$140,000 Non-Pecuniary Assessment for “Severe” Ankle Fracture

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a severe ankle injury.

In today’s case (Chau v. Pereira) the Plaintiff was struck by a vehicle while walking in a marked crosswalk.  The Defendant denied liability but was found fully responsible at trial.   The crash resulted in a severe ankle injury with post traumatic arthritis that was expected to deteriorate to the likely stage of needing fusion or joint replacement.  In assessing non-pecuniary damages at $140,000 Mr. Justice Baird provided the following reasons:

[15]         The plaintiff’s main medical witness was Kevin Wing, an orthopaedic surgeon. He testified that as a result of the accident the plaintiff suffered a severe fracture of his right ankle, with significant related soft tissue injury. Post-traumatic arthritis has set in, resulting in a restricted range of motion and activity-related ankle pain. According to Dr. Wing this is likely to get worse over time. I have no difficulty accepting this. I am satisfied overall that in the years ahead the plaintiff will likely experience a deterioration in his ankle functioning and will ultimately develop what Dr. Wing called “end stage” or seriously debilitating arthritis in this area of his anatomy.

[16]         According to Dr. Wing, the plaintiff may at some point require ankle fusion or ankle replacement surgery. Either procedure typically requires patients to be off work for six months and undergo several months of therapy and rehabilitation. Dr. Wing predicted that even after such a surgery the plaintiff will most likely continue to suffer from significant disability associated with his badly damaged ankle. Dr. Wing testified that the injury had likely been caused by the infliction of thousands of pounds of force on the ankle. The ankle joint was shattered into pieces. The surrounding soft tissue and ligaments critical to ankle function were badly damaged. He likened the injury to an “explosion”. He confirmed that this is a serious and permanently debilitating injury with obvious implications for the plaintiff’s quality of life and ability to earn an income.

[17]         The plaintiff’s other expert witnesses were Min Kyi, a functional capacity therapy expert who evaluated the plaintiff’s diminished physical abilities, which I have already discussed; and Dr. Roy O’Shaughnessy, a psychiatry expert who testified very briefly about the plaintiff’s problems with anxiety following the collision…

[26]         Having considered these authorities, the Stapley factors, the evidence, the personal circumstances of the plaintiff, and the submissions of counsel, I assess non-pecuniary damages in the amount of $140,000.