$90,000 Non-Pecuniary Damages Awarded for Torn Bicep Tendon; Video Surveillance Discussed
(photo depicting muscle deformity from ruptured distal bicep tendon)
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, awarding damages for a rather unique injury, a ruptured bicep tendon.
In this week’s case (Taylor v. Grundholm) the Plaintiff was involved in motor vehicle collision. His vehicle was struck by the Defendant’s as the Plaintiff “opened the driver’s side door to reach into the back to retrieve a box of soap….His left hand was holding the steering wheel and he was leaning into the back seat area when the collision occurred.”
The Plaintiff’s vehicle sustained significant damage and was written off. Fault for the collision was admitted.
The Plaintiff sustained a variety of soft tissue injuries. The Plaintiff also tore his bicep tendon which caused a muscle deformity. The most contentious issue was whether the tendon was torn as a result of the collision. Ultimately the Court concluded that it was and went on to assess the non-pecuniary loss for this injury at $90,000. In reaching this decision Madam Justice Maisonville noted as follows:
[42] I find the injury to Mr. Taylor’s biceps tendon and to his upper left quadrant did occur as a result of the accident. Nowhere in the medical records is there a note of this injury — now described by Dr. Leith as a “noticeable deformity” — prior to the accident. The evidence from the physicians was that there would have to have been a significant event to cause this type of injury.
[43] The biceps tendons are attached to the bone, which anchors the muscle. When flexed, the muscle will appear to be at about the middle of the upper arm. If an individual has sustained a biceps tendon tear near the elbow (distal), the muscle is no longer anchored and will bunch up proximally, appearing much like the cartoon character Popeye’s arm. This is a noticeable deformity…
49] Dr. Leith further testified that a distal biceps tear is almost never repaired unless it is acute because people with this injury usually have no problems with function; rather (as noted), they will have problems with strength. Mr. Taylor is thus left with a lifelong cosmetic deformity in addition to the attendant loss of strength…
[60] There is no issue that the plaintiff has suffered a debilitating loss. He will no longer be able to look after his cabin and it will have to be sold. He will no longer be able to enjoy the activities that he enjoyed with his friends and family. Additionally, Mr. Taylor was nearing retirement. As Griffin J. noted in Fata v. Heinonen at para. 88:
The retirement years are special years for they are at a time in a person’s life when he realizes his own mortality. When someone who has always been physically active loses his physical function in these years, the enjoyment of retirement can be severely diminished, with less opportunity to replace these activities with other interests in life. Further, what may be a small loss of function to a younger person who is active in many other ways may be a larger loss to an older person whose activities are already constrained by age. The impact an injury can have on someone who is elderly was recognized in Giles v. Canada (Attorney General), [1994] B.C.J. No. 3212 (S.C.), rev’d on other grounds (1996), 21 B.C.L.R. (3d) 190 (C.A.)…
[67] In all the circumstances, I award the plaintiff $90,000 in non-pecuniary damages..
The Court went on to reduce this award by 10% finding that the Plaintiff failed to mitigate his damages by not attending physiotherapy which was recommended by his treating physicians.
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- Video Surveillance
This case is also worth reviewing for the Court’s discussion of the impact of video surveillance in injury litigation.
As I’ve previously posted, video surveillance can and does occur and it can be intrusive. However, video surveillance in and of itself does not harm a person’s injury claim. Damage is only done if the video demonstrates that the Plaintiff has not been truthful about their injuries / limitations. In today’s case Madam Justice Maisonville was quick to dismiss the impact of video that did not contradict the Plaintiff’s evidence as can be seen from the following passage:
[50] Mr. Taylor had been placed under surveillance and videotaped by investigators retained by the defendant on certain days in March and April of 2010. I find he was not shown to be doing anything inconsistent with his statement that he sustained an injury and was in pain. At one point, he was shown seated in the driver’s seat of his vehicle and reaching to about ear level with his left arm to grab the seatbelt. It was not a movement where he had to twist his body in any way, significantly arch his back or lift his arm directly over his head. Similarly, he was shown removing his hat with his right hand and smoothing his hair down with his left. I do not find those motions to be inconsistent with his injury. He was not directed by his physicians to cease using his left arm. The fact that he did not show obvious signs of distress when doing these movements is not inconsistent with his injury. He was not observed to be lifting anything. Accordingly, I do not find the videotape surveillance inconsistent with the evidence of the plaintiff and his physicians.