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$140,000 Non Pecuniary Assessment for Brain Injury With Lingering Post Concussive Symptoms

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for a brain injury caused by a collision.

In today’s case (Curtis v. MacFarlane) the Plaintiff suffered a brain injury in a 2006 assault when he was struck with a baseball bat.  He was then involved in a 2009 collision where he sustained further head trauma.  The Defendant motorist tried to blame the Plaintiff’s deficits on the previous assault although the Court found the collision indeed caused a head injury with prolonged post concussive issues.  Prior to assessing damages Mr. Justice Crawford provided the following useful comments regarding head injury litigation:

[1]             The human brain is approximately three pounds of jelly containing more than 100 billion neurons and more than 100 trillion synapses. Our knowledge of its workings has vastly increased in the last 50 years, but man knows more of the universe than the workings of the human mind.

[2]             Only recently has the sporting world come to grips with the reality that splendid, strong athletes whose brain gets shaken up are in fact sustaining irreparable brain damage, revealed not only by the changes in the athlete’s performance and behaviour, but the ghastly findings of the autopsies upon the athlete’s death.

[3]             In the context of motor vehicle accident litigation, I have heard lawyers move from “emotional overlay” to describe the changed behaviour of their clients, to the realization that brain injury is unchartered territory, sometimes susceptible to a medical finding or organic damage that may show on an MRI, but more often diagnosed by behavioural changes of the client. The difficulty facing the finders of fact listening to learned medical professionals is pinpointing what got damaged, how that damage affects the working of the brain and the behaviour of the client, and how those behavioural, cognitive, and intellectual changes can be treated. Those difficulties simply reflect the fact that medical and scientific research is in a very early stage of finding out how the human brain works.

[4]             The dilemmas in the litigation context are many, particularly when there is testimony of memory loss and the plaintiff answers many questions with answers such as “I can’t remember” or “I can’t say when”…

In assessing non-pecuniary damages at $140,000  Mr. Justice Crawford provided the following reasons:

[728]     I am satisfied that Mr. Curtis had made a full recovery from the effects of the bat injury as clearly demonstrated by the witnesses who spoke of his daily life before  the car accident; his 2007 visit to Greece; and his training, competition and coaching in 2008. All of that evidence speaks to a fit, strong and healthy young man as of January 2009.

[729]     The subsequent concussion symptoms, ongoing depression, and anxiety led to a downward spiral through 2009 and 2010. He has had some improvement since seeing Dr. Ancill in December 2010 but the evidence is clear that the hardworking, energetic, calm, upbeat, and outgoing Mr. Curtis has become reclusive, dull, lethargic, moody, anxious and easily agitated.

[730]     I found a large amount of Mr. Curtis’ self-worth is bound up in his physical strength and Brazilian jiu-jitsu fighting competitions. That self-worth has been lost, but he maintains his love of his sport and his wish to continue to contribute to it.

[731]     Financially, however, it was not rewarding.

[732]     His cognitive defects or deficits; his loss of fighting abilities; and his decreased affection and libido all severely compromise his enjoyment of life.

[733]     I read the cases both sides submitted and no two cases are alike.

[734]     One stark factor in some of the plaintiff’s cases shows what I would call a fighting ability – i.e., a demonstrated wish by a young athletic person to try and fight to regain their previous abilities. The depression found by all experts is perhaps the explanation for Mr. Curtis’ failure to try to rebound, to bring his fighting qualities to restoring his life…

[736]     It is Mr. Curtis’s misfortune that he did not have that initial intellectual capital that has made it more difficult to see a forward path, an issue that Dr. Ancill will have to deal with directly, through psychological and psychiatric therapies and medications as he deems appropriate.

[737]     In the circumstances, I set general damages at $140,000.

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