Non-Pecuniary Damages for Fractured Tibia and Fibula With Intermedullary Nailing Discussed

(Illustration provided courtesy of Artery Studios Inc.)
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding damages as a result of a 2007 BC motor vehicle collision.
In today’s case (Falati v. Smith) the Plaintiff was injured when he was struck by a vehicle.  He was walking on the sidewalk on Marine Drive in West Vancouver when the Plaintiff’s vehicle mounted the curb, drove across the sidewalk and pinned the plaintiff against a building.
The Plaintiff suffered orthopaedic injuries described as “a crush-type fracture to his left tibia and a fracture to the fibula“.  These injuries required surgical intervention with intermedullary nailing.
The Plaintiff made a reasonably good recovery although he continued to have symptoms of pain by the time of trial.   His orthopaedic surgeon gave the following evidence with respect to prognosis and disability:
At this stage, Mr. Falati has only a mild amount of identifiable impairment in the left leg, ankle and foot. He does have evidence of pain symptoms in the leg and left ankle and left foot. However, he is noted to have essentially near normal motor power function as well as near normal range of motion. As such, his current impairment level is low. Nevertheless, there is an impairment present and the exact diagnosis underlying this impairment remains unclear. As a result, defining the likelihood of this impairment remaining permanent is impossible. It is important to note that disability represents the difference between what an individual is expected to do or required to do, and what they are capable of doing, due to the presence of a physical impairment. Since Mr. Falati still does have some evidence of physical impairment, albeit mild, some element of disability does remain. The probability of such disability remaining on a permanent basis seems very low with respect to the left knee and left tibia specifically. However, with respect to the left ankle, a more clear diagnosis would be required prior to making any estimate of permanence
In assessing his non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $85,000 Mr. Justice Saunders reasoned as follows:
Neither of the orthopaedic surgeons whose reports are in evidence, Dr. Penner and Dr. Jando, have expressed an opinion that the plaintiff’s foot pain and resulting limitations are likely to be permanent; Dr. Jando has offered the option of further surgery to remove the hardware. The plaintiff’s general practitioner, Dr. Kates, has pointed to both surgery, and weight loss, as possible means of addressing the complaints of persistent pain. Dr. Kates does use the phrase, “some element of permanent left ankle disability”, but as he goes on to point to the remaining hardware as a possible cause, I do not take him to mean “irreversible”. Although there is some possibility of a permanent disability in the present case, the evidence does not establish this to be a probability. Taking such possibility into account, I award the plaintiff non-pecuniary damages of $85,000.