Man Suffers Brain Injury in Biking Accident, Then Sues the City of North Vancouver for Removing Bike Lanes

Firstly, I’m going to add that anyone who is considering suing a city in the lower mainland should be aware of the drastically smaller limitation dates which apply. The Local Government Act requires you to “give notice in writing, setting out the time, place and manner in which the damage has been sustained,” and deliver that to the offending municipality within “2 months from the date on which the damage was sustained.”. Then you have only 6 months to file a lawsuit, as opposed to the typical 2 years. Failure to meet these requirements can result in you being barred from making a claim. In the case of a personal injury involving a municipality (ex. The City of Vancouver) it is especially important to speak with a lawyer as quickly as possible.

The above article raises an interesting point: does the City of North Vancouver, once encouraging someone to bicycle, then have a continuing obligation to keep them safe? It’s no secret that various municipalities in Vancouver have been encouraging people to ride bikes to relieve congestion caused by too many cars on the roads.

The plaintiff’s major injury here is bleeding inside his brain, which can be totally disabling. The City of North Vancouver put a bike lane on Keith Road but then removed it following complaints from motorists. Are they now responsible for the plaintiff’s injuries.

Bike lanes are a fairly new phenomenon in Canada, and the law on the subject is far from clear. The idea is obviously to keep bicycles and motor vehicles apart, thus avoiding accidents. Does the City of North Vancouver have an obligation to protect cyclists by installing bike lanes? Did they encourage this accident by temporarily installing the lanes? Let me know what you think.

bicycle accident

ICBC applies for rate hike: cites distracted drivers and increased litigation and medical fees as reason.

To be clear, when ICBC refers to legal costs, they are referring to their own legal costs. Not legal costs incurred by injured parties to pursue their own personal injury claims. Those lawyer’s fees typically come out of the settlement.

The article above states that the number of claims has increased by 2000 to 4000 annually. Firstly, a significant portion of this is going to be the result of natural growth. The last census revealed that British Columbia’s population was growing at a rate of about 7%/5 years, with areas like Vancouver, Surrey, and the rest of the lower mainland growing especially fast:

More people means more cars, which means more car accidents. There are also issues of monetary inflation, with the inflation rate in Canada being around 2%.

ICBC states texting as an increased cause of rear end collisions, which may be true. However, a bulk of the increase may be attributable to a more knowledgeable public and a more combative legal atmosphere. It is now common place to see advertisements for personal injury lawyers on television, in newspapers, on facebook, on youtube, etc…As more people retain lawyers and fight for proper settlements, ICBCs expenses increase. ICBC has, in my opinion, also attempted to lower claim payouts by being increasingly combative and offering lower and fewer settlements. This increases the need for injured parties to retain lawyers to get a fair settlement and prolongs the legal process.

car accident texting

Please let me know what you think of ICBCs rate increases in the comments section below.

The ability to work now does not bar you from making a claim for future income loss.

You do not have to be totally disabled from work to make a claim for wage losses in a personal injury lawsuit. In this recent case from the Supreme Court of British Columbia, a lawyer who continued to work full time hours was given an award of $375,000 for Future Income Loss:

Here, the courts found that after being injured in multiple car accidents and, as a result, suffering from chronic pain syndrome and psychological injury, the plaintiff, although able to work full time, would be unable to work at full capacity and at risk of retiring earlier than normal. The issue was although the plaintiff was working full time, when he did work, he was not able to do so with the same intensity as before.

Many of my clients do not realize that significant claims for wage loss (both past and future) can be made despite not actually missing work. When negotiating with ICBC it is important to not only take into account what you have lost but what you might lose in the future. As it is impossible to predict how an injury will progress in the future, a claim should never be settled too early. You should not settle your personal injury claim until significant time has passed to get some idea of how your injuries will progress into the future. The four factors the courts will look at when assessing a claim for future income loss are:

  1. whether the plaintiff has been rendered less capable overall from earning income from all types of employment;
  2. whether the plaintiff is less marketable or attractive as an employee to potential employers;
  3. whether the plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and
  4. whether the plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.

This law extends awards for income loss to not only a plaintiff’s present job but jobs they may take in the future. Even though an injured party is able to continue working in their current role, if they may be limited in future roles, they are entitled to compensation for this impairment.

Wage Losses

Overly enthusiastic heavy metal fan headbangs his way to brain injury.

This article from the CBC illustrates just how easily a brain injury can occur. In a reality is stranger than fiction story, a heavy metal music fan ended up with serious brain injury after engaging too enthusiastically in “headbanging”. According to the article, this is one of three confirmed cases where a brain injury occurred after headbanging. The injured party in this case may have had a pre-existing benign cyst, which left him more vulnerable to a head injury.

Despite not suffering from an external head injury or blow to the head of any kind, head injuries, such as concussions, can still occur and be life threatening. This illustrates how the quick stop and go motions from motor vehicle accidents can result in severe injuries, despite their being a lack of external physical evidence. The injury in these cases is caused by the brain impacted the inside of the skull.

The Brain Injury Institute wrote an excellent article on how several common forms of motion in car accidents can lead to head injuries, including: airbag impacts, windshield impacts, and simple whiplash.

heavy metal

What is a Mild Traumatic Brain Injury?

Firstly, I will prefix this post by saying that I am not a doctor. I am a lawyer and will be speaking purely from the legal perspective of what a “mild traumatic brain injury” (“MTBI”) has become. I do, however, have bachelor’s degree in biology, which gives me some background on the scientific process.

There has been considerable disagreement in the courts about what a MTBI actually is. Much of this confusion rises from the challenge of taking scientific concepts, which focus on scientific process and competing theories, and adapting them to the legal process, which focuses on proving facts. In other words, a judge is expected to make a definitive decision based on testimony from doctors and scientists, who may be basing their opinion on multiple competing theories.

There has been significant disagreement about what a MTBI actually is but courts in British Columbia have adopted definitions of MTBI from various leading medical authorities, including the Mild Traumatic Brain Injury Committee of the Head Injury Interdisciplinary Special Interest Group of the American Congress of Rehabilitation Medicine:

“A patient with mild traumatic brain injury is a person who has had a traumatically induced physiological disruption of brain function, as manifested by at least one of the following:

  1. any period of loss of consciousness;
  2. any loss of memory for events immediately before or after the accident;
  3. any alteration in mental state at the time of the accident (eg, feeling dazed, disoriented, or confused); and
  4. focal neurological deficit(s) that may or may not be transient;

but where the severity of the injury does not exceed the following:

  • loss of consciousness of approximately 30 minutes or less;
  • after 30 minutes, an initial Glasgow Coma Scale (GCS) of 13-15; and
  • osttraumatic amnesia (PTA) not greater than 24 hours.”

However, these same cases stand at odds with the Brain Injury Association of America (“BIAA”) as they do not properly differentiate between concussions and MTBIs:

According the BIAA, MTBIs and concussion are both different types of brain injuries. Their definitions overlap, but they exist as two types of brain injuries along a spectrum, which goes from most mild to most severe injury: concussion, MTBI, moderate brain injury, and severe brain injury. Whereas the courts in the above noted cases referred to a concussion and a MTBI as the same thing or stated that a concussion was the cause of a MTBI.

This discussion could be just a matter of semantics as the courts have properly identified that, for the purposes of a legal perspective, the correct focus when discussing brain injuries should be on changes in behaviour and personality, and not what a MTBI actually is. Regardless of how the courts are defining brain injuries, the focus when determining a pain and suffering award for a personal injury has remained on the effect to the injured party. This is the correct approach. This approach explains many judgments, as this allows judge and lawyers to fit the scientific concepts somewhat neatly into legal framework and arguments, and the actual medical definition of the injured party’s injury is less crucial.

The above stated legal approach is going to be particularly appropriate where you are dealing with disputed and changing scientific concepts. As made clear by recent high profile and tragic cases involving recent NHL players Derek Boogaard, Rick Rypien, Bob Probert, and Wade Belak, the nature and long term effects of even minor head injuries are largely unknown.

Although prevention is often the best principle, drivers are at the mercy of other drivers on the road, and even the most cautious driving on your part cannot prevent a motor vehicle accident with any certainty. Even in situations where the head has not been struck a concussion or MTBI can occur if the brain is shook within the skull. As always, I recommend that all injured parties seek proper and immediate medical assistance.

The above stated legal approach is going to be particularly appropriate where you are dealing with disputed and changing scientific concepts. As made clear by recent high profile and tragic cases involving recent NHL players Derek Boogaard, Rick Rypien, Bob Probert, and Wade Belak, the nature and long term effects of even minor head injuries are unknown.

Although prevention is often the best principle, drivers are at the mercy of other drivers on the road, and even the most cautious driving on your part cannot prevent a motor vehicle accident with any certainty. Even in situations where the head has not been struck a concussion or MTBI can occur if the brain is shook within the skull. As always, I recommend that all injured parties seek proper and immediate medical assistance.

BRAIN injury

Issues with Wage Loss and Motor Vehicle Accidents

Many people lose employment income as a result of injuries sustained in car accidents. Making an appropriate determination of these wage losses is not always an easy task. This is particularly true when dealing with individuals who run private businesses with variable income.

The Supreme Court of British Columbia recently rendered a decision where the plaintiff was denied a claim for business losses, as he simply could not prove them:

(b)      Loss of Landscaping Income

[60]         The calculation of the loss of income from the landscaping business of Mr. Amini is impossible to ascertain.  First, his landscaping business appears to have been a cash business and there are no accurate records in evidence relating to what was received or what was then disbursed as business expenses.  Second, the “Business Income” reflected in his Income Tax Returns allows me to conclude that he was probably not declaring income from his landscaping business or that the income from this source equalled the expenses from both of his undertakings.  For instance, his business income for 2009 is shown as $14,450 whereas the income received from the North Shore News was $34,058.27.  A similar pattern is established for 2010 ($29,535.00 instead of $29,505.02), 2011 ($29,735.00 instead of $28,812.54), and 2012 ($28,734.00 instead of $27,670.19).  Third, the net business income for the years 2010 through 2012 allows me to conclude that many expenses were written off against any income that was reported from his landscaping business and/or from the North Shore News income.  In the circumstances, I am not satisfied that Mr. Amini has proven on a balance of probabilities that he suffered a reduction of income from his landscaping business as a result of the accident.

The injured party has the burden of proving their claim. In this particular case, the judge decided that Mr. Amini could not provide sufficient evidence to prove his claim for wage losses stemming from his landscaping business. His tax returns did not reflect this income loss, and Mr. Amini did not present additional evidence to make up for this short coming.

The issue of improperly completed tax returns creates additional issues. When determining an award, a judge will have to look to the credibility of the parties. If an injured party appears to have not told the complete truth on his tax returns, it can affect their credibility as a whole. The judge may, after seeing that a person is willing to lie on their tax return, determine that they are also willing to lie in court.

A good lawyer will tell you that the key to proving any claim is supporting evidence, which includes proper documentation. Even in negotiation stages, that take place prior to trial, ICBC will weigh the evidence in front of them before offering any kind of settlement.

Car accident

How a good physiotherapist can increase your personal injury settlement.

Depending on the nature of your injury, your doctor may recommend a variety of treatments, including: physiotherapy, massage therapy, acupuncture, yoga, active rehabilitation, and kinesiology. These treatments may not only improve your medical condition, but if you have been injured in a car accident, a good treatment provider can actually increase your settlement with ICBC.

As an injured party you have a duty to mitigate your losses by seeking proper treatment for your injuries. When an injured party’s case goes to trial and the judge decides that they have not sought proper treatment, the judge may decrease their settlement substantially. Judges have been known to reduce settlements by 25% or more when an injured party does not seek and cooperate with proper treatment.

It may also be necessary to call your treatment provider as a witness. It is important to seek a knowledgeable and experienced professional who can act as an advocate for you. In the event of a trial, a large part of your case will depend not only on your own testimony but on the testimony of your doctors and treatment providers. They may testify on a variety of subjects, including: injuries they observed, treatment they provided you with, and how you responded to their suggestions for treatment. Without this evidence, your odds of achieving a good settlement will be substantially reduced.

A good treatment provider will improve the quality of your life not just through treatment they provide but by maximizing the economic gains from your personal injury case. Those living in Vancouver and the lower mainland are fortunate in that they have a variety of excellent treatment providers to choose from.