Tag: meniscus injury

$95,000 Non-Pecuniary Assessment for Meniscal and Labral Tear

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for a chronic knee and shoulder injury.
In today’s case (Hart v. Hansma) the Plaintiff was involved in two collisions.  The Defendants admitted fault for both.  The Plaintiff suffered a variety of injuries including a torn meniscus, a labral tear and a variety of soft tissue injuries.  These continued to post problems at the time of trial with a poor prognosis.
In assessing non-pecuniary damages at $95,000 Mr. Justice Verhoeven provided the following reasons:
[54]         I find that the most significant injuries suffered by the plaintiff in the accidents are as follows:
1.     soft tissue injuries to his neck, particularly the right side, resulting in chronic neck pain;

  1. chronic headaches, associated with the neck pain;

3.     right shoulder injury, including a labral tear and tendonitis with a partial rotator cuff tear; and
4.     left knee injury, including a meniscus tear.
The foregoing injuries continue to cause significant ongoing pain and disability currently.
[55]         I find that the plaintiff also suffered from the following, less serious injuries sustained in the accidents:
1.     right upper limp numbness and pain;
2.     low back injury, and associated pain (that is not presently bothering him) in the right hip and buttock area;
3.     right knee pain (although it is now substantially resolved); and
4.     left hip pain (although it is now substantially resolved)….
[65]         The prognosis for full recovery is negative.  It is unlikely that his neck injury will ever fully recover.  There is a risk that his neck condition will deteriorate to the point where cervical discectomy surgery will be required.  The headaches he suffers from are related to his neck injury.  The plaintiff finds that treatment such as acupuncture, physiotherapy and the prolotherapy provide short term relief for his neck pain and headaches.  He takes a variety of medications in order to allow him to cope.  The planned knee surgery may provide some benefit for his left knee pain, but may have long term negative consequences, such as the risk of osteoarthritis. His shoulder condition is also chronic.  The plaintiff has the choice of enduring the pain and limitation of function in his shoulder, or undergoing surgery which may offer some benefit…
]         Taking into account the factors in Gillam as they apply to Mr. Hart’s circumstances, and the above awards in Prince-Wright, Hanson, Steward, and the cases cited by the defendants, adjusting for inflation, I find that an award of $95,000 is appropriate in this case.
 

$60,000 Non-Pecuniary Assessment for Medial Meniscal Tear and TMJ Injury


Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic knee and jaw injury sustained in a motor vehicle collision.
In this yesterday’s case (Daitol v. Chan) the Plaintiff was involved in a “serious” collision when the defendant dozed off and crashed into the Plaintiff’s vehicle.  Fault was admitted by the Defendant at the start of trial.
The Plaintiff suffered various injuries, the most serious of which was a meniscal tear in her left knee.  The Plaintiff’s family doctor summarized the following collision related injuries which the Court accepted:

[35] It was Dr. van Eeden’s opinion that the injuries sustained by Ms. Daitol during the motor vehicle accident were:

· New-onset neck-, mid-and-upper back, lower back, right shoulder and right hip area pain: soft tissue (muscular and connective tissue).  Pain in this area is largely resolved with some intermittent neck and back pain.

· Bilateral TMJ (jaw) pain, right side more than left.

· Pre-patellar bursitis of the left knee due to direct trauma to the knee.  This explained the initial swelling of the left knee patellar area, which resolved after a few months.

· Left knee PFS (patellofemoral syndrome) which is a condition of direct damage to the kneecap cartilage, causing pain with squatting, deep knee bending and climbing stairs.

· Left knee medial meniscus tear. This is consistent with the mechanism of injury of the MVA (direct knee impact), supported by direct pain upon palpation of the joint line, the MRI findings and the longstanding duration of symptoms.  This is still symptomatic today.

In assessing non-pecuniary damages at $60,000 Madam Justice Griffin provided the following reasons:

[53] In considering all of the medical evidence, and Ms. Daitol’s testimony, the evidence overwhelmingly supports a conclusion that Ms. Daitol is likely to have long-term continuing TMJ problems and left knee pain problems, as well as some right knee problems well into the future, and that these injuries were caused by the accident. ..

[67] I find as a fact that Ms. Daitol’s greatest discomfort in the years since the accident, and likely in the future, and greatest interference with her enjoyment of life, is due and will continue to be due to the pain in her left knee.  She continuously is required to use a left knee brace.  For a lengthy period of time, she was on crutches.  She limits her physical movements and hence her recreational activities due to the limits of her left knee as she does not want to set herself back…

[69] I find that she has suffered severe restrictions in walking and will continue to do so in the future and likely for the rest of her life.  I conclude that there is no readily apparent alternative exercise for Ms. Daitol at this stage of her life, other than walking.  As a 36 year old woman, the permanent impairment of her ability to walk any measurable distance or for any measureable period of time, without suffering extreme pain, is a significant loss.  While she still will have plenty of enjoyment in life, she will frequently suffer pain, both in her recreational pursuits and at work when she is required to move around to retrieve files or do other light tasks. ..

[74] In this case, I find it very significant that the one physical activity Ms. Daitol used to enjoy, walking, has essentially been lost to her.  While she can still walk somewhat, it is clear that she is no longer going to enjoy it, it is going to very limited in duration, and she is always going to fear and suffer the aftermath of increased pain.  Walking is essential to most of daily life, and is not a luxury that if lost, will not be missed.  For someone who has never had a natural inclination to pursue a range of physical activities, this is an even more significant loss as she is unlikely to have the natural athletic ability that will allow her to generate some other replacement activity.  While I find that the range suggested by the plaintiff may be high in these circumstances, I find the range suggested by the defendant to be far too low.

[75] I find that an appropriate award for general damages in the circumstances of this case, taking into account the left knee damage, the fact that it is causing some problems with the right knee, and the ongoing TMJ complaints, all caused by the accident, is $60,000.

$155,000 Non-Pecuniary Damages Agreement for Serious Knee Injury


Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing compensation for a serious knee injury following a motor vehicle collision.
In last week’s case (Stevanovic v. Petrovic) the Plaintiff was struck by a vehicle driven by the Defendant.  The Plaintiff was standing in the middle of a residential road when the Defendant approached in his vehicle.  The Plaintiff was friends with the Defendant and was expecting the Defendant to pick him up.  The Defendant attempted to show off and drive his vehicle dangerously close to the Plaintiff.  He miscalculated and struck the Plaintiff causing injury.  The Defendant denied fault but Mr. Justice Sigurdson found him entirely liable for the collision.
The parties were able to agree on several heads of damages including the claim for non-pecuniary loss (pain and suffering and loss of enjoyment of life).   The balance of the trial focused on the Plaintiff’s damages for cost of future care and diminished earning capacity.
The parties settled the value of the pain and suffering claim at $155,000.   Since the issue was privately settled this case is not a true ‘precedent‘.  Despite this I thought this case would be worth summarizing given the relatively few precedents dealing with unique and complex knee injuries.  The Court made the following findings with respect to the severity and extent of the Plaintiff’s physical injury:

[88]         The purpose of the review of the injuries that the plaintiff suffered is not to revisit the issue of non-pecuniary damages, which was agreed, but for the purpose of the assessment of his loss of earning capacity and cost of future care.

[89]         The injuries suffered by the plaintiff were summarized by Dr. Anton, a physiatrist, in his medical report of August 21, 2008:

1.         multiple injuries to the right knee including

(a)        a patellar dislocation with a residual osteocondral defect in the articular (joint) surface of the patella;

(b)        an impacted fracture of the lateral femoral condyle;

(c)        evulsion of the anterior cruciatr ligament from the tibial spine;

(d)        a lateral tibial-plateau fracture, and

(e)        a bucket handle tear in the anterior portion of the lateral meniscus;

2.         a closed head injury including a laceration, nasal fracture, and probable mild traumatic brain injury;

3.         a fracture of the proximal fibula of the right leg;

4.         an injury to the left shoulder involving the supraspinatis tendon of the rotator cuff and anterosuperior glenoid labrum; and

5.         multiple soft tissue injuries including a probable soft tissue injury to the cervical spine.

[91]         The plaintiff’s most serious physical injury was the damage to his right knee, which required surgery on four occasions by Dr. Pierre Guy, an orthopaedic surgeon.  The plaintiff also required shoulder surgery in 2008 by Dr. Gilbert, which surgery was successfully completed.  In more recent times, the plaintiff has developed and has complained of hip pain.

[92]         The knee injury was described by the doctors as serious and complex, and is significant for the loss of earning capacity claim, because it affects and continues to affect his ability to bend his knee, go up or down stairs, or crouch, squat, kneel, or run without pain.  As a result of his knee injury, notwithstanding the successful surgeries, it is now apparent, with his knee pain, and difficulty crouching and bending, that he would not be able to continue employment as a copier repair person, which was what he had done at RISO before the accident.

[93] I find that the plaintiff continues to suffer from pain to his knee and that further surgical options are limited until much later.  A total knee replacement at a much later age appears to be the only possible surgical solution to deal with ongoing pain and discomfort.

Wage Loss Claims for Stay-At-Home Parents Intending on Returning to the Workforce


Although stay-at-home parents are becoming less and less common many parents still take several years away from the workforce to raise their children in their infant and pre-school years.  Often times these parents intend to return to work after their children attend school on a full time basis.
When a parent in these circumstances becomes disabled from working due to the fault of another can they make a claim for loss of income in their tort action?  The answer is yes provided there is evidence establishing  a likelihood of returning to employment absent the accident related disability.   Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, dealing with this area of law.
In last week’s case (Carr v. Simpson) the Plaintiff was seriously injured in a 2005 motor vehicle collision.  The Defendant admitted fault and further admitted that the crash injured the plaintiff but took issue with the value of her claims for various damages including for income loss.
The Plaintiff, a 39 year old mother of three at the time of the collision, was out of the workforce for several years prior to the crash.  She spent these years working as a home-maker and raising her children.  She undertook some modest employment as a house cleaner shortly prior to the crash.  Following the crash she became disabled and did not return to any work from the time of the crash to the time of trial.
The Court accepted the Plaintiff sustained serious, permanent and partly disabling injuries due to the crash.  The Plaintiff sought damages of $84,000 for lost income from the time of the crash to the time of trial.  She argued that she had planned on returning to the work force once her children became school-aged (which was around the time of the crash) but was precluded in doing so as a result of her injuries.  The Defendant disagreed arguing that the Plaintiff suffered only a modest loss of income because of her “inconsistent work history (and) lack of incentive to work because of income from other sources.
Mr. Justice Bernard sided with the Plaintiff and awarded her most of what she sought for past income loss.  In doing so the Court provide the following useful reasons addressing the reality that parents that leave the workforce to raise young children can still succeed in an income loss claim:

[132]     I reject the notion that Ms. Carr’s unemployment history during her child-rearing years made her return to the workforce less realistic or less likely. Ms. Carr did not harbour fanciful ideas about her capabilities, her income-earning potential, or her opportunities for employment. When her youngest child reached school age, Ms. Carr was relatively young, energetic, able-bodied, willing to work hard, prepared to accept modest wages in exchange for her labours, and was fortunate to have a brother who could offer her steady, secure, and reasonably well-remunerated employment.

[133]     The evidence establishes that Ms. Carr, shortly before the collision, was motivated to earn some income (e.g., from housecleaning) until her youngest child was enrolled in school; thereafter, she planned to seek more fulsome employment. I do not accept the defence submission that Ms. Carr lacked the incentive and/or need to earn an income; to the contrary, since she has been unable to work because of her injuries she has, with some reluctance, turned to her mother for ongoing loans of relatively large sums of money, just to get by.

[134]     Ms. Carr became a single parent as of June 1, 2005. I find it highly likely that this new status would have impelled her to take the employment her brother offered, and to do so immediately. Her newly poor economic circumstances would have necessitated that Ms. Carr make child-care arrangements to bridge the time until her youngest child was in school in September 2005, and would have motivated her to work as many hours as she could manage as a single parent. Similarly, I am satisfied that she would have made any necessary arrangements for the care of her father.

[135]     I also find it is highly likely that Ms. Carr, as an employee of her brother, would have worked the hours and received the rates of pay assumed by Mr. Bush in his calculations. I find it is most unlikely that the seasonal aspect of the work would have reduced Ms. Carr’s overall income. Any shortage of work in the slow season would be offset by the demands of the busy season, and I am satisfied that Ms. Carr would have adjusted her life, accordingly.

[136]     While I am unable to agree with the plaintiff’s submission that in the determination of past wage loss there should be no reduction for negative contingencies, I am satisfied, for the relatively predictable period in question, the reduction must be minor.

[137]     Having regard for all the foregoing, I assess the plaintiff’s past wage loss at $75,000.

This case is also worth reviewing for the Court’s discussion of non-pecuniary damages.  The Plaintiff sustained numerious injuries including soft tissue injuries to her neck and upper back, Thoracic Outlet Syndrome, headaches and dizziness, a right hand and wrist injury which required surgery, a meniscus tear that required surgery, low back pain and depression related to chrobic pain.  In assessing non-pecuniary damages at $100,000 Mr. Justice Bernard provided the following reasons:

125]     Ms. Carr has, at age 44, many years ahead of her. As a result of the defendant’s negligence, Ms. Carr has been permanently partially disabled and left with constant and chronic pain. Since the collision, Ms. Carr has undergone two surgeries and endured considerable pain and discomfort. Ms. Carr has developed TOS and surgery is not recommended. She suffers from clinical depression related to the negative effect her injuries has had upon her, her family, and her way of life. Ms. Carr’s mental acuity and concentration has slipped. Ms. Carr’s marriage ended six months after she sustained her injuries. Her husband was unsympathetic and frustrated by her lack of desire for sex due to her discomfort. Ms. Carr has been rendered unemployable for most jobs in a competitive market. She is now unable to enjoy most leisure activities and active social pursuits with her children. She has a special fondness for horses and gardening, but meaningful participation in activities related to these interests is no longer feasible. Ms. Carr has lost much of the satisfaction from gainful employment, and the purpose and dimension it gives to life. In short, the negligence of the defendant has had a profoundly negative and lasting impact upon Ms. Carr.

[126]     I agree with the plaintiff’s position that the Djukic case is most similar of the proffered cases on its facts. I also agree with the defendant’s submission that Ms. Djukic’s pain was more severe than that of Ms. Carr; otherwise, I am persuaded that Djukic a useful reference point for the upper end of a general damages award in this case; and that Cimino is instructive in determining the lower end.

[127]     Having regard to all the foregoing, I assess Ms. Carr’s general damages at $100,000.

Hyperextension Knee Injuries from Car Crashes Discussed

Reasons for judgment were released yesterday by the BC Supreme Court, Vancouver Registry (Cabrera v. Sandhu), awarding a Plaintiff close to $350,000 in total damages for injuries and loss as a result of a 2003 BC Car Crash including an award of non-pecuniary damages of $60,000.
The collision occurred in Coquitlam, BC.    It was a near head on collision for which the Defendant admitted fault.  The issue at trial was quantum of damages (value of the Plaintiff’s claim).
The Plaintiff suffered various injuries including a “medial meniscus tear” which was stabalized through arthroscopic surgery.  The Plaintiff also had a ‘partial tear of her ACL which had scarred back to her PCL” which required a second surgery to correct.  The Plaintiff did not fully recover from these knee injuries by the time of trial and it was accepted that she was plateaued and “left with a significant and permanent disability.”  It was also found to be probable that the Plaintiff would need further knee surgery in the future.
One of the key issues at trial was weather the knee injury was related to the collision because the Plaintiff’s knee complaints did not come until sometime after the crash.  In accepting that the knee injuries were related to the crash Mr. Justice Rice accepted the evidence of the Plaintiff’s surgeon, Dr. Guy, who gave evidence that “it is common that passengers seated in the front of a car sustain knee injuries after having their foot braced against the pedal or floor board at the time of an accident.  In that position, injuries occur as a result of hyper extension of the knee during the collision
In addition to the knee injury Mr. Justice Rice found that the Plaintiff suffered from various soft tissue injuries described as a “mysofacial pain of the neck, upper and low back regions“.    These injuries had ‘resolved somewhat” by the time of trial but caused occasional pain to the Plaintiff.    The Plaintiff’s non-pecuniary loss was valued at $60,000 for these injuries.

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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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