$90,000 Non-Pecuniary Damages for Subcapital Hip Fracture Requiring Replacement

Reasons for judgement were released last week by the BC Supreme Court, Vernon Registry, awarding damages for injuries sustained in a trip and fall incident.
In last week’s case (Etson v. Loblaw Companies Limited) the 76 year old plaintiff tripped and fell over a wooden pallet in an aisle while shopping at the Real Canadian Superstore.  The Court found that both the Plaintiff and Defendant were equally at fault for the incident.
The Plaintiff sustained a subcapital fracture to her right hip.  Initially this was treated with internal fixation although the Plaintiff’s pain continued.  She eventually required a total hip replacement following which she recovered reasonably well.  Madam Justice Fisher valued the Plaintiff’s non-pecuniary damages at $90,000 and in arriving at this figure the Court provided the following reasons:

[61]        Ms. Etson was quite reserved in her descriptions of the pain she experienced as a result of her injuries but there is no question that she suffered a tremendous amount of pain.  The initial injury was obviously very painful and it took Ms. Etson about four months to begin to resume her mobility sufficiently to be able to drive and do things for herself.  She suffered a debilitating set-back in August 2009 when the hardware failed and the femoral head in her hip collapsed.  Her mobility deteriorated and she was again unable to do things for herself.  She suffered tremendous and increasing physical pain for about eight months.  She underwent two additional surgeries.  The first, in January 2010, did not alleviate her pain or improve her mobility.  She did not experience any relief from the pain until April 2010 when she had the total hip replacement surgery.

[62]        Ms. Etson had been a very independent and active woman.  She was involved in painting and the arts and was very active in a local painting club and other community events.  After the accident, she was unable to continue any of this involvement and she had considerable difficulty maintaining her independence.  She had to rely on her sister and Ms. Erikson to help her with meals and other things.  She developed ways to get around her house and she managed as best as she could.  However, it is apparent that the severe limitations on her ability to participate in activities outside her home for close to a year and a half left her feeling very isolated.  Moreover, the accident occurred at a very difficult time in Ms. Etson’s life, when her daughter was in the later stages of a terminal illness.  While she said little about this, it was clear to me that her injuries made it practically impossible for her to visit her daughter before her death in April 2009.  Since the hip replacement surgery in April 2010, Ms. Etson’s condition has improved significantly but she has not yet found the spirit to return to her pre-accident activities and she is still not socially active.  I am satisfied that the injury is a factor here, but I also find that some of this lack of spirit is attributed to other factors, such as the death of her daughter.

[63]        Clearly, Ms. Etson’s injuries have had a profound effect of her life.  She has recovered reasonably well since April 2010 but she still has residual problems.  She is limited in how far she can walk, she still uses a cane when walking for more than two or three blocks and she has a bit of a limp. She is able to live independently now but she is still not able to do heavier physical activities such as gardening or snow removal. I do not accept Dr. Moreau’s comment that “there would have been some residual symptoms during her recovery from the hip replacement of about 3 months”.  This statement is not consistent with his own observations of her condition on September 27, 2010, and is not consistent with Ms. Etson’s evidence, which I do accept.  Her residual symptoms have lasted longer than that and while her prognosis is not entirely clear, it is likely that she will be able to resume most, if not all, of her pre-accident activities by the spring.

[64]        I do accept Dr. Moreau’s opinion that Ms. Etson will not require any further treatment or specific rehabilitation and that it is very unlikely that she will have any further problems or disabilities because of the hip injury…

[70] In this case, the injuries had a profound effect on Ms. Etson’s life.  Her active and independent life style, which was important to her, was seriously compromised for over a year and a half.  During that time she experienced significant pain and had to undergo three surgeries.  She is now able to resume most of her former activities but she still has some residual effects.  Given my findings, I assess non-pecuniary damages at $90,000.