Tag: rib injury

$36,000 Non-Pecuniary Damages Awarded for Rib Injury

Reasons for judgment were released last Thursday (Grier v. Saadzoi) awarding a Plaintiff just over $46,000 in total damages as a result of injuries suffered in a 2004 British Columbia motor vehicle collision.
The crash happened in Surrey, BC.  The collision resulted in significant vehicle damage totalling the Plaintiff’s car.  The Plaintiff suffered various soft tissue injuries and rib pain.
In assessing the Plaintiff’s pain and suffering at $36,000 Mr. Justice Brooke summarized the Plaintiff’s injuries as follows:

[24]            I find that the plaintiff was a credible witness, who neither exaggerated nor diminished the injuries that she sustained or the continuing pain and discomfort she has.  She was a reliable historian.  She struck me as a person who is getting on with her life, despite having to put up with some pain and discomfort.  I am also satisfied that she has followed the advice that she has been given in terms of stretching and exercise and that she avoids, where she can, physical activity which will trigger any discomfort in the area of her rib.

[25]            The plaintiff has made a good recovery from the soft tissue injuries that she sustained in a forceful motor vehicle collision.  I find that the pain associated with the lower left rib was caused by the collision and that whether Dr. Vallentyne is correct, that the pain is a result of subcostal muscular involvement or Drs. Luoma and Coghlan are correct, that the pain is associated with the first floating rib, that the injury and its consequence is likely permanent.  Fortunately, however, the result is a modest impairment of her overall capacity and it can be controlled, to some extent, by avoiding certain physical activity, as well as involving herself in an exercise and stretching program and taking medication to assist her in sleeping and to moderate the pain.

[26]            Non-pecuniary damages are a “once and for all” award to compensate a plaintiff for pain, suffering and loss of enjoyment of life caused by the injury to the date of assessment and for the future.  In assessing damages, the ranges of damages awarded in comparable cases can be a useful guide, but in each case, the court must fashion an award that provides compensation to the plaintiff.  This is not a case like Price v. Kostryba, [1982] 70 B.C.L.R. 397 (S.C.), or Butler v. Blaylock Estate, [1981] B.C.J. No. 31 (S.C.), where complaints of injury continue long after the normal period for recovery, but rather one where the injury is real and continues to cause pain and discomfort and will likely do so for the foreseeable future.  I assess non-pecuniary damages at $36,000.

One aspect of this judgment that interested me was the court’s summary and analysis of the surveillance evidence the defendant’s used during the trial.  Video surveillance is commonly used by ICBC in the course of defending soft tissue injury claims and this judgement shows that surveillance video is not always a damaging thing.  

In today’s case the video showed the Plaintiff doing various physical activities including riding a motorbike.  This did not appear to hurt the Plaintiff’s case any as this video did contradict her evidence about her limitations.  The surveillance evidence was summarized at paragraph 19 as follows:

[19]            As part of the case for the defendant, a series of videos was put in evidence showing the plaintiff riding a motorbike off road and shopping and going about her normal household activities.  Clearly, the videotape was made surreptitiously and without the plaintiff’s awareness.  While the tape does not display any particular discomfort evinced by the plaintiff, her activity is restrained when compared to the activity of her husband who was with her.  She says that before the accident, they operated their motorbikes off road and on rugged and uneven terrain.  What was depicted in the video was the operation of the motorbikes on a relatively level gravel road.  It was noted that the plaintiff’s husband took the motorbikes out of the truck and that the plaintiff played no role in that.  Nevertheless, the videotapes do demonstrate that the plaintiff is able to continue at least some of her former activities, although perhaps not with the same intensity nor without pain.

As I’ve previously postedVideo surveillance does not in and of itself hurt a personal injury claim, overstating the effects of injuries does. It does not matter if you’re painting your house, lifting weights, or doing any number of physical activities that are caught on film. If you can be active and not aggravate your injuries that is a good thing. If, on the other hand, a personal injury claimaint tells others that they are limited and video surveillance shows otherwise, that could be very damaging. This goes to a person’s credibility. If a person is caught in a lie with respect to the effect of their injuries that will have a very negative effect on the value of an ICBC claim.

Mechanics Found Liable for Single Vehicle Collision for Negligent Brake Repair

Reasons for judgement were released today compensating a Plaintiff as a result of injuries and loss sustained in a 2006 single vehicle collision that occurred in Vancouver, BC.
The Plaintiff, an 80 year old woman, was driving her Nissan back home from the hair salon.  She drove down hill, applied her brakes but they did not respond.  She lost control of her vehicle and smashed into a lamp standard prior to coming to a stop.  The collision was significant and caused numerous injuries.
The Plaintiff sued Kal Tire Ltd. who serviced her vehicle in the years prior to the crash.  ICBC also sued Kal Tire Ltd. for repayment of funds they paid to the Plaintiff as a result of this crash.
The court found that Kal Tire was responsible for this collision and thus ordered that damages be paid to the Plaintiff and to ICBC.  The key finding was made at paragraphs 51- 53 which I reproduce below:

[51]            The evidence demonstrated on the balance of probabilities that Kal’s negligence in servicing the Nissan’s brake system caused the brakes to fail.  Mr. Brown’s physical observations of undisturbed front bleed screws is consistent with a failure to properly perform the brake fluid flush.  This would have left existing contaminated brake fluid in the system.

[52]            Ms. D’Oliveira did not notice a change in the brake system functioning after the servicing.  The brakes may have been performing poorly before the servicing, which led to the replacement of the rear wheel cylinders.  If the brake fluid flush was done incorrectly, brake function would not improve despite the servicing.  Alternatively, Ms. D’Oliveira may not have been particularly sensitive to the sponginess of the brakes.  While it appeared sudden to Ms. D’Oliveira, the brake system was likely performing poorly even prior to servicing, and there simply continued to be a slow deterioration leading to complete failure. 

[53]            As a result, Kal is liable for Ms. D’Oliveira’s injuries arising from the accident, and for the sum agreed between the parties in the ICBC Action.

The Plaintiff suffered various injuries which are summarized at paragraphs 54-56 of the judgement which I reproduce below.   The court assessed the Plaintiff’s non-pecuniary damages at $40,000.  

[54]            Ms. D’Oliveira suffered significant orthopaedic injuries of ten broken ribs, a crushed right heel, and a fracture to the C-7 vertebra.  She had surgery on her heel to insert pins, had a cast on her leg for seven weeks, and was placed in a neck collar.  She spent 52 days in a hospital setting.  She was discharged using a wheelchair, but shortly afterwards was able to walk with a walker and then a cane.  During this time she was assisted in household activities by her son and sister. 

[55]            Ms. D’Oliveira was able to walk unaided about nine months after the accident.  By that time she was mostly pain-free, and able to resume most of her activities.

[56]            Ms. D’Oliveira’s on-going problems are that she is unsteady on her feet.  She has given up her regular stay-fit classes.  She is more cautious in turning her head.  She has to wear wide shoes to accommodate swelling. 

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If you would like further information or require assistance, please get in touch.

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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