Tag: Post Concussion Syndrome

$200,000 Non-Pecuniary Assessment for Post Concussion Syndrome With Poor Prognosis

Reasons for judgement were published today by the BC Supreme Court, Campbell River Registry, assessing damages for chronic consequences from a head injury.

In today’s case (Mickelson v. Sodomsky) the 50 year old plaintiff was involved in a 2015 T-bone collision.  The Defendant admitted liability.  The crash resulted in a mild traumatic brain injury and the plaintiff developed post concussion syndrome with a poor prognosis for further recovery.  The consequences of the injury were largely disabling.  In assessing non-pecuniary damages at $200,000 Mr. Justice Thompson provided the following reasons:

[35]         I accept the evidence of Dr. Cameron and Dr. Muir that Ms. Mickelson suffered a mild traumatic brain injury in the MVA. She continues to suffer the effects of a post-concussive syndrome. I conclude that she will continue to adapt to these deficits, but the evidence does not make room for any optimism that she will achieve further recovery.

[36]         Over the period of time since the MVA, I am satisfied on the basis of all of the evidence that her cognitive issues have been multi-factorial: I accept that it is difficult to tease out how much of her cognitive difficulties are accounted for by post-concussive syndrome versus depression and anxiety versus chronic pain. That said, as time has gone on, the partial lifting of her depression and the decrease in her pain have not resulted in a significant improvement in cognitive function. This lends weight to Dr. Friesen’s interpretation of the neuropsychological test findings as being consistent with frontal lobe injury.

[37]         I am satisfied on a balance of probabilities that, but for the MVA, Ms. Mickelson would not have the cognitive deficits that partially disable her. I conclude that Ms. Mickelson falls into the 10 to 20 percent of unfortunate people that do not recover from the effects of a mild traumatic brain injury…

[41]         In fixing the amount of non-pecuniary damages in this case, the central consideration is the post-concussive syndrome. It has altered Ms. Mickelson’s previously vibrant personality and stunted her capacity to function at a high level. It has also resulted in termination of her education plans and career plans. Considering all of the Stapley circumstances, and that she has lost a modest amount of her capacity for domestic chores, I assess her non-pecuniary damages at $200,000.

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

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.

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$175,000 Non-Pecuniary Assessment for Concussion With Permanently Disabling Consquences

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a fall causing a permanent head injury.
In today’s case (Harrison v. Loblaws, Inc.) the Plaintiff was shopping in the Defendant’s store when she slipped on a large pool of liquid laundry detergent which was on the floor.  She struck her head on the floor and suffered a concussive injury from which she did not recover.
The Defendant denied fault but the Court found the Defendant failed to establish that they followed their protocols to ensure the store was in reasonably safe condition for customers.
The Court accepted that the Plaintiff  developed symptoms “consistent with post-traumatic brain injury syndromes or post-concussion syndromes” and that these were permanently disabling.  In assessing non-pecuniary damages at $175,000 Mr. Justice Basran provided the following reasons:

[89]         The evidence of Ms. Harrison, and those who knew and worked with her both before and after her accident, is that she sustained injuries that have dramatically impacted every aspect of her life.  Whereas before the accident she was independent, active and optimistic, she is now a mere shadow of her former self.  She is unable to work or enjoy any of the activities she used to do before the accident, including walking, swimming, and travelling.  She is dependent on her son and is far less socially engaged than she once was. 

[90]         Her prognosis is poor and any further improvement in her condition is unlikely.  Taking into account the variety and longevity of these symptoms, her enjoyment of life has been dramatically reduced. ..

[96]         Ms. Harrison was 48 at the time of the accident.  She suffered a significant head injury and to this day, suffers from serious headaches and other symptoms which I have detailed.  She has a permanent disability and she has suffered from a loss of confidence and a loss of enjoyment of life as a result of her accident.  Her physical and mental abilities have clearly been impaired.  As described earlier, she is no longer able to walk long distances nor is she able to swim.  Her sensitivities to light, sound, and motion have dramatically affected her.  She has clearly experienced a serious diminishment in the quality and enjoyment of her life.  I note that Ms. Harrison retains a certain degree of optimism about the future and throughout this ordeal, she has taken significant steps to try to improve her circumstances.

[97]         Having found Ms. Harrison to be competitively unemployable and suffering from symptoms that appear to be permanent, I must make an award that addresses her particular condition and recognizes the nature and extent of her loss.  On that basis, I conclude that an award of $175,000 satisfies those principles.

$85,000 Non-Pecuniary Assessment for Chronic PTSD and Post Concussive Issues

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic issues following a concussive injury.
In today’s case (Curtiss v. The Corporation of the District of West Vancouver) the Plaintiff fell into an open meter box on a sidewalk owned by the Defendant.  The Defendant denied liability but was found negligent at trial.  The fall resulted in a concussive injury with post concussive difficulties and PTSD.  The Plaintiff was expected to have lingering symptoms into the future.  In assessing non-pecuniary damages at $85,000 Mr. Justice Marchand provided the following reasons:

[92]         As a result of her fall, Ms. Curtiss suffered cuts, scrapes and/or bruising to various parts of her body, including her forehead, nose, upper lip, hands, lower legs and left inner thigh. She also experienced balance issues, dizziness and headaches.   Ms. Curtiss’ cuts, scrapes and bruises all healed within the first one to three months.  Her throbbing headaches lasted the better part of a year, and she still gets headaches when she experiences high levels of stress. She still has occasional balance problems.

[93]         Ms. Curtiss has received psychological counselling and acupuncture treatments since her fall and her condition has improved over time. She has recently returned to daily walking and working in her garden. Nevertheless, her self-reports, and the reports of those who are close to her, clearly establish that Ms. Curtiss is not the same person she was prior to her fall. She has trouble sleeping. She has become anxious and forgetful. She is less confident and self-sufficient. She is no longer able to multi-task. She is less active, occasionally walks with a cane, looks down during walks and gardens far less.

[94]         Two family physicians were involved in Ms. Curtiss’ post-accident care, Drs. Dean Brown and Brian Brodie. Based on her loss of consciousness, memory loss, headaches, dizziness, imbalance, agitation and anxiety, both diagnosed Ms. Curtiss as having suffered a concussion as a result of her fall. In his April 7, 2017 report, Dr. Brown’s prognosis was that Ms. Curtiss’ symptoms would gradually improve with a full resolution within a year or so. In his September 8, 2017 report, Dr. Brodie’s prognosis was that Ms. Curtiss was highly likely to “go on to suffer some symptoms of post traumatic disorder”.

[95]         Ms. Curtiss also submitted a report dated August 25, 2017 prepared by Registered Psychologist, Dr. William Koch. As a result of Ms. Curtiss’ vigilance to danger when walking or driving, excessive startle response, avoidance of conversations about her fall, disturbed sleep, and anxiety-related concentration deficits, Dr. Koch has concluded it is probable that Ms. Curtiss suffers a “subsyndromal” Posttraumatic Stress Disorder (“PTSD”). Dr. Koch noted a number of positive and negative prognostic indicators in Ms. Curtiss’ case. He concluded that Ms. Curtiss’ prognosis for further improvement is “negative” unless she receives further psychological treatment. Dr. Koch recommended a further 20 hours of therapy, which Ms. Curtiss had started by the time of trial.

[96]         In cross-examination, Dr. Koch agreed with a list of further positive prognostic indicators put to him by counsel for the District. Specifically, Dr. Koch agreed that the following were positive prognostic indicators: Ms. Curtiss was open to treatment; Ms. Curtiss had returned to treatment; Ms. Curtiss reported benefitting from treatment; Ms. Curtiss had returned to daily walking; and Ms. Curtiss would soon no longer be involved in litigation. On the last point, Dr. Koch indicated that while litigation stress may soon stop, “other stressors may pop up.”

[97]         Based on all of the evidence, I accept that Ms. Curtiss’ life has been significantly adversely affected by her fall. Though her cuts, scrapes and bruises healed relatively quickly, her post-concussion symptoms and subsyndromal PTSD have persisted. While I have optimism for further improvement, given the length of time her symptoms have persisted, the efforts she has already put into her recovery and her age, I doubt that Ms. Curtiss will ever fully return to her pre-accident condition…

[109]     The cases cited by counsel support an award of non-pecuniary damages within the range suggested by Ms. Curtiss of $75,000 to $90,000. In my view, an award of $85,000 will adequately compensate Ms. Curtiss for the profound impact her fall has had on her physical and emotional wellbeing. Before her fall, Ms. Curtiss was an exceptionally happy, active and productive 74-year-old woman. The accident, however, caused a significant decline in her performance at work, her level of activity, her confidence in herself, and the joy in her life. As I have stated, in my view, though Ms. Curtiss will continue to make improvements, she will not fully return to her pre-accident condition.

$175,000 Non-Pecuniary Assessment for Post Concussion Syndrome and Chronic Pain

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a “violent” collision resulting in a permanent brain injury and chronic pain.
In today’s case (Sundin v. Turnbull) the Plaintiff was rear-ended while riding his motorcycle in 2012.  The collision was severe with the motorcycle being embedded in the Defendant’s truck as a result of the forces involved.
The Plaintiff suffered a head injury and post concussive symptoms lingered.  The Plaintiff developed chronic pain and the prognosis for the conditions was poor with residual permanent disability.  In assessing non-pecuniary damages at $175,000 Madam Justice Gerow provided the following reasons:

[106]     As stated earlier, the accident involving Mr. Sundin and Mr. Turnbull was a violent one. Mr. Sundin’s motorcycle was embedded into Mr. Turnbull’s pickup truck and Mr. Sundin was thrown through the air landing on the pavement. Immediately after the accident Mr. Sundin was dazed and spitting out teeth.

[107]     As well, there is no issue regarding Mr. Sundin’s credibility. I found that Mr. Sundin provided evidence in a straight forward and reliable fashion. I accept his symptoms as he described them are genuine.

[108]     There is no question that Mr. Sundin’s life has changed profoundly as a result of the accident. Prior to the accident Mr. Sundin had a history of performing at a high level in both his work and personal life.

[109]     As set out earlier, all the experts agree that Mr. Sundin suffered a MTBI, as well as numerous soft tissue injuries and damage to his teeth in the accident. As Dr. Benavente, the defendant’s expert, acknowledged, Mr. Sundin continues to suffer from post-concussion syndrome as a direct result of the head injury he sustained in the accident. Mr. Sundin’s ongoing symptoms of chronic headaches, problems with concentration and memory, and mood problems are attributable to the post-concussion syndrome.

[110]     As well as his cognitive problems, the expert and lay evidence establishes that as a result of the accident, Mr. Sundin suffers from chronic pain in his neck, shoulders and back, problems with his teeth and jaw, and some ongoing pain in his hips and knees. The evidence is that it is unlikely Mr. Sundin will recover to his pre-accident condition, mentally or physically. Mr. Sundin is having a difficult time accepting that he cannot perform physically or mentally as he did before the accident, and as a result has developed an adjustment disorder. The ongoing symptoms Mr. Sundin is suffering from as a result of the accident impact every aspect of his life.

[111]     As noted in Stapley, the assessment of non-pecuniary damages depends on the particular circumstances of the plaintiff in each case. Having considered Mr. Sundin’s age, the nature of his injuries, the severity of his symptoms and the fact they have been ongoing for four years with little improvement, the ongoing treatments, the psychological, cognitive and memory problems, and the guarded prognosis for full recovery, as well as the authorities, I am of the view that the appropriate award for non-pecuniary damages is $175,000.

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ERIK
MAGRAKEN

Personal Injury Lawyer

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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