Tag: MTBI

$200,000 Non-Pecuniary Assessment for Chronic Post Concussion Syndrome

Written by ERIK MAGRAKEN on May 7, 2019. Posted in ICBC Brain Injury Cases.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a mild traumatic brain injury and post concussive problems caused by a collision.

In today’s case (Dornan v. Stephens) the Plaintiff was involved in a 2016 rear end collision. The Defendants admitted fault. The Plaintiff suffered a variety of injuries including a mild traumatic brain injury and post concussion syndrome which became chronic.

$145,000 Non-Pecuniary Assessment For Traumatic Brain Injury With Lingering Cognitive Impairment

Written by admin on February 19, 2018. Posted in ICBC Brain Injury Cases.

Reasons for judgement were published today by the BC Supreme Court, Victoria Registry, assessing damages for a mild traumatic brain injury with lingering cognitive impairment.
In today’s case (Gauthier v. Dubois ) the Plaintiff was involved in a 2013 motorcycle collision caused by the Defendant. Fault was admitted. The Plaintiff suffered a variety of injuries many of which enjoyed good recovery. Among these were a mild traumatic brain injury which resulted in cognitive impairments which had a poor prognosis for full recovery. In assessing non-pecuniary damages at $145,000 for the injuries Mr. Justice Milman provided the following reasons:

[128] Mr. Gauthier sustained many injuries in the accident, of varying severity. He had no broken bones. While many of his injuries have resolved, several have not.

[129] Most significantly, I have found that Mr. Gauthier suffers ongoing cognitive impairments resulting from an injury to his brain. I also accept that he continues to have back problems and knee pain, including a risk of future degeneration in his left knee.

[130] I have found that Mr. Gauthier suffered significant pain from his numerous injuries in the first weeks and months following the accident. Most of those injuries have since resolved. He continues to suffer occasional headaches and pain in his back and knees. There is a risk that his left knee will grow worse. He does not often seek out medical attention or therapies or take prescription drugs to ameliorate his discomfort, however.

[131] Mr. Gauthier was away from work and disabled for several weeks. Although he has gradually recovered to a significant extent, he has not returned to his previous level of performance. While he can now do just about all of the activities he did before, he cannot do many of them as well, or without pain or discomfort.

[132] Mr. Gauthier has suffered emotionally form his cognitive impairments and his gradual recognition of their permanence. He is anxious about driving. He cannot surf as aggressively or do other athletic activities at the same pace as formerly, although this must be attributed at least in part to his age. He is more introverted and less confident. He now questions his performance at work and his career prospects.

[133] The plaintiff advances no argument in this regard.

[134] Although Mr. Gauthier claims that he tends to socialize less than he did before the accident, I am not satisfied that this is a significant factor in his loss. As Mr. Harris submits, Mr. Gauthier has been able to enter into a long-term, romantic relationship since the accident where he did not have any significant attachments before.

[135] Mr. Gauthier is still functioning at work but not at the same level. He is also unable to do the recreational activities that he enjoys, particularly surfing, at the same level. Nevertheless, he is still able to enjoy those activities.

[136] Mr. Gauthier asserts that the impact on his lifestyle has been “severe.” In my view that is an overstatement. I accept that his lifestyle has been affected, but he has maintained his occupation as an entrepreneur and manager – his business appears to be recovering. He continues to do the same recreational activities as he did before, although not necessarily at the same level. Some of this drop in performance must be attributed to his age.

[137] I found the following cases most helpful among those cited to me by counsel: Traynor v. Degroot, 2002 BCSC 441, aff’d 2003 BCCA 483; Joel v. Paivarinta et al., 2005 BCSC 73; Benson v. Day, 2014 BCSC 2224; Kaiser v. Williams, 2015 BCSC 646; and Sundin v. Turnbull, 2017 BCSC 15. I find that the injuries in issue here lie in the middle of that range – generally more severe than those in Kaiser ($130,000) but less severe than those in Sundin ($175,000). I find this case most similar to Traynor ($120,000 or $155,000 adjusted for inflation) and Joel ($110,000 or $134,000 adjusted for inflation).

[138] It is important to bear in mind, however, that each case is unique and must be assessed on its own facts.

[139] Having considered the facts of this case in light of the authorities to which I have referred, I assess Mr. Gauthier’s general damages at $145,000.

Worker Ordered To Pay $561,000 in Damages for Assaulting Former Supervisor

Written by admin on July 16, 2012. Posted in ICBC Brain Injury Cases, ICBC Psychological Injury Cases, ICBC PTSD Cases.

In a compelling illustration of the potential civil consequences following criminal behaviour, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a brain injury following an assault at over $561,000.
In the recent case (Weber v. DeBrouwer) the Plaintiff worked as a supervisor of the Defendant at the Village of Harrison Hot Springs. The Plaintiff “suspended the defendant several times” and over the course of their overlapping employment “relations between the two worsened“. In the summer of 2007 the defendant approached the Plaintiff as the Plaintiff was out for a walk and “brutally assaulted” him.
The assault led to various physical injuries including a mild traumatic brain injury and further led to ongoing psychological difficulties. Global damages of over $561,000 were assessed with non-pecuniary damages assessed at $150,000. In arriving at this figure Mr. Justice Greyell provided the following reasons:
[72] In this case, Mr. Weber was 49 years old at the time he was assaulted. The assault caused him significant injury and pain and suffering. He suffered facial injuries, including several fractures, dental injuries, bruising, rib and chest injuries, knee and hand injuries, soft tissue injuries to his back and neck, and a mild traumatic brain injury with ongoing cognitive and speech difficulties which took some time to resolve. Mr. Weber remains affected by depression, anxiety, and post traumatic stress disorder. He avoids confrontational situations…

[75] In the present case, Mr. Weber is now 54 years old. A number of his injuries, including his headaches, bruising and soft tissue injuries cleared up after several months. For a considerable time after the assault he was bothered with nightmares and had difficulty sleeping. He is left with a number of problems. He has difficulty with the alignment of his jaw; he still is clumsy and, while greatly improved, he has difficulty finding and pronouncing some words. Mr. Weber remains anxious and fearful of the defendant and avoids going places where the defendant might be. He avoids situations with guests at the motel where any type of conflict could arise, deferring to his wife to handle such matters. Dr. Smith says he will remain permanently impaired by symptoms of anxiety.

[76] Mr. Weber’s injuries and the residual effects of those injuries are significant, however, in my view, each of the cases cited by counsel for Mr. Weber involve circumstances where the injuries and residual effects to the plaintiffs were more significant. After a consideration of the factors outlined above in Stapley, I conclude $150,000 is an appropriate and fair amount to award for non-pecuniary damages.

$125,000 Non-Pecuniary Damage Assessment for TBI – Adverse Inference Discussed

Written by admin on August 17, 2011. Posted in Civil Procedure, ICBC Ankle Injury Cases, ICBC Brain Injury Cases, ICBC Chronic Pain Cases, ICBC Elbow Injury Cases, ICBC Headache Cases, ICBC Knee Injury Cases, ICBC Liability (fault) Cases, ICBC Shoulder Injury Cases, Uncategorized.

Update March 21, 2014 – the Liability findings in the below case were upheld today by the BC Court of Appeal
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Adding to this site’s ICBC Case Summary Archives, reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, assessing non-pecuniary damages for a traumatic brain injury sustained in a BC vehicle collision.
In this week’s case (Meghji v. Lee) the Plaintiff was struck by a vehicle while walking in a marked cross-walk in 2003. Both the Defendant driver and BC Ministry of Transportation and Highways were found at fault for the crash. The former for failing to keep a proper lookout while driving, the latter for designing the intersection at question with inadequate overhead lighting. The driver was found 90% at fault with the Ministry shouldering 10% of the blame.
The Plaintiff suffered a fracture near her left shoulder, left elbow, ankle, knee and a traumatic brain injury. The consequences of these were expected to cause permanent dysfunction. In assessing non-pecuniary damages at $125,000 Mr. Justice Johnston provided the following reasons:

[134]Mr. Lee struck Ms. Meghji on her left side. That caused a significant fracture to Ms. Meghji’s left upper arm, a less significant fracture just below and into her left knee and an injury to her left ankle, all of which required immediate medical intervention. There were also the soft tissue injuries that would reasonably be expected to accompany such trauma.

[135]Within a day of the accident, Ms. Meghji had surgery to her left upper arm that involved the insertion of a rod that was fixed by screws just below her shoulder and just above her left elbow. She also had a screw placed into her left ankle…

[270]Based upon the evidence of Dr. Ali and Mr. Brozak of the substantial change noted in Ms. Meghji during this time, as supported by similar observations from Ms. Chauncey’s and Ms. Wyeth’s description of Ms. Meghji’s abilities in her math class and as a teaching assistant before the accident, I conclude that Ms. Meghji has more likely than not suffered a brain injury in the accident, and that the combination of the effects of the brain injury and the depression and chronic pain disorder, which I also find was caused by the accident or flows from injuries suffered in the accident, are so inextricably intertwined that they cannot possibly be disentangled.

[271]In all of the circumstances, the defendants are ordered to pay Ms. Meghji $125,000 for non-pecuniary damages for pain, suffering, and loss of amenities and enjoyment of life.

This case is also worth reviewing for the Court’s application of the ‘adverse inference’ principle. In the course of the lawsuit the Plaintiff’s lawyers had her assessed by a neurologist. The neurologist did not tender evidence at trial. Mr. Justice Johnston used his discretion to draw an adverse inference in these circumstances finding that the privately hired doctor likely did not have helpful evidence to give in support of the Plaintiff’s claim. The court provided the following reasons:

[240]In ordinary circumstances, I would agree that a claim of litigation privilege should be sufficient explanation for the failure to produce evidence from an expert who examined a party, and no inference adverse to that party should be drawn from the failure to produce the evidence.

[241]However, where, as here, counsel has assumed control of medical management of a plaintiff’s injuries, the circumstances are not ordinary.

[242]Dr. Grimwood would ordinarily have been expected to coordinate Ms. Meghji’s treatment, including referrals to specialists as he thought advisable. In this case, Dr. Grimwood appears to have largely ceded that responsibility to Ms. Meghji’s counsel, largely because counsel were able to arrange examinations by medical specialists much sooner than could Dr. Grimwood.

[243]Where counsel becomes actively involved in arranging treatment, or in treatment decisions, or in selection of treatment providers to the extent that it becomes difficult or impossible to determine whether any particular doctor is involved for treatment purposes, or to advise counsel, the protective cloak of litigation privilege becomes tattered.

[244]In such circumstances, counsel and the party who permit the line between treating physicians and physicians retained to advise counsel to become blurred must accept some risk that the protection ordinarily afforded by litigation privilege might be lost.

[245]Ms. Meghji testified that she saw Dr. Cameron for headaches. In the face of that evidence, I infer, from the refusal to produce evidence from Dr. Cameron, that any opinion generated as a result of his examination of Ms. Meghji was not helpful to the claims she makes in this trial. I also infer that, while examining for headache, had Dr. Cameron observed any signs that suggested to him that Ms. Meghji had suffered a traumatic brain injury in the accident, his observations or opinion would have been produced at trial.

The New Rules of Court and the Prohibition of Expert Advocacy

Written by admin on April 22, 2011. Posted in BCSC Civil Rule 11, independent medical exams.

While expert ‘advocacy‘ has always been prohibited, Rule 11-2 of the BC Supreme Court Civil Rules expressly imposes a duty on expert witnesses “to assist the court” and “not to be an advocate for any party“. Experts need to specifically acknowledge that they are aware of this duty, author reports in compliance with this duty and testify in conformance with this duty.
Despite this expert advocacy still exists as was demonstrated in reasons for judgement released this week in the BC Supreme Court.
In this week’s case (Jampolsky v. Shattler) the Plaintiff was involved in 4 seperate collisions. He sued for damages with his most serious allegation being a Traumatic Brain Injury (TBI). Ultimately the TBI claim was dismissed with Mr. Justice Harvey finding that the Plaintiff’s chronic complaints were more plausibly explained by factors other than brain trauma. Prior to doing so, however, the Court made the following critical findings of the expert retained by ICBC in the course of defending the claims:

[251] Dr. Rees is a neurologist. Since approximately 2004 his practice has been largely comprised of examining persons with suspected brain injuries on behalf of defendants, principally ICBC.

[252] In that period Dr. Rees had not examined a litigant whom he found to have suffered an MTBI where the symptoms lasted beyond two years. He opined that the plaintiff had not sustained an MTBI in the first accident or any of those which followed in August 1999…

[257] Dr. Rees initially testified that a Tesla 1.5 MRI could provide imaging of an area as small as 100 neurons in the human brain. I am satisfied that Dr. Rees was in error in this regard. Although counsel suggested, and Dr. Rees ultimately adopted, 126,000,000 as being the smallest grouping of neurons visible on the Tesla 1.5, counsel subsequently advised the Court of his own mathematical error resulting in agreement that the actual number was 126,000. While the difference between these numbers is significant, it still appears that Dr. Rees was outside his area of expertise and was “guessing” at the degree of resolution.

[258] Dr. Rees was also reluctant to acknowledge that brain trauma could occur without contact between the head and some other source. Although he acknowledged that an acceleration/deceleration injury could result in brain trauma, he confined such instances to situations where there as a concussive blast, such as that which was experienced by troops in Afghanistan when an I.E.D. exploded. He was resistant to the notion that an acceleration/deceleration injury of the type commonly seen in motor vehicles accidents could cause an MTBI

[259] A major difference in the opinion of Dr. Rees and Dr. Ancill is whether or not the plaintiff experienced a “credible event” which would account for brain trauma. During vigorous cross examination Dr. Rees acknowledged that he could not offer an opinion on the tensile strength of brain matter, and that an acceleration/deceleration impact could damage muscle tissue which he acknowledged is denser than brain matter.

[260] Dr. Janke, the other defence expert, and Dr. Ancill were both of the opinion that a force far less than that described by Dr. Rees could result in an MTBI.

[261] Dr. Rees accepted, without question, the veracity of the plaintiff when it came to maters related by the plaintiff which tended to negate or be neutral as to the existence of a brain injury, but questioned, without proper foundation, the plaintiff’s truthfulness if his answer to a particular question came into conflict with Dr. Rees’ rigidly held views as to the length of time the sequalae from MTBI could persist and the extent to which an MTBI could interfere with what he called core skills. He referred to the plaintiff’s response to queries regarding whether he had undergone any sleep studies for his reported apnea as “disingenuous.”…

[316] I place little or no reliance on the opinion of Dr. Rees. He assumed, for much of his testimony, the role of advocate as opposed to that of a disinterested and detached expert.

As recently discussed, the UK Supreme Court stripped expert witnesses of immunity exposing them to the threat of lawsuits for negligent services. The law in BC currently does not permit this making judicial criticism the strongest remedy for experts who ignore the duties set out in the Rules of Court,

"Demystifying" Mild Traumatic Brain Injury

Written by admin on December 29, 2010. Posted in ICBC Head Injury Cases, ICBC Privacy Issues, ICBC Wage Loss, Uncategorized.

(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.

$5.9 Million Damage Assessment To Lawyer For Mild Traumatic Brain Injury

Written by admin on August 10, 2010. Posted in ICBC Brain Injury Cases, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages of just over $5.9 million for injuries and losses sustained in a Dance Floor injury.
In today’s case (Danicek v. Alexander Holburn Beaudin & Lang) the Plaintiff lawyer was out at a lawfirm function in 2001. After dinner some members of the Plaintiff’s firm went dancing at a nightclub in downtown Vancouver. During the evening a fellow lawyer fell backwards while dancing. During his fall he struck the Plaintiff causing her to fall as well. The Plaintiff hit her head on the ground with enough force to knock her unconscious. Liability was in issue however Mr. Justice Kelleher found the Defendant was impaired when he fell and that he was fully responsible for the incident.
The Plaintiff suffered a mild traumatic brain injury (MTBI) the consequences of which were expected to never fully recover. The court found that the Plaintiff would likely never work competitively as a lawyer again and awarded over $5 million for her diminished earning capacity. Mr. Justice Kellehar also awarded the Plaintiff $185,000 for her non-pecuniary damages (money for pain and suffering and loss of enjoyment of life). In reaching this figure the Court made the following findings about the severity and extent of the Plaintiff’s brain injury:

227] I find Ms. Danicek suffered a mild, traumatic brain injury in the April 6, 2001 accident. It has had a profound effect on her life. She was completely disabled from work until December 2001. As Dr. Anderson notes in his report dated January 26, 2007, the mild traumatic brain injury has resulted in ongoing post-concussive symptoms, which include physical, cognitive, and emotional difficulties.

[228] Her headache pain has persisted and persists today, some nine years after the accident. The post-traumatic headaches have resulted in the plaintiff developing chronic pain disorder. Dr. Anderson notes that chronic pain disorder “causes significant distress or impairment in social, occupational, or other important areas of functioning.” …

[229] The medical evidence suggests that the plaintiff is not likely to completely or even substantially recover from these symptoms….

230] Dr. Robinson noted that persons who suffer from severe headache disorders similar to the plaintiff’s condition are not likely to realize substantial improvements with the available treatments.

[231] Dr. Anderson does not consider it likely that the plaintiff’s chronic pain disorder will meaningfully improve…

[232] In addition to the headaches and pain disorder, I accept that the dance accident caused some measure of cognitive impairment. Ms. Danicek felt that before the accident she was quick to understand new concepts. Today, she feels that, in her words, everyone gets it except her….

254] The dance accident has impacted the plaintiff’s life profoundly. She has lost much. She has had and continues to have headaches of varying severity and duration. The injury has affected her physical and mental abilities and had a significant impact on her relationship with Mr. Schober.

[255] The plaintiff has experienced a loss of enjoyment of life, and is unable to engage in many recreational activities. Her lifestyle has drastically changed since the dance accident.

[256] An example of the effect of the dance accident on the plaintiff’s life is found in the evidence of her friend, Kristen Schneider. Prior to the accident, Ms. Schneider described the plaintiff as having “the most energy I think out of anybody I know”. At trial, Ms. Schneider testified that after the dance accident, Ms. Danicek was unable to consistently make their customary lunch dates; when she did, they had to find restaurants that were quiet to avoid exacerbating her headaches.

[257] Additionally, she and the plaintiff no longer regularly go for runs, rollerblade, or hike the Grouse Grind, as was their habit prior to the dance accident.

[258] Ms. Danicek is no longer able to pursue her career as a corporate solicitor working on “big deals”, a position she worked hard to obtain. The plaintiff enjoyed this work and her career was a source of pride for her. I accept this loss has negatively affected her feelings of self-worth and emotional well-being. In Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, Dickson C.J. (in dissent) stated at 368:

Work is one of the most fundamental aspects in a person’s life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person’s employment is an essential component of his or her sense of identity, self-worth and emotional well-being.

[259] It is clear the plaintiff continues to suffer from her injuries, and her problems are likely to continue in the future without substantial improvement or resolution. Her prognosis for recovery or diminishment of her chronic headaches and pain is not good.

[260] While individual judgments turn very much on their particular facts, two decisions which have influenced me are Reilly v. Lynn, 2000 BCSC 360, varied on other grounds, 2003 BCCA 49, leave to appeal ref’d [2003] S.C.C.A. No. 221, and Adamson v. Charity, 2007 BCSC 671.

[261] In the circumstances, an award of $185,000 is appropriate.

$170,000 Non-Pecs for MTBI, Impaired Driver Found "Grossly Negligent"

Written by admin on June 28, 2010. Posted in ICBC Brain Injury Cases, ICBC Liability (fault) Cases, ICBC Shoulder Injury Cases, Uncategorized. 101 Comments on $170,000 Non-Pecs for MTBI, Impaired Driver Found "Grossly Negligent"

Reasons for judgement were released this week by the BC Supreme Court awarding a Plaintiff just over $415,000 in total damages as a result of serious injuries occurring in a motor vehicle collision.
In this week’s case (Eggleston v. Watson) the pedestrian Plaintiff was struck by a vehicle driven by the Defendant. The Defendant had just left a pub and had a blood alcohol level well over the legal limit. the Defendant was criminally convicted for driving with an unlawful blood alcohol limit.
As a result of this criminal conviction the Defendant was in breach of his ICBC insurance. He defended the lawsuit personally and ICBC defended as a statutory third party.
The Defendant never saw the Plaintiff (who was walking in the Defendant’s lane of travel in the same direction) prior to hitting him. Despite this, and despite the criminal conviction, both the Defendant and ICBC argued that the Plaintiff was mostly at fault for this incident. Mr. Justice Davies disagreed and found that the defendant was at fault holding that “(his) ability to operate a motor vehicle at the time that he struck (the Plaintiff) was so impaired by his consumption of alcohol that his actions in so doing were not only negligent, but grossly negligent“.
The Court went on to find that while the Plaintiff was in violation of s. 182 of the Motor Vehicle Act at the time of the crash for not walking on the roadway facing oncoming traffic, he was not partially to blame for this crash. In reaching this conclusion Mr. Justice Davies reasoned as follows:

[70] The question is whether Mr. Eggleston’s own conduct in placing himself at some risk that a severely impaired driver would not see him in time to apply his vehicle’s brakes or otherwise avoid a collision requires an apportionment of some liability to him for his injuries.

[71] In all of the circumstances I find, as did Kirkpatrick J. in Laface, that Mr. Watson’s conduct was so unforeseeable, and the risk of injury from Mr. Eggleston’s failure to take more care so unlikely that “it is simply not appropriate” to find that Mr. Eggleston was contributorily negligent.

[72] If I am wrong in that conclusion, based upon the analysis and conclusions of Esson J.A. in Giuliani, I would assess Mr. Eggleston’s fault in failing to avoid the collision to be no more than 5%.

The Court then awarded the Plaintiff $170,000 for his non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for his serious injuries which included a mild traumatic brain injury (MTBI). In arriving at this figure the Court provided the following reasons:

[145] After considering the totality of the evidence in this trial including the medical evidence adduced by the parties, I have concluded that Mr. Eggleston has proven that it is more likely than not that he suffered a mild traumatic brain injury in the collision of June 9, 2009.

[146] I also find that the mild traumatic brain injury he suffered is the primary cause of the emotional, social and cognitive difficulties he has exhibited and endured over the more than three years between the date of the accident and the start of the trial, and which will continue to impact his future suffering and enjoyment of life…

[157] In addition to the mild traumatic brain injury that I find has been the primary cause of Mr. Eggleston’s past social, emotional, and cognitive problems as well his as continuing problems with serious headaches, all of which will likely continue to impact his future, as well as the balance difficulties that I find were caused by the collision, I also find that the evidence establishes on a balance of probabilities that Mr. Watson’s negligence caused the following physical injuries which Mr. Eggleston has suffered and from some of which continues to suffer:

1) Significant soft tissue injuries and bruising which were ongoing until at least January of 2007 when he was seen by Dr. Travlos.

2) A traumatic umbilical hernia which was successfully operated upon on May 29, 2007.

3) Injuries to his right shoulder including a torn biceps tendon, impingement syndrome and a rotator cuff tear which were operated on without success on December 5, 2007, and which in the opinion of Dr. Leith, require further surgery.

4) Injuries to his lower back which aggravated existing back problems from which he had largely recovered prior to the collision. Those lower back injuries have impacted on his ability to drive the water truck in his work for Mr. Palfi and in respect of which I accept Dr. Leith’s opinion of June 2, 2009.

[158] In addition to those specific physical injuries, I accept the evidence of Dr. Travlos, Dr. Cameron, Dr. Smith and Dr. Bishop that Mr. Eggleston has suffered and continues to suffer from psychological problems arising from his brain injuries and the pain associated with the physical injuries suffered in the collision. That pain was chronic until at least June of 2009 but was relieved to a large extent by narcotic and other medications thereafter until Mr. Eggleston determined to wean himself off Dilaudid. He now again has more pain and is also likely suffering the continuing effects of withdrawal. However, his present work history convinces me that within the neurological and cognitive limits that may still compromise his recovery, his future suffering from chronic pain will likely be capable of amelioration with psychological counselling and pain management assistance without narcotic intervention.

[159] In determining the appropriate award to compensate Mr. Eggleston for the injuries suffered in the collision, I have considered all of the injuries suffered by him that were caused by Mr. Watson’s negligence, their devastating effect upon his ability to enjoy the active life involving horses and his relationship with friends and family surrounding that lifestyle that he formerly enjoyed.

[160] I have also considered the pain Mr. Eggleston has endured and will likely continue to endure at least at some level, the compromise of his role as the leader of his family and the loss of his self-esteem, the length of time over which he has already suffered those losses, the prospect of the continuation of those losses into the future, albeit at a less intense level than in the past, and the fact that he will again have to undergo surgery in an attempt to repair his shoulder injuries.

[161] In addition, I have considered the situation that has existed since March of 2008 when Mr. Eggleston returned to work, in that the work he does drains him of energy so that his life has become somewhat one-dimensional, centering upon work and recovery from its daily effects upon him to the continued detriment of his ability to enjoy life.

[162] Finally, I have considered all of the authorities which have been provided to me by counsel and which offer some guidance as to the appropriate range of damages for injuries such as those suffered by Mr. Eggleston but which are of course dependent on their unique fact situations.

[163] I have concluded that in the totality of the circumstances an award of non-pecuniary damages in the amount of $170,000 will appropriately compensate Mr. Eggleston for his pain and suffering and loss of enjoyment of life caused by Mr. Watson’s negligence.

There is Nothing "Mild" about Mild Traumatic Brain Injury

Written by admin on June 9, 2010. Posted in ICBC Brain Injury Cases, Uncategorized. 2 Comments on There is Nothing "Mild" about Mild Traumatic Brain Injury

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.

You can click here to access my archived posts of other recent BC personal injury cases dealing with Traumatic Brain Injury.

More on the Law of Multiple Defence Medical Exams in Injury Litigation

Written by admin on April 13, 2010. Posted in Civil Procedure, independent medical exams, Uncategorized. 70 Comments on More on the Law of Multiple Defence Medical Exams in Injury Litigation

Further to my previous posts on this topic, the law is well settled that the BC Supreme Court can order a Plaintiff involved in an injury lawsuit to undergo multiple defence medical exams in appropriate circumstances in order to ‘level the playing field‘.
There are many reported court cases considering such applications and today reasons for judgement were released by the BC Supreme Court, Victoria Registry, providing a concise summary of some of the legal principles at play when ICBC or another defendant wishes to have a Plaintiff assessed by multiple doctors.
In today’s case (Hamilton v. Pavlova) the Plaintiff was involved in a 2002 BC car crash. The Plaintiff alleged that she suffered a mild traumatic brain injury (MTBI) in the crash which affected her cognitive functioning and had been assessed by at least 14 doctors since the time of her accident.
The Plaintiff attended two independent medical exams at request of the defendants, the first with an orthopaedic surgeon and the second with a neurologist. The neurologist provided an opinion that “there was no evidence to support a diagnosis of brain injury“. The Defendants then requested the Plaintiff to be assessed by a psychiatrist. The Plaintiff refused and this resulted in a court motion to force attendance.
Mr. Justice Bracken dismissed the motion finding that the defendants were seeking to “bolster the opinion (of the neurologist they chose) by providing a similar opinion from someone with perhaps a more appropriate specialty“. Before reaching this conclusion Mr. Justice Bracken provided the following very useful summary of some of the factors Courts consider in requests for multiple ‘independent’ medical exams:

[10] Rule 30(1) provides discretion to the court to order an independent medical examination, and under Rule 30(2), more than one examination may be ordered. Counsel, in their helpful submissions, have thoroughly canvassed the relative authorities on this point. From those authorities, certain principles emerge. The case law is against a background of the rules of court, and in particular, the principle that the rules are designed to secure a just determination of every proceeding on the merits and to ensure full disclosure, so the rules should be given a fair and liberal interpretation to meet those objectives: Wildemann v. Webster, [1990] B.C.J. No. 2304 (B.C.C.A.) at pp. 2-3.

[11] Rule 30(2) is a discretionary rule, and the discretion must be exercised judicially. An independent examination is granted to ensure a “reasonable equality between the parties in the preparation of a case for trial”: Wildemann v. Webster at p. 11 from the separate concurring reasons of Chief Justice McEachern.

[12] Reasonable equality does not mean that the defendant should be able to match expert for expert or report for report: McKay v. Passmore, 2005 BCSC 570 at para. 17, andChristopherson v. Krahn, 2002 BCSC 1356 at para. 9.

[13] A second exam will not be allowed for the purpose of attempting to bolster an earlier opinion of another expert. That is, there must be some question or matter that could not have been dealt with at the earlier examination: Trahan v. West Coast Amusements Ltd., 2000 BCSC 691 at para. 48, and Norsworthy v. Greene, 2009 BCSC 173 at para. 18.

[14] There is a higher standard required where the defendant seeks a second or subsequent medical exam of the plaintiff: McKay v. Passmore, supra, at para. 17 and para. 29.

[15] The application must be timely. That is, the proposed examination should be complete and a report available in sufficient time to comply with the rules of admissibility and to allow enough time for the plaintiff to assess and respond if necessary: Vermeulen-Miller v. Sanders, 2007 BCSC 1258 at paras. 47-48, relying in part on Goss v. Harder, 2001 BCSC 1823.

[16] Finally, subsequent independent medical examinations should be reserved for cases where there are some exceptional circumstances: Wildemann v. Webster, supra, at p. 3.

As previously pointed out, the BC Supreme Court Rules are being overhauled in July 2010. Under the new rules the Court will continue to have the power to order multiple medical exams in particular circumstances but one thing that will change is that the concept of ‘proportionality’ will be introduced into the analysis. I plan to follow the law as it develops under the new rules and will report how our Courts apply the concept of proportionality to multiple defence medical exams in ICBC and other BC Personal Injury Litigation.