Recent University Graduate Awarded $1,233,105.91 in Personal Injury Case Following Head Injury.

http://www.courts.gov.bc.ca/jdb-txt/sc/17/00/2017BCSC0015.htm

In what can only be described as a tragic case, the victim of a motor vehicle accident was awarded a large settlement to compensate them for injuries and damages. During the accident, the plaintiff hit his head with significant force. He suffered a closed head injury and likely mild traumatic brain injury. The plaintiff had been riding a motorcycle. He stopped at a red light and was hit forcefully by a pickup truck from behind. The force of this impact was so severe that the plaintiff cracked several teeth when his skull and face struck the inside of his own helmet and his motorcycle was  embedded into the front of the truck.

At the time of his injury, the plaintiff was 28 years old and had recently graduated from the University of British Columbia with a degree in Kinesiology. He had been working as a firefighter but had aspirations of becoming a police officer. Injuries that the plaintiff sustained in the accident were likely to make this impossible. Prior to the accident, the plaintiff’s role involved rappelling in and out of forest fires. After the accident, the plaintiff could not hold down a security job.

Of interest here, was that the plaintiff had no certainty in terms of his career path and had not taken any concrete steps towards his goal of becoming a police officer. The judge ruled that even though this was the case, the plaintiff had established that he “would have applied for and obtained full time employment, likely in the fitness or recreation field.” The judge also ruled that the plaintiff was still capable of some kinds of employment but could not do “shift work” or work that requires “heavy physical requirements“.

Despite the plaintiff’s very general assessment of his future possibilities, the plaintiff was awarded $850,000.00 for Loss of Earning Capacity. This illustrates that despite uncertainty or only partial impairment a plaintiff can still be awarded a substantial claim to compensate them for a tragic injury.

 

 

 

Part 7 benefits and pre-existing injuries.

Part 7 benefits, also known as “No Fault” benefits, are benefits owed to parties injured in motor vehicle accidents in British Columbia. These benefits are payable regardless of who is at fault for a car accident, hence the moniker “No Fault” benefits. These benefits will cover a portion or all of various treatment expenses.

ICBC may attempt to use the presence of a pre-existing injuries as a justification for denying Part 7 benefits; the reasoning being that ICBC should only be responsible for injuries actually caused by a motor vehicle accident. However, it should be noted that there is a large difference between a pre-existing condition that contributes to an injury that later requires treatments and a pre-existing condition that is the sole reason for the treatment. Furthermore, the onus lies on ICBC to prove that “but for” the pre-existing condition, the treatments in question would not be required:

As per a recent Court of Appeal decision:

[67]         The judge concluded at para. 42 that ICBC had failed to prove that, but for the pre-existing condition, Mr. Kozhikhov would not have needed the treatments then claimed under Part 7.  He granted Mr. Kozhikhov summary judgment in the amount claimed of $10,863.86.

[68]         The judge was faced with conflicting medical evidence.  He assessed this evidence in his role as the trier of fact.  He then applied a legal standard (the “but for” test of causation) to the facts as he found them.  The judge’s finding cannot be traced to an error in his characterization of the legal standard.  Therefore, his findings are reviewable on the deferential standard of palpable and overriding error.

[69]         In my opinion, the judge’s findings were clearly open to him on application of the “but for” test of causation.  His findings of fact are well supported by the evidence.  ICBC has failed to identify a palpable and overriding error of fact, or any error of law, so it is not for this Court to intervene: Housen v. Nikolaisen, 2002 SCC 33.

http://www.courts.gov.bc.ca/jdb-txt/ca/15/05/2015BCCA0515.htm

This recent decision re-affirms an injured party’s right to Part 7 benefits despite a pre-existing condition. If ICBC wants to deny benefits, they must prove on a balance of probabilities, that the benefits would not be required if the pre-exiting condition did not exist. ICBC must also prove that the pre-existing condition would have resulted in the need for treatments in question regardless of the new accident related injury.

Future wage losses and retirement at 65.

Not too long ago, 65 was accepted as the standard age of retirement. However, as overall health levels improve and financial obligations increase, many people work well beyond 65. In a recent Supreme Court of British Columbia case, the courts acknowledged this:

http://www.courts.gov.bc.ca/jdb-txt/sc/15/23/2015BCSC2335.htm

This case involved a 63 year old plaintiff who, at the time of his car accident, had been working at Prospera Credit Union as the Manager of Investigation and Loss Prevention. The plaintiff’s tax returns revealed that he earned approximately $90,000/year. The plaintiff was able to continue working up to the time of his trial, and he was not given an award for Past Wage Losses. However, the plaintiff was given an award for Loss of Future Earning Capacity, which is an award meant to compensate plaintiffs for income that might be lost in the future.

In awarding the plaintiff future losses, the judge put emphasis on how the plaintiff’s household debt and obligations to pay for his daughter’s education were likely to force him to work beyond the age of 70. The judge also decided that the plaintiff was likely “to retire at an earlier age than he otherwise would have retired” and that his prospects for alternate employment were “poor”.

This case illustrates how the courts attitudes towards retirement and current financial circumstances have changed. Also, many people struggle through work despite ongoing injuries. Doing so is clearly not a bar to recovery for future wage losses.

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Should professional athletes who use steroids and other performance enhancing drugs be held civilly responsible for concussions?

The issue of concussions in professional sports has recently become prevalent. Most notably, in October a group of former NHL players filed a lawsuit against the NHL in the USA federal court:

http://www.sportsnet.ca/hockey/nhl/former-nhlers-file-concussion-lawsuit/

Professional athletes as a whole have become faster and more powerful, and this has led to more injuries. A major reason for this increased athletic performance is the increased prevalence of performance enhancing drugs in professional sports. The biggest recent case was the Lance Armstrong saga, but the world of contact sports have had their fair share of issues.

Bryan Berrard was the first NHL player to test positive for steroids. This happened in 2006:

http://en.wikipedia.org/wiki/Bryan_Berard

The NFL has had similar issues with concussion, and a settlement was approved by a federal judge earlier this year:

http://www.nfl.com/news/story/0ap2000000363672/article/federal-judge-approves-nfl-concussion-settlement

The NFL also has a much more sordid history of substance abuse violations:

http://en.wikipedia.org/wiki/List_of_suspensions_in_the_National_Football_League

The biggest issue I see with holding these players responsible for the injuries their drug use causes is going to be causation. It would be difficult to link the injuries from one player to specific substance abuse by another player. However there are specific incidences where a single body check or tackle will cause a injury.

Difficulties in formulating a legal approach should not result in the courts ignoring this issue as a whole. Is there really much of difference between using performance enhancing drugs in a contact sport and bringing a weapon onto the field. We wouldn’t flinch at holding someone who does the latter financially responsible. So why not hold other rule breakers responsible for the injuries they cause?

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

http://www.cbc.ca/news/canada/british-columbia/injured-cyclist-sues-over-north-vancouver-bike-lane-1.1286465

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

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

http://www.cbc.ca/news/health/headbanging-s-risks-include-rare-brain-injury-1.2695576

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.

http://www.braininjuryinstitute.org/Brain-Injury-Causes/Auto-Accident.html

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.”

http://www.canlii.org/en/bc/bcsc/doc/2007/2007bcsc671/2007bcsc671.html?searchUrlHash=AAAAAQB5Im1pbGQgdHJhdW1hdGljIGJyYWluIGluanVyeSIgQU5EICJwZXJzb24gd2hvIGhhcyBoYWQgYSB0cmF1bWF0aWNhbGx5IGluZHVjZWQgcGh5c2lvbG9naWNhbCBkaXNydXB0aW9uIG9mIGJyYWluIGZ1bmN0aW9uIgAAAAAB

http://www.canlii.org/en/bc/bcsc/doc/2002/2002bcsc1065/2002bcsc1065.html?searchUrlHash=AAAAAQAdIm1pbGQgdHJhdW1hdGljIGJyYWluIGluanVyeSIAAAAAAQ

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:

http://www.biausa.org/mild-brain-injury.htm

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.

http://www.tsn.ca/nhl/story/?id=383115

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.

http://www.tsn.ca/nhl/story/?id=383115

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