In Grassick (Guardian ad litem of) v. Swansburg, the Plaintiff was a 16 year old pedestrian who was struck from the rear as he walked along a road at night. He suffered a traumatic brain injury, ranging between moderate and moderate/severe. At the time of trial, over six years after the accident, the Plaintiff continued to suffer from difficulties with memory, processing speed, focus and cognitive inefficiency.

 

The most contentious issue at trial was that of the Plaintiff’s entitlement to diminished earning capacity.

 

The Court heard how the Plaintiff, before the accident, had aspirations of becoming an engineer, which was disputed by ICBC’S lawyer, who argued that the Plaintiff’s desire to be an engineer did not arise until after litigation proceedings were commenced.

 

The Court was impressed with the drive and determination shown by the Plaintiff, concluding that there was a real and substantial possibility that he would have taken the necessary steps to becoming a professional engineer. The Court, however, also noted that the Plaintiff would find it difficult to work as a professional engineer, and to maintain full time employment.

 

ICBC’S lawyer argued that the Plaintiff has no limitation on his ability to work as an engineer other than his own perceived limitations.

 

Counsel for the Plaintiff relied on the expert evidence of an economist for an estimated lump sum present value of lifetime earnings of a male civil engineer in British Columbia. It is interesting to note that ICBC’S lawyer did not require the Plaintiff’s economist to attend at trial for cross-examination purposes.

The Court would eventually award the Plaintiff $3,000,000 in diminished earning capacity.

 

[186] I further find that Stirling would not have been content to be an “average” civil engineer. Stirling’s sense of self and confidence comes from being successful at what he does. He would have continued as he had before the accident, to excel in his endeavours, and to be above average. He would have done what it takes to obtain a position as an upper management engineer, or a position that would have earned him a salary greater than what the average engineer earns.

 

[189] The defendant in argument, detailed each and every mark or grade that Stirling has achieved since the accident to argue that he has excelled academically and succeeded in his co-ops. The defendant argues that Stirling has no limitation on his ability to work as an engineer other than his own perceived limitations and unrealistic notion of how successful he would be, absent the accident. Absent the accident, he would still have put in the same time and effort to succeed as he has.

 

[198] While Stirling suffers only mild cognitive impairments, they are potent for him. His cognitive impairments directly impact his drive to excel. Perhaps if he was content to be less than average at everything he does, it would not matter so much. But he was not, and is not content to be being average.

 

[202] I conclude that there is a real and substantial possibility that Stirling would have worked for a number of years as an “average” engineer, before moving up the ranks of engineers. He would have worked full time, and his professional career would be an important part of his life. He would have succeeded in becoming one of the higher paid engineers, a well above average engineer, or an upper management engineer.

In Van v. Howlett, the Plaintiff was seriously injured when ejected from the vehicle in which she was a passenger in. Her most serious injury was a permanent traumatic brain injury. She brought an ICBC claim for damages for pain and suffering, loss of income, diminished earning capacity, future care, loss of housekeeping capacity, out of pocket expenses, and an in-trust claim for her husband. Her brain injury had a devastating impact on her life, which was recognized by the Court awarding the maximum amount allowed for non-pecuniary damages, $351,000.00.

 

[49] Assessing non-pecuniary damages is not, of course, a matter of simply comparing injuries on a scale that ends at the upper limit. A trial judge is obliged to balance the need to arrive at an award that is specific to the plaintiff and reasonable to both parties, with achieving a result that is consistent with the fundamental principle that like cases be decided alike.

 

[50] On the evidence before me, I have no difficulty in concluding that the injuries suffered by Ms. Van are catastrophic. We are, in any practical sense, our brains. A brain injury of this degree of severity is a loss of one’s very self. Like Ms. Spehar, Ms. Van “has lost what to many is one of the most valuable aspects of being an adult human — the ability to have control over one’s own life” (Spehar at para 13). No aspect of her life, including her closest relationships, has been left unimpaired. Her outlook for the future is dismal. Her days are filled with pain and frustration. There is no possibility of recovery. The best she can hope for is that her deterioration will be slowed, and that her anger, frustration and depression can be addressed through medication and distraction. At worst, she will experience a premature and accelerated descent into dementia, losing what little has been left to her.

 

[51] In these circumstances, I conclude that Ms. Van is entitled to an award at the upper limit. I assess her non-pecuniary damages at $351,000.

In Hermanson v. Durkee, the Plaintiff was seriously injured in a motor vehicle collision, and consequently brought an ICBC claim for several heads of damages. Prior to trial, counsel for the Plaintiff and ICBC’S lawyer agreed on some heads of damages, such as non-pecuniary damages, special damages (out of pocket expenses), and income loss. Still in dispute were the categories of diminished earning capacity, the cost of future care, and in-trust claims on behalf of the Plaintiff’s mother. The Plaintiff was 18 years old at the time of the motor vehicle accident, and suffered a severe traumatic brain injury. The Plaintiff had yet to enter the workforce. The Court heard testimony from competing economist experts, and eventually awarded the Plaintiff $1.8 million dollars for diminished earning capacity.

 

[108] In considering the evidence of the individual earnings levels as presented by witnesses for the plaintiff, significant caution must be exercised. Neither economist was asked specifically why they did not consider specific earnings levels of specific individuals, but in circumstances such as these, there is a strong argument to be made that statistics which, by necessity, blend high income earners, such as those presented by the plaintiff, with those who have not achieved such earnings is a more reasonable approach. Not all of the witnesses who were called had indicated that it was their intention to stay in their high earnings positions in Northern Alberta, and it seems logical that many, including possibly Mr. Hermanson had he gone to the oil industry at all, would feel the same. On the other hand, one must recognize that Mr. Hermanson is part of a social group, many of whom had elected, at least in their early years of employment, to pursue such jobs.

 

[109] In my view, such evidence is merely a consideration in assessing the value of the lost capital asset. There is certainly a substantial possibility that Mr. Hermanson would have, at least in the short term, pursued such work. It is difficult to measure the likelihood of that and even more difficult to determine how long he might have stayed in such a position.

 

[110] The defence argued that the plaintiff might have retired early like his mother. While that is a possibility, such a decision would logically flow from a relatively high earnings stream and/or prudent savings habits to enable such a decision. It is not reasonable for the defence to say that the plaintiff would have both been a low earner with limited motivation and retired early.

In Wallman v. John Doe, the Plaintiff was an emergency room doctor who was involved in a rear end collision when his vehicle was struck from behind by a Transit bus. The Plaintiff brought a claim for injuries against the driver and owner of the bus, as well as ICBC as nominal defendant. The Plaintiff sought damages for pain and suffering, loss of income, diminished earning capacity, out of pocket expenses, and future care. The Court ruled that the Plaintiff suffered a mild traumatic brain injury (concussion), which had a devastating impact on his family life and career. Although the injury portion of the award was only $200,000.00, the Plaintiff was awarded nearly six million dollars in total, as a large award was made for diminished earning capacity.

 

[466] In my view the plaintiff has established beyond the balance of probabilities that the dramatic and sudden onset of symptoms of headaches, dizziness, nausea, vomiting, physical and mental fatigue, confusion, sensitivity to noise and light, irritability, depression and anxiety and problems with vision, concentration, multi-tasking and speech and communication, are the result of him having suffered a MTBI (concussion) caused by the Accident.

 

[470] Prior to the Accident, the plaintiff was a confident, decisive, energetic individual with an excellent memory and a penchant for detail. He was able to identify a problem facing him, define the options available for resolving the problem and choose from among them. He loved challenge and loathed routine. He felt he could accomplish anything he wanted to. He was the hardest-working emergency room physician at WHCC. He loved and was passionate about his work. He thrived on the stimulation and the trauma of the emergency room. He was happy with his life and enjoyed helping others.

[471] At the time of the Accident, the plaintiff was at the height of his medical career. He had a very good reputation as an emergency room physician and was well respected in the Whistler community. His reputation was important to him and he was proud of his accomplishments. He had no plans to retire.

[472] There is no question that the plaintiff’s life has changed profoundly as a result of the Accident. His ability to function in everyday life has been significantly impaired. He has considerable cognitive challenges that will likely affect him for the rest of his life. He has lost his overall confidence. He struggles to make decisions and initiate activities. He is inattentive and displays poor judgment. He has withdrawn socially. His thresholds for mental and physical activities are limited to approximately 2 hours and 30 minutes, respectively, beyond which he becomes symptomatic. He is no longer able to practice as an emergency room physician, a job he was passionate about and proud of. His ability to interact with and enjoy his children has been impaired. The medical experts are of the opinion that his recovery has likely plateaued.

[473] As a result of the Accident, the plaintiff’s ability to work in the job he loved has been taken from him. He has lost his sense of purpose in life. He no longer feels that he is a contributing and productive member of society. The realization that he will be unable to return to his profession and that his life as it was prior to the Accident is gone has been devastating to him.

In Payne v. Miles, the Plaintiff was 16 years old when she was struck by a motor vehicle on a marked crosswalk, and subsequently brought an ICBC claim for pain and suffering, as well as various other forms of damages. Liability was not admitted by the Defendant until the second day of trial. The primary issues for the Court to decide were the degree of cognitive and other psychological impairment suffered by the Plaintiff, the resulting impact of such impairment on the Plaintiff‘s future employment prospects, and the degree of ongoing care that the Plaintiff would require in terms of one-on-one assistance, and child care assistance. The Plaintiff suffered a moderate to moderate-severe brain injury due to an injury to her right temporal lobe, with ongoing permanent complications. The Court awarded the Plaintiff $210,000 for pain and suffering, over $600,000 for costs of future care, and $800,000 for future wage loss.

 

[80] She has and will continue to have various forms of cognitive impairment. She has difficulties with memory, concentration and various forms of executive function. She has difficulty processing information. She is limited in her ability to read to periods of perhaps ten minutes. She struggles significantly with mental fatigue which, in turn, limits what she can achieve and which exacerbates her cognitive and emotional difficulties. She becomes overwhelmed and has meltdowns.

[81] Her difficulties influence the most commonplace of activities. Though she drives without difficulty, she becomes anxious in new places. While she can use her computer and her cell phone without difficulty, relatively rudimentary computer programs have proven to be beyond her.

[82] She has consistently failed or struggled in her academic endeavors. She has been constrained in her employment efforts to low or entry-level employment. These struggles and failures have influenced her confidence and self-image.

[83] Her career and educational prospects are diminished. I will develop this evidence when I address Ms. Payne’s wage loss claim. At this point, I am focusing on the pleasure a person derives from school and from finding employment that is rewarding or fulfilling.

In Harrington v. Sangha, the court awarded $210,000 in pain and suffering damages for frontal lobe and brachial plexus injuries, commenting that:

 

[183]      There is no doubt that the plaintiff has been severely and dramatically affected by the injuries sustained in the January 18, 2007, motor vehicle accident. There is no doubt with respect to the extent of her physical injuries. There is convincing evidence that she has suffered a traumatic brain injury. That injury has affected her cognition and may have reduced her global intelligence. There is ample evidence from her family and friends that her behaviour has been significantly affected. She is irritable and disinhibited. Her memory and concentration are poor. These changes are typical of those experienced by people who have suffered frontal lobe injuries of the sort sustained by Ms. Harrington. She is affected by chronic pain and headaches. She requires significant medication to deal with her pain and that has further impacted her emotional state and her intellectual functioning. By all accounts she is now unemployable.

 

[184]      Fortunately, she is still largely independent and capable. As the defendants point out, she appears, to the casual observer and even to trained professionals on first encounter, to be someone who is functioning well and behaving appropriately. She is still capable of enjoying many of the amenities of life and may do so to a greater extent if she benefits from certain of the chronic pain management programs recommended to her.

 

[185]      It is true, as the plaintiff submits, that there is no “range” of devastating injuries. All devastating injuries should attract an award of general damages at the upper limit permissible. I am of the view, however, that while Ms. Harrington will be seriously affected for the balance of her life by the significant injury she sustained, her injury cannot properly be described as devastating. Unlike the plaintiff in Morrison v. Cormier Vegetation Control, she is not limited to minimal participation in the activities of daily living. She is unlikely to be shunned and the range of relationships open to her should not be forever limited. She appears, still, to have reasonable insight into her situation and condition and has in fact formed relationships since her accident. By suggesting an award that is marginally less than the upper limit, the plaintiff’s counsel implicitly acknowledges that this is not a case where the rough upper limit of general damages is an appropriate award.

 

[186]      On the other hand, the defendants, by referring only to the examining experts’ first impressions of Ms. Harrington and her appearance in the witness box at trial, underestimate the dramatic effect of the injury upon her. There is no reference in the defendant’s submissions to the common findings of the neuropsychologists with respect to the nature and extent of the consequences of the head injury.  Nor is there any reference to the testimony of the many family and friends who testified with respect to the dramatic change in the plaintiff’s behaviour. Taking into account both the very significant limitations in her physical activities associated with her brachial plexus injury and the functional impact of her head injury, I am of the view that general damages in this case should be assessed at $210,000.

 

The court also awarded the Plaintiff over $325,000 for diminished earning capacity, and close to $500,000 for cost of future care.

In Rintoul v Gabriele, the court awarded $175,000 for pain and suffering for a mild traumatic brain injury, noting that:

 

[242]      Particularly in light of the corroborative evidence of Ms. Shergill, and to a lesser extent that of Ms. McEwen and of the plaintiff’s mother, it is far more reasonable to conclude from the evidence as a whole that Ms. Rintoul is a person who has suffered a brain injury which is subtle in its presentation but which nevertheless has significantly impacted her life, particularly in the workplace, in ways which Ms. Rintoul to some extent finds difficult to articulate.

 

[243]      I do not find that Ms. Rintoul is, from a neurological or physical standpoint, totally disabled.

 

[244]      I find that the plaintiff has established on a balance of probabilities that the cognitive issues in her post-accident employment, and her ultimate dismissal from Shergill & Company, are attributable to the brain injury sustained in the subject accident.

 

[245]      I find that the evidence has established that the plaintiff has sustained a mild traumatic brain injury that has permanently impaired her cognitive abilities such that she will not be competitively employable beyond the level of the most junior legal secretary.

 

[246]      I find on the balance of probabilities that as a result of her cognitive injuries she cannot and will not in the future be competitively employable in a position of the type she was hired for at Shergill & Company, that of an intermediate secretary, nor in any more advanced position requiring her to work with minimal or no supervision on complex tasks or multiple tasks.

 

[247]      I also find that Ms. Rintoul likely retains some residual level of potential employability, up to the level of a most junior legal secretary, or a junior level clerk/typist. This is subject to a number of contingencies, as will be discussed below.

 

[248]      The defendant, accordingly, is liable for the pecuniary loss that flows from these findings.

 

It should be noted that the Plaintiff was also awarded $750,000 for diminished earning capacity.

In Madill v Sithivong, the Plaintiff suffered a mild traumatic brain injury. The Court addressed this area of law, effectively noting that even though the classification is “mild”, there can be serious, long term consequences.

 

[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 Cikojevic v Timm, the Court discussed the meaning of “mild” in a mild traumatic brain injury (MTBI).

 

[249]      A loss of consciousness is unnecessary for the diagnosis of MTBI. The Glasgow Coma Scale measures levels of conscious to assess initial severity, not to rule out traumatic brain injury. However, some degree of altered consciousness must be present before diagnosing MTBI. How long the altered consciousness lasts is relevant, as is loss of memory of events before the trauma. Matthew Hogg, the other passenger in the accident vehicle, said the plaintiff was dazed, shaky and “out of it”. She did not know what had happened. She could not undo her seat belt. The plaintiff described gaps in memory, and Mr. Cikojevic said the plaintiff was not making sense at the hospital. Altered consciousness clearly occurred in this case.

B.   What does “Mild” Refer to?

 

[250]      Although experts sometimes disagree on whether to call an injury a mild concussion or a MTBI, either term is suitable.

 

[251]      “Mild” describes the severity of the organic injury, not its effect.

 

[252]      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.

 

[253]      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.

 

[254]      The cognitive and emotional effects of MTBI can severely disable and impact the injured person’s life.