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.

Posts Tagged ‘brain injury’

$210,000 Non-Pecuniary Damage Assessment for Frontal Lobe and Brachial Plexus Injuries

August 8th, 2011

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing damages for severe injuries following a motor vehicle collision.

In last week’s case (Harrington v. Sangha) the Plaintiff was struck by a tractor trailer in 2007.  Another motorist who initially lost control causing the tractor-trailer to collide with the Plaintiff was found fully liable for the incident.   The Plaintiff suffered a frontal lobe brain injury in addition to a brachial plexus injury.

(Frontal Lobe Graphic via Wikipedia)

The Plaintiff was disabled from employment as a result of the pain from the brachial plexus injury and the cognitive changes due to the frontal lobe injury.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $210,000 Mr. Justice Willcock provided the following reasons:

[183] There is no doubt that the plaintiff has been severely and dramatically affected by the injuries sustained in the January 18, 2007, motor vehicle accident. There is no doubt with respect to the extent of her physical injuries. There is convincing evidence that she has suffered a traumatic brain injury. That injury has affected her cognition and may have reduced her global intelligence. There is ample evidence from her family and friends that her behaviour has been significantly affected. She is irritable and disinhibited. Her memory and concentration are poor. These changes are typical of those experienced by people who have suffered frontal lobe injuries of the sort sustained by Ms. Harrington. She is affected by chronic pain and headaches. She requires significant medication to deal with her pain and that has further impacted her emotional state and her intellectual functioning. By all accounts she is now unemployable.

[184] Fortunately, she is still largely independent and capable. As the defendants point out, she appears, to the casual observer and even to trained professionals on first encounter, to be someone who is functioning well and behaving appropriately. She is still capable of enjoying many of the amenities of life and may do so to a greater extent if she benefits from certain of the chronic pain management programs recommended to her.

[185] It is true, as the plaintiff submits, that there is no “range” of devastating injuries. All devastating injuries should attract an award of general damages at the upper limit permissible. I am of the view, however, that while Ms. Harrington will be seriously affected for the balance of her life by the significant injury she sustained, her injury cannot properly be described as devastating. Unlike the plaintiff in Morrison v. Cormier Vegetation Control, she is not limited to minimal participation in the activities of daily living. She is unlikely to be shunned and the range of relationships open to her should not be forever limited. She appears, still, to have reasonable insight into her situation and condition and has in fact formed relationships since her accident. By suggesting an award that is marginally less than the upper limit, the plaintiff’s counsel implicitly acknowledges that this is not a case where the rough upper limit of general damages is an appropriate award.

[186] On the other hand, the defendants, by referring only to the examining experts’ first impressions of Ms. Harrington and her appearance in the witness box at trial, underestimate the dramatic effect of the injury upon her. There is no reference in the defendant’s submissions to the common findings of the neuropsychologists with respect to the nature and extent of the consequences of the head injury.  Nor is there any reference to the testimony of the many family and friends who testified with respect to the dramatic change in the plaintiff’s behaviour. Taking into account both the very significant limitations in her physical activities associated with her brachial plexus injury and the functional impact of her head injury, I am of the view that general damages in this case should be assessed at $210,000.


Useful Insight into Cross-Examination in an ICBC Brain Injury Claim

September 14th, 2009

When involved in an ICBC Injury Claim it is natural to want to know what the trial experience can be like. The best way to experience what the Court process is like is to actually attend a live trial and watch the evidence play out before you.  This is easy enough to do, particularly in larger centres around the Province, like in Vancouver or New Westminster, as an injury trial is occurring on almost any given day.

If you can’t do this you can read past court judgements to get a feel for the ways these claims can proceed at trial.  While this is not nearly as enlightening as witnessing a live trial some useful insight can still be gleaned.  If you are looking for a court judgement giving insight into the court process Reasons for judgement were released today reproducing extensive portions of a Plaintiff’s cross examination in an ICBC Brain Injury Claim that are worth reviewing in full.

In today’s case (Trevitt v. Tobin) the Plaintiff was injured in a 2004 Motorcycle Accident in Surrey, BC.    The Defendant pulled into the Plaintiff’s line of travel while making a left hand turn.  The Defendant ultimately conceded the issue of fault.

The trial focused on the injuries the Plaintiff had the the appropriate award for compensation.  The Plaintiff alleged that he suffered a traumatic brain injury and as a result would suffer a serious ongoing disability.  The Plaintiff sought over $1.5 million dollars in total damages.

The Plaintiff’s claim with respect to his injuries and the extent of disability was largely rejected with Mr. Justice McEwan finding that “the physical evidence does not account for a head injury or concussion“.  In the end the Court found that the Plaintiff suffered from “general bruising and shaking up in the accident” and following a setback in his career ambitions he suffered from “ongoing difficulties with headaches, tinnitus and some balance issues“.  The Court found that these issues were ongoing by the time of trial (some 5 years later).  The Plaintiff’s non-pecuniary loss (money for pain and suffering and loss of enjoyment of life) was valued at $60,000.

The Court heard from many very qualified physicians who gave opinion evidence with respect to the Plaintiff’s medical condition.  As is often the case in ICBC Injury Claims the court heard competing expert evidence from physicians called by the Plaintiff and the Defendant.  In determining which experts had the more useful evidence Mr. Justice McEwan pointed out that “what any given doctor ‘believes’ is only helpful to the extent taht the underlying information is plausible by the standards of the court“.

To this end, the The Plaintiff’s credibility and reliability were put squarely at issue in this trial.    The Defence lawyer argued that credibility was central to this case and engaged in an extensive cross examination relating to the Plaintiff’s credibility as a witness.  Portions of this cross examination are set out in paragraphs 15-18 and these give good insight into what cross-examination can be like in Injury Litigation.   Ultimately Mr. Justice McEwan held that the plaintiff gave some “unusual” and “inconsistent” evidence and that “he quite clearly cannot be relied upon for the accuracy of his observations about his condition“.


More from BC Court of Appeal on Jury Trials and Counsel Statements

June 10th, 2009

I recently posted on the potential for mistrials when counsel give their personal opinion in an opening statement to a jury.  Today reasons for judgement were released by the BC Court of Appeal further discussing, amongst other topics, proper opening remarks by counsel in a Car Crash case.

In today’s case (Moskaleva v. Laurie) the Plaintiff suffered serious injuries including a Mild Traumatic Brain Injury (MTBI) in a 2002 motor vehicle collision.  The Plaintiff was crossing with the light in a marked cross-walk in Maple Ridge at the time.

After a 18 day jury trial damages of over $1.9 million were awarded for her injuries and losses.  The Defendant appealed on 5 grounds stating that

1.  the opening submissions of respondent’s counsel were improper and prejudicial;

2.  the cross-examination of a psychiatrist called by the appellant exceeded the bounds of proper cross-examination and thereby prejudiced the jury;

3.  the trial judge’s interventions and questions during the testimony of three expert witnesses called by the defence impugned the credibility of those witnesses.

4.  the appellant alleges that the trial judge erred in his instructions to the jury by failing to explain properly the law relevant to past and future economic loss and by inaccurately stating the appellant’s position on that issue.  The relief the appellant seeks on the first four grounds of appeal is an order for a new trial.

5.  that the awards for non-pecuniary damages, past wage loss, and future economic loss are inordinately high, not supported by the evidence, and inconsistent with the jury’s award for cost of future care.

The Appeal was dismissed on all 5 grounds.  This case is worth reviewing for the courts discussion on these areas of law particularly the permissible scope of cross examination of experts and counsels opening statements.  Below I reproduce the Courts analysis of the opening statement of the Plaintiff’s lawyer:

[19] Under the first ground of appeal, the appellant argues that the opening submissions of respondent’s counsel were improper and prejudicial and resulted in an unfair trial.  To support her submissions that the opening statement failed to conform to the proper function or purpose of an opening, the appellant refers to Halsbury’s Laws of England, 3rd ed. (London: Butterworths, 1953), vol. 3, at 69, and to what was said by Finch C.J.B.C. in Brophy v. Hutchinson, 2003 BCCA 21 at paras. 24-25, 9 B.C.L.R. (4th) 46.  As to the effect of an improper opening statement, the appellant refers to Brophy at para. 48.

[20] The appellant complains that the opening statement contained no explanation as to its purpose and, rather than outlining the facts the respondent expected to prove, gave a description of the accident, the mechanism of a brain injury, and the respondent’s training and employment background, all as if they were established fact, thereby giving the impression that all that was important for the jury to consider was the evidence of the respondent’s symptoms in the aftermath of the collision.  The appellant further submits that in the opening, the respondent’s symptoms and the consequences of the accident were couched in pathos through an emotional appeal to the challenges faced by the respondent as an immigrant to Canada from Russia.  The appellant argues that while the complete effect of the opening remarks of respondent’s counsel cannot be known to a certainty, the character of those remarks was clearly prejudicial.  The appellant contends that the fullness of their effect was to cement for the jury as fact the assertion that the respondent had suffered a brain injury, was incapable of performing work, and had suffered a significant economic loss.

[21] The appellant also complains that a phrase used by the respondent’s lawyer at the conclusion of his opening improperly suggested that the accident, instead of being the result of negligence, was volitional.  In that regard, the appellant refers to the statement in the opening that the appellant “chose to launch her car forward from that stop sign and not pay attention to who was in the cross-walk”.  In the appellant’s submission, the effect was to present the appellant’s case in the context of the respondent as victim and the appellant as culprit.  The appellant argues that the effect was to demonize the appellant at the inception of the trial, thus implicitly characterizing her as a person who intentionally disregarded the interests of others, rather than being merely negligent.

[22] Another complaint the appellant makes is that it was improper for respondent’s counsel to use evidence in the form of photographs in the opening.

[23] In my view, none of the arguments put forward under the first ground of appeal can succeed.

[24] The appellant’s characterization of what was said in the respondent’s opening is overstated and, in some instances, inaccurate.  Prior to counsel for the respondent beginning his opening statement, appellant’s counsel informed the trial judge that he did not dispute that the appellant was negligent but said he was not in a position to admit liability.  As a result of the position taken, liability was obviously in issue.  In the circumstances, for respondent’s counsel to refer to the respondent’s recollection of the accident in his opening statement is unremarkable.  At trial, appellant’s counsel did not object to the description given by respondent’s counsel as to how the accident had occurred and did not complain that respondent’s counsel had “demonized” the appellant.

[25] The suggestion that a miscarriage of justice occurred as a result of what was said by respondent’s counsel in his opening about the circumstances of the accident is further undermined when considered along with the submissions on liability made later in the trial.  Before making his final submission to the jury, respondent’s counsel advised the trial judge and appellant’s counsel that he intended to submit that “one of the reasons why we’re here is because Ms. Laurie [the appellant] says she’s not at fault”.  Appellant’s counsel stated he did not have a problem with that submission and later agreed it was appropriate for the trial judge to instruct the jury to find the appellant negligent.  I further note that during the course of his closing submissions, appellant’s counsel told the jury:

Now, you’ve heard that Ms. Laurie ran her vehicle into the plaintiff.  There’s no doubt.  There’s no doubt that Ms. Moskaleva was in the intersection.  There’s no doubt that Ms. Moskaleva had the right-of-way.  There is nothing that I could say to suggest that Ms. Moskaleva did anything wrong, or that my client demonstrated all the care that she should have.  She didn’t.  She didn’t.  As a result you may find that my client was negligent.  I don’t have anything to say on that.  Nothing I can say.  I think it’s fairly obvious.

[26] In view of the foregoing, there is no substance to the submission that the remarks in the respondent’s opening about the appellant’s manner of driving at the time of the accident resulted in the kind of prejudice that would require a new trial.

[27] In his opening, respondent’s counsel showed the jury some photographs of the respondent and her husband.  Appellant’s counsel had been informed in advance by respondent’s counsel that he intended to use the photographs in his opening and appellant’s counsel told the trial judge he did not have “a problem” with the photographs.  After the opening had been given, appellant’s counsel repeated that he did not object to the use of the photographs.

[28] The appellant’s contention that the respondent’s counsel stated evidence as fact, thereby resulting in prejudice requiring a new trial, ignores the trial judge’s opening instructions to the jury.  Near the commencement of the trial, the judge gave the jury various instructions, including an instruction on the purpose of counsel’s openings.  After referring to the burden and standard of proof, the trial judge said, in part:

I will turn next to the opening remarks of counsel.  One of the Mr. Faheys will begin the trial once I have concluded my remarks.  He will take the opportunity to explain to you what he expects the evidence will disclose and give you an overview of his case.  Counsel for the defendant will do so at a later time after the plaintiff’s evidence has been called.  These opening remarks are made so that you will have a better understanding of the nature of the evidence that the parties intend to call; however, the opening remarks are not evidence and you cannot rely on what the lawyer says in his opening to prove the facts that you have to prove to decide the case.  You must only accept that the case is proven based on evidence that is called at court.

[29] Counsel for the respondent referred throughout his opening to the types of evidence he intended to adduce and what that evidence would show.  He specifically told the jury there would be controversy in the evidence concerning brain injury, concussion, and post-concussion syndrome and asked the jury to pay close attention to the evidence that would be led.  There were some phrases or statements in the respondent’s opening that might have been more carefully couched, but considered in the context in which they were uttered, they were not such as to exclude consideration of the case for the appellant.

[30] After the respondent’s counsel had concluded his opening statement, appellant’s counsel asked the trial judge to remind the jury that the opening was not evidence.  The trial judge decided his earlier instruction was sufficient, and in his charge, the judge reminded the jury that they were to rely on their own recollection of the evidence, not anything said by counsel.

[31] Of considerable significance in regard to this ground of appeal is the fact that appellant’s counsel told the trial judge he was not seeking a mistrial as a result of anything said during the opening.  This is a case in which appellant’s counsel specifically put his mind to the effect of the opening and elected not to seek an order discharging the jury. A deliberate election, such as occurred in this case, is a powerful circumstance militating against the appellant’s submission that a new trial is required to rectify an unfair trial.  While the facts of the case differ from the case at bar, the observation of Hall J.A. in R. v. Doyle, 2007 BCCA 587 at para. 28, 248 B.C.A.C. 307, is apposite:

In my opinion, having made a reasoned decision not to seek a mistrial, I do not consider it is open now to counsel for the appellant to advance an argument that the discovery and use by the judge of the evidence resulted in an unfair trial proceeding.  A rational choice was made at trial by experienced and competent counsel and it would not be appropriate to now allow this point to be the foundation of a contrary position in this Court.

[32] Further support for the view expressed by Hall J.A. may be found in Rendall v. Ewert (1989), 60 D.L.R. (4th) 513, 38 B.C.L.R. (2d) 1 at 10 (C.A.), and in Morton v. McCracken (1995), 7 B.C.L.R. (3d) 220 at para. 13, 57 B.C.A.C. 47.

[33] I would not accede to the first ground.


$220,000 Non-Pecuniary Damage Assessment for "Psychotic Disorder"

June 9th, 2009

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, awarding a Plaintiff damages for serious injuries and losses as a result of a 2001 Car Accident in Mission, BC.

What was interesting about this case (Polovnikoff v. Banks) was the very unique injuries the Plaintiff suffered as a result of this collision.  Madam Justice Bruce found that the Plaintiff sustained a Mild Traumatic Brain Injury and a Psychotic Disorder as a result of this crash.  While accident related brain injury cases are not all that uncommon it is quite rare to see a claim with an alleged accident related psychotic disorder to proceed to trial.

Madam Justice Bruce awarded $50,000 in non-pecuniary damages (pain and suffering) for the Plaintiff’s brain injury and related cognitive deficits.  In doing so she noted that the Plaintiff suffered from a ‘persistent cognitive impairment with predominant problems with his attention, concentration, ability to hold information, and being in the present with memory difficulties, short term and longer term memory problems‘.

The court then assessed the Plaintiff’s psychotic disorder separately and in valuing this non-pecuniary loss at $220,000 the court noted the following:

[377] Superimposed upon the plaintiff’s cognitive impairment is a completely disabling psychotic disorder. The plaintiff’s mental state has significantly interfered with his ability to function normally in every aspect of his life. His psychotic features adversely affect his ability to think and reason, impair his judgment, cause him to neglect personal hygiene, enhance the adverse impact of his cognitive impairments, including his ability to concentrate and short and long term memory, and make him apathetic about his life and others around him. The plaintiff is plagued by sleeplessness, anxiety, irritability, aggressive or violent feelings, lack of insight, verbal and physical inhibition, and recklessness. Mr. Stanus concluded that the plaintiff was completely unemployable in a competitive market due to his psychotic disorder.

[378] Clearly the plaintiff has undergone a catastrophic loss of enjoyment of life. While there is some doubt about how successful Festival Foods was as a going concern, it is apparent from both the plaintiff’s testimony and the collateral witnesses called by the plaintiff that he really enjoyed running the company and that he had significant skills and talents that have been lost entirely as a result of this disabling mental illness. The plaintiff requires constant supervision and is unable to carry out the simplest tasks. He no longer pays any attention to his physical care and hygiene and has lost interest in all of his pre-accident physical and recreational activities. Based on these factors I award the plaintiff $220,000 for non-pecuniary damages arising out of the psychotic disorder.

Madam Justice Bruce then went on to reduce this award significantly to $68,200 to account for the many other factors that played a potential role in the development of a psychotic disorder in the absence of this accident.  This made for a lengthy judgement almost 500 paragraphs in length.  Below are the highlights of the courts discussion reducing the award for damages for the Plaintiff’s psychotic disorder:

C.        Reductions from Non-Pecuniary Damage Award for Psychotic Disorder

[379] This award must be reduced by 2% to reflect the small but measurable risk that the plaintiff’s alcohol consumption may have led to the psychotic disorder regardless of the July 2001 accident. This award must be reduced a further 45% to reflect the adverse impact of alcohol consumption on the progression of his psychotic disorder and the involvement of alcohol addiction in the symptoms that are currently a part of the plaintiff’s clinical presentation.

[380] Turning to the other accidents and subsequent events, it is apparent from the medical reports of Dr. Hunt and the clinical notes of Dr. Yokoyama that the December 2000 accident was the beginning of the plaintiff’s emotional distress albeit his major psychiatric symptoms appeared after the 2001 accident. Both Dr. Gopinath and Dr. Hunt attribute the plaintiff’s “superimposed psychological and psychiatric disturbances” to the injuries he suffered in both the December 2000 and the July 2001 accidents. Only Dr. Smith ruled out any causal relationship between any of the other accidents and the plaintiff’s current psychiatric illness: December 31, 2008 report at p. 19. This accident also appears to be the most seriously disabling for the plaintiff next to the July 2001 accident. Thus I would allocate to this accident 10% responsibility for the damages awarded to the plaintiff for the mental illness he suffers from.

[381] The accident witnessed by the plaintiff in January 2002 caused him to have a panic attack and increased his anxiety level for a brief period. The clinical notes of Dr. Yokoyama indicate the anxiety was improving after only a few days. In addition, this is clearly a non-tortious cause that does not reduce the defendants’ liability. The accident that occurred on October 21, 2002 was also fairly minor and nothing in Dr. Yokoyama’s clinical records indicates the plaintiff suffered any lasting emotional trauma as a result of this event. Accordingly, I attribute no responsibility for loss to the defendant in that case.

[382] The plaintiff was involved in an accident on September 24, 2003. He was a passenger in a vehicle driven by his father when this accident occurred. The van driven by Mr. Polovnikoff became hooked to the rear of a truck and this caused the van to be swung in a circular motion causing damage to the front bumper and two broken windows. When Dr. Hunt saw the plaintiff on November 27, 2003, he was confused, irrational, and having abnormal mental thoughts. The plaintiff disclosed that he was too frightened to drive or be a passenger in a vehicle because of the possibility of another accident. Dr. Hunt was so concerned about the plaintiff’s mental stability that he considered having him committed to hospital for acute psychiatric care.

[383] While the plaintiff appeared much more disturbed than in previous assessments, Dr. Hunt had already seen psychiatric problems developing in June 2003 before this accident had occurred. In addition, there is no follow up visit with Dr. Yokoyama, which was unusual for plaintiff, to indicate that this state of high anxiety continued for an extended period. Indeed, the next visit to Dr. Yokoyama was on February 24, 2004 after another accident had occurred. Thus, although it is apparent this accident caused some deterioration in the plaintiff’s condition, I am unable to find that it was either substantial or long term in its effect. The accident on February 18, 2004, which Dr. Yokoyama concluded had aggravated the plaintiff’s agitation level, was also short lived in effect. During the next visit to Dr. Yokoyama on March 17, 2004 there is no reference to any aggravation of his ongoing concussion symptoms. Thus I reduce the award for both these events by a nominal 2%.

[384] The accident on May 30, 2004 in the parking lot of the Astoria hotel seemed significant to Ms. Lustado. She considered this to be a turning point in their relationship because of the noticeable deterioration in the plaintiff’s emotional demeanour. Dr. Yokoyama’s clinical notes on June 2, 2004 indicate that the plaintiff developed anxiety and tension after this accident in addition to an aggravation of his soft tissue injuries. On August 30, 2004 there is also a reference in Dr. Yokoyama’s clinical records to “regression – post concussion syndrome” which I interpret as some deterioration in the plaintiff’s mental state. Accordingly, I reduce the award by 5% to reflect the damage caused by this defendant’s negligence.

[385] The accidents that occurred on November 18, 2004, March 22, 2005, and November 29, 2006 do not appear to have aggravated to any measurable degree the psychotic disorder suffered by the plaintiff. By November 2004 his symptoms were well developed and the visits with Dr. Yokoyama after these accidents indicate the major concern in each case was an aggravation of the soft tissue injuries.

[386] Finally, the plaintiff was involved in an assault in or about July 2006 which I find exacerbated his emotional problems and led to deterioration in his mental health. Dr. Gopinath reported that following this assault the plaintiff was clearly more paranoid in general and in regard to the police in particular. Dr. Gopinath believed the plaintiff had been “badly shaken up” by this experience and developed symptoms of post traumatic stress disorder. He was having sleep difficulties, waking up with nightmares, and panic attacks. Dr. Gopinath’s December 16, 2008 report also features this assault as significant in the plaintiff’s clinical presentation and he acknowledged in his testimony that the plaintiff’s psychotic symptoms worsened after this event. It was also partly due to this assault that Mr. Polovnikoff moved his son and Ms. Lustado to Keremeos. They wanted to get away from the police and the other stressors in the plaintiff’s life.

[387] While this event is significant, it must be acknowledged that the plaintiff’s psychotic symptoms were well entrenched at this time and his inability to function normally in all aspects of his life had already been a reality for some time. Dr. Gopinath had observed severe psychotic symptoms as early as October 2005 when the plaintiff first came to him for treatment. Accordingly, I find the award should be reduced by a further 5% as a result of this tortious intervening event.

[388] In summary, the non-pecuniary award arising from the psychiatric illness suffered by the plaintiff in the amount of $220,000 must be reduced by a total of 69%. The reduced award is therefore $68,200. The total award for non-pecuniary damages is $118,200 ($50,000 plus $68,200).


Close to $900,000 Awarded for Mild Traumatic Brain Injury (MTBI)

October 1st, 2008

Following a trial that lasted over 6 weeks, reasons for judgement were released today awarding a Plaintiff close to $900,000 in damages as a result of a 2002 car crash that occurred in Vancouver, BC.

The Plaintiff, while stopped at a red light, was rear-ended by a Ford F150 pick up truck.  The force of the collision was found to be ‘sufficiently strong to cause the plaintiff to suffer bruising across his chest where the seat-belt had restrained him’.  The Plaintiff was able to drive away from the scene.

The Defendant did not admit fault but was found 100% at fault for this rear-end car crash.

The Plaintiff alleged various serious injuries including a Mild Traumatic Brain Injury (MTBI), Post Concussion Syndrome, Tinnitus, Dizziness, Loss of Balance and Depression.

The defence denied these injuries and insisted that the Plaintiff’s complaints were exaggerated.

The Plaintiff’s claim was largely accepted.  The court found that the Plaintiff ‘indeed suffered a mild traumatic brain injury which has resulted in a constellation of problems including a post concussion syndrome, a cognitive disorder, a major depressive disorder with anxiety, a pain disorder; and the significant exacerbation of his tinnitus.’

In the end the Court assessed damages as follows:

(i)

General damages – non-pecuniary

$200,000.00

(ii)

Past loss of income

$171,250.00

(iii)

Future loss of income earning capacity

$400,000.00

(iv)

Loss of opportunity

$10,000.00

(v)

Special damages

$26,955.75

(vi)

Costs of future care

$77,449.00

(vii)

Management and Tax Gross up

(to be determined)

This case is worth reviewing for anyone advancing an ICBC injury claim involving a mild traumatic brain injury.  Madam Justice Boyd engages in a thoughtful discussion of the competing medical evidence and provides articulate reasons why the Plaintiff’s physicians opinions were preferred over those of the Defence experts.

The court also makes interesting commentary on Waddell Signs starting at paragraph 34 of the reasons, particularly that:

[34] The defence also stressed the findings of Dr. Sovio, the orthopaedic surgeon retained by the defence, who examined Young in January 2006.  He concluded the plaintiff had exhibited significant exaggeration of his symptomology during several tests- thus exhibiting a number of positive Waddell signs.  As he put it, the plaintiff’s perception of his symptoms did not match the findings on physical examination.  The defence relies heavily on this opinion to support a finding the plaintiff is guilty of malingering or symptom exaggeration.

[35] I accept both Dr. Coen’s, and Dr. Rathbone’s evidence that the Waddell signs are notoriously unreliable for detecting malingering.  As Dr. Rathbone testified, the Waddell signs are “distinctly unreliable” in cases where the patient suffers depression.  Indeed the literature presented to Dr. Sovio at trial echoed that warning.  In cross-examination, Dr. Sovio adopted the extract from the SPINE journal (Exhibit 67, Tab 6, SPINE Volume 23, Number 21, pp. 2367-2371) to the effect that non organic signs cannot be interpreted in isolation.  He accepted the following summary at the outset of that article:

Behavioural responses to examination provide useful clinical information, but need to be interpreted with care and understanding.  Isolated signs should not be overinterpreted.  Multiple signs suggest that the patient does not have a straightforward physical problem, but that psychological factors also need to be considered.  …Behavioural signs should be understood as responses affected by fear in the context of recovery from injury and the development of chronic incapacity.  They offer only a psychological ‘yellow-flag’ and not a complete psychological assessment.  Behavioural signs are not on their own a test of credibility or faking.

Of course, as I will later note, in early 2006 the plaintiff was significantly depressed.  I have no doubt that any number of psychological factors were at play in the course of Dr. Sovio’s examination which may well have presented as the non-organic signs detected.  However, I do not conclude that the plaintiff was deliberately malingering or exaggerating his symptoms during that examination.


$1.065 Million Awarded to Brain Injured Plaintiff

May 21st, 2008

In highly anticipated reasons for judgement released today, following a 4 week trial in late 2007, Mr. Justice Maczko awarded a severely injured Plaintiff over $1,000,000 in compensation as a result of a motor vehicle accident.

The issues to be decided at trial were liability (who was at fault) and quantum (the value of the injuries) as a result of a significant accident which occurred in West Vancouver, BC in 2004.

The Plaintiff, who was 26 years old at the time, was standing in a roadway in West Vancouver when he was struck by a Hummer SUV driven by the Defendant. The Plaintiff sustained serious injuries including a traumatic brain injury, scalp wound, bilateral wrist and jaw fractures, the loss of several teeth, and soft tissue injuries to the neck and back. The traumatic brain injury was the most significant of these in terms of the Plaintiff’s employability and need for future medical care.

In the end the court found the Defendant entirely at fault an awarded over $1,000,000 in damages to the Plaintiff.

Addressing the issue of liability at paragraph of 127 of the judgement, the court held as follows:

[127] The Hummer travelled too quickly for the existing conditions. Mr. Samieian was negligent in moving his vehicle too quickly and travelling around the cube van when his view of his path was obscured. It is more likely that the accident arose from driver error than from a complete failure of all controls on the Hummer. It is unlikely that steering, braking and acceleration all malfunctioned at once, and without leaving anything detectable on inspection after the accident.

[128] As a result, the defendants are entirely responsible for the accident and for the losses it caused Mr. Dikey.

As is often the case in ICBC claims involving brain injuries, the court heard from numerous expert physicians including neurologists, a neuropsychologist, and a Physiatrist (physical medicine and rehabilitation specialist).

In the end the court made the following findings regarding the Plaintiff’s injuries:

[109] In summary, Mr. Dikey suffered many injuries as a result of the accident. The most significant injury in terms of functioning was the traumatic brain injury. The preponderance of evidence suggests that the injury was moderate when it occurred, but this is of little assistance in determining the long-term impact of the injury.

[110] Mr. Dikey’s continuing cognitive problems include significant limitations with memory, planning, organizing, attention, concentration, awareness, judgement, decision-making, language, reasoning, abstract thinking, mental flexibility, and calculations. He forgets to eat and take his medications regularly, and forgets appointments. He also suffers depression, isolation and limited social support and interactions. He has minimal initiation and motivation.

[111] Mr. Dikey suffered serious head and jaw injuries. Dr. Goldstein recommends investigating jaw reconstruction, likely requiring refracturing the jaw on both sides, and tooth replacement. Mr. Dikey and his family were undecided for several years about whether to pursue that treatment, owing to the risk of damage to a facial nerve. The evidence suggests that the risk is small and any damage that might occur would probably be temporary.

[112] Mr. Dikey suffered two broken wrists. His left wrist healed appropriately, but the right wrist did not. He does not have pain-free full range of motion of his right wrist owing to the way the fracture healed. The suggested surgery will give him a very good chance of increased range of motion without pain.

[113] Mr. Dikey suffered injury to his right knee. The recommended surgery for his right knee would have a good likelihood of relieving his right knee pain.

[114] Mr. Dikey has continuing pain from his soft tissue injury to his neck and back. His cuts and bruises have healed, but he has a visible scar on his forehead and in his scalp. His primary complaint is of headaches, which can be so bad at times that they lead to vomiting. They are his most frequent and significant cause of pain.

The court summarized the profound effects of the injuries as follows:

[142] Mr. Dikey’s life has changed profoundly as a consequence of the accident. He is unlikely to work, and has lost the self-esteem, enjoyment and income that is available from work. While he retains the ability to walk and talk and engage in the activities of daily living, his cognitive problems are such that he will require some assistance for the rest of his life. His most significant loss is the loss of cognitive abilities. He also suffers severe headaches. He has chronic pain in the neck. His pain and the lost function of his right wrist are likely to improve following surgery. He will likely have on-going problems with his neck and back.

In the end damages were assessed as follows:

$215,000 for non-pecuniary damages (pain and suffering)

$500,000 for lost future earning capacity

$350,000 for cost of future care

If you have questions about an ICBC claim or a brain injury claim that you would like to discuss with an ICBC claims lawyer feel free to contact Erik Magraken for a free consultation.


Pedestrian Struck in Cross-walk Awarded over $700,000

April 15th, 2008

After a trial that lasted over 20 days, A Plaintiff who was struck in a cross-walk in Whistler, BC was awarded $718,331 for his losses and injuries.

The accident was significant. The circumstances are canvassed at paragraph 2 of the judgement where it was held that “The Plaintiff was struck on his left side. He flew over the hood of the Defendant’s vehicle. His face smashed into the windshield. He then was thrown off the car landing on the pavement.

The Plaintiff suffered serious injuries including facial lacerations, a fractured nose, soft tissue injuries to the left knee, neck and back, a mild traumatic brain injury (also known as a concussion), dental and TMJ injuries, permanent facial scarring, depression, insomnia, fatigue, anxiety, panic attacks, chronic pain disorder and most significantly cognitive defecits due to his injuries.

As is often the case in ICBC claims involving chronic pain and head injury, the court had to deal with a mountain of medical expert witness testimony both for the Plaintiff and for the Defence.

In addition to obtaining opposing medical evidence, ICBC hired investigators to video the Plaintiff surreptitiously. As stated in my last blog, video surveillance is a common ICBC lawyer defence tactic. While ICBC lawyers defending claims don’t hire private investigators in every case, a safe general rule is that the more serious a Plaintiff’s injuries, the more likely the chance that ICBC defence lawyers have hired a private investigator.

Mr. Justice Williamson made an interesting comment regarding surveillance at paragraph 114 of his judgement where he held that “(the occupational therapist hired by ICBC) testified that there was a sense that (the Plaintiff) did not trust her and that (the Plaintiff) considered her as somehow or other a spy for ICBC. I note that the Plaintiff’ concern that ICBC was spying on him was accurate. The corporation hired investigators to video the plaintiff surreptitiously.”

After weighing all the evidence, the trial judge found that the Plaintiff “suffers from chronic pain syndrome, depression and continuing cognitive defecits.”

$135,000 was awarded for pain and suffering. The other damages awarded were as follows:

$450,000 for Loss of Earning Capacity (commonly referred to as future wage loss)

$101,436 for Past Wage Loss

$31,895 for Cost of Future Care