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

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.

Background

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.

Verdict

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

https://canlii.ca/t/jbm9m

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 6^th 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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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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