COURT CASES on HIP INJURIES
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.
