In Carmichael v. Kwon, the Plaintiff was injured in two motor vehicle collisions, and brought ICBC claims for both. The actions were consolidated for trial purposes, and liability for both accidents was admitted on behalf of the Defendants by ICBC’S lawyer.

 

The first accident was the more serious one, with the Plaintiff sustaining soft tissue injuries to her neck, back, shoulders, ankle, knees, and wrist. The most serious injury suffered by the Plaintiff was to her hip, which was later diagnosed as a torn labrum causing inflammation and early degeneration. It was determined by the Court that the Plaintiff would need three hip replacement surgeries.

 

The effects of the Plaintiff’s injuries had serious consequences on her life, both physically and emotionally. The Court heard that her physical limitations would affect her enjoyment of recreational activities and participation in child care, and further that her emotional suffering impacted on her relationship with her fiance. In addition, her mental and physical health would impact on her sense of self-worth and career potential.

 

The Plaintiff missed more than a year of work, and was also prevented from being able to participate in physical activities with her son and fiance. By the time of trial, which was over three years after the first accident and about one year after the second accident, the Plaintiff still suffered from chronic pain in other areas besides her hip. The Court, however, noted that the worst of her issues at the time of trial was the deterioration of her right hip, which would restrict her ability to walk until such time that she had her first hip replacement surgery.

 

The Court was also impressed with the Plaintiff for being able to return to full-time employment, although she did still have to be accommodated by her employer in certain respects, by being relieved from duties such as carrying and lifting. The Court also noted that the Plaintiff experienced pain while she worked, and worked at a job which was not in her chosen field.

 

The Court would award $175,000.00 to the Plaintiff for non-pecuniary damages.

 

[120] She was 23 years of age at the time of the MVA. She is now 27 years of age and in her child bearing years. I accept that it is her intention to have two additional children. I also accept that the first hip replacement will occur within five to ten years, which I find means that she will likely have further children during a time when the hip has further deteriorated, increasing her level of pain and decreasing her mobility. She will likely require a mobility aid, as well as pain medication. The seriousness of her hip condition will profoundly affect her ability to enjoy this important period of a woman’s life by impinging on her physical ability to participate in activities with her children until after the first hip replacement. That is not to say that she won’t be able to be a wonderful mother, but rather it will affect the level of care she can provide and type of activities she can enjoy with her children.

 

[121] Once she has had the first hip replacement, I accept the evidence of Dr. Duncan that the plaintiff will not have the pain symptoms caused by the torn labrum and deterioration of her hip for a period of approximately twenty to twenty-five years and the limitations on her mobility will in the meantime be substantially alleviated. She will be able to be active again until the period leading up to and immediately following the next hip replacement. That said, I also accept the evidence of Dr. Jaworski that it is likely she will continue to have some residual pain associated with her chronic pain disorder. I find that while an exercise program, weight loss and cognitive therapy are likely to have a positive effect on her symptoms, the psychological component of chronic pain disorder militate against her feeling totally pain free after the first hip surgery. Further, as noted above, her need for two further hip surgeries and the associated recovery time will disrupt the course of her life.

 

[123] I agree with the defendants that the most problematic of her current issues is the gradual deterioration of her right hip. I find that it restricts her ability to walk, stand, and sleep comfortably and, as noted above, will continue to do so until her first hip replacement. I observe that the pain and fatigue she has experienced on a recent trip to Disneyland caused her to use a wheelchair for periods as she was not able to keep up with family members. I accept that she cannot perform the normal household duties in the same extent she did in the past, although she does perform such duties.

In Wong v. South Coast British Columbia Transportation Authority, the Plaintiff was an 81 year old lady who was injured on a bus when the bus driver abruptly pulled into traffic before the Plaintiff had the chance to be seated, causing her to fall. The bus driver then slammed on the brakes. The Plaintiff suffered a fractured hip in the accident, and subsequently brought an ICBC claim for damages for pain and suffering, out of pocket expenses, and cost of future care. The trial was approximately three and a half years after the accident, and the Plaintiff still required the use of a cane. The Court awarded $90,000 for pain and suffering, which was reduced to $67,500, as the Court found the Plaintiff to be 25% contributorily negligent for the fall.

 

[48] Dr. Horlick is an expert orthopedic surgeon. He prepared a report which summarized the injury and noted that he would not anticipate “… that Mrs. Wong would require more extensive assistance with her mobility needs or with basic activities of daily living as a direct consequence of her right hip fracture or residua of same.”

[49] At the time of the fall Ms. Wong was in good health. She lived a very active life and was able to walk without aids, swim two to three times per week, and shop for groceries and other necessities. She travelled frequently and in the words of her son, Samson Wong was “sociable”, “a very busy lady” and had “lots of friends”.

[50] It is clear from all of the evidence including the evidence of Samson Wong, that the impact of the fall was significant. Samson Wong indicated that his care for his mother had increased “about ten times more than before” and that the impact had not just impacted her physically, but mentally. She can no longer travel independently and walks with a cane.

In Dunn v. Lyon, the Plaintiff was injured in a motorcycle collision, and brought an ICBC claim for damages for pain and suffering, past loss of income, future loss of income, out of pocket expenses, and loss of housekeeping capacity. Liability was not in dispute. The Plaintiff‘s primary injuries were multiple hip fractures, which she endured for almost four years by the time of trial. The Court would award $100,000 to the Plaintiff for pain and suffering. The Court also awarded the Plaintiff $85,000 for diminished earning capacity, as well as $10,000 for loss of housekeeping capacity.

 

[86] I have already described Ms. Dunn’s hospitalization and the lengthy period during which she was disabled by her accident injuries. Ms. Dunn testified that she continues to experience discomfort caused by the injuries.

[87] Ms. Dunn testified that before the accident she enjoyed long motorcycle rides; walked her dog and played with her dog at the beach; and also did roller-blading. At time of trial, she said that she was limiting her physical activity to occasional walks and exercises to strengthen her core muscles although she testified that her family doctor had recommended that she keep active and walk and stretch.

[88] Ms. Dunn testified that after the accident when she was living in the Lower Mainland she walked to her physiotherapy appointments, but in Kelowna she generally drove herself to appointments. At time of trial, she was not having any physiotherapy or massage therapy treatment.

[89] On long drives, such as the three or four trips she had made to the Lower Mainland in the year prior to trial, Ms. Dunn experienced discomfort. Ms. Dunn testified that she is often in pain. She can sit for an hour at a time, but tries to put her weight on her right hip. She can stand for periods of 10 to 15 minutes if she can shift position while standing. Her discomfort sometimes interferes with her ability to sleep.

[90] Ms. Dunn testified she experiences pain or discomfort much of the time, but only occasionally requires the use of non-prescription medication to control or alleviate the discomfort.

In Coombs v. Moorman, the Plaintiff was involved in a rear-end accident, and brought an ICBC claim for her injuries. She suffered neck and back pain, with her main injury being a labral tear, which is a cartilage cushioning the hip socket. The Plaintiff was a massage therapist, and encountered difficulties with standing while trying to perform her job. By the time of trial, which was approximately 4 1/2 years after the motor vehicle accident, she still suffered pain in that area, and required future surgery. The Court awarded $90,000 in damages for pain and suffering.

 

[19]         Pain in her left hip is her primary concern presently.  She says it is very painful and affects every treatment she gives.  The pain makes her put her weight on her right leg, and consequently her right leg has begun to hurt as well.  After an MRI, it was determined that she has a labral tear, that is a tear in the material cushioning her hip socket.  A bone scan showed some tenderness on the left trochanter, that is the top of the femur.

 

[20]         Dr. Smit, Ms. Combs’ treating orthopaedic surgeon, recommended freezing injections into the hip and the trochanter respectively as a diagnostic device to determine where the pain was coming from.  That is, if one area were frozen and the pain continued, it would show that the source was the other area.  Dr. Smit said the injections give temporary relief, but symptoms would return in 6 – 8 weeks.  He said in “a distinct minority” of cases the pain does not return.  Ms. Combs declined this procedure.

 

[28]         Ms. Combs suffered fairly extensive injuries in this accident, some of which are permanent.  The hematoma in her knee and the damage to her finger, though not interfering with her activities, will not improve.  She deals with daily neck, back and hip pain and has done so for four years.  While surgery will likely improve her hip pain, it is not likely that her neck and back pain will resolve.  Her prognosis is poor.

 

[33]         I am of the view that it would have been helpful for Ms. Combs to have the injections for diagnostic purposes and for temporary relief.  Her failure to do so was unreasonable, but although some of her pain may have been relieved temporarily by this procedure and diagnosis of the source of the pain would likely have been facilitated, failure to undergo this procedure does not affect any long term outcome.  Dr. Smit said the cases in which pain does not return after the injections are “a distinct minority”.  In any event, Ms. Combs must still face hip surgery, and according to the medical evidence, delay in having the surgery does not affect its success rate.  Her refusal to undergo months of recovery from surgery while running a busy practice and taking care of young children is simply a matter of weighing how much pain she could cope with and still carry on.  I cannot see her refusal to have the surgery until now as unreasonable.

 

In Etson v. Loblaw Companies Limited, the Plaintiff was injured in a slip and fall incident at a Real Canadian Superstore, and brought a claim for her injuries. The Plaintiff sustained a sub-capital hip fracture, and suffered from the injury for two years prior to trial. She eventually would require a total hip replacement. The Court awarded $90,000.00 for pain and suffering.

 

[61]        Ms. Etson was quite reserved in her descriptions of the pain she experienced as a result of her injuries but there is no question that she suffered a tremendous amount of pain.  The initial injury was obviously very painful and it took Ms. Etson about four months to begin to resume her mobility sufficiently to be able to drive and do things for herself.  She suffered a debilitating set-back in August 2009 when the hardware failed and the femoral head in her hip collapsed.  Her mobility deteriorated and she was again unable to do things for herself.  She suffered tremendous and increasing physical pain for about eight months.  She underwent two additional surgeries.  The first, in January 2010, did not alleviate her pain or improve her mobility.  She did not experience any relief from the pain until April 2010 when she had the total hip replacement surgery.

 

[63]        Clearly, Ms. Etson’s injuries have had a profound effect of her life.  She has recovered reasonably well since April 2010 but she still has residual problems.  She is limited in how far she can walk, she still uses a cane when walking for more than two or three blocks and she has a bit of a limp. She is able to live independently now but she is still not able to do heavier physical activities such as gardening or snow removal. I do not accept Dr. Moreau’s comment that “there would have been some residual symptoms during her recovery from the hip replacement of about 3 months”.  This statement is not consistent with his own observations of her condition on September 27, 2010, and is not consistent with Ms. Etson’s evidence, which I do accept.  Her residual symptoms have lasted longer than that and while her prognosis is not entirely clear, it is likely that she will be able to resume most, if not all, of her pre-accident activities by the spring.

 

[70]        In this case, the injuries had a profound effect on Ms. Etson’s life.  Her active and independent life style, which was important to her, was seriously compromised for over a year and a half.  During that time she experienced significant pain and had to undergo three surgeries.  She is now able to resume most of her former activities but she still has some residual effects.  Given my findings, I assess non-pecuniary damages at $90,000.