ICBC Law

BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Archive for the ‘ICBC Brain Injury Cases’ Category

$175,000 Non-Pecuniary Assessment for Concussion With Permanently Disabling Consquences

April 11th, 2018

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a fall causing a permanent head injury.

In today’s case (Harrison v. Loblaws, Inc.) the Plaintiff was shopping in the Defendant’s store when she slipped on a large pool of liquid laundry detergent which was on the floor.  She struck her head on the floor and suffered a concussive injury from which she did not recover.

The Defendant denied fault but the Court found the Defendant failed to establish that they followed their protocols to ensure the store was in reasonably safe condition for customers.

The Court accepted that the Plaintiff  developed symptoms “consistent with post-traumatic brain injury syndromes or post-concussion syndromes” and that these were permanently disabling.  In assessing non-pecuniary damages at $175,000 Mr. Justice Basran provided the following reasons:

[89]         The evidence of Ms. Harrison, and those who knew and worked with her both before and after her accident, is that she sustained injuries that have dramatically impacted every aspect of her life.  Whereas before the accident she was independent, active and optimistic, she is now a mere shadow of her former self.  She is unable to work or enjoy any of the activities she used to do before the accident, including walking, swimming, and travelling.  She is dependent on her son and is far less socially engaged than she once was. 

[90]         Her prognosis is poor and any further improvement in her condition is unlikely.  Taking into account the variety and longevity of these symptoms, her enjoyment of life has been dramatically reduced. ..

[96]         Ms. Harrison was 48 at the time of the accident.  She suffered a significant head injury and to this day, suffers from serious headaches and other symptoms which I have detailed.  She has a permanent disability and she has suffered from a loss of confidence and a loss of enjoyment of life as a result of her accident.  Her physical and mental abilities have clearly been impaired.  As described earlier, she is no longer able to walk long distances nor is she able to swim.  Her sensitivities to light, sound, and motion have dramatically affected her.  She has clearly experienced a serious diminishment in the quality and enjoyment of her life.  I note that Ms. Harrison retains a certain degree of optimism about the future and throughout this ordeal, she has taken significant steps to try to improve her circumstances.

[97]         Having found Ms. Harrison to be competitively unemployable and suffering from symptoms that appear to be permanent, I must make an award that addresses her particular condition and recognizes the nature and extent of her loss.  On that basis, I conclude that an award of $175,000 satisfies those principles.


$175,000 Non-Pecuniary Assessment for Brain Injury Leading to Early Onset Dementia

April 5th, 2018

Reasons for judgement were released today by the BC Supreme Court, Vancouver REgistry, assessing damages for a traumatic brain injury.

In today’s case (Weaver v. Pollock) the Plaintiff was injured in a 2010 collision that the Defendants accepted responsibility for.  The Plaintiff suffered a traumatic brain injury and ultimately was diagnosed with early onset dementia linked to this injury.  In assessing non-pecuniary damages at $175,000 Mr. Justice Burnyeat provided the following reasons:

[100]     I am satisfied that it is now established that mild traumatic brain injury or subdural haematoma can lead to Alzheimer’s disease, frontotemporal dementia, or an increased risk of dementia.

[101]     In his December 1, 2010 statement to ICBC, Mr. Weaver indicated that he had lost consciousness after the Collision. In his report, Dr. O’Shaughnessy assumes that Mr. Weaver lost consciousness but does not indicate how he arrived at that conclusion. On the other hand but without attribution, the notes of Dr. Burtt and Ms. Hubbard indicate no loss of consciousness.

[102]     I find that Mr. Weaver has proven on a balance of probabilities that he was unconscious for more than a several seconds as a result of the Collision. In this regard, I am satisfied that what Ms. Cotton observed when she came to the side of his truck is accurate and that Mr. Weaver was “kind of like waking”. I am satisfied that what Ms. Cotton observed was Mr. Weaver regaining consciousness.

[103]     Even if I am found to be incorrect in arriving at the conclusion that Mr. Weaver lost consciousness for a short period, I am satisfied that he did suffer a traumatic brain injury. In this regard, I adopt the indicia set out by Dr. Kiraly that a traumatically induced psychological disruption of brain function (a traumatic brain injury) can be manifested by “at least one” of any period of loss of consciousness, of loss of memory for events immediately before or after the Collison, and of alteration in mental state at the time of the Collision. I find that Mr. Weave manifested all three of those factors.

[104]     Taking into account the age of Mr. Weaver, I give very little weight to the decisions in Nahal, Goguen, and Watkins relied upon by the Defendants. I find that the decision in Wong, supra, most closely represents the facts presented by the effects of the collision on Mr. Weaver even though there was finding in Wong that the accident accelerated the onset of dementia. Here, I could find that there was no pre-disposition to dementia so that an award of non-pecuniary damages here should take that into account but not the advanced age of Ms. Wong.

[105]     Taking into account the increased risk factors in the future as set out in the opinion of Dr. Kiraly, the severity and duration of the pain at the back of his head, his shoulder and his chest, the impairment of his life, the impairment of his mental abilities, the loss of his lifestyle, the failure of his memory and ability to concentrate, the susceptibility and greater risk associated with Stage Four dementia, the impairment of his social, occupational, recreational function, and his age, I am satisfied that an assessment of non-pecuniary damages of $175,000 should be made.


$85,000 Non-Pecuniary Assessment for Chronic PTSD and Post Concussive Issues

April 3rd, 2018

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic issues following a concussive injury.

In today’s case (Curtiss v. The Corporation of the District of West Vancouver) the Plaintiff fell into an open meter box on a sidewalk owned by the Defendant.  The Defendant denied liability but was found negligent at trial.  The fall resulted in a concussive injury with post concussive difficulties and PTSD.  The Plaintiff was expected to have lingering symptoms into the future.  In assessing non-pecuniary damages at $85,000 Mr. Justice Marchand provided the following reasons:

[92]         As a result of her fall, Ms. Curtiss suffered cuts, scrapes and/or bruising to various parts of her body, including her forehead, nose, upper lip, hands, lower legs and left inner thigh. She also experienced balance issues, dizziness and headaches.   Ms. Curtiss’ cuts, scrapes and bruises all healed within the first one to three months.  Her throbbing headaches lasted the better part of a year, and she still gets headaches when she experiences high levels of stress. She still has occasional balance problems.

[93]         Ms. Curtiss has received psychological counselling and acupuncture treatments since her fall and her condition has improved over time. She has recently returned to daily walking and working in her garden. Nevertheless, her self-reports, and the reports of those who are close to her, clearly establish that Ms. Curtiss is not the same person she was prior to her fall. She has trouble sleeping. She has become anxious and forgetful. She is less confident and self-sufficient. She is no longer able to multi-task. She is less active, occasionally walks with a cane, looks down during walks and gardens far less.

[94]         Two family physicians were involved in Ms. Curtiss’ post-accident care, Drs. Dean Brown and Brian Brodie. Based on her loss of consciousness, memory loss, headaches, dizziness, imbalance, agitation and anxiety, both diagnosed Ms. Curtiss as having suffered a concussion as a result of her fall. In his April 7, 2017 report, Dr. Brown’s prognosis was that Ms. Curtiss’ symptoms would gradually improve with a full resolution within a year or so. In his September 8, 2017 report, Dr. Brodie’s prognosis was that Ms. Curtiss was highly likely to “go on to suffer some symptoms of post traumatic disorder”.

[95]         Ms. Curtiss also submitted a report dated August 25, 2017 prepared by Registered Psychologist, Dr. William Koch. As a result of Ms. Curtiss’ vigilance to danger when walking or driving, excessive startle response, avoidance of conversations about her fall, disturbed sleep, and anxiety-related concentration deficits, Dr. Koch has concluded it is probable that Ms. Curtiss suffers a “subsyndromal” Posttraumatic Stress Disorder (“PTSD”). Dr. Koch noted a number of positive and negative prognostic indicators in Ms. Curtiss’ case. He concluded that Ms. Curtiss’ prognosis for further improvement is “negative” unless she receives further psychological treatment. Dr. Koch recommended a further 20 hours of therapy, which Ms. Curtiss had started by the time of trial.

[96]         In cross-examination, Dr. Koch agreed with a list of further positive prognostic indicators put to him by counsel for the District. Specifically, Dr. Koch agreed that the following were positive prognostic indicators: Ms. Curtiss was open to treatment; Ms. Curtiss had returned to treatment; Ms. Curtiss reported benefitting from treatment; Ms. Curtiss had returned to daily walking; and Ms. Curtiss would soon no longer be involved in litigation. On the last point, Dr. Koch indicated that while litigation stress may soon stop, “other stressors may pop up.”

[97]         Based on all of the evidence, I accept that Ms. Curtiss’ life has been significantly adversely affected by her fall. Though her cuts, scrapes and bruises healed relatively quickly, her post-concussion symptoms and subsyndromal PTSD have persisted. While I have optimism for further improvement, given the length of time her symptoms have persisted, the efforts she has already put into her recovery and her age, I doubt that Ms. Curtiss will ever fully return to her pre-accident condition…

[109]     The cases cited by counsel support an award of non-pecuniary damages within the range suggested by Ms. Curtiss of $75,000 to $90,000. In my view, an award of $85,000 will adequately compensate Ms. Curtiss for the profound impact her fall has had on her physical and emotional wellbeing. Before her fall, Ms. Curtiss was an exceptionally happy, active and productive 74-year-old woman. The accident, however, caused a significant decline in her performance at work, her level of activity, her confidence in herself, and the joy in her life. As I have stated, in my view, though Ms. Curtiss will continue to make improvements, she will not fully return to her pre-accident condition.


$145,000 Non-Pecuniary Assessment For Traumatic Brain Injury With Lingering Cognitive Impairment

February 19th, 2018

Reasons for judgement were published today by the BC Supreme Court, Victoria Registry, assessing damages for a mild traumatic brain injury with lingering cognitive impairment.

In today’s case (Gauthier v. Dubois) the Plaintiff was involved in a 2013 motorcycle collision caused by the Defendant.  Fault was admitted.  The Plaintiff suffered a variety of injuries many of which enjoyed good recovery.  Among these were a mild traumatic brain injury which resulted in cognitive impairments which had a poor prognosis for full recovery.  In assessing non-pecuniary damages at $145,000 for the injuries Mr. Justice Milman provided the following reasons:

[128]     Mr. Gauthier sustained many injuries in the accident, of varying severity. He had no broken bones. While many of his injuries have resolved, several have not.

[129]     Most significantly, I have found that Mr. Gauthier suffers ongoing cognitive impairments resulting from an injury to his brain. I also accept that he continues to have back problems and knee pain, including a risk of future degeneration in his left knee.

[130]     I have found that Mr. Gauthier suffered significant pain from his numerous injuries in the first weeks and months following the accident. Most of those injuries have since resolved. He continues to suffer occasional headaches and pain in his back and knees. There is a risk that his left knee will grow worse. He does not often seek out medical attention or therapies or take prescription drugs to ameliorate his discomfort, however.

[131]     Mr. Gauthier was away from work and disabled for several weeks. Although he has gradually recovered to a significant extent, he has not returned to his previous level of performance. While he can now do just about all of the activities he did before, he cannot do many of them as well, or without pain or discomfort.

[132]     Mr. Gauthier has suffered emotionally form his cognitive impairments and his gradual recognition of their permanence. He is anxious about driving. He cannot surf as aggressively or do other athletic activities at the same pace as formerly, although this must be attributed at least in part to his age. He is more introverted and less confident. He now questions his performance at work and his career prospects.

[133]     The plaintiff advances no argument in this regard.

[134]     Although Mr. Gauthier claims that he tends to socialize less than he did before the accident, I am not satisfied that this is a significant factor in his loss. As Mr. Harris submits, Mr. Gauthier has been able to enter into a long-term, romantic relationship since the accident where he did not have any significant attachments before.

[135]     Mr. Gauthier is still functioning at work but not at the same level. He is also unable to do the recreational activities that he enjoys, particularly surfing, at the same level. Nevertheless, he is still able to enjoy those activities.

[136]     Mr. Gauthier asserts that the impact on his lifestyle has been “severe.” In my view that is an overstatement. I accept that his lifestyle has been affected, but he has maintained his occupation as an entrepreneur and manager – his business appears to be recovering. He continues to do the same recreational activities as he did before, although not necessarily at the same level. Some of this drop in performance must be attributed to his age.

[137]     I found the following cases most helpful among those cited to me by counsel: Traynor v. Degroot, 2002 BCSC 441, aff’d 2003 BCCA 483; Joel v. Paivarinta et al., 2005 BCSC 73; Benson v. Day, 2014 BCSC 2224; Kaiser v. Williams, 2015 BCSC 646; and Sundin v. Turnbull, 2017 BCSC 15. I find that the injuries in issue here lie in the middle of that range – generally more severe than those in Kaiser ($130,000) but less severe than those in Sundin ($175,000). I find this case most similar to Traynor ($120,000 or $155,000 adjusted for inflation) and Joel ($110,000 or $134,000 adjusted for inflation).

[138]     It is important to bear in mind, however, that each case is unique and must be assessed on its own facts.

[139]     Having considered the facts of this case in light of the authorities to which I have referred, I assess Mr. Gauthier’s general damages at $145,000.


$175,000 Non-Pecuniary Assessment for Post Concussion Syndrome and Chronic Pain

January 5th, 2017

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a “violent” collision resulting in a permanent brain injury and chronic pain.

In today’s case (Sundin v. Turnbull) the Plaintiff was rear-ended while riding his motorcycle in 2012.  The collision was severe with the motorcycle being embedded in the Defendant’s truck as a result of the forces involved.

The Plaintiff suffered a head injury and post concussive symptoms lingered.  The Plaintiff developed chronic pain and the prognosis for the conditions was poor with residual permanent disability.  In assessing non-pecuniary damages at $175,000 Madam Justice Gerow provided the following reasons:

[106]     As stated earlier, the accident involving Mr. Sundin and Mr. Turnbull was a violent one. Mr. Sundin’s motorcycle was embedded into Mr. Turnbull’s pickup truck and Mr. Sundin was thrown through the air landing on the pavement. Immediately after the accident Mr. Sundin was dazed and spitting out teeth.

[107]     As well, there is no issue regarding Mr. Sundin’s credibility. I found that Mr. Sundin provided evidence in a straight forward and reliable fashion. I accept his symptoms as he described them are genuine.

[108]     There is no question that Mr. Sundin’s life has changed profoundly as a result of the accident. Prior to the accident Mr. Sundin had a history of performing at a high level in both his work and personal life.

[109]     As set out earlier, all the experts agree that Mr. Sundin suffered a MTBI, as well as numerous soft tissue injuries and damage to his teeth in the accident. As Dr. Benavente, the defendant’s expert, acknowledged, Mr. Sundin continues to suffer from post-concussion syndrome as a direct result of the head injury he sustained in the accident. Mr. Sundin’s ongoing symptoms of chronic headaches, problems with concentration and memory, and mood problems are attributable to the post-concussion syndrome.

[110]     As well as his cognitive problems, the expert and lay evidence establishes that as a result of the accident, Mr. Sundin suffers from chronic pain in his neck, shoulders and back, problems with his teeth and jaw, and some ongoing pain in his hips and knees. The evidence is that it is unlikely Mr. Sundin will recover to his pre-accident condition, mentally or physically. Mr. Sundin is having a difficult time accepting that he cannot perform physically or mentally as he did before the accident, and as a result has developed an adjustment disorder. The ongoing symptoms Mr. Sundin is suffering from as a result of the accident impact every aspect of his life.

[111]     As noted in Stapley, the assessment of non-pecuniary damages depends on the particular circumstances of the plaintiff in each case. Having considered Mr. Sundin’s age, the nature of his injuries, the severity of his symptoms and the fact they have been ongoing for four years with little improvement, the ongoing treatments, the psychological, cognitive and memory problems, and the guarded prognosis for full recovery, as well as the authorities, I am of the view that the appropriate award for non-pecuniary damages is $175,000.


$65,000 Non-Pecuniary Assessment for Concussion with Lingering Headaches

January 3rd, 2017

Adding to this site’s archived cases addressing damages for traumatic brain injury, reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for a concussion with lingering headaches.

In today’s case (Barr v. Accurate Transmission and Driveline) the Plaintiff was struck by a vehicle while in a cross walk.  She sustained a concussion with various lingering post concussive symptoms.

In assessing non-pecuniary damages at $65,000 Mr. Justice Williams provided the following reasons:

[15]         Ms. Barr’s principal injury was diagnosed as a closed head injury. In the report of Dr. Tessler, the neurologist, it is reported that she “likely sustained a Mild Concussive Injury or Mild Traumatic Brain Injury at the lower end of the spectrum of such injuries.”

[16]         Following her release from the hospital, Ms. Barr saw her family doctor, Dr. McCarthy. I note that Ms. Barr had also been under Dr. McCarthy’s care with respect to the problems she had been experiencing as a result of the workplace difficulties.

[17]         In her report and her trial testimony, Dr. McCarthy described the plaintiff’s symptoms following the accident as well as her observations and recommendations over the ensuing months. These included soft tissue injuries entailing extensive bruising and tenderness and also a series of symptoms that are collectively characterized as post-concussion syndrome: complaint of headache, dizziness, nausea, as well as a heightened sensitivity to light and activity. The bruising and associated discomfort resolved in a fairly short time; the post-concussion symptoms continued for a longer time, but Ms. Barr was able to increase her activities, with her dizziness and nausea ultimately resolving. The only noted residual symptom was occasional headache, dealt with by rest and over-the-counter medication.

[18]         The plaintiff described the aftereffects of the motor vehicle accident, beyond the physical bruising. She said she had episodes of headache, that her memory was less reliable, and that her concentration abilities were diminished. She said as well that her mood was affected, in that she was less cheerful and patient, particularly with her husband.

36]         In my view, the injuries sustained in the accident had a reasonably serious impact on Ms. Barr, both in terms of the accident’s immediate aftermath, and its longer term effects. These lingering effects have impacted her self-confidence and the range of leisure activities she can pursue. Moreover, they have adversely affected her mood and outlook.

[37]         That, in turn, has impaired her relationship with her husband. In this context, I note that he is somewhat compromised, in that he has a significant short-term memory deficit. Consequently, he relies on the plaintiff to be the strong one in the family. I am satisfied that her competence and confidence to fulfill this role have been diminished.

[38]         There is as well the matter of the plaintiff’s headaches. Those have not resolved; they still occur from time to time. I am satisfied that that condition is in part attributable to the accident.

[39]         Finally, I note that, prior to the accident, Ms. Barr was what I would describe as an otherwise healthy person just embarking upon what should be a special time of her life, her retirement. These injuries will, to some degree, negatively affect this period of her life.

[43]         In the result, having taken into account the authorities to which I have been referred, and the circumstances as I find them to be, it is my conclusion that an appropriate award of non-pecuniary damages is $65,000.


$175,000 Non Pecuniary Assessment for Fractured Pelvis and Psychological Injuries

December 12th, 2016

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for serious injuries caused by a two vehicle collision.

In today’s case (Kweon v. Roy) the Plaintiff was a passenger in a 2010 collision.  Both motorists were found liable for the crash. The Plaintiff suffered multiple fractures to her pelvis, a mild traumatic brain injury, and depression linked to her physical injuries.  In assessing non-pecuniary damages at $175,000 Mr. Justice Skolrood provided the following reasons:

[179]     The evidence is uniform that Ms. Kweon suffered multiple fractures to her pelvis as a result of the accident, which were initially totally disabling. While the fractures have healed, the evidence also establishes that Ms. Kweon is likely to continue to experience pain in her pelvic and lower back areas into the future, which would disable her from any occupation involving heavy labour.

[180]     Ms. Kweon also suffered soft tissue injuries to her neck and shoulders. Dr. Kim noted that these injuries have progressed well, although Ms. Kweon continues to experience periodic pain. Part of the problem is the fact that Ms. Kweon has not engaged in an active rehabilitation program and I agree with Dr. O’Connor that there is an element of deconditioning. I also agree with Dr. Leith that these injuries are likely to resolve and will not result in any long term disability.

[181]     With respect to Ms. Kweon’s psychological condition, I accept the evidence of Drs. Cameron, O’Connor and Wilkinson that Ms. Kweon likely suffered a mild traumatic brain injury (MTBI) in the accident, however I also agree with Drs. O’Connor and Wilkinson that any ongoing cognitive issues are related to her psychological issues rather than any lingering impacts of the brain injury.

[182]     On this point, there is not a great deal of difference in the opinions of the two psychiatrists, Dr. Patton and Dr. O’Shaughnessy. Both agree that Ms. Kweon has experienced a major depressive disorder. While they disagree about whether Ms. Kweon meets the diagnostic criteria for post-traumatic stress disorder, not much turns on that in terms of assessing Ms. Kweon’s prognosis.

[183]     Where Dr. O’Shaughnessy and Dr. Patton agree is that Ms. Kweon’s psychological condition has not been adequately treated, as a result of which her prognosis is uncertain: Dr. Patton states in her second report:

I must again defer my final opinion on Ms. Kweon’s prognosis as her mood and anxiety disorders have still not been adequately treated.

[184]     Dr. O’Shaughnessy is somewhat more positive:

Overall, I regard her prognosis as relatively positive although, in fairness, we never fully know how she will respond until she has had an adequate clinical trial of medications and cognitive-behavioural therapy.

[185]     Both psychiatrists note the relationship of Ms. Kweon’s pain to her psychological and emotional issues. As noted above, her soft tissue injuries are expected to resolve which, combined with a more aggressive approach to treating her psychological illness, is likely to lead to an overall improvement in her condition. While the prognosis is again somewhat uncertain, the evidence does not establish that she will be permanently impaired by reason of her psychological condition.

[186]     I would add that I do not accept ICBC’s submission that Ms. Kweon’s principal problem is a lack of motivation. It is well established on the evidence that Ms. Kweon is suffering from a psychological disorder which has impeded her ability to take steps towards recovery. In this regard, it is unreasonable to examine the actions of a person suffering from a mental illness through the lens of someone who is not and expect them to act the same. Put another way, it is not sufficient to simply say that Ms. Kweon needs to get on with her life if it is her illness that is limiting her ability to do so. Rather, it is the proper treatment of that illness that will enable her to move forward…

[192]     Considering the impacts of the accident on Ms. Kweon, the principles emanating from Stapley and the case authorities cited, I find that a reasonable award of non-pecuniary damages is $175,000.


Disputed Injury Diagnosis – Six of One, Half a Dozen of the Other…

June 30th, 2016

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, making the common sense finding that the debate over diagnosis is not nearly as important in a personal injury lawsuit as whether symptoms are tied to the indicent in question.

In today’s case (Tan v. Mintzler) the Plaintiff was injured in a 2012 collision and experienced chronic cognitive symptoms.  At trial a debate arose about whether the symptoms were due to a head injury from the collision or secondary to chronic pain.  The Court found the Plaintiff did indeed suffer a head injury however noted the debate was largely insignificant as whatever the diagnosis the symptoms were linked to the trauma of the collision.  In basically saying ‘six of one, half a dozen of the other’ Mr. Justice Groves provided the following reasons:

[54]         For the plaintiff, Drs. Weiss, Cameron, and Kaushansky gave evidence that they believed Ms. Tan had suffered an MTBI.  Dr. Weiss recommended Ms. Tan be referred to a neurologist to confirm her suspicion, a recommendation that was followed with her visit to Dr. Cameron.

[55]         One of the most significant factors in diagnosing the MTBI was Ms. Tan’s evidence that she has no recall of the Accident after hearing the initial sound of the impact.  The next thing she remembers is the policeman, Cst. Upshall, knocking on her car window.  It was also Ms. Tan’s evidence that she has a spotty memory of the events which transpired after she returned home from the hospital that day.  It was also relevant to the MTBI diagnosis that Ms. Tan was diagnosed as having a concussion at the hospital the day after the Accident and by Dr. Fong for several months after the Accident.  The doctors also relied on an MRI brain scan which showed an abnormality in the plaintiff’s left parietal lobe which Dr. Cameron testified “probably occurred” at the time of the Accident.

[56]         As I have said, Dr. Dost strongly disagreed with the MTBI diagnosis and with the methodology of the other three doctors.

[57]         The reality is that there is little disagreement regarding the symptoms Ms. Tan experiences and the psychological difficulties she is struggling with.  The distinction between whether Ms. Tan’s psychological injuries and cognitive difficulties were caused by an MTBI or by Ms. Tan’s chronic pain and sleep disturbances is relevant only to the quantum of general damages and to Ms. Tan’s prognosis going forward.

In going on to assess non-pecuniary damages at $210,000 the Court provided the following reasons:

[73]         Ms. Tan is 56 years of age.  I have found that she suffered an MTBI during the accident and that she suffers from depression, anxiety, and mild PTSD.  She has no residual capacity to work and is unemployable due to the cognitive issues caused by the accident, including her mood swings, poor stamina, and memory issues.  I have also found that Ms. Tan suffers from chronic pain on her left hand side and in her face and jaw.  The prognoses for Ms. Tan’s physical and psychological conditions were generally guarded or poor with the exception of the pain in her face and jaw, which may lessen with treatment.  I do note that several experts indicated that Ms. Tan may see some improvement with psychological treatment.

[74]         I also accept that the plaintiff’s personal and intimate relationships have been affected.  She now socializes very little and her relationship with her husband has deteriorated as a result of the injuries caused by the accident.  She is fearful of travel by car and has not driven since the accident.

[75]         Finally, I accept that the plaintiff’s ability to maintain her home, including her ability to cook, garden, and do laundry, has been impaired as a result of the accident.  She has and will continue to suffer some loss of housekeeping capacity.  However, Ms. Tan continues to be able to do some light housekeeping and has been able to manage the family home while her husband has been away for extended periods with only minimal assistance from her daughter.  I have therefore chosen to address this head of loss as part of the plaintiff’s non-pecuniary damages, rather than as a separate claim; Johal v. Radek, 2016 BCSC 454 at paras. 59-60….

[89]         Having regard to the findings I made and the authorities reviewed, I consider that an award of $210,000 properly compensates Ms. Tan for her non-pecuniary losses.  This award also includes and recognizes that Ms. Tan has and will continue to suffer some diminution in her housekeeping capacity.


$175,000 Non-Pecuniary Assessment for Mild Traumatic Brain Injury and Chronic Pain

April 6th, 2016

Adding to this site’s archived cases addressing damages for traumatic brain injury, reasons for judgement, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a mild traumatic brain injury and chronic pain.

In today’s case (Mayer v. Umabao) the Plaintiff was involved in a 2012 collision.  Liability was disputed but the Court found the Defendant fully at fault for the collision.

The Plaintiff sustained a mild traumatic brain injury and suffered from cognitive dysfunction.  The court found some of this dysfunction was due to the head injury and the rest due to chronic pain and other factors also linked to the crash.  In assessing non-pecuniary damages at $175,000 Madam Justice Young provided the following reasons:

[246]     I am satisfied on the basis of Dr. Chahal’s evidence and Dr. Krywaniuk’s evidence that Mr. Mayer did suffer some trauma to the left side of his head resulting in vestibular difficulties and symptoms of a mTBI. The trauma may have been caused by an acceleration/ deceleration trauma or it may have been caused by a blow to the left side of his head. I find most convincing Dr. Krywaniuk’s evidence. If there was damage to the left vestibular apparatus at the accident then it is likely that the adjacent area of the brain also suffered some trauma. The adjacent area of the brain is the area of the brain that moderates receptive language input where Mr. Mayer reports he has difficulty.

[247]     Having said that, however, I find that the brain injury was quite mild and only affected higher level speech and executive functioning or the ability to multitask. I come to this conclusion because I believe that if the mTBI symptoms were more than very mild, they would have been picked up by Dr. Koss who I find to be a very thorough and careful practitioner who has special training in the area of concussions. The symptoms of brain injury became apparent at work and when judging wine. The irritability, personality changes and memory loss are more likely caused by the long term effects of pain, sleeplessness, anxiety and Mr. Mayer’s somatoform disorder…

[253]     On balance of all of the evidence, I find that the vestibular injury, mTBI and somatoform disorder were caused by the accident and all of them are compensable…

[270]     There are many obvious similarities between these cases relied on by the plaintiffs and the Mayer case, however, I find that the cases relied on by Mr. Mayer’s counsel involve more significant brain injuries which were readily apparent because of the dramatic effect it had on the plaintiffs. Mr. Mayer’s brain injury was more subtle and went undetected for a considerable period of time because of his ability to function. Nonetheless he is a changed man and he has suffered a considerable loss in his enjoyment of life, family, friends, social interests and vocational interests. I conclude that Mr. Mayer is entitled to an award of non‑pecuniary damages in the amount of $175,000.


$3 Million “Diminished Capacity” Award For Brain Injured Teen Who Planned on Being Engineer

December 15th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages of $3 million dollars for a Plaintiff who sustained a brain injury in a vehicle collision.

In today’s case (Grassick v. Swansburg) the Plaintiff, who was 16 at the time, was a pedestrian and struck by a vehicle driven by the Defendant.  The Plaintiff suffered a moderate to severe brain injury which impacted his cognition and was expected to have permanent repercussions.

The Court found that the Plaintiff was an ambitious and hard working young man who, but for the brain injury, would have had a successful career in his anticipated profession as a civil engineer.  In assessing damages of $3 million for diminished earning capacity Madam Justice Loo provided the following reasons:

[197]     I do not accept the defendant’s argument that Stirling’s part-time employment as a server in a retirement home and his work during his co-op placements demonstrate that he has an ability to do well in the workplace. Quite the opposite. His work at Maple Reinders is a forecast of the difficulties he will have with maintaining employment.

[198]     While Stirling suffers only mild cognitive impairments, they are potent for him. His cognitive impairments directly impact his drive to excel. Perhaps if he was content to be less than average at everything he does, it would not matter so much. But he was not, and is not content to be being average.

[199]     Predicting what his future earning capacity would have been, but for the accident, is a complex task and the potential range of his earnings is broad. The plaintiff relies on the expert report of Darren W. Benning, economist, for the estimated lump sum present value of lifetime earnings of a British Columbia male civil engineer. The defendant did not require Mr. Benning to attend for cross-examination.

[200]     There is a range of possibilities for Stirling; from being, for lack of a better term, an average or 50th percentile engineer earning from May 1, 2016 when he is expected to graduate, through to age 65. Based on the present value of life-time earnings, $2,399,956. However, that figure – as do all of the figures provided by Mr. Benning – includes 24.2 percent reduction for the average labour market contingencies: unemployment, part-time work and part-year work. Without those contingencies, the figure for the 50th percentile engineer is $3,166,172.

[201]     Mr. Benning has also provided figures for engineering managers. With the labour market contingencies, the figures are $3,149,822 for the average engineering manager, and $3,868,882, and $4,880,954 for the 80th and 90th percentiles, respectively. Without the labour contingencies, the figures are $4,155,437, $5,104,065 and $6,439,253.

[202]     I conclude that there is a real and substantial possibility that Stirling would have worked for a number of years as an “average” engineer, before moving up the ranks of engineers. He would have worked full time, and his professional career would be an important part of his life.  He would have succeeded in becoming one of the higher paid engineers, a well above average engineer, or an upper management engineer.

[203]     Stirling may, like many professionals, work past the age of 65. On the other hand, he may, like other professionals, decide to retire early and do other things. However, given Stirling before the accident, and now, I do not think he is the kind of person who would choose to work part year or part time.

[204]     The plaintiff seeks damages for loss earning capacity in the sum of $3 million. I find this sum to be both reasonable to him and to the defendant. I award $3 million for loss of future earning capacity.