In a decision released September 2, 2010, the Ontario Court of Appeal re-established the range of non-pecuniary general damages for a fractured wrist at $10,000 to $25,000 before an adjustment for inflation.
The appeal from a trial decision of Madam Justice Carpenter-Gunn, was heard before Blair, Juriansz and Epstein JJ.A., and involved a complicated finding of negligence relating to an emergency room doctor’s duty to ensure optimal recovery for a patient following treatment for a fractured left wrist (a displaced Colles’ fracture) that required several corrective surgeries (and insertion of metal hardware). The plaintiff was left with ongoing pain, a visible disfigurement, and limitations in the use of her hand.
The trial judge assessed damages at $90,000. The plaintiff, who is left hand dominant, worked for the Hamilton Regional Conservation Authority where she carried out both sedentary clerical duties and physical tasks. She missed approximately ten days of work after the first corrective surgery, and missed another seven days off work after a second corrective surgery. Thereafter, she was not able to return to her full duties and ultimately applied for and received C.P.P. disability and O.D.S.P. benefits.
Justice Epstein, writing in the majority along with Justice Blair, took issue with both the quantum of the general damages award, as well as the trial judge’s comments regarding the quantum, which consisted of the following explanation: “After reviewing all of the evidence, it is my view that the appropriate amount under this head of damages [general damages] would be $90,000.” According to Justice Epstein, “this single sentence does not explain the basis of the amount…” and that “[g]iven the lack of reasons for assessing the damages at this amount…this aspect of the judgment is not entitled to deference.”
The Court then went on to determine the plaintiff’s general damages, noting that a review of cases involving broken wrists with an extended recovery period and where a plaintiff continued to experience discomfort, established a range between $10,000.00 and $25,000.00, adjusted for inflation.
The emergency room physician bore no responsibility for the fracture itself (it occurred from a slip and fall at a friend’s house) and the Court recognized that the physician was responsible only for the additional surgeries and resulting pain and suffering. It assessed these damages at $30,000.
Justice Juriansz, dissenting, opined that the trial judge’s assessment of general damages at $90,000 was not unreasonable, and noted that in medical malpractice cases, intervening physicians’ negligence can cause damage that far exceeds what might ordinarily result from the underlying condition being treated (ie a fractured wrist).
It is anticipated that there will be some debate about how the adjustment for inflation is calculated, but it is refreshing to see the Court of Appeal provide some guidance on the assessment of general damages.