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$210,000 Non-Pecuniary Assessment for Moderate-Severe Traumatic Brain Injury

Written by admin on . Posted in ICBC Brain Injury Cases.

Adding to this site’s database of ICBC cases dealing with non-pecuniary damages for traumatic brain injury, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with such an injury.
In this week’s case (Payne v. Miles) the Plaintiff was struck by the Defendant’s vehicle while walking in a marked crosswalk. Although fault was initially disputed the Defendant accepted blame for the crash on the second day of trial.  The Plaintiff suffered moderate to moderate-severe brain injury with ongoing complications which were expected to be permanent.  In assessing non-pecuniary damages at $210,000 Mr. Justice Voith provided the following reasons:
[44]         The medical experts agree that Ms. Payne suffered a moderate to moderate-severe brain injury. Her CT scans and MRI results depict changes that are consistent with an injury to the right temporal lobe.
[45]         The experts also state that the Accident occurred at a critical time in her development as she was preparing to make the transition from adolescence to independent adulthood (Dr. Anton); that it occurred at a time that negatively impacted her educational and vocational potential (Dr. Mok); and that an injury “in these formative years has a significant impact on [the plaintiff’s] ability to establish her own self-identity” (Dr. Foti)…
[79]         The Accident has fundamentally transformed and diminished Ms. Payne’s life. She lives a largely solitary existence. She has struggled with her sleep and with headaches as well as with serious depression and anxiety. Though these conditions have, in the main, either resolved or are in remission, she continues to have periods of low mood. She has periodic hallucinations. She sleeps with both the lights and television in her bedroom on as a means of dealing with these hallucinations. And she struggles with anger, irritability and periodic outbursts.
[80]         She has and will continue to have various forms of cognitive impairment. She has difficulties with memory, concentration and various forms of executive function. She has difficulty processing information. She is limited in her ability to read to periods of perhaps ten minutes. She struggles significantly with mental fatigue which, in turn, limits what she can achieve and which exacerbates her cognitive and emotional difficulties. She becomes overwhelmed and has meltdowns.
[81]         Her difficulties influence the most commonplace of activities. Though she drives without difficulty, she becomes anxious in new places. While she can use her computer and her cell phone without difficulty, relatively rudimentary computer programs have proven to be beyond her.
[82]         She has consistently failed or struggled in her academic endeavors. She has been constrained in her employment efforts to low or entry-level employment. These struggles and failures have influenced her confidence and self-image.
[83]         Her career and educational prospects are diminished. I will develop this evidence when I address Ms. Payne’s wage loss claim. At this point, I am focusing on the pleasure a person derives from school and from finding employment that is rewarding or fulfilling.
[84]         Her ability to live independently is impaired. She will have to be assisted on an ongoing basis with the various changes that life will inevitably bring. She will, for example, require assistance if she has children. In saying this I am addressing the loss of freedom and independence, so often taken for granted, that Ms. Payne will suffer.
[85]         Though her recovery has plateaued, she is at risk of further and ongoing difficulty. Dr. O’Shaughnessy opined that persons who have suffered from a major depression are at a 50% risk of suffering from a further period of depression. She is at greater risk of mood disorders and anxiety, of seizures, of bipolar disorders and of illnesses such as Alzheimer’s. She is more likely to get divorced. If she were to suffer a further brain injury or stroke, her “cognitive reserves” are depleted beyond what they would otherwise be. Simply put, she would be in a poorer position to respond and recover. Each of the foregoing conclusions arises directly from the opinions I was provided. None of these conclusions was challenged.
[86]          Dr. Anton opined that there is some risk, though relatively small, of further declines in her cognitive functioning. He also stated that, while some decline in function is associated with normal aging, Ms. Payne is at risk of a more rapid decline in such function.
[87]         All such risks or eventualities would further diminish Ms. Payne’s enjoyment of life…
[90]         In the result, and having regard to the foregoing authorities as well as the additional case law I was provided, I consider that an award of $210,000 fairly and reasonably compensates the plaintiff for her non-pecuniary loss.

bc injury law, Moderate Brain Injury, Moderate to Severe Brain Injury, Mr. Justice Voith, Payne v. Miles

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