Plaintiff's "Strong and Stubborn" Evidence Undermines Traumatic Brain Injury Claim

Reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry, addressing Plaintiff reliability in the context of an alleged traumatic brain injury claim.
In this week’s case (Harris v. Xu) the Plaintiff sustained various injured in a 2008 collision.  The Defendant admitted fault but disputed the nature and severity of the Plaintiff’s claimed injuries.  One of the injuries the Plaintiff allegedly sustained was a closed head injury.  Madam Justice Adair rejected this aspect of the Plaintiff’s claim noting some difficulties with the Plaintiff’s evidence regarding her injuries.  In dismissing the brain injury claim the Court provided the following reasons:
[83]         I do not doubt Ms. Harris’s honesty.  However, in giving her evidence, Ms. Harris demonstrated a strong and stubborn tendency to attribute almost every problem and every difficulty in her life to the accident.  In my view, this dictated caution before accepting Ms. Harris’s version of events, because her version is coloured by Ms. Harris’s firm belief that the accident – and the accident alone – is responsible for her current circumstances.  I have concluded that Ms. Harris is deeply frustrated by those circumstances and, in her own mind, is trying to impose some logic on past events.  This approach to her life is consistent with how her long-time friend Ms. Baird described Ms. Harris’s personality.  But what I needed from Ms. Harris were the facts, not Ms. Harris’s reconstruction of, and her conclusions about, what she believes happened, based on what, in hindsight, she now thinks makes sense.
[84]         The question of whether Ms. Harris suffered a closed head injury in the accident illustrates the problem.  At trial, Ms. Harris insisted that she was “knocked out cold.”  She gave this evidence, using those words, several times.  She communicated this to Dr. McCloskey when she saw him for the first time on April 17, 2008.  She later reported to Dr. McCloskey that she had been unconscious for minutes.  This was then further particularized as five minutes.  She gave a similar history to Dr. Coghlan, and it is the basis for his opinion concerning a closed head injury.  
[85]         However, there is no independent evidence to corroborate what Ms. Harris firmly believes.  If Ms. Harris was in fact “knocked out cold,” I do not know how Ms. Harris could possibly know that it was for five minutes.  Her memory (based on what she told Dr. McCloskey) seems to become more exaggerated with the passage of time.
[86]         At trial, Ms. Harris very strongly and firmly rejected what appeared in the Royal Columbian Hospital emergency clinical record, that she had reported no loss of consciousness.  However, in my view, her detailed evidence concerning events at the accident scene and of her activities after leaving the hospital (collecting luggage, renting a car, and so on) on the day of the accident, are inconsistent with her having sustained any significant head injury or concussion in the accident.  Ms. Harris’s activities are consistent with her accepting what she says she was told at the hospital – that she was “good to go” – and (apart from her painful ribs) agreeing with it.  Ms. Harris did not tell Dr. McCloskey about what she did after the accident, or that she drove with her mother back to Kelowna the following day.  As a result, he did not have all of the facts when he made his assessment concerning this particular injury.  Dr. Coghlan’s opinion concerning a closed head injury is based on Ms. Harris’s history of “significant post-traumatic amnesia,” but he did not have all of the facts either.  I cannot place much weight on either opinion on this point.  There might be an explanation for why Ms. Harris was able to carry on the way she did after the accident and the following day, despite sustaining a closed head injury or concussion.  But, because neither Dr. McCloskey nor Dr. Coghlan had all the facts, neither of them was in a position to provide one to me…
[100]     I am not persuaded that Ms. Harris suffered a mild closed head injury in the accident.  In my view, the evidence in this respect is too equivocal for me to reach a conclusion that Ms. Harris has proved, on a balance of probabilities, she suffered such an injury in the accident.  Even if she did, I accept Dr. Coghlan’s opinion that whatever happened will not result in any long-term problems. 

bc injury law, Harris v. Xu, Madam Justice Adair, Reliability

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

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