Injury Claim Dismissed Following Collision That Was "Impossible" To Recall

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissing a personal injury claim involving an alleged hit and run.
In today’s case (Havens v. ICBC) the Plaintiff was involved in a 2010 motorcycle collision.  He sustained a brain injury.  The Plaintiff alleged that the collision was caused through the careless actions of an unidentified motorist operating a red truck.  The Court dismissed the claim finding it was not proven, most notably accepting medical evidence that the plaintiff’s recollection was medically ‘impossible‘ given the nature of his head injury.  In reaching this conclusion Mr. Justice Myers provided the following reasons:

[22]    ICBC obtained a report from a psychiatrist, Dr. Roy O’Shaughnessy, to address the likelihood of the plaintiff being able to recall the accident reliably after receiving the blow to the head.  He referred to the plaintiff’s memory as being “recovered memory”, which is memory that occurs much later after the fact.  Dr. O’Shaughnessy opined that Mr. Havens’ reported memory is not consistent with the physiology of memory in two ways.  The first was that:

… he states he has developed a memory of being struck in the head by lumber extending out the rear of a pick-up truck that he states was in the lane beside him and crossed into his lane. He then recalls seeing the pick-up truck passing by him in his lane before becoming unconscious. This is physiologically impossible. If he were to have received a blow to the helmet or head that would have rendered him unconscious, it would have occurred immediately with impact and not some time later. He would not have been able to recall seeing the red pick-up truck pass by him and enter into his lane as he believes he recalled. Invariably any blow to the head of such a nature to cause unconsciousness does so immediately post blow. Were he to have actually been struck in the head, he would not have recalled anything post impact and would certainly not have recalled seeing the red pick-up truck accelerate away from him.

[23]    The second is that when he was admitted to the hospital, Mr. Havens had an impaired Glasgow Coma Scale of 7 out of 15.  Given that, it would have been impossible for him to have laid down long-term memory after the blow to the head:

… If there is a disruption in the person’s abilities to attend, focus, or concentrate, they will not be able to lay down memory or recall it at a later date. Individuals who have suffered a head injury of this magnitude will invariably experience impairment in their capacity to attend or concentrate such that the memory will never have been laid down in the first place and it is not “recoverable” at a later date.

…

[50]    I accept the evidence of Dr. O’Shaughnessy that it would have been impossible for Mr. Havens to be able to recall the accident.

[51]    That would be sufficient to dismiss the action, but the other inconsistencies in Mr. Havens’ evidence and the evidence of the other witnesses confirm that conclusion.