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

Written by admin on . Posted in ICBC Brain Injury Cases, ICBC Chronic Pain Cases.

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

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

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.

"Analytically Weak" Expert Report Criticized in Brain Injury Prosecution

Written by admin on . Posted in ICBC Brain Injury Cases. 51 Comments on "Analytically Weak" Expert Report Criticized in Brain Injury Prosecution

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, criticizing an expert report characterizing it as ‘analytically weak’.
In the recent case (Anderson v. Kozniuk) the Plaintiff was involved in a pedestrian/vehicle collision.  Both parties were found partially at fault.  The Plaintiff suffered some orthopaedic injuries and also alleged the collision caused a traumatic brain injury.  The Court heard competing evidence regarding this and ultimately concluded that no brain injury occurred as a result of the crash.  In rejecting the Plaintiff’s evidence the Court provided the following critical comments about the expert evidence in support of the claim:
[128]     Dr. Ancill greatly diminished or completely ignored clinical records, such as the ambulance Crew Report and Royal Columbian Hospital clinical records. His explanation for doing so was the people filling those forms probably asked the wrong question of Mr. Anderson (“what happened?” instead of “what do you remember?”). Dr. Ancill does not know and did not enquire what questions were asked by the people who completed the clinical records. He simply assumed the wrong question was asked and ignored their observations. In my view, Dr. Ancill has exaggerated the importance of which question is asked, especially when interviewing a patient years after the Accident.
[129]     Dr. Ancill took all of Mr. Anderson’s and his mother’s description of Mr. Anderson’s changed behaviours at face value. Obviously, psychiatric assessment relies heavily on patient’s self-report. But it is expected that psychiatrists will exercise their skills and knowledge to assess the subject’s mood and behaviour in light of all circumstances, especially medically significant factors, in order to reach an accurate diagnosis. In my view, Dr. Ancill did not do that. I find that he summarily dismissed or greatly diminished the importance of objective evidence recorded close in time to the Accident and recorded by people trained to assess patients’ conditions for injury (the clinical records). This treatment of the clinical records is, in my view, highly problematic…
[131]     It is curious that Dr. Ancill suggested that even a “brief” loss of consciousness (in this case he assumed as little as 30 seconds) was medically significant. This was expressly contradicted by Drs. Siu, Prout and O’Shaughnessy who stated a “brief” period of loss of consciousness or disorientation that typically accompanies a mild traumatic brain injury would be about between 15 and 30 minutes. There is simply no evidence that Mr. Anderson was either unconscious or disorientated within the 30 minutes following the Accident, or at all.
[132]     Dr. Ancill also ignored or gave little relevance to factors that may very well have impacted his opinion, such as Mr. Anderson’s anxiety and his history of alcohol use.
[133]     Dr. Ancill provided a rebuttal report. Rather than respond to Dr. O’Shaughnessy’s criticisms of his methodology and conclusions, Dr. Ancill merely provides a clarification of his earlier report. In my view, the second report does not clarify the first report, and it is unhelpful. I place no weight on it…
[135]     Overall, I find Dr. Ancill’s evidence unreliable for all the reasons above. I also find his expert report analytically weak. Many conclusions are stated with little reasoning. His rebuttal report in particular is akin to an argument justifying his earlier conclusions rather than a response to Dr. O’Shaughnessy’s significant criticisms of his methodology and medical reliability. I place minimal weight on Dr. Ancill’s evidence.
 

$140,000 Non Pecuniary Assessment for Brain Injury With Lingering Post Concussive Symptoms

Written by admin on . Posted in ICBC Brain Injury Cases. 52 Comments on $140,000 Non Pecuniary Assessment for Brain Injury With Lingering Post Concussive Symptoms

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for a brain injury caused by a collision.
In today’s case (Curtis v. MacFarlane) the Plaintiff suffered a brain injury in a 2006 assault when he was struck with a baseball bat.  He was then involved in a 2009 collision where he sustained further head trauma.  The Defendant motorist tried to blame the Plaintiff’s deficits on the previous assault although the Court found the collision indeed caused a head injury with prolonged post concussive issues.  Prior to assessing damages Mr. Justice Crawford provided the following useful comments regarding head injury litigation:
[1]             The human brain is approximately three pounds of jelly containing more than 100 billion neurons and more than 100 trillion synapses. Our knowledge of its workings has vastly increased in the last 50 years, but man knows more of the universe than the workings of the human mind.
[2]             Only recently has the sporting world come to grips with the reality that splendid, strong athletes whose brain gets shaken up are in fact sustaining irreparable brain damage, revealed not only by the changes in the athlete’s performance and behaviour, but the ghastly findings of the autopsies upon the athlete’s death.
[3]             In the context of motor vehicle accident litigation, I have heard lawyers move from “emotional overlay” to describe the changed behaviour of their clients, to the realization that brain injury is unchartered territory, sometimes susceptible to a medical finding or organic damage that may show on an MRI, but more often diagnosed by behavioural changes of the client. The difficulty facing the finders of fact listening to learned medical professionals is pinpointing what got damaged, how that damage affects the working of the brain and the behaviour of the client, and how those behavioural, cognitive, and intellectual changes can be treated. Those difficulties simply reflect the fact that medical and scientific research is in a very early stage of finding out how the human brain works.
[4]             The dilemmas in the litigation context are many, particularly when there is testimony of memory loss and the plaintiff answers many questions with answers such as “I can’t remember” or “I can’t say when”…
In assessing non-pecuniary damages at $140,000  Mr. Justice Crawford provided the following reasons:
[728]     I am satisfied that Mr. Curtis had made a full recovery from the effects of the bat injury as clearly demonstrated by the witnesses who spoke of his daily life before  the car accident; his 2007 visit to Greece; and his training, competition and coaching in 2008. All of that evidence speaks to a fit, strong and healthy young man as of January 2009.
[729]     The subsequent concussion symptoms, ongoing depression, and anxiety led to a downward spiral through 2009 and 2010. He has had some improvement since seeing Dr. Ancill in December 2010 but the evidence is clear that the hardworking, energetic, calm, upbeat, and outgoing Mr. Curtis has become reclusive, dull, lethargic, moody, anxious and easily agitated.
[730]     I found a large amount of Mr. Curtis’ self-worth is bound up in his physical strength and Brazilian jiu-jitsu fighting competitions. That self-worth has been lost, but he maintains his love of his sport and his wish to continue to contribute to it.
[731]     Financially, however, it was not rewarding.
[732]     His cognitive defects or deficits; his loss of fighting abilities; and his decreased affection and libido all severely compromise his enjoyment of life.
[733]     I read the cases both sides submitted and no two cases are alike.
[734]     One stark factor in some of the plaintiff’s cases shows what I would call a fighting ability – i.e., a demonstrated wish by a young athletic person to try and fight to regain their previous abilities. The depression found by all experts is perhaps the explanation for Mr. Curtis’ failure to try to rebound, to bring his fighting qualities to restoring his life…
[736]     It is Mr. Curtis’s misfortune that he did not have that initial intellectual capital that has made it more difficult to see a forward path, an issue that Dr. Ancill will have to deal with directly, through psychological and psychiatric therapies and medications as he deems appropriate.
[737]     In the circumstances, I set general damages at $140,000.

Excessive Drug Use Linked To Collision Related Injuries, Non-Pecuniary Loss Assessed at $100,000

Written by admin on . Posted in ICBC Brain Injury Cases, ICBC Chronic Pain Cases.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing whether a Plaintiff’s drug abuse problems were caused by collision related injuries.
In today’s case (Fabretti v. Gill) the Plaintiff was 12 years old when involved in a serious head on collision which killed the occupants in the at fault vehicle.  The Plaintiff suffered a mild brain injury, a variety of soft tissue injuries and chronic, but not disabling, pain.  Subsequent to this the Plaintiff started abusing drugs which negatively impacted his life.  At trial the Court found that the Plaintiff’s substance abuse difficulties were linked to the collision related injuries.  In assessing non-pecuniary damages at $100,000 Madam Justice Kloegman provided the following reasons:
[77]         Dr. Lu stated that it was impossible to know whether or not the plaintiff would have developed an addiction in the absence of the 2005 Accident. Once again, the plaintiff does not have to prove to a scientific certainty that he would not have developed a drug addiction but for the Accident, only that it is more likely than not it was caused by the Accident. On the totality of the evidence, I find on a balance of probabilities that the plaintiff’s drug addiction was caused by the Accident.
[78]         ICBC argues that a causal connection between the Accident and the plaintiff’s addiction can be shown only if the plaintiff’s alleged reason for the drug use as a coping mechanism or reaction to the chaos that followed the Accident is found to be true. ICBC submits that this allegation can only hold true if the plaintiff and his family were found to be credible. I do find the evidence of the Fabrettis to be credible and consistent with the clinical records, so this submission fails.
[79]         ICBC points to evidence that the plaintiff might have started drugs before the Accident, and in response to peer pressure to which he would have been exposed in any event.
[80]         This proposition of ICBC was put to Dr. Lu during cross-examination. He explained that although prior use may increase risk, many people experiment with recreational drug use but only a small percentage go on to develop an addiction. By age 15, 60% of people living on the west coast in Canada have tried marihuana. More than 80% of people experiment with drugs, but less than 10% become regular users. Dr. Lu had no doubt that the Accident caused the plaintiff’s addiction.
[81]         Accordingly, I find that the plaintiff’s drug addiction was more likely than not caused by the Accident…
[91]         On a balance of probabilities, I find that the plaintiff has no permanent physical disability arising from his injuries. He has no lasting cognitive effects from the Accident. The impact of his chronic pain on his function does not amount to an impairment and should not disable him from employment, although his capacity to perform all forms of employment to the same degree as before the Accident may have been realistically affected. At present his marihuana consumption is a negative factor in his full functional recovery, and must be brought under control. From the evidence, the success of the plaintiff’s future is highly dependent on eradicating his excessive drug use. The plaintiff had the wherewithal to stop his cocaine and MDMI use in high school without assistance. I believe the plaintiff, with the help of his family and professional addiction treatment, has the fortitude to overcome his dependency on marihuana. Nonetheless, I am aware that like any other addict, he will always be at risk of relapse…
[97]         From the cases cited to me, I found the decisions of Houston v. Kine, 2010 BCSC 1289 and Parfitt v. Mayes et al, 2006 BCSC 125 to be the most helpful. In Parfitt, the court accepted that the plaintiff did not have a permanent disability. In Houston, the court found that the prognosis was favourable with appropriate treatment. I find the impact of the plaintiff’s injuries to be slightly less than both the plaintiffs in Parfittand Houston. Accordingly I award the plaintiff the sum of $100,000 for pain and suffering.
 

$1.8 Million Diminished Earning Capacity Award Made Following Disabling Severe Brain Injury

Written by admin on . Posted in ICBC Brain Injury Cases, ICBC Wage Loss.

Reasons for judgement were released today by the BC Supreme Court, Vernon Registry, tacking an interesting problem, the assessment of damages for a lifetime of disability for a Plaintiff who has yet to enter the workforce.
In today’s case (Hermanson v. Durkee) the Plaintiff was involved in a motor vehicle collision and sustained a “severe traumatic brain injury“.  The injury rendered the Plaintiff competitively unemployable.  He was 18 at the time and had just graduated high school and had yet to enter the workforce.   He “did not excel academically” and “it became apparently that post-secondary education was not likely or realistic“.
The Court had to grapple with what the Plaintiff’s lifetime earnings would have been.  The Plaintiff argued that he would have likely worked in the trades in Alberta’s lucrative oil industry and had lifetime earnings between $2.8 and $3.3 million.  The Defendant argued that his earnings would be more in line with the statistical average for high school graduates and suggested an earning capacity of just over $1 million.
Mr. Justice Betton found both positions were went “too far in their respective directions” and found a likely lifetime earning capacity of $1.8 million.  In arriving at this figure the Court provided the following reasons:
[106]     In my view, both positions go too far in their respective directions.
[107]     It is my conclusion that Mr. Hermanson would have likely pursued a trade in the higher earnings spectrum of those that the economists have concluded he could have done pre-accident.
[108]     In considering the evidence of the individual earnings levels as presented by witnesses for the plaintiff, significant caution must be exercised. Neither economist was asked specifically why they did not consider specific earnings levels of specific individuals, but in circumstances such as these, there is a strong argument to be made that statistics which, by necessity, blend high income earners, such as those presented by the plaintiff, with those who have not achieved such earnings is a more reasonable approach. Not all of the witnesses who were called had indicated that it was their intention to stay in their high earnings positions in Northern Alberta, and it seems logical that many, including possibly Mr. Hermanson had he gone to the oil industry at all, would feel the same. On the other hand, one must recognize that Mr. Hermanson is part of a social group, many of whom had elected, at least in their early years of employment, to pursue such jobs.
[109]     In my view, such evidence is merely a consideration in assessing the value of the lost capital asset. There is certainly a substantial possibility that Mr. Hermanson would have, at least in the short term, pursued such work. It is difficult to measure the likelihood of that and even more difficult to determine how long he might have stayed in such a position.
[110]     The defence argued that the plaintiff might have retired early like his mother. While that is a possibility, such a decision would logically flow from a relatively high earnings stream and/or prudent savings habits to enable such a decision. It is not reasonable for the defence to say that the plaintiff would have both been a low earner with limited motivation and retired early.
[111]     In my view, the appropriate assessment of the plaintiff’s pre-injury earnings capacity is $1,800,000.
 
 

$100,000 Non-Pecuniary Assessment for Lingering Post Concussive Symptoms

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

Adding to this site’s archived caselaw addressing non pecuniary damages for collision related brain injuries, reasons for judgement were released this week by the BC Supreme Court, Chilliwack Registry, addressing damages for lingering concussive issues.
In this week’s case (Fadai v. Cully) the Plaintiff was involved in a 2008 collision. He sustained soft tissue injuries along with a mild traumatic brain injury.  While many of his symptoms cleared prior to trial he continued to have issues with impulse control which was a consequence of his brain injury. In assessing non-pecuniary damages at $100,000 Mr. Justice Schultes provided the following reasons:
[202]     To summarize, I find that Mr. Fadai suffered soft tissue injuries to his head, neck, shoulder and left wrist as a result of the accident, including severe headaches, and that these injuries resolved by about a year after it.
[203]     I also find that he suffered a mild traumatic brain injury in the accident which led to difficulties with his short-term memory, which resolved by about two years after it. He also has some degree of impairment of his control over his impulses and anger as a result of the accident, which was ongoing at the time of trial. The extent of that impairment is captured by the incidents that were observed by his family and friends. Given the expert evidence that such problems resolve within two years if they are to resolve at all, I will proceed on the basis that the difficulty with self-regulation will be permanent…
209]     Obviously every case has its own unique factors that influence the amount awarded, but considering the helpful common themes of these authorities I would say that the physical injuries in the cases cited on behalf of Mr. Fadai were all more serious and enduring than his soft tissue injuries. This is also true of the cases cited on behalf of Mr. Cully, except for Gatzke, in which it appears that the duration and severity of the injuries were slightly lower. In making these comparisons, I have kept in mind that although his physical symptoms had largely resolved within a year or slightly more, Mr. Fadai’s headaches during at least the first six months were quite severe.
[210]     I would characterize the effects of the mild traumatic brain injuries in Gougen, McKinnon and Scoates as being somewhat more serious than Mr. Fadai’s, because I have found that in his case the component of short-term memory loss and concentration problems have largely resolved, and that his difficulty is now mainly with self-regulation.
[211]     Taking all of this into account, I conclude that an appropriate award for non-pecuniary damages is $100,000.

BC Court of Appeal Upholds "low" Non-Pecuniary Damage Award in Brain Injury Claim

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In what may be the low water mark in upheld assessed damages for a skull fracture and brain injury, the BC Court of Appeal upheld a jury’s damage award of $35,000.
In today’s case (Paskall v. Scheithauer) the Plaintiff was involved in a pedestrian/vehicle collision.  She sustained serious injuries including a left temporal skull fracture, a basal skull fracture and a traumatic brain injury.   The only expert evidence the jury heard from were independent medical examiners hired by the Plaintiff.  The Defendant conducted a defense medical examination but did not produce a report.  The Plaintiff did not call any of her treating physicians.  The Defendant argued that while the injuries were severe they recovered well, a conclusion the jury may have accepted.
In upholding the “low” assessed non-pecuniary damages the  BC Court of Appeal provided the following reasons:
[42]         The injuries sustained by the appellant were significant, but there is no schedule for an award of non-pecuniary damages based on the nature of the injuries sustained.  The function of damages in tort is to put the claimant into the position she would have been in had the tort not occurred.  Compensation for the trauma and pain of her injuries is required, but further compensation requires proof of ongoing adverse effects.  It is apparent that the jury, in its award of non-pecuniary damages, did not accept that the appellant has serious, ongoing adverse effects.
[43]         Although the award for non-pecuniary damages appears to be low, in my view, it was open to the jury to make it.  It reflects the jury’s consideration of the fact the appellant was injured seriously and its assessment that her injuries did not have a long-term serious effect.  I see no basis on which this Court could interfere with it.
In concurring reasons Madam Justice Saunders commented as follows:
[97]         My second comment is in respect to the award of non-pecuniary damages. Damages are a question of fact, as to which this court owes deference to the fact finder. The classic statement of our role as an appellate court found in Nance v. British Columbia Electric Railway Company Ltd., [1951] A.C. 601 at 613-14, [1951] 3 D.L.R. 705 (P.C.), has equal force today:
… Whether the assessment of damages be by a judge or a jury, the appellate court is not justified in substituting a figure of its own for that awarded below simply because it would have awarded a different figure if it had tried the case at first instance. Even if the tribunal of first instance was a judge sitting alone, then, before the appellate court can properly intervene, it must be satisfied either that the judge, in assessing the damages, applied a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account some relevant one); or, short of this, that the amount awarded is either so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage (Flint v. Lovell, [1935] 1 K.B. 354, approved by the House of Lords in Davies v. Powell Duffryn Associated Collieries, Ld., [1942] A.C. 601). The last named case further shows that when on a proper direction the quantum is ascertained by a jury, the disparity between the figure at which they have arrived and any figure at which they could properly have arrived must, to justify correction by a court of appeal, be even wider than when the figure has been assessed by a judge sitting alone. The figure must be wholly “out of all proportion” (per Lord Wright, Davies v. Powell Duffryn Associated Collieries, Ld., at 616).
                                                                                          [Emphasis added.]
[98]         While the award is very much at the low end of those amounts awarded for traumatic brain injury in many other cases, we cannot say, on the evidence the jury could have accepted, that the award is a “wholly erroneous estimate of her loss of amenities and enjoyment of life”.
[99]         Accordingly, I, too, would dispose of the appeal and cross appeal in the manner described by Mr. Justice Chiasson.

"Mild" Concussion Leads to $5.9 Million Judgement

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I can put it no better myself than the beginning of the judgement which reads “Occasionally a seemingly innocuous event can have tragic consequences“.  This passage is taken from reasons for judgement released today by the BC Supreme Court, Vancouver Registry, dealing with such consequences after a seemingly minor collision.
In today’s case (Wallman v. John Doe) the Plaintiff was involved in a rear end collision in 2006.    It was by all accounts a modest collision however it caused a concussive injury.   The Plaintiff went on to suffer from profound post concussive symptoms.  He was a doctor and these symptoms disabled him from his own profession.  Due to this lost income earning ability the assessed damages were high.  In assessing non-pecuniary damages at $200,000 Mr. Justice Weatherill provided the following reasons:
[465]     Dr. Smith opined that post-concussion syndrome is not a valid medical diagnosis.  Drs. Teal and Prout opined that it is not only a valid, but also a generally recognized diagnosis.  I accept the opinions of Drs. Teal and Prout and reject those of Dr. Smith.
[466]     In my view the plaintiff has established beyond the balance of probabilities that the dramatic and sudden onset of symptoms of headaches, dizziness, nausea, vomiting, physical and mental fatigue, confusion, sensitivity to noise and light, irritability, depression and anxiety and problems with vision, concentration, multi-tasking and speech and communication, are the result of him having suffered a MTBI (concussion) caused by the Accident.
[467]     Moreover, I find that the plaintiff continues to suffer from post-concussion syndrome as a direct result of his Accident-related concussion…
[470]     Prior to the Accident, the plaintiff was a confident, decisive, energetic individual with an excellent memory and a penchant for detail.  He was able to identify a problem facing him, define the options available for resolving the problem and choose from among them.  He loved challenge and loathed routine. He felt he could accomplish anything he wanted to.   He was the hardest-working emergency room physician at WHCC.  He loved and was passionate about his work.  He thrived on the stimulation and the trauma of the emergency room.  He was happy with his life and enjoyed helping others.
[471]     At the time of the Accident, the plaintiff was at the height of his medical career.  He had a very good reputation as an emergency room physician and was well respected in the Whistler community.  His reputation was important to him and he was proud of his accomplishments.  He had no plans to retire.
[472]     There is no question that the plaintiff’s life has changed profoundly as a result of the Accident.  His ability to function in everyday life has been significantly impaired.  He has considerable cognitive challenges that will likely affect him for the rest of his life.  He has lost his overall confidence.  He struggles to make decisions and initiate activities.  He is inattentive and displays poor judgment.  He has withdrawn socially.  His thresholds for mental and physical activities are limited to approximately 2 hours and 30 minutes, respectively, beyond which he becomes symptomatic.  He is no longer able to practice as an emergency room physician, a job he was passionate about and proud of.  His ability to interact with and enjoy his children has been impaired.  The medical experts are of the opinion that his recovery has likely plateaued.
[473]     As a result of the Accident, the plaintiff’s ability to work in the job he loved has been taken from him.  He has lost his sense of purpose in life.  He no longer feels that he is a contributing and productive member of society. The realization that he will be unable to return to his profession and that his life as it was prior to the Accident is gone has been devastating to him.
[474]     He wanted to engrain in his children the values of hard work and reputation in the community.  It is devastating to him that he cannot show his children that he works hard.
[475]     He has difficulty identifying problems facing him and defining his options.  He cannot seem to understand the problem and make a decision.  He does not trust his own judgment either medically or as it relates to his real estate investments.  He has trouble making day-to-day life decisions.  Although the plaintiff realizes that he must learn to allow others to help him, he has a great deal of difficulty accepting that fate…
[484]     Having considered the principles set out in Stapley, the ordeal that the plaintiff has gone through, the impact the Accident has had on the plaintiff’s life including the loss of a vibrant medical career that was very important to him, as well as  the cases relied upon by counsel, I find that an award of $200,000 for non-pecuniary damages is appropriate.

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

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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.