As previously discussed, if you are insured with ICBC the amount of Part 7 Benefits that you are entitled to must be deducted from tort trial damages due to the operation of section 83 of BC’s Insurance (Vehicle) Act. This deduction can be made even if you don’t apply/receive your Part 7 benefits.
Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, discussing this deduction with respect to various damage awards made at trial. In this week’s case (Cikojevic v. Timm) the Plaintiff was awarded significant damages at trial after sustaining a permanent brain injury in a collision. This week’s supplemental reasons for judgement are worth reviewing for the Court’s discussion of deductibility of the following items:
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.
