ICBC Law

Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, assessing damages for an aggravation of a pre-existing knee injury.

In yesterday’s case (Everett v. Solvason) the Plaintiff “blew out his left knee” while playing softball in the summer of 2008.  The following month he was involved in a motor vehicle collision.  The crash aggravated his knee pain.  Following the crash the plaintiff had an MRI which revealed “a complex tear to the medial meniscus and a probable partial tear of the ACL”

At trial the main issue was what relationship the collision had to these injuries.  The Court ultimately found that these injuries were caused by the softball injury but sustained a “minor aggravation” in the collision.  In awarding damages of $15,000 Mr. Justice Jenkins provided the following reasons:

[21] The defence called Dr. Brian Day, an orthopaedic surgeon, who never did examine Mr. Everett but did review a great many reports and other documents including medical records which were in evidence at this trial. He concluded that the softball injury of July 30, 2009 was responsible for the injury to the left anterior cruciate and medial meniscus, i.e. the left knee injuries. In cross examination Dr. Day was clear that the accident of September 3, 2009 was not the cause of the knee injuries, in that he said that these kind of knee injuries are the result of a significant rotational movement in which the knee pops, swells, bleeds and would be the main complaint of the injured party. According to Dr. Day, the plaintiff having planted his left foot in anticipation of the impact from the vehicle behind would not likely have caused these injuries. The nature of the left knee injury is, however, consistent with the plaintiff’s description of the softball incident. It is clear to me, especially from Dr. Day’s evidence, that the cause of the knee injury was the softball incident. However, he did say that the accident could have resulted in a further tear of the medial meniscus originally torn in the softball incident. In the circumstances, I find that the plaintiff likely suffered a minor aggravation to the knee injury as a result of the September 3, 2009 accident…

[39] …I find a reasonable award for general damages for pain and suffering is in the amount of $15,000.

In my ongoing effort to create a searchable UMP Claims database, I summarize a 2009 UMP Decision dealing with an assessment of damages for serious injuries, including a partial spinal cord injury leading to temporary paralysis, following a head on crash.

In the 2009 decision (EH v. ICBC) the 10 year old Claimant sustained serious injuries when she was involved in a head-on collision on the Malahat Highway.  The Claimant’s injuries were severe and her right leg was completely paralyzed following the collision.  She fortunately went on to make an “excellent” recovery, however was expected to suffer from long term problems as a result of her injuries.

The at-fault driver was an “underinsured” motorist and the parties agreed to have the quantum of the claim assessed via UMP arbitration.  Arbitrator Yule assessed the Claimant’s non-pecuniary damages at $140,000 and in doing so provided the following reasons:

76.  At age 10 the Claimant sustained serious, multiple injuries in the Accident.  The three most serious injuries were:

a.  A Brown-Sequard partial cervical spinal cord injury

b.  Bony cervical spine injuries including compression fractures at C-7, T-1 amd T-2, facet subluxation at C-7 - T-1 and avulsion of the C-7 spinous process; and

c.  an anterior tibial spine avulsion injury in her right knee (anterior cruciate ligament avulsion and grade 2 medial collateral ligament strain)

77.  At the outset, her right leg was completely paralyzed.  She:

a.  spent 50 days in three different hospitals

b.  experienced neuropathic pain (excruciating pain to mere touch) for 20 days;

c.  required her neck immobilized in sandbags when in bed;

d.  at all other times wore a Minerva brace for 60 days;

e.  wore an extreme right knee brace for 75 days; and

f.  wore a plastic boot on her right foot for foot drop for approximately 5 weeks.

As of August, 2006, approximately five months post-accident she:

a.  had received 70 physiotherapy treatments; and

b.  40 occupational therapy treatments.

The Accident and the acute treatment phase was a wholly frightening experience for a young child.  For par of her hospitalization she was in isolation.

78.  The Claimant sustained a number of permanent disabilities as follows:

a.  right leg limp

b.  weakness, fatigue and reduced endurance in the right leg;

c.  loss of sensitivity of the left leg exposing her to the risk of burns or frostbite

…

87.  …having in mind the Claimant’s initial complete right leg paraplegia, the extreme neuropathic pain which lasted for 20 days, the significant permanent restrictions resulting from weakness, fatigue and decreased endurance of the right leg, the impending surgical repair of right knee ligament damage and the early onset of symptomatic degenerative spinal arthritis I assess damages at $140,000.

Section 148.1 of the Insurance (Vehicle) Regulation requires “an amount to which an insured is entitled to under the Canada Pension Plan” to be deducted from UMP claims.  Continuing in my efforts to summarize ICBC UMP decisions, reasons were released addressing this deduction following a serious injury caused by an uninsured motorist.

In SPW v. ICBC the Claimant suffered various injures due the carelessness of an uninsured motorist.  Following arbitration the Claimant’s diminished earning capacity (future wage loss) was assessed at $575,000.  The Claimant was receiving CPP disability payments and if these were continued to be received the present value of the future payments equalled $123,500.  Arbitrator Boskovich had to determine what amount of these benefits should be deducted pursuant to section 148.1.  In deducting 50% of these benefits the Arbitrator provided the following reasons:

165.  In order to determine if future payments should be considered as “applicable deductible amounts” under the Regulations the law is quite settled that there has to be some evidentiary foundation to determine likelihood of the continuance and certainty of such future payments.  The onus of proof that these payments will continue is on the Respondent (ICBC).  While the evidence given with respect to payments having been received in the past is of assistance, it does not provide conclusive evidence that the payments will continue in the future.

166.  That being said, having regard to the submissions delivered by counsel and the admissions made by the Claimant and his counsel and my own findings that the Claimant does have some residual earning capacity, which may or may not translate into income depending on what the Claimant does vocationally, I find there is a 50% contingency of the likelihood that his CPP payments will continue in the future and in this regard 50% of the net present value of the future payments should be deducted from the award.

This case is also worth reviewing for the assessment of non-pecuniary damages for the Claimant’s serious injuries.  In assessing this loss at $175,000 the Arbitrator made the following findings:

23  ….he had suffered multiple injuries, including a complex pelvic fracture with separation of the symphysis pubis and fracture of the right sacrum, a left tibiofibular fracture, a fractured right humeral shaft, fracture of his left second rib, as well as a large laceration to his right thigh and multiple cuts and abrasions.

74.  …those injuries have impacted his ability to walk, his gait and balance and have resulted in neck and lower back pain.  He has been left with chronic discomfort, restricted mobility and reduced ability to participate in physical activities.  I find that his present disability is entirely related to the motor vehicle accident…

77.  After considering the authorities submitted I find, having regard to the horrific circumstances of this accident, the nature of the injuries, the ongoing pain and the residual permanent disability which has resulted in a devastating change in the Claimant’s quality of life, that he is entitled to non-pecuniary damages of $175,000.

Adding to this site’s ICBC Case Summary Archives, reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, assessing non-pecuniary damages for a traumatic brain injury sustained in a BC vehicle collision.

In this week’s case (Meghji v. Lee) the Plaintiff was struck by a vehicle while walking in a marked cross-walk in 2003.  Both the Defendant driver and BC Ministry of Transportation and Highways were found at fault for the crash.  The former for failing to keep a proper lookout while driving, the latter for designing the intersection at question with inadequate overhead lighting.  The driver was found 90% at fault with the Ministry shouldering 10% of the blame.

The Plaintiff suffered a fracture near her left shoulder, left elbow, ankle, knee and a traumatic brain injury.   The consequences of these were expected to cause permanent dysfunction.  In assessing non-pecuniary damages at $125,000 Mr. Justice Johnston provided the following reasons:

[270] Based upon the evidence of Dr. Ali and Mr. Brozak of the substantial change noted in Ms. Meghji during this time, as supported by similar observations from Ms. Chauncey’s and Ms. Wyeth’s description of Ms. Meghji’s abilities in her math class and as a teaching assistant before the accident, I conclude that Ms. Meghji has more likely than not suffered a brain injury in the accident, and that the combination of the effects of the brain injury and the depression and chronic pain disorder, which I also find was caused by the accident or flows from injuries suffered in the accident, are so inextricably intertwined that they cannot possibly be disentangled.

[271] In all of the circumstances, the defendants are ordered to pay Ms. Meghji $125,000 for non-pecuniary damages for pain, suffering, and loss of amenities and enjoyment of life.

This case is also worth reviewing for the Court’s application of the ‘adverse inference’ principle.  In the course of the lawsuit the Plaintiff’s lawyers had her assessed by a neurologist.  The neurologist did not tender evidence at trial.  Mr. Justice Johnston used his discretion to draw an adverse inference in these circumstances finding that the privately hired doctor likely did not have helpful evidence to give in support of the Plaintiff’s claim.  The court provided the following reasons:

As previously discussed, when catastrophic injuries are sustained through the fault of an under-insured motorist most British Columbians enjoy Underinsured Motorist Protection “UMP”.

Sections 148.1 - 148.4 of the Insurance (Vehicle) Regulation deal with UMP Claims.  When disputes arise as to the availability or the amount of UMP coverage the matter needs to be resolved through private arbitration as opposed to a public lawsuit.   The law requires all UMP decisions from 2007 onward to be published on ICBC’s website.  These cases, unfortunately, are published in PDF Format and they are not search friendly.  To remedy this I’ve decided to include UMP case summaries on this blog.  With that in mind here is the first in a series of UMP cases summaries.

The first UMP judgement published was RAH v. ICBC.  In RAH the Claimant was injured in a 2002 motor vehicle collision.   Fault was admitted.  It was agreed that the value of the claim would exceed the Defendant’s insurance limits and the parties agreed to have the value of the claim adjudicated by way of UMP Arbitration.

The Claimant suffered a comminuted fracture of the left medial and tibial plateaus.  These required surgical correction.   Unfortunately, even with surgical correction, the injury was so severe that the Claimant was left with “a marked disruption of the articular surface which accounted for on-going pain and inability to regain full movement of the left knee“.   The prognosis was for gradual worsening with a likelihood of a total knee replacement.   It was accepted that this injury would seriously impede the Claimant’s ability to earn a living and total damages of $681,000 were awarded.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $95,000 the arbitrator (Donald Yule) provided the following reasons:

The Claimant sustained severely comminuted medial and lateral tibial plateau fractures of the left knee.  He has undergone two surgeries, one to reduce the fractures with two plates and 10 screws and a second procedure to remove the hardware.  He faces the prospect of further surgery for a total knee joint replacement with a possible further revision 15 years later.  He has permanent on-going pain which will inevitably worsen over time until the first knee joint replacement surgery is done.  He has permanent loss of flexion of the left knee and knee joint replacement surgery will likely increase the loss of flexion.   He cannot return to his former occupation as industrial nurse/medic.  He cannot walk or sit for prolonged periods of time without causing an increase in left knee pain.   He takes non-morphine analgesics on a daily basis and occasionally Percocet for break-through pain.   He continues to use a cane.  Prolonged standing, walking on uneven surfaces, and going up and down stairs all aggravate his symptoms and will hasten the time when knee joint replacement surgery is required.  The claimant was physically active outdoors, apart from his work, before the Accident, both in the Scouting and Fourth Ranger groups and for recreational hiking, hunting, fishing and camping.  These activities except in a most limited and superficial manner, are now foreclosed to him…

…I assess the non-pecuniary damages at $95,000.

I should point out that this case was decided in 2008 and adjusting for inflation the assessment would be approximately $100,000.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for an accident related knee injury.

In this week’s case (Battagliola v. Wal-Mart Canada Corp.) the Plaintiff was shopping in Wal-Mart in 2005 when a metal shelf struck her right knee.  Wal-Mart accepted that they were liable for the incident leaving only quantum of damages (value of the claim) at issue.

The Plaintiff suffered pain and discomfort in her knee following the incident and was diagnosed with patellofemoral pain (knee joint pain).  The symptoms lasted up until the time of trial but were expected to “slowly resolve over time“.

The Court accepted the injury was caused by the incident although expressed concerns that “the negative impacts are not quite as debilitating as asserted” and further that the Plaintiff’s “current limitations are not as severe as her personal account suggests“.  Non-Pecuniary damages (money for pain and suffering and loss of enjoyment of life) were assessed at $28,000.  In reaching this assessment Mr. Justice Masuhara provided the following reasons:

[19] Dr. Pisesky opined in his report that Ms. Battagliola suffers from patellofemoral syndrome of the right knee and that the pain associated was brought about directly by the contusion to her right knee on February 15, 2005….

[22] He opined that Ms. Battagliola “will likely have some degree of discomfort in [her right] leg and findings associated with this of patellofemoral irritation indefinitely.” …

[25] The report of Dr. White concluded that upon his examination, Ms. Battagliola “probably had a blow and bruise to the right patella area in the indeterminate past.”  Based on the information he had as of the date of his report, he stated that Ms. Battagliola’s knee injury “should slowly resolve over time but may take a while yet.”…

[33] In considering the circumstances of this case, the age of Ms. Battagliola; the period of time over which her condition has continued; the medical evidence of Dr. Pisesky that symptoms will continue on indefinitely but that they can be controlled to a certain extent by his recommendations and that there should be a noticeable benefit with orthotics; and my finding that her pain is not as debilitating as indicated in the plaintiff’s case, I assess non-pecuniary damages as $28,000.

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing compensation for a serious knee injury following a motor vehicle collision.

In last week’s case (Stevanovic v. Petrovic) the Plaintiff was struck by a vehicle driven by the Defendant.  The Plaintiff was standing in the middle of a residential road when the Defendant approached in his vehicle.  The Plaintiff was friends with the Defendant and was expecting the Defendant to pick him up.  The Defendant attempted to show off and drive his vehicle dangerously close to the Plaintiff.  He miscalculated and struck the Plaintiff causing injury.  The Defendant denied fault but Mr. Justice Sigurdson found him entirely liable for the collision.

The parties were able to agree on several heads of damages including the claim for non-pecuniary loss (pain and suffering and loss of enjoyment of life).   The balance of the trial focused on the Plaintiff’s damages for cost of future care and diminished earning capacity.

The parties settled the value of the pain and suffering claim at $155,000.   Since the issue was privately settled this case is not a true ‘precedent‘.  Despite this I thought this case would be worth summarizing given the relatively few precedents dealing with unique and complex knee injuries.  The Court made the following findings with respect to the severity and extent of the Plaintiff’s physical injury:

[88]         The purpose of the review of the injuries that the plaintiff suffered is not to revisit the issue of non-pecuniary damages, which was agreed, but for the purpose of the assessment of his loss of earning capacity and cost of future care.

[89]         The injuries suffered by the plaintiff were summarized by Dr. Anton, a physiatrist, in his medical report of August 21, 2008:

1.         multiple injuries to the right knee including

(a)        a patellar dislocation with a residual osteocondral defect in the articular (joint) surface of the patella;

(b)        an impacted fracture of the lateral femoral condyle;

(c)        evulsion of the anterior cruciatr ligament from the tibial spine;

(d)        a lateral tibial-plateau fracture, and

(e)        a bucket handle tear in the anterior portion of the lateral meniscus;

2.         a closed head injury including a laceration, nasal fracture, and probable mild traumatic brain injury;

3.         a fracture of the proximal fibula of the right leg;

4.         an injury to the left shoulder involving the supraspinatis tendon of the rotator cuff and anterosuperior glenoid labrum; and

5.         multiple soft tissue injuries including a probable soft tissue injury to the cervical spine.

…

[91]         The plaintiff’s most serious physical injury was the damage to his right knee, which required surgery on four occasions by Dr. Pierre Guy, an orthopaedic surgeon.  The plaintiff also required shoulder surgery in 2008 by Dr. Gilbert, which surgery was successfully completed.  In more recent times, the plaintiff has developed and has complained of hip pain.

[92]         The knee injury was described by the doctors as serious and complex, and is significant for the loss of earning capacity claim, because it affects and continues to affect his ability to bend his knee, go up or down stairs, or crouch, squat, kneel, or run without pain.  As a result of his knee injury, notwithstanding the successful surgeries, it is now apparent, with his knee pain, and difficulty crouching and bending, that he would not be able to continue employment as a copier repair person, which was what he had done at RISO before the accident.

[93] I find that the plaintiff continues to suffer from pain to his knee and that further surgical options are limited until much later.  A total knee replacement at a much later age appears to be the only possible surgical solution to deal with ongoing pain and discomfort.

Although stay-at-home parents are becoming less and less common many parents still take several years away from the workforce to raise their children in their infant and pre-school years.  Often times these parents intend to return to work after their children attend school on a full time basis.

When a parent in these circumstances becomes disabled from working due to the fault of another can they make a claim for loss of income in their tort action?  The answer is yes provided there is evidence establishing  a likelihood of returning to employment absent the accident related disability.   Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, dealing with this area of law.

In last week’s case (Carr v. Simpson) the Plaintiff was seriously injured in a 2005 motor vehicle collision.  The Defendant admitted fault and further admitted that the crash injured the plaintiff but took issue with the value of her claims for various damages including for income loss.

The Plaintiff, a 39 year old mother of three at the time of the collision, was out of the workforce for several years prior to the crash.  She spent these years working as a home-maker and raising her children.  She undertook some modest employment as a house cleaner shortly prior to the crash.  Following the crash she became disabled and did not return to any work from the time of the crash to the time of trial.

The Court accepted the Plaintiff sustained serious, permanent and partly disabling injuries due to the crash.  The Plaintiff sought damages of $84,000 for lost income from the time of the crash to the time of trial.  She argued that she had planned on returning to the work force once her children became school-aged (which was around the time of the crash) but was precluded in doing so as a result of her injuries.  The Defendant disagreed arguing that the Plaintiff suffered only a modest loss of income because of her “inconsistent work history (and) lack of incentive to work because of income from other sources.”

Mr. Justice Bernard sided with the Plaintiff and awarded her most of what she sought for past income loss.  In doing so the Court provide the following useful reasons addressing the reality that parents that leave the workforce to raise young children can still succeed in an income loss claim:

[132]     I reject the notion that Ms. Carr’s unemployment history during her child-rearing years made her return to the workforce less realistic or less likely. Ms. Carr did not harbour fanciful ideas about her capabilities, her income-earning potential, or her opportunities for employment. When her youngest child reached school age, Ms. Carr was relatively young, energetic, able-bodied, willing to work hard, prepared to accept modest wages in exchange for her labours, and was fortunate to have a brother who could offer her steady, secure, and reasonably well-remunerated employment.

[133]     The evidence establishes that Ms. Carr, shortly before the collision, was motivated to earn some income (e.g., from housecleaning) until her youngest child was enrolled in school; thereafter, she planned to seek more fulsome employment. I do not accept the defence submission that Ms. Carr lacked the incentive and/or need to earn an income; to the contrary, since she has been unable to work because of her injuries she has, with some reluctance, turned to her mother for ongoing loans of relatively large sums of money, just to get by.

[134]     Ms. Carr became a single parent as of June 1, 2005. I find it highly likely that this new status would have impelled her to take the employment her brother offered, and to do so immediately. Her newly poor economic circumstances would have necessitated that Ms. Carr make child-care arrangements to bridge the time until her youngest child was in school in September 2005, and would have motivated her to work as many hours as she could manage as a single parent. Similarly, I am satisfied that she would have made any necessary arrangements for the care of her father.

[135]     I also find it is highly likely that Ms. Carr, as an employee of her brother, would have worked the hours and received the rates of pay assumed by Mr. Bush in his calculations. I find it is most unlikely that the seasonal aspect of the work would have reduced Ms. Carr’s overall income. Any shortage of work in the slow season would be offset by the demands of the busy season, and I am satisfied that Ms. Carr would have adjusted her life, accordingly.

[136]     While I am unable to agree with the plaintiff’s submission that in the determination of past wage loss there should be no reduction for negative contingencies, I am satisfied, for the relatively predictable period in question, the reduction must be minor.

[137]     Having regard for all the foregoing, I assess the plaintiff’s past wage loss at $75,000.

This case is also worth reviewing for the Court’s discussion of non-pecuniary damages.  The Plaintiff sustained numerious injuries including soft tissue injuries to her neck and upper back, Thoracic Outlet Syndrome, headaches and dizziness, a right hand and wrist injury which required surgery, a meniscus tear that required surgery, low back pain and depression related to chrobic pain.  In assessing non-pecuniary damages at $100,000 Mr. Justice Bernard provided the following reasons:

125]     Ms. Carr has, at age 44, many years ahead of her. As a result of the defendant’s negligence, Ms. Carr has been permanently partially disabled and left with constant and chronic pain. Since the collision, Ms. Carr has undergone two surgeries and endured considerable pain and discomfort. Ms. Carr has developed TOS and surgery is not recommended. She suffers from clinical depression related to the negative effect her injuries has had upon her, her family, and her way of life. Ms. Carr’s mental acuity and concentration has slipped. Ms. Carr’s marriage ended six months after she sustained her injuries. Her husband was unsympathetic and frustrated by her lack of desire for sex due to her discomfort. Ms. Carr has been rendered unemployable for most jobs in a competitive market. She is now unable to enjoy most leisure activities and active social pursuits with her children. She has a special fondness for horses and gardening, but meaningful participation in activities related to these interests is no longer feasible. Ms. Carr has lost much of the satisfaction from gainful employment, and the purpose and dimension it gives to life. In short, the negligence of the defendant has had a profoundly negative and lasting impact upon Ms. Carr.

[126]     I agree with the plaintiff’s position that the Djukic case is most similar of the proffered cases on its facts. I also agree with the defendant’s submission that Ms. Djukic’s pain was more severe than that of Ms. Carr; otherwise, I am persuaded that Djukic a useful reference point for the upper end of a general damages award in this case; and that Cimino is instructive in determining the lower end.

[127]     Having regard to all the foregoing, I assess Ms. Carr’s general damages at $100,000.

Reasons for judgement were released this week by the BC Supreme Court, Port Alberni Registry, awarding a Plaintiff just over $220,000 in total damages for injuries and loss sustained as a result of a 2007 BC motor vehicle collision.

In this week’s case (Haley v. Gust) the Plaintiff was operating her motorcycle when she was struck by a left-turning motorist.  The Defendant admitted full fault for the crash.  The trial focused on the extent of and value of the Plaintiff’s injuries.

The Plaintiff’s most serious injury was a tear to her posterior cruciate ligament in her left knee.  The injury was expected to lead to long term pain and limitations with the possibility of a total knee replacement in the years to come.  In awarding the Plaintiff $75,000 for her non-pecuniary damages Madam Justice Dardi made the following findings about the extent of the injury and it’s interference with the Plaintiff’s life:

[50] In summary, I find that the March 4, 2007 accident caused Ms. Haley permanent and significant injury to her left knee and the rupture of her PCL. I accept that surgical repair is not a viable option. I accept that she experiences pain on occasion and that the damage to the PCL may cause her knee to fail under stress or when she performs highly strenuous activity. I also accept that she faces a realistic prospect of developing osteoarthritis of the joint and of requiring a total knee replacement in the future…

[57] She is currently 38-years-old and has suffered a permanent injury to her knee. Her injuries, while not catastrophic, are very real. As a result of the accident she clearly has suffered pain and a loss of enjoyment of life, and she will no doubt continue to do so. As well, as referred to earlier, she faces the realistic prospect of osteoarthritis, and in Dr. Leete’s opinion, it is more likely than not that she will require a total knee replacement in 20 to 25 years….

60] While she attempts to remain as active as possible (she now participates in “quadding”), she remains limited when compared to her pre-accident activities. Since the accident, she has become very cautious about any activity that might injure her knee. She is no longer able to participate in mini-triathlons and dirt-biking with her family. She cannot ski or participate in water sports. It is likely she will continue to be restricted for the rest of her life to some degree in respect of the scope of the activities she would have enjoyed but for the accident.

[61] I have also considered as a factor in my assessment the adverse emotional impact of Ms. Haley’s inability to pursue a line of work which she clearly enjoyed…

[65] Having reviewed all of the authorities provided by both counsel, and in considering all of Ms. Haley’s particular circumstances, I conclude that a fair and reasonable award for non-pecuniary damages is $75,000.

(Illustrations provided courtesy of Artery Studios Ltd.)

Reasons for judgement were released today by the BC Supreme Court, Vernon Registry, awarding a Plaintiff just over $426,000 in total compensation for injuries and losses as a result of a 2007 motor vehicle collision.

Fault for the collision was hotly contested in today’s case (Hildebrand v. Musseau) .   The Defendant was operating a pick-up truck.   The Plaintiff was operating a dirt bike.  The vehicles approached each other from opposite directions.  Both motorists gave evidence that the other was on the wrong side of the road as they approached.  Ultimately the Court concluded that the Defendant was in the Plaintiff’s lane of travel as the vehicles approached each other.  The Plaintiff took evasive measures but was unsuccessful and was struck by the Defendant’s truck.   The Defendant was found 90% at fault for the crash.

The Plaintiff suffered serious injuries including a fractured right ankle and right wrist.  Both of these required surgery.  The Plaintiff also fractured his left femur which required splinting along with various soft tissue injuries.  Some of the injuries, particularly the injury to the knee and ankle, were expected to pose long term problems for the Plaintiff.  In awarding $135,000 for the Plaintiff’ non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) Madam Justice Hyslop provided the following reasons:

[216]     The plaintiff is a young man who suffered three different broken bones in his body. He lost eight and a half months of work convalescing. He had surgery to repair his broken bones and eventually had further surgery in which to remove plates and screws. He was initially confined to a wheelchair, then walked with crutches and eventually a cane. Many of his recreational activities were curtailed, some of which have been curtailed permanently, particularly if they relate to high impact-type activities. He has lost some range of motion in his right ankle which is unlikely to improve. The prognosis for osteoarthritis in the right ankle in the long-term is moderate. His injuries have prevented him in part from pursuing some renovations he wished to do in his home. The plaintiff’s injuries, particularly his right ankle and right knee, affect his ability to carry heavy loads, climb stairs and ladders, squat or kneel for extended periods of time.

[217]     The plaintiff, at the time of the accident, was aged 21 and had recently been certified as a journeyman auto body repair technician, a trade to which he appears to be well-suited.

[218]     He has a permanent disability as it relates to his ankle which prevents him from pursuing activities that he pursued prior to the accident and he may have wished to pursue in the future.

[219]     I assess non-pecuniary damages in the amount of $135,000.00.