Disputed Injury Diagnosis – Six of One, Half a Dozen of the Other…

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, making the common sense finding that the debate over diagnosis is not nearly as important in a personal injury lawsuit as whether symptoms are tied to the indicent in question.
In today’s case (Tan v. Mintzler) the Plaintiff was injured in a 2012 collision and experienced chronic cognitive symptoms.  At trial a debate arose about whether the symptoms were due to a head injury from the collision or secondary to chronic pain.  The Court found the Plaintiff did indeed suffer a head injury however noted the debate was largely insignificant as whatever the diagnosis the symptoms were linked to the trauma of the collision.  In basically saying ‘six of one, half a dozen of the other’ Mr. Justice Groves provided the following reasons:

[54]         For the plaintiff, Drs. Weiss, Cameron, and Kaushansky gave evidence that they believed Ms. Tan had suffered an MTBI.  Dr. Weiss recommended Ms. Tan be referred to a neurologist to confirm her suspicion, a recommendation that was followed with her visit to Dr. Cameron.

[55]         One of the most significant factors in diagnosing the MTBI was Ms. Tan’s evidence that she has no recall of the Accident after hearing the initial sound of the impact.  The next thing she remembers is the policeman, Cst. Upshall, knocking on her car window.  It was also Ms. Tan’s evidence that she has a spotty memory of the events which transpired after she returned home from the hospital that day.  It was also relevant to the MTBI diagnosis that Ms. Tan was diagnosed as having a concussion at the hospital the day after the Accident and by Dr. Fong for several months after the Accident.  The doctors also relied on an MRI brain scan which showed an abnormality in the plaintiff’s left parietal lobe which Dr. Cameron testified “probably occurred” at the time of the Accident.

[56]         As I have said, Dr. Dost strongly disagreed with the MTBI diagnosis and with the methodology of the other three doctors.

[57]         The reality is that there is little disagreement regarding the symptoms Ms. Tan experiences and the psychological difficulties she is struggling with.  The distinction between whether Ms. Tan’s psychological injuries and cognitive difficulties were caused by an MTBI or by Ms. Tan’s chronic pain and sleep disturbances is relevant only to the quantum of general damages and to Ms. Tan’s prognosis going forward.

In going on to assess non-pecuniary damages at $210,000 the Court provided the following reasons:

[73]         Ms. Tan is 56 years of age.  I have found that she suffered an MTBI during the accident and that she suffers from depression, anxiety, and mild PTSD.  She has no residual capacity to work and is unemployable due to the cognitive issues caused by the accident, including her mood swings, poor stamina, and memory issues.  I have also found that Ms. Tan suffers from chronic pain on her left hand side and in her face and jaw.  The prognoses for Ms. Tan’s physical and psychological conditions were generally guarded or poor with the exception of the pain in her face and jaw, which may lessen with treatment.  I do note that several experts indicated that Ms. Tan may see some improvement with psychological treatment.

[74]         I also accept that the plaintiff’s personal and intimate relationships have been affected.  She now socializes very little and her relationship with her husband has deteriorated as a result of the injuries caused by the accident.  She is fearful of travel by car and has not driven since the accident.

[75]         Finally, I accept that the plaintiff’s ability to maintain her home, including her ability to cook, garden, and do laundry, has been impaired as a result of the accident.  She has and will continue to suffer some loss of housekeeping capacity.  However, Ms. Tan continues to be able to do some light housekeeping and has been able to manage the family home while her husband has been away for extended periods with only minimal assistance from her daughter.  I have therefore chosen to address this head of loss as part of the plaintiff’s non-pecuniary damages, rather than as a separate claim; Johal v. Radek, 2016 BCSC 454 at paras. 59-60….

[89]         Having regard to the findings I made and the authorities reviewed, I consider that an award of $210,000 properly compensates Ms. Tan for her non-pecuniary losses.  This award also includes and recognizes that Ms. Tan has and will continue to suffer some diminution in her housekeeping capacity.

$175,000 Non-Pecuniary Assessment for Mild Traumatic Brain Injury and Chronic Pain

Adding to this site’s archived cases addressing damages for traumatic brain injury, reasons for judgement, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a mild traumatic brain injury and chronic pain.
In today’s case (Mayer v. Umabao) the Plaintiff was involved in a 2012 collision.  Liability was disputed but the Court found the Defendant fully at fault for the collision.
The Plaintiff sustained a mild traumatic brain injury and suffered from cognitive dysfunction.  The court found some of this dysfunction was due to the head injury and the rest due to chronic pain and other factors also linked to the crash.  In assessing non-pecuniary damages at $175,000 Madam Justice Young provided the following reasons:

[246]     I am satisfied on the basis of Dr. Chahal’s evidence and Dr. Krywaniuk’s evidence that Mr. Mayer did suffer some trauma to the left side of his head resulting in vestibular difficulties and symptoms of a mTBI. The trauma may have been caused by an acceleration/ deceleration trauma or it may have been caused by a blow to the left side of his head. I find most convincing Dr. Krywaniuk’s evidence. If there was damage to the left vestibular apparatus at the accident then it is likely that the adjacent area of the brain also suffered some trauma. The adjacent area of the brain is the area of the brain that moderates receptive language input where Mr. Mayer reports he has difficulty.

[247]     Having said that, however, I find that the brain injury was quite mild and only affected higher level speech and executive functioning or the ability to multitask. I come to this conclusion because I believe that if the mTBI symptoms were more than very mild, they would have been picked up by Dr. Koss who I find to be a very thorough and careful practitioner who has special training in the area of concussions. The symptoms of brain injury became apparent at work and when judging wine. The irritability, personality changes and memory loss are more likely caused by the long term effects of pain, sleeplessness, anxiety and Mr. Mayer’s somatoform disorder…

[253]     On balance of all of the evidence, I find that the vestibular injury, mTBI and somatoform disorder were caused by the accident and all of them are compensable…

[270]     There are many obvious similarities between these cases relied on by the plaintiffs and the Mayer case, however, I find that the cases relied on by Mr. Mayer’s counsel involve more significant brain injuries which were readily apparent because of the dramatic effect it had on the plaintiffs. Mr. Mayer’s brain injury was more subtle and went undetected for a considerable period of time because of his ability to function. Nonetheless he is a changed man and he has suffered a considerable loss in his enjoyment of life, family, friends, social interests and vocational interests. I conclude that Mr. Mayer is entitled to an award of non‑pecuniary damages in the amount of $175,000.

$3 Million "Diminished Capacity" Award For Brain Injured Teen Who Planned on Being Engineer

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages of $3 million dollars for a Plaintiff who sustained a brain injury in a vehicle collision.
In today’s case (Grassick v. Swansburg) the Plaintiff, who was 16 at the time, was a pedestrian and struck by a vehicle driven by the Defendant.  The Plaintiff suffered a moderate to severe brain injury which impacted his cognition and was expected to have permanent repercussions.
The Court found that the Plaintiff was an ambitious and hard working young man who, but for the brain injury, would have had a successful career in his anticipated profession as a civil engineer.  In assessing damages of $3 million for diminished earning capacity Madam Justice Loo provided the following reasons:
[197]     I do not accept the defendant’s argument that Stirling’s part-time employment as a server in a retirement home and his work during his co-op placements demonstrate that he has an ability to do well in the workplace. Quite the opposite. His work at Maple Reinders is a forecast of the difficulties he will have with maintaining employment.

[198]     While Stirling suffers only mild cognitive impairments, they are potent for him. His cognitive impairments directly impact his drive to excel. Perhaps if he was content to be less than average at everything he does, it would not matter so much. But he was not, and is not content to be being average.

[199]     Predicting what his future earning capacity would have been, but for the accident, is a complex task and the potential range of his earnings is broad. The plaintiff relies on the expert report of Darren W. Benning, economist, for the estimated lump sum present value of lifetime earnings of a British Columbia male civil engineer. The defendant did not require Mr. Benning to attend for cross-examination.

[200]     There is a range of possibilities for Stirling; from being, for lack of a better term, an average or 50th percentile engineer earning from May 1, 2016 when he is expected to graduate, through to age 65. Based on the present value of life-time earnings, $2,399,956. However, that figure – as do all of the figures provided by Mr. Benning – includes 24.2 percent reduction for the average labour market contingencies: unemployment, part-time work and part-year work. Without those contingencies, the figure for the 50th percentile engineer is $3,166,172.

[201]     Mr. Benning has also provided figures for engineering managers. With the labour market contingencies, the figures are $3,149,822 for the average engineering manager, and $3,868,882, and $4,880,954 for the 80th and 90th percentiles, respectively. Without the labour contingencies, the figures are $4,155,437, $5,104,065 and $6,439,253.

[202]     I conclude that there is a real and substantial possibility that Stirling would have worked for a number of years as an “average” engineer, before moving up the ranks of engineers. He would have worked full time, and his professional career would be an important part of his life.  He would have succeeded in becoming one of the higher paid engineers, a well above average engineer, or an upper management engineer.

[203]     Stirling may, like many professionals, work past the age of 65. On the other hand, he may, like other professionals, decide to retire early and do other things. However, given Stirling before the accident, and now, I do not think he is the kind of person who would choose to work part year or part time.

[204]     The plaintiff seeks damages for loss earning capacity in the sum of $3 million. I find this sum to be both reasonable to him and to the defendant. I award $3 million for loss of future earning capacity.

A Drunken Push Leads to Over $500,000 in Consequences

In a stark example of the profound consequences that can come from a modest confrontation, damages of $553,000 were ordered to be paid after an intoxicated groom to be pushed a man that was teasing him.
In today’s case (Robinson v. Bud’s Bar Inc) the Defendant, a groom to be who was “exotically dressed and wearing a ball and chain” following a bachelor party, was approached by the Plaintiff and teased about his upcoming marriage.  Both parties were intoxicated.  The Defendant responded by pushing the plaintiff who fell down, struck his head on the ground, and suffered a permanent brain injury.
The Court assessed damages at $790,000 but then reduced these by 30% for the Plaintiff’s contributory negligence and provocation.  In reaching this split of fault Mr. Justice Sigurdson provided the following reasons:

[140]     I find on the evidence that both men were intoxicated. I find that the plaintiff came up to the defendant Leelund Turner and teased him and persisted to do so despite being told to leave and being asked by his friend or friends to get going. I do not conclude that the defendant Leelund Turner held the plaintiff before pushing him as counsel suggested. I find the plaintiff had a reasonable opportunity to extricate himself from the situation. The plaintiff could easily have walked away but the plaintiff persisted to tease Leelund Turner. The push was sudden and careless but it followed the Leelund Turner’s plea to Mr. Robinson to leave him alone.

[141]     I find that in these particular circumstances the defendant Leelund Turner has satisfied me that the plaintiff was both contributorily negligent and provoked the negligent push. In these particular circumstances the concepts overlap to a degree. While I recognize that alcohol consumption is not itself negligence, here I find that the plaintiff was intoxicated to the extent that he persisted to be rude to the defendant Leelund Turner in close quarters despite being told to back away by Leelund Turner and being told by his friend that he should leave. I find that for Mr. Robinson to persist as he did to tease the defendant Leelund Turner at close quarters, he was partly at fault for the injury.

[142]     I think that the conduct of the plaintiff also amounted to provocation. While the plaintiff’s counsel says that the conduct does not meet the definition of provocation, I think in the circumstances of this case that it can easily be inferred from the evidence that the persistence of the plaintiff at close quarters that was rude and aggressive caused the defendant Leelund Turner to momentarily lose his power of self control and push the plaintiff abruptly, forcibly and carelessly away, resulting in the fall.

[143]     While I do not find that the defendant Leelund Turner has proven that had Mr. Robinson not been intoxicated, the drastic results of the fall would have been avoided, I think that Mr. Robinson must bear some responsibility because of his fault in approaching the defendant Leelund Turner and persistently teasing him at close quarters.

[144]     Accordingly although I find the defendant Leelund Turner liable, I find that both contributory negligence and provocation have been proven by the defendant Leelund Turner and that the damages incurred by the plaintiff as a result of the defendant’s negligence must be reduced by 30%.

$160,000 Non-Pecunairy Assessment for a "Complicated MTBI with Residual Symptoms"

Adding to this site’s archives addressing non-pecuniary assessments for traumatic brain injury, reasons for judgement were released today addressing a “complicated MTBI with residual symptoms“.
In today’s case (Matromonaco v. Moraal) the Plaintiff pedestrian was standing on a sidewalk waiting to cross a street when the Defendant ran a red light, lost control of his vehicle, drove onto the sidewalk and struck the Plaintiff.  The Defendant was soley responsible for the crash.  The Plaintiff suffered a variety of soft tissue injuries that fully healed.  She also suffered a mild brain injury which caused continuing symptoms at the time of trial.  In assessing non-pecuniary damages at $160,000 Mr. Justice Harvey provided the following reasons:

[210]     The Plaintiff suffered a number of physical injuries which I characterize as soft tissue injuries. All healed uneventfully within a reasonably short period of time after suitable treatment by way of physiotherapy and exercise.

[211]     Her most significant injury by far is the MTBI.

[212]     I accept that this injury has caused the Plaintiff mild cognitive impairment in processing, which in turn has impacted memory, mood concentration and focus. The result, not surprisingly, is that the Plaintiff exhibits signs of depression and social isolation.

[213]     Counsel for the Plaintiff referred me to a number of authorities involving plaintiffs with injuries similar to Ms. Mastromonaco, suggesting an appropriate range for non-pecuniary damages is $150,000 to $200,000.

[214]     Specifically, I have been referred to and considered Curtis v. MacFarlane, 2014 BCSC 1138; Watkins v. Dormuth, 2014 BCSC 543 [Watkins]; Danicek v. Alexander Holburn Beaudin & Lang, 2010 BCSC 1111;Harrington v. Sangha, 2011 BCSC 1035 [Harrington]; Sirna v. Smolinski, 2007 BCSC 967; and Dikey v. Samieian, 2008 BCSC 604 [Dikey].

[215]     No two cases are alike. At one end of the extreme is the decision in Dikey, where the plaintiff suffered profound cognitive deficit requiring that he have daily assistance with his living requirements for the rest of his life. He also suffered significant ongoing pain. Similar findings were made in Harrington.

[216]     In terms of similarities, the Plaintiff’s present condition, attributable to the aftereffects of the accident, are as follows: irritability, anxiety brought about by stress, poor memory, concentration, distractibility, fatigue and general low mood.

[217]     While not so severe as the 32-year-old plaintiff in Watkins, the case is similar, such that it provides a useful starting point for the analysis. In Watkins, Blok J. awarded general damages of $175,000.

[218]     Unlike the plaintiff in Watkins, the Plaintiff here is not experiencing ongoing headache, problems with balance or noise intolerance. I also take into account the difference in the plaintiff’s respective ages, as Ms. Watkins was 27 years old at the time of she was injured in a car accident. Accordingly, I assess the Plaintiff’s non-pecuniary loss at $160,000.

Non Pecuniary Damages Assessed in Mild and Moderate Brain Injury Claims

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for two separate traumatic brain injury claims.
In this week’s case (Afonina v. Jansson) the Defendant lost control of his vehicle and was involved in a single vehicle collision.  Two of his passengers suffered traumatic brain injuries, one mild and one moderate, which resulted in long term complications.
In assessing non-pecuniary damages of $195,000 for one Plaintiff’s permanent mild traumatic brain injury Mr. Justice Groves provided the following reasons:
[65]         Alla suffered broken ribs, a pneumothorax, and a number of soft tissue and similar related type injuries as a result of the accident.  She was hospitalized for a short period of time and it took a number of months to recover from the significant soft tissue injuries.  Dr. Travlos’ report reported that her emotional health continues fluctuate and this impacts her overall functioning.  Most notably, she suffered a mild traumatic brain injury which, as per Dr. Travlos’ report, will affect her for the rest of her life. ..

[70]         Having reviewed the authorities provided by counsel for the plaintiff, I find them to be within the range of appropriate orders.  The numerous cases cited suggest a range of general damages in the amount of $200,000-$225,000.  A number of the plaintiffs are within eight to ten years of Alla’s age; however, the bulk of them are people who are completely non-employable, and I find that Alla has some modest residual work ability. 

[71]         In regards to those cases provided, I find Burdett v. Eidse, 2011 BCCA 191 and Young v. Anderson, 2008 BCSC 1306 most persuasive.  In Burdett, the Court of Appeal upholds a non-pecuniary award of $200,000 where a 58 year old, formerly high functioning contractor suffered severe cognitive impairments including an inability to focus, sleep or multitask as a result of the mild traumatic brain injury caused by his motor vehicle accident caused mild traumatic brain injury.  In Young, the court awards $200,000 where a 51 year old experienced a constellation of symptoms including a mild traumatic brain injury which rendered him unable to continue in his chosen profession.

[72]         In addition to the pain and suffering from the broken ribs and soft tissue injuries, most of which had resolved within six months of the accident, I note that there are a number of significant long term damages which Alla will suffer as a result of the accident.  Her mild traumatic brain injury is significantly disabling.  She was, as noted, a trained engineer with university training in the area of finances and accounting.  She now finds herself a somewhat confused and disoriented woman, someone with an inability to multi-task to any great degree.  She has to put mechanisms in place to remind herself about her responsibilities.  Although she still has good judgment, she lacks an ability to focus and to organize.  These are matters which will plague her for the rest of her life and will make the task of working and the task of providing for one’s basic physical needs, somewhat of a challenge.  Although there is only modest physical manifestations of her injuries at this stage, the fact that her brain is not functioning as it used to is considerably disabling. 

[73]         In all of the circumstances having reviewed the case authorities provided, I fix non-pecuniary loss at $195,000. 

In assessing non-pecuniary damages at $300,000 for the second plaintiff who sustained a permanent moderate brain injury the Court provided the following reasons:

[149]     Rather, I find that much of the difficulty Alissa finds herself in is as a direct result of the accident.  At that time, she was rendered unconscious and suffered seizures.  Alissa has sustained irreversible and permanent damage as a result of the moderate traumatic brain injury she suffered in the accident.  She was young at the time of the accident and her life has been irrevocable altered in a negative way.  She will not recover from the difficulties she currently has.  They will plague her for her entire life.  They are, to a great degree, vast and all encompassing.  They affect everything she does.  Absent the injuries, I have concluded that Alissa would have successfully completed some post-secondary education in her chosen field and by 2014 would have been in the work force in a full-time capacity.  Although I do note that she does have some limited capacity to earn a modest amount of income, her former goals and chosen field of work are no longer open to her. 

[150]     In all these circumstances, the appropriate award for non-pecuniary damages is an award close to the rough upper limit.  I have concluded that $300,000 is an appropriate assessment for non-pecuniary damages. 

Brain Injury Claim Dismissal Upheld Following Credibility Concerns

Reasons for judgement were released today (Minhas v. Sartor) by the BC Court of Appeal upholding a trial judgement which rejected a claim for an alleged “severe and permanent brain injury” following concerns about the Plaintiff’s credibility.
In upholding the trial judgement the BC Court of Appeal provided the following reasons demonstrating how the negative credibility finding impacted the injury claim:
[18]        In the main, the assumptions relied upon by the doctors in reaching their opinions derive from Mr. Minhas’s account of himself. However, the judge found that Mr. Minhas was dishonest, that his evidence was not to be believed, and that the history he provided to the doctors was inaccurate. She said:
[111]    I am satisfied that all of Mr. Minhas’s testimony – with the possible exception of statements against interest – must be regarded with scepticism and given little or no weight. I am also satisfied that to the extent any expert’s opinions are based in whole or in part on information provided to the expert by Mr. Minhas, the opinions of that expert must be carefully scrutinized and are likely to be unsupported.
[112]    I am reminded of the statement made by Justice Southin, as she then was, in Le v. Milburn, [1987] B.C.J. 2690, as follows:
When a litigant practices to deceive, whether by deliberate falsehood or gross exaggeration, the court has much difficulty in disentangling the truth from the web of deceit and exaggeration. If, in the course of the disentangling of the web, the court casts aside as untrue something that was indeed true, the litigant has only himself or herself to blame. (para. 2).
[19]        The judge’s conclusion of Mr. Minhas’s veracity and reliability, with respect, was not surprising given the many instances of dishonesty on his part evident in the record. That evidence includes different versions given by Mr. Minhas at different times as to his education, different versions advanced by him of his work history in Alberta, his routine filing of false tax returns with Revenue Canada, an account made by him to an insurance adjuster (in a previous motor vehicle accident) that he had been working when his tax return did not reflect any employment, his admission that he was prepared to threaten physical harm to get what he wanted, his filing a false claim (or claims) with Workers’ Compensation, his travel outside the country while claiming he was entitled to disability benefits, his testimony he received a generous dowry from his wife’s family in contradiction to his wife’s evidence that her family did not pay a dowry, his preparation of a false resume, and his provision of false employment references. This is only a partial listing of the inaccuracies and untruths that riddle Mr. Minhas’s account of his pre-accident life and his personal history.
[20]        Also germane to the assessment of the existence of brain injury is evidence that Mr. Minhas was not the easy-going person before the trial he and others testified he was. The pre-accident evidence demonstrates incidents in which Mr. Minhas was threatening or aggressive to others…
[24]        There is no real challenge taken to any of the judge’s descriptions of the evidence, although there is explanation proffered. But it was up to the judge whether to accept the explanation, and it is not up to us. As this was a case highly dependent on credibility findings, it seems to me that if the claim of brain injury was to be won, it was to be won at trial. Without the finding of fact that Mr. Minhas had suffered a brain injury, it is simply premature to analyze the theories of causation.
[25]        I see no basis upon which we may interfere with the judge’s conclusion that Mr. Minhas did not prove he had sustained a brain injury in, or caused by, the accident. I would dismiss the appeal.

"Miscontruction of the Facts" Leads to Expert Opinion Rejection

Earlier this month I discussed the “Garbage In Garbage Out” Principle which basically means an expert opinion based on flawed facts is of little value to the Court.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry demonstrating that an opinion based on misconstrued facts is not helpful.
In today’s case (Gillespie v. Yellow Cab Company Ltd.) the Plaintiff was involved in two collisions and sustained a head injury.  He suffered from ongoing cognitive problems at the time of trial and damages of $85,000 were assessed for his non-pecuniary loss.
The Defendants argued that the Plaintiff did not sustain a head injury but instead suffered from a “metabolic syndrome” unrelated to the crash.  In rejecting this opinion the Court noted that the Defendant’s expert’s report was based on flawed facts and provided the following reasons:

202]     Dr. Eisen’s report described both accidents as being “of a mild nature”.

[203]     He did not view photographs of the plaintiff’s car in the first accident until after he presented his report. He was not aware his car was a total loss or that there was $4,900 damage to the taxi and $6,900 damage to the cube van. Although the doctor described the plaintiff’s windshield as “shattered” he did not know where he obtained that information.

[204]     Although the second accident was evidently quite minor, in my view, Dr. Eisen was clearly in error in describing the December 2009 accident this way. Although no questions were asked to clarify “mild” “moderate” or “severe” the evidence points to the first accident being in the range of two moderate collisions involving two impacts. Dr. Eisen did not view the photographs of the damage to the three vehicles nor understand the force of impact that led to Mr. Gillespie striking his head. The apparent damage to all three vehicles, the blow to his head, and the description of the impacts during the accident are inconsistent with Dr. Eisen’s conclusion that this was a mild impact collision.

[205]     In this regard I conclude that Dr. Eisen’s opinion was based on a clear misapprehension of the accident and the injury mechanism. This factor alone diminishes the weight of his report.

[206]     The evidence is uncontroversial that Mr. Gillespie’s head struck and shattered the windshield in spite of the airbag deploying.

[207]     I observed that Dr. David concluded that Mr. Gillespie’s inner ear dysfunction occurred because of direct impact, acoustic trauma from airbag deployment, and the explosive forces associated with airbag deployment.

[208]     Dr. Eisen formed his opinion that Mr. Gillespie’s ongoing cognitive symptoms following the accident are the product of metabolic syndrome based on his assumptions that Gillespie’s past and ongoing health included evidence that he was diabetic and had impaired glucose function, was obese, had untreated hypertension, and had impaired lipid metabolism. He described his condition of metabolic syndrome on the basis of those four factors…

[211]     Not only was the expert’s opinion based on a clear misapprehension of the accident and the initial injury mechanism but also, in the end, Dr. Eisen’s analysis of the underlying data was so flawed that his opinion that the plaintiff suffered from metabolic syndrome is markedly unreliable…

[217]     However, Dr. Eisen seems to have ignored that Dr. Levis, Fraser Health Concussion Clinic and Dr. Foti recorded the plaintiff’s complaints of short-term memory loss, reversing numbers, headaches, dizziness, and difficulty word-finding from December 21, 2009 until October 2011. Clearly, his cognitive problems persisted throughout the months after the accident without abatement; they did not re-emerge 11 -12 months later as assumed by Dr. Eisen. This error by Dr. Eisen relating to his ongoing cognitive impairment would likely have affected his opinion if he had relied on more accurate information.

[218]     Dr. Eisen’s misconstruction of the facts leading to his conclusion that the plaintiff did not suffer a head injury in December 2009 is a significant flaw in his opinion. Further, his opinion that Mr. Gillespie developed unrelated cognitive problems in 2011 because he was experiencing metabolic syndrome is not supported by the facts or his own opinion that some of the indications of Mr. Gillespie’s altered state of mind in the interval after the accident were indications of an accident related to mild traumatic brain injury.

[219]     … I treat his report with little to no weight…

$120,000 Non-Pecuniary Assessment for Chronic Soft Tissue and Post Concussive Injury

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, assessing damages and fault following a motor vehicle collision.
In today’s case (Hill v. Murray) the Plaintiff was involved in “a very bad car accident” in 2009.  The Defendant was found fully at fault.  The Plaintiff’s injuries included chronic soft tissue injury and post concussive symptoms.  In assessing non-pecuniary damages at $120,000 Mr. Justice Macaulay provided the following reasons:
196]     On balance, I prefer the evidence of the plaintiff’s doctors where it conflicts materially with that of the defendants’ doctors. I find that Ms. Hill received the following injuries as a result of the accident:
          1.       Soft tissue injuries to the left neck and shoulder, including AC joint, with cervicogenic headaches and some numbness and tingling down her left arm, now plateaued but not symptom free, particularly if she attempts to do too much;
          2.       Chronic intermittent pain;
          3.       Migraines (aural), under control;
          4.       Migraines unresolved and triggered differently than pre-accident migraines associated with pre-menstrual period;
          5.       PTSD (resolved by the time of trial);
          6.       Nightmares, transitory and resolved;
          7.       MTBI or post-concussion syndrome resulting in ongoing fatigue, memory, concentration, and balance problems;
          8.       Possible overlap of vestibular injury (trauma to utricle) causing or contributing to balance issues; and
          9.       Adjustment disorder, largely in remission.
I do not accept the sufficiency of the evidence respecting temporo-mandibular joint dysfunction.
[197]     It is now more than four years post-accident. Ms. Hill is unlikely to see further improvement. Instead, ongoing therapies will aim at pain management, assisting with balance issues and any further adaptions required respecting the effects of the MTBI or post-concussion syndrome. As she ages, the balance issues will likely elevate her risk of falling.
[198]     Ms. Hill’s injuries have significantly impacted her life and will continue to do so. She has lost the ability to participate in many of the sport and recreational activities that she enjoyed before the accident. Her physical interactions with the children are more limited than before. In social interactions, Ms. Hill is now easily overwhelmed or cannot recall the conversation thread. Her personality now appears different and less attractive to her family, friends and associates.
[199]     While Ms. Hill has been able to return to work at Butchart Gardens, she no longer takes the same degree of pleasure in her work and requires employer accommodations in order to do her job. It is unlikely that she will be able to fulfill the specific career aspirations that she had in mind before the accident and accordingly, she must adjust to that loss as well…
[212]     I reiterate that no two cases are truly alike when assessing non-pecuniary damages. I assess non-pecuniary damages at $120,000.
 

"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.

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

Disclaimer