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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

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Posts Tagged ‘Chow v. Schuler’

$50,000 Non-Pecuniary Assessment for “Crossover Toe” Injury

February 26th, 2014

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing non-pecuniary damages for ‘crossover toe’ sustained in a collision.

In today’s case (Chow v. Schuler) the Plaintiff was struck by the Defendant’s vehicle while crossing a crosswalk.  Although the Defendant disputed fault he was found fully liable for the collision.  The Plaintiff suffered a knee strain and eventually developed cross-over toe which required surgical correction.  In assessing non-pecuniary damages at $50,000 Mr. Justice Kent provided the following reasons:

[58]         There is no doubt that the plaintiff did suffer pain and disability both in the immediate aftermath of the accident and the later development of “crossover toe” and the surgical treatment of same. Her mobility was significantly affected and she has been unable to fully return to all of her pre-accident recreational activities including, of course, ballroom dancing. However, while the plaintiff’s pain and discomfort has not completely disappeared, she testified she presently only experiences pain if she walks too long or too fast or if she otherwise puts pressure on her leg in attempting to move objects or the like.

[59]         The plaintiff did seek counseling assistance from a professional psychologist at the suggestion of her family doctor. She was experiencing nightmares about being struck by vehicles and she was having difficulty sleeping. She developed a fear of crossing the road. She testified that the counseling did assist and that today she has no such fears and nightmares are rare.

[60]         An award of general damages for non-pecuniary loss must be fair to all parties and fairness is measured against awards made in comparable cases. This, of course, is only a rough guide as each case depends on its own unique facts. The factors usually considered in making these types of awards, as outlined by the Court of Appeal in numerous cases including Boyd v. Harris, 2004 BCCA146 and Stapley v. Hejslet, 2006 BCCA 34, include:

a.     Age of the plaintiff;

b.     Nature of the injury;

c.     Severity and duration of pain;

d.     Nature and extent of resulting physical and mental disability;

e.     Emotional suffering;

f.      Impairment of life including family, marital and social relationships; and

g.     Loss of lifestyle.

Here, having regard to all of these factors as well as the cases cited by counsel, I award the plaintiff general damages in the amount of $50,000.