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$150,000 Non-Pecuniary Assessment for Bilateral Wrist and Femur Fracture

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for bilateral wrist fractures leading to permanent partial dysfunction and a femur fracture.
In today’s case (Ishii v. Wong) the Plaintiff was involved  in a 2012 motorcycle collision caused by the Defendant.  He sustained fractures to both wrists, and his right femur. These injuries requires surgical intervention including the installation of hardware in both wrists and his right leg.  His dominant wrist did not fully heal and was left with permanent dysfunction.  In assessing non-pecuniary damages at $150,000 Madam Justice Gerow provided the following reasons:

[148]     In this case, the nature of the injury was severe. Mr. Ishii was young when he was injured in the 2010 accident. Mr. Ishii has been left with chronic pain and permanent partial disability of his right dominant wrist, and chronic pain in his right leg. The permanent partial disability in his right dominant wrist impacts his ability to rotate items and do heavy repetitive tasks. He is unable to stand or walk for long periods of time, and cannot run for any distance. As a result of the injuries he sustained in the 2010 accident, Mr. Ishii has not been able to return to some of the recreational activities he enjoyed before and is precluded from trying many new recreational activities, such as racket sports, and climbing, and engaging in activities that require repetitive heavy lifting, or full supination of his right hand. Mr. Ishii had to move back home, and lost his independence as a result of the accident. He has suffered from a depressed mood as a result of his ongoing pain and restrictions.

[149]     As set out above, both Mr. Ishii and the Wong defendants have provided cases which support their positions regarding the appropriate award of general damages for the 2010 accident. In my view, the case that is most similar to the case at bar is Hildebrand. In Hildebrand, a 21 year old auto collision repair technician suffered fractures to his right ankle, right wrist and left femur, in addition to soft tissue injuries, abrasion and chipped teeth. The plaintiff underwent surgery to repair the fractures and spent six days in hospital. He was left with ongoing pain and a partial disability. General damages were assessed at $135,000. In my view, the injuries and residual problems Mr. Ishii suffers are slightly more serious. However, as noted in Stapley, while other cases are helpful, an award will vary in each case to meet the specific circumstances of the case.

[150]     Having considered the factors set out in Stapley, it is my view that the appropriate award for pain and suffering arising from the injuries Mr. Ishii sustained in the 2010 accident is $150,000

$140,000 Non-Pecuniary Assessment for "Very Serious" Femur Fracture

Adding to this site’s archived caselaw dealing with non-pecuniary damages for femur injuries, reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, dealing with such a claim.
In this week’s case (Han v. Chahal) the Plaintiff pedestrian was injuries when she was struck by the Defendant’s vehicle while walking in a marked cross walk.  The Defendant was found fully responsible for the crash.  The Plaintiff suffered a variety of injuries the most serious of which was a fractured femur.  Although the Court found some issues with the Plaintiff’s reliability as a witness the Court did accept the injury left her with a degree of chronic pain and limited function.  In assessing non-pecuniary damages at $140,000 Mr. Justice Verhoeven provided the following reasons:
[154]     In summary, the plaintiff was physically healthy prior to the accident.  She suffered a very serious injury to her femur and a moderate injury to her wrist.  These injuries have healed uneventfully from a physical point of view, after two surgeries to her leg.  No specific ongoing organic cause for her hip pain has been established.  Although she likely overstates her degree of disability, she has developed chronic pain, in relation to several areas of her body.  She has depression and anxiety.
[155]     Her major complaint of pain is with respect to her left hip.  When she saw Dr. Chin February 3, 2010, about 14 months after the accident, she had 75% to 80% improvement in her orthopedic injuries, but since then she has development several new pain complaints and, overall, her condition has not improved.  Her chronic pain and depression have resulted in altered mood, lack of energy, fatigue, irritability, and some cognitive difficulties.
[156]     The accident caused a drastic change to the plaintiff’s pre-accident health, lifestyle, and enjoyment of life.  I accept that to date, more than four years post-accident, the plaintiff continues to suffer significantly from the effects of the accident.
[157]     However, the assessment of her loss is complicated by the fact that her evidence is somewhat unreliable.  Further, treatment options have not yet been explored, and the prognosis is uncertain.  There is a substantial risk of pain, suffering, and disability persisting indefinitely.  The preliminary prognosis for complete recovery is negative.  The potential extent of recovery is unclear…
[173]     Having regard to all of the non-exhaustive list of factors commonly considered in relation to assessment of damages for non-pecuniary loss, as set out in Stapley, in the circumstances of this case and bearing in mind the authorities to which I have referred, in my view the appropriate award for non-pecuniary loss is $140,000.

Bus Driver Liable For Accelerating Prior To Elderly Passenger Being Seated

Adding to this site’s archives addressing bus driver liability for injuries to passengers, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with such an incident.
In this week’s case (Wong v. South Coast British Columbia Transportation Authority) the 81 year old plaintiff boarded a bus and was on her way to her seat when “the driver pulled into traffic in an abrupt motion“.    The Plaintiff fell and the driver then “abruptly braked“.  The Plaintiff’s hip was fractured in the incident.
Madam Justice Power found the bus driver was negligent in failing to wait until the elderly plaintiff was seated before accelerating.  In finding the driver partly liable for the incident the Court provided the following reasons:
[25]         In cross-examination, Mr. Pinnell conceded that “it was surprising” that Ms. Wong fell one foot from the fare box and that in the time prior to the fall, he never saw anyone coming down the aisle.  He acknowledged that if he had seen Ms. Wong, he would have told her to sit down.  He agreed that there is a policy and procedures manual for bus drivers and that there is a policy to allow elderly people a chance to sit before moving from a stopped location.  He acknowledged that at examination for discovery he did not think such a policy was in place…
[40]         In all of the circumstances of the case at bar, I am of the view that Mr. Pinnell breached the standard of care of a reasonably prudent bus driver by entering traffic without warning Ms. Wong that he was about to enter traffic and without doing an adequate visual check to ensure that Ms. Wong had returned to her seat or was securely standing.  In so doing he was also in breach of the Operators Policy and Procedures Manual, para 6.11.
The Plaintiff’s fractured hip required surgical intervention.  Despite having an ‘uneventful’ recovery she was left with permanent restrictions in mobility.   The Court went on -to assess non-pecuniary damages at $90,000 before slightly reducing these for contributory negligence.

$85,000 Non-Pecuniary Assessment For Fractured Femur With Permanent Partial Restrictions

It is rare to find caselaw dealing with damages for a femur fracture alone as the forces required to break the body’s biggest bone usually also result in other complex injuries.  Reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, dealing with such an injury without significant complication from other factors.
In this week’s case (Gravelle v. Seargeant) the Plaintiff pedestrian was struck by the Defendant’s vehicle while he was walking on the shoulder of a road.  The impact threw the plaintiff between and 30 feet.  He suffered a fractured right femur which required surgical interventions.  Despite a relatively good recovery he was expected to have some permanent level of restriction due to his injury.  In assessing non-pecuniary damages at $85,000 Mr. Justice Kelleher provided the following reasons:
[50]         The following is the application of these factors to the plaintiff:
(a)      Age of the plaintiff: 
Mr. Gravelle was 16 when the accident happened.  The evidence establishes that he will likely suffer some measure of pain for the rest of his life.
(b)      Nature of the injury:
Mr. Gravelle suffered a fractured right femur that required an open reduction and insertion of an intramedullary nail and locking screws.  He also suffered injuries to his low back, right groin and right knee, which remain a cause of pain.
(c)      Severity and duration of pain:
He was in severe pain for a short period of time.  He was required to take pain medication for 4 – 6 months.  Four and a half years after the accident he continues to suffer pain.
(d)      Disability:
The plaintiff was totally disabled for some six months, and continues to have some measure of disability.
(e)      Emotional suffering:
The plaintiff’s mother testified that the plaintiff was isolated and less confident following the first collision.  He did not seek counselling for this.
(f)       Loss and impairment of life:
Mr. Gravelle’s life was interrupted and altered by the first collision.  He missed part of Grade 10.  His mobility was significantly restricted during the summer.  He has permanent injuries and has some impairment of his ability to perform physical labour and enjoy his former physical pursuits.
(g)      Impairment of family, marital and social relationships:
Mr. Gravelle does not enjoy spending a lot of time with friends.  He was somewhat like this before the accident as well.
(h)      Impairment of physical and mental abilities:
He has a permanent impairment of his physical capabilities.  There is no impairment of his mental abilities.
(i)       Loss of Lifestyle:
Mr. Gravelle was unable to engage in snowboarding, an important part of his life, for some time.  He has been able to return to it, but pain prevents him from snowboarding in the same manner as before.
(j)       Stoicism:
Mr. Gravelle is somewhat stoic in his presentation.  The defendant agrees that the plaintiff should not be penalized for this…
53]         Having considered the plaintiff’s injuries and the factors listed above, in light of the case law, I assess non-pecuniary damages at $85,000.

$115,000 nonpecuniary assessment for fractured femur and chronic pain disorder

Reasons for judgement released recently by the BC Supreme Court, Vancouver Registry, assessing damages for various injuries sustained in a motorcycle accident.
In the recent case (Taylor v. Depew) the plaintiff was riding a motorbike which was involved in a head-on collision with a dune buggy on a narrow road near Campbell River BC.  Fault was disputed with the court ultimately finding that both motorists were to blame.  Liability was split with the plaintiff shouldering 30% of the fault and the defendant 70%.
The plaintiff suffered various injuries the most serious of which was a fractured femur.  This resulted in ligamentous laxity in his knee.   In addition to this the plaintiff suffered disc herniation’s in his low back and ultimately went on to develop chronic pain syndrome.
In assessing nonpecuniary damages at hundred and $115,000 Madam Justice Fenlon provided the following reasons for judgement:
57]         After the accident, Mr. Taylor’s life changed dramatically. In the days immediately following the accident, he underwent surgery to install a rod and pins to stabilize his femur; he remained in hospital for one week. Two further surgeries on his left leg were required: in October 2001 to remove the proximal locking screw; and in March 2003 to remove the remaining hardware in his leg. The recovery from all three surgeries was long and painful, lasting a number of weeks.
[58]          Mr. Taylor required assistance with day-to-day tasks such as cooking, cleaning and bathing during these recovery periods. After the first surgery he had the help of a homecare nurse, and then his friends Sarah Zimmer and Jamie Gonzalez assisted him. The two women helped him again after the second and third surgeries. The surgeries have left Mr. Taylor with marked permanent scarring on his left hip and knee.
[59]         Before the accident, Mr. Taylor had enrolled in an environmental engineering degree program to commence in September 2001. He tried to carry on with his plan to return to school but the pain killers he was taking made it difficult for him to concentrate and his general physical condition and inability to drive made it hard to attend classes. Depression set in and ultimately Mr. Taylor abandoned the environmental engineering program.
[60]         Mr. Taylor has had difficulty dealing with the changes to his life caused by the accident. For a few months he turned to street drugs and alcohol. He became depressed and uses anti-depressants like Effexor to help relieve the symptoms of depression.
[61]         Although Mr. Taylor has seen some improvement in the state of his injuries over time, he still experiences pain on a daily basis. When he sits, stands, or walks for long periods he suffers from pain and numbness in his left leg…
[72]         Awards of damages in other cases provide a guideline only. I must apply the factors listed in Stapley to Mr. Taylor’s particular case. I conclude that an award of $115,000 is an appropriate sum for non-pecuniary damages…