$200,000 Non-Pecuniary Assessment for Chronic Post Concussion Syndrome

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a mild traumatic brain injury and post concussive problems caused by a collision.

In today’s case (Dornan v. Stephens) the Plaintiff was involved in a 2016 rear end collision.  The Defendants admitted fault.  The Plaintiff suffered a variety of injuries including a mild traumatic brain injury and post concussion syndrome which became chronic.

Mr. Justice Mayer assessed non-pecuniary damages at $200,000 for these injuries.  In arriving at this assessment the Court provided the following reasons:

[72]         In my view, the expert medical evidence and evidence of Mr. Dornan, his parents and Janna Kapp establishes on a balance of probabilities that the defendants’ negligence materially contributed the following injuries:

a)    Mild traumatic brain injury;

b)    Post-concussion syndrome, which has become chronic;

c)     Adjustment disorder with mixed depression and anxiety;

d)    Chronic post-traumatic headaches; and

e)    Soft tissue injuries to the neck, back and shoulders.   

…

[77]         Mr. Dornan was a young man at the time of the accident and has many years of life ahead of him. The evidence establishes that the Accident had a significant, immediate impact on Mr. Dornan’s life in that, since it occurred, he has been unable to work and carry out virtually all of the recreational activities that he had previously enjoyed. He had plans to launch his career as an adventure photographer which are no longer possible. As well, his social life has been impacted as a result of a number of his post-Accident symptoms and in particular his anxiety.  

[78]         Despite the severity of his symptoms post-Accident, the evidence establishes that some of Mr. Dornan’s symptoms have resolved or have significantly improved. For example, the records of Dr. Travlos indicate and I find, that Mr. Dornan’s dizziness levels have decreased, his energy levels and appetite are back to normal and that his shoulders are now pain free. In addition, a number of medical experts recorded, and I find, that there has been some improvement to Mr. Dornan’s principal on-going symptoms of anxiety and headaches.  ..

In a somewhat unusual turn the Court then reduced this assessment by 30% on the basis that the Plaintiff, had he not been injured in the collision, likely would have suffered further concussions from physical hobbies he enjoyed.  It is unknown if the Plaintiff plans on appealing this reduction as it is unusual to see a reduction based on a conclusion that a plaintiff would further injure themselves absent a tort.  In any event the Court provided the following reasons in arriving at a 30% deduction:

[130]      As confirmed by the Court of Appeal in Bouchard v. Brown Bros. Motor Lease Canada Ltd., 2011 BCSC 762 it is open to a trial judge to reduce non-pecuniary damages and damages awarded in respect of future loss, which for the latter category reflects the possibility that “ultimately” a plaintiff would in any event have experienced serious health problems. There is authority for reducing non-pecuniary damages to reflect a pre-existing condition. (see Bouchard, 2012 BCCA 331 at paras. 21,23 and 24; Zacharias v. Leys, 2005 BCCA 560, at paras. 25, 26)

[131]     In this case there is evidence establishing that absent the Accident it is likely that Mr. Dornan would have experienced a further concussion resulting in serious post-concussive symptoms. This risk of further concussion is apparent from the report of Dr. Kemble whose evidence was that even before the Accident, given Mr. Dornan’s history of concussions, he would have recommended that he cease vigorous sports related activities.  

[132]     Mr. Dornan had suffered approximately one concussion per year from the age of 16, which included, on average, one serious concussion resulting in a loss of consciousness every two years. His intention was to continue to engage in adventure photography, which I understood focussed on high-risk skiing, and his recreational pursuits, included hockey and downhill mountain biking. In my view, all of these activities involve a moderate to high degree of risk of falls and therefore a risk of a further head-impact resulting in concussion.  

[133]     Given the frequency of Mr. Dornan’s previous concussions and his recreational pursuits, which he had no intention of abandoning, I consider it likely that absent the Accident he would have sustained a further concussion within one to three years of sustaining the November 2015 concussion. In these circumstances, I consider it appropriate to apply a reduction of 30% to the awards for non-pecuniary damages, past loss of income, loss future earning capacity and future costs. Mr. Dornan remains entitled to 100% of the amount assessed for special damages.