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 Knee Injury Cases’ Category

$70,000 Non-Pecuniary Assessment for Chronic Back and Knee Injury

August 26th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic back and knee injury sustained in a collision.

In today’s case (Ali v. Fineblit) the Plaintiff was involved in a collision that the Defendant was found fully liable for.  The injuries included a low back and knee injury which remained symptomatic at trial and had a poor prognosis.  In assessing non-pecuniary damages at $70,000 Madam Justice Gerow provided the following reasons:

[82]         As indicated above, Ms. Fineblit concedes that Mr. Ali suffered a soft tissue injury to his back and an injury to his left knee in the accident.

[83]         It is clear from Mr. Ali’s evidence, as well as the evidence of his family, treating health care professionals and the medical experts that he is suffering from ongoing symptoms in his left knee and low back.

[84]         Prior to the accident Mr. Ali did not have any problems with his left knee or low back. The evidence is that Mr. Ali’s knee injury has impacted all areas of his life, including his work. The evidence is that he was very physically active, and ran and hiked on a regular basis to offset the sitting demands of his job. Since the accident, he has not been able to return to many of his pre-accident activities, such as running, snowboarding and hiking. As well, Mr. Ali’s ongoing left knee symptoms prevent him from doing some of the household chores, and his wife has taken on more of the household duties and cleaning. Mr. Ali’s wife and sister testified that his mood had changed since the accident and he does not have the easy going nature he did prior to the accident.

[85]         The evidence is that the symptoms from his left knee and back injury have all impacted his work. Mr. Ali travelled by plane frequently for his work prior to the accident. Since the accident, Mr. Ali had limited his air travel because he has trouble sitting on long flights. Mr. Ali testified that he experiences increased pain in his knee after sitting on flights. As well, Mr. Ali has increased back and knee symptoms from sitting at his desk or standing for long periods of time.

[86]         As noted earlier, while there maybe some improvement to Mr. Ali’s left knee and back symptoms over time with a supervised exercise program, there is a likelihood that his left knee injury will cause limitations and pain indefinitely and he will suffer from ongoing flare ups of back pain. I find that as a result of the accident, Mr. Ali has been left with ongoing chronic pain in his left knee which is unlikely to resolve, and intermittent pain in his back. Dr. Fuller and Dr. Stewart agree it is likely Mr. Ali will have some symptom improvement with further physiotherapy and/or active rehabilitation.

[87]         I have reviewed the cases provided. Each case has distinctive facts, and it is often difficult to reconcile them as awards for pain and suffering are individual in nature. The cases provided by Mr. Ali are to some extent predicated on his submissions that the accident exacerbated his headaches, which as stated above, is not supported by the evidence. The cases provided by Ms. Fineblit are to some extent predicated on her submissions that Mr. Ali’s back improved within four weeks of the accident which were rejected.

[88]         In summary, the accident caused injuries to Mr. Ali’s left knee and back which have been slow to resolve. There is a likelihood that the symptoms and restrictions of the left knee are permanent, and he will continue to suffer from intermittent back pain as a result of the accident. Having considered the evidence, and the cases provided by counsel, it is my view that an award of non-pecuniary damages in the amount $70,000 is appropriate.


$110,000 Non-Pecuniary Assessment for Fractured Ribs, Knee Injury and Chronic Pain

July 7th, 2015

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a host of injuries resulting from a collision.\

In the recent case (Grewal v. Naumann) the Plaintiff was involved in a 2007 T Bone collision.  The collision was significant and resulted in 3 broken ribs, a knee injury requiring surgical intervention and a variety of soft tissue injuries resulting in some chronic symptoms.  In assessing non-pecuniary damages at $110,000 Mr. Justice Masuhara provided the following reasons:

[120]     My findings of the injuries suffered by the plaintiff from the Accident are:

(a)            three fractured ribs two of which were comminuted, and internal injuries which physically healed by January 2008;

(b)            chondromalacia patella and a small tear to the anterior horn of medial meniscus; which was repaired by surgery; there is some risk of arthritic degeneration but only slightly greater than the general population.  The range of motion in his right knee has always been normal; though at times there has been the presence of fluid buildup which has never been assessed as more than minimal.

(c)            soft tissue injuries to neck, right shoulder, lower back, right wrist and right ankle.

(d)            chronic pain.  While I find that there is chronicity to some of Mr. Grewal’s reported pain.  I find that the pain is at the low end of the range. 

(e)            the recurrence of a major depression which is now in remission.  Mr. Grewal had a pre-Accident history of depression, including major depression and that the Accident caused him to experience significant depression and anxiety.  The Accident related depression arose in around June 2009 and became a major depression in April 2011, gradual improvement was occurring which by February 2013 no depression was detected and was deemed to be in remission by December 2013 where Mr. Grewal was found to be in a “happy stable state”.  Mr. Grewal’s sleep was said to be “good” by September 2012.  He has remained in remission since and that reducing his medications is a potential.  Mr. Grewal however is at higher risk to suffer from recurrence of anxiety and depression as a result of the Accident. 

[132]     Based on my findings of Mr. Grewal’s injuries from the Accident including the likelihood of future effects, my view is that the defence cases cover injuries which are not as extensive as the plaintiff’s and that the injuries approximate closer to the cases handed up by the plaintiff.  However, his depression continued for some time before going into remission; the knee injury and resulting surgery, and ongoing chronic pain (though at the low end) are factors which require added recognition. 

[133]     I assess damages at $110,000. 


$80,000 Non-Pecuniary Assessment For Chronic Knee Injury

January 23rd, 2015

Reasons for judgment were released today by the BC Supreme Court, New Westminster Registry, assessing damages for a chronic knee injury caused by a collision.

In today’s case (Reddy v. Staples) the Plaintiff was involved in a 2009 collision that the Defendant accepted responsibility for.  The Plaintiff had pre-existing knee problems but the collision caused new injuries which aggravated his limitations.  The Court found the collision caused chondral injuries and these were responsible for 85% of the Plaintiff’s ongoing knee problems.  In assessing non-pecuniary damages at $80,000 Mr. Justice Blok provided the following reasons:

[115]     It is difficult to assess the contribution of each condition to the plaintiff’s current knee symptoms because the experts addressed this issue only in general, sometimes vague, terms.  It is reasonably clear that the meniscus damage that was already present at the time of the accident would have caused problems for the plaintiff, even absent the accident, until it was repaired in October 2009, and it might have continued to cause problems after that.  As Dr. Calvert said, “the majority of patients with an isolated meniscal injury do recover a good portion of their function post surgery”, thus suggesting that some do not.  Dr. Calvert said that even with just the meniscal damage and removal he would have counselled, post-surgery, against activities that involved repetitive impacts.  It is also clear from the evidence, however, that the chondral injuries to his patella and medial femoral condyle are more significant than was the pre-existing meniscal damage.  I also conclude that the risk of degenerative arthritis associated with just the meniscal injury was and is materially lower, and with a longer time frame, than it is with the chondral injuries, where osteoarthritis is already present.

[116]     Doing the best I can on an assessment of the whole of the evidence I would apportion the source of Mr. Reddy’s current and probable future knee problems as follows: 85% to the chondral injuries caused by the accident and 15% to his pre-existing meniscus damage…

[118]     I am satisfied that Mr. Reddy, 31 years old at the time of the accident, suffered a significant injury to his knee (the chondral injuries) as a result of the accident.  In addition, he had pain and stiffness in his back, neck and shoulder areas for a period of about four or five months.  His knee condition generally (that is, involving both pre-accident and accident-related causes) is frequently painful, restricts his activities and enjoyment of life, and causes him stress and anxiety.  On my assessment, 85% of those problems are attributable to the injuries he suffered in the accident.  The accident-caused injuries are degenerative, as is his pre-existing knee condition, though the degeneration associated with the accident injuries has already manifested itself and the degeneration associated with his pre-accident condition is likely to occur later, perhaps much later.

[119]     As Dr. Calvert noted, it is likely that the plaintiff will have persistent knee pain with weight-bearing activity.  He is likely to have increasing knee symptomatology in keeping with osteoarthritis and he may also require further arthroscopic surgery or even partial or full knee replacement surgery at some point in the future…

[125]     Based on the cases cited and a consideration of all of the Stapley v. Hejslet factors, and bearing in mind the 85-15 apportionment made previously concerning the cause of Mr. Reddy’s ongoing knee problems, I consider that non-pecuniary damages are appropriately assessed in the amount of $80,000.


$140,000 Non-Pecuniary Assessment for ACL Injury With Chronic Depression

September 24th, 2014

Adding to this site’s archived cases addressing damages for knee injuries, reasons for judgement were released today by the BC Supreme Court, Kelowna Registry, assessing damages for a chronic knee injury with associated depression.

In today’s case (Cook v. Symons) the Plaintiff was involved in a pedestrian/vehicle accident in 2010.  The Defendants were found fully liable.  The Plaintiff suffered an injury to his anterior cruciate ligament which underwent three surgeries without successful resolution.  He also suffered from chronic depression following his injury and this combination of symptoms permanently disabled him from his trade as an electrician.  In assessing non-pecuniary damages at $140,000 Mr. Justice Kent provided the following reasons:

[188]     There is no doubt and, indeed, the defendants concede, that the plaintiff’s knee injury and the chronic pain and physical disability caused by the same was a result of the accident.  With respect to the plaintiff’s mental health, it is uncontroverted and I find as a fact that, as set out in the June 5, 2014 report of Dr. Semrau,

·                 the plaintiff suffers from depression and the depression was caused by the accident and its aftermath;

·                 despite treatment, the depression has continued such that the plaintiff has been and will continue to be disabled from time to time;

·                 as a result of the accident, the plaintiff has suffered a loss of sense of purpose, self-esteem, and time structuring, due to a lack of work or other substantially productive activity, as well as a vicious circle reinforcement between lowered activity demands and perceived decreased energy;

·                 the fatigue experienced by the plaintiff, including the increase in fatigue since January 2014, has been caused not only by sleep apnea (which is yet to be confirmed) but also by the plaintiff’s chronic pain and depression;

·                 there is a circular interaction between the plaintiff’s functional and physical disabilities on the one hand and his depression on the other, each reinforcing the other in a manner that is likely to continue in the future;

·                 the plaintiffs depression has impaired, delayed, and interrupted his rehabilitation efforts, including recommended diet and exercise regimens; and

·                 the plaintiff will encounter significant future functional difficulties and related educational and employment disability.  

[189]     I also accept the evidence of Dr. Gouws and Mr. Trainor with respect to the plaintiff’s barriers to rehabilitation and employment, and their assessments respecting the plaintiff’s ability to successfully retrain and find/keep employment in the future.  I find as a fact that the plaintiff has chronic knee pain and restricted functional capacity that will permanently preclude him from returning to his previous occupation as an electrician or, indeed, any work that requires prolonged standing or walking.  These physical disabilities have combined with the plaintiff’s depression and emotional/mood problems to trigger significant coping difficulties.  All of this is attributable to the accident.

[190]     I also accept Dr. Gouws’ assessment that the plaintiff continues to be at risk of worsening depression, and that any meaningful rehabilitation will require a team effort on the part of the plaintiff, his family physician (medication management), vocational consultant (job search coaching/assistance), psychologist (counseling and cognitive behavioral therapy), and kinesiologist (viable exercise programming).  While some of the plaintiff’s current medical conditions (diabetes, sleep apnea, low testosterone) may not have been directly caused by the accident, the required team rehabilitation is for the most part necessitated by the combination of chronic pain, restricted functional capacity, and depression, all of which was directly caused by the accident…

[198]     I have read each of these cases and have noted both the similarities and dissimilarities with the present case.  Given the severity of the plaintiff’s suffering, loss of amenities, and loss of enjoyment of life in this case, I award the plaintiff non-pecuniary general damages in the amount of $140,000.  


$95,000 Non-Pecuniary Assessment for Meniscal and Labral Tear

March 28th, 2014

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for a chronic knee and shoulder injury.

In today’s case (Hart v. Hansma) the Plaintiff was involved in two collisions.  The Defendants admitted fault for both.  The Plaintiff suffered a variety of injuries including a torn meniscus, a labral tear and a variety of soft tissue injuries.  These continued to post problems at the time of trial with a poor prognosis.

In assessing non-pecuniary damages at $95,000 Mr. Justice Verhoeven provided the following reasons:

[54]         I find that the most significant injuries suffered by the plaintiff in the accidents are as follows:

1.     soft tissue injuries to his neck, particularly the right side, resulting in chronic neck pain;

  1. chronic headaches, associated with the neck pain;

3.     right shoulder injury, including a labral tear and tendonitis with a partial rotator cuff tear; and

4.     left knee injury, including a meniscus tear.

The foregoing injuries continue to cause significant ongoing pain and disability currently.

[55]         I find that the plaintiff also suffered from the following, less serious injuries sustained in the accidents:

1.     right upper limp numbness and pain;

2.     low back injury, and associated pain (that is not presently bothering him) in the right hip and buttock area;

3.     right knee pain (although it is now substantially resolved); and

4.     left hip pain (although it is now substantially resolved)….

[65]         The prognosis for full recovery is negative.  It is unlikely that his neck injury will ever fully recover.  There is a risk that his neck condition will deteriorate to the point where cervical discectomy surgery will be required.  The headaches he suffers from are related to his neck injury.  The plaintiff finds that treatment such as acupuncture, physiotherapy and the prolotherapy provide short term relief for his neck pain and headaches.  He takes a variety of medications in order to allow him to cope.  The planned knee surgery may provide some benefit for his left knee pain, but may have long term negative consequences, such as the risk of osteoarthritis. His shoulder condition is also chronic.  The plaintiff has the choice of enduring the pain and limitation of function in his shoulder, or undergoing surgery which may offer some benefit…

]         Taking into account the factors in Gillam as they apply to Mr. Hart’s circumstances, and the above awards in Prince-Wright, Hanson, Steward, and the cases cited by the defendants, adjusting for inflation, I find that an award of $95,000 is appropriate in this case.

 


$95,000 Non-Pecuniary Assessment for Permanent Knee Injury Likely Requiring Replacement

September 27th, 2013

Adding to this site’s database addressing non-pecuniary damages for knee injuries, reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, addressing such an injury.

In the recent case (Majchrzak v. Avery) the Plaintiff was injured in a 2007 motorcycle collision when the Defendant’s vehicle failed to yield the right of way.  The Plaintiff suffered a knee injury which continue to pose problems at the time of trial and likely would need full replacement in the future. In assessing non-pecuniary damages at $95,000 Madam Justice Brown provided the following reasons:

[81]         I consider the following factors relevant in this case:

(a)      Age of the plaintiff: Mr. Majchrzak was 51 years old at the time of trial. The evidence establishes that he will likely suffer some measure of pain for the remainder of his life.

(b)      Nature of the injury: Mr. Majchrzak suffered grade 2 chondromalacia and post-traumatic arthritis from the impact of the accident. His knee is permanently damaged, and it is likely that he will require knee replacement, although it is unclear when that will be. He also suffered minor injuries and bruising to his left hand and back that resolved uneventfully.

(c)      Severity and duration of pain: Almost six years post-accident, the plaintiff continues to suffer pain daily. While he has been able to work through the pain, by doing stretching exercises, icing his knee and taking medication, I have concluded that he has endured much pain doing so. Indeed, he is now retraining to work in a less physically demanding position.

(d)      Disability: The plaintiff has a permanent impairment of his physical capabilities.

(e)      Emotional suffering: Dr. Raffle and Mrs. Majchrzak both gave evidence that Mr. Majchrzak has suffered some measure of depression and anxiety caused by chronic pain and his inability to work and provide for his family.

(f)       Loss and impairment of life: Mr. Majchrzak has permanent injuries that require him to leave what he described as his “dream job”. Furthermore, many of his non-work activities, such as ballroom dancing with his wife, sports activities with his children, and maintenance of his home have been affected.

[82]         After both reviewing the authorities and considering the specific factors in this case, in my view, an appropriate award for the plaintiff is $95,000.


$130,000 Non-Pecuniary Assessment For Complex Pelvic and Knee Fractures

March 18th, 2013

Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, assessing damages for a complex pelvic and knee fracture.

In this week’s case (Farand v. Seidel) the Plaintiff was struck by the Defendant’s vehicle while she was crossing a street in a marked pedestrian crosswalk.  Although the Defendant disputed liability he was found fully liable for the collision.

The Plaintiff suffered a tibial plateau fracture along with complicated pelvic injuries.  The Plaintiff was left with long term complications which affected her ability to work full time hours on a consistent basis.  In assessing non-pecuniary damages at $130,000 Mr. Justice Savage provided the following reasons:

[46]         Ms. Farand was struck by Mr. Seidel’s pickup truck and landed on the road surface in front of Mr. Seidel’s truck. She was not run over by the truck. Ms. Kriez was able to estimate where Ms. Farand lay on the pavement. She noted that Ms. Farand’s position on the pavement showed an unnatural posture. Passersby called 9-11.

[47]         Ms. Farand was taken to the hospital by ambulance. Imaging at the hospital showed a tibial plateau fracture and a lateral compression pelvis fracture, inferior and superior rami fractures, and an undisplaced sacral fracture. Open reduction and internal fixation of the right tibial plateau fracture was done on August 9, 2009. Imaging shows a metal plate fixed with six metal screws. The pelvis fractures were treated conservatively.

[48]         Ms. Farand was hospitalized for 12 days. She was released from hospital, moving with the aid of a wheel chair. She was also provided with crutches. By December 2009 she used crutches without the wheel chair. She was anxious to return to work and worked a few partial days in November and December 2009, although she was able to do this work from home. She was put on a gradual return to work program. Her timesheets indicate the hours she worked.

[49]         Ms. Farand suffered and continues to suffer from ongoing neck and back pain. She was diagnosed by Dr. Esmail with musculoligamentous injuries to her cervical spine, with likely injuries to the zygaphophyseal joints as well as injuries to the facets of the mid-thoracic spine. Dr. Esmail diagnosed her with soft tissue injuries of the lumbar spine and injury to the sacroiliac joints of the lumbar spine. These injuries result in chronic pain, which interferes with activities of daily living and is aggravated by her favouring her right leg.

[50]         Ms. Farand has undergone various treatments, including physiotherapy and massage. She has not regained quadriceps bulk, particularly in the right leg. Dr. Esmail opines that she is at greater risk for developing osteoarthritis in the right knee and will likely need knee replacement surgery in 15-20 years. He is uncertain whether she has meniscal tear or detached meniscus, which cannot be identified by doing an MRI but could be diagnosed with arthroscopic surgery. If she has these problems with her meniscus, then those time frames may be accelerated…

[76]         In my opinion the appropriate award for non-pecuniary damages in this case is $130,000, which award I so make.

 


$85,000 Non-Pecuniary Assessment for Knee Injury With Potential CRPS

August 29th, 2012

Reasons for judgement were released this week by the BC Supreme Court, Williams Lake Registry, assessing damages for a chronic knee injury.

In this week’s case (Anderson v. Shepherd) the Plaintiff suffered a “major injury” to his knee when he was struck by the Defendant’s vehicle crushing his knee “between the car door and the frame of the vehicle“.  Fault was admitted focusing the trial on damages.

The Plaintiff’s knee injury required surgical intervention and resulted in chronic pain.  He was diagnosed with potential Complex Regional Pain Syndrome because of his knee trauma.  His pain symptoms were expected to linger indefinitely.  In assessing non-pecuniary damages at $85,000 Mr. Justice Davies provided the following reasons:

[58] Although the medical opinions differ with respect to whether Mr. Anderson may suffer from complex regional pain syndrome because of the injuries to his knee, and also whether patellar maltracking was caused by or made symptomatic by the collision, I am satisfied by the totality of the evidence that the knee pain Mr. Anderson has suffered and continues to suffer, as well as the mobility issues he has experienced and continues to experience, are genuine and were all caused by the collision.

[59] I am also satisfied on a balance of probabilities that the negative effects upon Mr. Anderson’s life arising from the left knee injury were caused by the collision and the defendant’s negligence, and would not have occurred but for that negligence…

[75] My consideration of the totality of the evidence in this case leads me to conclude that:

1) Mr. Anderson will have ongoing symptoms with his knee indefinitely which will remain relatively constant at their present level with a tendency to improve over time, rather than worsen.

2) Mr. Anderson is likely to have difficulties with activities requiring a great deal of knee flexion such as kneeling, squatting, climbing stairs and walking up hills.

3) No further surgical intervention will assist in alleviating Mr. Anderson’s existing knee symptoms.

4) Mr. Anderson will not likely develop accelerated osteoarthritis because of the injury to his knee.

5) Mr. Anderson is not disabled from work as a driver if he obtains a Class 1 licence, but will be required to take breaks to rest his knee if he drives for long periods of time.

6) The injury to his left knee will likely require Mr. Anderson to take more pain medication to relieve his pain than he was taking to alleviate the chronic pain associated with his low back pain caused by the 2004 motor vehicle accident.

84] Mr. Anderson has suffered a serious and debilitating left knee injury. It was acutely debilitating for approximately six weeks when he could do almost nothing other than rest. While his condition improved thereafter, that improvement was not sufficient to allow him to resume all of his previous activities either at home or outside the home, his home life and relationships with his wife and children suffered badly, and he was unable to work because of his injuries.

[85] Surgery on his knee in March 2010, more than a year after he was injured, helped to alleviate his difficulties to the extent that by his own assessment his improvement has now approached 70%. The evidence establishes that it is likely that his symptoms have stabilized at that level and are not likely to worsen over time.

[86] Even at their present recovery level, Mr. Anderson’s injuries require him to endure pain that must be treated with increased levels of medication beyond that which previously alleviated his chronic low back pain that arose from the 2004 motor vehicle accident. His ability to enjoy life because of his compromised physical abilities is seriously diminished. He has now suffered and endured his losses for more than three years. As a young man who is now only 30, Mr. Anderson will suffer them for most of his adult life.

[87] After considering the totality of the evidence and the principles enunciated in Stapley, and the authorities to which I was referred by both counsel, I have determined that an award of $85,000 is necessary to appropriately compensate Mr. Anderson for his non-pecuniary losses.


$40,000 Non-Pecuniary Assessment for Patellofemoral Knee Pain

August 24th, 2012

Adding to this site’s archived posts addressing damages for knee injuries, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for Patellofemoral pain.

In the recent case (Peragine v. Serena) the plaintiff was involved in a 2009 intersection collision.  The Defendant left a stop sign and proceeded into the Plaintiff’s lane of travel resulting in the collision. Although the Defendant disputed fault she was found fully liable for the crash.

The plaintiff suffered a knee injury which required surgery.  She remained symptomatic at the time of trial and was expected to have symptoms for some time into the future.  In assessing non-pecuniary damages at $40,000 Mr. Justice Weatherill provided the following reasons:

[70] Dr. Kokan concluded that Michelle’s pain in her left knee was and is caused by the medial synovial plica (which was removed during the surgery), patellofemoral pain syndrome and pes anserinus bursitis.  It is his opinion that the motor vehicle collision on March 13, 2009 caused the onset of her left knee pain, which irritated the medial synovial plica.  He acknowledges that there is controversy in the literature and within his profession regarding the function of the synovial plica and its contribution to symptoms.  Some orthopedic surgeons, including Dr. Kokan, are of the view that it can make one susceptible to pain.  Others are of the opinion that the plica has minimal, if any, impact on pain.  Dr. Kokan concluded that Michelle’s plica, which was in a vulnerable position, being suddenly impacted caused direct trauma and caused her to experience the pain she had reported.  Moreover, the blunt impact of the accident also transmitted forces to other structures within her knee, including the patellofemoral joint.

[71] Dr. Kokan also acknowledged that patellofemoral pain syndrome could be caused by a person being inactive and then suddenly becoming active.

[72] In Dr. Kokan’s opinion, it is likely that Michelle could continue to experience her pain symptoms for between two to three years.  He expects that she will continue to experience difficulties with kneeling, walking, standing and negotiating stairs.  He recommends that Michelle limit her sports to non-impact activities such as swimming or cycling…

[75] I accept Dr. Kokan’s description of Michelle’s symptoms as described in his report.  I also accept his opinion that the pain in her left knee was caused by a blunt impact during the March 13, 2009 collision and that it is possible for the injury to the knee to have occurred during the accident but the pain associated with that injury not to have manifested itself for three weeks to a month…

[118] All of the injuries Michelle suffered to her forehead, shoulder, neck and back were minor and completely resolved within a few weeks.  None have reoccurred, although she does have a small, residual but indiscreet scar on her forehead.

[119] However there is no question that, since the collision, Michelle has experienced and is continuing to experience intense and ongoing pain in her left knee.  She is unable to climb or descend stairs or even walk or stand for prolonged periods of time without significant pain and having to sit and rest her knee.  She is unable to participate in sporting activities which she has grown up doing and which are her passion…

[130] The plaintiff is 21 years of age.  She continues to have trouble walking and standing without pain.  She is in pain every day.  Despite the pain, she is living a normal and enjoyable life.  The prognosis for a full recovery is good.

[131] After reviewing the foregoing cases and taking my findings of fact in this case into account, I find that that an award of $40,000 for non-pecuniary damages is appropriate.


$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.