$140,000 Non-Pecuniary Assessment for ACL Injury With Chronic Depression

Adding to this site’s archived cases addressing damages for knee injuries, reasons for judgement were released today by the BC Supreme Court, Kelowna Registry, assessing damages for a chronic knee injury with associated depression.
In today’s case (Cook v. Symons) the Plaintiff was involved in a pedestrian/vehicle accident in 2010.  The Defendants were found fully liable.  The Plaintiff suffered an injury to his anterior cruciate ligament which underwent three surgeries without successful resolution.  He also suffered from chronic depression following his injury and this combination of symptoms permanently disabled him from his trade as an electrician.  In assessing non-pecuniary damages at $140,000 Mr. Justice Kent provided the following reasons:

[188]     There is no doubt and, indeed, the defendants concede, that the plaintiff’s knee injury and the chronic pain and physical disability caused by the same was a result of the accident.  With respect to the plaintiff’s mental health, it is uncontroverted and I find as a fact that, as set out in the June 5, 2014 report of Dr. Semrau,

·                 the plaintiff suffers from depression and the depression was caused by the accident and its aftermath;

·                 despite treatment, the depression has continued such that the plaintiff has been and will continue to be disabled from time to time;

·                 as a result of the accident, the plaintiff has suffered a loss of sense of purpose, self-esteem, and time structuring, due to a lack of work or other substantially productive activity, as well as a vicious circle reinforcement between lowered activity demands and perceived decreased energy;

·                 the fatigue experienced by the plaintiff, including the increase in fatigue since January 2014, has been caused not only by sleep apnea (which is yet to be confirmed) but also by the plaintiff’s chronic pain and depression;

·                 there is a circular interaction between the plaintiff’s functional and physical disabilities on the one hand and his depression on the other, each reinforcing the other in a manner that is likely to continue in the future;

·                 the plaintiffs depression has impaired, delayed, and interrupted his rehabilitation efforts, including recommended diet and exercise regimens; and

·                 the plaintiff will encounter significant future functional difficulties and related educational and employment disability.  

[189]     I also accept the evidence of Dr. Gouws and Mr. Trainor with respect to the plaintiff’s barriers to rehabilitation and employment, and their assessments respecting the plaintiff’s ability to successfully retrain and find/keep employment in the future.  I find as a fact that the plaintiff has chronic knee pain and restricted functional capacity that will permanently preclude him from returning to his previous occupation as an electrician or, indeed, any work that requires prolonged standing or walking.  These physical disabilities have combined with the plaintiff’s depression and emotional/mood problems to trigger significant coping difficulties.  All of this is attributable to the accident.

[190]     I also accept Dr. Gouws’ assessment that the plaintiff continues to be at risk of worsening depression, and that any meaningful rehabilitation will require a team effort on the part of the plaintiff, his family physician (medication management), vocational consultant (job search coaching/assistance), psychologist (counseling and cognitive behavioral therapy), and kinesiologist (viable exercise programming).  While some of the plaintiff’s current medical conditions (diabetes, sleep apnea, low testosterone) may not have been directly caused by the accident, the required team rehabilitation is for the most part necessitated by the combination of chronic pain, restricted functional capacity, and depression, all of which was directly caused by the accident…

[198]     I have read each of these cases and have noted both the similarities and dissimilarities with the present case.  Given the severity of the plaintiff’s suffering, loss of amenities, and loss of enjoyment of life in this case, I award the plaintiff non-pecuniary general damages in the amount of $140,000.