Unreported reasons for judgement were recently provided to me confirming that, where a party receives substantially less at trial than they were seeking, that is not a reason in and of itself to deprive the successful party costs.
In the recent case (Fadai v. Cully) the Plaintiff was injured in a collision and sued for damages. At trial the Plaintiff was awarded damages but these “were substantially lower than he had claimed“. The trial judge initially awarded the Plaintiff only 75% as a result of this. The Court was asked to reconsider and after reviewing Loft v. Nat the Court reconsidered and awarded the Plaintiff full costs. In reaching this decision Mr. Justice Schultes provided the following reasons:  When I look at the decisions that I have been provided…it is clear that a difference between the amounts claimed and those awarded is not, in itself, a reason for depriving a successful party of their costs.  A proper allication of the law should lead Mr. Fadai receiving his costs of this trial, and not only the portion of them that I tentatively awarded him.
Adding to this site’s archived caselaw addressing non pecuniary damages for collision related brain injuries, reasons for judgement were released this week by the BC Supreme Court, Chilliwack Registry, addressing damages for lingering concussive issues.
In this week’s case (Fadai v. Cully) the Plaintiff was involved in a 2008 collision. He sustained soft tissue injuries along with a mild traumatic brain injury. While many of his symptoms cleared prior to trial he continued to have issues with impulse control which was a consequence of his brain injury. In assessing non-pecuniary damages at $100,000 Mr. Justice Schultes provided the following reasons:  To summarize, I find that Mr. Fadai suffered soft tissue injuries to his head, neck, shoulder and left wrist as a result of the accident, including severe headaches, and that these injuries resolved by about a year after it.  I also find that he suffered a mild traumatic brain injury in the accident which led to difficulties with his short-term memory, which resolved by about two years after it. He also has some degree of impairment of his control over his impulses and anger as a result of the accident, which was ongoing at the time of trial. The extent of that impairment is captured by the incidents that were observed by his family and friends. Given the expert evidence that such problems resolve within two years if they are to resolve at all, I will proceed on the basis that the difficulty with self-regulation will be permanent… 209] Obviously every case has its own unique factors that influence the amount awarded, but considering the helpful common themes of these authorities I would say that the physical injuries in the cases cited on behalf of Mr. Fadai were all more serious and enduring than his soft tissue injuries. This is also true of the cases cited on behalf of Mr. Cully, except for Gatzke, in which it appears that the duration and severity of the injuries were slightly lower. In making these comparisons, I have kept in mind that although his physical symptoms had largely resolved within a year or slightly more, Mr. Fadai’s headaches during at least the first six months were quite severe.  I would characterize the effects of the mild traumatic brain injuries in Gougen, McKinnon and Scoates as being somewhat more serious than Mr. Fadai’s, because I have found that in his case the component of short-term memory loss and concentration problems have largely resolved, and that his difficulty is now mainly with self-regulation.  Taking all of this into account, I conclude that an appropriate award for non-pecuniary damages is $100,000.
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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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