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