In Hubbs v. Escueta, the Plaintiff was involved in a motorcycle accident, and brought an ICBC claim for several heads of damages, including pain and suffering, income loss, diminished earning capacity, and cost of future care. Although ICBC’S lawyer disputed liability, the Defendant was found fully liable for the accident. The Plaintiff suffered a bimalleolar ankle fracture, and required surgery. By the time of trial, over three years after the accident, the Plaintiff continued to suffer symptoms. Based on the medical evidence, the Court determined that the Plaintiff was expected to have permanent restrictions, and was also exposed to a risk of early degenerative changes.

 

[135]     This case highlights the importance of the individual circumstances. The injury suffered by Mr. Hubbs is serious. While the consequences for someone of more sedentary occupation and lifestyle might not have been so significant, for Mr. Hubbs the injury has proven to be life changing. He is a relatively young man who now faces a lifetime of limitation and disability. Mr. Hubbs’ livelihood requires strength, agility and balance, all of which have been impaired by the injury. The injury has impaired his ability to earn his living. He has worked through the pain, but at a terrible cost to his family life. He is no longer able to enjoy the active lifestyle he loved. His mood is depressed and he has little energy for anything except the struggle to put in a day at work. His relations with his wife and children have been damaged. It appears that he has reached a plateau in his recovery and faces a future of increased deterioration and vulnerability to injury.

In Druet v. Sandman Hotels, Inns & Suites Ltd., the Plaintiff suffered a bimalleolar ankle fracture that required multiple surgeries. Her condition had stabilized about four years after the accident. The Court assessed damages at $55,000, commenting that:

 

[11]        Druet suffered a bimalleolar ankle fracture.  She had open reduction surgery.  The break was fixed with metal screws.  The metal screws were removed by a further operation.  She had ongoing complaints of stiffness and lack of range of motion.  She had a lack of dorsiflexion and could not invert or evert her right hindfoot very well.  In June 2008 she had scar tissue surgically debrided and a gastrocnemius recession was performed.

 

[12]        By 2009 Druet’s condition was stabilized, but she had stiffness and arthrofibrosis of her right ankle, related to her bimalleolar ankle fracture.  She is not considered at high risk for future injuries, provided she stays within reasonable restrictions.

 

[13]        She walks with a slight limp and can no longer run as she once did, but can walk significant distances, which she does with walking partners.  She has some concerns about the work she does as a nurse, but is still able to perform the work required to the satisfaction of her current employer…

 

[66]           I have described the injuries above.  As a result of those injuries the plaintiff had three surgeries, although two were in succession.  She had implantation of a plate, a rod and surgical screws in March 2005 which were removed in September 2005.  Her ankle was debrided in June 2008. 

 

[67]           Druet missed a total of three months of work as a licenced practical nurse arising from the injuries and surgeries.  She walked with crutches for a short time after the Accident while recuperating.  She had limited physiotherapy in 2005 but not since.  She wears orthotics. 

 

[68]           Druet has substantially resumed her previous activities, except running.  She now walks two miles a day, five days a week.  She did substantial walking during a vacation to Europe in 2006 and a holiday in New York in 2008.  She can walk five kilometres.  She participates in 5K walks and completes them 10 to 15 minutes slower than when she ran. 

 

[69]           Druet relies primarily on French and Falati with respect to quantum.  In French the plaintiff suffered an ankle injury as well as soft-tissue injuries.  The plaintiff was hospitalized for two weeks.  The plaintiff had two operations performed within that period, including the insertion of a plate and screws.  He was in physiotherapy for more than a year.  His prognosis was for an ankle fusion, and he developed post-traumatic osteoarthritis, as well as neck and back soft-tissue injuries.  The plaintiff in French was disabled from working in his previous employment and was required to take a sitting or sedentary job which would require retraining.  Recreation such as fishing, walking with his children, and playing catch were either not possible or his enjoyment greatly diminished.  The accident exacerbated his pre-existing anxiety disorder. 

 

[70]           In Falati the plaintiff had a crush injury to his left tibia and fracture of the fibula.  He was hospitalized and underwent surgical stabilization of his fractures with indermedullary nailing.  Four days were spent in hospital.  Five months after discharge his physician recommended he refrain from standing for more than 30 minutes, not walk for more than 100 metres, and not climb ladders or stairs.  The plaintiff was left with some element of permanent left ankle disability.  The hardware in his ankle was not removed but might be removed in the future.  The plaintiff had a fairly significant anxiety reaction and “reactive depression”.  He had symptoms suggestive of post-traumatic stress disorder but not enough to be classified as “full PTSD syndrome”. 

 

[71]           Both of these cases involve, in my opinion, more significant sequella and elements of significant psychological impacts.  The cases cited by the defendants, however, involve less serious injuries.  In my opinion non-pecuniary damages fall between the two parties’ positions.  I award $55,000 under this head.

 

In Falati v Smith, the Plaintiff was injured as a pedestrian when he was pinned against a building by a vehicle. The Plaintiff suffered what the Court described as “a crush-type fracture to his left tibia and a fracture to the fibula”. By the time of trial, it had been nearly three years since the accident, and the Plaintiff continued to suffer from ankle and foot pain. In awarding $85,000 for non-pecuniary damages, the Court noted that:

 

[13]           The plaintiff was assessed by an orthopaedic surgeon, Dr. Penner, in November 2007. Dr. Penner noted that he walked with a very mild limp, favouring the left leg. On examination, the plaintiff was able to walk on his heels and toes without significant difficulty. Standing dorsiflexion of the left ankle was very slightly reduced, though non-weight bearing range of motion was normal. Mild tenderness was found on palpation of areas of the leg and ankle. Dr. Penner diagnosed a possible residual left ankle post-sprain syndrome, secondary to soft tissue scarring; and left plantar foot subjective sensory alteration, possibly secondary to left tibial nerve injury. He recommended obtaining new standing x-rays of the ankle so that a definite prognosis could be given. In his Medical Legal Report of March 17, 2008, he wrote:

 

“With respect to Mr. Falati’s foot pain, some element of this may be related to subjective sensory alteration in the plantar aspect of his left foot. This is possibly due to a minor injury to the tibial nerve at the level of the left ankle. The sensory alteration certainly appears mild. It is likely that this will gradually diminish further with further passage of time.

 

“Overall, it is typical for patients who sustain isolated tibia and fibula fractures to have some degree of residual soft tissue complaints for at least a year following the injury. However, most patients go on to achieve normal mechanical stability in their injured extremity and are able to return to high level physical function, often to their preinjury level. Usually, the ability to return to their full preinjury functional level depends on additional associated injuries. This certainly may be the case for Mr. Falati, who may have sustained an occult injury to the left ankle area as well.”

 

[14]         In response to certain questions raised by the plaintiff’s counsel, Dr. Penner further stated:

 

“You have inquired as to the probability of permanent disability. At this stage, Mr. Falati has only a mild amount of identifiable impairment in the left leg, ankle and foot. He does have evidence of pain symptoms in the leg and left ankle and left foot. However, he is noted to have essentially near normal motor power function as well as near normal range of motion. As such, his current impairment level is low. Nevertheless, there is an impairment present and the exact diagnosis underlying this impairment remains unclear. As a result, defining the likelihood of this impairment remaining permanent is impossible. It is important to note that disability represents the difference between what an individual is expected to do or required to do, and what they are capable of doing, due to the presence of a physical impairment. Since Mr. Falati still does have some evidence of physical impairment, albeit mild, some element of disability does remain. The probability of such disability remaining on a permanent basis seems very low with respect to the left knee and left tibia specifically. However, with respect to the left ankle, a more clear diagnosis would be required prior to making any estimate of permanence.”

 

[36]           The defendant’s counsel submits that an appropriate award of non-pecuniary damages would be in the range of $50,000 to $70,000; the plaintiff’s counsel, relying on decisions awarding damages in the range of $85,000 to $152,000 (after adjusting for inflation), submits that an appropriate award would be in the amount of $110,000.

 

[37]           In my view, the fact patterns in the cases relied upon by the defendant do not mirror the degree of disability experienced by the plaintiff. On the other hand, the cases relied upon by the plaintiff deal with symptoms or sequelae which were found to be permanent. Neither of the orthopaedic surgeons whose reports are in evidence, Dr. Penner and Dr. Jando, have expressed an opinion that the plaintiff’s foot pain and resulting limitations are likely to be permanent; Dr. Jando has offered the option of further surgery to remove the hardware. The plaintiff’s general practitioner, Dr. Kates, has pointed to both surgery, and weight loss, as possible means of addressing the complaints of persistent pain. Dr. Kates does use the phrase, “some element of permanent left ankle disability”, but as he goes on to point to the remaining hardware as a possible cause, I do not take him to mean “irreversible”. Although there is some possibility of a permanent disability in the present case, the evidence does not establish this to be a probability. Taking such possibility into account, I award the plaintiff non-pecuniary damages of $85,000.