Skip to main content

$50,000 Non-Pecuniary Assessment for "Crossover Toe" Injury

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing non-pecuniary damages for ‘crossover toe’ sustained in a collision.
In today’s case (Chow v. Schuler) the Plaintiff was struck by the Defendant’s vehicle while crossing a crosswalk.  Although the Defendant disputed fault he was found fully liable for the collision.  The Plaintiff suffered a knee strain and eventually developed cross-over toe which required surgical correction.  In assessing non-pecuniary damages at $50,000 Mr. Justice Kent provided the following reasons:
[58]         There is no doubt that the plaintiff did suffer pain and disability both in the immediate aftermath of the accident and the later development of “crossover toe” and the surgical treatment of same. Her mobility was significantly affected and she has been unable to fully return to all of her pre-accident recreational activities including, of course, ballroom dancing. However, while the plaintiff’s pain and discomfort has not completely disappeared, she testified she presently only experiences pain if she walks too long or too fast or if she otherwise puts pressure on her leg in attempting to move objects or the like.
[59]         The plaintiff did seek counseling assistance from a professional psychologist at the suggestion of her family doctor. She was experiencing nightmares about being struck by vehicles and she was having difficulty sleeping. She developed a fear of crossing the road. She testified that the counseling did assist and that today she has no such fears and nightmares are rare.
[60]         An award of general damages for non-pecuniary loss must be fair to all parties and fairness is measured against awards made in comparable cases. This, of course, is only a rough guide as each case depends on its own unique facts. The factors usually considered in making these types of awards, as outlined by the Court of Appeal in numerous cases including Boyd v. Harris, 2004 BCCA146 and Stapley v. Hejslet, 2006 BCCA 34, include:
a.     Age of the plaintiff;
b.     Nature of the injury;
c.     Severity and duration of pain;
d.     Nature and extent of resulting physical and mental disability;
e.     Emotional suffering;
f.      Impairment of life including family, marital and social relationships; and
g.     Loss of lifestyle.
Here, having regard to all of these factors as well as the cases cited by counsel, I award the plaintiff general damages in the amount of $50,000.

$45,000 Non-Pecuniary Damages for Soft Tissue Injury of Foot

Reasons for judgement were released today (Lutz v. Lim) awarding a Plaintiff just over $64,000 in total damages as a result of 2 BC motor vehicle collisions.
Fault was admitted for both crashes leaving the court to deal with the issue of damages.  The Plaintiff suffered a complicated soft tissue injury to his right foot as a result of the first crash.  The Plaintiff’s doctors gave the following opinion with respect to the Plaintiff’s foot injury:
In summary, Mr. Lutz continues to experience significant pain in his right foot, in spite of orthotics and custom-made workboots. He is able to function at work but finds that, after he has been on his feet for more than two hours at a time, the pain in his foot increases. I believe he has a permanent partial disability as a result of the initial motor vehicle accident of April 26th, 2005, when a car ran over his right foot….

Because of the change of foot position, the increased metatarsalgia, and the swelling that occurred around the time of the accident, I think that the accident has given him significant change in his foot shape and deterioration in his foot function as it existed prior to this point.

I think, with regard to the future, he will require custom orthotics and shoes to maintain his employment…

I also think that this would help him improve his recreational activities.

I think that there will be ongoing disability from this injury. He is unlikely to be able to take employment that requires a greater degree of loading of the forefoot than he presently has. His job is well-suited to his various musculoskeletal injuries, but if he has to take part in a job that requires a greater degree of physical activity, I suspect that his foot will become the most rate-limiting area. Therefore, a job more strenuous than he presently has would be inappropriate unless further reconstructive surgery was done to his foot.

In awarding the Plaintiff $45,000 for his non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for his foot injury Mr. Justice Verhoeven summarized the severity of the injury and the effects on the Plaintiff’s life as follows:

[101] Doing the best I can on the evidence, I conclude that the plaintiff has suffered a substantial amount of damage to his foot in the MVA. I conclude, as well, that the MVA has caused a permanent disability in his foot. I conclude that the risk of surgery being required is caused by the MVA injuries. On the evidence, I am unable to find that there was a measurable risk of surgery being required prior to the MVA injuries….

[110] In my view, and adopting the language used by Major J. in Athey v. Leonati, the plaintiff’s foot injury is more in the nature of a “thin skull” case than it is of a “crumbling skull”. The plaintiff’s prior foot injury left him vulnerable to future injury. There is little more than speculation to suggest that his current complaints and his ongoing need for treatment would have or might have occurred in any event. There is therefore insufficient evidence to allow me to reduce the award based upon such a contingency…

[124] In summary, the plaintiff now has had foot pain steadily for the past four-and-a-half years. He has a permanent partial disability with ongoing discomfort in relation to the foot. There is some restriction on his work activities, although he has not made a claim for loss of earnings or earning capacity. He was 38 years of age at the time of the first MVA. He is now 42. There is a significant risk of surgery being required as a result of the accident injury. Although he has not lost any time from work and for the most part he has carried on with his pre-MVA activities, I take into account his stoical nature. He has had to wear orthotics in his footwear and this will continue indefinitely. He suffered a minor injury to the right hand as well.

[125] I accept the submission of plaintiff’s counsel that an appropriate compensation for non-pecuniary loss arising out of MVA No. 1 is $45,000.