Imagine you are walking along a public sidewalk next to someone’s home and you happen to slip and fall on the ice and injure yourself. Who can you sue as a result of this slip and fall?
Please note: The information provided on this website does not constitute medical or legal advice and should not be construed as such. The lawyers and staff at Moustarah & Company are not trained medical professionals and do not hold themselves out to be such. If you are suffering from an injury, whether chronic pain or otherwise, please contact your doctor or medical care provider.
What is chronic pain?
Pain that lasts and interferes with a person’s quality and enjoyment of life over time can be considered chronic pain.
Experts vary on how long the pain has to last before it is considered chronic. The most common durations used to define whether pain is of a chronic nature are 3 or 6 months (as set out by Turk and Okifuji in “Pain terms and taxonomies”, in Bonica’s Management of Pain (3rd ed.), pages 18–25). Others classify chronic pain differently and apply different time frames to distinguish between acute and chronic pain. Depending on the expert or taxonomy, pain that lasts for more than a certain number of months can be considered chronic.
Chronic pain can come in many different forms. A person may suffer from chronic back pain, chronic jaw pain, chronic neck pain, and so on. Almost any type of pain has the potential to become chronic in nature.
People may develop chronic pain as a result of a number of injuries or conditions. Persons suffering from long-term pain can speak with their doctor about their symptoms.
What is Chronic Pain Syndrome?
Some people who suffer from chronic pain can develop Chronic Pain Syndrome (“CPS”) or other similar pain syndromes or disorders. Often, CPS is characterized as going beyond symptoms of physical pain alone, and may include depression, anxiety, or other psychological symptoms or elements.
Persons suffering from pain or other symptoms can speak with their doctor about their symptoms.
What is fibromyalgia?
It may be helpful to think of fibromyalgia as a specific subset of the general category of chronic pain. According to the Arthritis Society of Canada, fibromyalgia is a
nervous system condition that causes chronic pain throughout the body
Please note: The information provided on this website does not constitute medical or legal advice and should not be construed as such. The lawyers and staff and Moustarah & Company are not trained medical professionals and do not hold themselves out to be such. If you are suffering from an injury, whether TMJ or otherwise, please contact your doctor or medical care provider.
What is the Temporomandibular Joint?
The temporomandibular joint, or the TMJ, is the joint located on either side of the head, in front of the ears. This joint connects the lower jawbone (the “mandible”) to the temporal bone of the skull. The TMJ is a flexible joint and is responsible for controlling jaw movements during chewing, talking and yawning.
Types of TMJ Injuries
According to a 2017 publication by the
U.S. National Institute of Dental and Craniofacial Research and the Office of Research on Women’s Health
What is the duty to mitigate?
Generally speaking, there is a principle in law that injured persons must take all reasonable steps to reduce the negative consequences of their injuries and to prevent the accumulation of losses. An injured person must facilitate their own recovery and take all reasonable steps towards minimizing their losses – whether those be physical, psychological, emotional or financial. This is known as the duty to mitigate.
While it is called the duty to mitigate, it is not, strictly speaking, a “duty” because the mere failure to mitigate is not actionable on its own. Rather, mitigation is a partial defence. A wrongdoer or Defendant may argue that while their negligence or other tortious conduct may have caused the injured person’s injuries, they should not be held fully responsible for the injured person’s losses if the injured person failed to mitigate. The legal onus is on the wrongdoer or Defendant to prove that the injured person failed to mitigate.
For example, in Janiak v Ippolito, 1985 SCC 62, the Court had to determine whether the injured person’s refusal to undergo a surgery to repair his spinal injury meant that he could not claim compensation from the Defendant for his financial losses as he was unable to work with his back injury. The onus was on the Defendant to prove that:
a) The plaintiff acted unreasonably in refusing to undergo the recommended treatment (surgery), AND
b) The extent to which the plaintiff’s damages would have been reduced had he acted reasonably.
What happens when an injured person fails to mitigate?
History of the Seatbelt Defence
There may be safety risks and legal consequences associated with failing to wear a seatbelt. Historically, one of these was the so-called “seatbelt defence.”
Ordinarily, an injured person is entitled to full compensation if they can establish the defendant’s negligence caused the accident, unless the defendant successfully argues a defence. A common defence for failing to wear a seatbelt in a motor vehicle accident was the “seatbelt defence.”
Before the Contributory Negligence Act was implemented, the “seatbelt defence” was a complete defence available to the defendant. If the defendant successfully established that the plaintiff’s injuries could have been prevented by wearing a seatbelt, the plaintiff would not receive a damages award. The courts were not willing to compensate plaintiffs who were held partially responsible for their own injuries. These plaintiffs had no recourse against a negligent defendant. This was essentially an “all or nothing” approach. An injured person was either entitled to compensation or their entire claim failed.
The law has since shifted and no longer takes such a harsh stance against the injured person. Under the Contributory Negligence Act, the injured person can recover damages even if they are held partially responsible for their injuries. The “seatbelt defence” is now considered a partial defence and falls under the category of contributory negligence.
What is Contributory Negligence?
Contributory negligence is based on the principle that everyone has a duty to take reasonable care for their own safety. If an injured person engages in unreasonable conduct, such as failing to wear a seatbelt, and thus contributes to their own injuries, they are said to be “contributorily negligent.” That is, their own “negligence”, in failing to take reasonable steps to ensure their own safety, contributed to their injuries and the damages they suffered.
For example, a court could rule that a person is partly responsible for their own injuries if they suffered from injuries that could have been prevented or reduced by wearing a seatbelt, such as shoulder injuries and head injuries.
This is the scenario that occurred in
Heller v Martens, 2002 ABCA 122
What is the cap and where does it come from?
The Minor Injury Regulation, introduced in 2004 by the Alberta Government, limits compensation for less severe injuries on non-pecuniary general damages (pain and suffering). The regulation places a “cap” on how much an injured person with minor injuries can potentially recover in general damages.
What type of injuries are capped?
The Minor Injury Regulation applies to injuries caused by accidents involving automobiles.
The compensation that can be claimed for pain and suffering as a result of minor injuries is limited by the cap. Minor injuries include soft tissue injuries (such as some strains, sprains, and whiplash associated disorders), some TMJ injuries, and some psychological conditions or symptoms arising from sprains, strains or whiplash injuries. A soft tissue injury includes damage to the muscles, ligaments and tendons throughout the body that do not affect a person’s employment, leisure or other activities on a long-term basis.
The Minor Injury Regulation does not place a cap on compensation for medical expenses, loss of housekeeping capacity, cost of care, or lost wages.
How much is the cap?
This means that if you are
involved in a motor vehicle accident