ICBC Law

In most BC Supreme Court lawsuits Plaintiff’s obtain evidence from the opposing side prior to trial by way of examination for discovery.   Helpful portions of the discovery transcript are then read into the trial record in support of the Plaintiff’s claim.   This is a controlled way to lead helpful evidence from a potentially damaging source.

There is, however, another way (albeit a riskier way) to use the Defendant in support of a Plaintiff’s claim.  The Rules of Court allow one party to call an “adverse party” as part of their case in chief with delivery of a subpoena and witness fees.   Rule 12-5(22) goes further and allows a Plaintiff to put the Defendant on the witness stand without notice if the Defendant is “in attendance at the trial“.  Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, demonstrating this seldom used option in action.

In last week’s case (Rintoul v. Gabriele) the Plaintiff pedestrian was struck while in a cross-walk.   The Plaintiff was born without upper limbs and after being struck “would have been unable to break her fall.  In landing on the pavement, she hit her head and was briefly unconscious“.

Both liability and quantum (fault and value of the case) were at issue with the Defendant arguing the Plaintiff was to blame at least in part for the collision and that her on-going issues were not related to the brain trauma suffered in the collision.  Mr. Justice Saunders disagreed and found the Defendant fully at fault for the impact.  In the course of the trial the Plaintiff’s lawyer took advantage of Rule 12-5(22) and put the Defendant on the stand as their first witness.  Damaging admissions were extracted which could not be remedied when the Defendant was re-called as a witness in the Defence case.  In highlighting this interesting turn of events Mr. Justice Saunders provided the following reasons:

[7] The defendant, Ms. Gabriele, was in attendance on the first day of trial. She was called to the witness stand as the first witness for the plaintiff’s case, and cross-examined…

[24] There was a break in the trial of just over two months. During that time period, Ms. Gabriele walked through the accident scene with her counsel. After the trial resumed, Ms. Gabriele was called to give evidence as part of the defence case. Testifying in chief, she gave a slightly different version of events. She said in her evidence in chief that after looking at the southwest corner, she looked back in front of her, did not see anything, and then proceeded to make her turn.

[25] I do not accept this second version of events…

The Court went on to conclude that the Plaintiff did suffer from long term consequences as a result of her injuries and assessed global damages at just over $950,000 including non-pecuniary damages of $175,000.  In addition to the above point of civil procedure, this case is worth reviewing in full for Mr. Justice Saunders lengthy discussion of the expert evidence called to address the issue of the Plaintiff’s traumatic brain injury.

When presenting a claim at trial dealing with future loss it is vital to have appropriate expert evidence to justify sought damages.  Failure to do so can result in a dismissal of the sought damages even if they are unopposed.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry highlighting the importance of medico-legal evidence in personal injury trials.

In this week’s case (Moore v. Briggs) the Plaintiff suffered a fractured skull (fractured left temporal bone) and a brain injury in a 2003 assault.

The Plaintiff sued those he claimed were responsible for the assault.  One of the Defendant’s did not respond to the lawsuit and the Plaintiff obtained default judgement against him.  The Plaintiff asked the Court to award substantial damages including an award for diminished earning capacity.  Despite the Plaintiff’s assessment of damages being unopposed the Plaintiff was only awarded a fraction of his claimed damages and he received nothing for future loss.

In assessing non-pecuniary damages at $40,000 and dismissing the claim for diminished earning capacity Madam Justice Dillon provided the following reasons:

[11] As a result of the assault, the plaintiff continues to have some problem with memory. This has improved over time such that it does not interfere with work or enjoyment of life, but still lingers. He also has difficulty with attention span and focus. He continues to have almost daily headaches. These often interrupt his sleep. He noticed that eye near the indentation in his temple was “lazy”, a couple of times a week at first and now hardly noticeable.

[12] For about four years after the assault, the plaintiff had problems with balance such that he could not walk a straight line and was dizzy when he looked down. He wanted to obtain employment as a greenhand on the log booms but did not consider that he could do the job. This would have increased his hourly pay to $24. Few details were provided about this job prospect. There was no medical evidence to support this inability and the plaintiff testified that any problems with balance had now resolved…

[17] Here, there is evidence of a small depressed comminuted fracture of the left temporal bone that resulted in some memory and motor impairment. From the testimony of the plaintiff, it appears that the motor impairment has resolved over time. There continue to be memory problems, the exact nature of which has not been assessed on a current basis. There are also some continuing headaches that are attributed to the fracture in 2003. The plaintiff lost about two months work and has successfully resumed his career and achieved advancement. His social life appears stable and normal. Any present loss of enjoyment of activities is because of lack of interest as opposed to ability…

[22] After consideration of these authorities and in consideration of the plaintiff’s description of his injury, and given the lack of medical information, non-pecuniary damages are assessed at $40,000…

[24] The plaintiff also claims loss of future earning capacity because of inability to obtain employment on the log booms. He calculated this amount based upon expectations of work life to age 65 at the remuneration rate that he said he would have received as a greenhand. This is contrary to the capital asset approach which has been adopted in this Court (Parypa v. Wickware, 1999 BCCA 88 at para. 63). However, the evidence on this aspect of the claim is scant and unsupported by any medical or actuarial evidence. Further, the plaintiff had successfully advanced in his work at present and said that this is his employment of choice. Further, there was no evidence that his employment aggravated his symptoms. The plaintiff must establish that there is a real and substantial possibility that his earning capacity has been impaired to some degree as a result of the injuries sustained in the assault (Romanchych v. Vallianatos, 2010 BCCA 20 at para. 10). In my view, there is little likelihood of any substantial possibility of an actual income loss in the circumstances here. There is nothing to suggest that the plaintiff will be unable to perform the tasks required in his work of choice. Nothing is awarded under this head of damage.

(UPDATE: February 3, 2012 - The below cost of care award was reduced somewhat in reasons for judgement released by the BC Court of Appeal)

Important reasons for judgement were released this week by the BC Supreme Court, Chilliwack Registry, recognizing the real financial toll that catastrophic injuries can cause.

In today’s case (O’Connell v. Yung) the Plaintiff was seriously injured in a 2007 motor vehicle collision.   Her car was struck by a tractor-trailer pinning her vehicle against the Massey Tunnel.  The injuries were extensive and these included traumatic brain injury, a cervical spine fracture, fractures to her right femur, ankle, tibia, fibula, toes, ribs, nose and sternum.  The Plaintiff also sustained injury to her spleen and liver. These left the Plaintiff with chronic pain and serious dysfunction requiring a high level of daily supervision and care.

The Plaintiff initially received such care from a ‘personal care worker’, however she was uncomfortable having strangers tend to her for prolonged periods and eventually her husband of many years took over the role as primary caregiver.  This amounted to full time work.

The biggest issue at trial was the Plaintiff’s accident related future care needs.  The Plaintiff sought compensation for the fair value of hiring individuals to provide her with the care she needed.  The Defendant argued that “any award for the future cost of personal care must be reduced to take into account the fact that Mr. O’Connell is present in the household to provide supervision and guidance and a contingency can be factored in to address the possibility that he will at some point be unable or unwilling to continue to provide this care“.

Madam Justice Fisher rejected this argument and went on to award the Plaintiff $2.25 million dollars to compensate her for her  future care needs.  In doing so the Court provided the following useful reasons:

[124]     I do not accept the defendants’ submission that an award for the cost of future personal care must be reduced to take into account the role Mr. O’Connell plays in providing supervision and guidance to Ms. O’Connell.  Ms. O’Connell is entitled to be compensated for the cost of care that is medically required. As Groves J. held in Cojocaru, the law does not permit the defendants to pass off their responsibility to provide appropriate future care by suggesting that Ms. O’Connell can and should rely on her husband to take care of her.  A husband is not expected to care for his injured wife on a gratuitous basis: see Andrews at p. 243.

[125]     The same principle was expressed in Vana v. Tosta, [1968] S.C.R. 71, where one of the issues involved an award for the cost of future housekeeping services.  The majority of the court stated at p. 75:

It is trite law that a wrongdoer cannot claim the benefit of services donated to the injured party. In the present case it amounts in my judgment to conscripting the mother and mother-in-law to the services of the appellant and his children for the benefit of the tortfeasor and any reduction of the award on this basis is and was an error in principle.

[126]     In McTavish v. MacGillivray, 2000 BCCA 164, the court was also dealing with an award for the loss of housekeeping capacity, both past and future, and interpreting and applying the principles set out in Kroeker v. Jansen.  At para. 43, Huddart J.A. stated:

.. the majority in Kroeker quite clearly decided that a reasonable award for the loss of the capacity to do housework was appropriate whether that loss occurred before or after trial. It was, in my view, equally clear that it mattered not whether replacement services had been or would be hired.

[127]     While Kroeker was restricted to housekeeping services and, as Huddart J.A. noted, the court did not adopt the analogy with future care as a general rule, it is my opinion that the same principle can be applied in the circumstances of this case with respect to personal care services that may or may not be hired in the future.

When suing for damages as a result of personal injuries the BC Supreme Court Rules generally permit Defendants to compel Plaintiffs to participate in pre-trial examinations for discovery.  There are a few exceptions to this and one of these relates to mentally incompetent Plaintiffs.  If a Plaintiff is mentally incompetent they can only be examined with permission from the Court.  Reasons for judgement were released earlier this week by the BC Supreme Court, Vancouver Registry, dealing with this area of law.

In this week’s case (DeMerchant v. Chow) the Plaintiff sustained a serious brain injury during a fall from a ladder in 2007.  The Plaintiff started a lawsuit in the BC Supreme Court through a litigation guardian.  During the course of the lawsuit the Plaintiff refused to participate in a discovery.  The Defendant brought a motion seeking an order that he be forced to participate.  The Plaintiff opposed this and relied on medical evidence which opined that the Plaintiff “could not reliably answer questions put to him” and that he “does not have the capacity to give testimony in court“.

Ultimately Master Taylor dismissed the motion and refused to grant the defendant permission to examine the Plaintiff.  This is the first case I’m aware of applying the new BC Supreme Court Rule 7-2(9) which deals with discovery of mentally incompetent parties.  Master Taylor provided the following reasons in dismissing the application:

[2]             The application is made pursuant to Rule 7-2(9) of the new Rules which was formerly Rule 27(11) of the old Rules.  The wording of both rules is similar, but the new Rule has changed the wording somewhat.  The new Rule provides:

7-2(9) If a party to be examined for discovery is a mentally incompetent person, his or her litigation guardian and his or her committee may be examined for discovery, but the mentally incompetent person must not be examined without leave of the court.

…

[34]         The question to be determined, therefore, is whether the evidence before me is sufficient to find that court approval should be granted to allow the plaintiff to be examined for discovery.

[35]         In Penn v. Secord (1979), 16 B.C.L.R. 48, [1980] 1 W.W.R. 464, 106 D.L.R.(3d) 9 Ruttan, J. said the onus for showing that a party is competent to be examined rests on the party seeking his examination. In the case at bar, the onus rests on the defendants.

[36]         The Rule in question uses the term, “a mentally incompetent person”.

[37]         It has been assumed up to now that Mr. DeMerchant is a mentally incompetent person because he has a trustee and a litigation guardian.  As well, the very nature of the application assumes the plaintiff is a mentally incompetent person since the application seeks leave of the court to examine him.

[38]         According to section 29 of the Interpretation Act, a “mentally incompetent person” is a “person with a mental disorder as defined in section 1 of the Mental Health Act”.

[39]         Reference to the Mental Health Act reveals the definition of a “person with a mental disorder” as “a person who has a disorder of the mind that requires treatment and seriously impairs the person’s ability (a) to react appropriately to the person’s environment, or (b) to associate with others”…

[45]         In the case at bar, there is medical evidence which conflicts, however I am satisfied that Drs. Bogod and  Lu have provided sufficient medical evidence  to suggest that the plaintiff does confabulate and would be unreliable as a witness.

[46]         I am also satisfied that the evidence of Drs. Bogod and Lu establish that the plaintiff meets both tests set out in the definition of a person with a mental disorder.

[47]         Accordingly, I determine that the applicants have not met the onus imposed upon them in seeking an order that the defendants be granted leave to examine the plaintiff at discovery.  It should also go without saying that I do not find the plaintiff to be competent to give evidence on his own behalf in these proceedings.

[48]           Consequently, I dismiss the defendants’ applications with costs to the plaintiff in any event of the cause.

As I recently discussed, the law in British Columbia requires a Defendant to compensate a Plaintiff for any indivisible injury caused by their wrongdoing.  If a subsequent event contributes to or aggravates the injury a defendant cannot reduce the amount of compensation the Plaintiff is entitled to.  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, demonstrating this principle of law.

In this week’s case (Fillmore v. McKay) the Plaintiff was involved in 2005 motor vehicle collision.  The Plaintiff was riding his bicycle when he was struck by the Defendant’s vehicle.  The Defendant initially denied being at fault but during trial admitted that the collision was indeed a result of her negligence.  The Plaintiff suffered various soft tissue injuries and a traumatic brain injury.

At trial the Defendant argued that some of the Plaintiff’s injuries were made worse during a subsequent fall and that this should reduce the compensation the Plaintiff should receive.  Mr. Justice Truscott rejected this argument and provided the following useful comments demonstrating the law relating to indivisible injuries in BC:

[145]     The plaintiff took a fall at work on July 9, 2005 when he says in his note that he aggravated his neck and shoulder. The defendant submits that this was a new incident not caused by him that should serve to reduce the plaintiff’s personal injuries for which he has liability from the motor vehicle accident. The defendant even submits that it may have been this incident of July 9, 2005 that caused the plaintiff’s back injury because his first complaint to Dr. Buie was not until after that.

[146]     I have already concluded that the plaintiff’s back injury occurred in the motor vehicle accident and not subsequently by this bike accident. The plaintiff does not say in his note that he aggravated his back on July 9, 2005, but only his neck and shoulder.

[147]     As to the possible aggravation of his neck and shoulder injuries, Athey v. Leonati, [1996] 3 S.C.R. 458, makes it clear that the defendant remains liable where his negligence caused or contributed to the injuries and that liability is not reduced by any non-tortious contributing causes.

[148]     Accordingly, even if the plaintiff’s neck and shoulder injuries were aggravated by this non-tortious incident, the defendant is still fully responsible for the full extent of those injuries because his negligence caused them in the first place and thereby contributed to the extent of the injuries.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages of just over $5.9 million for injuries and losses sustained in a Dance Floor injury.

In today’s case (Danicek v. Alexander Holburn Beaudin & Lang) the Plaintiff lawyer was out at a lawfirm function in 2001.  After dinner some members of the Plaintiff’s firm went dancing at a nightclub in downtown Vancouver.  During the evening a fellow lawyer fell backwards while dancing.  During his fall he struck the Plaintiff causing her to fall as well.  The Plaintiff hit her head on the ground with enough force to knock her unconscious.  Liability was in issue however Mr. Justice Kelleher found the Defendant was impaired when he fell and that he was fully responsible for the incident.

The Plaintiff suffered a mild traumatic brain injury (MTBI) the consequences of which were expected to never fully recover.  The court found that the Plaintiff would likely never work competitively as a lawyer again and awarded over $5 million for her diminished earning capacity.  Mr. Justice Kellehar also awarded the Plaintiff $185,000 for her non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).  In reaching this figure the Court made the following findings about the severity and extent of the Plaintiff’s brain injury:

227]     I find Ms. Danicek suffered a mild, traumatic brain injury in the April 6, 2001 accident. It has had a profound effect on her life. She was completely disabled from work until December 2001. As Dr. Anderson notes in his report dated January 26, 2007, the mild traumatic brain injury has resulted in ongoing post-concussive symptoms, which include physical, cognitive, and emotional difficulties.

[228]     Her headache pain has persisted and persists today, some nine years after the accident. The post-traumatic headaches have resulted in the plaintiff developing chronic pain disorder. Dr. Anderson notes that chronic pain disorder “causes significant distress or impairment in social, occupational, or other important areas of functioning.” …

[229] The medical evidence suggests that the plaintiff is not likely to completely or even substantially recover from these symptoms….

230]     Dr. Robinson noted that persons who suffer from severe headache disorders similar to the plaintiff’s condition are not likely to realize substantial improvements with the available treatments.

[231]     Dr. Anderson does not consider it likely that the plaintiff’s chronic pain disorder will meaningfully improve…

[232] In addition to the headaches and pain disorder, I accept that the dance accident caused some measure of cognitive impairment. Ms. Danicek felt that before the accident she was quick to understand new concepts. Today, she feels that, in her words, everyone gets it except her….

254]     The dance accident has impacted the plaintiff’s life profoundly. She has lost much. She has had and continues to have headaches of varying severity and duration. The injury has affected her physical and mental abilities and had a significant impact on her relationship with Mr. Schober.

[255]     The plaintiff has experienced a loss of enjoyment of life, and is unable to engage in many recreational activities. Her lifestyle has drastically changed since the dance accident.

[256]     An example of the effect of the dance accident on the plaintiff’s life is found in the evidence of her friend, Kristen Schneider. Prior to the accident, Ms. Schneider described the plaintiff as having “the most energy I think out of anybody I know”. At trial, Ms. Schneider testified that after the dance accident, Ms. Danicek was unable to consistently make their customary lunch dates; when she did, they had to find restaurants that were quiet to avoid exacerbating her headaches.

[257]     Additionally, she and the plaintiff no longer regularly go for runs, rollerblade, or hike the Grouse Grind, as was their habit prior to the dance accident.

[258]     Ms. Danicek is no longer able to pursue her career as a corporate solicitor working on “big deals”, a position she worked hard to obtain. The plaintiff enjoyed this work and her career was a source of pride for her. I accept this loss has negatively affected her feelings of self-worth and emotional well-being. In Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, Dickson C.J. (in dissent) stated at 368:

Work is one of the most fundamental aspects in a person’s life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person’s employment is an essential component of his or her sense of identity, self-worth and emotional well-being.

[259]     It is clear the plaintiff continues to suffer from her injuries, and her problems are likely to continue in the future without substantial improvement or resolution. Her prognosis for recovery or diminishment of her chronic headaches and pain is not good.

[260]     While individual judgments turn very much on their particular facts, two decisions which have influenced me are Reilly v. Lynn, 2000 BCSC 360, varied on other grounds, 2003 BCCA 49, leave to appeal ref’d [2003] S.C.C.A. No. 221, and Adamson v. Charity, 2007 BCSC 671.

[261]     In the circumstances, an award of $185,000 is appropriate.

Reasons for judgement were released this week by the BC Supreme Court awarding a Plaintiff just over $415,000 in total damages as a result of serious injuries occurring in a motor vehicle collision.

In this week’s case (Eggleston v. Watson) the pedestrian Plaintiff was struck by a vehicle driven by the Defendant.  The Defendant had just left a pub and had a blood alcohol level well over the legal limit.  the Defendant was criminally convicted for driving with an unlawful blood alcohol limit.

As a result of this criminal conviction the Defendant was in breach of his ICBC insurance.  He defended the lawsuit personally and ICBC defended as a statutory third party.

The Defendant never saw the Plaintiff (who was walking in the Defendant’s lane of travel in the same direction) prior to hitting him.   Despite this, and despite the criminal conviction, both the Defendant and ICBC argued that the Plaintiff was mostly at fault for this incident.  Mr. Justice Davies disagreed and found that the defendant was at fault holding that “(his) ability to operate a motor vehicle at the time that he struck (the Plaintiff) was so impaired by his consumption  of alcohol that his actions in so doing were not only negligent, but grossly negligent“.

The Court went on to find that while the Plaintiff was in violation of s. 182 of the Motor Vehicle Act at the time of the crash for not walking on the roadway facing oncoming traffic, he was not partially to blame for this crash.  In reaching this conclusion Mr. Justice Davies reasoned as follows:

[70]        The question is whether Mr. Eggleston’s own conduct in placing himself at some risk that a severely impaired driver would not see him in time to apply his vehicle’s brakes or otherwise avoid a collision requires an apportionment of some liability to him for his injuries.

[71]        In all of the circumstances I find, as did Kirkpatrick J. in Laface, that Mr. Watson’s conduct was so unforeseeable, and the risk of injury from Mr. Eggleston’s failure to take more care so unlikely that “it is simply not appropriate” to find that Mr. Eggleston was contributorily negligent.

[72]        If I am wrong in that conclusion, based upon the analysis and conclusions of Esson J.A. in Giuliani, I would assess Mr. Eggleston’s fault in failing to avoid the collision to be no more than 5%.

The Court then awarded the Plaintiff $170,000 for his non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for his serious injuries which included a mild traumatic brain injury (MTBI).  In arriving at this figure the Court provided the following reasons:

[145]     After considering the totality of the evidence in this trial including the medical evidence adduced by the parties, I have concluded that Mr. Eggleston has proven that it is more likely than not that he suffered a mild traumatic brain injury in the collision of June 9, 2009.

[146]     I also find that the mild traumatic brain injury he suffered is the primary cause of the emotional, social and cognitive difficulties he has exhibited and endured over the more than three years between the date of the accident and the start of the trial, and which will continue to impact his future suffering and enjoyment of life…

[157]     In addition to the mild traumatic brain injury that I find has been the primary cause of Mr. Eggleston’s past social, emotional, and cognitive problems as well his as continuing problems with serious headaches, all of which will likely continue to impact his future, as well as the balance difficulties that I find were caused by the collision, I also find that the evidence establishes on a balance of probabilities that Mr. Watson’s negligence caused the following physical injuries which Mr. Eggleston has suffered and from some of which continues to suffer:

1)        Significant soft tissue injuries and bruising which were ongoing until at least January of 2007 when he was seen by Dr. Travlos.

2)        A traumatic umbilical hernia which was successfully operated upon on May 29, 2007.

3)        Injuries to his right shoulder including a torn biceps tendon, impingement syndrome and a rotator cuff tear which were operated on without success on December 5, 2007, and which in the opinion of Dr. Leith, require further surgery.

4)        Injuries to his lower back which aggravated existing back problems from which he had largely recovered prior to the collision. Those lower back injuries have impacted on his ability to drive the water truck in his work for Mr. Palfi and in respect of which I accept Dr. Leith’s opinion of June 2, 2009.

[158]     In addition to those specific physical injuries, I accept the evidence of Dr. Travlos, Dr. Cameron, Dr. Smith and Dr. Bishop that Mr. Eggleston has suffered and continues to suffer from psychological problems arising from his brain injuries and the pain associated with the physical injuries suffered in the collision. That pain was chronic until at least June of 2009 but was relieved to a large extent by narcotic and other medications thereafter until Mr. Eggleston determined to wean himself off Dilaudid. He now again has more pain and is also likely suffering the continuing effects of withdrawal. However, his present work history convinces me that within the neurological and cognitive limits that may still compromise his recovery, his future suffering from chronic pain will likely be capable of amelioration with psychological counselling and pain management assistance without narcotic intervention.

[159]     In determining the appropriate award to compensate Mr. Eggleston for the injuries suffered in the collision, I have considered all of the injuries suffered by him that were caused by Mr. Watson’s negligence, their devastating effect upon his ability to enjoy the active life involving horses and his relationship with friends and family surrounding that lifestyle that he formerly enjoyed.

[160]     I have also considered the pain Mr. Eggleston has endured and will likely continue to endure at least at some level, the compromise of his role as the leader of his family and the loss of his self-esteem, the length of time over which he has already suffered those losses, the prospect of the continuation of those losses into the future, albeit at a less intense level than in the past, and the fact that he will again have to undergo surgery in an attempt to repair his shoulder injuries.

[161]     In addition, I have considered the situation that has existed since March of 2008 when Mr. Eggleston returned to work, in that the work he does drains him of energy so that his life has become somewhat one-dimensional, centering upon work and recovery from its daily effects upon him to the continued detriment of his ability to enjoy life.

[162]     Finally, I have considered all of the authorities which have been provided to me by counsel and which offer some guidance as to the appropriate range of damages for injuries such as those suffered by Mr. Eggleston but which are of course dependent on their unique fact situations.

[163]     I have concluded that in the totality of the circumstances an award of non-pecuniary damages in the amount of $170,000 will appropriately compensate Mr. Eggleston for his pain and suffering and loss of enjoyment of life caused by Mr. Watson’s negligence.

Traumatic Brain Injuries (TBI) are generally categorized as Mild, Moderate and Severe.  Despite what the name suggests, there is nothing necessarily “mild” about the effects of a mild traumatic brain injury (MTBI).  Reasons for judgement were released today by the BC Supreme Court, New Westminster registry, doing a great job explaining this.

In today’s case (Cikojevic v. Timm) the Plaintiff was injured in a 2002 crash.  She was 17 at the time.  She was a passenger in a truck that drove off the road and hit a tree.  The force of the collision “threw her head into the windshield hard enough to star it“.

All of the medical experts that examined the Plaintiff (both her own and those hired by ICBC) agreed she suffered a mild traumatic brain injury in this crash.  The consequences of this never fully resolved and the Court accepted she would struggle with life long difficulties.  Mr. Justice Brown awarded the Plaintiff over $1.4 million in total compensation including $1 million for her diminished earning capacity over her lifetime.   The case is worth reviewing in full for the Court’s discussion of this head of damage.  Prior to awarding damages Mr. Justice Brown provided the following useful quote about “mild” TBI:

[251]     Although experts sometimes disagree on whether to call an injury a mild concussion or a MTBI, either term is suitable.

[252]     “Mild” describes the severity of the organic injury, not its effect.

[253]     Although the organic severity of an injury usually associates with the severity of symptoms, sometimes symptoms can be severe while the organic injuries to the brain are mild.

[254]     Upwards of 85% of people suffering uncomplicated MTBI recover within six months. The recovery range lies between 85% and 95%, depending on the expert’s views and the literature they accept. I find that around 90% of people suffering uncomplicated MTBI recover according to scientific literature. However, as noted by Dr. Anton, such statistics are of no value when dealing with a patient who falls into the subset of people who never fully recover. Each case must be evaluated individually.

[255]     The cognitive and emotional effects of MTBI can severely disable and impact the injured person’s life.

You can click here to access my archived posts of other recent BC personal injury cases dealing with Traumatic Brain Injury.

In what is one of the biggest personal injury trial awards in Canadian History, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing losses and damages of over $5.5 million dollars as a result of a BC motor vehicle collision.

In today’s case (MacEachern v. Rennie) the Plaintiff suffered a “severe brain injury when her head struck a passing tractor-trailer…in Surrey, BC.  She was 27 years old at the time. “.  The court found that as a result of her serious injuries “she will now require care for the rest of her life. ”

The trial was hotly contested and went on for many months starting back in March of 2009 (You can click here to read my archived posts documenting some of the contested interlocutory trial applications) Ultimately the driver of the tractor trailer was found 80% responsible for the crash for not keeping a proper lookout.  The Plaintiff herself was found 20% at fault for “making the careless decision to proceed (around a pickup truck) when she did, instead of waiting for traffic to clear“.

Given the Plaintiff’s catastrophic injuries she was found to require care for the rest of her life.   $5,275,000 was awarded to take care of these expenses.  The Plaintiff was also awarded the maximum Canadian law allows for negligently caused personal injuries for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).

The parties to the lawsuit agreed that this upper limit was an appropriate award.  In reaching this assessment Mr. Justice Ehrcke made the following comments:

[673] Following the accident, the plaintiff had a Glasgow Coma Score of 3. She was intubated and taken by ambulance to Royal Columbian Hospital, where she required emergency surgery upon admission. Dr. Lee, a neurosurgeon, performed a craniotomy to treat her depressed skull fracture and inserted a monitor for her intracranial pressure.

[674] Ms. MacEachern remained unconscious for weeks. She underwent further surgeries. When she eventually opened her eyes, she still did not recognize her family for months. Her coma slowly lifted, but she became severely agitated as a result of her brain injury.

[675] On June 20, 2006, she was transferred to the specialized Neuropsychiatric Program at UBC Hospital for three months, where she received one-on-one care, 24 hours per day. Through the care she received and through adjustments in her medications, she became stabilized and her behaviour dramatically improved. On September 15, 2006, she was discharged back to Royal Columbian Hospital, with a primary diagnosis of Disinhibited Frontal Lobe Syndrome. Although she remained severely disabled, she was now mobile and was able to speak and communicate.

[676] At Royal Columbian Hospital, her behaviour again deteriorated, and at times she required restraints and had to be locked in a padded room.

[677] In January 2007, Ms. MacEachern was transferred to Bear Creek Lodge. The upstairs part of this facility caters to geriatric patients, while the downstairs unit is a locked ward for persons with brain injuries. Ms. MacEachern currently lives there with 15-16 other persons ranging in age from 20-60 years. She has her own room. This facility has provided her with security, medications, and the basic necessities of life, but all parties are in agreement that Bear Creek Lodge is not suitable as a permanent placement for Ms. MacEachern.

[678] To summarize:  as a result of the accident, the plaintiff suffered a depressed and comminuted skull fracture of the right front and parietal bones, shear hemorrhages from diffuse axonal injury, and focal hemorrhage to the left frontal and left temporal lobes of her brain. These injuries will have profound implications for the rest of her life. She has little short-term memory, and her behaviour is disinhibited. Mentally and socially, she presents much like a young child, yet in a mature woman’s body. She clearly will require a significant level of care for the rest of her life. She will never be able to work or earn a living….

[680] As mentioned above, in three 1978 cases (the “Trilogy”), Thornton v. School District No. 57 (Prince George) et al., [1978] 2 S.C.R. 267, Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, and Arnold v. Teno, [1978] 2 S.C.R. 287, the Supreme Court of Canada set a rough upper limit of $100,000 for non-pecuniary damages in cases of catastrophic injury.

[681] All parties in the present case agree that the plaintiff suffered the kind of catastrophic injury that should attract the rough upper limit set by the Supreme Court of Canada, adjusted for inflation. The evidence of Mr. Carson is that the present value of the rough upper limit, as of the beginning of this trial, is $324,800.

[682] There shall be an award for non-pecuniary damages in that amount.

When people suffer from mild traumatic brain injuries (MTBI), it sometimes takes time for people to recognize the extent of the injury and the impact that the consequences of MTBI have on everyday life.  Changes can be subtle but the impact could be dramatic.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, considering such a case.

In today’s case (Burdett v. Eidse) the Plaintiff was involved in 2 serious motor vehicle accidents.  The first in Kelowna, the second in North Vancouver.  Fault was not admitted for the first but after trial the Court found the Defendant 100% liable for the first crash.  Fault was admitted by the Defendant for the second crash.  Madam Justice Loo was asked to determine the extent of the Plaintiff’s accident related injuries.

The Plaintiff suffered from an MTBI in the first crash.  As is sometimes seen with these types of injuries the Plaintiff did not appreciate the significant impact his MTBI had on his level of functioning.   The Plaintiff, who had a “bulldog“ attitude took very little time off work and complained very little about the consequences of the car crash.

To those around the Plaintiff, however, the changes were noticeable.  Evidence was called that there were significant changes in the Plaintiff’s functioning after the car crash by those close to him.  Ultimately Madam Justice Loo of the BC Supreme Court accepted that the Plaintiff did suffer an MTBI in the collision and that he was competitively unemployable as a result.  The Court went on to award just over $1.1 Million in total damages including an award of $200,000 for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).

In reaching her conclusions Madam Justice Loo highlighted the difficulty the Plaintiff had in realizing the consequences of the car crash.  Some of the key findings were as follows:

[106] When asked when he became aware that he had a problem, Mr. Burdett said that when he first saw his counsel Mr. Burns, he mentioned he had an accident, and “kind of left it” at that. No one in his crew told him he was not doing what he was supposed to be doing on the job. Then “weird things” started “creeping into my life”. Friends started telling him he was forgetting things, he was having a hard time remembering numbers, he could no longer estimate the cost of a plan, and he was forgetting things at work. His crew told him to get joist hangers and he returned with something else. They started writing things down for him so that he would remember. He finally realized “there’s something really wrong here; I need help”. He returned to see Mr. Burns again.

[107] There is no evidence of when Mr. Burdett saw his counsel the first or second time, but this action was commenced and a statement of claim filed on April 4, 2007. The statement of defence was filed July 30, 2007.

[108] Despite what his family, friends, and co-workers saw and observed of Mr. Burdett, it was not until he saw Dr. Cameron that he recognized the extent of his injuries from the motor vehicle accident of June 26, 2005.

[109] At the time Mr. Burdett worked on the Losch and Summerland Motel projects, he thought he was doing fine. In retrospect, he was not. In retrospect he realized that he was cut out of the loop, did not stay on top of matters, and let work get out of control.

[110] Several times during the construction of the Losch projects, the architect voiced to him that the project was not running satisfactorily. Not only has an architect never said that to him, but Mr. Burdett also did not realize that the project was not running smoothly at the time.

[111] Mr. Burdett’s company is still owed $80,000 on the Losch project, but Mr. Burdett is unable to determine what the deficiencies are or what work has been left undone because he left everything to the job superintendent with whom he no longer has a relationship.

[112] The Summerland Motel project became an even bigger disaster because Mr. Burdett failed to properly manage the project. He did not write up a change order or extra work order and did everything with a wave of his hand. He never made sure that the owner had financing in place, with the result that Mr. Burdett financed much of the work with his own personal funds. He did not deal with the trades as he should have, with the result that trades walked off the job or never showed up. The job occurred at a time when carpenters and other trades were hard to get. Mr. Burdett misquoted parts of the work by leaving out necessary work, and did not know at the time that he was having difficulty estimating and working with numbers.