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Month: June 2012

Examination for Discovery Caselaw Update: Scope of Proper Questions

Written by admin on . Posted in BCSC Civil Rule 12, BCSC Civil Rule 15, BCSC Civil Rule 7, Uncategorized.


Two useful, albeit unreported, cases were recently provided to me dealing with objections to two fairly common examination for discovery questions and dealing with their propriety.
In the first case (Blackley v. Newland) the Plaintiff was injured in two motor vehicle collisions.  In the course of examining the Defendant for discovery, the Plaintiff’s lawyer asked a series of “do you have any facts known or knowable to you” questions addressing the specific allegations set out in the Pleadings such as:

  • do you have any facts known or knowable to you that relate in any way to whatever injuries Mr. Blackley received in this collision?
  • do you have any facts known or knowable to you that relate in any way to what pain or suffering Mr. Blackley has had because of this collision?

At trial, the Plaintiff proposed to read this series of questions and the answers that followed to the Jury.  Mr. Justice Williams held that while the exchange should not go to the jury as its prejudicial effect outweighed its probative value, the series of questions was entirely appropriate in the context of an examination for discovery.  Mr. Justice Williams provided the following comments:
[10]  Speaking generally, in this case, I do not find that the questions asked at the examination for discovery are improper.  They can be said to have been substantially informed by the statement of defence that was filed by the defendant.  As is usual, that statement of defence is replete with denials and positings of other alternative propositions.
[11]  The examination for discovery conducted by plaintiff’s counsel was obviously shaped in part as a response to the pleadings of the defendant and was an appropriate use of the examination process, specifically to discovery the defendant’s case.
In the second decision (Evans v. Parsons) the Defendant put a medico-legal report to the Plaintiff and asked the broad (and arguably compound) question “Okay.  Was there — the facts in Dr. Aiken’s report, was there anything that struck you as incorrect?“.  The Plaintiff’s lawyer objected to the question resulting in a chambers application.  The Defendant argued the question was fair and further that the limited two hour discovery in Rule 15 matters allowed this type of a short cut question.
Master Caldwell disagreed finding the question was too broad and vague.  In doing so the Court provided the following reasons:
All right.  Thank you.  Applications to have a subsequent examination for discovery done specifically to address what I do find as an extremely general and vague question which was asked and objected to at the first discovery.  That comment probably leads one to surmise the application will be dismissed, at it will.  There was an opportunity to specify what facts were being referred to, and counsel refused to further qualify.  There’s a reason for short discoveries in rule 15-1 cases.  Two hours were granted.  If this was an important question, it could have been addressed earlier in the discovery.  I don’t, in the circumstances of the context of the question, believe it to have been a fair question to the plaintiff.  It was far too general, and, as I say, defence counsel refused the opportunity to further qualify or narrow it.  I’m not going to force the Plaintiff to answer such a general question.  Application is dismissed.  Costs to the Plaintiff.
To my knowledge these judgements are not yet publicly available.  As always, I’m happy to provide a copy to anyone who contacts me and requests copies.

Bullock Orders and Judicial Discretion

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, Uncategorized.


As previoulsy discussed, when a Plaintiff sues 2 parties and succeeds only against one the Court had a discretion under Rule 14-1(18) to order that the unsuccessful defendant pay the successful defendants costs.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating the flexibility of this discretion in action.
In last week’s case (Bakker v. Nahanee) the Plaintiff was injured when struck by a stolen vehicle being driven by the Defendant.  The Plaintiff sued for damages and, as is customary in BC, also sued the Registered owner of the vehicle alleging vicarious liability pursuant to section 86 of BC’s Motor Vehicle Act. As the lawsuit progressed it became clear that the at fault vehicle was indeed stolen making the vicarious liability claims untenable.
Ultimately the action was dismissed against the owner and a settlement was reached with respect to the claim against the driver.  The Plaintiff applied for an order that the Driver pay the costs of the successful owner.  Madam Justice Fitzpatrick agreed such a result was justified but only until the examination for discovery phase where it was obvious that the vicarious liability claims would not succeed.  The Court provided the following reasons:

[40] Supreme Court Civil Rule 14-1 (18) provides that the Court may exercise its discretion in ordering that the costs of one defendant be paid by another defendant:

If the costs of one defendant against a plaintiff ought to be paid by another defendant, the court may order payment to be made by one defendant to the other directly, or may order the plaintiff to pay the costs of the successful defendant and allow the plaintiff to include those costs as a disbursement in the costs payable to the plaintiff by the unsuccessful defendant…

[52] It is not a novel concept that when preparing pleadings, all parties who are potentially liable should be included where a valid cause of action can be reasonably advanced. This applies equally in the arena of motor vehicle litigation. In this respect, Mr. Bakker also relied on the evidence of Mr. David Kolb, a Vancouver lawyer who practices in this area. He states that an owner of the vehicle in question is always named as a defendant arising from the statutory vicarious liability under the Motor Vehicle Act. He goes on to state that even if the car was purportedly stolen, it is wise to err on the side of caution and name all parties until further investigations are done to ensure that all facts are known before the owner is released from the litigation. He cites as an example, that while the driver/thief and the owner may have different names, further investigations may in fact reveal that they were related and resided together, in which case the owner would be liable even if a stolen vehicle is involved. There may also be issues of fraud or improper motive on the part of the owner who reported the vehicle as stolen. Until such facts as may establish liability are ruled out, it is a prudent practice to name the owner.

[53] In these circumstances, as a general proposition, I am of the view that Mr. Bakker was reasonable in naming Ms. Ang and GMAC as defendants to this action…

[77] In my view, and exercising my discretion, the granting of a Bullock order is appropriate in the circumstances but the order should be limited, similar to that which was ordered in Cominco at 212. Accordingly, Mr. Bakker is entitled to a Bullock order but only in respect of the costs incurred up to and including the examination for discovery of Ms. Ang on September 20, 2007. By that time, Mr. Bakker’s counsel had elicited sufficient evidence from Ms. Ang to be satisfied that she and GMAC had no vicarious liability and that there were no mechanical issues relating to the vehicle. Beyond September 20, 2007, I am unable to say that it would be just or fair to fix Mr. Nahanee with the costs of Ms. Ang and GMAC.

Expert Report Excluded for Tardiness and Credibility Comments

Written by admin on . Posted in BCSC Civil Rule 11, independent medical exams, Uncategorized.

A short but useful analysis was set out in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry, addressing the admissibility of a tardy expert report.
In the recent case (Stanikzai v. Bola) the Plaintiff was injured in a 2007 collision.  In the course of the claim the Defendant served a medical report but did so out of the time required by Rule 11-6(3).  Mr. Justice Smith declined to exercise his discretion to admit the report under Rule 11-7(6) finding that the report “would not be of assistance in any event” noting the expert’s opinion improperly delves into credibility.  Mr. Justice Smith provided the following reasons:

[28] The opinions of Dr. Caillier and Dr. Yu are not contradicted by any other medical opinion. At trial, the defendant sought to enter a medical report from an orthopedic surgeon, Dr. Ponsford, that had not been served within the 84 day notice period required by Rule 11-6(3). I declined to exercise my discretion to shorten the required notice period and admit the report, largely because I found it would not be of assistance in any event.

[29] The essence of Dr. Ponsford’s opinion was that he was unable to provide a firm medical opinion because of what he regarded as inconsistencies and contradictions within the plaintiff’s history. Credibility is, of course, a matter for the court, not the expert witness.

Supreme Court of Canada Confirms Heightened Standard of Care When Driving Near Children

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized.


Last week the Supreme Court of Canada released reasons for judgement discussing the standard of care for motorists driving near children.
In last week’s case (Anapolis County District School Board v. Marshall) the Plaintiff, who was 4 years old at the time, suffered “catastrophic” injuries when struck by a school bus.  His case was dismissed at trial with a Jury finding the motorist was not negligent.  The Nova Scotia Court of Appeal ordered a new trial finding the Judge’s charge to the Jury was confusing.  The School Board appealed further and in a split decision the Supreme Court of Canada upheld the trial result finding the Judge’s charge to the Jury was appropriate.
The following passage was included in the Judge’s charge to the Jury addressing the standard of care when driving near children:
In a school or playground area or in a built up residential district, a motorist should drive more slowly and carefully and keep a lookout for the possibility of children running out into the street. Here you must decide whether the circumstances were such as to put the defendant motorist on notice that he was approaching an area where children were likely to be, and therefore should exercise greater care in the operation of his motor vehicle.
In dissenting reasons for Judgement, Justice Cromwell found that the Jury charge was in fact confusing and that the heightened standard of care when driving near children needed to be stressed even more by the trial judge.  Justice Cromwell provided the following reasons:
The critical instruction was that the jury had to consider whether the circumstances were such as to put the defendant motorist on notice that he was approaching an area where children were likely to be and should therefore exercise greater care. This instruction was given almost in passing and in the midst of confusing instructions about the duty of pedestrians and self-contradictory instructions about the burden of proof. The plaintiff was entitled to have the key liability issue in the case put to the jury in clear terms.  Looking at the charge as a whole, this, in my respectful view, did not occur.  The misdirection may have given rise to an injustice.  I would therefore dismiss the appeal.

BC Court of Appeal Upholds Cost of Care Award for Pilates

Written by admin on . Posted in Cost of Future Care Cases. 111 Comments on BC Court of Appeal Upholds Cost of Care Award for Pilates

Reasons for judgement were released this week by the BC Court of Appeal largely upholding a trial award for damgages following a motor vehicle collision including damages for the cost of future pilates.
In this week’s case (Tsalamandris v. McLeod) the Plaintiff was injured in two collisions, the first in 2004, the second in 2006.  At trial the Court found the collisions resulted in permanent injury and awarded damages accordingly.  Included in these were damages of $93,000 for pilates for the Plaintiff’s life expectancy.  The Defendants appealed this award arguing it was excessive.  The BC Court of Appeal, while making a modest reduction in this award to account for negative contingencies, largely upheld the award.  In doing so the Court provided the following reasons:

[61] The appellants allege that the trial judge erred in over-compensating for certain future care costs; namely, the cost of a Pilates programme, child care and a membership to a community centre.

[62] The test for assessing future care costs is well-settled: the test is whether the costs are reasonable and whether the items are medically necessary: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at page 78; affirmed (1987), 49 B.C.L.R. (2d) 99 (C.A.):

3.         The primary emphasis in assessing damages for a serious injury is provision of adequate future care. The award for future care is based on what is reasonably necessary to promote the mental and physical health of the plaintiff.

[63] McLachlin J., as she then was, then went on to state what has become the frequently cited formulation of the “test” for future care awards at page 84:

The test for determining the appropriate award under the heading of cost of future care, it may be inferred, is an objective one based on medical evidence.

These authorities establish (1) that there must be a medical justification for claims for cost of future care; and (2) that the claims must be reasonable…

[65] The trial judge based her award on her finding that this particular Pilates programme was medically necessary in assisting the respondent manage her chronic pain and, consequentially, her chronic depression.  She relied on medical evidence that the respondent should continue with this programme indefinitely.

[66] She also found that the use of the community centre, particularly the opportunity it gave to exercise in a therapeutic pool, was medically beneficial and that it was reasonable to include therespondent’s portion of a family membership as a cost of future treatment.  The appellants do not contest the benefit of exercising in the community centre, but argue that the failure to consider any contingencies results in over-compensation.

[67] I am satisfied that there was evidence before the trial judge capable of supporting the inference that this particular Pilates programme offered the respondent benefits not available in other programmes and not easily replicated by exercising at home.  Similarly, the evidence is capable of supporting the conclusion that the respondent would benefit from using the programme consistently and continuously regardless of the “waxing and waning” of her depression.  I do not think the trial judge made any error in failing to recognize a negative contingency based on temporary improvements in the respondent’s depression.

$100,000 Non-Pecuniary Assessment For S1 and Sciatic Nerve Irritation

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Spine Injury Cases, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic pain caused by low back nerve root irritation.
In this week’s case (Stanikzai v. Bola) the Plaintiff was involved in a 2007 motor vehicle collision.  The Plaintiff sustained various soft tissue injuries and in addition the crash caused persistent low back pain involving the Plaintiff’s S1 and sciatic nerves.  The Plaintiff’s symptoms were expected to continue with the prognosis being “quite guarded“.

Mr. Justice Smith assessed non-pecuniary damages at $100,000 although reduced this amount by 15% to account for a “measurable risk” that the Plaintiff would have experienced similar symptoms even without the collision due to pre-existing factors.  In arriving at this assessment Mr. Justice Smith provided the following reasons:
[24] Dr. Yu also believes the accident caused a low back injury that resulted in left sided sciatic pain with “obvious clinical signs of an S1 nerve root irritation.” Like Dr. Caillier, he said the plaintiff had pre-existing degenerative disc disease, but that is a very common condition and does not necessarily cause pain or other symptoms. However, Dr. Yu agreed on cross-examination that the plaintiff’s disc degeneration is severe for a person his age. Dr. Yu and Dr. Caillier also agreed that the disc degeneration put the plaintiff at increased risk for back pain and sciatica and that disc herniation and resulting pain can occur without any significant trauma…

[26] Dr. Caillier said that given the chronic nature of the plaintiff’s symptoms, he is likely to have ongoing low back and radiating leg pain as well as sensory disturbance and weakness in the left leg. Although she says some improvement may be possible with medication and a physical reconditioning program, his prognosis “remains quite guarded.” She said his ability to work will be effected by his low back symptoms and resulting limitations in “sitting, standing, lifting, carrying, bending, twisting, crouching, as well as any other impact activities.” She concludes:

It is my opinion that Mr. Stanikzia’s injuries sustained in the motor vehicle accident of August 25, 2007 have had a significant negative impact upon his future employability as well as lifestyle, and in this regard I am in agreement with Dr. Yu. I am also in agreement that there will be some longterm disability associated with his symptoms, whether he chooses to go forward with surgical or nonsurgical options.

[27] Dr. Yu said the plaintiff’s symptoms will likely “persist for the foreseeable future.” Although surgery could be performed to remove the bulging disc, Dr. Yu said even that is unlikely to provide complete relief.

[28] The opinions of Dr. Caillier and Dr. Yu are not contradicted by any other medical opinion…

[31] The Defendants agree that the plaintiff suffered some injury, but say his spine was already in a severely degenerated condition and the accident only aggravated or accelerated that pre-existing condition. They also say there was a significant risk that condition would have detrimentally affected the plaintiff in the future even without the accident. Those are issues to be considered on assessment of damages. Based on the only medical evidence that is before me, I find that the plaintiff has a low back injury, with associated nerve root involvement, that was caused or contributed to by the accident.

[32] I also find that the plaintiff has experienced and will continue to experience low back pain. Based on his evidence and that of other witnesses, I find that he remains able to do a variety of day-to-day tasks, but is restricted from more strenuous activities, including his former recreational activities, and that the pain significantly interferes with his quality of life…

[42] Apart from what I have found to be a real possibility of future back problems in any event, I find Majer and Crane to be the most comparable. Both cases involved ongoing and likely permanent back pain that, while not completely disabling, severely limited the plaintiff’s work and recreational activities. Both involved pre-existing conditions that were asymptomatic at the time of the accident, although the plaintiff in Crane had, like this plaintiff, a previous history of back pain. The court awarded non-pecuniary damages of $95,000 in Majer and $100,000 in Crane.

[43] If I had not found the plaintiff to have been at significant risk for back problems, I would have assessed non-pecuniary damages of $100,000. In recognition of that risk, I apply 15 per cent reduction and assess non-pecuniary damages at $85,000.

$75,000 Non-Pecuniary Assessment for Thoracic Outlet Syndrome

Written by admin on . Posted in ICBC Thoracic Outlet Syndrome Cases, Uncategorized.

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing non-pecuniary damages for Thoracic Outlet Syndrome caused by a motor vehicle collision.
In last week’s case (Kovac v. Moscone) the Plaintiff was involved in a 2004 collision.  Fault for the incident was admitted by the Defendant.  The Plaintiff claimed that she suffered various injuries in this incident and claimed approximately $3 million in damages at trial.  While much the Plaintiff’s claim was rejected with findings that the Plaintiff’s disability had an origin in events other than the collision, Mr. Justice Harvey found that the collision did cause a Thoracic Outlet Syndrome.  In assessing non-pecuniary damages at $75,000 for this injury the Court provided the following reasons:

[490] While I have rejected much of what the plaintiff testified to regarding her post-accident condition, the reference to tingling and numbness is borne out by repeated references to the condition which predate the fall.

[491] Specifically she complained of the phenomena to Dr. McLachlan in May of 2004 and later to her replacements on two separate occasions in 2005. The last appointment, prior to the fall, resulted in a referral to Dr. Mezei.

[492] The question that remains is, what is the cause?..

[501] On balance, I am persuaded that the plaintiff’s symptoms of arm and hand numbness/tingling were likely as a result of the accident. I say this because of the onset of the symptoms proximate to the accident and the absence of another plausible explanation for their appearance.

[502] Whether the diagnosis is TOS or, as described by Dr. Hershler, a “variant” of TOS, I conclude ongoing symptoms of occasional numbness and tingling in the plaintiff’s arms and hands is as a result of the accident.

[503] Save for restrictions on reaching overhead, which may cause an onset of the symptoms and therefore should be avoided, the symptoms I find attributable to the accident in no way impact the plaintiff’s ability to work as an elementary school teacher…

12] The injuries caused by the defendant are moderate soft tissue injuries to the upper and low back area together with TOS. The former injuries were, in the main, resolved by January 2006. I accept the plaintiff had occasional flare-ups as referenced in her medical chart entries. However, the plaintiff had a history of low back pain unrelated to the accident as noted in her original report to the adjuster.

[513] The symptoms of TOS are ongoing but, as earlier noted, are not the source of her inability to work full time. The plaintiff’s chronic pain and depression likely rule out any substantial chance of overall improvement in her TOS symptoms and the assessment of her non-pecuniary loss needs to take into account the chronicity of her symptoms related to the accident.

[514] With the factors from Stapley in mind, I assess the plaintiff’s non-pecuniary damages at $75,000.

Court Should Avoid "Unduly Punitive" Costs Awards in Face of Formal Settlement Offers

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9, ICBC No-Fault (Part 7) Benefits, Uncategorized.

In a good demonstration of the Court’s discretion following a trial where a Plaintiff does not beat a pre-trial defence formal settlement offer, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, taking a Plaintiff’s post offer costs and disbursements away but not requiring the Plaintiff to pay the Defendant’s costs and disbursements.
In this week’s case (Tompkins v. Bruce) the Plaintiff turned down a pre-trial formal settlement offer of $950,000.  Following trial the Plaintiff was awarded net damages of $851,437.  ICBC applied for post offer costs.  Mr. Justice Curtis found such a result would not be appropriate and instead took away the Plaintiff’s post offer costs and disbursements.  In doing so the Court provided the following reasons:

[28] When the offer in this case was received on October 6, 2011, the plaintiff and his counsel were in possession of the information necessary to make a realistic assessment of the potential recovery.  Naturally, there is no mathematical certainty in those matters and differing courts may give differing amounts.  The plaintiff and his counsel would clearly have contemplated a range of possible recoveryies.  The plaintiff, of course, hopes for the high end of the range and the paying party the low ? settlements are often made somewhere in between.

[29] The offer in this case was reasonable on the facts of the case as they were known to the parties.  It could reasonably have been accepted as being within the range of possible recovery, although likely it would not have been thought by either party at the high end of the range.  The amount of the Offer was reasonable as was its timing: the information necessary to assess the claim was in the possession of the parties, yet there was plenty of time to give careful consideration to the matter before the November trial date.  On the other hand, Mr. Tompkins was seriously injured.  He and his counsel’s view of the matter was that it was worthwhile going to court in the hope of getting a significantly higher award.  It cannot be said that such a decision was unreasonable at the time.

[30] The purpose of cost consequences of reasonable offers is to encourage settlement.  On the other hand, onerous cost penalties should not discourage the seriously injured from a proper hearing and a chance to obtain a higher award, nor should they seriously subtract from what the court has found is appropriate compensation for the injury.

[31] Considering the factors set out in the Rules, it is my opinion that the interests of justice are best served in this case by awarding Mr. Tompkins his costs and disbursements up to and including October 31, 2011, but disallowing them after that date, with the Third Party to bear its own costs.  There is then a consequence for not accepting a reasonable Offer, but the consequence is not unduly punitive in the circumstances.

Today’s case is also worth reviewing for the Court’s discussion of various Part 7 Deductions following a tort action.

Court Prohibits Lawyer From All 'Current or Future Representation of Claimants in the IAP'

Written by admin on . Posted in Sexual Assault Civil Cases, Uncategorized.


In a rare judicial intervention into a lawyer’s practice, reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, stripping a lawyer from all of his cases relating to the residential school Independent Assessment Process class action settlement.  The Court determined it had jurisdiction to make such an order pursuant to section 12 of BC’s Class Proceedings Act.
In yesterday’s case (Fontaine v. Canada (Attorney General)) lawyer David Blott was on record ‘for approximately 2,900 (IAP) claimants‘.  ‘Concerns‘ were raised with respect to this lawyer’s practice.  These led to an investigation of the lawyers practice resulting in a final report with various troubling findings (these are highlighted at paragraphs 17 and 18 of the reasons for judgement).
An application was made seeking significant judicial intervention including an order stripping the lawyer of all of his IAP files.  In granting this extraordinary relief, Madam Justice Brown provided, amongst other criticism, the following comments:

[167] The conclusion of the LSA panel regarding Mr. Blott’s conduct bears repeating:

But after considering all of the evidence in this matter and hearing Mr. Blott, we continue to be concerned that Mr. Blott does not appear to understand what it means to be a lawyer.  We are concerned that Mr. Blott appears not to recognize that his primary role is as a fiduciary and everything else is secondary.

[168] I share the LSA’s concern that Mr. Blott does not understand what it means to be a lawyer.  Further, while I also understand the desire to avoid additional victimization of the members of an already-vulnerable class, a more lasting remedy than the interim measure implemented by the LSA is required.  The process approved by the LSA, and advanced by Mr. Blott on this application, would see at least 1,500 clients moved from the Blott firm to other lawyers in any event.  Viewed in that light, the issue is not whether disruption will be experienced by Blott clients, but rather the number of clients who will experience it.

[169] It would be far better to have this client transfer process conducted under the supervision of the court and it is necessary for the integrity of the process and the protection of the clients that it be a complete transfer.  Therefore, I will accept and implement the Monitor’s recommendation in respect of the removal of David Blott, David Blott Professional Corporation, Blott & Company, and any associated entity from the current or future representation of claimants in the IAP or any other process embodied in the settlement.

$75,000 Non-Pecuniary Assessment for Scapholunate Ligament Tear with Persistent Limitations

Written by admin on . Posted in ICBC Wrist Injury Cases, Uncategorized. 55 Comments on $75,000 Non-Pecuniary Assessment for Scapholunate Ligament Tear with Persistent Limitations

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a wrist injury causing long term limitations.
In this week’s case (Jackson v. Jeffries) the Plaintiff was involved in a 2008 head on collision.  The Defendant admitted fault for the crash.  The Plaintiff, who had learning difficulties, trained to be a plumber and was working as an apprentice plumber by the time of the collision.  The crash caused a Scapholunate ligament injury to his wrist which required surgery.  He was left with persistent pain and stiffness in his wrist and, as a result of these limitations, was no longer medically suited for his physical career.  In assessing non-pecuniary damages at $75,000 the Court provided the following reasons:

[39] Dr. Perey, an orthopaedic surgeon specializing in hand, wrist and elbow surgery, saw Mr. Jackson on February 4, 2010, on referral from Dr Wong.  Mr. Jackson was complaining of activity related wrist pain, notwithstanding that x-rays and an MRI did not reveal any abnormality.  Dr. Perey suspected a scapholunate ligament tear which was confirmed during wrist arthroscopic surgery performed May 10, 2010.

[40] Following surgery, Mr. Jackson was placed in a splint for 10 days followed by a cast for 8-10 weeks.  Dr. Perey wrote in his medical report of August 31, 2010, that Mr. Jackson was making “remarkable strides” although he had residual pain and stiffness.

[41] It was Dr. Perey’s prognosis that Mr. Jackson’s symptoms would continue to improve, but that he would likely have some persistent pain and stiffness with his wrist which would be aggravated by heavy use.  Dr. Perey recommended “a re-training program to a less physically demanding occupation than a plumber.”  He concluded Mr. Jackson could “resume intermittent physical activities involved in hobbies and sports.”…

[71] As Dr. Feldman described, Mr. Jackson has a partial permanent disability which will result in him not being able to continue as a plumber in the future.  He will be left with ongoing back pain and stiffness and weakness in his wrist.

[72] Mr. Jackson is not fitted to labouring-type work or other work which will place strain on his back and wrist.  The range of potential occupations has been narrowed as a result of the injuries…

[84] As the cases are similar on their facts, I award Mr. Jackson non-pecuniary damages of $75,000.