Gregory v Insurance Corporation of British Columbia, 2011 BCCA 144 at para 39.

While this was a substantial award, I will identify some of the items that were not accepted, thereby reducing the award under this specific head of damage:

1. home gym equipment;
2. landscaping;
3. the home renovation costs that were not shown to be associated with making the home more accessible;
4. the hourly replacement range for housekeeping services items were reduced;
5. A reduction was made to avoid double recovery from costs being paid by Alberta Health Services;
6. A reduction resulted to the amounts claimed for future considerations;
7. 20% reduction for health contingencies; and
8. A further 10% reduction for the independent intervening event of C. Difficile infection.

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