$25,000 Non-Pecuniary Assessment for Skin Burn Requiring Surgical Correction

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, assessing damages for a skin burn which required surgical intervention.
In today’s case (Nogueira v. O. Alasaly Pharmacy) the Plaintiff purchased a medicated patch from the Defendant pharmacy to treat muscle soreness in her thigh.  The patch was found to be defective and it caused a burn which required a surgical skin graft for correction.  The Defendant was found at fault for selling the defective product. In assessing non-pecuniary damages at $25,000 Madam Justice Funt provided the following reasons:
[16]         In the late evening of November 12, 2011, the plaintiff was in significant pain and went to the emergency room of her local hospital for further treatment.  She was treated with burn cream and further dressings were applied to the wound.
[17]         On December 13, 2011, Dr. Naysmith, a plastic surgeon with Royal Jubilee Hospital, operated on the burn area using a skin graft technique.  Dr. Naysmith excised the burn, harvested the skin to be grafted, grafted the skin, dressed the donor and burn sites, and stapled burn gauze into position.
[18]         The plaintiff testified that during the month before surgery she had the wound dressing changed every day.  During that period she was “very uncomfortable” when she drove or sat.
[19]         The plaintiff testified that the wound took “a good month” to heal from the surgery.  She says she still experiences tingling in the burn area.  The burn does not affect her mobility.
[20]         On December 4, 2014, Dr. D. Classen, a plastic surgeon, conducted an independent medical examination and prepared a report in contemplation of trial.  The plaintiff entered Dr. Classen’s report, dated March 6, 2014, into evidence.  In his report, Dr. Classen describes the plaintiff’s wound following surgery:
Examination of the left thigh demonstrates a residual scar on the left anterior mid-thigh, 17 centimeters above the knee.  The scar is 7 centimetres in vertical length by 4 centimeters in width.  It is mildly noticeable, as it is hypopigmented compared to the surrounding skin.  It has a slight meshed type appearance to the scar. The contour is depressed by approximately 1 millimeter compared to the surrounding skin.  I could palpate the area with complaint of some mild discomfort and a feeling of numbness described.  The skin graft scar is providing durable skin coverage.  There is no skin breakdown or ulcerations present.  The split thickness skin graft donor site scar is adjacent to this skin graft scar.  The donor site is barely noticeable, there is no contour abnormality.  There is no significant skin discoloration.  It is virtually similar to the surrounding skin appearance.
[21]         Dr. Classen did not testify.  He was not asked to provide an opinion as to whether the plaintiff’s skin was particularly sensitive or was in any way abnormal such that a medicated patch would burn her skin.  This possibility was not suggested in the cross-examination of the plaintiff.
[22]         The plaintiff describes the sight of her thigh now as “disgusting”, “ugly”, “a big splotch”, and feels it is “degrading”.  She does not wear many types of clothes she used to wear.
[23]         From the plaintiff’s presence in the witness box, it was readily apparent to the Court that the plaintiff believed her description of the affected area and was not trying to exaggerate or mislead the Court…
[39]         Section 56(2) of the Sale of Goods Act provides the measure of damages.  Section 56(2) reads:
The measure of damages for breach of warranty is the estimated loss directly and naturally resulting, in the ordinary course of events, from the breach of warranty.
[40]         It is foreseeable that in the ordinary course of events a defective medical analgesic patch (whether defective as a consequence of manufacturing, storage or some other cause) could injure the skin.  It is also foreseeable that a person may be proud of or may be self-conscious as to his or her physical appearance…
[43]         No two cases regarding physical injury will ever be identical.  With respect to a scar, the size, severity and location of the scar are some of the particular factors.  The injured party’s perception of the injury is also an important factor.  In determining the appropriate award, the Court has considered the plaintiff’s anxiety with respect to the scar.  The Court has also included as a factor the tingling she experiences at the site of the scar.  The Court awards $25,000 as non-pecuniary damages.

bc injury law, Madam Justice Funt, Nogueira v. O . Alasaly Pharmacy, Skin Burn

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Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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