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$170,000 Non-Pecs for MTBI, Impaired Driver Found "Grossly Negligent"

Written by admin on . Posted in ICBC Brain Injury Cases, ICBC Liability (fault) Cases, ICBC Shoulder Injury Cases, Uncategorized. 101 Comments on $170,000 Non-Pecs for MTBI, Impaired Driver Found "Grossly Negligent"

Reasons for judgement were released this week by the BC Supreme Court awarding a Plaintiff just over $415,000 in total damages as a result of serious injuries occurring in a motor vehicle collision.
In this week’s case (Eggleston v. Watson) the pedestrian Plaintiff was struck by a vehicle driven by the Defendant.  The Defendant had just left a pub and had a blood alcohol level well over the legal limit.  the Defendant was criminally convicted for driving with an unlawful blood alcohol limit.
As a result of this criminal conviction the Defendant was in breach of his ICBC insurance.  He defended the lawsuit personally and ICBC defended as a statutory third party.
The Defendant never saw the Plaintiff (who was walking in the Defendant’s lane of travel in the same direction) prior to hitting him.   Despite this, and despite the criminal conviction, both the Defendant and ICBC argued that the Plaintiff was mostly at fault for this incident.  Mr. Justice Davies disagreed and found that the defendant was at fault holding that “(his) ability to operate a motor vehicle at the time that he struck (the Plaintiff) was so impaired by his consumption  of alcohol that his actions in so doing were not only negligent, but grossly negligent“.
The Court went on to find that while the Plaintiff was in violation of s. 182 of the Motor Vehicle Act at the time of the crash for not walking on the roadway facing oncoming traffic, he was not partially to blame for this crash.  In reaching this conclusion Mr. Justice Davies reasoned as follows:

[70]        The question is whether Mr. Eggleston’s own conduct in placing himself at some risk that a severely impaired driver would not see him in time to apply his vehicle’s brakes or otherwise avoid a collision requires an apportionment of some liability to him for his injuries.

[71]        In all of the circumstances I find, as did Kirkpatrick J. in Laface, that Mr. Watson’s conduct was so unforeseeable, and the risk of injury from Mr. Eggleston’s failure to take more care so unlikely that “it is simply not appropriate” to find that Mr. Eggleston was contributorily negligent.

[72]        If I am wrong in that conclusion, based upon the analysis and conclusions of Esson J.A. in Giuliani, I would assess Mr. Eggleston’s fault in failing to avoid the collision to be no more than 5%.

The Court then awarded the Plaintiff $170,000 for his non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for his serious injuries which included a mild traumatic brain injury (MTBI).  In arriving at this figure the Court provided the following reasons:

[145]     After considering the totality of the evidence in this trial including the medical evidence adduced by the parties, I have concluded that Mr. Eggleston has proven that it is more likely than not that he suffered a mild traumatic brain injury in the collision of June 9, 2009.

[146]     I also find that the mild traumatic brain injury he suffered is the primary cause of the emotional, social and cognitive difficulties he has exhibited and endured over the more than three years between the date of the accident and the start of the trial, and which will continue to impact his future suffering and enjoyment of life…

[157]     In addition to the mild traumatic brain injury that I find has been the primary cause of Mr. Eggleston’s past social, emotional, and cognitive problems as well his as continuing problems with serious headaches, all of which will likely continue to impact his future, as well as the balance difficulties that I find were caused by the collision, I also find that the evidence establishes on a balance of probabilities that Mr. Watson’s negligence caused the following physical injuries which Mr. Eggleston has suffered and from some of which continues to suffer:

1)        Significant soft tissue injuries and bruising which were ongoing until at least January of 2007 when he was seen by Dr. Travlos.

2)        A traumatic umbilical hernia which was successfully operated upon on May 29, 2007.

3)        Injuries to his right shoulder including a torn biceps tendon, impingement syndrome and a rotator cuff tear which were operated on without success on December 5, 2007, and which in the opinion of Dr. Leith, require further surgery.

4)        Injuries to his lower back which aggravated existing back problems from which he had largely recovered prior to the collision. Those lower back injuries have impacted on his ability to drive the water truck in his work for Mr. Palfi and in respect of which I accept Dr. Leith’s opinion of June 2, 2009.

[158]     In addition to those specific physical injuries, I accept the evidence of Dr. Travlos, Dr. Cameron, Dr. Smith and Dr. Bishop that Mr. Eggleston has suffered and continues to suffer from psychological problems arising from his brain injuries and the pain associated with the physical injuries suffered in the collision. That pain was chronic until at least June of 2009 but was relieved to a large extent by narcotic and other medications thereafter until Mr. Eggleston determined to wean himself off Dilaudid. He now again has more pain and is also likely suffering the continuing effects of withdrawal. However, his present work history convinces me that within the neurological and cognitive limits that may still compromise his recovery, his future suffering from chronic pain will likely be capable of amelioration with psychological counselling and pain management assistance without narcotic intervention.

[159]     In determining the appropriate award to compensate Mr. Eggleston for the injuries suffered in the collision, I have considered all of the injuries suffered by him that were caused by Mr. Watson’s negligence, their devastating effect upon his ability to enjoy the active life involving horses and his relationship with friends and family surrounding that lifestyle that he formerly enjoyed.

[160]     I have also considered the pain Mr. Eggleston has endured and will likely continue to endure at least at some level, the compromise of his role as the leader of his family and the loss of his self-esteem, the length of time over which he has already suffered those losses, the prospect of the continuation of those losses into the future, albeit at a less intense level than in the past, and the fact that he will again have to undergo surgery in an attempt to repair his shoulder injuries.

[161]     In addition, I have considered the situation that has existed since March of 2008 when Mr. Eggleston returned to work, in that the work he does drains him of energy so that his life has become somewhat one-dimensional, centering upon work and recovery from its daily effects upon him to the continued detriment of his ability to enjoy life.

[162]     Finally, I have considered all of the authorities which have been provided to me by counsel and which offer some guidance as to the appropriate range of damages for injuries such as those suffered by Mr. Eggleston but which are of course dependent on their unique fact situations.

[163]     I have concluded that in the totality of the circumstances an award of non-pecuniary damages in the amount of $170,000 will appropriately compensate Mr. Eggleston for his pain and suffering and loss of enjoyment of life caused by Mr. Watson’s negligence.

There is Nothing "Mild" about Mild Traumatic Brain Injury

Written by admin on . Posted in ICBC Brain Injury Cases, Uncategorized. 2 Comments on There is Nothing "Mild" about Mild Traumatic Brain Injury


Traumatic Brain Injuries (TBI) are generally categorized as Mild, Moderate and Severe.  Despite what the name suggests, there is nothing necessarily “mild” about the effects of a mild traumatic brain injury (MTBI).  Reasons for judgement were released today by the BC Supreme Court, New Westminster registry, doing a great job explaining this.
In today’s case (Cikojevic v. Timm) the Plaintiff was injured in a 2002 crash.  She was 17 at the time.  She was a passenger in a truck that drove off the road and hit a tree.  The force of the collision “threw her head into the windshield hard enough to star it“.
All of the medical experts that examined the Plaintiff (both her own and those hired by ICBC) agreed she suffered a mild traumatic brain injury in this crash.  The consequences of this never fully resolved and the Court accepted she would struggle with life long difficulties.  Mr. Justice Brown awarded the Plaintiff over $1.4 million in total compensation including $1 million for her diminished earning capacity over her lifetime.   The case is worth reviewing in full for the Court’s discussion of this head of damage.  Prior to awarding damages Mr. Justice Brown provided the following useful quote about “mild” TBI:

[251]     Although experts sometimes disagree on whether to call an injury a mild concussion or a MTBI, either term is suitable.

[252]     “Mild” describes the severity of the organic injury, not its effect.

[253]     Although the organic severity of an injury usually associates with the severity of symptoms, sometimes symptoms can be severe while the organic injuries to the brain are mild.

[254]     Upwards of 85% of people suffering uncomplicated MTBI recover within six months. The recovery range lies between 85% and 95%, depending on the expert’s views and the literature they accept. I find that around 90% of people suffering uncomplicated MTBI recover according to scientific literature. However, as noted by Dr. Anton, such statistics are of no value when dealing with a patient who falls into the subset of people who never fully recover. Each case must be evaluated individually.

[255]     The cognitive and emotional effects of MTBI can severely disable and impact the injured person’s life.

You can click here to access my archived posts of other recent BC personal injury cases dealing with Traumatic Brain Injury.

$5.2 Million Dollar Assessment For Cost of Future Care for Cyclist Struck by Tractor-Trailer

Written by admin on . Posted in Cost of Future Care Cases, ICBC Brain Injury Cases, ICBC Liability (fault) Cases, Uncategorized.


In what is one of the biggest personal injury trial awards in Canadian History, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing losses and damages of over $5.5 million dollars as a result of a BC motor vehicle collision.
In today’s case (MacEachern v. Rennie) the Plaintiff suffered a “severe brain injury when her head struck a passing tractor-trailer…in Surrey, BC.  She was 27 years old at the time. “.  The court found that as a result of her serious injuries “she will now require care for the rest of her life. ”
The trial was hotly contested and went on for many months starting back in March of 2009 (You can click here to read my archived posts documenting some of the contested interlocutory trial applications) Ultimately the driver of the tractor trailer was found 80% responsible for the crash for not keeping a proper lookout.  The Plaintiff herself was found 20% at fault for “making the careless decision to proceed (around a pickup truck) when she did, instead of waiting for traffic to clear“.
Given the Plaintiff’s catastrophic injuries she was found to require care for the rest of her life.   $5,275,000 was awarded to take care of these expenses.  The Plaintiff was also awarded the maximum Canadian law allows for negligently caused personal injuries for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).
The parties to the lawsuit agreed that this upper limit was an appropriate award.  In reaching this assessment Mr. Justice Ehrcke made the following comments:

[673] Following the accident, the plaintiff had a Glasgow Coma Score of 3. She was intubated and taken by ambulance to Royal Columbian Hospital, where she required emergency surgery upon admission. Dr. Lee, a neurosurgeon, performed a craniotomy to treat her depressed skull fracture and inserted a monitor for her intracranial pressure.

[674] Ms. MacEachern remained unconscious for weeks. She underwent further surgeries. When she eventually opened her eyes, she still did not recognize her family for months. Her coma slowly lifted, but she became severely agitated as a result of her brain injury.

[675] On June 20, 2006, she was transferred to the specialized Neuropsychiatric Program at UBC Hospital for three months, where she received one-on-one care, 24 hours per day. Through the care she received and through adjustments in her medications, she became stabilized and her behaviour dramatically improved. On September 15, 2006, she was discharged back to Royal Columbian Hospital, with a primary diagnosis of Disinhibited Frontal Lobe Syndrome. Although she remained severely disabled, she was now mobile and was able to speak and communicate.

[676] At Royal Columbian Hospital, her behaviour again deteriorated, and at times she required restraints and had to be locked in a padded room.

[677] In January 2007, Ms. MacEachern was transferred to Bear Creek Lodge. The upstairs part of this facility caters to geriatric patients, while the downstairs unit is a locked ward for persons with brain injuries. Ms. MacEachern currently lives there with 15-16 other persons ranging in age from 20-60 years. She has her own room. This facility has provided her with security, medications, and the basic necessities of life, but all parties are in agreement that Bear Creek Lodge is not suitable as a permanent placement for Ms. MacEachern.

[678] To summarize:  as a result of the accident, the plaintiff suffered a depressed and comminuted skull fracture of the right front and parietal bones, shear hemorrhages from diffuse axonal injury, and focal hemorrhage to the left frontal and left temporal lobes of her brain. These injuries will have profound implications for the rest of her life. She has little short-term memory, and her behaviour is disinhibited. Mentally and socially, she presents much like a young child, yet in a mature woman’s body. She clearly will require a significant level of care for the rest of her life. She will never be able to work or earn a living….

[680] As mentioned above, in three 1978 cases (the “Trilogy”), Thornton v. School District No. 57 (Prince George) et al., [1978] 2 S.C.R. 267, Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, and Arnold v. Teno, [1978] 2 S.C.R. 287, the Supreme Court of Canada set a rough upper limit of $100,000 for non-pecuniary damages in cases of catastrophic injury.

[681] All parties in the present case agree that the plaintiff suffered the kind of catastrophic injury that should attract the rough upper limit set by the Supreme Court of Canada, adjusted for inflation. The evidence of Mr. Carson is that the present value of the rough upper limit, as of the beginning of this trial, is $324,800.

[682] There shall be an award for non-pecuniary damages in that amount.

Mild Traumatic Brain Injuries and the Recognition of Symptoms

Written by admin on . Posted in ICBC Brain Injury Cases, Uncategorized. 125 Comments on Mild Traumatic Brain Injuries and the Recognition of Symptoms


When people suffer from mild traumatic brain injuries (MTBI), it sometimes takes time for people to recognize the extent of the injury and the impact that the consequences of MTBI have on everyday life.  Changes can be subtle but the impact could be dramatic.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, considering such a case.
In today’s case (Burdett v. Eidse) the Plaintiff was involved in 2 serious motor vehicle accidents.  The first in Kelowna, the second in North Vancouver.  Fault was not admitted for the first but after trial the Court found the Defendant 100% liable for the first crash.  Fault was admitted by the Defendant for the second crash.  Madam Justice Loo was asked to determine the extent of the Plaintiff’s accident related injuries.
The Plaintiff suffered from an MTBI in the first crash.  As is sometimes seen with these types of injuries the Plaintiff did not appreciate the significant impact his MTBI had on his level of functioning.   The Plaintiff, who had a “bulldog” attitude took very little time off work and complained very little about the consequences of the car crash.
To those around the Plaintiff, however, the changes were noticeable.  Evidence was called that there were significant changes in the Plaintiff’s functioning after the car crash by those close to him.  Ultimately Madam Justice Loo of the BC Supreme Court accepted that the Plaintiff did suffer an MTBI in the collision and that he was competitively unemployable as a result.  The Court went on to award just over $1.1 Million in total damages including an award of $200,000 for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).
In reaching her conclusions Madam Justice Loo highlighted the difficulty the Plaintiff had in realizing the consequences of the car crash.  Some of the key findings were as follows:

[106] When asked when he became aware that he had a problem, Mr. Burdett said that when he first saw his counsel Mr. Burns, he mentioned he had an accident, and “kind of left it” at that. No one in his crew told him he was not doing what he was supposed to be doing on the job. Then “weird things” started “creeping into my life”. Friends started telling him he was forgetting things, he was having a hard time remembering numbers, he could no longer estimate the cost of a plan, and he was forgetting things at work. His crew told him to get joist hangers and he returned with something else. They started writing things down for him so that he would remember. He finally realized “there’s something really wrong here; I need help”. He returned to see Mr. Burns again.

[107] There is no evidence of when Mr. Burdett saw his counsel the first or second time, but this action was commenced and a statement of claim filed on April 4, 2007. The statement of defence was filed July 30, 2007.

[108] Despite what his family, friends, and co-workers saw and observed of Mr. Burdett, it was not until he saw Dr. Cameron that he recognized the extent of his injuries from the motor vehicle accident of June 26, 2005.

[109] At the time Mr. Burdett worked on the Losch and Summerland Motel projects, he thought he was doing fine. In retrospect, he was not. In retrospect he realized that he was cut out of the loop, did not stay on top of matters, and let work get out of control.

[110] Several times during the construction of the Losch projects, the architect voiced to him that the project was not running satisfactorily. Not only has an architect never said that to him, but Mr. Burdett also did not realize that the project was not running smoothly at the time.

[111] Mr. Burdett’s company is still owed $80,000 on the Losch project, but Mr. Burdett is unable to determine what the deficiencies are or what work has been left undone because he left everything to the job superintendent with whom he no longer has a relationship.

[112] The Summerland Motel project became an even bigger disaster because Mr. Burdett failed to properly manage the project. He did not write up a change order or extra work order and did everything with a wave of his hand. He never made sure that the owner had financing in place, with the result that Mr. Burdett financed much of the work with his own personal funds. He did not deal with the trades as he should have, with the result that trades walked off the job or never showed up. The job occurred at a time when carpenters and other trades were hard to get. Mr. Burdett misquoted parts of the work by leaving out necessary work, and did not know at the time that he was having difficulty estimating and working with numbers.

[188] There is no doubt that Mr. Burdett initially did not recognize the extent of his injuries:  Dr. John Pullyblank testified that it is not uncommon when a person suffers neurocognitive injuries. It takes that person some time to realize that his brain does not work the way it used to.

[189] I find that Mr. Burdett is neither a complainer nor a malingerer. At first, he was not aware of the extent of his cognitive difficulties and worked without even telling those with whom he worked closely that he had been in an accident. Common sense tells me that those who worked with him would not and did not tell him that something was wrong with him or his brain. This is supported by the evidence. Instead, those who worked with him avoided dealing with him and basically cut him out of the loop.

[190] Dr. Kates, Mr. Nemeth, Dr. Cameron, and Dr. Kaushanksy all spoke about Mr. Burdett’s bullish or bulldog attitude. Dr. Kaushansky put it best when he said that Mr. Burdett probably did not recognize he was injured in the accident (I pause to note that Mr. Burdett seemed genuinely surprised when the police officer’s report indicated that he had been injured). It is part of his bull dog approach: “This is a nothing accident. I’m out of here and on my way”. It explains why he took no time off work, why he told very few about the accident, and why he complained little, if at all…

[194] While Mr. Burdett clearly did not appreciate the extent of his injuries or that something was wrong with him, clearly those who were close to him—his family, friends, and workers—knew he was a different man long before Dr. Cameron’s diagnosis…

[198] I conclude on a consideration of all of the evidence that Mr. Burdett suffered soft tissue injuries and a concussion or an MTBI from the June 2005 accident. He had a pre-existing brain injury that made him more susceptible to more significant and prolonged symptoms, and he fell within that small percentage of individuals who do not recover. His soft tissue injuries were aggravated by the January 2006 accident. The overwhelming evidence is that Mr. Burdett suffered cognitive impairment immediately after the first accident, his condition will likely not improve, and he will suffer the same problems for the rest of his life. His anxiety and depression are related to the accident and the realization that not only is he no longer the same high functioning successful businessman that he once was, but also that his condition is permanent and he is not likely to recover.

[199] I conclude on all of the evidence that Mr. Burdett is no longer capable of working as a contractor and is competitively unemployable, or put at its best, is minimally employable.

It is difficult to extract sound bites from a case like this and I suggest that anyone interested in Brain Injury litigation in British Columbia review this judgement in full to see some of the types of issues that can arise in MTBI cases.

This judgement reveals 2 issues that are worth taking note of.  First that lay witnesses (friends, family co-workers) play a vital role in brain injury litigation as their evidence can be key towards establishing not just the diagnosis of injury but the severity of its impact.  Second this case shows that being stoic in the face of injury does nothing to reduce the value of an injury claim.  Here the Plaintiff’ ‘bulldog‘ attitude did not reduce the value of his claim and in all likelihood assisted the Court in making positive credibility findings.

Scope of Neuropsychological Evidence in BC Brain Injury Cases Discussed

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


Reasons for judgement were published today on the BC Supreme Court website dealing with the scope of permissible neuropsychological opinion evidence in BC Brain Injury Cases.
When ICBC or other BC brain injury cases go to trial a neuropsychologist is a common type of expert witness called by both Plaintiff and Defence Lawyers.  Neuropsychologists are extensively trained with respect to the cognitive and behavioural consequences of brain injuries and for this reason their evidence is often vital in the prosecution of brain injury claims.
In today’s case (Meghji v. Lee) the Plaintiff alleged she suffered a traumatic brain injury.  In support of her case the Plaintiff sought to have a neuropsychologist give opinion evidence with respect to the cognitive and behavioural sequelae of brain injuries and also with respect to whether the Plaintiff suffered from organic tissue to her brain.  The Defence lawyer objected claiming the latter opinion is outside of the scope of a neuropsycholgists permissible expert opinion.  Mr. Justice Johnston agreed with the defence objection and summarized and applied the law as follows:

[27] Counsel for the plaintiff wants Dr. Malcolm to be permitted to give an opinion on whether Ms. Meghji has had an injury to her brain. I looked briefly at Dr. Malcolm’s written reports, and in his first report, the one of February 1, 2007, Dr. Malcolm provides an overview of the place of psychometric testing in his overall task in this way. He says:

Once the test results are determined to reflect the person’s neuropsychological status with acceptable accuracy, the question remains as to whether clinically significant test results reflect organic damage, or stem from other factors, such as psychological causes. The neuropsychological process considers all of these possibilities in reaching diagnostic conclusions. The conclusions reached are based on a balance of probability, the strength of which is indicated where possible.

[28] At the risk of appearing to be overly semantic about this analysis, I take it that what counsel want Dr. Malcolm to be able to do is to testify by way of opinion about whether or not there has been some form of harm or damage to the tissues of the brain of Ms. Meghji as opposed to some form of harm or damage to the mind or emotions or personality of Ms. Meghji. Whether there is a distinction between the brain as an organ of the body, on the one hand, and the mind and personality of the person in whose body the brain is found, on the other, is a metaphysical question that I hope I never have to answer in a court of law. I am going to confine myself to what I think is in issue, and that is Dr. Malcolm’s qualifications as a neuropsychological and whether they permit him to provide the ready-made inference through opinion on whether there has been physical harm or damage to the brain as an organ of the body, and in my view, they do not.

[29] The statutory regime does not, in my view, go any further than to allow testing, assessment, diagnosis of, and therefore opinions on the abilities, aptitudes, interests, et cetera, or the behaviour, emotional, or mental disorders, that is, disorders of the mind. These conditions may arise with or without damage to the structure or tissues of the brain. They may be associated with or flow from injury or damage to the brain itself. They may arise from or flow from other causes. It does not necessarily follow that because Dr. Malcolm is permitted by statute to test, assess, or diagnose behavioural, emotional, or mental disorder that he must therefore be permitted to give in evidence his opinion that the cause of any of these conditions stems from an injury to the tissues or structures of the brain.

[30] In my view, Dr. Malcolm’s qualifications do not go so far as to permit that opinion.

[31] That does not say that Dr. Malcolm cannot give, in evidence, his opinion based upon the results of his testing, nor does it prevent Dr. Malcolm from giving an opinion on whether the test results as evaluated by him are of a nature, kind, or quality seen in people who have been diagnosed as having had organic brain injuries.

[32] In my view, the distinction drawn by Mr. Justice Clancy in Knight remains appropriate, and that is, Dr. Malcolm is qualified to give his opinion on the cognitive and behavioural sequelae of brain injuries and to indicate the relative likelihood of any cognitive and behavioural abnormalities being the consequence of a traumatic brain injury, but to paraphrase Mr. Justice Clancy, it does not permit him, that is, Dr. Malcolm, to diagnose physical injury and the manner in which it was incurred.

[33] It therefore follows that Dr. Malcolm will not be permitted to give his opinion on whether Ms. Meghji has had an injury to the tissues of her brain or, obviously, as to the cause of any such injury, but he will be permitted to testify as I have indicated.

Useful Insight into Cross-Examination in an ICBC Brain Injury Claim

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

When involved in an ICBC Injury Claim it is natural to want to know what the trial experience can be like. The best way to experience what the Court process is like is to actually attend a live trial and watch the evidence play out before you.  This is easy enough to do, particularly in larger centres around the Province, like in Vancouver or New Westminster, as an injury trial is occurring on almost any given day.
If you can’t do this you can read past court judgements to get a feel for the ways these claims can proceed at trial.  While this is not nearly as enlightening as witnessing a live trial some useful insight can still be gleaned.  If you are looking for a court judgement giving insight into the court process Reasons for judgement were released today reproducing extensive portions of a Plaintiff’s cross examination in an ICBC Brain Injury Claim that are worth reviewing in full.
In today’s case (Trevitt v. Tobin) the Plaintiff was injured in a 2004 Motorcycle Accident in Surrey, BC.    The Defendant pulled into the Plaintiff’s line of travel while making a left hand turn.  The Defendant ultimately conceded the issue of fault.
The trial focused on the injuries the Plaintiff had the the appropriate award for compensation.  The Plaintiff alleged that he suffered a traumatic brain injury and as a result would suffer a serious ongoing disability.  The Plaintiff sought over $1.5 million dollars in total damages.
The Plaintiff’s claim with respect to his injuries and the extent of disability was largely rejected with Mr. Justice McEwan finding that “the physical evidence does not account for a head injury or concussion“.  In the end the Court found that the Plaintiff suffered from “general bruising and shaking up in the accident” and following a setback in his career ambitions he suffered from “ongoing difficulties with headaches, tinnitus and some balance issues“.  The Court found that these issues were ongoing by the time of trial (some 5 years later).  The Plaintiff’s non-pecuniary loss (money for pain and suffering and loss of enjoyment of life) was valued at $60,000.
The Court heard from many very qualified physicians who gave opinion evidence with respect to the Plaintiff’s medical condition.  As is often the case in ICBC Injury Claims the court heard competing expert evidence from physicians called by the Plaintiff and the Defendant.  In determining which experts had the more useful evidence Mr. Justice McEwan pointed out that “what any given doctor ‘believes’ is only helpful to the extent taht the underlying information is plausible by the standards of the court“.
To this end, the The Plaintiff’s credibility and reliability were put squarely at issue in this trial.    The Defence lawyer argued that credibility was central to this case and engaged in an extensive cross examination relating to the Plaintiff’s credibility as a witness.  Portions of this cross examination are set out in paragraphs 15-18 and these give good insight into what cross-examination can be like in Injury Litigation.   Ultimately Mr. Justice McEwan held that the plaintiff gave some “unusual” and “inconsistent” evidence and that “he quite clearly cannot be relied upon for the accuracy of his observations about his condition“.

More on BC Injury Claims, Pre-Existing Conditions and Causation

Written by admin on . Posted in ICBC Brain Injury Cases, ICBC Spine Injury Cases, Uncategorized. 64 Comments on More on BC Injury Claims, Pre-Existing Conditions and Causation

(UPDATE:  The below decision was upheld by the BC Court of Appeal in Reasons for Judgement released on January 19, 2012)
Reasons for judgment were released today by the BC Supreme Court (JFC v. Ladolcetta) awarding a Plaintiff just over $500,000 in total damages as a result of a serious BC motor vehicle collision.
The Crash occurred in 2005 and was a near head-on collision for which the Defendant was found 100% at fault.  As a result of this crash the Plaintiff suffered various serious injuries including a compression fracture in the low back, a brain injury with post concussive problems and various cuts, bruises and soft tissue injuries.
The majority of the judgement dealt with the Plaintiff’s pre-existing psoriasis and psoriatic arthritis and the extent to which this was affected by the collision.
Mr. Justice Brown concluded that in addition to the above serious injuries the Plaintiff’s pre-existing conditions were made significantly worse by the car crash.   The Plaintiff’s non-pecuniary damages were assessed at $150,000 although this award was then reduced to $120,000 to account for the plaintiff’s ‘failure to mitigate’.
In summarizing the Plaintiff’s accident related injuries and their effect on his life Mr. Justice Brown found as follows:
[112] I find no sufficiently persuasive reason to doubt that the plaintiff sustained significant soft tissue neck, thoracic, lumber spine, right shoulder, ankle, right knee and other soft tissue injuries, as set out in paragraph 3 of these reasons, together with a compression fracture in the lumbar spine, and ongoing sequelae. The ultimate residual effect of these injuries absent the influence of the plaintiff’s psoriatic arthritis will have to wait on the full remediating effects of medication, unfortunately unknown to the date of trial. However, given the history and opinions in this case, I find that the evidence supports a finding that, more likely than not, he will continue to experience some residual symptoms that may be alleviated to a degree by further therapy….
In this case, a belief based on clinical experience that physical or psychological trauma can initiate or influence the course of both psoriasis and psoriatic arthritis, is one, based on the sufficiently weighty evidence heard in this case, widely held among dermatologists and rheumatologists in their respective fields…
[153] Given the evidence before me from rheumatologists and dermatologists, as well as Dr. O’Shaughnessy and other experts called, there are sound and substantial reasons for concluding that emotional trauma/stress, as well as physical trauma, may exacerbate both psoriasis and psoriatic arthritis…
I find the evidence, including the plaintiff’s, persuades that the plaintiff’s psoriasis and psoriatic arthritis worsened sufficiently soon after the accident…

[158] What is important here is that the evidence sufficiently establishes that the plaintiff was struggling when he returned to work in mid-February 2006 experiencing joint pain and limitation that he thought he needed to hide for the sake of job security. He saw some improvement in the summer, to be expected because of the sun’s benefits and the fact that he had most of June and July off work, presumably a time when he golfed and was in the sun more. As it is, I note that by early October 2006, he saw Dr. Hong, reporting a flare-up. I accept the plaintiff’s evidence that over-all he had experienced a change in the pattern of the disease from a slow gradual worsening over time between treatments to one of intense flares involving both skin and joints. The basic pattern and course of the disease had manifestly altered; I accept the plaintiff’s evidence that pre-accident he never had to abrade the skin for over two hours each day; that the plaques and other aspects of the disease had taken on an aggressive flaring pattern. This is not to overlook the fact that the worsening condition went largely untreated, which likely worsened his situation; but that points to questions of mitigation discussed below.

[159] Further, as also discussed below, I find that the evidence well establishes that accident-induced ongoing emotional trauma and persistent stress are the pre-dominant and most significant exacerbating factors of both the plaintiff’s psoriasis and psoriatic arthritis.

[160] I also reject the defence argument that the onset of psoriatic arthritis suffered by the plaintiff was too temporally removed from the accident to be related to it. There is sufficient accepted evidence to show that the plaintiff’s psoriatic arthritis flared within a few weeks of the accident and involved new areas and that to the date of trial he has not returned to his pre-accident level of functioning…

[216] It must be borne in mind that although the plaintiff in this case did suffer from a psoriatic arthritis condition pre-accident, it was very mild; and he was able to work in what were heavy labor intensive positions. Accepted evidence indicates that the plaintiff’s condition, both in relation to his psoriasis and psoriatic arthritis, were set upon a new and more aggressive course after the accident. This was not a short term exacerbation—which said, is not to over look the contribution that the plaintiff’s failure to seek or follow treatment advice played in his worsening condition psoriasis. Further, I find that the plaintiff suffered significant sequelae from his brain injury; and further, and very significantly, as earlier explained, that his other physiological and emotional accident-induced stressors amplified his symptoms, which gradually became worse over time. He has obviously suffered a serious depression and remains vulnerable in that regard. Moreover, he suffered significant soft tissue injuries, the ultimate prognosis for which is not certain. As Dr. Shahid explained, most people do make a good fairly uneventful recovery from compression fractures and are able to return to work; but a significant proportion of those people continue to suffer pain and disability and some of those are unable to return to labor intensive work.

[217] Further, the plaintiff has suffered a substantial loss of enjoyment of life, is now unable to participate in golf and other activities he enjoyed before the accident. With successful treatment, he may be able to return. As I view the evidence, his suffering, both physiological and physical, has been quite intense, albeit partly in relation to his failure to follow treatment recommendations.

[218]     Considering all of the evidence and the submissions of counsel, for non-pecuniary damages I award $150,000, and taking into account the plaintiff’s failure to mitigate before the date of trial, reduced to $120,000.

In addition to the above, today’s case contained an interesting discussion of causation when it comes to traumatic injury.  Often in ICBC Injury Claims different experts come to different conclusions as to the reasons for a Plaintiff’s disabilities.  In this case there was a debate whether many of the Plaintiff’s problems were due to a head injury, depression, chronic pain or perhaps other causes.  Mr. Justice Brown gave useful reasons holding that it is not necessary to pigeon-hole a Plaintiff’s injuries into specific categories to find that a compensable loss occurred.  Specifically he stated as follows:

I find the conclusion that most accords with the testimony and medical evidence that I have accepted is this: All of the plaintiff’s injuries and associated symptoms, including those from his mild concussive frontal lobe injury, his subclinical PTSD and its symptoms, the stress and anxiety he experienced related to pain from his soft tissue injuries, his incrementally worsening psoriasis and psoriatic arthritis, and his inability to work operated over time to produce a serious depression. These factors in varying degrees punctuated the plaintiff’s experiences from the time of the accident onwards, and produced the levels of psychological stress that produced the ongoing exacerbation of the plaintiff’s condition that plaintiff experts identified as the cause of the worsening of the plaintiff’s psoriasis and psoriatic arthritis. Given the extensive evidence heard, I find this consilient view of the evidence and medical opinions removes the need to reduce judicial findings to specific diagnostic categories; at the same time more accurately reflecting the actual subjective experiences of the plaintiff. These causative stressors were caused directly or indirectly by the accident, subject to consideration of mitigation arguments.

The above quote, particularly the bolded part, could prove persuasive in ICBC Injury Claims where experts agree that a Plaintiff suffers a deterioration in health and functioning following a colliison but cannot agree on the exact medical cause for the same.

$125,000 Non-Pecuniary Damges Awarded for MTBI, Chronic Pain and Depression

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

After what appears to be a hard fought trial, reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, awarding just over $536,000 in total damages as a result of injuries and loss as a result of a 2001 BC Car Crash.
In today’s case (Zhang v. Law) the Plaintiff was injured when she was a passenger in a vehicle that was T-boned on the driver’s side by another vehicle.  As a result of this collision she suffered various injuries including a Mild Traumatic Brain Injury (MTBI), Chronic Pain and Depression.
The Court heard a lot of evidence about the potential causes for the Plaintiff’s Depression.  The Defendants argued that the Plaintiff’s ongoing problems and depression was not caused by the accident, but rather by a series of unfortunate events that followed including a miscarriage and serious health problems suffered by her husband.
In navigating this evidence Mr. Justice Sewell did a good job discussing the law of ‘causation’ in BC personal injury claims.  In awarding $125,000 for the Plaintiff’s Non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) the Court concluded as follows about the Plaintiff’s injuries, their cause, and their effect on her life:
In summary I find that Ms. Zhang did experience a decline in her cognitive abilities after the accident.  I have already found that this decline was due in part to the MTBI.  I now turn to a consideration of the extent to which depression contribute to these difficulties and to the etiology of that depression…
I conclude that Ms. Zhang continues to suffer depressive symptoms, pain and fatigue.  I find that there has been cognitive impairment caused by the MTBI and the depressive symptoms.  I also find that the chance of any significant improvement in her condition in the future is remote….
In my view this case is governed by the principles enunciated in the Supreme Court of Canada in Athey v. Leonati [1996] 3 SCR 458.  On the issue of causation I have already found that the injuries suffered in the motor vehicle accident were a necessary cause of the depression.  To paraphrase paragraph 41 of Athey, I have found that it was necessary to have both the injuries from the accident and the non-tortious causes for the depression to occur.  As in Athey, I have concluded that it was the combination of the accident, the effect of Mr. Chen’s illness, the loss of the foetus and the termination of the second pregnancy which caused the major and continuing depression.  The depression and continuing depressive symptoms are, in my opinion, an indivisible injury.  The other sources of Ms. Zhang’s difficulties, soft tissue injury and MTBI, are of course entirely attributable to the accident…

The analysis of damage does not end with causation.  It is still necessary to consider whether there was some realistic chance that the depression would have occurred without the motor vehicle accident.  This does not go to the issue of causation but rather to the question of assessing damages which will restore Ms. Zhang to her original position.  If her original position included a realistic chance that she would have suffered a depression in any event, the principles of compensation  require some reduction in the damages awarded to avoid putting her in a better position than she would have been in had she not received compensation for the accident.  It goes without saying that “better” does not mean better in fact but better notionally because she will have received adequate monetary compensation for the damages caused by the defendants’ negligence.

In this case the analysis is further complicated.  Of the three causes of Ms. Zhang’s ongoing problems, pain, MTBI, and depression, only depression could be said to have been a realistic chance in the absence of the accident.  On the evidence before me I find that, although the accident was a necessary cause of the depression, there was never the less a realistic chance that Ms. Zhang would have suffered a major depression in any event.  That realistic chance must be taken into account in assessing damages…

Given my findings as to the extent of Ms. Zhang’s injuries from the accident a substantial award for non-pecuniary damages is appropriate. As I have already indicated, my task is to make an award of damages which, so far as money is able, will restore Ms. Zhang to her original position.  The evidence before me is that before the accident Ms. Zhang was an outgoing and intelligent person with a positive attitude to life.  She was able to combine long hours of work with numerous activities which gave her pleasure.  She enjoyed walking and socializing with friends.  She and her husband went to movies and went ballroom dancing.  She enjoyed music.  Ms. Zhang and Mr. Chen also had fulfilling marital relations.

All of the above activities have been profoundly affected by the injuries Ms. Zhang suffered in the accident.  Ms. Zhang is no longer outgoing but reclusive.  Most of her energy is devoted to working her shift at Safeway.  At the end of each shift the combination of pain and fatigue preclude her from engaging in social activities.  She can no longer tolerate music.   The couple no longer goes to movies or dancing.  There has been a significant decline in marital relations.  While some of these outcomes are undoubtedly related to Ms. Zhang’s ongoing depressive symptoms, they are largely the result of the other injuries suffered in the accident.  Taking into account the impact of these injuries on Ms. Zhang’s life while at the same time recognizing the realistic chance that Ms. Zhang would have had to cope with depression in any event, I award non-pecuniary damages of $125,000.

One other interesting part of this case is the Court’s discussion of the various experts called at trial.  Many expert physicians testified for the Plaintiff and the Defence with substantially differing views of the cause and extent of the Plaintiff’s injuries.  This is often the case in serious ICBC injury claims.

When experts are retained by ICBC in Injury Cases they are permitted to charge for their services. As I have previously posted, ‘independent’ medical examinations can be a lucrative trade for doctors.   When experts are retained to testify at trial, however, their duty is to the court to give fair and impartial evidence, not to advocate for the side that hired them.  Occasionally expert witnesses stray from this duty and give ‘partisan’ evidence.

This duty has been recognized in the common law and now the New BC Supreme Court Rules have been amended to require doctors to certify that they understand this duty, specifically Rule 11-2 of the New Rules states as follows:

Duty of expert witness

(1) In giving an opinion to the court, an expert appointed under this Part by one or more parties or by the court has a duty to assist the court and is not to be an advocate for any party.

Advice and certification

(2) If an expert is appointed under this Part by one or more parties or by the court, the  expert must, in any report he or she prepares under this Part, certify that he or she

(a) is aware of the duty referred to in subrule (1),

(b) has made the report in conformity with that duty, and

(c) will, if called on to give oral or written testimony, give that testimony in  conformity with that duty.

In today’s case one of the defence doctors, Dr. Tessler, was found to be ‘advocating for the defence’ when testifying.  Specifically the Court said as follows about his evidence at trial:

Dr. Tessler was somewhat dismissive of Ms. Zhang’s symptoms after the accident.  He described them as being the “mildest of the mild”.  I found this comment, as well as certain remarks he made during his evidence, as being indicative of an attitude on his part that Ms. Zhang’s complaints should not be taken too seriously.  I was particularly troubled by a comment made by Dr. Tessler in cross examination to the effect that Ms. Zhang’s symptoms may settle after litigation.  Apart from the fact that Dr. Tessler was not qualified as an expert in psychiatry or psychology, the comment was gratuitous.  On the whole I formed the impression was Dr. Tessler was straying into the area of advocating for the defence point of view in his evidence.   I do not think he was doing so deliberately but he did seem to show a lack of balance and perspective in his evidence.

Mild Traumatic Brain Injury and Chronic Pain Valued at $125,000

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Brain Injury Cases, ICBC Chronic Pain Cases, ICBC Headache Cases, Uncategorized. 50 Comments on Mild Traumatic Brain Injury and Chronic Pain Valued at $125,000

Reasons for judgment were released today by the BC Supreme Court dealing with compensation for serious injuries including Mild Traumatic Brain injury and Chronic Pain.
In today’s case (Slocombe v. Wowchuck) the Plaintiff was injured in a 2005 rear-end BC Car Crash.  Liability was admitted so the trial focused solely on quantum of damages.  The Plaintiff suffered serious injuries.   Total damages of over $940,000 were awarded by Madam Justice Morrison including an award of $125,000 for non-pecuniary damages.  In assessing the this head of damage the court summarized the Plaintiff’s injuries and their effect on his life as follows:

[197] This was an accident that has caused serious injuries to the plaintiff.  He suffered a mild traumatic brain injury that he appears to have recovered fully from at this point in time.  Dr. Kaushansky did testify that the plaintiff could be at risk if there were a further blow to his head.

[198] The injury to the plaintiff’s sternum no longer poses problems.  There has been a full recovery.

[199] The plaintiff still experiences headaches following the accident.  However, the serious headaches have been resolved, and the headaches the plaintiff now gets are certainly real, but they are not of the serious and disabling nature that they were initially.

[200] Mr. Slocombe still complains of some neck problems, but these complaints are periodic, and are not the cause of his serious complaints at this time.

[201] The second worst injury was to the thoracic spine area.  This pain continues, and has been referred to as a soft tissue type of injury.  Dr. Rothwell was of the opinion that the degenerative disc disease processes have been generated in the spine, including the thoracic spine area by the motor vehicle accident.  It is unlikely that there will be further recovery in this area.  I accept this opinion.

[202] The most serious area of injury is to the lumbosacral spine area.  This injury began at the instant of the double impact of the accident, and has continued to a painful degree to this day.  I conclude that the chronic pain has had a profound effect on the plaintiff’s life in all areas, and will continue to do so.  I accept the evidence of the plaintiff’s medical experts who find the motor vehicle accident was the cause of this injury.

[203] Mr. Slocombe had a pre-existing asymptomatic spondylolisthesis, and in my view, this became symptomatic as a result of the accident.  That is the only conclusion that can be reached, from all the evidence, on a balance of probabilities.

[204] There was medical evidence at trial that there are other areas of injury in the lumbar spine area in addition to the spondylolisthesis that have now been rendered symptomatic.

[205] When working at his carpentry, Mr. Slocombe is making mistakes that he was not making prior to the accident.  He is experiencing some cognitive difficulties which the doctors, including Dr. van Rijn and Dr. Mok as well as Dr. Kaushansky attribute to the pain and mood difficulties that he has been experiencing since the accident.  These difficulties are particularly apparent the longer Mr. Slocombe works.  They have been confirmed by testing and also by the evidence not only of the plaintiff but also of his father and Mr. Graham, one of his clients.  These cognitive difficulties are continuing…

[229] Tom Slocombe’s life has changed dramatically due to the accident.  He no longer has the high energy, endurance and health to perform the work that he loves, carpentry, or to take part in the social and sporting activities that gave him such pleasure.  He is in constant pain, and will probably be for the rest of his life.  He was an active, fun-loving 25 year old with a good job, good prospects, and a steady girlfriend who became his fiancée.  He had a vehicle that he was making sure he was paying for, and a life that included active sports, travel and social activities with friends and family; he was usually the initiator.

[230] He is no longer able to be independent financially, he has no vehicle, and he has the added difficulty of not being able to sit for any length of time.  His passion for carpentry has been lifelong.  It is apparent he will not be able to earn his living and continue with this line of work.

[231] His family and others testified to his change in disposition and mood, his inability to join their normal activities, and his difficulties in coping with his pain and sleeplessness.  His enjoyment of life has been dramatically altered.  There will be an award for non-pecuniary damages in the amount of $125,000.

More on Serious Psychological Injury Cases in BC

Written by admin on . Posted in ICBC Brain Injury Cases, ICBC Chronic Pain Cases, ICBC Psychological Injury Cases, Uncategorized. 62 Comments on More on Serious Psychological Injury Cases in BC

(Note: The below case was varied slightly on Appeal. Click here to access the BC Court of Appeal’s reasons)
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding just over $1.3 million in total damages as a result of serious and disabling psychological injuries.
While today’s case (Hussack v. School District No. 33) is not an ICBC claim or even a motor vehicle claim it is a case that is worth reviewing as it is only one of a handful of cases addressing serious psychological injuries that proceed to trial in any given year in BC.
In today’s case the Plaintiff sustained a concussion when struck in the head with a field hockey stick as he approached another player.  He was a student in grade 7 at the time and the game was being supervised by a PE teacher.  Madam Justice Boyd of the BC Supreme Court held that the School District was responsible for this event because the teacher permitted the Plaintiff to play before he “learned any of the basic skills or even how to play the game” and that doing so breached the standard of care that the school should have exercised.
The Plaintiff developed serious psychological issues following his concussion.  In awarding $125,000 for the Plaintiff’s non-pecuniary damages (pain and suffering) the court summarized the injuries as follows:

[194]     For much the same reasons as I noted earlier in addressing the causation issue, I am unable to isolate the symptoms directly related to the mild concussion injury from the somatic symptoms which followed.  As Dr. Foti noted, even in the immediate post-accident phase, it is difficult here to unravel the post-concussion symptoms from the somatic symptoms since they are essentially intertwined.  As I have chronicled earlier in these reasons, the immediate mild headache evolved and morphed over a brief period to include continuing headaches, head pain, photophobia, shaking and tremours, temperature control issues, and generalized joint pain.

[195]     As I have already noted earlier, I reject the notion that Devon’s somatic complaints all pre-dated the accident, and that regardless of the injuries suffered in the accident Devon would have developed the somatoform disorder from which he now suffers.  In my view he is entitled to full compensation for same.

[196]     While Devon returned to school following the accident, he was unable to cope in a regular Grade 8 setting and attempted to complete his studies first in a Hospital Homebound program and later by way of distance education.  Despite his obvious intellectual abilities he has never progressed beyond a Grade 9 or 10 schooling level.

[197]     While he initially ventured outside the home to meet with friends, he has gradually become more and more isolated and for the last several years has spent the majority of his time at home, primarily on the second floor of the house where a large den/games room has been set up to meet his needs.  As Dr. O’Shaughnessy describes in his report of June 12, 2008, Devon lives a lifestyle which is entirely antithetical to what one would hope for an individual managing chronic pain:

He basically has no structure or set pattern to his day.  He will never rise or go to bed at any set pattern and eating habits are variable day to day.  He engages in virtually no activity or exercise.  His only exercise appears to be going on the treadmill once every two weeks for anywhere from two to ten minutes duration.  He rarely leaves the home and claims that even walking up the block is too demanding.  At this point, his father quite literally waits on him 24 hours a day to the degree where his father does all the cooking, cleaning, shopping, etc and prepares (Devon’s) food and brings it to him.  Father and son indicate this pattern has been going on for some time as they feel (Devon’s) joints get too sore when he climbs down stairs to obtain food and/or his tremor limits him from carrying any liquids or pouring liquids etc.  …He has become extremely deconditioned which by itself could lead to some of the complaints of pain described…..

[198]     Since Devon’s situation has continued for approximately 10 years, the experts all agree Devon’s prognosis is very guarded and that his present situation “will not easily change”  (Dr. O’Shaughnessy report, Exhibit 20, Tab 15) unless there is intensive, prolonged intervention.  Dr. Nairne Stewart has opined that even with prolonged and intensive treatment, there is only a “minor hope that (Devon) might again become functional”.  Even assuming such intervention, Dr. Krywaniuk believes it is possible that following the removal of his present support structure (ie. the belief that he is indeed brain damaged and has suffered true physical injuries), Devon may become significantly depressed and perhaps even suicidal.

[199]     In these circumstances and relying upon previous case authorities where awards in the range of $75,000–$100,000 have been made in the case of individuals suffering somatoform disorders, the plaintiff submits an appropriate award would be $135,000, thus accounting for Devon’s youth and the fact that he effectively faces a lifelong, life-altering disability (Edwards v. Marsden; Samuel v. Levi; Yoshikawa).

[200]     I agree that in the circumstances of this case, considering that Devon has been substantially disabled since the age of 13, and now faces a bleak prognosis, struggling to achieve any measure of a mentally and physically healthy life, the appropriate award ought to exceed that made in Edwards, Samuel, or Yoshikawa.  In the circumstances, I award the sum of $125,000 for non pecuniary damages.

The reasons delivered by Madam Justice Boyd go on for over 250 paragraphs but are worth reading in their entirety for anyone interested in psychological injury cases in BC.  The Court deals extensively with the law of causation, the thin skull principle, the crumbling skull principle, foreseeability, intervening causative forces and other interesting and sometimes complex issues that often come up in psychological injury litigation.