Court awards young, pregnant mother with soft tissue injuries $90,000 in non-pecuniary damages

Ms. MacDougall was rear-ended while driving in Nanaimo in 2017. At the time of the accident, Ms. MacDougall was 19 years old and 29 weeks pregnant and her 5 year old daughter was in the back seat.


Prior to the accident, Ms. MacDougall was a “caring and conscientious” mother. She enjoyed being active with her young daughter and often brought her with her on activities with her friends such as running, hiking, biking, and swimming.

Aftermath of the Accident

Following the accident, Ms. MacDougall was very concerned about the health of her baby and was panicking at the hospital because she could not feel her baby kick. Luckily, the fetal tests were normal but Ms. MacDougall suffered injuries to her neck and back. She also had ongoing headaches. Prior to the birth of her son, she was extremely anxious about his health, which caused her anxiety and prompted her to purchase a fetal monitor.

Due to her pain, she also found it difficult to bend over which made playing with her five year old hard. Ms. MacDougall had a constant headache and a painful neck which caused her to lay down most of the time. She relied on her mom and baby’s father to help with household chores. She also dealt with depression, which impacted her relationships. At the time of trial, Ms. MacDougall’s condition had improved save for some ongoing residual back pain, which she treated with physiotherapy.

In awarding Ms. MacDougall $90,000 in non-pecuniary damages, the court relied heavily on the “serious physical and psychological impact on Ms. MacDougall’s pregnancy and the neo-natal period.” The court noted the physical injuries impacted her ability to play with her daughter and baby and the psychological symptoms impacted her confidence and relationships. The non-pecuniary award took into consideration Ms. MacDougall’s reduced housekeeping capabilities and an in-trust award for her mother.

MacDougall v. McLellan, 2021 BCSC 163

Local photographer awarded $190,000 for pain and suffering after losing his creative muse

John Boyd of Collette Parsons Corrin LLP obtained a $240,000.00 verdict in favor of plaintiff following a November/December 2020 trial.

Mr. Brian Howell was an upcoming photographer in Vancouver when an accident resulted in the loss of his creative muse.

Mr. Howell’s Background & Photography

Mr. Howell majored in film and photography at Ryerson University. Following his graduation, he was one of the only two Canadians selected to attend the prestigious “Barn Storm” workshop in New York (a workshop for the top 100 photojournalist prospects in the world as judged by the photo editor of the New York Times). He started his career in Toronto, assisting photographers, providing photography for newspapers and magazines, and pursuing his own art projects. Later in the 90s, he moved back to BC to take a job with a local newspaper and had his first gallery show in Vancouver. In the early 2000s, Mr. Howell travelled to India to photograph Canada’s version of Mother Theresa, and these photos were exhibited in Toronto and published with a story written by Mr. Howell in Maclean’s, which opened up a long-standing relationship with the magazine that lasted until 2016.

Mr. Howell had a number of exhibits at the Winsor Gallery in the 2000s. In 2010, he shot the Olympics for Maclean’s Magazine. Mr. Howell’s most successful exhibition was Shopping Carts in April of 2011, which was inspired by what Mr. Howell saw in Vancouver’s streets. Mr. Howell had a variety of projects following that, including “Printing Press” in 2013 that went to the Surrey Art Gallery and another private collector. In 2014, Mr. Howell planned on a project, “Burnt Forest,” that he was working on at the time of the accident.

Aftermath of the Accident & Court Award

Following the January 2015, accident, Mr. Howell suffered from PTSD and persistent depressive disorder, diagnoses accepted by the court. His prognosis for these conditions varied among the experts called at trial. Mr. Howell’s treating psychologist testified at trial that “[Mr. Howell] had lost his muse.” The court noted that prior to the accident, Mr. Howell was “highly-engaged and dedicated to his photography, and socializing enthusiastically as part of Vancouver’s artistic world,” and following the accident, that changed completely. The court awarded Mr. Howell $190,000 in non-pecuniary damages and noted “he lost the focus necessary to do what he loved doing, suffering depression along the way, and deserves that compensation as a result.”


Howell v. Strutt, 2021 BCSC 92

Lifeguard awarded $120,000 in non-pecuniary damages for injuries while sitting in parked car

Ms. Morgan was waiting to pick up her boyfriend from work and sat in the driver’s seat of a parked vehicle with her left knee bent and foot on the seat. A vehicle driven by the defendant backed into Ms. Morgan’s vehicle, causing her knee to impact the bottom of the steering wheel which resulted in a great deal of pain in her knee and on the left side of her body.

Ms. Morgan struggled with learning disabilities from an early age and used her athleticism to feel she was good at something. At the time of the accident, Ms. Morgan was 28 years old and extremely active. She was employed by the City of Vancouver as a swimming instructor and a lifeguard, a physically demanding job. She also taught private swim lessons. The accident caused Ms. Morgan to be unable to continue her job as well as significantly reduced her ability to engage in athletic activities at the gym. At the time of trial, she had ongoing issues with left hip and right lumbar pain and was seeing a counsellor due to sadness she had felt since the accident.

The court found that as a result of the accident, Ms. Morgan was unable to do the job she loved and she could only perform her new job (a porter at St. Paul’s) with limitations and pain. The court noted her personality changed following the accident and she was less social. Most significantly, the court noted that Ms. Morgan’s injuries interrupted her active lifestyle, which was central to her identity and helped her overcome her shame associated with her learning disabilities. She was awarded $120,000.00 for pain and suffering.

Morgan v. Ziggiotti, 2021 BCSC 106


Law Student Awarded $2.75 Million for Capacity Loss Despite Delaying Law Career

After a July/August 2020 trial, Richard Parsons and Greg Hoff of Collette Parsons Corrin LLP obtained a $3.3 million verdict for a plaintiff who took a significant period of time away from her career to raise her young family.


The Plaintiff was a promising young woman who planned a career as a lawyer. She delayed her law career to allow her husband to achieve success in his career and raise her young family. The Plaintiff was keen to begin her much-anticipated law career in the fall of 2016 but those plans were derailed by an auto accident in March of 2016.

The Plaintiff was a star student who studied cell biology and genetics at the University of British Columbia (“UBC”). In the final year of her undergraduate studies, she began to consider a law career. After graduating, she worked full time for ICBC and took the LSAT and received a high score. She was accepted to law school at UBC and started in the fall of 1999. She continued to work part time while in law school.

The Plaintiff met her husband at the end of her first year of law school and the couple married the following year. After they wed, they discussed wanting to have two children relatively close in age. The Plaintiff’s husband had originally planned a career as a teacher, but became interested in a career with the RCMP.

At the beginning of her final semester of law school, the Plaintiff discovered she was pregnant. When her daughter was born in September of 2003, the Plaintiff took a year off of law school and work. Right after her daughter was born, the Plaintiff’s husband found out he was selected for RCMP training and went to the 6 month course in Regina. After his training, he was placed in the Langley detachment.

The Plaintiff returned to law school in the fall of 2004 and maintained exceptional grades. She became pregnant that year and gave birth to her son in 2005. In her last year of law school, she received an ‘A’ in tax law and did a directed research project on reproductive technology and parental rights.

The Plaintiff’s husband’s work schedule was unrelenting and took significant time away from his young family and he didn’t have a real opportunity to transfer to a less demanding position in the beginning of his career. The family decided the Plaintiff would delay her articling due to the demands of her husband’s job. In the following years, the Plaintiff’s husband was successful in his job, which resulted in him being assigned to a supervisory position. At that point, the young family decided the Plaintiff would delay her articling until her children were in grades 6 and 8 (Fall 2016) and could be independent. They wanted to be a good support to their children and didn’t feel they could achieve that if both parents were working extensive hours.

The Plaintiff’s father knew the principal of a local boutique family law firm, Ms. Janzen, and had contacted her about the possibility of the Plaintiff articling for her when she was able to. Ms. Janzen was interested in articling the Plaintiff and told her father to have the Plaintiff contact her when she was ready.

Unfortunately, the Plaintiff never had the opportunity to article. On March 18, 2016, she was involved in a motor vehicle accident. As a result of the accident, the Plaintiff suffered debilitating headaches, neck pain, shoulder pain, and back pain. The headaches caused the most trouble, as the Plaintiff was unable to spend any length of time at a computer or reading, which would be troubling for a career in law.

At trial, experts testified that the Plaintiff would have had an 80-100 percent chance of securing articles with a boutique family law firm had she not been involved in the accident.


Based on the above facts and expert testimony, the court found that the Plaintiff would have secured an articling positon in a boutique family law firm, which would have started at the beginning of 2017. The court also found that, following her articling, she would have gone on to be a successful associate and later partner at a boutique family law firm. Relying on expert testimony regarding the anticipated salaries the Plaintiff would have earned and assuming she would have worked until age 70 absent the accident, the court awarded the Plaintiff $2.75 million in future loss of income. The court rejected the defendants’ argument that the Plaintiff would have not been successful in obtaining a law career due to her delay in seeking articles, noting that the Plaintiff made an educated decision on what was best for her family and that she would have successfully secured articles and gone on to be a successful lawyer.

Orregaard v. Clapci, 2020 BCSC 1726

Pedestrian crossing the street hit by car resulting in a traumatic brain injury

On June 25th 2010, at around 11:00 pm Mr Alarcon was heading home, on foot, after having had a few drinks with a friend. At the same time, Mr Lee was rushing home in the usual traffic and found himself accelerating to change lanes, and avoid stationary cars. Without his headlights on, and travelling above the limit for that stretch of road, Mr Lee’s car collided with Mr Alarcon, as the latter crossed the street.

In the case of Perez-Alarcon v. Lee (2013 BSC 408), the court sought to determine the onus of liability by understanding a few key circumstances around the incident. Mr Alarcon suffered a severe brain injury as a result of the accident, and the case had been brought by his sister and guardian. The court sought to determine whether Mr Lee was wholly, or partially liable with the extent of damages to be determined by another trial. 

The court explored various expert and witness testimonies with regards to the speed at which Mr Lee was travelling, whether his headlights were on and whether he was paying sufficient attention as he approached the intersection. These questions found that on the basis of the outcomes of these three factual areas, Mr Lee was indeed negligent, as he was speeding, with his headlights off and that he should have seen the pedestrian who by all witness accounts acted in a reasonable manner as he crossed the street. 

The court also questioned the behaviour of Mr Alarcon; his high blood alcohol level, whether he was crossing in a designated area, whether he was running, and whether or not he was paying suitable attention to the traffic. 

Finally, the court explored the liability of the City of Vancouver, by questioning whether road signs and markings had any bearing on whether the driver’s ability to judge the scenario was impaired by misplaced of insufficient road markings.

 As Mr Alarcon crossed the street, he made eye contact with another driver, he was walking normally, and he took every necessary precaution, such that he held no liability for the accident, despite his blood alcohol level being three times higher than the legal driving limit. The facts of the case placed the full liability of Mr Lee, who, in turn, plead that the City was negligent in the placement of road signs, an issue which was quickly disregarded as experts analysed the circumstances of the accident. The question of the city’s liability due to insufficient road markings was explored in more depth, but there was no evidence to show that the markings were misleading in any way.

The judge referred to condition 179(1) of the Motor Vehicles Act, which clearly states that pedestrians have right of way, even where traffic signals are not in place, but that a pedestrian should not begin crossing the street if a vehicle is so close that it would be impracticable for the vehicle to avoid a collision. In this case, Mr Alarcon was crossing at a designated crossing, had already crossed several lanes, and Mr Lee, if he were paying better attention, and travelling at the speed limit, should have been able to avoid the accident.

Mr Alarcon’s life is permanently altered as a result of this accident, insufficient attention paid, and an unfortunate sequence of events. In the case of British Columbia Electric Railway Co. v. Farrer, the pedestrian, who saw a bus briefly but stepped into the road anyway, was found partially liable. In the case of Perez-Alarcon v. Lee, had Mr Alarcon had a lower alcohol tolerance or had he, in fact, run across the street, the outcome and burden of liability may have been substantially different. At the time of the trial, Mr Alarcon was not of sufficient capacity to attend. Accidents do happen, every day, but in these unfortunate events, it is good to have legal professionals, skilled and experienced in the specifics of brain injury to be sure that victims of such are well represented in these, often difficult cases.

ICBC Case – Pickup truck and tractor trailer collision on highway 16 near Prince George

A car accident can change the course of your life, and those around you. And the sad truth is that in a moment, the slightest angle, or movement can make all the difference. William Hogstead, unfortunately, suffered a severe head injury in a car accident which took place on January 6th 2010, leaving him unable to return to his usual affairs after the accident, and unable to remember any of the details of the collision that lead to his injuries. A devastating reality.

His lawyers had to put together the story after the event and it took a trial and appeal before his case would end.  William Hogstead, had been to the Prince George hospital for a routine CT scan, but as we later learned he was given some medication before he left.  He was driving his pickup truck home east on highway 16 on January 6, 2010. His vehicle and a tractor-trailer collided with each other “left tire to left tire”.  The tractor-trailer was being driven by Mr. Spiers, at the end of a long day possibly overdriving the trucking regulations. Mr Hogstead’s pick up went out of control and was smashed to pieces, the wheels on the left side of his truck were torn off, it spun and ended up in a snow bank.  All that was left was the gouge, from his pick up being forced into the roadway.

Two accident reconstruction experts and two different reconstructions made this case immensely complicated. The question of liability hung in the balance as the court sought to determine which reconstruction held true. By one interpretation, the ‘crescent shaped gouge’, thought to be from the rim of the pickup truck’s front wheel, would show that both parties were over the centre line at the point of first impact. In another, the crescent-shaped gouge over the centre line followed a row of others which suggested that only Mr. Hogstead was far over the line at the point of impact.

Before the question of damages sustained by Mr. Hogstead could even be addressed, the question of liability required an answer. Where did the principal impact occur? According to court transcripts, there was some evidence that Mr. Spiers had been passing in a no-passing zone.  Unfortunately this evidence came from a local young man, badly burned, who was on his way to treatment at a recovery centre and a driver less familiar with the area. The experienced truck driver swore that Mr. Hogstead travelled from the shoulder, across his lane, and into the oncoming lane. And from this meagre base, the Court had to try and piece together the truth from the darkness of a snowy mid-winter’s night, and the confusion of trauma.

Mr. Hogstead was left with severe damage to the brain, as often occurs, the brain is then incapable of storing information and thus unable to provide any reliable account of the sequence of events. Mr. Spiers testified that Mr. Hogstead glided slowly across the road to the point of impact. The two other witnesses weighed in on the actions and manner of Spiers, and testified that he had overtaken them shortly before the accident occurred, but much of their recall was unclear and uncertain as the stretch of highway where the collision occurred is dark, undulating and straight for many miles. At trial, the judge determined that the centre line gouge clearly indicated the point of furthest intrusion, that both parties were marginally encroaching, that neither party was speeding, and that if it occurred, the overtaking had taken place in a safe zone, before the accident occurred. A few small details, the width of the trailor, the angle of impact, and the precise location of the gouge helped to unknot this case.

ICBC denied any liability for the truck driver, Mr. Spiers, before trial, at trial and at appeal.  The Court, after a detailed analysis, and excellent legal work in establishing the facts of the conflicting accounts, found both drivers were found to be equally at fault. Mr. Hogstead, despite being unable to say at all what occurred was able to undo the experienced trucker’s accusation of having glided across the road into the truck was thankfully spared by the true facts of the case, and his legal representation.

After the Court of Appeal decision was released the case was resolved for many times more than ICBC originally proposed.  Despite a successful legal result these tragic cases can dismantle so much of an expected life trajectory. This sad and difficult case shows how challenging the reality of post-accident life can be. Car collisions happen. Lives are altered in mere moments. And in the tender space of brain injury, a delicate approach to the legal aspects can help to optimally compensate for the lost life path, and through careful referrals and an understanding of head injury conditions, the right advice can establish the new path, and launch accident victims with hope, an understanding of what to expect from life, and financial backing to handle the challenges.

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Police pursue ATV; rollover and spinal cord injury results; significant award for passenger

ATV Accident resulting in a spinal cord injury to our client

On August 11, 2013, mechanic, and family man, Mr Parlby was travelling rural trails in an ATV he had repaired with childhood friend Mr Pelland. The last time Mr. Parlby’s wife, and mother of his young daughter heard from him was at around 2:45 am when his phone battery died, in the pouring rain, where the men were stuck with an overheated ATV, too little fuel, and little chance of getting home in a hurry.  Unhappy, Ms Mclaughlin held their child close, and waited for the men to return.

No one could have anticipated that that was the last day Mr Parlby would be formally able to work as a mechanic. No one could have anticipated the complex sequence of assumption and response, which dictated the momentary choices of the three men involved in a collision which left Mr Parlby unable to resume a normal life.

Without helmets, and setting out late in the evening, the two men found themselves at the A&W after hours battling the newly repaired ATV which had been overheating as they tested it over rocky trails. Mr Parlby assumed his friend would take the usual, off-road route home after finally emerging from narrow trails to the scales, but his friend was driving, and it all happened so fast. When Mr Pelland pulled out of the scales area and started out in the wrong direction on the highway ramp, the lights of a police car flashed on.  Mr. Pelland appeared to panic. A collision between the ATV and the police car occurred after a brief pursuit, the latter colliding with the ATV and sending it down an embankment, ejecting both Mr. Pelland and Mr. Parlby.  Mr. Parlby suffered extensive injuries, most significantly a spinal cord injury.

This was a long and complicated case, with conflicting statements and recollections of the details of the events. Reconstructions complicated the missing memories as the parties tried to string together the precise sequence of events making their case.

While Constable Starr, through his statements and testimonies, described an incident where an intoxicated driver tried to ram him off the road with an ATV as he tried to overtake them to warn the public of the reckless vehicle’s presence, at an intersection up-ahead; Mr Parlby’s recollections were of confusion as the speeding police car appeared, disappeared, and re-appeared shortly before making impact with the ATV and sending it hurtling off the road. The men were not wearing helmets.  The original intent of the ATV trip was for Mr. Pelland to show his friend a short trail leading to his relative’s house.  That afternoon and evening, together with Mr. Parlby’s family the two friends had shared a BBQ meal and then had worked on Mr. Pelland’s vehicle outside, consuming a few beers over the course of many hours.

This case was tough from the start. The assumptions of Constable Starr, based on the driver’s handling of the ATV directed, and in his eyes, justified his decision to stop the ATV. Mr Parlby’s claim in negligence required that he prove that the defendant (Constable Starr) owed him a duty of care, that the constable breached this duty, and that the damage sustained and proven was caused by this breach. The trial judge’s analysis recognized that under the stress of the situation, perfection was not expected of the officer.  However, she found that the officer failed to conduct the ongoing risk analysis which constituted taking the necessary care, while attempting to overtake the ATV driven by Mr Pelland. Constable Starr, it is concluded, did not act in a reasonable fashion given the vulnerability of the passengers and the real risk posed by the ATV, travelling at around 40 mph. Furthermore, his claim that the men in the ATV were negligent for having neglected to wear seatbelts was denied as the judge found that in this case, the evidence, including expert evidence, did not establish that a seatbelt would have prevented the outcome to Mr. Parlby.

Mr Pelland, the driver and friend of Mr Parlby certainly breached his duty of care. He made the decision to continue on a public road in an unroadworthy vehicle, and refused to stop when instructed by the officer. At the end of the analysis, 65% of fault was apportioned to Mr Pelland, and 35% to Constable Starr.

The events leading up to this case were all materially significant, but all part of a normal, albeit long day between friends. In the blink of an eye, one can find oneself in such a position. In conclusion, after a plethora of testimonies by medical experts, it was found that Mr Parlby suffered Mild Traumatic Brain Injury (MTBI), significant spinal cord and other orthopedic injuries, and was likely to deteriorate over time. The award of damages included considerations of foregone past and future earnings, Mr. Parlby’s experience of pain, the costs of future care; including psychological and physical therapy, modifications to vehicle and home, as well as a range of other considerations.

In such cases, where a complex series of events might render judgment difficult, one is well advised to seek legal counsel with experience on how such events, and their repercussions ought to be compensated. It is difficult to know, in periods of traumatic distress, the true loss one might experience in such cases. It is all too easy to put these experiences down to an accident, whereas life changes such as this stand to impact on our futures to a greater degree than we can ever anticipate or understand.

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ICBC Car Accident Resulting in Brain Injury

Gabor v. Boilard, 2015 BCSC 1724

The Case of the Accident of Ms. Gabor

“The experts agreed that no other area of medicine is as controversial as mild traumatic brain injury [296]”

In the case of Ms. Gabor, liability was admitted, and the facts of this matter of the car accident itself were cleared up quite quickly, through admission, and an accurate, albeit sketchy recollection of the events of the incident. The Defendant Wayne Boilard admitted his error in causing the accident and gave a clear account of the events as he recalled.

What followed, however, has added significant complexity to this case, and issues surrounding it. Ms. Gabor was 29 at the time of the accident and claimed that the accident had been the cause of chronic pain, psychological damage and a residual condition which seriously impaired her ability to continue living the life she had before the accident.

Ms. Gabor claimed that the injuries sustained were severe enough to warrant substantial compensation for damage to her career as an artist and University Professor. The defendants immediately called the credibility of Ms. Gabor, as a witness, into question. The defendants, and the cross-examination suggested that Ms. Gabor had purposefully misled the court, and that her ailments, or rather her credibility in general, needed to be contextualized with a pre-accident prescription of Ativan, a brand of Lorazepam used to treat anxiety related to depression and other anxiety disorders, and a range of other indicators of depression associated with her adolescence, which surfaced in the courtroom.

The Judge ultimately found, while admittedly treating her testimony with caution, that Ms. Gabor had tried to answer questions helpfully, and truthfully, but still acknowledged that the Plaintiff seemed inclined to lose her focus at times.

The grueling case tackled a range of issues around Ms. Gabor’s mental and professional state prior to and subsequent to the accident. The court heard of her childhood, and minor depression in her adolescence, and then heard of her achievements and organizational ability through her University years. The court heard of how Ms. Gabor had been hardworking, high functioning, and capable of complex tasks at her first job as the Fine Arts Technician at the U Leth Gallery. The Curator testified of her social and professional aptitude, and her talent which were the reasons she landed the post, one not easily assumed by anyone other than an aspiring and capable artist. Ms. Gabor went on to complete her Master of Applied Art at Emily Carr and accolades, and positive references were forthcoming.

The details of how this move and the potential breakdown of her romantic relationship at the time were picked apart. Her sessions, of which there were approximately nine, with a psychologist were studied in court. But this was taken to be relevant for her ‘age-and-stage’, and all witnesses confirmed that she had been fully functional throughout this time.

Witnesses from Emily Carr confirmed Ms. Gabor’s ongoing achievements through a social and academically rigorous calendar. She participated in a range of activities and was on the shortlist for a scholarship. Her interest in the practical, as well as the academic aspects of her studies, earned her respect from esteemed and respected professors.

All of these facts and more had to be called to allow Ms. Gabor the opportunity to present her pre-accident state, and to justify her claim of loss. Her father described that for as long as 45 minutes after the accident, she was non-coherent, confused and in a state of disbelief. Her car had been completely written off as a result of the collision with the pick-up truck, driven by Mr Boilard as he skipped a red light.

A range of witnesses from after the accident outlined her evident stress and inability to complete tasks such as moving house, her inability to work and complete a project which would have bolstered her career, and a range of witnesses gave their ‘before and after’ impressions of a shining, and aspiring artist, who, subsequent to the accident, could not articulate her vision, lacked enthusiasm, and seemed a different woman to the artist they had known before.

In the courtroom, her parents were criticized as witnesses for presenting clearly partisan arguments. In a court where witnesses called as experts cannot be advocates, the judge ultimately found their testimonies to be befitting of parents undergoing the stress of loss, but reliable on all material points. The defendant’s case took examples of doctors’ testimony of her behaviour as being theatrical, and ultimately dishonest. When Ms. Gabor’s boyfriend offered her an excellent contract for project work which she was incapable of completing, the defendant’s claimed that he had been controlling and judgmental, which he was by Ms. Gabor’s own admission, meaning her ability to work had not, in fact, suffered. But the judge found her sympathetic enough as a witness.

Every success and failure of Ms. Gabor, including her first solo exhibition was dragged before the court and turned this way and that – as the defendants ascribed new explanations, and questioned the objectivity of the facts. They questioned her motivation and confidence, over her abilities which she felt she had lost, and insisted that the pre-existing conditions were sufficient to explain her lower-than-expected outcomes.

In the end, Ms. Gabor was diagnosed with Adjustment Disorder, which her doctor felt would not necessarily have arisen, if not for the accident. A myriad of doctors’ visits, the use of a neurostimulant medication, and several diagnoses later, it was confirmed by many that impairments in her visual memory and other continued effects of the mild traumatic brain injury incurred as a result of the accident would ultimately affect her career prospects.

It is heart wrenching that in a case to prove mild brain trauma, precisely difficult because all the symptoms and their combinations are not unique to this cause, led to a woman’s life being called into question. Her high school results were brought as evidence that perhaps she was not-so-brilliant, her awkward grungy adolescence brought before the court as potential evidence of her instability, her relationships dissected for evidence against her claims, any doubt in her actual career path of choice was scrutinized, and every aspect of her and her parents’ credibility called into question. These all have a bearing on this case even if by some remote degree, but an indecisive, and artistic 20-something, trying to make her way in the world could not have foreseen this while following her heart, and nose through the challenges of life and a budding art career.

In the end, the judge found that; as her injuries were, based on probability, a direct result of the accident, and that the effects were likely to be permanent, that “the whirlpool of symptoms caused by the Accident has substantially and detrimentally affected the quality and enjoyment of Ms. Gabor’s life and the lives of those she loves [576]”. The judge ruled the costs to be $ 200,000 in non-pecuniary damages, $50,000 net past loss in earnings, and with a gross future loss of earnings of some $1,787,266, the net amount in damages was calculated to be $750,000. Other costs included costs of future care special damages claims, and an in-trust amount of $6,000.

Cases so nuanced and specialized as these require experts. Subjectivity and experience, in the context of the immeasurables of pain, confusion, and the attribution of these are precisely the reasons why brain and head injury litigation, to be really effective requires trial experience, a deep knowledge of preceding cases, and a specialist understanding of the medico-legal aspects of these complex cases.

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The Case of Michael Paur and St Paul’s Hospital: Negligence

Cases dealing with brain and head injury involve a complex and highly specialized aspect of the law. In cases of medical malpractice, the depth of experience required, as well as knowledge and awareness of the clinical, and legal aspects involved, is substantial. Trial and context specific experience, as well as a knowledge of past cases can make or break these cases.

In the case of Michael Jason Paur, who hanged himself in a bathroom of St Paul’s Hospital, British Columbia, the hospital was found negligent under the Occupiers Liability Act, R.S.B.C. 1996, c. 337. The two nurses responsible for Paur’s care at the time of the incident, were found liable under negligence. These rulings held through an appeals process.

The initial medical malpractice claim was brought against the admitting physician, Dr Pickett, as well as against the hospital and the nurses who were responsible for the patient’s care at the time of the incident. In cases such as these, it can be difficult to assess negligence of medical professionals, particularly where the judgement of negligence requires some clinical knowledge, but in this case, although the incident was not fatal; the patient suffered severe brain damage as a result of the suicide attempt; and it was clear that the incident could have been avoided with better supervision, and the consideration of the institution to render the ceiling ligature proof. Ultimately the facts were around required standards of care, and the existence of foreseeable risk.

Much of the main court case was taken up with deliberations around the expert opinions provided by Mr. Paur’s legal counsel. When the court explored the facts surrounding this case, it was found that there was substantial evidence, at the time of the involuntary admission of the patient that he should have been better supervised. In the conclusions of the original case, the hospital was found to be negligent because they should have been aware of the real risk associated with this patient, and the fact that there were no policies or protocol in place to ensure patients were not unmonitored [6,7,8,10]. The nurses were found to be negligent for having ‘lost track’ [14] of the patient for long enough for the incident to occur. Dr Pickett, the ER Physician, was not found to be liable.

These defendants questioned the validity of the so called expert reports, brought as evidence against them, mainly on the basis that they deemed these experts insufficiently qualified to make judgements on the matter, and stated that their opinions were not properly explained. When the reports of each of these three experts were examined in court however, none were found to be inadmissible, having adhered to the rules for admissibility drawn from legal precedent of a range of cases referenced. Two doctors; one psychiatrist, and one anaesthetist; and an architect, found a number of key background facts, which point to the reality of negligence. Mr Paur had clear indications of being a suicide risk, and had been certified under the Metal Health Act, for having suicidal thoughts, on admission to the hospital. When found, he had been hanging for some five to ten minutes, in a locked bathroom in a ward, and indicating a pathology, which required strict supervision and observation.

These decisions were taken to Appeal. The Supreme Court of Appeal found that the liability issue which rested on the onus of proof on standard of care required, would remain unchanged, but that the weighting given to consideration of privacy required some further deliberation. This was duly considered in the appeal, but the conclusion reached, was the presiding judge sufficiently considered the therapeutic aspects of privacy and dignity for mentally ill patients, but was right in her weighting and prioritization of safety over privacy [64].

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Review and Clarification on the law on “confidentiality between patient and doctor” in a legal context

As part of a significant medical malpractice decision released in Ontario (Bauer v Kilmurry, 2016 ONSC 7749 (CanLII) ) the court discussed important issues regarding physician / patient confidentiality.

The plaintiff, Ms. Bauer, had a medical condition requiring surgery and following that surgery, she suffered a cerebral artery stroke that left her paralysed. The case itself was about whether that surgery was performed negligently and whether negligence led to the stroke and paralyzation.

While the main part of the case discussed the usual components of medical malpractice action (standard of care of a physician and causation), it’s Canada-wide implication arises from a part of the decision that reviews and clarifies the law on “confidentiality between patient and doctor” in a legal context.

While medical professionals reading this might say, “What are you talking about? That’s sacrosanct.” We have seen much confusion over the years. In law, there is “no property in a witness” meaning that either side can seek to speak to anyone who is not a party in the specific case. For example, a lawyer for the defence can phone up a treating practitioner and fairly say “there is no legal reason that you can not speak to me or tell me anything about person X”. There is even a legal process for giving notice before trying to speak to a physician (called a Swirski interview).

This decision helps bring the law back in line with the ethical practices of most medical professionals. It references a 2003 Ontario decision where the plaintiff had committed suicide and the defence obtained a medical report from the plaintiff’s treating psychiatrist without consent and then wanted to use that opinion at the trial. In a complicated decision, the Judge did not allow the defense to do so.

This case reaffirms that physician-patient confidentiality is the clear rule. It repeats that the defence should not be permitted to speak to a plaintiff’s doctor without clear permission from the patient. “Ex parte” or without the consent of the plaintiff discussions should not be allowed. Copying an eloquent American decision it states:

many courts have permitted defense counsel to engage in ex parte conferences with a plaintiff’s treating physician. … We find the reasoning of these decisions, however, to be flawed for they attempt to deal with a question of great societal importance by merely looking to a set of codified rules and procedures for the answer. Indeed, those decisions which permit ex parte conferences fail to acknowledge that a physician is ethically required not to speak to a third party regarding a patient’s confidences absent patient consent. … Moreover, a decision permitting ex parte conferences demonstrates a gross lack of regard for the confidentiality and fiduciary relationship existing between a patient and his physician. … And finally, a decision to allow ex parte conferences neglects to take into account the modern public policy that favours the confidentiality of the physician-patient relationship and thereby prohibits, because of the threat posed to that relationship, ex parte conferences between defense counsel and a plaintiff’s treating physician.

In short, if you have a patient and someone else (anyone else) is asking about them – look first to your college and ethical obligations to that patient, then ask for legal advice that considers your moral and ethical obligations.

Here is the link to the decision. The section dealing with the above issue is found on page 20 (Part 1, section 7).