ICBC Law

BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Archive for the ‘ICBC Hip Injury Cases’ Category

$80,000 Non-Pecuniary Assessment for Chronic but Tolerable Hip Injury

June 16th, 2016

Adding to this site’s archived case summaries involving hip injuries, reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages of $80,000 for a chronic but tolerable hip injury.

In today’s case (Bramley v. Lee) the Plaintiff was involved in a 2009 T-bone collision.  The Defendant admitted fault.  The Plaintiff  suffered a variety of injuries attributable to the crash, the most serious of which was a hip injury which continued to pose symptoms at the time of trial.

In assessing non-pecuniary damages at $80,000 Madam Justice Warren provided the following reasons:

[95]        In summary, I make the following findings on causation and the current state of Mr. Bramley’s condition:

  • Mr. Bramley sustained an injury to the greater trochanteric area of his right hip in the accident, which developed into trochanteric pain syndrome.  He suffered from persistent, significant right hip pain until 2011, when the pain started to improve after the cortisone injection and the switch in medication to Vimovo.  The hip pain continued to improve after Mr. Bramley began strengthening exercises in 2013, leaving him with lingering symptoms that he has learned to live with.
  • Mr. Bramley suffered a soft tissue injury to his low back in the accident that initially resulted in significant low back pain extending into his right leg for several months, which gradually improved and ultimately resolved by early 2012.
  • Mr. Bramley suffered acid reflux symptoms as a result of medications he took for his hip and low back pain, which plagued him for about a year, in 2010 to 2011, until he switched medications and began taking Vimovo.
  • After the accident, the pain in Mr. Bramley’s hip began to interfere with his sleep.  This became progressively worse and eventually developed into a sleep disturbance that left him fatigued by late 2009.  There was no material improvement in his sleep until after the hip pain began to improve in 2011.  By early 2012, Mr. Bramley’s sleep had returned to normal.  Subsequently, Mr. Bramley suffered again from a significant sleep disturbance, but that was a result of sleep apnea and unrelated to the accident.

[113]     Awards of damages in other cases provide a guideline only.  Ultimately, each case turns on its own facts.  However, considering the cases referred to me and, in particularMcKenzie, which was decided three years ago, and Foster, which was decided four years ago, as well as the factors discussed in Stapley, I assess Mr. Bramley’s non-pecuniary damages at $80,000.


Bus Driver Liable For Accelerating Prior To Elderly Passenger Being Seated

July 5th, 2013

Adding to this site’s archives addressing bus driver liability for injuries to passengers, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with such an incident.

In this week’s case (Wong v. South Coast British Columbia Transportation Authority) the 81 year old plaintiff boarded a bus and was on her way to her seat when “the driver pulled into traffic in an abrupt motion“.    The Plaintiff fell and the driver then “abruptly braked“.  The Plaintiff’s hip was fractured in the incident.

Madam Justice Power found the bus driver was negligent in failing to wait until the elderly plaintiff was seated before accelerating.  In finding the driver partly liable for the incident the Court provided the following reasons:

[25]         In cross-examination, Mr. Pinnell conceded that “it was surprising” that Ms. Wong fell one foot from the fare box and that in the time prior to the fall, he never saw anyone coming down the aisle.  He acknowledged that if he had seen Ms. Wong, he would have told her to sit down.  He agreed that there is a policy and procedures manual for bus drivers and that there is a policy to allow elderly people a chance to sit before moving from a stopped location.  He acknowledged that at examination for discovery he did not think such a policy was in place…

[40]         In all of the circumstances of the case at bar, I am of the view that Mr. Pinnell breached the standard of care of a reasonably prudent bus driver by entering traffic without warning Ms. Wong that he was about to enter traffic and without doing an adequate visual check to ensure that Ms. Wong had returned to her seat or was securely standing.  In so doing he was also in breach of the Operators Policy and Procedures Manual, para 6.11.

The Plaintiff’s fractured hip required surgical intervention.  Despite having an ‘uneventful’ recovery she was left with permanent restrictions in mobility.   The Court went on -to assess non-pecuniary damages at $90,000 before slightly reducing these for contributory negligence.


$100,000 Non-Pecuniary Assessment For Pelvic Fracture Leading to Permanent Partial Disability

June 11th, 2013

Adding to this site’s archived cases addressing hip fracture non pecuniary awards, reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for such an injury.

In this week’s case (Dunn v. Lyon) the Plaintiff was injured in a motorcycle collision in 2008.  The Defendant was fully at fault for the incident.  The Plaintiff suffered from various orthopaedic injuries primarily involving her low back and hip.  These went on to pose long term difficulties disabling her from her usual occupation as a server. In assessing non-pecuniary damages at $100,0000 Madam Justice Baker provided the following reasons:

[27]         No medical witness testified at trial and the language used to describe Ms. Dunn’s injuries in the clinical records and in the three expert reports is technical, but counsel agreed that the primary injury can be most briefly described as multiple pelvic fractures.  The fractures and other injuries are summarized on page 4 of Ms. Bos’s report as follows:

- left superior and inferior pubic rami

- right pubic tubercle

- left sacral ala

- left L5 transverse process

- widening of the left SI joint

- displaced bony fragment in the left S3 sacra foramina

- right anterior acetabular rim fracture

- haematomata involving piriformis and iliopsoas muscles

[28]         I infer that none of the fractures, although serious, involved significant displacement, as Dr. O’Brian decided surgery was not required.  Ms. Dunn was admitted to an orthopedic ward for bed rest although permitted to sit up in a chair provided that she did not put weight on the left side of her pelvis.  Her pain was treated with a variety of drugs, including Morphine with Gravol, Oxycodone and Tylenol…

[59]         Not unexpectedly, Ms. Bos’s opinion is that Ms. Dunn does not have the capacity to work either as a waitress or a janitor due to limited standing tolerance, decreased walking speed and limited stooping/bending tolerance.  Her primary limitation, according to Ms. Bos, is “standing/weight bearing tolerance”.   Ms. Bos’s opinion is that Ms. Dunn would benefit from vocational testing and assistance with job search…

[94]         Having considered the authorities referred to and comparing the situations of the plaintiffs in those cases to that of Ms. Dunn, I award $100,000 for non-pecuniary damages.


The Death of the LVI Program?

April 24th, 2013

I have it on good authority that ICBC’s Low Velocity Impact Program is being largely scrapped.  Instead of the conventional LVI denials for collisions with under $2,000 of vehicle damage, I am informed that ICBC will now only deny claims under the LVI policy in cases where vehicle damage is limited to “scuffs, scrapes or scratches“.  Anything beyond this minimal paint damage will be adjusted on overall merits.  I have not yet seen a written copy of this shift in policy but if I do I will be sure to share it here.

With this introduction out of the way, the latest judicial nail in the LVI coffin was released this week.  In this week’s case (Midgley v. Nguyen) the Plaintiff was involved in a 2004 collision.  He suffered various injuries and sued for damages. ICBC argued this was a Low Velocity Impact and that the plaintiff was not injured.  Madam Justice Dardi soundly rejected this argument finding the Plaintiff suffered from a torn labru in his right hip along with psychological injuries.  She assessed non-pecuniary damages at $110,000.  In dismissing the LVI Defence the Court provided the following critical comments:

[174]     The overarching submission of the defence was that “this was a nothing accident”. The tenor of the defence submission was that, since there was no damage to Mr. Midgley’s motor vehicle, he could not have sustained the damage he alleges in the 2004 Accident.

[175]     There is no legal principle that holds that if a collision is not severely violent or if there is no significant damage to a motor vehicle, the individual seated within that vehicle at the time of the impact cannot have sustained injuries. The authorities clearly establish that, while the lack of vehicle damage may be a relevant consideration, the extent of the injuries suffered by a plaintiff is not to be measured by the severity of the force in a collision or the degree of the vehicle’s damage. Rather, the existence and extent of a plaintiff’s injuries is to be determined on the basis of the evidentiary record at trial: see Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236.

[176]     As I referred to earlier, the defence led no opinion evidence to support the assertion that the force of the impact in this case was incapable of producing the injury alleged by Mr. Midgley. I accept Mr. Midgley’s evidence regarding his body position at the time of impact and that, as far as he was concerned, the collision was jarring. In any case, there is expert medical evidence, which I find persuasive, that supports the relationship between the 2004 Accident – and, in particular, Mr. Midgley’s body position at the time of impact – and the existence of his injuries.

[177]     On the totality of the evidence, I am persuaded that Mr. Midgley sustained an injury in the 2004 Accident, in spite of the fact that his vehicle apparently was not damaged.


$40,000 Non-Pecuniary Assessment for Aggravation of Tronchanteric Bursitis

September 5th, 2012

Update August 23, 2013 – An Appeal from the below decision was successful with the BC Court of Appeal ordering a new trial.  Reasons from the BC Court of Appeal can be found here.

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Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for aggravation of pain due to pre-existing hip bursitis.

In this week’s case (McArthur v. Hudson) the Plaintiff was injured in a 2008 T-Bone collision caused when the Defendant failed to stop at a stop sign.  Fault was admitted.   The Plaintiff had significant pre-existing difficulties resulting in a total hip replacement.  Following this the Plaintiff developed trochanteric bursitis.

He continued to have problems due to this and other complications of his pre-existing condition.

The collision caused an aggravation of the Plaintiff’s tronchanteric bursitis along with some soft tissue injuries.  The court found that this aggravation ran its course by mid 2011.  The Court further found that the balance of the Plaintiff’s lingering limitations were due to his pre-existing condition and not compensable.  In assessing non-pecuniary damages for the aggravation at $40,000 Madam Justice Kloegman provided the following reasons:

[74]The plaintiff must be compensated for losses due to an aggravation of bursitis in the lateral aspect of the trochanter which was substantially resolved by March 2011. The plaintiff must be compensated for losses incurred by him for a soft tissue injury to his shoulder that substantially resolved after about one month, and a soft tissue neck injury that substantially resolved by May 2011. Finally, the plaintiff is entitled to compensation for headaches experienced until May 2011 and an aggravation of his depression due to the setback (perceived or otherwise) in his rehabilitation until November 2008.

[75]The plaintiff is not entitled to compensation from the defendant resulting from post-surgical complications in his hip, such as sublaxating fascia lata, tight iliotibial band or weak abductor muscles. The plaintiff is not entitled to compensation from the defendant for his lower back issues which resulted from a previous injury and arthritis in the spine. The plaintiff is not entitled to compensation from the defendant for any neck injuries or headaches after May 2011…

[82]Nonetheless, I am satisfied that the plaintiff endured a significant degree of pain, both physically and emotionally, from his Accident related injuries, and he is entitled to reasonable compensation for that. Given the plaintiff’s age, the nature and duration of his injuries, and the impact on his enjoyment of life, I am of the view that his damages should be set at $40,000 (Laroye v. Chung, 2007 BCSC 1478; Guilbault v. Purser, 2009 BCSC 188; and Carter v. Zhan, 2012 BCSC 595).


$100,000 Non-Pecuniary Assessment for Triggering Early Onset of Arthritic Symptoms

August 14th, 2012

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for the triggering of arthritic symptoms in pre-existing asymptomatic degenerative joints.

In the recent case (Witt v. Vancovuer International Airport Authority) the Plaintiff was a fire-truck salesman.  Chalking this up to the ‘you learn something everyday’ category, this is apparently a lucrative career with the Plaintiff earning approximately $740,000 per year.  While at the Vancouver Airport the Plaintiff fell through metal plates “that were not secured by the long stakes that should have been used to secure the plates” creating “voids below the plates which allowed the plates to shift as vehicle traffic went over them“.  The Defendant was found fully liable for the incident.

The fall triggered symptoms of pain in the Plaintiff’s back, knee and hip.  He had pre-existing arthritis in these areas with the fall accelerating these conditions resulting in long-standing pain.  In assessing non-pecuniary damages at $100,000 Mr. Justice Burnyear provided the following reasons:

[59] Based on the conclusions reached by the medical experts, on the testimony of Mr. Witt and Ms. Witt, and on the testimony of those who knew him well, I conclude that Mr. Witt has considerable and continuing pain as a result of the Fall and that the pain that he has suffered has made his life less enjoyable.  I find that his inability to walk long distances, his inability to enjoy golfing, hiking and tennis, and his reduced sleep and energy levels have come as a result of the Fall.  I am satisfied that Mr. Witt should be compensated for that pain and suffering.

[60] Regarding the particular complaints of Mr. Witt, I make the following findings.  I find that Mr. Witt now suffers from chronic pain as a result of the Fall.  I also find that, as a result of the chronic pain, there have been negative changes to his disposition, a considerable reduction in his physical activity and capacity, and a significant negative effect on his marriage.

[61] Regarding the back pain experienced by Mr. Witt, I find that some but not all of the back pain experienced by Mr. Witt as a result of the Fall settled by the summer of 2010.  However, I also find that he is now more susceptible to develop spinal stenosis as a result of the Fall.

[62] Regarding the right hip of Mr. Witt, I find that he continues to have severe pain from time to time and discomfort when sitting.  As a result of the Fall, I find that osteoarthritis has become systematic and that this has become the case earlier than what would have occurred but for the Fall.  While I find that there was a degree of degenerative spondylosis and arthritis prior to the Fall, I find that the Fall produced severe pain in the right hip that would not have been experienced by Mr. Witt but for the Fall and which has produced early onset of degenerative spondylosis and arthritis.

[63] As a result of the Fall, I find that the pain and weakness being experienced by Mr. Witt in his right knee has accelerated the existing degenerative arthritis so that Mr. Witt now requires surgery.  I find that the presence of degenerative arthritis in the right knee of Mr. Witt was accelerated by the Fall…

[68] Taking into account the injuries caused by the negligence of the Defendants, the duration of the pain and suffering produced by the negligence, the likely future pain and suffering caused by the Fall, and by the early onset of arthritic problems caused by the Fall, I set the non-pecuniary damages available to Mr. Witt at $100,000.00.

The Court went on to note that the ongoing injuries and expected medical interventions will interfere with the Plaintiff’s career and assessed damages for diminished-earning capacity at $600,000.


$80,000 Non-Pecuniary Assessment For Chronic Hip Soft Tissue Injury

July 31st, 2012

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic hip soft tissue injury.

In last week’s case (Pisani v. Pearce) the Plaintiff was involved in a ‘significant‘ head on collision.  Fault was admitted by the Defendant.   The crash resulted in a non-specific soft tissue injury to the Plaintiff’s hip.  The symptoms interfered with the Plaintiff’s physical lifestyle and were expected to linger indefinitely.  In assessing non-pecuniary damages at $80,000 Madam Justice Loo provided the following reasons:

[73] Ms. Pisani was injured in a significant head on collision. Her 2009 Mercedes C300 4Matic was written off. She sustained soft tissue injuries to her shoulder, neck, and back. She will likely suffer flare ups from time to time for the rest of her life. She now has problems with her hip that prevent her from enjoying activities she used to enjoy. There is no diagnosis for the problem with her hip, and there is little or no evidence that it will improve. Her relationship with her boyfriend and her friends has been adversely affected.

[74] Her social life and her extracurricular activities have been adversely affected. She has difficulty attending the mosque because sitting on the floor causes her pain. She cannot dance, play soccer, hike, ride her bicycle, or ski. Dancing has always played a big and important part of her life. Hopefully by carrying out Dr. Anton’s recommendations, she will improve her postural muscles and core stabilizers and may be able to resume most of her activities…

[87] In this case, Dr. Anton suggests that Ms. Pisani’s neck, shoulder, and lower back symptoms should hopefully improve with one on one training with a qualified kinesiologist. Dr. Anton also suggests that if Ms. Pisani fails to have a good response to the training, she may not be able to resume dancing. She will probably suffer flare ups of her injuries for the rest of her life. She is still only 23 years old. There is also no evidence that her hip problem will resolve.

[88] I conclude that a fair and reasonable award of non-pecuniary damages is $80,000.

In addition to the above, paragraphs 96-104 are worth reviewing for the Court’s discussion of damages for the Plaintiff’s delayed entry into the workforce as a result of her injuries.


$90,000 Non-Pecuniary Assessment for Labral Tear Requiring Surgery

July 13th, 2012

Reasons for judgement were released yesterday by the BC Supreme Court, New Westminster Registry, assessing damages for a hip injury sustained in a vehicle collision.

In yesterday’s case (Combs v. Moorman) the Plaintiff was involved in an “extensive” rear end collision in 2007.   The Defendant was found wholly at fault for the crash.  The Plaintiff, a 38 year old massage therapist, suffered a labral tear (a tear of the cartilage cushioning the hip socket).

This injury caused ongoing problems and needed future surgical intervention.  It caused limits in the Plaintiff’s domestic and vocational abilities.  In assessing non-pecuniary damages at $90,000 Madam Justice Humphries provided the following reasons:

[19] Pain in her left hip is her primary concern presently.  She says it is very painful and affects every treatment she gives.  The pain makes her put her weight on her right leg, and consequently her right leg has begun to hurt as well.  After an MRI, it was determined that she has a labral tear, that is a tear in the material cushioning her hip socket.  A bone scan showed some tenderness on the left trochanter, that is the top of the femur.

[20] Dr. Smit, Ms. Combs’ treating orthopaedic surgeon, recommended freezing injections into the hip and the trochanter respectively as a diagnostic device to determine where the pain was coming from.  That is, if one area were frozen and the pain continued, it would show that the source was the other area.  Dr. Smit said the injections give temporary relief, but symptoms would return in 6 – 8 weeks.  He said in “a distinct minority” of cases the pain does not return.  Ms. Combs declined this procedure…

[27] Ms. Combs was a straightforward witness.  She is obviously used to coping with life in a businesslike manner and does what she has to do.  She works hard, runs a successful clinic, and looks after two children and the home with the help of her mother, her mother-in-law, and her husband.

[28] Ms. Combs suffered fairly extensive injuries in this accident, some of which are permanent.  The hematoma in her knee and the damage to her finger, though not interfering with her activities, will not improve.  She deals with daily neck, back and hip pain and has done so for four years.  While surgery will likely improve her hip pain, it is not likely that her neck and back pain will resolve.  Her prognosis is poor.

[29] She still works long hours, but only with pain, and foregoes activities she used to enjoy in order to work those hours.  Her social life has been impacted because she is too tired to participate.  She cannot sit up on the bed and read to her daughter because of her back pain…

[33] I am of the view that it would have been helpful for Ms. Combs to have the injections for diagnostic purposes and for temporary relief.  Her failure to do so was unreasonable, but although some of her pain may have been relieved temporarily by this procedure and diagnosis of the source of the pain would likely have been facilitated, failure to undergo this procedure does not affect any long term outcome.  Dr. Smit said the cases in which pain does not return after the injections are “a distinct minority”.  In any event, Ms. Combs must still face hip surgery, and according to the medical evidence, delay in having the surgery does not affect its success rate.  Her refusal to undergo months of recovery from surgery while running a busy practice and taking care of young children is simply a matter of weighing how much pain she could cope with and still carry on.  I cannot see her refusal to have the surgery until now as unreasonable.

[34] Obviously each case has distinctive facts, and it is often difficult to reconcile them as awards for pain and suffering are inherently individual.  The cases cited by the plaintiff involve considerably more severe and wide ranging symptoms that Ms. Combs has.  The cases cited by the Third Party involve symptoms that resolved faster than Ms. Combs’ have.  She is not a complainer, but four years post accident, she is still coping daily with its effects and now has to undergo the surgery and recovery time.  The effect of the chance of the early onset of arthritis in the distant future is not great, given the scant evidence that it is likely to occur.

[35] Considering the evidence and the cases cited to me, I set non-pecuniary loss at $90,000.


$75,000 Non-Pecuniary Assessment For Labral Tear

May 15th, 2012

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.


$200,000 Non-Pecuniary Damage Assessment For Multiple, Disabling Orthopaedic Injuries

February 29th, 2012

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for multiple, complex, orthopaedic injuries caused by a motor vehicle collision.

In last week’s case (Tompkins v. Bruce) the Plaintiff was injured in a serious 2006 collision which was caused when the Defendant, who had been drinking and was driving while over the legal limit, crossed the centre line and collided with the Plaintiff’s vehicle.  The Defendant was found fully at fault for the crash.

The Plaintiff suffered multiple injuries including rib fractures with a collapsed lung, a left hip fracture, a fractured femur and a fractured patella.  These injuries required surgical intervention.  The Plaintiff had a total hip replacement and likely needed a total knee replacement in the future.

The Plaintiff was a plumber and gas fitter and was rendered totally, permanently disabled from his own occupation.  He was left with a minimal residual earning capacity.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $200,000 Mr. Justice Curtis provided the following reasons:

[47] Wayne Tompkins was 50 years old, living in Pemberton and happily employed as a tradesman when the June 3, 2006 collision occurred.  As a result of the injuries suffered by Mr. Tompkins which were caused by the negligent and criminally irresponsible driving of Tawnya Ley Bruce, Mr. Tompkins’ life has been permanently and very significantly altered.

[48] He has lost his ability to work in his trade at employment he enjoyed.  He has lost a great deal of his mobility and cannot enjoy activities such as skiing, hiking, snowmobiling, slow pitch, tennis and similar activities as he once did.  He cannot stand or sit for long periods of time.  His mood is depressed and his anger harms his relationship with other people ? particularly in the case of Nancy Larkin, his romantic partner after the accident who left him largely because of his anger and irritability.  In addition, Mr. Tompkins now faces the prospect of further surgeries, such as two knee replacements, another hip replacement, the prospect that the condition of his knees and hip may get worse ? and that each surgery comes with a risk of loss of function, dangerous embolisms, scar tissue, long recovery periods and possible poor results.

[49] On the other hand, Mr. Tompkins is an intelligent man whose depression and anger can quite likely be treated and improved.  He now has his own home in Chilliwack where he lives with his dog close to his sons and grandson.  He is capable of driving his car, at least as far as Chilliwack to Whistler.  There is a good chance that continued physical training will maintain his strength and may well improve his mobility and flexibility ? he has been capable of walking without a cane in the past, and even of lifting Nancy Larkin who weighs 115 pounds from her wheelchair into a car and it is not unlikely that his condition may again reach that level.  He did own and operate a boat after the accident and could again, and fishing is still possible.  While his trade work as he once did it is no longer open to him, there is the possibility he may find rewarding employment in some other field…

[53] Mr. Tompkins has been particularly unfortunate in having three major joints ? both knees and his left hip damaged in the collision.  Those injuries are permanent and the condition of those joints likely to get worse.  Considering that and his altered mood and other injuries, I find the sum of $200,000 a fair and reasonable amount for non pecuniary damages.