In Sandher v. Binning et al., the Plaintiff was a construction labourer who suffered a fracture of his middle and ring finger metacarpals in a motor vehicle accident. The fractures caused weakening, and a loss of strength in his hand. Eventually, “triggering” resulted, which is when the fingers become locked in the flexed position. Surgery was required, however this did not completely solve the problem. The Court awarded $40,000.00 for pain and suffering.

 

[21]         Mr. Sandher experienced the pain of fractured bones, the inconvenience of a cast for several weeks, pain following tenoplasty surgery, ongoing hand pain and stiffness, and pain from soft tissue injuries. The soft tissue injuries largely resolved within six months of the accident with occasional flare-ups on heavy activity; I find for the following reasons that those flare ups and hand symptoms have had a relatively small impact on his day-to-day life, social activities and general enjoyment of life.

 

[22]         In relation to the impact of the injuries on his recreational activities, the plaintiff claims that he is unable to lift weights, something the plaintiff said in his direct-examination that he did four to five times a week. However, in cross-examination, he conceded that before the accident he only lifted weights at most two to three times a week when he could find time after work. In addition, the plaintiff now has two young children, and he has less time and energy to spend at the gym, quite apart from the impact of his injuries.

In Dobre v Langley, the Plaintiff suffered a “Bennett fracture”, which is at the base of the thumb where it joins the wrist. The injury required surgery, and the pain had lasted for three years by the time of trial.

 

[58]           While there are some discernible slight divergences between the opinions of Dr. Gropper and Dr. Smit, in substance they are not large ones. I accept that within the span of 15 years Mr. Dobre will experience some worsening of his degenerative arthritis that carries with it a risk that by middle age it could become severe and accompanied by a corresponding decline in function. There is also a chance Mr. Dobre could make his way into his middle age years without experiencing a significant decline in function, but the chances are greater that he will do so by then. While confident predictions about his needing future surgery are not possible, given the early onset of degenerative changes and the nature of his fracture, there is at least some risk he will require future surgery with doubtful benefit.

 

[59]           Mr. Dobre feels dull intermittent pain at the base of his thumb, where the surgical nails were inserted. Moreover, his grip is weaker and his thumb is stiff. Prolonged grabbing and pulling brings the rapid onset of piercing pain. Prolonged writing causes discomfort and his thumb discomfort bothers him when he is writing university exams. In his part time job as a librarian, he finds he cannot hold many books when sorting them throughout the library. Due to his injury, he has to hold the books in an awkward position to avoid stressing the thumb.

 

[60]           At the time of trial, Mr. Dobre still performs exercises for his thumb injury prescribed to him by the White Rock Orthopaedic & Sports Physiotherapy Clinic.

 

[61]           Mr. Dobre was physically active in the summer of 2008. He had no physical problems before the accident. He played a mix of recreational tennis, basketball and soccer. He played tennis about once a week. Since the accident, he found that due to his weak grip and discomfort he could not play.

 

[62]           He used to play basketball with a friend twice a week. He also tried playing basketball after the accident but it caused too much soreness in his thumb.

 

[63]           He weight trained a few times a week at South Surrey Recreation Centre. He tried returning to weight training after his injury but experienced “great difficulty”. He could perform lower body exercises after the accident, but I suppose setting up equipment for those would require him to move or adjust plates with his hands. Mr. Dobre will obviously need to concentrate on lower body fitness, which will still bring him considerable health benefits. Four sessions with a kinesiologist should help Mr. Dobre find, to some extent, weight training strategies that would allow him to work around his disability.

 

[64]           Soccer is the last in Mr. Dobre’s list of physical activities. He continues to play soccer since the accident but does so “cautiously”.

In Lumanlan v. Sadler, the Plaintiff suffered a serious hand injury in a motor vehicle accident, and was awarded $50,000 for pain and suffering for her injury, which had lasted for two years before the trial, and which required seven surgeries.

 

[30]           In summary, as a result of the accident, the plaintiff was required to have seven surgeries on her left hand.  She is left with a non-dominant hand that is obviously different in appearance and function, regardless of the remaining surgery that will give some further amelioration in those respects.  She is left with stiffness in three fingers, one of them fused, but does not suffer pain or numbness.  She keeps her hand covered to avoid embarrassment. She has scarring, reduced grip strength, and reduced tolerance for repetitive activities involving her left hand.

 

[31]           Based on the evidence before the court, the effect on her daily life and activities is not extensive.  She finds some household chores difficult, and her left hand becomes tired when driving.  She does face the prospect of advancing arthritis, particularly in the two presently affected joints.

 

[32]           Considering all of the evidence, I am of the view that the amount proposed by the third party is reasonable.  I award $50,000 for non-pecuniary damages. 

 

[33]           In respect of the claim for failure to mitigate, I am unable to say that the amount of the award would differ if Ms. Lumanlan had gone through the eighth surgery.  While that surgery is expected to improve the appearance and perhaps the function of her hand in some small measure, the inconvenience and effect on her life of both a further medical procedure and the time necessary to recover from it would offset any small amount by which the award might be reduced.