Article edited by Walter W. Kubitz, KC, a personal injury lawyer in Calgary, Alberta.
What’s it worth for a motorcycle crash in Calgary resulting in:
· Compound fracture of the left lower leg with fragment displacement through the skin, requiring surgery for the insertion of an intramedullary rod and screws;
· Injury to the left knee;
· Hospitalization for 2 days; and,
· Chronic pain?
Answer: $120,000 – $130,000 for pain and suffering plus income loss and expenses.
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At the time of the Accident, Mr. Client was driving his motorcycle home from work. He had stopped at a red light at an intersection and was waiting to turn left. As he waited, two other vehicles collided in the intersection and a Ford F150 pickup truck drove over both Mr. Client and his motorcycle; Mr. Client ended up under the F150 and pinned up against another vehicle.
Mr. Client did not lose consciousness in the Accident, and he was able to independently free himself. However, there were witnesses at the Accident scene who stated that there was blood pooling under his leg, which was clearly broken. An ambulance was called, and Mr. Client was taken to hospital. The EMS report says that Mr. Client had abrasions to his right shoulder; abrasions to his right knee with some bruising starting; and a compound fracture of his left leg with the bone ends retracted back into the skin. Mr. Client told EMS he rated his pain as being a 9/10, and the early diagnosis was a right tibia fracture.
The Accident caused Mr. Client to suffer:
- Fatigue;
- Neck injury;
- Shoulder injury and bruising to his right shoulder;
- Numbness in the left arm;
- WAD II injury to his back and spine;
- Compound fracture of his mid to distal left tibia with fragment displacement through his skin, requiring surgery for the insertion of an intramedullary nail and screws;
- Injury to the left knee;
- Abrasions and bruising to the right knee;
- Swelling to the left leg;
- Lacerations to the left leg that left him with scarring;
- Road rash to the right leg;
- Numbness to the left foot, toes, and ankle;
- Hospitalization for nearly 2 days;
- Difficulty sleeping; and
- Chronic pain.
Mr. Client underwent surgery. The procedures performed were irrigation and debridement of the left distal tibia; wound closure of the left distal tibia; and intramedullary nail in the left distal tibia. A rod, nails, and screws were inserted in the leg, and the wound was stapled closed. Mr. Client spent approximately one and a half days in the hospital before being released on crutches.
Mr. Client went to physiotherapy regularly; he was very sore and in lots of pain, and in his pain diary, he described physical limitations in many aspects of his life including standing, doing the dishes, kneeling, bending, going up and down ladders, getting in and out of his truck, and trouble sleeping.
CONCLUSION:
There are several cases that are analogous to Mr. Client’s situation.
The most analogous case overall to Mr. Client’s is
Moore v. Brown, 2009 BCSC 190, 2009 CarswellBC 365, varied on other grounds in 2010 BCCA 419, 10 BCLR (5
th) 1, 2010 CarswellBC 2551. The 34-year-old male plaintiff was injured while riding his motorcycle. He suffered bruises, minor concussion with some impaired memory, headaches, partial ACL tear, MCL tear, left medial tibial plateau fracture, acromio-clavicular joint arthritis and impingement syndrome in his shoulder, patella-femoral derangement in his knee, and Lisfranc joint fracture dislocation with fractured sesamoid metatarsal phalangeal joint in the left foot. The plaintiff was also diagnosed with a Grade II WAD disorder with chronic pain. Macaulay J awarded $132,264 in general damages (inflation adjusted).
The most analogous Alberta case is
Wade v. Baxter, 2001 ABQB 812, 302 AR 1. The 54-year-old female plaintiff sustained a comminuted transverse compound fracture of the right femur; laceration of the medial aspect of the left knee; laceration to her thigh muscle; soft tissue crush damage to her right knee; and a lateral meniscus tear of her right knee with chondral fracture of the lateral femoral condyle. She continued to suffer from chronic pain, scarring, gait impairment, depression, and borderline PTSD. The plaintiff was required to undergo four surgeries after the accident to try and repair her leg. Slatter J awarded general damages of $134,700 (inflation adjusted).
Other analogous cases set the damage award for plaintiffs with similar injuries to Mr. Client’s, inflation adjusted, from a high of $150,875 to a low of $92,260, with an overall average amount of general damages awarded of $122,700. The average amount of damages awarded in similar Alberta cases was $133,200, inflation adjusted.
Therefore, it seems likely that Mr. Client’s general damage award should range around $120,000 – $130,000.
The following cases are inflation-adjusted using the Economica index.
DISCUSSION:
Kahl v. Jakobsson, 2006 BCSC 1163, 2006 CarswellBC 1870 $125,000 $150,875
The 49-year-old male plaintiff in this case was injured in a snowmobiling accident; the defendant, a former friend of his, ran over him on his snowmobile. The plaintiff had fallen off his snowmobile and thought the defendant saw him, but the defendant struck him. The plaintiff was taken by ambulance to hospital with multiple bruises and abrasions across his face, nose, and chest; tenderness on his left ribs and collarbone area; back pain; and a compound fracture of his left tibia and fibula. The bone had fragmented, and some bones drove through the skin. The plaintiff also sustained a burst fracture of the L5 vertebra in his lower back. After the accident, the plaintiff underwent open reduction and internal fixation of his lower leg fractures, with the insertion of a metal plate and screws. He later underwent further surgery to remove the hardware in his leg. The burst fracture resulted in spinal stenosis that caused constant low back pain that radiates through his left buttock into his leg; cramps; numbness in the left thigh; numbness in both feet; and the occasional burning sensation in his right foot. The plaintiff suffered chronic pain and depression. Loo J held that the plaintiff was entitled to a general damage award of $125,000.
There are many similarities between Mr. Client and the
Kahl plaintiff. Both had similar fractures to their tibias following a high impact accident. They each sustained back injuries, chronic pain, altered sensation, and numbness. The general damages awarded in this case likely represent the upper end of the range of damages that Mr. Client can expect to receive.
Rizzolo v. Brett, 2009 BCSC 732, 2009 CarswellBC 1422 $125,000 $143,875
The 41-year-old male plaintiff in this case was riding his motorcycle when he was stuck by a left-turning vehicle being driven by the defendant. In the accident, the plaintiff suffered significant fractures of his left tibia and fibula. He required surgery in the form of internal fixation and the implantation of a long plate and several screws. The plaintiff later underwent further surgery to remove the hardware. He continued to experience pain and underwent injections in his ankle for relief; a bone scan showed inflammatory changes that could suggest early degenerative change. The plaintiff continued to experience pain and swelling in his leg and ankle, causing him stress and a limp; he was diagnosed with chronic pain. Allan J held that the relevant factors in awarding general damages were the plaintiff’s age, his injuries, the severity and duration of his pain, his disability, his emotional suffering, the impairment of his relationships with his wife and son, his loss of an active lifestyle, and his impaired functioning. Allan J awarded $125,000 in general damages.
This case may represent a good benchmark as to the amount of Mr. Client’s damages. The
Rizzolo plaintiff sustained a similar leg fracture, although he had an additional surgery to remove the hardware. Mr. Client had the additional WAD II diagnosis. Both plaintiffs were injured in motorcycle accidents that caused them chronic pain. Mr. Client may receive a general damage award on par with what this plaintiff received.
Roberts v. Safadi, 2018 ABQB 165, 2018 CarswellAlta 398 $140,000 $140,000
The 29-year-old male plaintiff in this case was injured in an assault; all the defendants were noted in default. The plaintiff had gotten into an argument with the defendants, and there was an altercation. Prior to the assault, the plaintiff was in good mental and physical health. The plaintiff was taken to hospital and underwent surgery for a right open tibia and fibula shaft fractures; nails, pins, and screws were inserted to treat the fractures, and his leg was put in a cast. He experienced swelling, bleeding, and a great deal of pain in his legs. He was put on many painkillers, and complications in his recovery resulted in weight gain that required him to emphasize one side of his body over the other in his gait that led to a herniated disc. He also had complications with the hardware in his leg. The assault caused mental health issues including depression and PTSD, bad dreams, stress, anxiety, and concentration problems. There was the possibility that the plaintiff would require further surgery to remove the hardware in his leg and to repair the herniated disc. Madziuk J held that the physical and psychological injuries of the plaintiff were inextricably linked and awarded the plaintiff $140,000 in general damages.
This case presents a good argument for the upper range of damages that Mr. Client could be awarded. The
Roberts plaintiff sustained a similar tibia fracture and had complications with his surgical hardware. He had some psychological damage, but Mr. Client suffered the additional WAD II injury with chronic pain. The general damage award in this case likely represents the upper range of general damages that Mr. Client could expect to receive.
Farand v. Seidel, 2013 BCSC 323, 2013 CarswellBC 518 $130,000 $139,490
The 28-year-old female plaintiff in this case was injured when she was struck by a car while walking in a marked crosswalk as a pedestrian. Although liability was disputed, Savage J held that the accident was entirely the fault of the defendant. Prior to the accident, the plaintiff was in good health and was physically active. Following the accident, she was taken by ambulance to the hospital. An x-ray taken at the hospital revealed she had sustained a tibial plateau fracture and a lateral compression pelvis fracture, inferior and superior rami fractures, and an undisplaced sacral fracture. The plaintiff underwent open reduction and internal fixation of the right tibial fracture with the insertion of a plate and screws; her pelvic fractures were treated conservatively. She spent 12 days in hospital. Upon her release, the plaintiff suffered from neck and back pain; she was diagnosed with musculoligamentous injuries to her cervical spine, with likely injuries to the zygaphophyseal joints and mid-thoracic spine. The plaintiff was diagnosed with soft tissue injuries of the lumbar spine and injury to the sacroiliac joints of the lumbar spine that led to chronic pain, headaches, and some driving anxiety. Savage J awarded her $130,000 in general damages.
There are many similarities between Mr. Client and this plaintiff, although she suffered more numerous fractures. Both plaintiffs were young at the time of their accidents and sustained a tibia fracture, soft tissue injuries, headaches, and chronic pain. The general damage award in this case may represent an accurate benchmark as to the upper range of general damages that Mr. Client may expect to be awarded.
Wozniak (Next friend of) v. Alexander, 2008 ABQB 430, 450 AR 329, affirmed by 2009 ABCA 353, 464 AR 196 $120,000 $138,600
In this case, the 17-year-old female plaintiff was injured when she was struck by a boat propeller. The plaintiff was being towed behind the boat on an inner tube. The defendant driver applied the throttle and the boat turned nearly 180 degrees and headed back in the direction of the inner tube. The plaintiff jumped off the tube in the direction the boat went, and her foot was severely injured by the propeller of the outboard motor. The plaintiff’s foot was nearly severed in two; she was rushed to the hospital and underwent surgery. She had a compound fracture around the heel bone; there was nerve damage, laceration of tendons and other muscles, and soft tissue damage. The plaintiff required an ankle fusion as well as screws to hold the fracture in place. The plaintiff fractured the small bone in the lower leg and the outside ankle bone along with her heel bone; she suffered a deep laceration to her right foot that extended to her sole. She was hospitalized for several days and received outpatient treatment on several more occasions. The plaintiff was in severe pain and was heavily drugged; she was in a cast and crutches for several months. The pins and screws in her foot were later removed. After the accident, the plaintiff could not walk normally, stand still for long periods of time, and occasionally limps; she was at a higher risk of developing arthritis. Macleod J held that the consequences of the plaintiff’s injuries would affect her for the rest of her life; general damages were assessed at $120,000.
The
Wozniak plaintiff suffered a foot injury that included a fracture which needed surgical intervention and the insertion of screws and pins. Her foot injury was arguably more severe than Mr. Client’s. However, the foot injury was her only injury, while Mr. Client also suffered from chronic pain, headaches, and a WAD II injury. Mr. Client may expect to receive a similar general damage award to what the
Wozniak plaintiff received.
Wade v. Baxter, 2001 ABQB 812, 302 AR 1 $100,000 $134,700
In this case, the defendant was helping the plaintiff move. It was winter and conditions were poor; the defendant was driving the moving truck when it jerked backward. The plaintiff lost her balance and became trapped between the truck ramp and the front steps of the house; she was taken by ambulance to the hospital. At the time of the accident, the plaintiff was 54 years old. Immediately prior to the accident, she was in good health, although she had some pre-existing conditions. She suffered from migraine headaches, occasional low back pain, arthritis in her hands and wrists, and early degenerative disc disease. In the accident, she suffered a comminuted transverse compound fracture of the right femur; laceration of the medial aspect of the left knee; laceration to her thigh muscle; soft tissue crush damage to her right knee; and a lateral meniscus tear of her right knee with chondral fracture of the lateral femoral condyle. The plaintiff had numerous complications including infection, scarring, gait impairment, chronic pain, restricted movement, ongoing pain, and a 15 percent permanent partial disability. She is a candidate for right knee replacement. The plaintiff underwent four surgeries after the accident, including bone grafts, to try and repair her femur and knee. She had depression and borderline PTSD. Slatter J awarded general damages of $100,000.
Both Mr. Client and the
Wade plaintiff suffered a leg fracture, although this plaintiff’s injury was more severe and required more surgeries. While they each sustained headaches, scarring, gait impairment, knee issues, and chronic pain, this plaintiff also had the additional psychological injuries and a more severe knee injury. The general damage award in this case may represent the top end of the range of damages that Mr. Client will receive.
Moore v. Brown, 2009 BCSC 190, 2009 CarswellBC 365, varied on other grounds in 2010 BCCA 419, 10 BCLR (5
th) 1, 2010 CarswellBC 2551 $115,000 $132,365
The 34-year-old male plaintiff in this case was injured when he was riding his motorcycle and collided with a vehicle being driven by the defendant. Prior to the accident, the plaintiff was fit and athletic, as well as a highly motivated and hardworking person who was employed as a geologist. In the accident, the plaintiff sustained multiple bruises; minor concussion with some impaired memory; headaches; acromio-clavicular joint arthritis and impingement syndrome in his right shoulder; left medial tibial plateau fracture, medial collateral ligament tear, and partial anterior cruciate ligament tear; patella-femoral derangement in his left knee; and Lisfranc joint fracture dislocation with fractured sesamoid metatarsal phalangeal joint in the left forefoot. The plaintiff was also diagnosed with a Grade II WAD disorder including chronic neck sprain/strain; cervicogenic headaches; chronic lumbar facet sprain/strain affecting L5 on the right; and chronic left sacroiliac joint dysfunction. He had dull achiness and constant pain in the left hip, thigh, knee, and foot, as well as numbness and tingling sensations in the right upper back and pain over the right clavicle. He had a persistent limp, and his knee was sore. The plaintiff did have some pre-existing degenerative changes and a history of joint instability. Macaulay J held that the plaintiff’s prognosis for recovery was generally poor; his foot pain would continue to drive his left knee pain, back, shoulder, and neck pain, and associated headaches. Macaulay J awarded the plaintiff $115,000 in general damages.
The plaintiff appealed the trial judge’s apportionment of loss of earning capacity in
Moore v. Brown, 2010 BCCA 419, 10 BCLR (5
th) 1, 2010 CarswellBC 2551. The
per curiam Court of Appeal allowed the appeal with respect to loss of earning capacity but left the general damage award unchanged.
This case may represent the most accurate benchmark as to Mr. Client’s general damage award. Both plaintiffs were injured in a motorcycle accident, and they were both generally healthy prior to their accidents. Mr. Client and the
Moore plaintiff each sustained a fractured tibia, ongoing knee problems, pain, and lingering soft tissue damages. Mr. Client may receive a similar general damage award to what was awarded in this case.
Dubitski v. Barbieri, 2004 ABQB 187, 355 AR 81, affirmed and award upheld in 2006 ABCA 304, 397 AR 345 $95,000 $119,605
In this case, the plaintiff was riding his motorcycle when the defendant made a left hand turn across his path. Both liability and quantum were at issue. Verville J held that the defendant was 100 percent liable for the accident, a finding that was upheld by the
per curiam Alberta Court of Appeal. The plaintiff was seriously injured in the accident; he suffered compound fractures of the left radius and ulna with soft tissue loss in the region of the fracture; intra-articular fracture of the left distal radius; fracture and dislocation of the right wrist requiring external fixation; carpal tunnel syndrome to the right wrist; wounds to the left arm that required a skin graft; mild depression; cuts and bruises; and osteoarthritis in his left and right wrists. The plaintiff received 84 physiotherapy treatments for his injuries. He required a carpal tunnel release surgery and scar revision after the accident; he will require pain medication for the rest of his life. The plaintiff’s orthopedic surgeon assessed his permanent disability at 20 percent of the whole person. Verville J held that the plaintiff had a permanent partial disability of 14 percent that would increase over time to 20 percent; he had developed premature osteoarthritis and suffered from chronic pain. The plaintiff was awarded $95,000 in general damages.
Like Mr. Client, the
Dubitski plaintiff was injured in a motorcycle accident. However, this plaintiff sustained numerous arm fractures, while Mr. Client had the compound tibia fracture. The manner of the accident was similar, as was the fracture and chronic pain. Mr. Client had the additional WAD II injury. His general damage award may be similar to what the
Dubitski plaintiff received.
Ashe v. Werstiuk, 2003 BCSC 184, 2003 CarswellBC 184 $85,000 $108,970
The 54-year-old female plaintiff in this case was injured when she was hit on the left knee with the bucket of a backhoe; the defendant backhoe driver denied liability. Metzger J apportioned liability for the accident 75 percent to the defendant and 25 percent to the plaintiff. Prior to the accident, the plaintiff had experienced some insomnia, back pain, and hip pain. In the accident, the plaintiff was struck by the lower edge of the backhoe’s front bucket; the point of impact was approximately the outside portion of her left leg just above her knee. She was thrown into the bucket of the backhoe and was struck on the left side of her head above her left ear, after which she fell to the pavement. The plaintiff was taken by ambulance to the hospital where it determined she had a displaced left tibial plateau fracture and a small hematoma to her left temple. An open reduction of the fracture site was performed, and the peroneal nerve was explored for damage. The plaintiff’s tibial plateau was depressed as a result of the impact. The bone fragments were raised into position and a bone graft was completed; the fracture site was secured with a plate and screws. The plaintiff’s peroneal nerve was found to be contused but not severed; she remained in hospital for 11 days. The plaintiff underwent physiotherapy and progressed in her recovery, but she was left with a valgus deformity (her lower left leg bends outward to the side and the knee bends inward). The plaintiff would eventually require a total knee replacement, and she had lingering psychological difficulties. Metzger J awarded $85,000 in general damages.
The defendant appealed the apportionment of liability in
Ashe v. Werstiuk, 2004 BCCA 75, 2004 CarswellBC 384. The Court of Appeal allowed the appeal with respect to the apportionment of liability, and apportioned fault equally between the parties. The damage award was left unchanged.
Despite the differences in the manner of occurrence of the accident, there are many similarities between Mr. Client and this plaintiff. Both sustained tibia fractures that required surgery and the insertion of hardware. While the
Ashe plaintiff may require a knee replacement, Mr. Client has ongoing chronic pain and a WAD II injury. His general damage award may be on par with what was awarded in this case.
O’Connor v. James, 2009 BCSC 1119, 2009 CarswellBC 2165 $90,000 $103,590
In this case, the 37-year-old male plaintiff was a pedestrian who was struck from behind by a vehicle being driven by the defendant. At the time, the plaintiff was dressed all in black without any reflective clothing and he was walking in the roadway. In the accident, the plaintiff suffered fractured ribs on his left side and a compound fracture of his left tibia and fibula such that the leg bone had punctured the skin. He required immediate surgery, including the insertion of a plate and a rod in his leg. A skin graft was also required that left the plaintiff with extensive scarring. He was hospitalized for 10 days and was confined to a wheelchair when he was discharged. The plaintiff had to be readmitted to the hospital when the leg got infected, and a second surgery was required to remove the plates that had been inserted. Burnyeat J held that the plaintiff continued to feel pain in his leg, although the pain in the ribs had subsided; general damages were assessed at $90,000.
Both Mr. Client and this plaintiff suffered a compound fracture of the tibia that required surgery, including the insertion of a rod. Where this plaintiff had an infection following surgery, Mr. Client had the ongoing chronic pain diagnosis as well as headaches, neck and back pain, and loss of sleep. He may receive a similar general damage award to what the
O’Connor plaintiff received.
Falati v. Smith, 2010 BCSC 465, 2010 CarswellBC 835, affirmed in 2011 BCCA 45, 2011 CarswellBC 661 $85,000 $96,135
The 33-year-old male plaintiff in this case was injured in a motor vehicle accident for which liability was admitted. At the time of the accident, the plaintiff was a pedestrian walking on a sidewalk; the defendant’s vehicle mounted the curb and drove across the sidewalk, pinning him against a building. The plaintiff suffered a crush-type fracture to his left tibia and a fracture of the fibula. He was hospitalized for four days and underwent surgery with intermedullary nailing. While recovering, the plaintiff walked with a limp and had tenderness in the leg, as well as scarring and sensory alteration. The plaintiff had ongoing ankle pain that could have been due to scarring of the soft tissue or the remaining hardware; he had anxiety and depression. Saunders J held that none of the plaintiff’s symptoms and limitations were deemed to be permanent, and the hardware could be removed. Saunders J awarded the plaintiff $85,000 in general damages.
There are many similarities between Mr. Client and the
Falati plaintiff. Both suffered a tibia fracture requiring surgery and hardware. Following their accidents, they each had a limp, tenderness, scarring, and sensory changes. While this plaintiff had some psychological problems, Mr. Client had the additional WAD II injury with chronic pain. He may receive a general damage award on par with, or slightly higher than, what the
Falati plaintiff was awarded.
Zhang v. Graham, 2014 BCSC 1578, 2014 CarswellBC 2476 $90,000 $94,770
The 70-year-old male plaintiff in this case was injured in a motor vehicle accident. The plaintiff was a pedestrian when he was struck by a vehicle turning the corner; he was struck on his right side and fell to his left side. In the accident, the plaintiff suffered a right lateral tibial plateau fracture; sprained right knee; abrasions and contusions to his left and left elbow; contusions to his left shoulder; soft tissue injuries to his neck, upper back, and lower back; tinnitus; and numbness on the left side of his head. The plaintiff claimed the accident dramatically affected the pre-existing osteoarthritis in his knees and caused him severe limitations. Prior to the accident, the plaintiff was quite fit and active, but he had complained of knee pain in the past. After the accident, the plaintiff was in a brace and required crutches; an MRI showed a meniscal tear, and he had surgery to repair this. Brown J held that the plaintiff had pre-existing osteoarthritis in his knee, but the accident contributed to his ongoing knee complaints and aggravated his osteoarthritis; it also exacerbated his left shoulder pains. Brown J also held that the accident caused the plaintiff to suffer headaches, depression, confusion, fatigue, and decreased energy. He would likely require knee replacement surgery. Brown J awarded the plaintiff $90,000 in general damages.
Mr. Client will likely receive a general damage award on par or higher than what was awarded in this case. Both he and the
Zhang plaintiff had a fractured tibia, ongoing knee pain, headaches, and soft tissue injuries. Mr. Client had a more severe fracture that required surgical intervention, as well as a chronic pain diagnosis; this plaintiff had more serious emotional issues.
Meise v. Whiting, 2002 BCSC 352, 2002 CarswellBC 518 $70,000 $92,260
The 22-year-old female plaintiff was injured in a snowmobile accident. She was the passenger on a machine being driven by her boyfriend when she fell while they were cornering. The plaintiff fell face down and the snowmobile passed over her left ankle, fracturing the tibia and fibula. The plaintiff went to hospital with swelling and tenderness of the left ankle, and an x-ray showed an oblique fracture through the distal tibia and a fracture of the lateral malleolus; she had no other injuries. The plaintiff underwent an open reduction and internal fixation of the ankle with plates and screws and was placed in a cast. She continued to complain of pain in the ankle, and she was treated for an infection. It was later discovered that she was on the way to severe osteoarthritic changes in her ankle; she would inevitably require an ankle fusion or ankle replacement. The plaintiff had surgery to correct her lateral ankle ligament instability prior to trial. Meiklem J held that the plaintiff suffered a severe fracture, and her recovery was plagued with infection and osteoarthritis, as well as pain. She had not regained full mobility in her ankle and might not ever; her gait was affected, and she was left with scarring. Meiklem J awarded the plaintiff $70,000 in general damages.
Mr. Client suffered more severe injuries than the
Meise plaintiff, and he will likely receive a higher general damage award. This plaintiff had a similar fracture, albeit with increased complications; however, Mr. Client had the more serious soft tissue injuries and lingering chronic pain. The general damage award in this case likely represents the low end of the range of general damages that he may be awarded.
