Tag: ankle injury

$135,000 Non-Pecuniary Damages Awarded for Multiple Orthopaedic Injuries


(Illustrations provided courtesy of Artery Studios Ltd.)
Reasons for judgement were released today by the BC Supreme Court, Vernon Registry, awarding a Plaintiff just over $426,000 in total compensation for injuries and losses as a result of a 2007 motor vehicle collision.
Fault for the collision was hotly contested in today’s case (Hildebrand v. Musseau) .   The Defendant was operating a pick-up truck.   The Plaintiff was operating a dirt bike.  The vehicles approached each other from opposite directions.  Both motorists gave evidence that the other was on the wrong side of the road as they approached.  Ultimately the Court concluded that the Defendant was in the Plaintiff’s lane of travel as the vehicles approached each other.  The Plaintiff took evasive measures but was unsuccessful and was struck by the Defendant’s truck.   The Defendant was found 90% at fault for the crash.
The Plaintiff suffered serious injuries including a fractured right ankle and right wrist.  Both of these required surgery.  The Plaintiff also fractured his left femur which required splinting along with various soft tissue injuries.  Some of the injuries, particularly the injury to the knee and ankle, were expected to pose long term problems for the Plaintiff.  In awarding $135,000 for the Plaintiff’ non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) Madam Justice Hyslop provided the following reasons:

[216]     The plaintiff is a young man who suffered three different broken bones in his body. He lost eight and a half months of work convalescing. He had surgery to repair his broken bones and eventually had further surgery in which to remove plates and screws. He was initially confined to a wheelchair, then walked with crutches and eventually a cane. Many of his recreational activities were curtailed, some of which have been curtailed permanently, particularly if they relate to high impact-type activities. He has lost some range of motion in his right ankle which is unlikely to improve. The prognosis for osteoarthritis in the right ankle in the long-term is moderate. His injuries have prevented him in part from pursuing some renovations he wished to do in his home. The plaintiff’s injuries, particularly his right ankle and right knee, affect his ability to carry heavy loads, climb stairs and ladders, squat or kneel for extended periods of time.

[217]     The plaintiff, at the time of the accident, was aged 21 and had recently been certified as a journeyman auto body repair technician, a trade to which he appears to be well-suited.

[218]     He has a permanent disability as it relates to his ankle which prevents him from pursuing activities that he pursued prior to the accident and he may have wished to pursue in the future.

[219]     I assess non-pecuniary damages in the amount of $135,000.00.

Non-Pecuniary Damages for Fractured Tibia and Fibula With Intermedullary Nailing Discussed

(Illustration provided courtesy of Artery Studios Inc.)
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding damages as a result of a 2007 BC motor vehicle collision.
In today’s case (Falati v. Smith) the Plaintiff was injured when he was struck by a vehicle.  He was walking on the sidewalk on Marine Drive in West Vancouver when the Plaintiff’s vehicle mounted the curb, drove across the sidewalk and pinned the plaintiff against a building.
The Plaintiff suffered orthopaedic injuries described as “a crush-type fracture to his left tibia and a fracture to the fibula“.  These injuries required surgical intervention with intermedullary nailing.
The Plaintiff made a reasonably good recovery although he continued to have symptoms of pain by the time of trial.   His orthopaedic surgeon gave the following evidence with respect to prognosis and disability:
At this stage, Mr. Falati has only a mild amount of identifiable impairment in the left leg, ankle and foot. He does have evidence of pain symptoms in the leg and left ankle and left foot. However, he is noted to have essentially near normal motor power function as well as near normal range of motion. As such, his current impairment level is low. Nevertheless, there is an impairment present and the exact diagnosis underlying this impairment remains unclear. As a result, defining the likelihood of this impairment remaining permanent is impossible. It is important to note that disability represents the difference between what an individual is expected to do or required to do, and what they are capable of doing, due to the presence of a physical impairment. Since Mr. Falati still does have some evidence of physical impairment, albeit mild, some element of disability does remain. The probability of such disability remaining on a permanent basis seems very low with respect to the left knee and left tibia specifically. However, with respect to the left ankle, a more clear diagnosis would be required prior to making any estimate of permanence
In assessing his non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $85,000 Mr. Justice Saunders reasoned as follows:
Neither of the orthopaedic surgeons whose reports are in evidence, Dr. Penner and Dr. Jando, have expressed an opinion that the plaintiff’s foot pain and resulting limitations are likely to be permanent; Dr. Jando has offered the option of further surgery to remove the hardware. The plaintiff’s general practitioner, Dr. Kates, has pointed to both surgery, and weight loss, as possible means of addressing the complaints of persistent pain. Dr. Kates does use the phrase, “some element of permanent left ankle disability”, but as he goes on to point to the remaining hardware as a possible cause, I do not take him to mean “irreversible”. Although there is some possibility of a permanent disability in the present case, the evidence does not establish this to be a probability. Taking such possibility into account, I award the plaintiff non-pecuniary damages of $85,000.

Crushed Ankle and Torn ACL Valued at $95,000; "Agony of the Moment" Explained

Reasons for judgement were released today (Wormell v. Hagel) by the BC Supreme Court, Kamloops Registry, awarding a Plaintiff just over $570,000 in total damages as a result of a 2003 injury.
The facts behind the injury are a little unusual.  The Plaintiff was standing on top of cargo on a flat bed truck.  At the same time, the Defendant was operating a crane and intended to lift the cargo.  The cargo shifted while the Plaintiff was still standing on it and in the “agony of the moment” the Plaintiff jumped off the truck to the ground which was some 12 feet below.  In jumping on the ground the Plaintiff suffered various injuries including a “crush fracture to the left ankle and a tear to the anterior cruciate ligament of his right knee“.
The Defendant was found at fault for this incident for operating the crane at a time when it was unsafe to do so.  The Plaintiff was found faultless for jumping to the ground in the “agony of the moment” and Mr. Justice Goepel did a good job summarizing this principle of law at paragraphs 35-37 stating as follows:

[35] A party who acts negligently and creates a danger carries a heavy onus if he then seeks to cast any blame for the accident on the injured party:  Haase v. Pedro (1970), 21 B.C.L.R. (2d) 273 (C.A.) at para. 16, aff’d [1971] S.C.R. 669.

[36] The standard of care applied to individuals in emergency situations is not one of perfection. The law in such circumstances was explained in Walls v. Mussens Ltd. et al(1969), 11 D.L.R. (3d) 245 at 247-48 (N.B.C.A):

… I think the plaintiff is entitled to invoke the “agony of the moment” rule as an answer to the allegation of contributory negligence made against him. The rule is stated by Mr. Glanville Williams in his work Joint Torts and Contributory Negligence at p. 360-1:

It is well settled that where a sudden emergency arises through the fault of the defendant, the plaintiff who acts reasonably in an attempt to extricate himself is not guilty of contributory negligence merely because he unintentionally aggravates the situation. Also, where the plaintiff is compelled to make a quick decision in the ‘agony of the moment’ he is not expected to take into account all the considerations that a calmer appraisal of the situation might present to the mind. Perfect foresight and presence of mind are not required. This rule, sometimes called the ‘agony of the moment’ rule, is merely a particular application of the rule that the standard of care required of both plaintiff and defendant is that of a reasonable man.

The Law of Torts, 3rd ed., by J.G. Fleming contains the following statement at p. 247:

On the other hand, a person’s conduct in the face of a sudden emergency, cannot be judged from the standpoint of what would have been reasonable behaviour in the light of hind-knowledge and in a calmer atmosphere conducive to a nice evaluation of alternatives. A certain latitude is allowed when in the agony of the moment he seeks to extricate himself from an emergency not created by his own antecedent negligence. The degree of judgment and presence of mind expected of the plaintiff is what would have been reasonable conduct in such a situation, and he will not be adjudged guilty of contributory negligence merely because, as it turns out, he unwittingly took the wrong course.

The rule although applied originally in Admiralty cases, now has general application where danger to life and limb or to property is brought about by the negligence of the defendant: see The “Bywell Castle” (1879), L.R. 4 P.D. 219 per Brett, L.J., at p. 226, and Cotton, L.J., at p. 228; Rowan v. Toronto Ry. Co. (1899) 29 S.C.R. 717, and Tatisich v. Edwards,[1931] 2 D.L.R. 521, [1931] S.C.R. 167.

The test to be applied in circumstances such as those as in the case at bar is, in my opinion, not whether the plaintiff exercised a careful and prudent judgment in doing what he did, but whether what he did was something an ordinarily prudent man might reasonably have done under the stress of the emergency.

[37] In this case, Mr. Hagen’s negligent act caused the emergency situation. Mr. Wormell did not have time to determine with any certainty whether the load was going to fall or stay. He had to make a quick decision in the “agony of the moment”. He chose to jump clear. As it turned out, that was the wrong decision because the load itself did not come off the truck. Matters, however, could have turned out otherwise. In deciding to jump away from the load Mr. Wormell did something an ordinary prudent man might reasonably have done under the stress of the emergency.

In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $95,000 Mr. Justice Goepel noted the following about his injuries and their effect on his life:

[96] Mr. Wormell’s injuries are permanent and will impact him for the rest of his life. He has undergone one surgery and will have to undergo at least one more for an ankle fusion. He also possibly faces surgery to reconstruct his ACL.

[97] In the months immediately following the accident, he was in significant pain. The March 2004 surgery reduced his pain and made his injuries more manageable. He now works steadily but seldom can do more than three or four hours of physical work. As his ankle worsens during the day, more of his weight bears on his right leg which aggravates his knee problems.

[98] If the fusion surgery is successful, he will have less pain in his ankle and will be more functional at work. The fusion will, however, cause some permanent limitations.

[99] Prior to his injuries, he was active in sports but he has not been able to return to sports in any meaningful way. This will not improve…

[105] I accept Mr. Wormell’s evidence as to why he has not undergone the fusion surgery. That surgery will leave him incapacitated for six months to a year. Given his ongoing financial obligations, he has not been able to afford to take the necessary time off to have the surgery.

[106] As is often the case, none of the cited cases involve the identical combination of injuries as that suffered by Mr. Wormell. That said, the cases cited by the defendant are closer to the mark. In particular, in this regard, I refer to the Graham and Nicoll cases which both involved serious leg injuries to men of an age similar to Mr. Wormell. I award $95,000 in non-pecuniary damages.

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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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