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$125,000 Non-Pecuniary Assessment for Wrist Injury With “Significant Derangement”

Written by ERIK MAGRAKEN on . Posted in ICBC Wrist Injury Cases.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a complex wrist injury with chronic limitations.

In today’s case (Sarginson v. Nordquist) the Plaintiff was involved in a 2014 collision.  The Defendant was liable.  The crash resulted in a complicated wrist injury which, despite undergoing several surgeries, did not fully recover and was left with ‘significant derangement’.  Additionally there were some soft tissue injuries and some related psychological injury.  In assessing non-pecuniary damages at $125,000 Madam Justice Winteringham provided the following reasons:

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$85,000 Non-Pecuniary Assessment For Chronic Wrist Injury

Written by admin on . Posted in ICBC Wrist Injury Cases.

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, assessing damages for a permanent wrist injury sustained in a vehicle collision.
In today’s case (Fatin v. Watson) the Plaintiff was involved in a 2014 collision.  The Defendant disputed fault but ultimately was found 75% to blame.
The Plaintiff suffered a variety of injuries the most serious of which affected his wrist and was expected to be permanent. In assessing non-pecuniary loss at $85,000 prior to apportionment of damages Mr. Justice Grauer provided the following reasons:

[28]         Dr. Fatin suffered a blow to his head and his left shoulder, but neither of these caused any lasting injury.  The significant injury was to his right wrist.  He suffered, and continues to suffer, from a condition called “SLAC wrist”.  SLAC is the medical short form for scapholunate advanced collapse, and comprises injury to the right scapholunate ligament leading to intercarpal and radialcarpal osteoarthritis.

[29]         This injury has had a marked effect on Dr. Fatin’s lifestyle.  Although retired from medicine for some years, he has been very active in carrying out extensive renovations and landscaping to the homes and recreational properties in which he and his family have lived, and was active in activities such as golf and bocce.  He can no longer lift a heavy item, wield a hammer, drive a screw, swing a golf club or put a backspin on a bocce ball.  He wears a brace on his right wrist to minimize the pain that comes with movement. 

[30]         The injury itself and the wrist osteoarthritis were not caused by the motor vehicle accident, but were pre-existing degenerative conditions that were asymptomatic.  It is not contested that the collision caused the osteoarthritis to become symptomatic, and that he will have a permanent disability in the form of pain, decreased wrist movement and decreased strength in the right upper limb. 

[31]         No one can say whether or when it would have eventually become symptomatic but for the accident.  His treating plastic surgeon, Dr. Slobodan Djurickovic, who has a special interest in hand and wrist surgery, wrote in his report:

It is impossible to know whether or not he would have had significant wrist pain had he not been involved in an accident.  It is my opinion that he likely would not have developed severe wrist pain.  He had significant arthritic changes and no pain into his 75th year and was able to golf etc.  As a result I feel he would have likely had only mildly painful wrist arthritis at the most if it weren’t for the motor vehicle accident.

[32]         I accept Dr. Djurickovic’s opinion.  It is consistent with the opinion of the defence orthopedic surgeon, Dr. Brenda Markland, who wrote in her report:

It is likely that Dr. Fatin would eventually have become aware of the osteoarthritis in his right wrist, but it is difficult to predict exactly when that would have happened.  After all, he made it to the age of 75 years without any symptoms, and might have lived out the rest of his life without knowing that the problem existed.  However, a fall on the outstretched hand or the strenuous activity involved in renovations might have brought out the symptoms earlier, or the progression of the degenerative changes over time might have given him gradually increasing pain.

[33]         Accordingly, I find that the motor vehicle collision caused Dr. Fatin’s pre-existing osteoarthritis to become symptomatic to the point where it became disabling, and that he would not have suffered that degree of disability but for the accident.

[34]         The only potential treatment is surgical: either a wrist fusion, which would likely relieve pain but completely limit movement, or a wrist joint replacement (arthroplasty), from which, according to Dr. Djurickovic, Dr. Fatin could expect a reasonable result, with reduction in pain, increased range of motion, and more comfort in activities of daily living, lighter duties and hobbies.  It is not clear that Dr. Fatin would be able to resume golf or undertake renovations, and he would be advised to continue wearing a splint for anything more than light activities.

[35]         Given Dr. Fatin’s age and physical demands, as well as the fact that he is right hand dominant, it is Dr. Djurickovic’s recommendation that he undergo the wrist replacement procedure.  Dr. Fatin is still considering his options…

[40]         Dr. Fatin is a man who took great satisfaction from his ability to carry out manual tasks at which he was very good.  These included, as I have noted, renovating his several houses, extensive maintenance, repair work, landscaping and gardening.  He engaged in these all his life, including in his retirement.  He has been considerably more active than many of his age.  All of this has been greatly impaired by his injury.  In addition, the leisure activities he has enjoyed in retirement have also been affected, particularly golf.  For him, the loss of independence that we all face as we age has been greatly accelerated.  Dr. Fatin has faced this stoically, but not without real frustration.

[41]         There is no doubt that his injury is permanent.  It is possible that wrist replacement surgery would improve things, but it would not cure the condition.  Dr. Fatin has expressed some reluctance to proceed with such surgery because of experience he has had from procedures in the past where he has suffered side effects usually limited to 1% or so of the population.  There nevertheless remains, I find, a real and substantial possibility that he will choose to undergo such a procedure, if for no reason other than to reduce pain and relieve frustration, and I assess the likelihood at 50%.

[42]         Taking all of these factors into account, I assess Dr. Fatin’s claim for non-pecuniary damages at $85,000. 

$95,000 Non-Pecuniary Assessment For Chronic Wrist and Thumb Injury

Written by admin on . Posted in ICBC Hand Injury Cases, ICBC Wrist Injury Cases.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic hand injury caused by a vehicle collision.
In today’s case (Burke v. Schwetje) the Plaintiff was involved in a 2010 collision caused by the Defendant.  The Defendant admitted fault.  The collision caused a hand and thumb injury resulting in permanent partial disability.   The Plaintiff did, however, have a number of pre-existing issues which likely would have led to some overlapping disability described as “a number of quiescent but present conditions in his hands and wrists that would likely have become increasingly symptomatic over time in any event of the Collision.”
In assessing non-pecuniary damages at $95,000 Madam Justice Russell provided the following reasons:

[117]     I am aware that the plaintiff has not been able to continue as a commercial fisherman since 2013 and before that, had some serious functional limitations on his abilities. His culture, his friendships and his livelihood have all changed substantially since the Collision and because of the Collision.

[118]     The plaintiff’s right wrist symptoms were aggravated significantly by the Collision and he has had continuing pain in his thumb and his wrist for which he takes OTC medications and may choose to have one or possibly two surgeries.

[119]     As a man of 67 at the time of the Collision, his career has been shortened by the aggravation of his previously only mildly symptomatic arthritis.

…

[122]     Given the agreement of the defendants with the quantum of non-pecuniary damages which the plaintiff seeks and my finding that that amount is appropriate in the circumstances, I award him $95,000.

[123]     The award of damages under this head includes an amount for loss of housekeeping or gardening capacity

$90,000 Non-Pecuniary Assessment for Chronic Wrist Injury

Written by admin on . Posted in ICBC Wrist Injury Cases.

Reasons for judgement were released today by the BC Supreme Court, Kelowna Registry, assessing damages for a chronic wrist injury.
In today’s case (Ackerman v. Pandher) the Plaintiff was involved in a 2011 collision.  The Defendants admitted fault.  The Plaintiff worked as a tile setter and the chronic injury disabled him from his profession.  In assessing non-pecuniary damages at $90,000 Mr. Justice Schultes provided the following reasons:

[29]         The medical evidence about Mr. Ackermann’s wrist injury and its effects was not disputed. It indicates that he suffered what is known as a “perilunate dislocation injury[1]” in the accident. This results in “significant soft tissue/ligamentous disruption within the wrist.[2]” Some degree of stiffness is usually seen in patients with this type of injury and his ongoing symptoms are considered to be “reasonable given the nature and extent of his injury.[3]” When he was examined in May of 2015 he had flexion (moving the hand downward from a horizontal position) of only 20%, although his abilities to pinch and grasp were good[4]. His prognosis is for increasing arthritis in the joint as a result of the injury, “with gradually worsening pain and limitation.[5]” A consulting orthopedic surgeon described his condition in 2015 as “chronic and static with a very high likelihood of deteriorating over time.[6]”

[30]         If his pain worsens he may require a partial or total wrist fusion, which “typically improve[s] pain however at the cost of significant range of motion.” A total fusion would mean that he could no longer flex or extend the wrist.[7] For now his symptoms can be “slightly improved” by the intermittent use of a brace and by anti-inflammatory medication.[8]

[31]         With respect to work prospects, the orthopedic surgeon offered the opinion that “[b]etween the associated pain and the limited range of motion to his wrist, [he does] not believe that there is any chance of Mr. Ackermann returning to a physical job involving extensive use of his right wrist.” Nor did he believe that there were any “interventions” that would allow Mr. Ackermann to do so[9].

[32]         During his evidence, Mr. Ackermann demonstrated the restrictions in his range of motion of his right wrist and how moving the wrist forward and backward or from side to side causes him pain.

[33]         When he attempted to return to work after the accident he quickly found that the pain in his wrist made it impossible to perform the essential tasks of tile setting.

[34]         This injury has also undermined his ability to engage in the extensive range of physical activities that made up his life outside of work. These have included gardening, shovelling manure for his wife’s chickens, performing home maintenance tasks and minor renovations, playing sports as part of his Sunday social activities and playing with his grandchildren. He also cannot go hunting because of the effect on his wrist of firing a gun.

[35]         Using his wrist to do work of any kind causes a burning pain which is severe enough that it can also wake him up at night. He always feels pain to some extent but if he “takes it easy” it is lessened…

[132]     I think that in this case Mr. Ackermann’s circumstances demonstrate a meaningful requirement for solace, one that is greater than his physical injury might otherwise suggest. It was not contested that he was previously a person for whom the ability to interact physically with the world, and his identity as a “worker” in both his actual employment and his home life, were extremely important. The pain that is brought on by the use of his wrist is serious enough, but in my view a critical aggravating factor has been the comprehensive undermining of his sense of capability in the parts of his life that he otherwise found the most fulfilling. Even though he was rather stoic when giving his evidence, the overall sense he projected of someone who has been cut adrift from the previous fundamentals of his life was still palpable.

[133]     Taking care to distinguish these effects from the harm that has been caused to his earning capacity, which is of course to be dealt with separately, I conclude that an award of $90,000 under this heading is appropriate.

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

Written by admin on . Posted in ICBC Femur Injury Cases, ICBC Wrist Injury Cases.

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

$95,000 Non-Pecuniary Assessment for Chronic Wrist Injury

Written by admin on . Posted in ICBC Wrist Injury Cases.

Adding to this site’s archived case summaries of non-pecuniary awards for wrist injuries, reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, assessing damages for a chronic wrist injury.
In today’s case (Ozeer v. Young) the Plaintiff was riding as a passenger in a vehicle that ran head on into a hydro pole.  He suffered some soft tissue injuries which resolved without issue.  He also suffered a wrist injury which required multiple surgeries and continued to pose problems.  In assessing non-pecuniary damages at $95,000 Mr. Justice Saunders provided the following reasons:
[22]         In short, in addition to relatively mild or mild-to-moderate soft tissue injuries, Mr. Ozeer has sustained a severe wrist injury resulting in significant restriction in the use of his dominant hand that will be permanent. He has undergone two surgeries directly attributable to the accident, with an extended recovery period, and will probably have to undergo another surgery to fuse the wrist. He has continued to suffer pain and discomfort to varying degrees. I infer the pain and discomfort will likely only worsen due to the onset of arthritis…

[27]         Of the cases cited, the facts in Ferguson bear the closest resemblance to the present case. The 37-year-old plaintiff in Ferguson suffered injuries to his neck, back and left wrist. His neck and back problems resolved within weeks, but his wrist injury persisted, requiring three surgeries. A report prepared by an orthopaedic and hand surgeon concluded that the plaintiff would be left with permanent weakness in his left hand and he would require job retraining as the injury would probably permanently prevent him from returning to his job as a heavy duty mechanic. Madam Justice Gill awarded the plaintiff $75,000 in non-pecuniary damages.

[28]         I award Mr. Ozeer non-pecuniary damages of $95,000.

$100,000 Non-Pecuniary Assessment for Fractured Shoulder and Wrist

Written by admin on . Posted in ICBC Shoulder Injury Cases, ICBC Wrist Injury Cases, Uncategorized.

Adding to this site’s archived cases addressing non-pecuniary damages for wrist and shoulder injuries, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for orthopaedic injuries to these areas.
In today’s case (Azam v. Bilaya) the Plaintiff was involved in two motorcycle collisions.  Fault was admitted in both.  In the first collision the Plaintiff suffered a broken shoulder and various soft tissue injuries.  These were aggravated in the second crash which also caused a broken wrist.  In assessing non-pecuniary damages at $100,000 then modestly reducing these to account for pre-existing conditions Madam Justice Gerow provided the following reasons:
110]     It is clear that Ms. Azam was injured in both motor vehicle accidents. In the first accident, she suffered a broken shoulder and a neck and back injury. In the second accident, she suffered a broken wrist, injury to her knees and an exacerbation of her pre-existing spine condition.
[111]     I accept she does have chronic pain in her back which is exacerbated by activity; however, I do not accept Ms. Azam’s evidence regarding the impact of her injuries. I did not find Ms. Azam a particularly credible witness, and there is evidence that she is able to function at a higher level than she testified to…
[126]     Having considered the extent of the injuries, the fact that she is still having chronic pain after the accident which flares up from time to time, the guarded prognosis for full recovery, as well as the authorities I was provided, I am of the view that the appropriate award for non-pecuniary damages would be $100,000, if the accidents were the only cause of Ms. Azam’s ongoing symptoms.
[127]     However, Ms. Azam must be put back in the position she would have been in if the two motor vehicle accidents had not occurred. The evidence establishes that Ms. Azam suffered from a pre-existing symptomatic spine condition which had caused her periodic back pain in the 10 years prior to the first accident. Although it was not symptomatic right before the first accident, is reasonable to infer Ms. Azam would likely continue to suffer from periodic back pain, regardless of the accidents. Having taken that into consideration, I am of the view that the appropriate award for non-pecuniary damages is $85,000.
 

$80,000 Non-Pecuniary Assessment for Fractured Wrist With Residual Complicaitons

Written by admin on . Posted in ICBC Wrist Injury Cases. 55 Comments on $80,000 Non-Pecuniary Assessment for Fractured Wrist With Residual Complicaitons

Adding to this site’s archived database addressing damages for wrist injuries, reasons for judgement were released this week by BC Supreme Court, Vancouver Registry, dealing with a wrist fracture following a cyclist collision.
In this week’s case (Jang v. Ritchie) the Plaintiff was walking along a trail when the Defendant “was cycling along the same trail travelling in the same direction as Mr. and Mrs. Jang. Mr. Ritchie lost control of his bicycle and drove into Mr. Jang striking him in the back“.  The Defendant was found fully at fault for the collision.  The Plaintiff broke his wrist which required immediate surgical attention and went on to cause long term limitations.  In assessing non-pecuniary damages at $80,000 Madam Justice Fenlon provided the following reasons:
[5]             I also find that Mr. Ritchie’s negligence caused Mr. Jang’s injuries. The injuries were fully described in the medical opinion of Dr. Melvin Serink, an orthopaedic surgeon. Dr. Serink stated in his opinion:
… [Mr. Jang] suffered a comminuted fracture involving his left distal radius and ulna. He subsequently was treated with a closed reduction and a Hoffman external fixator. Postoperatively he developed Sudeck’s dystrophy with generalized pain and swelling related to his wrist and PIP joints of his left hand. As a result of his injury, he has been left with permanent soft tissue contractures involving the PIP joints of the fingers involving his left hand. He also has been left with complaints of pain and weakness related to his left wrist associated with generalized stiffness. … [Mr. Jang] is aware of stiffness associated with loss of extension and flexion. As a result of his Sudeck’s he does have decreased power and dexterity related to the fingers of his left hand. …
His range of motion shows loss of extension and flexion by approximately 50% percent. Supination is decreased by approximately 20%. His power grip is significantly decreased secondary to generalized pain related to the PIP joints.
X-rays of his left wrist from January of this year [2012] [show] the complete loss of the space involving the radiocarpal joint. The un-united ulnar styloid is evident. The early osteophyte formation involving the distal radial styloid is also evident.
I have paraphrased slightly to insert Mr. Jang’s name and so on.
[6]             I accept Dr. Serink’s uncontradicted opinion in this case. His observations are consistent with Mr. Jang’s testimony and my own observations of Mr. Jang’s left hand, which is fixed in a somewhat claw-like position. I also find that Mr. Jang’s condition is permanent. The progressive nature of the injury-induced arthritis in his hand will, if anything, increase Mr. Jang’s symptoms as time goes by. Dr. Serink examined Mr. Jang and provided the following opinion in this regard:
As a result of the destruction of the articular cartilage involved in his original fracture, he has developed significant post-traumatic degenerative arthritis. The soft tissue contracture which occurs as a result of the Sudeck’s dystrophy will be permanent. As a result, he will be left with complaints of pain, weakness and generalized stiffness. These complaints will not significantly improve with rest, time or further physiotherapy. At the present time [Mr. Jang] is well motivated and is using Tylenol on a p.r.n. basis for pain control….
[11]         Mr. Jang was in a cast for three months and underwent extensive physiotherapy. Despite that, he continues to have constant pain. He described the pain as eight on a scale of 10. He gets shooting pains on activity. Mr. Jang manages the pain by using Tylenol 3 and heat and by massaging his hand.
[12]         Mrs. Jang touchingly described her husband of 30 years as “hard on the outside, but soft on the inside, a nice man”. She and her daughter, Angela, both described the difficulties they have observed Mr. Jang having now with even simple tasks such as opening a jar.
[13]         Counsel for Mr. Jang took me to a number of cases with somewhat similar facts including Paras v. Muirhead (1996), 71 B.C.A.C. 17; Ferguson v. All-Can Express Ltd., [1988] B.C.J. No. 78 (S.C.); Jackson v. Jeffries, 2012 BCSC 814; Lowe v. Larue, [1998] A.J. No. 1465 (Q.B.); and Kumlea v. Chaytors (1993), 76 B.C.L.R. (2d) 337 (C.A.). Counsel submits non-pecuniary damages in the range of $60,000 to $85,000 would be appropriate.
[14]         While the cases provided to me are helpful, they are not, of course, determinative. Each case must be decided on its own facts. The cases referred to me include some differences such as plaintiffs who are younger or plaintiffs with soft tissue injuries as well as a wrist injury. In many of the cases, the injuries the plaintiffs experienced were not as severe as the injury experienced by Mr. Jang.
[15]         Having considered all of the cases and the particular facts of this case, I am satisfied an award of $80,000 is appropriate for pain, suffering, and loss of enjoyment of life.

$35,000 Non-Pecuniary Assessmemnt for Broken Wrist Caused by Assault

Written by admin on . Posted in ICBC Wrist Injury Cases, Uncategorized. 104 Comments on $35,000 Non-Pecuniary Assessmemnt for Broken Wrist Caused by Assault

Reasons for judgement were released last week by the BC Supreme Court, Smithers Registry, assessing damages for injuries sustained in an assault.
In last week’s case (Abbott v. Glaim) the Plaintiff and Defendant were together at a house party when they became involved in a brief verbal confrontation.  Although the Court was presented with competing versions of what actually transpired the Court ultimately accepted that following the verbal exchange the Defendant “took both hands and pushed (the Plaintiff) backwards off the deck to the concrete pad below”.
The Plaintiff suffered various injuries including a fractured wrist.  In assessing non-pecuniary damages at $35,000 Mr. Justice Skolrood provided the following reasons:
[133]     It will be apparent from the above that I accept Joyce’s evidence that she was pushed down the stairs by Lucy…
[137]     The most significant injury suffered by Joyce was to her left wrist. An initial x-ray of the wrist, taken on March 26, 2006, did not reveal a fracture but a subsequent x-ray done on April 5, 2006 showed an undisplaced fracture of the distal radius in her left wrist. A cast was applied which she wore until May 19, 2006.
[138]     Joyce underwent physiotherapy treatments for her wrist beginning in early April 2006. She attended 22 physiotherapy sessions over the course of approximately one year. Joyce testified that her wrist continued to cause her pain and discomfort for a considerable period of time, particularly given that her work as a dental hygienist requires her to use both hands and wrists extensively. Joyce described her left hand as the “mirror hand” in that, because she is right handed, the left hand does things like holding the mirror and pulling the patient’s cheek back while the right hand uses the dental instruments.
[139]     As a result of her wrist injury, Joyce was away from work until June 2006. She initially tried to return to work on a full time basis but quickly scaled back from eight to six hours a day because of ongoing difficulties. It was not until August of 2007 that she was able to return to working an eight hour shift.
[140]     In addition to her wrist injury, Joyce testified that she began to experience regular headaches following the incident. Sometime in 2008, she attended a work seminar in Vancouver on temporomandibular joint (“TMJ”) issues which caused her to consider whether her headaches were the result of a TMJ disorder. She spoke to both her doctor and her dentist about this and she was sent for testing.
[141]     On February 11, 2009, she underwent a CT scan of her head which revealed “focal degenerative activity in the left mandibular condyle.”  The imaging report further notes: “This is an unusual location and raises the possibility that this could be a result of previous trauma.”
[142]     Joyce was examined by a dentist, Dr. Kinkela, on May 5 and June 16, 2009 and he found her symptoms to be consistent with trauma to her TM joints, “particularly an acceleration/deceleration type of an event that would illicit some soft tissue strain on the TMJ supporting structures and lead to a subsequent inflammatory response.”
[143]     However, Dr. Kinkela also noted that he did not have any of Joyce’s records pre-dating the incident so he could not conclusively state the cause of Joyce’s symptoms.
[144]     Joyce was prescribed both a night and a day guard to wear in her mouth which are intended to relieve pressure on the TMJ. Joyce testified that she wears the guards and that they have been useful in reducing the frequency of her headaches.
[145]     One other consequence of the incident according to Joyce has been an increased sense of anxiety and periodic panic attacks. Her doctor prescribed her an antidepressant that she continues to take as well as Ativan to deal with the panic attacks. Joyce testified that she no longer takes the Ativan as the frequency of her panic attacks has diminished.
[146]     Joyce testified to the significant emotional upset and embarrassment she experienced as a result of the incident, the effects of which continued to be felt at the time of trial. She said that she strives to be a role model for her 17 year old daughter, and in the community generally, and that it was traumatizing to be involved in an incident of this nature…
[156]     Taking account of all of the evidence and considering the factors articulated by the Court of Appeal in Stapley I award Joyce $35,000 under this head.
 

$80,000 Non-Pecuniary Assessment for TFC Tear Reqiring Surgery

Written by admin on . Posted in ICBC Wrist Injury Cases, Uncategorized.

Adding to this site’s archives of non-pecuniary judgments for wrist injuries, reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a TFC tear.
In this week’s case (Burtwell v. McCarrrey) the Plaintiff was injured in a 2009 rear end collision.  She sustained a TFC tear which required surgical intervention. In addition to this she suffered from various soft tissue injuries which continued to post problems at the time of trial.  In assessing non-pecuniary damages at $80,000 Madam Justice Fisher provided the following reasons:
[42]         I am satisfied that the plaintiff has proved that she suffered the following injuries as a result of the accident of January 20, 2009: (1) TFCC tear in the right wrist and aggravation of arthritis in the right CMC joint; (2) strain and tendonitis in the right shoulder; (3) soft tissue injuries to the neck and upper back; and (4) some depression and anxiety…
[51]         In summary, the TFCC tear caused considerable pain but was substantially resolved within 18 months of the accident, leaving an ongoing loss of strength and mild restriction in flexion; the CMC joint arthritis continues to be painful, will likely progress, and limits the use of the right hand; the shoulder injury also caused considerable pain for over three years, was significantly resolved by May 2012 and there is a good possibility for a more complete recovery by about January 2014 (four years post-accident); the neck and back pain resolved within four months and continues to flare up but will likely improve once Ms. Burtwell engages in a reconditioning program; and the depression is well controlled with medication and is likely to improve with additional counselling, after which medication may no longer be necessary…
[57]         It is always difficult to apply the facts of one case to another, as no two cases are really alike. In general, the awards at the $90,000 to $100,000 level were for injuries that had more serious long term effects than the injuries I have found Ms. Burtwell to have suffered, and the awards at the lower level were for similar injuries that had less impact. In my view, an appropriate award for non-pecuniary damages in this case, taking into account Ms. Burtwell’s pre-existing conditions, is $80,000.