Troubled pasts do not impact the value of a brain injured suvivors’ future

The decision of Madam Justice Dickson in Gilbert v. Bottle, 2011 BCSC 1389 was released on Monday, October 17th, 2011 . In my view, this is a good decision on many fronts.

The injury

Ms. Gilbert was injured in a motor vehicle accident on March 8, 2005 when she was a backseat passenger ejected from a vehicle being driven by an impaired driver.  She was not wearing her seatbelt.  As a result of the accident, she suffered a traumatic brain injury, fractured clavicle and multiple soft tissue injuries.  At issue were Ms. Gilbert’s contributory negligence for getting into a car driven by an impaired driver and not wearing a seatbelt, and the extent of her injuries.

Ms. Gilbert’s credibility

Ms. Gilbert is a 37 year-old First Nations woman who lived much of her life on the Sugarcane Reserve near Williams Lake.  She was exposed to poverty, substance abuse and other tragic circumstances before the accident.  In part because of these circumstances, the credibility and reliability of her evidence, as for the evidence of all witnesses, was scrutinized particularly closely.  Despite being mistaken and careless in her testimony, the judge did not find her to have consciously attempted to mislead the court.  This had a bearing on the contributory negligence and damages components of Ms. Gilbert’s claim.  Ms. Gilbert was not found to be contributory negligent in this case.

The judge’s conclusions

Madam Justice Dickson concluded that Ms. Gilbert sustained a “complicated” mild traumatic brain injury with significant and permanent sequelae as a result of the accident.  The factors she based this finding on are:

  1. Ms. Gilbert lost consciousness for at least 20 minutes after the accident and experienced posttraumatic amnesia for over a day.
  2. Ms. Gilbert’s brain was vulnerable to injury due to her pre-existing and long-standing pattern of significant substance abuse.
  3. Ms. Gilbert’s increased post-accident problems with cognitive processes, including poor memory and focus, executive function and associated personality change, are characteristic of frontal lobe brain injury.
  4. There is a strong temporal relationship between Ms. Gilbert’s increased cognitive and executive function problems and the accident in that the increased problems appeared immediately after its occurrence and have persisted ever since.
  5. Ms. Gilbert’s increased problems with cognitive function improved for a time, then plateaued, in a pattern typical of partial recovery from brain injury symptoms.
  6. The MRI findings show organic change to Ms. Gilbert’s brain, which, given her presentation, I am satisfied was caused by the accident.
  7. There is no plausible alternate explanation for the constellation of altered cognitive, executive function and emotional compromises consistently displayed by Ms. Gilbert since the accident.

She preferred the opinion of Ms. Gilbert’s experts with respect to causation of the traumatic brain injury.  Despite Ms. Gilbert’s history, Madam Justice Dickson found that Ms. Gilbert’s increased cognitive, emotional and neurobehavioural problems were related at least in part by the injury, and that the memory loss, low frustration tolerance and poor concentration are primarily connected with her TBI.  Madam Justice Dickson also concluded that Ms. Gilbert suffers from a chronic pain disorder, particularly in her neck, shoulder and back.  She also suffers from cervicogenic headaches.

Relationship between Ms. Gilbert’s past and her injuries from the accident

Discussing the relationship between her past and her injuries from the accident, Dickson J. described her as a “thin skull plaintiff” (taking the plaintiff as she is found, in the already damaged condition that may affect the extent of the loss actually suffered), as opposed to a “crumbling skull plaintiff” (a plaintiff who would have likely suffered the debilitating effects of her damaged condition in any event, regardless of the accident).

The court awarded $200,000 for her pain and suffering, noting particularly her permanent loss of capacity to work and engage emotionally with others in coming to this conclusion.  No amount was deducted for failure to mitigate despite Ms. Gilbert’s failure to follow recommendations made by her family physician.  She could not afford recommended programs and had deteriorated because of her injuries which led to her difficulties in pursuing recommended treatment.

Her past loss of capacity was nominal for any loss of capacity to work between the accident and the trial date but her loss of future earning capacity was much more significant, at $400,000, assuming a present value of an annual loss of $24,000 in earnings to age 65 (28 years).  Madam Justice Dickson took into account the risk that Ms. Gilbert might have continued her substance abuse habit beyond mid-life but also that her health may have improved somewhat, thereby opening up other career options to her.

Future care awards are notoriously difficult as they require prediction about what will happen in the future.  Madam Justice Dickson awarded $200,000 for future care needs based on her conclusion that Ms. Gilbert’s pre-existing mental, physical and emotional condition deteriorated significantly because of the accident; her traumatic brain injury sequelae are serious, debilitating and permanent; and her chronic pain is also debilitating.  What the court did not award was costs for a shared-living arrangement as it was considered to be highly likely that she would be helped and supported by her family with shelter and care for the rest of her life.

The bottom line is that notwithstanding Ms. Gilbert’s very significant history on physical, emotional, mental and psychological fronts, a significant award was warranted for her injuries, earning capacity and care because of the huge impact that her “complex” mild traumatic brain injury and chronic pain symptoms have had and will continue to have on her life.

Everyone has a history; this does not mean that injuries or the effects of those injuries are either without merit or merit less attention.

Rehabilitation: Courtesy of your insurance company

It’s no secret that prompt rehabilitation practices have reduced the ultimate cost of ICBC claims, and ICBC rehabilitation coordinators are an integral part of this process. But it’s important to remember that these coordinators are part of the insurance defence team and not your client’s advocate.

It’s when your patient is discharged from the rehabilitation facility that an ICBC rehabilitation coordinator becomes involved. It’s the coordinator’s job to assist your patient in achieving the highest level of gainful employment and self-sufficiency within the shortest possible time. At this point, ICBC and the health care system become enmeshed and it’s vital to know which rules apply.

Read more

Appointing a committee as legal guardian

In most cases an adult is legally capable of making their own decisions, to initiate, and settle a legal action. However, if a person is not legally competent to manage their own affairs or to make proper decisions in their own interest, someone else can (and should) be appointed to make decisions on their behalf. “Committee” (pronounced kom-it-ee) is the legal term used in British Columbia for this court-appointed legal guardian.

If our clients need the support and protection of a committee (and those with very severe brain injuries often do) we will arrange for this to occur. Often it is a family member or trusted friend who will become a committee, but it can also be the Public Guardian and Trustee, or even a trust company. This process allows a family to act on behalf of their loved one who may not be able to take steps or cooperate in the legal process.

We recently settled a case for a severely brain injured client whose son was acting as her committee. In this case, we took steps at the start of the lawsuit and appointed our client’s adult son as her legal representative. Throughout the litigation process he made all the decisions. In appointing her son as committee, it provided our client with the protection she needed during and after the lawsuit – ensuring that her interests are protected and that the funds she receives are spent sensibly.

What can you do if you don’t know who caused the BC collision that resulted in your injuries?

Car Accident

Under section 24(5) of the Insurance Motor Vehicle Act you can successfully sue ICBC as the nominal defendant if you have taken all reasonable steps to find the driver who caused your injuries.

However, the recent case of Morris v. Doe that was pronounced by the BC Supreme Court in March 2011, gave us all a serious reminder that you must take steps to try to find the parties responsible not only immediately after the collision but also in the days and weeks after the collision.

In this case, the plaintiff was a passenger who suffered injuries when the vehicle she was riding in, driven by her husband, was rear-ended by another vehicle. Her husband got out of his truck and indicated to other driver they should pull into a nearby parking lot to exchange information. The other driver appeared to agree by nodding, but took off before the plaintiff or her husband were able to get the information. The plaintiff quickly called the police and notified ICBC, but took no further steps to try to identify other driver after the collision.

The court decided that the steps taken by the plaintiff were not enough and the action against ICBC was dismissed.

The plaintiff had failed to make all reasonable efforts to ascertain identity of the driver as required by Insurance (Vehicle) Act, section 24(5). The court stated that further steps such as posting signs and advertising in a local newspaper in an effort to seek out potential witnesses would be entirely “logical, sensible and fair”. The plaintiff had not taken any of these steps and as a result she was left without any compensation for her injuries.

“Big City” Lawyer or local counsel … what to do?

Town in the West Kootenays of British ColumbiaMany serious vehicle collisions occur in smaller communities throughout British Columbia and Canada where access to experienced legal resources may not be readily available.

Sadly, we often hear, too late, about cases that have been settled for a small percentage of their true value because those involved (including the lawyer) simply did not understand the real costs of proving and providing care for a seriously brain injured person for the rest of their lives. Local legal professionals may be experienced and skilled, but many have not had the opportunity to develop the expertise that we have developed over many years of working in the brain injury field. Families fear that a “big city” firm will be expensive, distant, and won’t provide a high level of personal care that is relevant to their region.  In fact, the opposite is true.

 

Providing service where you are

By only having very experienced lawyers working in one area (brain and spinal cord injury) we are prepared to travel all over the British Columbia to ensure the best possible service is provided.  On many occasions we will travel across the province for a seemingly short, but important meetings or interviews.

 

Working with legal representatives in your area

In some instances we will partner with a local lawyer (at no cost to our client), who can assist in the community, while we work to ensure the full extent of care and income-loss issues are addressed and considered  long before any trial, mediation or settlement agreement occurs.

 

No additional cost to you

It usually costs no more to have an experienced “big city” law firm handle a case than it does to have a local firm who may not have the same level expertise – it may even cost less. If care is needed we are often able to assist to ensure it is provided.

 

Knowledge of local resources

We have spent years working with experienced brain injury professionals all over the province and are often well aware of the local resources to use, and those to steer clear of.

 

Access to brain injury experts

As a firm devoted to achieving maximum compensation for survivors of a traumatic brain injury, we work with the all the necessary experts to prove the consequences of a serious brain injury. This is often required to ensure that all aspects of the injuries suffered by our clients are addressed. We have access to some of the best experts in the fields of: neurology, neurosurgery, neuropsychology, psychiatry, physiatry (rehabilitation medicine), orthopedic surgery, endocrinology, as well as occupational therapy, economics, engineering, and many others.

 

Webster & Associates prosecutes injury claims throughout British Columbia.

We have represented clients in Trail, Castlegar, Kelowna, Kamloops, Vernon, the Okanagan, the Kootenays, Victoria, Nanaimo, Prince George, Merritt, Vanderhoof, Anahiem Lake, Courteney, Comox, Nelson, Fort Nelson, Terrace, Williams Lake and Prince Rupert. We’ve also represented clients from Alberta, Ontario, the Maritimes, the United States, the United Kingdom and around the world.

 
Read what past clients have had to say about us in the client testimonials section of our website.

 
If you would like to discuss any of the issues referred to above please feel free contact us:

Greater Vancouver: (604) 713-8030
Victoria, Vancouver Island: (250) 589-8030
Toll Free within North America: 1 877 873-0699 Read more

Brain injury during baby’s birth

Newborn babyThe birth of a new baby should be one of the happiest moments in a family’s life. Sadly, at times that joy can turn to heartbreak if a baby is not born healthy or if things go wrong in the hours or days following a birth.

Things can and do go wrong whether in a hospital delivery room, in a hospital nursery or at home during a midwife attended birth. At times, an injury to a baby cannot be avoided even with the best of care. Other times, the baby’s injury is the avoidable result of negligent conduct by a physician, nurse, or midwife. Doctors, nurses, and registered midwives all have insurance that can be made available to help care for a child who has suffered an injury through a breach of their expected standard of care.

Injuries can occur in many ways. Injuries caused by a lack of oxygen are too common and often preventable. A baby who does not get enough oxygen during the labour and delivery process will usually demonstrate fetal distress. Though appropriate monitoring, whether by electronic fetal monitoring or through auscultation, fetal distress can often be picked up at an early stage, and steps can be taken to have the baby delivered quickly in order to avoid any injury.

A lack of oxygen may cause an injury in different ways. It may be the result of a lack of blood flow to the tissues (ischemia) or a lack of oxygen within the blood (hypoxia) and a combination of the two.

After birth, a baby that has sustained a brain injury may show low apgar scores. He may have poor tone, poor colour and require resuscitation before he is able to breathe on his own. Some babies show a poor cry, poor suck, have a need for tube feeding, have persistent abnormal tone, or seizures. Some require medications like Phenobarbital for seizures or antibiotics like Ampicillin and Gentamicin.

Babies who have suffered a brain injury may undergo extensive testing after birth. Abnormal blood gasses, x-rays, CT scans and MRIs may each be indicators of a brain injury.

Some babies with brain injury may have blindness or other vision deficits, epilepsy, quadriplegia or developmental delays. Some have more subtle injuries, which may not be as outwardly obvious but may still be very serious or disabling.

The costs of providing the life-long care and rehabilitation that a child with a brain injury needs can be huge. In addition, that child may not be able to grow up to be independent, or to earn a living in the future. A legal action may provide the funding needed to ensure that an injured child is properly taken care of in the future.

 

Did you know that the limitation period for a birth injury in BC is 21 years from the date of the baby’s birth and may be even longer? If your baby may have suffered a birth injury, competent legal advice should be obtained at the earliest opportunity to be sure you know when a legal action must be commenced.

In addition to a baby’s claim for birth injury, parents may have a separate claim (called an “in trust claim” ). The limitation period for this claim may be as short as two years from the date of the infant’s birth. It usually costs nothing to talk to a knowledgeable lawyer to find out what limitation periods apply in your situation.

In our practice we have been retained to act for families with injured children even ten or twenty years after their injuries first occurred. Although delays may mean that the injury and the negligence that caused it are more difficult to prove, the claim can still be successful and insurance funding is probably still available.

Welcome to the Brain Injury Law Blog

Brain Injury BlogWebster & Associates is pleased to launch their new blog. This blog is the most recent addition to our ever-expanding list of initiatives directed at providing the highest quality of services to our clients, friends and those professionals  with legal or medical interests in brain injury issues.  We hope that this blog will provoke discussions of current legal, medical and rehabilitation issues related to brain injury.  Occasionally we hope you will find an entertaining or humorous story.

The law firm of Webster & Associates was started by Brian Webster, Q.C.  He took on his first brain injury case before CT’s were regularly utilized.  Both law and medicine have come a long way in their treatment of brain injury since then. The firm focuses on prosecuting brain and spinal cord injuries and pride’s itself on providing effective representation focusing on both rehabilitation, and financial recovery.

In addition to Brian, Webster & Associates is home to several lawyers, including Barbara Webster-Evans and Daniel Corrin. Barbara has a background in medical malpractice claims and over 25 years experience as a lawyer, while Daniel  has been working exclusively in brain injury for over 10 years.

We welcome your comments or suggestions about topics to cover.  Please check back regularly for new posts.

– The Webster & Associates team