In Jang v. Ritchie, the Plaintiff was walking along a trial when he was struck from behind by the Defendant cyclist, who had lost control of his bicycle. The Defendant was found liable for the accident at trial. The Plaintiff suffered a broken wrist, which required immediate surgical intervention. The Plaintiff advanced a claim for damages for pain and suffering, out of pocket expenses, loss of income, diminished earning capacity, and future care. By the time of trial, approximately 6 1/2 years after the accident, the Plaintiff was still expected to suffer from long term limitations and complications. The Court awarded $80,000.00 for non-pecuniary damages, approximately the same amount for wage loss, and $65,000.00 for diminished earning capacity.

 

[6] I accept Dr. Serink’s uncontradicted opinion in this case. His observations are consistent with Mr. Jang’s testimony and my own observations of Mr. Jang’s left hand, which is fixed in a somewhat claw-like position. I also find that Mr. Jang’s condition is permanent. The progressive nature of the injury-induced arthritis in his hand will, if anything, increase Mr. Jang’s symptoms as time goes by. Dr. Serink examined Mr. Jang and provided the following opinion in this regard:

As a result of the destruction of the articular cartilage involved in his original fracture, he has developed significant post-traumatic degenerative arthritis. The soft tissue contracture which occurs as a result of the Sudeck’s dystrophy will be permanent. As a result, he will be left with complaints of pain, weakness and generalized stiffness. These complaints will not significantly improve with rest, time or further physiotherapy. At the present time [Mr. Jang] is well motivated and is using Tylenol on a p.r.n. basis for pain control.

[11] Mr. Jang was in a cast for three months and underwent extensive physiotherapy. Despite that, he continues to have constant pain. He described the pain as eight on a scale of 10. He gets shooting pains on activity. Mr. Jang manages the pain by using Tylenol 3 and heat and by massaging his hand.

In Bevacqua v. Yaworski, the Plaintiff, a retired woman, was struck as a pedestrian. She suffered a comminuted wrist fracture, and required surgery. The medical evidence suggested that the Plaintiff had developed post-traumatic arthritis, and that she would suffer permanent problems. By the time of trial, the Plaintiff had suffered from her wrist fracture for just over two years. The Court awarded $85,000.00 for pain and suffering (“non-pecuniary” damages).

 

[22] On March 8, 2010, Emilia Bevacqua was an active, independent woman of 76 clearly taking great pleasure in her life.  After her injury, she was not able to look after herself and took a long while to even get back to walking.  Now she is left with a right hand of limited use because of pain, arthritis and de-conditioning, a fear of walking on her own and significant loss of function such that she can no longer cook as she once did, or do the heavier housework.  She continues to have pain and suffering and her enjoyment of life is markedly diminished.  For that loss, I award her general damages of $85,000.

 

 

In Jackson v. Jeffries, the Plaintiff severely injured his back and wrist in a head-on collision. At the time, he was an apprentice plumber. His wrist injury was serious enough to derail his career aspirations. By the time of trial, the Plaintiff had suffered wrist pain for four years, and was expected to continue to suffer. The Court awarded $75,000 for pain and suffering.

 

[40]        Following surgery, Mr. Jackson was placed in a splint for 10 days followed by a cast for 8-10 weeks.  Dr. Perey wrote in his medical report of August 31, 2010, that Mr. Jackson was making “remarkable strides” although he had residual pain and stiffness.

 

[41]        It was Dr. Perey’s prognosis that Mr. Jackson’s symptoms would continue to improve, but that he would likely have some persistent pain and stiffness with his wrist which would be aggravated by heavy use.  Dr. Perey recommended “a re-training program to a less physically demanding occupation than a plumber.”  He concluded Mr. Jackson could “resume intermittent physical activities involved in hobbies and sports.”…

In Zigawe v Rance, the Plaintiff suffered some soft tissue injuries in a motor vehicle accident, however her main injury was her wrist. She had pre-existing arthritis in her wrist, however was pain free at the time of the accident. The Court awarded $60,000 for pain and suffering, minus a 10% deduction to account for the possibility that she may have experienced wrist pain anyways, even without the crash.

 

[110]      On the whole of the evidence, and in particular that of Dr. Shuckett who agreed the plaintiff’s current overall condition was “not inconsistent with” rheumatoid arthritis, I find it likely that the accident exacerbated pre-existing, but asymptomatic tenosynovitis related to rheumatoid arthritis in the plaintiff’s left wrist.  While it is an atypical presentation in that the condition is not mirrored in the right wrist, this finding makes the most sense.  It is proven on the balance of probabilities.

 

[111]      I do not accept the defendant’s submission that the rheumatoid arthritis in the left wrist arose independently of the accident.  In my view such a conclusion is not consistent with its temporal connection to the accident, and Dr. Shuckett’s evidence that the inflammation that accompanies this sub-acute condition can take weeks or months to develop.

 

[112]      The defendant relies on Dr. Campbell’s mistaken belief that Dr. Pawlovich had recorded a left wrist problem and the fact this error was passed onto Dr. Shuckett.  Dr. Pawlovich saw the plaintiff the day after the accident in the walk-in clinic.  His record did not mention the left wrist.  However, I accept the plaintiff’s evidence that she did discuss it with him.  Furthermore, Dr. Arnott did mention the left wrist problem when she saw the plaintiff on September 5, 2006, less than a month after the accident.

 

[113]      The plaintiff’s explanation was reasonable that she did not raise the left wrist pain with Dr. Campbell in the October 2006 physical examination because she was limited as to how many complaints she could discuss at any one visit to the doctor.  This evidence was also supported by Dr. Campbell.

 

[114]      Thus, on the totality of the evidence, the accident at least exacerbated the pre-existing tenosynovitis related to rheumatoid arthritis in the left wrist, given its history.

 

[115]      The swelling and significant, long standing pain has not improved since the accident.

 

[116]      Thus, I find the accident activated the plaintiff’s pre-existing condition in a wrist that was asymptomatic for some years before the accident.  The left wrist may indeed have remained asymptomatic of tenosynovitis related to rheumatoid arthritis for many years had the accident not intervened.  It may have not manifested into rheumatoid arthritis, given Dr. Shuckett’s evidence as to the nature of that condition.

 

[117]      The neck injury was caused by the accident and its recovery was probably prolonged as a result of her pre-existing but asymptomatic osteoarthritis.

 

[118]      The asymptomatic left wrist condition was triggered by the accident, resulting in significant pain and swelling that still has not resolved more than three years post-accident.  Hopefully, the scheduled injection of what is likely cortisone will greatly improve the wrist, but that is unknown, and the plaintiff may require surgery on that wrist.  But for the accident, the pre-existing asymptomatic condition in the left wrist may never have manifested.

 

In Patoma v Clarke, the Plaintiff was awarded $38,000 for suffering a fractured wrist in a Translink accident. The Plaintiff had largely recovered within two years of the accident.

 

[42]           The fracture Mr. Patoma sustained could not be set despite two attempts. He was required to undergo surgery with external pins to set bones in place. The surgery occurred eight days after the accident. The external fixator was removed on September 29, 2005, approximately five weeks after the surgery. Mr. Patoma underwent physiotherapy, beginning mid-October, attending four times and then two sessions in the months following until February 2006. He engaged in daily exercises to strengthen his wrist.

 

[43]           I find Mr. Patoma worked hard at his rehabilitation. By 2007, about two years after the accident, he was fully recovered except for occasional cramping or tightness in the muscles of his left hand. It is unlikely that Mr. Patoma will develop arthritis in his wrist or need further surgery, according to the medical report of Dr. Perry.

 

[44]           During the healing process, Mr. Patoma could not garden during part of 2006. He is an avid tennis player, and he could not play tennis or badminton in the fall of 2005. But the biggest impact by far of the injury was on Mr. Patoma’s ability to play the bagpipes. He told the court that he engaged in competitions in his youth. At one point, he took lessons from the personal piper to Queen Elizabeth. He said that classical Highland piping requires considerable dexterity in the fingers.

 

[45]           There was evidence that playing the bagpipes was an important part of Mr. Patoma’s daily life. He is a bachelor and lives alone, and he said that he played in the morning and the evening, and it brought him great comfort. It was a cause of real concern that his fingers were too stiff for him to play without slurring, and for him to play with the kind of skill and at the level he was accustomed to. He said that, when he found he could not play, he was gripped by worry and anxiety.

 

[46]           Mr. Patoma happily reported at trial that, by 2007, he had made a “terrific recovery”. He said that at 71, he still has the dexterity in his fingers that he had as a teenager.