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General Damages for Serious Injuries with Serious Consequences

My injuries haven’t ruined my life (I still have good friends and relationships), but only because I’m a very stoic person.  How will the court assess my damages?

In reasons released this week, Justice Harris of the British Columbia Supreme Court discussed the case of a young woman who suffered very serious injuries in a high speed highway crash (Ellis v Duong 2017 BCSC 459).  Ms. Ellis was 16 and a passenger in her dad’s car when their vehicle was hit head-on by the out-of-control defendant vehicle at a speed of 110 km / hour.  Ms. Ellis and her father both suffered devastating injuries – the Ellis vehicle caught fire, and witnesses described pulling the unconscious Ms. Ellis out of the vehicle through her window.  One bystander called to testify at trial described the scene as gruesome – he recalled seeing Ms. Ellis lying on the pavement screaming and that both of her legs appeared to be broken.

Suffice it to say, Ms. Ellis spent a great deal of time in the hospital and treatment.  At the time of trial (nine years post-crash) she had progressed to the point where she was working full time and living independently, but she was still dealing with a great deal of aftermath from her symptoms.  She had significant chronic pain, fatigue, a great deal of scarring (including a large scar on her forehead), some nerve damage causing weakness / lack of responsiveness in her hands and feet (causing instability and falls), and a constellation of psychological issues including ongoing PTSD and anxiety that made her feel “the sensation of death looming overhead.”  Her prognosis was not good – she was likely to require knee replacements in her early 50s, and her mobility was likely to further decline as she aged.

The defendant attempted to emphasize how well the plaintiff had managed to return to ‘normal’ life – she’d managed to work (indeed, suffering no past income loss) and had graduated from university.  She had been able to travel to Europe with friends.  She was in a long-term relationship and was able to socialize.  Justice Harris took those factors into consideration, but was more swayed by the plaintiff’s position – and awarded $220,000.00 in general damages:

[167]               In the instant case, the defendant/third party is correct to observe that the plaintiff has done much to help herself following the accident in terms of completing her high school, attending university, finding steady employment, and establishing a loving relationship with a partner. However, her ability to overcome certain of the challenges which she faced following the accident also has to be placed in its overall context of the effect of the accident on her life prior to trial and in the future. Following the collision Ms. Ellis was in the hospital for four months with multiple soft tissue, musculoskeletal and orthopaedic injuries, peripheral nerve injury and a mild traumatic brain injury. I accept her evidence that initially she thought she was going to die and indeed the medical evidence indicates that she experienced respiratory failure and hypoxia, requiring intubation, while she was in hospital. Ms. Ellis also had numerous surgeries and medical procedures following the accident to address comminuted and intra-articular fractures in her legs and dislocation and impaction of the articular joints of the hand. She had rods and screws placed in her legs and wire in her hand. She could not walk and had to use a wheelchair and then a walker and cane. She had a limp. She went through a period of intensive rehabilitation for her physical injuries.

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[170]               I am satisfied that Ms. Ellis has physical and psychological impairments caused by the accident which have negatively affected and will continue to affect how she is able to live her life. She cannot enjoy the physical activities she participated in the past. Although Ms. Ellis has obtained a degree in fine arts after the accident and has developed positive relationships in her life, the daily pain, dark feelings and anxiety interfere with her ability to find her way forward. In my view, given the substantial disruption already experienced by Ms. Ellis in the nine years since the accident in terms of coping with the surgeries, pain and mental distress resulting from the accident and the likelihood of further substantial disruption in the years ahead due to the need for further surgeries, chronic pain, and ongoing symptoms of PTSD, I assess the amount of non-pecuniary damages for losses suffered up to the date of trial and for any such losses that Ms. Ellis will suffer in the future at $220,000.

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