Update August 23, 2013 – An Appeal from the below decision was successful with the BC Court of Appeal ordering a new trial. Reasons from the BC Court of Appeal can be found here.
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for aggravation of pain due to pre-existing hip bursitis.
In this week’s case (McArthur v. Hudson) the Plaintiff was injured in a 2008 T-Bone collision caused when the Defendant failed to stop at a stop sign. Fault was admitted. The Plaintiff had significant pre-existing difficulties resulting in a total hip replacement. Following this the Plaintiff developed trochanteric bursitis.
He continued to have problems due to this and other complications of his pre-existing condition.
The collision caused an aggravation of the Plaintiff’s tronchanteric bursitis along with some soft tissue injuries. The court found that this aggravation ran its course by mid 2011. The Court further found that the balance of the Plaintiff’s lingering limitations were due to his pre-existing condition and not compensable. In assessing non-pecuniary damages for the aggravation at $40,000 Madam Justice Kloegman provided the following reasons:
The plaintiff must be compensated for losses due to an aggravation of bursitis in the lateral aspect of the trochanter which was substantially resolved by March 2011. The plaintiff must be compensated for losses incurred by him for a soft tissue injury to his shoulder that substantially resolved after about one month, and a soft tissue neck injury that substantially resolved by May 2011. Finally, the plaintiff is entitled to compensation for headaches experienced until May 2011 and an aggravation of his depression due to the setback (perceived or otherwise) in his rehabilitation until November 2008.
The plaintiff is not entitled to compensation from the defendant resulting from post-surgical complications in his hip, such as sublaxating fascia lata, tight iliotibial band or weak abductor muscles. The plaintiff is not entitled to compensation from the defendant for his lower back issues which resulted from a previous injury and arthritis in the spine. The plaintiff is not entitled to compensation from the defendant for any neck injuries or headaches after May 2011…
Nonetheless, I am satisfied that the plaintiff endured a significant degree of pain, both physically and emotionally, from his Accident related injuries, and he is entitled to reasonable compensation for that. Given the plaintiff’s age, the nature and duration of his injuries, and the impact on his enjoyment of life, I am of the view that his damages should be set at $40,000 (Laroye v. Chung, 2007 BCSC 1478; Guilbault v. Purser, 2009 BCSC 188; and Carter v. Zhan, 2012 BCSC 595).