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11 Year Old Successfully Sued Following School Ground Horseplay

Written by admin on . Posted in Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with fault for a school-ground injury.
In this week’s case (Gu v. Frisen) the 11 year old plaintiff was injured in 2008 when she was carrying a friend, piggyback-style, during recess.  At the same time the defendant pushed the girls, with no intetion of ill-will but rather “to make the girls laugh”.  Unfortunately the Plaintiff fell over and broke her arm.
The Plaintiff sued the Defendant, his parents and the School District.  The Claims were all dismissed except the claim against the 11 year old defendant.  In finding him legally responsible for the injury Mr. Justice Schultes provided the following reasons:
[23]         I am satisfied that Liam did not put his mind to the risk before he jogged up behind Elizabeth and pushed her. The question is whether, objectively viewed, he should have.
[24]         He was 11 years old at the time of this incident. There was no evidence that he was of less than normal intelligence for his age. As to his experience, making the assumption most favourable to his position, which is that comparing him to children of the same “experience” is broad enough to include his maturity and impulsivity, I think that a child with those similar attributes would still have foreseen that, if he were running at a fast jog, even the gentle pushing from behind of another child who was being carried piggyback risked both the top and bottom person falling over and being injured in some way in the fall. It is a matter of the physical reaction of human bodies to the application of force — a kind of knowledge that is acquired by all children on the playground at a very young age.
[25]         The fact that the injury to Jacqueline turned out to be more serious than a child in Liam’s circumstances might have anticipated does not undermine liability. Madam Justice Bennett summarized the applicable law in Hussack v. Chilliwack School District No. 33, 2011 BCCA 258, at para. 71:
[71]      It is not necessary for the plaintiff to show that the precise injury or the full extent of the injury was reasonably foreseeable. What he must show is that the type or kind of injury was reasonably foreseeable:  Hughes v. Lord Advocate, [1963] UKHL 1; Jolley v. Sutton London Borough Council, [2000] UKHL 31; Ontario (Minister of Highways) v. Côté, [1976] 1 S.C.R. 595.
[26]         This mishap is unlike the rather freakish accidents in which the liability of older children and adolescents for negligence was denied, based on a lack of foreseeability, in McHale v. Watson (1966), 115 C.L.R. 199 (Aus. H.C.) (a thrown piece of welding rod ricocheting off a post) and Mullin v. Richards, [1998] 1 All E.R. 920 (C.A.) (a piece of a plastic ruler breaking off during play sword-fighting). In both cases, childish horseplay led to serious eye injuries, but the defendants’ original ill-advised actions set in motion further physical effects that the judges concluded could not have been anticipated.
[27]         This case, I have said, required only the rudimentary foresight that a person who is pushed from behind might fall over and in doing so get injured, something that was well within the capacities of a child in Liam’s situation.
[28]         As a result I find him liable for the accident

$90,000 Non-Pecuniary Assessment for Thoracic Outlet Syndrome With Poor Prognosis

Written by admin on . Posted in ICBC Thoracic Outlet Syndrome Cases, Uncategorized.

Adding to this site’s archived posts of BC non-pecuniary damage assessments for Thoracic Outlet Syndrome, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, assessing damages for such an injury with a poor prognosis.
In last week’s case (Gillam v. Wiebe) the Plaintiff was involved in a 2009 collision.  Fault was admitted by the Defendant.  The Plaintiff sustained various injuries including a Thoracic Outlet Syndrome with a poor prognosis for full recovery. In assessing non-pecuniary damages at $90,000 Mr. Justice Verhoeven provided the following reasons:
65]         In summary, I find that the plaintiff suffered the following injuries due to the accident:  chronic right sided neck and shoulder pain, thoracic outlet syndrome, and headaches, all as described above. She has also suffered from deterioration in her mood and disposition, interference with sleep, and significant weight gain.
[66]         Her headache condition is gradually improving but she continues to suffer from frequent headaches. Her neck and shoulder pain and her TOS symptoms also continue to cause pain and limitation of function. In general, the prognosis for the plaintiff’s conditions is poor. It is likely that she will have a degree of limitation of function and pain permanently…
[85]         Some context is also provided by the video surveillance evidence. Video surveillance was conducted on 3 separate days in April and May, 2012. The video evidence shows the plaintiff carrying out ordinary activities such as pumping gas, entering and exiting her vehicle, driving, and also shopping and eating a picnic lunch with companions. She displays no obvious sign of discomfort or disability and generally looks comfortable and able to carry out such moderate activities.
[86]         Nevertheless, the plaintiff suffers from a limitation of function. She suffers from pain in her neck and shoulder which will likely never completely disappear. She is unlikely ever to be symptom free in relation to her TOS condition. She continues to suffer from frequent headaches for which the prognosis is negative for complete resolution. She is no longer capable of heavy work, and must avoid other activities that could aggravate her neck and shoulder injuries and her TOS. She is restricted in terms of employment, domestic and recreational activities. There has been a very significant change in the plaintiff’s overall lifestyle. There have been emotional consequences to her injuries. Her injuries have also made caring for her daughter much more difficult.
[87]         While of course each case is unique, other court cases provide useful guidance with respect to the proper quantum of the award. Consistency with other decisions of the courts is desirable. The award must be fair to both sides.
[88]         The plaintiff relied upon: Stapley v. Hejslet, 2006 BCCA 34 ($175,000); Hooper v. Nair, 2009 BCSC 862 ($104,500); Cimino v. Kwit, 2009 BCSC 912 ($85,000); Milliken v. Rowe, 2011 BCSC 1458 ($85,000); and Durand v. Bolt, 2007 BCSC 480 ($75,000). The plaintiff submits that the range for non-pecuniary damages in this case is $95,000 to $135,000. The defence also relies upon Cimino, and Durand. Additionally, the defence cites Driscoll v. Desharnais, 2009 BCSC 306 ($55,000), Langley v. Heppner, 2011 BCSC 179 ($55,000), and Verhnjak v. Papa, 2005 BCSC 1129 ($40,000). The defence submits thatDriscoll and Langley most closely equate to this case, and submits that an appropriate award is $60,000.
[89]         Having reviewed these authorities, in my view an appropriate award for non-pecuniary loss in this case is $90,000.

ICBC Application To Withdraw Liability Admission Denied

Written by admin on . Posted in BCSC Civil Rule 7, Uncategorized.

Rule 7-7(5) allows a party to withdraw a formal admission by consent or with permission of the Court.  When it comes to an admission of liability obtaining the Court’s permission can be an uphill battle as was demonstrated in reasons for judgement released this week by the BC Supreme Court, Victoria Registry.
In this week’s case (Miller v. Norris) the Defendant had a heart attack while driving a vehicle   He struck a traffic pole which was launched into the Plaintiff’s vehicle causing injury.  ICBC initially looked at the liability situation and placed the Defendant at fault.  After the lawsuit started liability was formally admitted in the pleadings.  As the lawsuit progressed the Defence lawyer wished to deny liability raising the ‘inevitable accident’ defence.  The Court refused to allow this noting the admission was not made hastily and no new evidence existed justifying the changed pleadings at this stage of the litigation.  In dismissing the application Master Bouck provided the following reasons:
[35]         The admission of liability (or more accurately, the rejection of the inevitable accident defence), was not made hastily, inadvertently or without knowledge of the facts. As noted, the individual adjusters involved in these claims are experienced in such matters and clearly put some thought towards the inevitable accident defence.
[36]         The question of liability is one of mixed fact and law. However, it may not be said that the fact admitted is false.
[37]         In terms of delay, the ICBC internal review of liability was initiated in the summer of 2011. For unexplained reasons, an independent adjuster was not retained for some seven months. The independent adjuster was in contact with the adjuster prior to be pleadings being closed and reported to ICBC in July 2012, yet there was no change in the instructions on liability for several more months and then only as a result of defence counsel’s initiative.
[38]         The only so-called “new” evidence is the production of Mr. Norris’ pre-accident health records. These records were obtained by the independent adjuster and provided to ICBC in July 2012. The records could have been obtained much earlier in this process; instead, the adjusters chose to rely on the information obtained from Mr. Norris’ doctor’s office. Most importantly, no new instructions were provided to defence counsel upon receipt of this information.
[39]         The plaintiff has incurred expense and proceeded with this lawsuit based on the admission of liability. Defence counsel submits that an award of costs can alleviate any prejudice suffered by the plaintiff in that regard. Even if I were to award the plaintiff costs and disbursements “thrown away” to date, the withdrawal of the admission and the plea of inevitable accident leaves the plaintiff exposed to the defendant’s costs. Furthermore, I am unable to characterize the pain clinic expense as a disbursement under Rule 14-1(5) of the Supreme Court Civil Rules. Rather, that expense is more accurately described as an item of special damages which would not be covered by any costs award.
[40]         This case bears some resemblance to the circumstances discussed in Rohling (Guardian ad litem of) v. Proudman, [1998] B.C.J. No. 1383 (S.C. Master). In that case, the defence sought to withdraw an admission of liability in order to plead inevitable accident (based on the recommendation of counsel). At para. 20, the court states:
I am not satisfied that it is in the interests of justice to allow the withdrawal of the admission simply because Mr. MacLeod takes a different view of the facts than taken by the adjuster and independent adjuster when the matter was originally considered shortly after the accident.
[41]         A similar analysis of this question is given in Oostendorp v. Sarai, [1973] B.C.J. No. 570 at para. 10:
It would be wrong to encourage a practice that enabled parties to admit liability one day and withdraw the admission later on the basis of a different view taken of the same facts by some other person.
[42]         I would add that here, multiple adjusters took the view that liability ought to be admitted. Furthermore, even though the relevant witnesses with respect to the inevitable accident defence are known to the parties, the passage of time may have affected these witnesses’ memories: Rohling (Guardian ad litem of) v. Proudman at para. 19.
[43]         In the result, I find that the application ought to be dismissed, with costs to the plaintiff.

Court Finds ICBC's "Claim Payment Proposal" Extends Limitation Period

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When you can’t agree with ICBC as to the value of your claim they sometimes provide a “Claim Payment Proposal” which, unlike a conventional settlement, does not resolve a claim but leaves the door open to litigation.  Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, considering the effect of such a proposal on a limitation period.
In this week’s case (Coombs v. LeBlond Estate) the Plaintiff was injured in a 2008 collision.  The Plaintiff and ICBC could not agree on the value of the claim and ICBC provided a Claim Payment Proposal.  The Plaintiff eventually sued for damages but did so after the expiry of his limitation period. ICBC applied  to dismiss the lawsuit on this basis.  The Plaintiff argued that the Claim Payment Proposal, despite being marked ‘without prejudice‘ was an admissible confirmation of the cause of action extending the limitation period.  Mr. Justice Betton agreed and dismissed ICBC’s application.  In doing so the Court provided the following reasons:
[23]         The act of marking a document with the clause “without prejudice” alone is insufficient to determine whether a document is privileged. Rather, the two conditions stated in Belanger must be present for a “without prejudice” letter to be privileged. There must be:
(a)      a dispute or negotiation between two or more parties, and;
(b)      terms of settlement offered.
[24]         There is no issue with condition (a) in the present case. The privilege issue turns on whether terms of settlement were offered by ICBC in their letter.
[25]         In my view, neither the letter of December 8, 2008 nor the attached claim payment proposal contain such terms. The defendants stress that there are terms attached, but they are not, in my view, terms of settlement.
[26]         In Rogic the first letter attaching the full and final release clearly communicated that the terms of settlement would be payment of $5,000 in exchange for a full and final release. If that release was signed, the action was concluded; accordingly, the letter was not admissible.
[27]         The second letter, as was noted in paragraph 32, did not contain any such terms and was admissible; however, it did not constitute a confirmation of a cause of action.
[28]         The defendants also cite Strassegger v. Harrison Hot Springs Resort Hotel Ltd., [1999] B.C.J. No. 1878 (S.C.) in support of their position. I find this case is not helpful to the defendants’ cause. Strasseggerwas decided on the ground that the correspondence could not be relied upon as confirmation of the action, not whether the document was privileged: see paragraph 11.
[29]         Here the effect of the letter, the cheque, and the claim payment proposal is to confirm the cause of action. It also informs the plaintiff as to ICBC’s view that the money represents a reasonable offer of settlement. It does not, however, impose any terms for the settlement of the action. It provides only that there be an acknowledgement of the receipt of the monies and that they would be deducted from any future recovery.
[30]         In my view, even if the plaintiff had executed the claim payment proposal, the terms contained in it are not the sort of terms contemplated by the Court of Appeal in Belanger or this court in Rogic as being terms of settlement of the dispute or negotiation.
[31]         Accordingly, the application of the defendants is dismissed.

Consolidation of Trials Not Appropriate With Multiple Quantum of Damage Assessments

Written by admin on . Posted in BCSC Civil Rule 22, Uncategorized.

Although the BC Supreme Court has discretion to consolidate different claims for trial in cases where competing claims are “so interwoven as to make separate trials at different times before different judges undesirable” this is a discretion rarely exercised when there are separate plaintiffs with distinct injury claims that require individual quantification.  This reality was demonstrated in reasons for judgement released this week by the BC Supreme Court, New Westminster Registry.
In this week’s case (MacMillan v. Shannon) 4 occupants of a vehicle were involved in a collision with another vehicle   All sued for damages in separate claims.  Liability and damages were disputed in all claims.  ICBC brought an application seeking to have all trials heard together.  This application was dismissed with the key factor in derailing the application being the individual quantum claims being advanced.  In addressing this point Master Caldwell provided the following reasons:
[8]             Finally, other than on the issue of liability, no one is arguing that there will be a significant or any saving on the presentation of expert evidence. Each of the plaintiffs has a different family doctor. Two of the plaintiffs now live in Quebec so if there is any further expert evidence it is unlikely to overlap and may have to be provided by way of teleconferencing to minimize expense. Again, it is clear that there are ways of reducing complexity, duplication and inconvenience; it will be up to counsel to determine whether that happens or not.
[9]             In short, I am of the view that none of the second arm of tests arising in the Merritt case (supra) or the subsequent case of Bhinder v. 470248 B.C. Ltd., 2007 BCSC 805 is met in the present cases. The application for consolidation and related relief is dismissed as is the application for removal of any or all of the actions from Rule 15-1 fast track.

Don't Get in a Fistfight at your Son's Baseball Game

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In case there aren’t enough reasons to avoid a fistfight at your kid’s sporting events, here’s one more; being on the wrong end of a subsequent lawsuit in the BC Supreme Court will expose you to loser pays costs consequences.
The BC Supreme Court, New Westminster Registry, released reasons for judgement today with such a result.  In today’s case (Charland v. Cloverdale Minor Baseball Association and Wheeler) the Plaintiff’s son was playing in a Pee Wee baseball game.  The Defendant’s son was the scheduled umpire who arrived late.  He was told to go home the by Plaintiff.  He went home upset and his father came to the baseball game to discuss what happened with the Plaintiff.  After the two fathers exchanged some colourful words the Defendant “walked away 8 to 10 feet” when the Plaintiff “stood up from his chair and moved forward quickly” with “the intention to fight“.  The Defendant hit the Plaintiff in the head and then grappled for a while after that.  The Plaintiff was injured in the incident and sued for damages.
Madam Justice Watchuk dismissed the lawsuit finding it was a consensual fight.  The Court provided the following reasons:
[88]         Consent is a defence to the torts of assault and battery.  If Mr. Wheeler alleges and proves that the parties agreed to the physical contact in question, then Mr. Charland cannot complain of injuries suffered.  The onus of establishing consent is on Mr. Wheeler:
Although the fact that the plaintiff consented to the defendant’s conduct effectively negates the argument that a wrong has been committed, consent is treated as a defence which must be established by the defendant. 
Lewis n. Klar, Q.C., Tort Law, 5th ed. (Toronto: Thomson Reuters, 2012) at 128.
[89]         If a fight is proven to be mutual or consensual, the parties cannot complain of injuries suffered in the course of the fight:
A related matter concern consent to violent acts in other contexts, for example, in the case of “mutual fights”.  The case law supports the proposition that those who engage in fights, even though these activities may be criminal, cannot complain of injuries suffered in the course of the fight, unless the force which is used by one of the combatants is excessive or unnecessary.  The dismissal of the plaintiff’s actions in these cases may be grounded either on the basis of the defence of consent or illegality.
Lewis n. Klar, Q.C., Tort Law, 5th ed. (Toronto: Thomson Reuters, 2012) at 134….
[97]         The conversation then escalated.  Mr. Charland says that Mr. Wheeler’s tone suddenly changed.  I find that the reason for that sudden change in Mr. Wheeler’s tone was Mr. Charland’s telling him to “fuck off”.  After Mr. Charland escalated the conversation to a confrontation, Mr. Wheeler replied with words to the effect of “fat shit”.  There was some loud conversation between the two fathers. 
[98]         Mr. Wheeler then walked away to process Mr. Charland’s response.  He still wanted to resolve the situation and assist his son Cam.  As Mr. Wheeler walked away, Mr. Charland said, “I’ll get you later”, as he told Cst. Lee.  The words he told the court he said, “I’ll do you later”, do not equate, I find, with “I will meet you later”.  In making that statement, Mr. Charland had formed the intention to fight and had chosen to accept what he mistakenly understood to be an invitation to fight from Mr. Wheeler. 
[99]         Mr. Wheeler had walked away 8 to 10 feet to the grassy area.  He walked back part of that distance to Mr. Charland.  Mr. Charland stood up from his chair and moved forward quickly towards Mr. Wheeler.  When Mr. Wheeler saw him coming, he had a real fear of being injured or, as he put it, “run over”.  Mr. Wheeler then hit Mr. Charland once in the head.  The moments of contact between the two fathers included some mutual grabbing which Mr. Geppert described part of, Ms. Brozer referred to as a “kafuffle” and Ms. Korrins described as grappling.  In the course of that interaction, Mr. Charland slipped and fell on the grass.  Mr. Wheeler then walked away after the intervention of some of the other witnesses and observers. 
[100]     Mr. Wheeler did not kick Mr. Charland.  There is no independent evidence of a kick.  If Mr. Charland was injured in his kidney during the altercation at the park, I conclude that the injury occurred from his fall on the grass.  Similarly, Mr. Wheeler’s injury to his eye which resulted in a black eye was a result of the mutual grappling and physical interaction rather than a punch by Mr. Charland directly to Mr. Wheeler. 
[101]     I find that when Mr. Charland got up out of his chair and moved quickly towards Mr. Wheeler who was then 8 to 10 feet away on the grass Mr. Charland had an intention to fight.  Mr. Wheeler reacted by engaging in the fight after walking back toward an angry man.  Mr. Charland’s action in standing up and moving toward Mr. Wheeler, as it created fear, was an assault.  Mr. Wheeler responded with a punch which was a battery.  I conclude that the proper characterisation of the altercation between the two fathers is that it was consensual. 
The Court went on to order that the Defendant pay the Plaintiff’s costs providing an expensive lesson to the Plaintiff for this incident.

Back From Maui, Back to Blogging

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OK, I technically did not take a real break from this blog as it was kept updated, I did, however, rely on a lot of previously drafted posts which I save up for publication while on holiday.  I’ve just returned from a brief but much enjoyed trip to Maui with my family.  I will be back in the office later this week and start catching up on all of your correspondence.  In the meantime a few photos for your enjoyment.  Aloha!


Clinical Records Admitted Without Authentication? – No Harm No Foul Says BC Court of Appeal

Written by admin on . Posted in Civil Procedure, Uncategorized.


Reasons for judgement were released last week by the BC Court of Appeal addressing, among other topics, whether a new trial should be ordered after clinical records were introduced to a jury without proper authentication.
In last week’s case (Desharnais v. Parkhurst and Romanowski) the Plaintiff was injured in two motor vehicle collisions.  He sought substantial damages as a result but a jury rejected much of his claim awarding $31,000 in damages.  The Plaintiff appealed arguing multiple errors were made at the trial level with the most significant, presumably  being the introduction of various clinical records without proper authentication.  The BC Court of Appeal held that while this was a clear error no harm was done and dismissed the appeal.   The Court provided the following reasons:
[93]         Accordingly, the records could be admitted for the truth of the fact that the statements were made, if the records were kept as part of the counsellor’s ordinary course of business, and were recorded within a reasonable time of the conversation with the plaintiff.  Similar, though not identical, considerations would be made under Ares.
[94]         There was no clear evidence of these conditions having been met.  Normally, the preconditions would be dispensed with by using a document agreement or securing admissions through a Notice to Admit.  I have not been able to find anything in the record to suggest that formal proof was dispensed with.  Rather, in this case the plaintiff objected to their admission.
[95]         In those circumstances, it seems to me that counsel seeking to admit the records as business records under common law or statute would have to tender proof of the preconditions for admissibility:  Cunningham v. Slubowski, 2003 BCSC 1854.  This was not done here. 
[96]         Accordingly, I agree with the plaintiff that the trial judge erred in concluding that the records were admissible without first concluding that there was proof of the preconditions under common law or statute.  Plaintiff’s counsel disputed that the records qualified as business records.  Even if there were little or no substance to his position, the effect of his objection was to require the defence to lead the evidence to comply with the pre-conditions for admissibility.
[97]         Having reviewed the appeal record, however, I do not see this error as sufficient to warrant intervention from this Court.  Had the records not been admitted, the information contained in them would have nonetheless been placed before the jury, as the content of the records was summarized in the report of the plaintiff’s expert, Dr. Rami Nader.  Dr. Nader’s summary of the records included that the plaintiff complained about stress stemming from his relationship with two women and that he suffered a back injury following the accident in his driveway.  Plaintiff’s counsel had the report admitted and sought no limiting instruction on the use of the report.
[98]         Further, the trial judge’s instruction that the records were an example of a prior inconsistent statement was one of several prior inconsistent statements made by the plaintiff.  The trial judge also pointed out inconsistent statements made under oath.  The plaintiff’s own counsel referred to the plaintiff as “a poor historian” in his closing submissions.  On the whole, it seems unlikely that the assessment of the plaintiff’s credibility was significantly influenced by the statements in the records.
[99]         The jury was also unlikely, given the amount of medical evidence, to place much weight on the records suggestion that the plaintiff was symptomatic before the first and second accident.  Further, this information was before the jury by virtue of the plaintiff’s expert’s report.
[100]     Based on the above, I do not see this error as warranting intervention from this Court.

$130,000 Non-Pecuniary Assessment For Complex Pelvic and Knee Fractures

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

Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, assessing damages for a complex pelvic and knee fracture.
In this week’s case (Farand v. Seidel) the Plaintiff was struck by the Defendant’s vehicle while she was crossing a street in a marked pedestrian crosswalk.  Although the Defendant disputed liability he was found fully liable for the collision.
The Plaintiff suffered a tibial plateau fracture along with complicated pelvic injuries.  The Plaintiff was left with long term complications which affected her ability to work full time hours on a consistent basis.  In assessing non-pecuniary damages at $130,000 Mr. Justice Savage provided the following reasons:
[46]         Ms. Farand was struck by Mr. Seidel’s pickup truck and landed on the road surface in front of Mr. Seidel’s truck. She was not run over by the truck. Ms. Kriez was able to estimate where Ms. Farand lay on the pavement. She noted that Ms. Farand’s position on the pavement showed an unnatural posture. Passersby called 9-11.
[47]         Ms. Farand was taken to the hospital by ambulance. Imaging at the hospital showed a tibial plateau fracture and a lateral compression pelvis fracture, inferior and superior rami fractures, and an undisplaced sacral fracture. Open reduction and internal fixation of the right tibial plateau fracture was done on August 9, 2009. Imaging shows a metal plate fixed with six metal screws. The pelvis fractures were treated conservatively.
[48]         Ms. Farand was hospitalized for 12 days. She was released from hospital, moving with the aid of a wheel chair. She was also provided with crutches. By December 2009 she used crutches without the wheel chair. She was anxious to return to work and worked a few partial days in November and December 2009, although she was able to do this work from home. She was put on a gradual return to work program. Her timesheets indicate the hours she worked.
[49]         Ms. Farand suffered and continues to suffer from ongoing neck and back pain. She was diagnosed by Dr. Esmail with musculoligamentous injuries to her cervical spine, with likely injuries to the zygaphophyseal joints as well as injuries to the facets of the mid-thoracic spine. Dr. Esmail diagnosed her with soft tissue injuries of the lumbar spine and injury to the sacroiliac joints of the lumbar spine. These injuries result in chronic pain, which interferes with activities of daily living and is aggravated by her favouring her right leg.
[50]         Ms. Farand has undergone various treatments, including physiotherapy and massage. She has not regained quadriceps bulk, particularly in the right leg. Dr. Esmail opines that she is at greater risk for developing osteoarthritis in the right knee and will likely need knee replacement surgery in 15-20 years. He is uncertain whether she has meniscal tear or detached meniscus, which cannot be identified by doing an MRI but could be diagnosed with arthroscopic surgery. If she has these problems with her meniscus, then those time frames may be accelerated…
[76]         In my opinion the appropriate award for non-pecuniary damages in this case is $130,000, which award I so make.