(Update: the Defendant’s Appeal of the below judgement was dismissed by the BC Court of Appeal on February 7, 2012)
Many of you may be aware of ICBC’s current “demystifying” campaign. There are many misunderstood topics related to injury lawsuits and one of the most prominent is that of mild traumatic brain injury (MTBI). Reasons for judgement were recently released by the BC Supreme Court, Chilliwack Registry, demystifying some of the arguments that are commonly raised in opposition to these claims.
In today’s case (Madill v. Sithivong) the Plaintiff was involved in a 2004 BC motor vehicle collision. The Plaintiff’s vehicle was struck on the passenger side by the Defendant’s vehicle. The issue of fault was admitted by the Defendant with the trial largely focussing on the value of the Plaintiff’s claim.
The collision was not significant, from a vehicle damage perspective, causing little over $1,700 in damage to the Plaintiff vehicle. Despite this the Plaintiff suffered a traumatic brain injury in the crash. ICBC argued that the injuries were not serious in part because the vehicle damage was modest, the Plaintiff had a ‘normal‘ Glasgow Coma Scale score of 15/15 noted on the ambulance crew report and that the hospital records relating to the treatment of the Plaintiff noted that he suffered from “No LOC (loss of consciousness)” and “zero amnesia“.
The Plaintiff called evidence from Dr. Hunt, a well respected neurosurgeon, who gave evidence that the above facts were not determinative of whether the Plaintiff suffered from serious consequences related to MTBI. Madam Justice Morrison was persuaded by Dr. Hunts’ evidence and accepted that the Plaintiff suffered from long term consequences as a result of an acquired brain injury. In rejecting the defence arguments Madam Justice Morrison provided the following ‘demystifying‘ reasons:
[112] Dr. Hunt said he tries to concentrate on the individual. He finds it helpful to see the notes of the family doctor, which deal with initial complaints, as do the notes of the ER doctor and responders. But he notes that those doctors are very busy, and things get overlooked. The same is true with an ambulance crew. Dr. Hunt stated there may be no loss of consciousness, but there may be a loss of awareness. An ambulance crew may give a 15 score for the Glasgow scale, indicating normal, but that could be misleading. He also noted that someone may be described as being in good health pre-accident, but that would not mean he would not have issues.
[113] Dr. Hunt disagreed that the best evidence of whether the plaintiff was an amnesiac, were notes at the hospital of “no LOC” and “zero amnesia”. It was the evidence of Dr. Hunt that no matter how many times you see those terms, that a patient is alert and wide awake, that sometimes in looking at crew reports, the necessary information is not there. A person does not need to strike his head for a concussion to have occurred. It need only have been a shaking.
[114] It is important to explain what a mild traumatic brain injury is, he stressed; Dr. Hunt referred to the many concussions in sports. He said it is important to look at what happened following the accident, what symptoms have occurred and are continuing to occur. Patients often deny a loss of consciousness or a loss of awareness, and it may be so fleeting that they may well be unaware. But if the head has been shaken or jarred enough, this will equal a concussion, which is the same as a mild traumatic brain injury. There may be no indication of bruises on the head, but it still could be a concussion. Dr. Hunt noted that something prevented the plaintiff from exiting the vehicle, so the Jaws of Life was used.
[115] Dr. Hunt noted that Dr. Tessler agreed that the plaintiff had a cerebral concussion in his initial report, but it was the opinion of Dr. Hunt that Dr. Tessler was not up to date on mild traumatic brain injuries.
[116] In his evidence, Dr. Hunt listed some of the symptoms that are compatible with a concussion having occurred: headaches, altered vision, balance difficulties, general fatigue, anxiety, memory disturbance, inability to manage stress. “A concussion is a mild traumatic brain injury. We no longer grade concussions.”
[117] I found Dr. Hunt to be an excellent witness. He was cautious, detailed, thoughtful, low key, thorough and utterly professional. In cross-examination, he gave a minor clinic on mild traumatic brain injuries. He was subjected to a rigorous, lengthy and skilful cross-examination, which only served to expand upon and magnify his report and opinions.
[118] He commented on the history of Mr. Madill prior to the accident, pointing to a number of things that may have caused excessive jarring or shaking of the head, even if there had been no symptoms of concussion. He believes that the first responders’ observations are not always accurate as to what actually happened. He said he himself may not have identified problems of concussion at the scene of the accident. Ninety percent of people with concussions have headaches. They have difficulty describing the headaches, and they are not the same as migraine or tension headaches.
[119] Dr. Hunt was further critical of Dr. Tessler in opining that Dr. Tessler had diluted his opinion, and that he had concerns with the report of Dr. Tessler. He felt that Dr. Tessler was still “in the dark ages” with regard to mild traumatic brain injuries, that he has not had the advantages that Dr. Hunt has had in working with sports brain injuries. “Concussion is cumulative.”
[120] I found the report and the evidence of Dr. Hunt persuasive. He came across as an advocate of a better understanding of concussions or mild traumatic brain injuries, not as an advocate on behalf of the plaintiff.
In addition to the above, two other topics were of interest in todays’ case. Evidence was presented by ICBC though private investigtors they hired who conducted video surveillance of the Plaintiff. The Court found that this evidence was of little value but prior to doing so Madam Justice Morrison made the following critical observations:
[74] Much of the videotaping occurred while both the plaintiff and the private investigator were moving on streets and highways, driving at the speed of other traffic. The investigators testified they drove with one hand on the wheel and the other hand operating the video camera, up at the side of their head, to allow them to view through the camera what they were taping. That continues to be their practice today, according to at least one of the investigators, which was interesting, considering from whom they receive their instructions, a corporation dedicated to road safety.
Lastly, this case is worth reviewing for the Court’s discussion of diminished earning capacity. In short the Plaintiff was self employed with his spouse. Despite his injuries he was able to continue working but his spouse took on greater responsibility following the collision. The Court recognized that the Plaintiff suffered from a diminisehd earning capacity and awarded $650,000 for this loss. Paragraphgs 193-210 of the judgement contain the Court’s discussion of this topic.
