ICBC Law

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$75,000 Non-Pecuniary Assessment For Labral Tear

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for various soft tissue injuries and a labral tear caused by a motor vehicle collision.

In this week’s case (Foster v. Kindlan and Pineau) the Plaintiff claimed damages from two motor vehicle collisions, the first in 2007, the second in 2009.  Fault was not at issue in either claim.  These collisions caused various soft tissue injuries and a labral tear which continued to pose difficulties for the plaintiff at the time of trial and were expected to continue into the future.  In assessing non-pecuniary damages at $75,000 Mr. Justice Savage provided the following reasons:

[64] In this case the Plaintiff suffered soft tissue injuries to the neck, back, knee, and shoulder and a labral tear to her left hip.  Prior to the 2007 Accidents she led a physically demanding lifestyle working as a fitness instructor, and had a high level of physical fitness.  She was, however, transitioning out of this employment at the time of the 2007 Accident, by training for career as an LPN that would not involve fitness as part of her daily employment activity.

[65] Ms. Foster was not entirely asymptomatic from her 2005 Accident at the time of the 2007 Accident.  It is also apparent that she has had ongoing back issues that required periodic chiropractic treatment unrelated to the 2007 Accident and 2009 Accident.  She also had an earlier knee injury that required surgery.  These factors affect the “original position” to which Ms. Foster must be returned by the award of damages.

[66] I find it unlikely that Ms. Foster will have surgery to the labral tear, based on the opinions of Dr. O’Connor and Dr. Gilbart, whose opinions are to be preferred over that of Dr. Sam.  Dr. O’Connor and Dr. Gilbart have more specialized experience in this area than Dr. Sam, who is a general family physician.  While Ms. Foster experiences pain during her physically demanding employment activities, she is able to take extended (one week or longer) motorcycle trips without any impairment that is apparent to her companions.  The videotape evidence shows a cautious rider but not one prevented from enjoying this pursuit.

[67] Ms. Foster has suffered emotionally during periods where she has not been able to work.  However, her emotional state has not prevented her from taking foreign holidays and motorcycle trips to the Sunshine Coast, Tofino, the East Kootenays and Idaho, and local trips to Chilliwack, Harrison Hot Springs and the Tri-cities area.  Moreover, her emotional issues have had a variety of causes, including relationship issues which are admittedly unrelated to the two accidents.

[68] I have reviewed the cases provided by counsel.  There are aspects of those cases that are helpful, but there are also differences that prevent direct application.  The Defendants’ cases generally involve less seriously injured persons.  Many of the cases submitted by the Plaintiff involve a prognosis for chronic daily pain.  That is not the prognosis for Ms. Foster.  In the circumstances, I award $75,000 in non-pecuniary damages.

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