BC Injury Law Hits 1000 Posts
With this brief post I’ve now hit 1000 updates. It’s taken just over three years (and far too many hours to count) to reach this milestone. Thank you to all my readers who have made this effort worthwhile.
ICBC Application to Move Lawsuit to Small Claims Denied, Court Finds it "Most Unsafe" to do so
As previously discussed, Section 15 of the Supreme Court Act allows the Court to transfer a lawsuit to the Provincial Court (Small Claims) in certain circumstances. Reasons for judgement were released today making it clear that such applications will rarely succeed in personal injury lawsuits.
In today’s case (Chang v. Wren) the Plaintiff was involved in a collision and sued for damages in Supreme Court. ICBC brought an application to move the case to Small Claims Court. Mr. Justice McEwan expressed “difficulty appreciating the motivation for the application” and dismissed it. In doing so the Court noted the well-known delay in getting trial dates for personal injury lawsuits in Provincial Court and further the difficulty in predicting that any given case would be worth less than $25,000 in a summary hearing. The following useful reasons were provided:
[3] I must say I find it unusual that a defendant brings such an application and had some difficulty appreciating the motivation for the application, given that the sanction in costs and in depriving the plaintiff of costs following a Supreme Court hearing would appear, in my view, to be more advantageous than the inevitable result of putting the matter down to Provincial Court, which would be a trial some eight months from when the trial is presently set in August of 2011 in Provincial Court, and a further proceeding by way of mandatory mediation in the Provincial Court.
[4] Whatever the merits of the respective parties’ positions as to the ultimate quantum of damages in this matter, it seems to me that the appropriate disposition is to see that it gets to trial before a competent tribunal as quickly as possible, and with as little procedural clutter as possible. That militates strongly in favour of the Supreme Court retaining this matter within its precincts, where there is a far greater likelihood, in the present circumstances, of a trial being held when it is scheduled, than there is in the Provincial Court.
[5] Circumstances might be different if it could be reliably assumed that Provincial Court would get the matter on quickly and be done with it faster than a Supreme Court, but while I am not prepared to go so far as to say I take judicial notice of anything in particular, I certainly will observe that I do not think I can behave on the basis of that particular fiction.
[6] What this application amounts to is a request to the court to summarily assess the evidence without hearing from any witnesses or without hearing from the plaintiff herself and determine that the matter would come in under $25,000. That would depend on the court reading the medical reports, essentially as the defence suggests I should, and I do not think it is something that a responsible court could really do.
[7] The plaintiff has chosen the Supreme Court of British Columbia. She will have been advised of the hazards of bringing a Small Claim jurisdiction matter in this court, but if she is determined to proceed and to have a determination in Supreme Court, I think it would have to be established very, very firmly that the damages she claims could not exceed $25,000, before the court would entertain such an application.
[8] Counsel have provided some case law reflecting what the test is for bringing the matter down to Provincial Court. My own view is that in a case where the liquidated damages could not possibly exceed $25,000, it might be clear, but in a case of this kind where the nuances of personal experience may have a significant bearing on the court’s assessment, perhaps even notwithstanding the medical evidence, it would be most unsafe to summarily decide that the case could not exceed the limits of the Small Claims jurisdiction.
[9] So on the basis that, first of all, it appears to be more efficient to continue in Supreme Court, and secondly, on the basis that it is, in any event, the plaintiff’s right to choose the forum, where there is any doubt about the appropriate jurisdiction, I think it better at this stage of this proceeding, post-discovery and a few months to trial, for the matter to remain in Supreme Court.
[10] I dismiss the application.
Wrongful Death Claims in BC and the Definition of "Spouse"
BC’s Family Compensation Act permits a defined class of family members to sue for damages following the wrongful death of a loved one. Spouses are part of this defined class. However, the definition of spouse goes beyond legally married individuals and also includes a person who “lived and cohabited with the deceased in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, for a period of at least 2 years ending no earlier than one year before the death“.
In last week’s case (James v. Gillis) Ms. James died in a motor vehicle collision in 2006. Mr. Cornet claimed he was the spouse of Ms. James and sought damages under the Family Compensation Act. ICBC took the position that he was not a spouse as defined by the Act and denied the claim. The matter went to trial and ultimately Madam Justice Watchuk agreed that Ms. Cornet was a “spouse” as defined by the FCA and was able to claim damages.
While the relevant discussion is far too lengthy to reproduce here, the Court extensively canvassed the law regarding the definiton of spouse and “marriage-like relationship” for the purpose of FCA claims at paragraphs 48-52 of the reasons for judgement and these are worth reviewing in full for anyone interested in this area of the law.
While on this topic I should again point out that a proposed amendment to the Family Compensation Act passed First Reading this Spring and will hopefully pass into law during the Legislature’s next session.
Late Defence Medical Report Inadmissible For Going Beyond Responsive Evidence Exception
When the New Rules of Court were introduced last year changes were made to the timelines to exchange expert reports. An 84 day deadline was set out in Rule 11-6(3) and a shorter 42 day deadline is set out in Rule 11-6(4) for “responding reports“. The first reasons for judgement that I’m aware of were released today by the BC Supreme Court, New Westminster Registry, addressing whether to admit a late report under the “responsive evidence” exception.
In today’s case (Crane v. Lee) the Plaintiff was injured in a 2005 motor vehicle collision. The Defendant ran a stop sign and admitted fault for the crash. The Plaintiff’s expert provided evidence that she suffered from soft tissue injuries and a herniated disc. The Defendant obtained an expert report which contradicted this finding and served this report less than 84 days before trial. The Defendant argued that the report was responsive and should be admitted. Mr. Justice Smith disagreed finding the report went beyond the narrow circumstances permitted in Rule 11-6(4). In excluding the report the Court provided the following reasons:
[21] At the opening of the trial, counsel for the plaintiff objected to and sought a ruling on the admissibility of a medical report that the defendant intended to rely upon. The report had not been served within the 84 days required by Rule 11-6 (3) of the Supreme Court Civil Rules, B.C. Reg. 168/2009. Counsel for the defendant relied upon rule 11-6 (4), which reads:
(4) Unless the court otherwise orders, if a party intends to tender an expert’s report at trial to respond to an expert witness whose report is served under subrule (3), the party must serve on every party of record, at least 42 days before the scheduled trial date,
(a) the responding report, and
(b) notice that the responding report is being served under this rule.
[22] Rule 11-6 (4) is intended to apply only to evidence that is truly responsive or in rebuttal to specific opinion evidence tendered by the opposite party. It is not intended to provide defendants with a general exemption from the basic time limit for serving expert reports that is set out in Rule 11-6 (3). Defendants who delay obtaining or serving expert evidence until after the plaintiff’s opinions have been received, then attempt to introduce all of their expert evidence as response, do so at their peril.
[23] In this case, I found that the report was not limited to true responsive evidence. It stated the author’s opinion on the nature and cause of the plaintiff’s injury?the central issue that both sides had to address from the outset?and was based upon a review of all the medical records, including some not referred to by Dr. Field in his report. As such, I considered it to be a free-standing medical opinion that ought to have been served pursuant to Rule 11-6 (3). I ruled the report inadmissible, with the result that there was no expert evidence before me to contradict Dr. Field’s opinion.
The Court accepted the evidence from the Plaintiff’s expert and in assessing non-pecuniary damages of $100,000 Mr. Justice Smith provided the following reasons:
[33] On review of all the evidence, I find that the accident for which the defendant has admitted liability caused soft tissue injuries to the plaintiff’s neck and upper back, which eventually resolved, and a herniated disc in the lower back that continues to cause pain and limitation. To the extent that the accident may have aggravated a pre-existing condition, I find that in the years immediately preceding the accident that condition was minimally symptomatic and there is no evidence that it would likely have become worse but for the accident. I accept the uncontradicted evidence of Dr. Field that the plaintiff’s current pain is likely to be permanent…
[45] The injury the plaintiff suffered has had a significant impact on her enjoyment of life. She has back pain on a daily basis, fluctuating according to her activities. She has lost what was formerly a very active lifestyle, giving up some activities that she formerly enjoyed, while continuing some others on a reduced level, accepting the trade-off of increased pain. The only medical evidence before me is that this condition is likely to be permanent. She also suffers severe anxiety while driving, particularly in situations similar to those that gave rise to the accident, although there is no evidence that this condition is necessarily permanent…
[49] Taking into account the effect of the plaintiff’s injuries on her lifestyle, the permanent nature of her pain and the psychological impact, including her driving anxiety, and considering the cases cited, I assess the plaintiff’s non-pecuniary damages at $100,000.
Credibility, Chronic Pain and the "Inherent Frailty" of Subjective Injury Claims
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing credibility and chronic pain claims based on subjective symptoms.
In this week’s claim (Sevinksi v. Vance) the Plaintiff was involved in a 2007 collision. Fault was admitted by the offending motorist focusing the claim on quantum. The Plaintiff sought fairly significant damages for disability due to a diagnosed chronic pain syndrome. Her injuries were largely subjective putting her credibility squarely at issue.
The Court expressed several concerns about the Plaintiff’s credibility noting that “the Plaintiff was not forthright in her evidence….There also appear to have been instances where the plaintiff was not forthright with the independent doctors she attended before” and lastly that “Aspects of (the plaintiff’s evidence) go well beyond a frailty of memory or a natural and excusable tendency to exaggerate or place given evidence in a positive light. Here the Plaintiff sought to mislead and crate a history that is not forthright“.
Despite all this Mr. Justice Voith did accept that the Plaintiff was injured in the collision and that she had ongoing limitations due to these injuries. Non-Pecuniary damages of $60,000 were assessed but this award was then reduced to $45,000 to take into account the plaintiff’s failure to mitigate. In assessing the Plaintiff’s credibility and damages the Court cited the well known passage from Mr. Justice McEachern in Butler v. Blaylok. (making this an opportune place to repeat my views that the assertion that a higher burden of proof exists in subjective injury claims is questionable.)
Mr. Justice Voith provided the following reasons:
[43] The difficulties with the plaintiff’s evidence are magnified because of the lack of objective evidence to support her injuries. McEachern, C.J.S.C., as he then was, identified the difficulties associated with assessing the extent of an injury without the benefit of objective evidence in each of Butler v. Blaylok Estate [1981] B.C.J. No. 31 (S.C.) at paras. 18-19 and Price v. Kostryba(1982), 70 B.C.L.R. 397 (S.C.) at para. 1-4.
[44] In Maslen v. Rubenstein (1993), 83 B.C.L.R. (2d) 131 (C.A.), Taylor J.A., at para. 15.1, said:
…there must be evidence of a “convincing” nature to overcome the improbability that pain will continue, in the absence of objective symptoms, well beyond the normal recovery period, but the plaintiff’s own evidence, if consistent with the surrounding circumstances, may nevertheless suffice for the purpose.
[45] More recently, in Eccleston v. Dresen, 2009 BCSC 332, at para. 66, Barrow J. accepted that claims supported by only subjective evidence should be viewed with a “skeptical eye”. He further confirmed, however, that such claims can be supported by the “convincing force of collateral evidence”.
[46] Two propositions emerge from these cases. First, there is an inherent level of frailty in the case of a plaintiff whose assertions of injury are not supported by any objective evidence or symptoms. Accordingly, it is appropriate, in such cases, to treat the evidence adduced by or on behalf of the plaintiff with caution. Second, either the evidence of the plaintiff or collateral corroborative evidence may be sufficient to persuade the Court of the plaintiff’s position.
[47] In this case the usual difficulties associated with the wholly subjective complaints of a plaintiff are compounded by the reliability problems which are associated with the evidence of Ms. Sevinski.
[48] Notwithstanding some misgivings, however, I have accepted aspects of Ms. Sevinski’s evidence and am satisfied that these portions of her evidence are supported by additional collateral evidence before me…
[86] Having said this, the medical evidence establishes, and I have accepted, that the plaintiff does struggle with chronic pain syndrome. Her ability to function normally and to engage in the breadth of activities which she would like to, as well as to interact with her children and Mr. Rambold in a pain-free way, is diminished….
[89] Based on these considerations I assess Ms. Sevinski’s non-pecuniary damages at $60,000. This is without taking the question of mitigation into account.
Driver Found Not Negligent For Collision With Moose
Reasons for judgement were released this week by the BC Supreme Court, Powell River Registry, dismissing a personal injury lawsuit following a 2006 collision.
In this week’s case (Racy v. Leask) the Plaintiff was a passenger in the Defendant’s vehicle. They were driving in a remote part of BC in the early evening when the vehicle encountered two moose on the roadway. The driver could not avoid collision resulting in injuries to the passenger. The passenger sued for damages although the claim was dismissed with Madame Justice Ker finding that the driver was not negligent. In reaching this conclusion the Court provided the following reasons:
[100] In this case, Ms. Leask acted immediately and appropriately upon first encountering the moose. Upon rounding the bend or corner in the road and seeing the moose, she gave a warning to Ms. Racy and at the same time applied the brakes to slow the vehicle as best she could without risking swerving in either direction. The two moose were not standing in the lane of travel but were moving toward it from the shoulder on the right hand side of the highway. The road conditions were dry. It was dark, and thus the moose were not half a mile away as Ms. Racy estimated. Rather, they were caught in the range of the headlights. There is no evidence as to what the range of the headlights on high beam for this model of vehicle is in this case. Ms. Leask was driving at least 10 km/h below the posted speed limit and was in all likelihood travelling at a speed of between 85 and 90 km/h. Ms. Leask reduced her speed to take into account the driving conditions including the fact that it was dark and the possibility of encountering wildlife.
[101] Significantly, and as in Pitt Enterprises and Fajardo, there is no evidence of what speed Ms. Leask would have to have been travelling at to have been able to stop her truck once the two moose became visible to her. Nor is there any evidence as to how far the defendant’s lights would have illuminated the highway in this case, something available in the case of Pitt Enterprises.
[102] In addition, the collision in this case did not occur in an area that could be described as a “moose alley” where it is more probable than not that moose will be found. While an accident may have occurred a year before in the same general area where a driver struck a moose, there is no other evidence to suggest this is an area where it is more probable than not that moose will be found. Ms. Leask was aware there might be wildlife in the area and had adjusted her speed accordingly and was wary of the possibility.
[103] As soon as Ms. Leask saw the moose she applied her brakes, but not with enough force to completely avoid colliding with the moose. I accept her evidence that the moose were fairly close to the vehicle, within the beam of the vehicle headlights, when she first encountered them and that they continued to move from the shoulder area to the vehicle’s lane of travel. Despite her efforts to avoid a collision by applying the brakes and maintaining a straight path, instead of swerving in either direction, the collision with the moose calf could not be avoided.
[104] Considering all the circumstances in this case, I conclude that the collision with the moose was not occasioned by any negligence or want of care on the part of Ms. Leask. I find that Ms. Leask was not driving at an excessive speed given the conditions. I also find that she was not negligent in failing to apply the vehicle brakes more forcefully or in failing to take any other evasive action such as pulling or swerving to the right or the left of her lane of travel. To have done so no doubt would have resulted in much graver consequences: a head on collision with either the mother moose or the calf. The plaintiff has failed to establish on a balance of probabilities the defendant was negligent in her response to seeing the moose on the highway. Accordingly, the plaintiff’s case fails and the action must be dismissed.
For more on this topic you can click here to access my archived posts dealing with single vehicle collisions and the inevitable accident defence.
Defence Expert's Evidence Rejected in Fibromyalgia Trial Based on "Advocacy"
As previously discussed, expert witnesses have a duty to be objective when giving their evidence and opinions in a BC Supreme Court trial. Rule 11-2 specifically sets out that “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.”
If experts fail to abide by this requirement they risk having their opinions rejected and further being criticized by the Court. Reasons for judgement were released last week by the BC Supreme Court, Vernon Registry, highlighting such a result.
In last week’s case (Marchand v. Pederson) the Plaintiff was involved in a 2007 motor vehicle collision. It was a rear-end collision and fault was admitted. The trial focused on the value of the Plaintiff’s claim.
The Court heard competing expert witnesses with the Plaintiff’s physiatrist (Dr. Apel) providing evidence that the collision caused various injuries including fibromyalgia.
This opinion was contradicted by a physiatrist retained by the Defendant (Dr. Nowak) who provided an opinion that the collision played a lesser role in the Plaintiff’s symptoms.
Dr. Nowak’s opinion was largely rejected with the court placing little weight on it. Non-pecuniary damages of $65,000 were awarded with the Court providing the following reasons in assessing damages and criticizing the defence expert:
[44] I find Dr. Nowak’s evidence to be problematic. He initially refuses to answer a question based on assumptions. It is clear that he is wrong in his reading of the intake report of Dr. Kinakin where he assumed that the pain was remaining constant. He is not accurate in the date of the last chiropractic treatment. I am of the view that Dr. Nowak is more of an advocate than an expert and I give very little weight to his evidence. I prefer the evidence of Dr. Apel when it comes to the diagnosis of fibromyalgia and the other conclusions reached by Dr. Apel. I am satisfied that the plaintiff may have improved somewhat from her last visit with Dr. Apel but I am satisfied that she continues to suffer a long term disability in respect to the fibromyalgia in the lower and upper back. I accept Ms. Phillips’ functional capacity evaluation and the limitations that the plaintiff has in respect to job opportunities because of her physical restrictions. I am also satisfied that the report of Dr. Wallace is fair and balanced and should be given a great deal of weight. I accept the plaintiff’s evidence that she stopped seeing her chiropractor, Dr. Kinakin, because she no longer had pain, but the chiropractor asked her to continue to see him because he was of the view that she had subluxation, which is poor posture so he was giving her treatment for that. She confirmed that she did not have any pain when she stopped seeing Dr. Kinakin. I accept her evidence….
[46] The function of non-pecuniary damages is to compensate the plaintiff for pain, suffering and loss of enjoyment of life and loss of amenities. Taking into account the relatively young age of the plaintiff (she is now 24 years old), the chronic nature of her injuries, the severity and duration of her pain, her disabilities, her emotional suffering and loss of her social and marital life, I am of the view that a proper award would be in the amount of $65,000.
Digital Vacation Photos and Metadata Production Ordered in ICBC Claim
Reasons for judgement were released today by the BC Supreme Court, Kelowna Registry, ordering production of a Plaintiff’s vacation photos in an ICBC injury lawsuit.
In today’s claim (Abougoush v. Sauve) the Plaintiff was injured in a 2007 motor vehicle collision. She alleged that her injuries disabled her for a period following this collision. During this period she travelled to Las Vegas, Palm Springs and the Caribbean. Photos were taken during these trips.
ICBC asked for the photos to be produced. The Plaintiff opposed arguing that any probative value in the photos was outweighed by Privacy concerns. Mr. Justice Rogers reviewed the photos and ultimately ordered them disclosed. The Court noted some difficulty reconciling the activities depicted in the photos with the “Plaintiff’s perception of what is a physical activity” based on her affidavit evidence. In ordering production of the digital photos and metadata Mr. Justice Rogers provided the following reasons:
[7] The photographs in question depict the plaintiff in various indoor and outdoor tropical settings. The plaintiff is depicted engaging in various activities including swimming, walking on a beach, going on a catamaran power boat, and visiting the Grand Canyon. The photographs clearly establish that the plaintiff did not spend the majority of her time curled up in her parent’s motorhome or resting poolside in a chaise lounge.
[8] I have referred to the pleadings, of course, in order to determine what matters are in question, but I have also referred to the plaintiff’s Affidavit #1, particularly the extracts set out above. The pleadings establish that the nature and extent of the plaintiff’s physical injuries, their effect on her enjoyment of life and their effect on her ability to participate in physical activity are matters in question. The photographs, when they are compared to the plaintiff’s affidavit evidence, are clearly relevant to the plaintiff’s perception of what is a physical activity. They are also relevant to the plaintiff’s tolerance for physical activity over a several week period.
[9] The photographs do not show the plaintiff in embarrassing or socially unacceptable situations. There is nothing about the photographs that would prevent their owner from, for example, posting them on a social networking site such as Facebook. I do not consider that the plaintiff’s demeanour or comportment in any of the photographs in the binder is such that they must be withheld from the defendants in order to preserve her privacy.
[10] In my opinion, the plaintiff’s pleadings and her affidavit evidence make the entire photographic record of her trips to Las Vegas and Palm Springs, and to the Caribbean, relevant to matters in question in this suit. All of the photographs in the binder provided to me must, therefore, be produced to the defendants.
[11] From what I can see of the camera that the plaintiff used to take many of these photographs (the camera can be seen in the reflection off the plaintiff’s sunglasses in some of her self-portraits), I believe it was a digital device. Digital cameras typically record the time and date when the photograph was taken. Some cameras capture the camera’s GPS co-ordinates as well. These data are known as metadata. These data are relevant to a matter in issue in this lawsuit because they may provide information from which the camera user’s tolerance for physical activity from day to day or over several days may be inferred. More particularly, the metadata may be relevant to the plaintiff’s ability to, for example, be active throughout a given day and then go walking on the beach in the evening, or it may be relevant to the plaintiff’s ability to spend an evening at a nightclub until some given hour, and then tolerate swimming the next morning. For that reason, the metadata associated with these photographs must also be produced to the defendants. That discovery may be accomplished by providing the defendants with digital copies of the photographs with the metadata preserved intact in those copies.
Welcome CKNW Listeners
Yesterday I had the pleasure of being briefly interviewed by Simi Sara who was filling in for Mike Smyth on CKNW to discuss the issue of fault following collisions with pedestrians. In short, when a pedestrian is struck motorists are not automatically at fault for the collision. The law requires both pedestrians and motorists to be reasonable when using the roadway in looking out for each other. The determination of fault in an injury lawsuit goes beyond looking at who had the right of way at the time of the accident.
For those of you who are visiting this site looking for more information following yesterday’s interview here is a link to my archived posts discussing fault for crashes involving jaywalkers and collisions involving pedestrians. Thanks for visiting.
Defendant Called During Plaintiff's Case in Traumatic Brain Injury Claim
In most BC Supreme Court lawsuits Plaintiff’s obtain evidence from the opposing side prior to trial by way of examination for discovery. Helpful portions of the discovery transcript are then read into the trial record in support of the Plaintiff’s claim. This is a controlled way to lead helpful evidence from a potentially damaging source.
There is, however, another way (albeit a riskier way) to use the Defendant in support of a Plaintiff’s claim. The Rules of Court allow one party to call an “adverse party” as part of their case in chief with delivery of a subpoena and witness fees. Rule 12-5(22) goes further and allows a Plaintiff to put the Defendant on the witness stand without notice if the Defendant is “in attendance at the trial“. Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, demonstrating this seldom used option in action.
In last week’s case (Rintoul v. Gabriele) the Plaintiff pedestrian was struck while in a cross-walk. The Plaintiff was born without upper limbs and after being struck “would have been unable to break her fall. In landing on the pavement, she hit her head and was briefly unconscious“.
Both liability and quantum (fault and value of the case) were at issue with the Defendant arguing the Plaintiff was to blame at least in part for the collision and that her on-going issues were not related to the brain trauma suffered in the collision. Mr. Justice Saunders disagreed and found the Defendant fully at fault for the impact. In the course of the trial the Plaintiff’s lawyer took advantage of Rule 12-5(22) and put the Defendant on the stand as their first witness. Damaging admissions were extracted which could not be remedied when the Defendant was re-called as a witness in the Defence case. In highlighting this interesting turn of events Mr. Justice Saunders provided the following reasons:
[7] The defendant, Ms. Gabriele, was in attendance on the first day of trial. She was called to the witness stand as the first witness for the plaintiff’s case, and cross-examined…
[14] Ms. Gabriele testified that she was turning her vehicle and had just started to enter the pedestrian crosswalk, going perhaps 10 or 15 km/h, when she felt a bump, and saw a flash of a face in her headlights. She stopped and got out, and ran to the front of her vehicle. The plaintiff was lying unconscious in the crosswalk.
[15] Ms. Gabriele was not challenged on her estimate of her speed.
[16] Ms. Gabriele was asked why she did not, after looking to the right, look to the left again before making her turn, to see if any of the pedestrians she had previously seen on the southeast corner were walking in the crosswalk. She replied, “I made a mistake”….
[24] There was a break in the trial of just over two months. During that time period, Ms. Gabriele walked through the accident scene with her counsel. After the trial resumed, Ms. Gabriele was called to give evidence as part of the defence case. Testifying in chief, she gave a slightly different version of events. She said in her evidence in chief that after looking at the southwest corner, she looked back in front of her, did not see anything, and then proceeded to make her turn.
[25] I do not accept this second version of events…
The Court went on to conclude that the Plaintiff did suffer from long term consequences as a result of her injuries and assessed global damages at just over $950,000 including non-pecuniary damages of $175,000. In addition to the above point of civil procedure, this case is worth reviewing in full for Mr. Justice Saunders lengthy discussion of the expert evidence called to address the issue of the Plaintiff’s traumatic brain injury.