$75,000 Non-Pecuniary Assessment For Labral Tear


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for various soft tissue injuries and a labral tear caused by a motor vehicle collision.
In this week’s case (Foster v. Kindlan and Pineau) the Plaintiff claimed damages from two motor vehicle collisions, the first in 2007, the second in 2009.  Fault was not at issue in either claim.  These collisions caused various soft tissue injuries and a labral tear which continued to pose difficulties for the plaintiff at the time of trial and were expected to continue into the future.  In assessing non-pecuniary damages at $75,000 Mr. Justice Savage provided the following reasons:

[64] In this case the Plaintiff suffered soft tissue injuries to the neck, back, knee, and shoulder and a labral tear to her left hip.  Prior to the 2007 Accidents she led a physically demanding lifestyle working as a fitness instructor, and had a high level of physical fitness.  She was, however, transitioning out of this employment at the time of the 2007 Accident, by training for career as an LPN that would not involve fitness as part of her daily employment activity.

[65] Ms. Foster was not entirely asymptomatic from her 2005 Accident at the time of the 2007 Accident.  It is also apparent that she has had ongoing back issues that required periodic chiropractic treatment unrelated to the 2007 Accident and 2009 Accident.  She also had an earlier knee injury that required surgery.  These factors affect the “original position” to which Ms. Foster must be returned by the award of damages.

[66] I find it unlikely that Ms. Foster will have surgery to the labral tear, based on the opinions of Dr. O’Connor and Dr. Gilbart, whose opinions are to be preferred over that of Dr. Sam.  Dr. O’Connor and Dr. Gilbart have more specialized experience in this area than Dr. Sam, who is a general family physician.  While Ms. Foster experiences pain during her physically demanding employment activities, she is able to take extended (one week or longer) motorcycle trips without any impairment that is apparent to her companions.  The videotape evidence shows a cautious rider but not one prevented from enjoying this pursuit.

[67] Ms. Foster has suffered emotionally during periods where she has not been able to work.  However, her emotional state has not prevented her from taking foreign holidays and motorcycle trips to the Sunshine Coast, Tofino, the East Kootenays and Idaho, and local trips to Chilliwack, Harrison Hot Springs and the Tri-cities area.  Moreover, her emotional issues have had a variety of causes, including relationship issues which are admittedly unrelated to the two accidents.

[68] I have reviewed the cases provided by counsel.  There are aspects of those cases that are helpful, but there are also differences that prevent direct application.  The Defendants’ cases generally involve less seriously injured persons.  Many of the cases submitted by the Plaintiff involve a prognosis for chronic daily pain.  That is not the prognosis for Ms. Foster.  In the circumstances, I award $75,000 in non-pecuniary damages.

$200,000 Non-Pecuniary Damage Assessment For Multiple, Disabling Orthopaedic Injuries

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for multiple, complex, orthopaedic injuries caused by a motor vehicle collision.
In last week’s case (Tompkins v. Bruce) the Plaintiff was injured in a serious 2006 collision which was caused when the Defendant, who had been drinking and was driving while over the legal limit, crossed the centre line and collided with the Plaintiff’s vehicle.  The Defendant was found fully at fault for the crash.
The Plaintiff suffered multiple injuries including rib fractures with a collapsed lung, a left hip fracture, a fractured femur and a fractured patella.  These injuries required surgical intervention.  The Plaintiff had a total hip replacement and likely needed a total knee replacement in the future.

The Plaintiff was a plumber and gas fitter and was rendered totally, permanently disabled from his own occupation.  He was left with a minimal residual earning capacity.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $200,000 Mr. Justice Curtis provided the following reasons:

[47] Wayne Tompkins was 50 years old, living in Pemberton and happily employed as a tradesman when the June 3, 2006 collision occurred.  As a result of the injuries suffered by Mr. Tompkins which were caused by the negligent and criminally irresponsible driving of Tawnya Ley Bruce, Mr. Tompkins’ life has been permanently and very significantly altered.

[48] He has lost his ability to work in his trade at employment he enjoyed.  He has lost a great deal of his mobility and cannot enjoy activities such as skiing, hiking, snowmobiling, slow pitch, tennis and similar activities as he once did.  He cannot stand or sit for long periods of time.  His mood is depressed and his anger harms his relationship with other people ? particularly in the case of Nancy Larkin, his romantic partner after the accident who left him largely because of his anger and irritability.  In addition, Mr. Tompkins now faces the prospect of further surgeries, such as two knee replacements, another hip replacement, the prospect that the condition of his knees and hip may get worse ? and that each surgery comes with a risk of loss of function, dangerous embolisms, scar tissue, long recovery periods and possible poor results.

[49] On the other hand, Mr. Tompkins is an intelligent man whose depression and anger can quite likely be treated and improved.  He now has his own home in Chilliwack where he lives with his dog close to his sons and grandson.  He is capable of driving his car, at least as far as Chilliwack to Whistler.  There is a good chance that continued physical training will maintain his strength and may well improve his mobility and flexibility ? he has been capable of walking without a cane in the past, and even of lifting Nancy Larkin who weighs 115 pounds from her wheelchair into a car and it is not unlikely that his condition may again reach that level.  He did own and operate a boat after the accident and could again, and fishing is still possible.  While his trade work as he once did it is no longer open to him, there is the possibility he may find rewarding employment in some other field…

[53] Mr. Tompkins has been particularly unfortunate in having three major joints ? both knees and his left hip damaged in the collision.  Those injuries are permanent and the condition of those joints likely to get worse.  Considering that and his altered mood and other injuries, I find the sum of $200,000 a fair and reasonable amount for non pecuniary damages.

CPP Benefits Deductions in UMP Claims Discussed – The Likelihood of Payment Test

Section 148.1 of the Insurance (Vehicle) Regulation requires “an amount to which an insured is entitled to under the Canada Pension Plan” to be deducted from UMP claims.  Continuing in my efforts to summarize ICBC UMP decisions, reasons were released addressing this deduction following a serious injury caused by an uninsured motorist.
In SPW v. ICBC the Claimant suffered various injures due the carelessness of an uninsured motorist.  Following arbitration the Claimant’s diminished earning capacity (future wage loss) was assessed at $575,000.  The Claimant was receiving CPP disability payments and if these were continued to be received the present value of the future payments equalled $123,500.  Arbitrator Boskovich had to determine what amount of these benefits should be deducted pursuant to section 148.1.  In deducting 50% of these benefits the Arbitrator provided the following reasons:
165.  In order to determine if future payments should be considered as “applicable deductible amounts” under the Regulations the law is quite settled that there has to be some evidentiary foundation to determine likelihood of the continuance and certainty of such future payments.  The onus of proof that these payments will continue is on the Respondent (ICBC).  While the evidence given with respect to payments having been received in the past is of assistance, it does not provide conclusive evidence that the payments will continue in the future.
166.  That being said, having regard to the submissions delivered by counsel and the admissions made by the Claimant and his counsel and my own findings that the Claimant does have some residual earning capacity, which may or may not translate into income depending on what the Claimant does vocationally, I find there is a 50% contingency of the likelihood that his CPP payments will continue in the future and in this regard 50% of the net present value of the future payments should be deducted from the award.
This case is also worth reviewing for the assessment of non-pecuniary damages for the Claimant’s serious injuries.  In assessing this loss at $175,000 the Arbitrator made the following findings:

23  ….he had suffered multiple injuries, including a complex pelvic fracture with separation of the symphysis pubis and fracture of the right sacrum, a left tibiofibular fracture, a fractured right humeral shaft, fracture of his left second rib, as well as a large laceration to his right thigh and multiple cuts and abrasions.
74.  …those injuries have impacted his ability to walk, his gait and balance and have resulted in neck and lower back pain.  He has been left with chronic discomfort, restricted mobility and reduced ability to participate in physical activities.  I find that his present disability is entirely related to the motor vehicle accident…
77.  After considering the authorities submitted I find, having regard to the horrific circumstances of this accident, the nature of the injuries, the ongoing pain and the residual permanent disability which has resulted in a devastating change in the Claimant’s quality of life, that he is entitled to non-pecuniary damages of $175,000.

$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.

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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