Tag: Traumatic Brain Injury

Defendant Called During Plaintiff's Case in Traumatic Brain Injury Claim

In most BC Supreme Court lawsuits Plaintiff’s obtain evidence from the opposing side prior to trial by way of examination for discovery.   Helpful portions of the discovery transcript are then read into the trial record in support of the Plaintiff’s claim.   This is a controlled way to lead helpful evidence from a potentially damaging source.
There is, however, another way (albeit a riskier way) to use the Defendant in support of a Plaintiff’s claim.  The Rules of Court allow one party to call an “adverse party” as part of their case in chief with delivery of a subpoena and witness fees.   Rule 12-5(22) goes further and allows a Plaintiff to put the Defendant on the witness stand without notice if the Defendant is “in attendance at the trial“.  Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, demonstrating this seldom used option in action.
In last week’s case (Rintoul v. Gabriele) the Plaintiff pedestrian was struck while in a cross-walk.   The Plaintiff was born without upper limbs and after being struck “would have been unable to break her fall.  In landing on the pavement, she hit her head and was briefly unconscious“.
Both liability and quantum (fault and value of the case) were at issue with the Defendant arguing the Plaintiff was to blame at least in part for the collision and that her on-going issues were not related to the brain trauma suffered in the collision.  Mr. Justice Saunders disagreed and found the Defendant fully at fault for the impact.  In the course of the trial the Plaintiff’s lawyer took advantage of Rule 12-5(22) and put the Defendant on the stand as their first witness.  Damaging admissions were extracted which could not be remedied when the Defendant was re-called as a witness in the Defence case.  In highlighting this interesting turn of events Mr. Justice Saunders provided the following reasons:
[7] The defendant, Ms. Gabriele, was in attendance on the first day of trial. She was called to the witness stand as the first witness for the plaintiff’s case, and cross-examined…























[14] Ms. Gabriele testified that she was turning her vehicle and had just started to enter the pedestrian crosswalk, going perhaps 10 or 15 km/h, when she felt a bump, and saw a flash of a face in her headlights. She stopped and got out, and ran to the front of her vehicle. The plaintiff was lying unconscious in the crosswalk.

[15] Ms. Gabriele was not challenged on her estimate of her speed.

[16] Ms. Gabriele was asked why she did not, after looking to the right, look to the left again before making her turn, to see if any of the pedestrians she had previously seen on the southeast corner were walking in the crosswalk. She replied, “I made a mistake”….
























[24] There was a break in the trial of just over two months. During that time period, Ms. Gabriele walked through the accident scene with her counsel. After the trial resumed, Ms. Gabriele was called to give evidence as part of the defence case. Testifying in chief, she gave a slightly different version of events. She said in her evidence in chief that after looking at the southwest corner, she looked back in front of her, did not see anything, and then proceeded to make her turn.

[25] I do not accept this second version of events…

The Court went on to conclude that the Plaintiff did suffer from long term consequences as a result of her injuries and assessed global damages at just over $950,000 including non-pecuniary damages of $175,000.  In addition to the above point of civil procedure, this case is worth reviewing in full for Mr. Justice Saunders lengthy discussion of the expert evidence called to address the issue of the Plaintiff’s traumatic brain injury.

The Significant Role of Expert Evidence in Personal Injury Trials

When presenting a claim at trial dealing with future loss it is vital to have appropriate expert evidence to justify sought damages.  Failure to do so can result in a dismissal of the sought damages even if they are unopposed.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry highlighting the importance of medico-legal evidence in personal injury trials.
In this week’s case (Moore v. Briggs) the Plaintiff suffered a fractured skull (fractured left temporal bone) and a brain injury in a 2003 assault.

The Plaintiff sued those he claimed were responsible for the assault.  One of the Defendant’s did not respond to the lawsuit and the Plaintiff obtained default judgement against him.  The Plaintiff asked the Court to award substantial damages including an award for diminished earning capacity.  Despite the Plaintiff’s assessment of damages being unopposed the Plaintiff was only awarded a fraction of his claimed damages and he received nothing for future loss.
In assessing non-pecuniary damages at $40,000 and dismissing the claim for diminished earning capacity Madam Justice Dillon provided the following reasons:

[11] As a result of the assault, the plaintiff continues to have some problem with memory. This has improved over time such that it does not interfere with work or enjoyment of life, but still lingers. He also has difficulty with attention span and focus. He continues to have almost daily headaches. These often interrupt his sleep. He noticed that eye near the indentation in his temple was “lazy”, a couple of times a week at first and now hardly noticeable.

[12] For about four years after the assault, the plaintiff had problems with balance such that he could not walk a straight line and was dizzy when he looked down. He wanted to obtain employment as a greenhand on the log booms but did not consider that he could do the job. This would have increased his hourly pay to $24. Few details were provided about this job prospect. There was no medical evidence to support this inability and the plaintiff testified that any problems with balance had now resolved…

[17] Here, there is evidence of a small depressed comminuted fracture of the left temporal bone that resulted in some memory and motor impairment. From the testimony of the plaintiff, it appears that the motor impairment has resolved over time. There continue to be memory problems, the exact nature of which has not been assessed on a current basis. There are also some continuing headaches that are attributed to the fracture in 2003. The plaintiff lost about two months work and has successfully resumed his career and achieved advancement. His social life appears stable and normal. Any present loss of enjoyment of activities is because of lack of interest as opposed to ability…

[22] After consideration of these authorities and in consideration of the plaintiff’s description of his injury, and given the lack of medical information, non-pecuniary damages are assessed at $40,000…

[24] The plaintiff also claims loss of future earning capacity because of inability to obtain employment on the log booms. He calculated this amount based upon expectations of work life to age 65 at the remuneration rate that he said he would have received as a greenhand. This is contrary to the capital asset approach which has been adopted in this Court (Parypa v. Wickware, 1999 BCCA 88 at para. 63). However, the evidence on this aspect of the claim is scant and unsupported by any medical or actuarial evidence. Further, the plaintiff had successfully advanced in his work at present and said that this is his employment of choice. Further, there was no evidence that his employment aggravated his symptoms. The plaintiff must establish that there is a real and substantial possibility that his earning capacity has been impaired to some degree as a result of the injuries sustained in the assault (Romanchych v. Vallianatos, 2010 BCCA 20 at para. 10). In my view, there is little likelihood of any substantial possibility of an actual income loss in the circumstances here. There is nothing to suggest that the plaintiff will be unable to perform the tasks required in his work of choice. Nothing is awarded under this head of damage.

The New Rules of Court and the Prohibition of Expert Advocacy


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,

Indivisible Injuries in Action


As I recently discussed, the law in British Columbia requires a Defendant to compensate a Plaintiff for any indivisible injury caused by their wrongdoing.  If a subsequent event contributes to or aggravates the injury a defendant cannot reduce the amount of compensation the Plaintiff is entitled to.  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, demonstrating this principle of law.
In this week’s case (Fillmore v. McKay) the Plaintiff was involved in 2005 motor vehicle collision.  The Plaintiff was riding his bicycle when he was struck by the Defendant’s vehicle.  The Defendant initially denied being at fault but during trial admitted that the collision was indeed a result of her negligence.  The Plaintiff suffered various soft tissue injuries and a traumatic brain injury.
At trial the Defendant argued that some of the Plaintiff’s injuries were made worse during a subsequent fall and that this should reduce the compensation the Plaintiff should receive.  Mr. Justice Truscott rejected this argument and provided the following useful comments demonstrating the law relating to indivisible injuries in BC:

[145]     The plaintiff took a fall at work on July 9, 2005 when he says in his note that he aggravated his neck and shoulder. The defendant submits that this was a new incident not caused by him that should serve to reduce the plaintiff’s personal injuries for which he has liability from the motor vehicle accident. The defendant even submits that it may have been this incident of July 9, 2005 that caused the plaintiff’s back injury because his first complaint to Dr. Buie was not until after that.

[146]     I have already concluded that the plaintiff’s back injury occurred in the motor vehicle accident and not subsequently by this bike accident. The plaintiff does not say in his note that he aggravated his back on July 9, 2005, but only his neck and shoulder.

[147]     As to the possible aggravation of his neck and shoulder injuries, Athey v. Leonati, [1996] 3 S.C.R. 458, makes it clear that the defendant remains liable where his negligence caused or contributed to the injuries and that liability is not reduced by any non-tortious contributing causes.

[148]     Accordingly, even if the plaintiff’s neck and shoulder injuries were aggravated by this non-tortious incident, the defendant is still fully responsible for the full extent of those injuries because his negligence caused them in the first place and thereby contributed to the extent of the injuries.

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.

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If you would like further information or require assistance, please get in touch.

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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