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$35,000 Non-Pecuniary Assessmemnt for Broken Wrist Caused by Assault

Reasons for judgement were released last week by the BC Supreme Court, Smithers Registry, assessing damages for injuries sustained in an assault.

In last week’s case (Abbott v. Glaim) the Plaintiff and Defendant were together at a house party when they became involved in a brief verbal confrontation.  Although the Court was presented with competing versions of what actually transpired the Court ultimately accepted that following the verbal exchange the Defendant “took both hands and pushed (the Plaintiff) backwards off the deck to the concrete pad below”.

The Plaintiff suffered various injuries including a fractured wrist.  In assessing non-pecuniary damages at $35,000 Mr. Justice Skolrood provided the following reasons:

[133]     It will be apparent from the above that I accept Joyce’s evidence that she was pushed down the stairs by Lucy…

[137]     The most significant injury suffered by Joyce was to her left wrist. An initial x-ray of the wrist, taken on March 26, 2006, did not reveal a fracture but a subsequent x-ray done on April 5, 2006 showed an undisplaced fracture of the distal radius in her left wrist. A cast was applied which she wore until May 19, 2006.

[138]     Joyce underwent physiotherapy treatments for her wrist beginning in early April 2006. She attended 22 physiotherapy sessions over the course of approximately one year. Joyce testified that her wrist continued to cause her pain and discomfort for a considerable period of time, particularly given that her work as a dental hygienist requires her to use both hands and wrists extensively. Joyce described her left hand as the “mirror hand” in that, because she is right handed, the left hand does things like holding the mirror and pulling the patient’s cheek back while the right hand uses the dental instruments.

[139]     As a result of her wrist injury, Joyce was away from work until June 2006. She initially tried to return to work on a full time basis but quickly scaled back from eight to six hours a day because of ongoing difficulties. It was not until August of 2007 that she was able to return to working an eight hour shift.

[140]     In addition to her wrist injury, Joyce testified that she began to experience regular headaches following the incident. Sometime in 2008, she attended a work seminar in Vancouver on temporomandibular joint (“TMJ”) issues which caused her to consider whether her headaches were the result of a TMJ disorder. She spoke to both her doctor and her dentist about this and she was sent for testing.

[141]     On February 11, 2009, she underwent a CT scan of her head which revealed “focal degenerative activity in the left mandibular condyle.”  The imaging report further notes: “This is an unusual location and raises the possibility that this could be a result of previous trauma.”

[142]     Joyce was examined by a dentist, Dr. Kinkela, on May 5 and June 16, 2009 and he found her symptoms to be consistent with trauma to her TM joints, “particularly an acceleration/deceleration type of an event that would illicit some soft tissue strain on the TMJ supporting structures and lead to a subsequent inflammatory response.”

[143]     However, Dr. Kinkela also noted that he did not have any of Joyce’s records pre-dating the incident so he could not conclusively state the cause of Joyce’s symptoms.

[144]     Joyce was prescribed both a night and a day guard to wear in her mouth which are intended to relieve pressure on the TMJ. Joyce testified that she wears the guards and that they have been useful in reducing the frequency of her headaches.

[145]     One other consequence of the incident according to Joyce has been an increased sense of anxiety and periodic panic attacks. Her doctor prescribed her an antidepressant that she continues to take as well as Ativan to deal with the panic attacks. Joyce testified that she no longer takes the Ativan as the frequency of her panic attacks has diminished.

[146]     Joyce testified to the significant emotional upset and embarrassment she experienced as a result of the incident, the effects of which continued to be felt at the time of trial. She said that she strives to be a role model for her 17 year old daughter, and in the community generally, and that it was traumatizing to be involved in an incident of this nature…

[156]     Taking account of all of the evidence and considering the factors articulated by the Court of Appeal in Stapley I award Joyce $35,000 under this head.

 

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