$65,000 Non Pecuniary Assessment for Fractured Collarbone and Anxiety

Reasons for judgement were published today by the BC Supreme Court, Vernon Registry, assessing damages for a fractured collarbone sustained in a collision.

In today’s case (Folk v. Folk) the Plaintiff was 5 years old and riding as a passenger in a vehicle involved in a collision which caused a fractured collarbone.  This injury healed fully in 2 months.  The Plaintiff also suffered anxiety for several years following the crash.  The Plaintiff attributed various other symptoms to the crash but the Court found causation could not be established.  In assessing non pecuniary damages at $65,000 for the collision related injuries Madam Justice Gropper provided the following reasons:

[75]         There is no dispute that the accident of April 2008 caused Colin’s physical injury: a fractured left collarbone that resolved within two months of the accident. He is entitled to damages for that injury….

[88]         Having reviewed all of the evidence, I am satisfied that the plaintiff has demonstrated that but for the accident, he would not have experienced the panic and anxiety that he experienced after the accident. It is likely that those symptoms continued until 2014, six years after the accident occurred, based upon the reports of Dr. Murphy and Louise Roberts.

[89]         I also accept, on the basis of the lay evidence, that Colin’s demeanour changed as a result of the accident. He became more withdrawn, angry and unhappy. While these symptoms abated, Colin has a speech impairment, some ongoing anxiety in social situations, including an aversion to speaking.

[90]         However, I am equally satisfied that the plaintiff’s speech impairment, and his ongoing, but much diminished, anxiety in social situations (including his aversion to speaking) cannot be considered to have been caused by the accident, applying the “but for” test…

[102]     In respect of Colin’s fractured left collarbone, which resolved in a matter of months and had no permanent effect, I rely on the cases put forward by the defence, that quantify damages for such an injury in the range of $15,000 to $20,000. Because of the plaintiff’s age at the time of the injury and his ability to heal quickly and the limited period of pain related to that injury, I find $15,000 to be the appropriate award for that injury.

[103]     Colin’s symptoms of anxiety and trauma were much more serious. They went on for six years. They interfered significantly with his childhood. Instead of the happy normal child that he was, Colin became withdrawn, unable to communicate, angry, frustrated and terrified by nightmares. His anxiety interfered in what would have been a carefree childhood. Though I have found that it has not had an ongoing effect on Colin’s life, it had to have made his early school years and other psychosocial stressors harder for him to bear.

[104]     Of the cases cited by the plaintiff, Colin’s psychological injuries are most similar to the plaintiff in Nemoto (Litigation Guardian of) v. Phagura, 2014 BCSC 262. The plaintiff in Nemoto was in an accident at age ten. He suffered neck, shoulder, and back pain; headaches; and symptoms of panic and anxiety, including nightmares. His physical and psychological injuries substantially resolved in three years. The trial judge awarded $40,000 in non-pecuniary damages.

[105]     Colin’s psychological injuries persisted for longer than the plaintiff’s in Nemoto. They were also more significant. They impacted his social engagement, willingness to speak, and his ability to cope with his other psychosocial stressors. To account for these differences, I find that that this aspect of Colin’s pain and suffering justifies a significant award of damages. I award $50,000 in respect of this injury.

[106]     In total, the award for pain and suffering is $65,000.

bc injury law, collarbone, Folk v. Folk, fractured collarbone, Madam Justice Gropper

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ERIK
MAGRAKEN

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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