In Reddy v. Staples, the Plaintiff was injured in a motor vehicle collision, and consequently brought an ICBC claim for damages for pain and suffering, as well as other heads of damages. Liability was admitted by ICBC’S lawyer. The Plaintiff sustained a serious knee injury as a result of the collision, and although the Plaintiff had some form of pre-existing knee pain, he maintained that the accident caused pain to different areas of the knee, and to a much greater degree than he experienced prior to the accident. The Court was to determine the issues of the extent of the Plaintiff’s knee injury at the time of trial, the extent to which it was caused by the accident, and the extent to which the injuries caused by the motor vehicle collision will affect the Plaintiff in the future. By the time of trial, it was close to five years since the accident. The Court determined that 85% of the Plaintiff’s knee issues were due to the accident, with the remaining 15% attributable to pre-existing conditions, and awarded $80,000.00 for pain and suffering.

 

[115] It is difficult to assess the contribution of each condition to the plaintiff’s current knee symptoms because the experts addressed this issue only in general, sometimes vague, terms. It is reasonably clear that the meniscus damage that was already present at the time of the accident would have caused problems for the plaintiff, even absent the accident, until it was repaired in October 2009, and it might have continued to cause problems after that. As Dr. Calvert said, “the majority of patients with an isolated meniscal injury do recover a good portion of their function post surgery”, thus suggesting that some do not. Dr. Calvert said that even with just the meniscal damage and removal he would have counselled, post-surgery, against activities that involved repetitive impacts. It is also clear from the evidence, however, that the chondral injuries to his patella and medial femoral condyle are more significant than was the pre-existing meniscal damage. I also conclude that the risk of degenerative arthritis associated with just the meniscal injury was and is materially lower, and with a longer time frame, than it is with the chondral injuries, where osteoarthritis is already present.

 

[118] I am satisfied that Mr. Reddy, 31 years old at the time of the accident, suffered a significant injury to his knee (the chondral injuries) as a result of the accident. In addition, he had pain and stiffness in his back, neck and shoulder areas for a period of about four or five months. His knee condition generally (that is, involving both pre-accident and accident-related causes) is frequently painful, restricts his activities and enjoyment of life, and causes him stress and anxiety. On my assessment, 85% of those problems are attributable to the injuries he suffered in the accident. The accident-caused injuries are degenerative, as is his pre-existing knee condition, though the degeneration associated with the accident injuries has already manifested itself and the degeneration associated with his pre-accident condition is likely to occur later, perhaps much later.

In Majchrzak v. Avery, the Plaintiff was injured on his motorcycle when he was struck by another vehicle who failed to yield the right of way. The Plaintiff consequently brought an ICBC claim for many forms of damages, including pain and suffering, loss of income, and cost of future care. Although liability was not admitted by ICBC’S lawyer, the Plaintiff was only one to give evidence at trial to this effect, and the Court ruled that the Defendant was liable. The Plaintiff suffered a knee injury which still presented problems for him by the time of trial, almost six years after the accident. The Plaintiff already had had one surgery, and a knee replacement was likely. The Court awarded $95,000 for pain and suffering.

 

[81] I consider the following factors relevant in this case:

(a) Age of the plaintiff: Mr. Majchrzak was 51 years old at the time of trial. The evidence establishes that he will likely suffer some measure of pain for the remainder of his life.

(b) Nature of the injury: Mr. Majchrzak suffered grade 2 chondromalacia and post-traumatic arthritis from the impact of the accident. His knee is permanently damaged, and it is likely that he will require knee replacement, although it is unclear when that will be. He also suffered minor injuries and bruising to his left hand and back that resolved uneventfully.

(c) Severity and duration of pain: Almost six years post-accident, the plaintiff continues to suffer pain daily. While he has been able to work through the pain, by doing stretching exercises, icing his knee and taking medication, I have concluded that he has endured much pain doing so. Indeed, he is now retraining to work in a less physically demanding position.

(d) Disability: The plaintiff has a permanent impairment of his physical capabilities.

(e) Emotional suffering: Dr. Raffle and Mrs. Majchrzak both gave evidence that Mr. Majchrzak has suffered some measure of depression and anxiety caused by chronic pain and his inability to work and provide for his family.

(f) Loss and impairment of life: Mr. Majchrzak has permanent injuries that require him to leave what he described as his “dream job”. Furthermore, many of his non-work activities, such as ballroom dancing with his wife, sports activities with his children, and maintenance of his home have been affected.

 

In Han v. Chahal, the Plaintiff was a pedestrian who was injured when struck by a motor vehicle in a marked crosswalk. ICBC’S lawyer had denied liability in the pleadings, but conceded liability at trial. However, ICBC’S lawyer argued that the Plaintiff should be held to be 25% contributorily negligent. The Court ruled that the Defendant was entirely liable for the accident. The Plaintiff suffered various injuries, including a moderate wrist injury, but a very serious femur injury. By the time of trial, the Plaintiff had suffered from this injury for more than four years. The Court awarded $140,000 to the Plaintiff for pain and suffering, also noting that there was a substantial risk of pain and disability persisting indefinitely.

 

[154] In summary, the plaintiff was physically healthy prior to the accident. She suffered a very serious injury to her femur and a moderate injury to her wrist. These injuries have healed uneventfully from a physical point of view, after two surgeries to her leg. No specific ongoing organic cause for her hip pain has been established. Although she likely overstates her degree of disability, she has developed chronic pain, in relation to several areas of her body. She has depression and anxiety.

 

[155] Her major complaint of pain is with respect to her left hip. When she saw Dr. Chin February 3, 2010, about 14 months after the accident, she had 75% to 80% improvement in her orthopedic injuries, but since then she has development several new pain complaints and, overall, her condition has not improved. Her chronic pain and depression have resulted in altered mood, lack of energy, fatigue, irritability, and some cognitive difficulties.

 

[156] The accident caused a drastic change to the plaintiff’s pre-accident health, lifestyle, and enjoyment of life. I accept that to date, more than four years post-accident, the plaintiff continues to suffer significantly from the effects of the accident.

[157] However, the assessment of her loss is complicated by the fact that her evidence is somewhat unreliable. Further, treatment options have not yet been explored, and the prognosis is uncertain. There is a substantial risk of pain, suffering, and disability persisting indefinitely. The preliminary prognosis for complete recovery is negative. The potential extent of recovery is unclear.

 

In Gravelle v. Sergeant, the Plaintiff was injured as a pedestrian when struck by the Defendant while walking on the shoulder of a road. The Plaintiff subsequently brought an ICBC claim for pain and suffering, past wage loss, diminished earning capacity, and costs of future care. Liability was admitted by ICBC’S lawyer. The Plaintiff suffered a fractured femur, and although he made a good recovery, he was expected to have a permanent level of restriction. The trial was approximately 4 1/2 years after the accident. The Court awarded the Plaintiff $85,000 for pain and suffering.

 

[50]         The following is the application of these factors to the plaintiff:

 

(a)      Age of the plaintiff:

Mr. Gravelle was 16 when the accident happened.  The evidence establishes that he will likely suffer some measure of pain for the rest of his life.

 

(b)      Nature of the injury:

Mr. Gravelle suffered a fractured right femur that required an open reduction and insertion of an intramedullary nail and locking screws.  He also suffered injuries to his low back, right groin and right knee, which remain a cause of pain.

 

(c)      Severity and duration of pain:

He was in severe pain for a short period of time.  He was required to take pain medication for 4 – 6 months.  Four and a half years after the accident he continues to suffer pain.

 

(d)      Disability:

The plaintiff was totally disabled for some six months, and continues to have some measure of disability.

 

(e)      Emotional suffering:

The plaintiff’s mother testified that the plaintiff was isolated and less confident following the first collision.  He did not seek counselling for this.

 

(f)       Loss and impairment of life:

Mr. Gravelle’s life was interrupted and altered by the first collision.  He missed part of Grade 10.  His mobility was significantly restricted during the summer.  He has permanent injuries and has some impairment of his ability to perform physical labour and enjoy his former physical pursuits.

 

(g)      Impairment of family, marital and social relationships:

Mr. Gravelle does not enjoy spending a lot of time with friends.  He was somewhat like this before the accident as well.

 

(h)      Impairment of physical and mental abilities:

He has a permanent impairment of his physical capabilities.  There is no impairment of his mental abilities.

 

(i)       Loss of Lifestyle:

Mr. Gravelle was unable to engage in snowboarding, an important part of his life, for some time.  He has been able to return to it, but pain prevents him from snowboarding in the same manner as before.

 

(j)       Stoicism:

Mr. Gravelle is somewhat stoic in his presentation.  The defendant agrees that the plaintiff should not be penalized for this.

 

In Anderson v. Shepherd, the Plaintiff suffered a major injury to his knee in a motor vehicle accident, and brought an ICBC claim for damages. Surgery was required, and the Plaintiff suffered from chronic pain for more than three years by the time of trial, with the pain expected to last indefinitely. There was also a possibility that he would suffer from Complex Regional Pain Syndrome (CRPS). The Court, in awarding $85,000 for pain and suffering, commented that:

 

[75]         My consideration of the totality of the evidence in this case leads me to conclude that:

 

1)    Mr. Anderson will have ongoing symptoms with his knee indefinitely which will remain relatively constant at their present level with a tendency to improve over time, rather than worsen.

 

2)    Mr. Anderson is likely to have difficulties with activities requiring a great deal of knee flexion such as kneeling, squatting, climbing stairs and walking up hills.

 

3)    No further surgical intervention will assist in alleviating Mr. Anderson’s existing knee symptoms.

 

4)    Mr. Anderson will not likely develop accelerated osteoarthritis because of the injury to his knee.

 

5)    Mr. Anderson is not disabled from work as a driver if he obtains a Class 1 licence, but will be required to take breaks to rest his knee if he drives for long periods of time.

 

6)    The injury to his left knee will likely require Mr. Anderson to take more pain medication to relieve his pain than he was taking to alleviate the chronic pain associated with his low back pain caused by the 2004 motor vehicle accident.

 

[84]         Mr. Anderson has suffered a serious and debilitating left knee injury. It was acutely debilitating for approximately six weeks when he could do almost nothing other than rest. While his condition improved thereafter, that improvement was not sufficient to allow him to resume all of his previous activities either at home or outside the home, his home life and relationships with his wife and children suffered badly, and he was unable to work because of his injuries.

 

[85]         Surgery on his knee in March 2010, more than a year after he was injured, helped to alleviate his difficulties to the extent that by his own assessment his improvement has now approached 70%. The evidence establishes that it is likely that his symptoms have stabilized at that level and are not likely to worsen over time.

 

[86]         Even at their present recovery level, Mr. Anderson’s injuries require him to endure pain that must be treated with increased levels of medication beyond that which previously alleviated his chronic low back pain that arose from the 2004 motor vehicle accident. His ability to enjoy life because of his compromised physical abilities is seriously diminished. He has now suffered and endured his losses for more than three years. As a young man who is now only 30, Mr. Anderson will suffer them for most of his adult life.

 

In Peragine v. Serena, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim seeking damages for pain and suffering, as well as other types of damages. Her main injury was patellofemoral knee pain, which had required surgery, and which had lasted for more than three years by the time of trial. Her pain was also expected to continue into the future. The Court awarded $40,000.00 in damages.

 

[72] In Dr. Kokan’s opinion, it is likely that Michelle could continue to experience her pain symptoms for between two to three years.  He expects that she will continue to experience difficulties with kneeling, walking, standing and negotiating stairs.  He recommends that Michelle limit her sports to non-impact activities such as swimming or cycling…

 

[75] I accept Dr. Kokan’s description of Michelle’s symptoms as described in his report.  I also accept his opinion that the pain in her left knee was caused by a blunt impact during the March 13, 2009 collision and that it is possible for the injury to the knee to have occurred during the accident but the pain associated with that injury not to have manifested itself for three weeks to a month…

 

[119] However there is no question that, since the collision, Michelle has experienced and is continuing to experience intense and ongoing pain in her left knee.  She is unable to climb or descend stairs or even walk or stand for prolonged periods of time without significant pain and having to sit and rest her knee.  She is unable to participate in sporting activities which she has grown up doing and which are her passion.

 

[130] The plaintiff is 21 years of age.  She continues to have trouble walking and standing without pain.  She is in pain every day.  Despite the pain, she is living a normal and enjoyable life.  The prognosis for a full recovery is good.

 

In Dulay v. Lachance, the Plaintiff was injured in a motor vehicle accident, and brought an ICBC claim for damages for pain and suffering. The plaintiff suffered soft tissue and whiplash injuries to his neck and back, which primarily resolved within about six months of the accident, however he suffered from chronic knee pain for over four years by the time of trial. The Plaintiff had pre-existing, asymptomatic arthritis in his knee, which he argued was rendered symptomatic by the motor vehicle accident. ICBC’S lawyer argued that the motor vehicle accident was coincidental to the onset of knee pain. Not surprisingly, the Court rejected ICBC’S lawyer’s argument, and awarded the Plaintiff $75,000 for pain and suffering.

 

[79]         Dr. McLeod stated: “It is impossible to predict whether or not this right knee would have become symptomatic should this accident not have occurred.” I accept his evidence on that issue.

 

[96]         The plaintiff asserts that his injuries arose from the accident. While it is true that he had osteoarthritis before the accident, the plaintiff’s position is that his condition was rendered symptomatic as a consequence of the accident.

 

[97]         The plaintiff relies on the report of Dr. Grover who wrote:

 

It is also my opinion that, but for the motor vehicle accident in question, he would likely have remained pain free and symptom free (as far as the right knee is concerned) for many years to come, on balance of probability.

 

As noted above Dr. McLeod also found that the osteoarthritis was rendered symptomatic from the accident.

 

[98]         The defendant says, firstly, that causation has not been proved and that it has not been shown that Mr. Dulay’s injuries resulted from the accident. While he did have other injuries resulting from the accident, these were largely resolved within 8 to 12 months after the accident. Secondly, the defendant submits that the painful osteoarthritis the plaintiff now suffers was a pre-existing condition that would have occurred even without the accident. There was no evidence of muscle wasting in the plaintiff’s left leg in July 2010 indicating he continues to use that leg. Any ongoing pain is simply a consequence of the pre-existing osteoarthritis which was not triggered by the accident.

 

[106]     There was no evidence that any other event triggered the arthritis to become symptomatic. While it was indeed the evidence of both orthopaedic surgeons that asymptomatic arthritis can became symptomatic from no event at all, here, I find that the complaints followed on the accident. I find on a balance of probabilities that the plaintiff has proven the injury caused the osteoarthritis to become symptomatic causing pain to his right knee and residual pain to his elbow. This was as a consequence of the accident.

 

In Battagliola v Wal-Mart Canada Corp, the Plaintiff suffered from patellofemoral pain for a period of six years from the date of the accident until trial. The Court had some doubt as to the severity of the injury, and awarded $28,000 for  pain and suffering.

 

[26]           I am satisfied that the medical evidence supports Ms. Battagliola’s evidence that her right knee was injured by the metal shelf hitting her knee and that as a result she suffers from ongoing pain.  In this regard, Dr. Pisesky was specifically asked under cross-examination if the shelf presented to him in the courtroom and identified by defence counsel as being similar to the shelf that struck Ms. Battagliola’s knee could have caused her injury.  Dr. Pisesky answered in the affirmative.  He was not challenged on this answer. 

 

[27]           However, I am of the view that the negative impacts are not quite as debilitating as asserted.  The medical evidence, as pointed out by defence counsel, uses descriptors such as “mild”, “mildly”, and “moderately”.  I also note that with respect to the visible observations of wasting, Dr. Pisesky agreed that the report of Dr. Werry, who saw the plaintiff in June 2007 and whose report Dr. Pisesky reviewed in preparing his report, stated that the plaintiff’s two thigh circumferences were normal on June 7, 2010 and that the plaintiff had maintained a sufficient level of activity to avoid thigh atrophy.  Dr. Pisesky agreed that it was possible that something could have happened after June 7, 2010. 

 

[28]           I also note that while Ms. Battagliola testified that she has significant difficulties with bending her knees, she had the confidence to enrol in a program to become a first-aid attendant.  The training and actual work requires considerable physical ability, including bending, as people in need of aid are often prone on the ground.  While she says that she experienced difficulty with the cardiopulmonary resuscitation training because of the need for her to kneel and do compressions, she passed the test and testified that she has a desire to continue on with further training and to find full-time employment as a first-aid attendant.  Ms. Battagliola is to be commended for her initiative, however this indicates that her current limitations are not as severe as her personal account suggests. 

 

[29]           I also found the absence of witnesses who have had frequent contact with Ms. Battagliola both before and after the incident problematic in terms of gauging the degree of difficulty experienced by the plaintiff; for example her children.  The evidence of Mr. Waryk was somewhat helpful.  He stated that, prior to the accident, she displayed no physical limitations and was able to “keep up” with him in dancing.  His evidence of her ability to dance after the accident related to only one observation after the accident.  He provided no real explanation for why Ms. Battagliola did not dance much that evening.  He states that she complained that she was tired.  There was certainly no reference to her knee.  The same goes for Ms. Gibbs, whose observations were of limited usefulness because they were only after the plaintiff’s accident.  I also have taken into consideration that the plaintiff sought out and worked as a server for a period of time in Kelowna, which requires a fair amount of standing, bending and walking. 

 

[33]             In considering the circumstances of this case, the age of Ms. Battagliola; the period of time over which her condition has continued; the medical evidence of Dr. Pisesky that symptoms will continue on indefinitely but that they can be controlled to a certain extent by his recommendations and that there should be a noticeable benefit with orthotics; and my finding that her pain is not as debilitating as indicated in the plaintiff’s case, I assess non-pecuniary damages as $28,000.

 

In Stevanovic v. Petrovic, the parties settled on an amount of $155,000 for a serious knee injury suffered by the Plaintiff in a motor vehicle accident.

 

[89]         The injuries suffered by the plaintiff were summarized by Dr. Anton, a physiatrist, in his medical report of August 21, 2008:

1.         multiple injuries to the right knee including

(a)        a patellar dislocation with a residual osteocondral defect in the articular (joint) surface of the patella;

(b)        an impacted fracture of the lateral femoral condyle;

(c)        evulsion of the anterior cruciatr ligament from the tibial spine;

(d)        a lateral tibial-plateau fracture, and

(e)        a bucket handle tear in the anterior portion of the lateral meniscus;

2.         a closed head injury including a laceration, nasal fracture, and probable mild traumatic brain injury;

3.         a fracture of the proximal fibula of the right leg;

4.         an injury to the left shoulder involving the supraspinatis tendon of the rotator cuff and anterosuperior glenoid labrum; and

5.         multiple soft tissue injuries including a probable soft tissue injury to the cervical spine.

…

 

[90]           The nature, extent, and cause of the plaintiff’s continuing injuries and complaints are critical to the determination of his claim for loss of earning capacity. 

 

[91]           The plaintiff’s most serious physical injury was the damage to his right knee, which required surgery on four occasions by Dr. Pierre Guy, an orthopaedic surgeon.  The plaintiff also required shoulder surgery in 2008 by Dr. Gilbert, which surgery was successfully completed.  In more recent times, the plaintiff has developed and has complained of hip pain.

 

[92]           The knee injury was described by the doctors as serious and complex, and is significant for the loss of earning capacity claim, because it affects and continues to affect his ability to bend his knee, go up or down stairs, or crouch, squat, kneel, or run without pain.  As a result of his knee injury, notwithstanding the successful surgeries, it is now apparent, with his knee pain, and difficulty crouching and bending, that he would not be able to continue employment as a copier repair person, which was what he had done at RISO before the accident. 

 

[93]             I find that the plaintiff continues to suffer from pain to his knee and that further surgical options are limited until much later.  A total knee replacement at a much later age appears to be the only possible surgical solution to deal with ongoing pain and discomfort.

In Haley v Gust, the Plaintiff suffered different injuries, the most serious of which was a posterior cruciate ligament tear to her left knee, of which she was still symptomatic three years post accident by the time of trial. She was awarded $75,000 for damages for pain and suffering.

 

[50]              In summary, I find that the March 4, 2007 accident caused Ms. Haley permanent and significant injury to her left knee and the rupture of her PCL. I accept that surgical repair is not a viable option. I accept that she experiences pain on occasion and that the damage to the PCL may cause her knee to fail under stress or when she performs highly strenuous activity. I also accept that she faces a realistic prospect of developing osteoarthritis of the joint and of requiring a total knee replacement in the future…

 

[56]           Ms. Haley answered questions in a straightforward and responsive manner. She did not exaggerate or embellish her evidence. She was forthright when she could not remember details of any particular event. I found her to be a credible witness.

 

[57]             She is currently 38-years-old and has suffered a permanent injury to her knee. Her injuries, while not catastrophic, are very real. As a result of the accident she clearly has suffered pain and a loss of enjoyment of life, and she will no doubt continue to do so. As well, as referred to earlier, she faces the realistic prospect of osteoarthritis, and in Dr. Leete’s opinion, it is more likely than not that she will require a total knee replacement in 20 to 25 years….

 

[58]           Prior to the accident, she was very active and enjoyed many recreational and athletic activities. She continues to experience some pain in her knee with activities.