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“Upper Limit” Non-Pecuniary Damages Awarded Following Brain Stem Injury

Adding to this site’s archives addressing non-pecuniary assessments for traumatic brain injury, reasons for judgement were released today addressing a brain stem injury.

In today’s case (Van v. Howlett) the Plaintiff was a passenger involved in a 2007 collision.  The force of the collision ejected the plaintiff causing various injuries inclucing a brain stem injury.  Her prognosis for meaningful recovery was poor and in fact her functioning was expected to deteriorate as time went on.  In assessing damages at the maximum amount of $351,000 Mr. Justice Grauer provided the following reasons:

[26]         Dr. Jason Clement, a radiologist and a specialist in neuroimaging, provided the lead opinion concerning Ms. Van’s brain injury, and I do not hesitate to accept his evidence.  He noted that MRI investigation disclosed severe diffuse axonal injury (“DAI”) including grade 1, 2 and 3 lesions, as well as additional intracranial injuries in the form of subdural and subarachnoid haemorrhage.  A grade 3 DAI lesion involves the brainstem and is the most severe grade.  These lesions act as markers for diffuse underlying injury throughout the brain resulting in significant chronic cognitive dysfunction and impairment in all cognitive domains.  In fact, Dr. Clement explained, this type of injury is more consistent with people in a persistent vegetative state, which Ms. Van is not. 

[27]         The severe DAI sustained by Ms. Van is also known to trigger progressive cerebral atrophy leading to an increased risk of progressive cognitive decline and premature dementia.  In addition, the multiple focal brain injuries have left her with a lifelong increased risk of seizures. 

[28]         Dr. Clement explained that people do not recover from this sort of injury, and that the treatment focus must be on reducing further decline to the extent possible…

[50]         On the evidence before me, I have no difficulty in concluding that the injuries suffered by Ms. Van are catastrophic.  We are, in any practical sense, our brains.  A brain injury of this degree of severity is a loss of one’s very self.  Like Ms. Spehar, Ms. Van “has lost what to many is one of the most valuable aspects of being an adult human — the ability to have control over one’s own life” (Spehar at para 13).  No aspect of her life, including her closest relationships, has been left unimpaired.  Her outlook for the future is dismal.  Her days are filled with pain and frustration.  There is no possibility of recovery.  The best she can hope for is that her deterioration will be slowed, and that her anger, frustration and depression can be addressed through medication and distraction.  At worst, she will experience a premature and accelerated descent into dementia, losing what little has been left to her.

[51]         In these circumstances, I conclude that Ms. Van is entitled to an award at the upper limit.  I assess her non-pecuniary damages at $351,000.

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