Rules about operating a vehicle not always the same

commercial transport truck with red cabWe tend to think about injuries arising from vehicle collisions as simply the result of “motor vehicle collisions” and that the rules associated with driving are the same whether the vehicle involved in a collision is a motor cycle, sports car, family van, snow plow or semi trailer vehicle.

It is true that there are many similarities, but the rules around operating a vehicle are not always the same in every case!

Professional truck driver

The standard of care required of a prudent professional truck driver operating a commercial tractor hauling a trailer may well be different than the standard of care required of a driver of an average passenger car. That was the recent finding of Justice Ehrcke in the case we won at trial last year; MacEachern v. Rennie.
Mr. Rennie was a professional driver with a class 1 license when he struck our client in broad daylight as she cycled down the side of the road with her friends.

In allowing us to present expert evidence to the court on the expected standard of a professional driver, the judge said:

“In the present case, while most adults in British Columbia may have some experience in driving motor vehicles, few have experience in driving large commercial tractor-trailers. Few would know from their common experience what the handling characteristics of such vehicles are, or what the visibility is from the perspective of a driver in the cab, or what the common driving practices are of professional drivers of such rigs.

Not only have most persons never had the experience of driving such vehicles, most persons would not even be legally permitted to drive them, since to do so one must first satisfy the requirements to obtain a special class of driver’s license.”

MacEachern v. Rennie , 2009 BCSC 585

With the help of a driver training expert, we were able to show that Mr. Rennie was negligent in failing to take reasonable steps to avoid our client who would have been obvious to any driver who was approaching her and her companions. The court agreed:

“Mr. Rennie, as the driver of a large commercial vehicle, had a duty to provide enough room for pedestrians and cyclists to proceed safely along the shoulder. It was not enough for him simply to keep his vehicle from encroaching onto the nominal fog line. Any reasonably prudent driver in Mr. Rennie’s position would recognize that even the best cyclists do not always ride in an absolutely straight line and in a completely upright position… All reasonable prudent truck drivers would, if possible, leave some buffer space between their vehicles and passing cyclists to allow for the fact that cyclists will inevitably sway to the left and right. In addition, it is reasonably foreseeable that a cyclist may from time to time lose his or her balance, and a reasonable prudent truck driver would leave some space between his vehicle and a cyclist to allow for that possibility.”

Bringing legal actions against truck drivers and trucking companies involves complexities that may not be understood by everyone. For example professional drivers are limited to the number of hours they can remain on the road, the trucks they drive may be equipped with a “black box” data recorders that can offer vital data about the accident, the vehicle may also have onboard freight tracking data, logistics planning equipment, and even fax machines, in addition to the usual on-board distractions such as cell phones.

Snow plows are another area where expert evidence on operating standards may be heard by the courts and where our firm has had experience.

It is important that drivers, particularly those who operate commercial vehicles, large recreational vehicles, or motorcycles, be aware of the standard of care they are obligated to maintain when driving. In the case of MacEachern v. Rennie the court agreed with us that Mr. Rennie did not display the necessary care when driving a large commercial vehicle.

Impaired facial affect recognition as a result of TBI

Impaired facial affect recognition appears to be a significant problem for survivors of traumatic brain injury. These difficulties can be partially attributed to problems with emotion perception. Mounting scientific evidence shows facial affect recognition to be particularly difficult after TBI. Facial affect recognition is achieved by interpreting important facial features and processing one’s own emotions. These skills are often affected by TBI, depending on the areas of the brain that are damaged. Impaired facial affect recognition can present a huge challenge for many people after traumatic brain injury (TBI), resulting in problems with communication and social relationships.

A study published in Neuropsychology has attempted to estimate the magnitude and frequency of this problem. Scientists conducted a meta-analysis of existing scientific evidence examining the magnitude and frequency of facial recognition difficulties after TBI. This was calculated from 13 studies (296 adults) comparing adults with moderate to severe TBI to healthy controls on static measures of facial affect recognition. Based on this data, they were able to estimate that 13-39% of people with moderate to severe TBI may have significant difficulties with facial affect recognition.

This area clearly needs more attention, particularly in examining possible rehabilitation techniques for this deficit. Impaired facial affect recognition is one of many problems faced by survivors of TBI. It is important that survivors, their families and friends are educated about this and other impairments.

“Meta-analysis of facial affect recognition difficulties after traumatic brain injury”
in Neuropsychology (2011) . By DR Babbage, J Yim, B Zupan, D Neumann, MR Tomita and B Willer.

Study Links Brain Injury and Depression

A recent study produced by researchers at Vanderbilt University Medical Center found that 30% of individuals who suffer a traumatic brain injury (TBI) will experience depression after the injury. “Any patient who has a traumatic brain injury is at a real risk for developing depression, short and long term,” said study co-author Dr. Oscar Guillamondegui. “It doesn’t matter where on the timeline that you check the patient population — six months, 12 months, two years, five years — the prevalence is always around 30 percent across the board.”

This study reinforces the fact that patients and their families need to be educated about the potential problems that survivors of traumatic brain injury may experience. For more information on the impact of brain injuries on survivors and their families see the ‘Traumatic Brain Injury and the Family’ section of our website.



Brian Webster to Co-Chair Brain Injury Conference

TLABC Brain Injury Conference 2011:
The Anatomy of a Brain Injury Case: Focus on the Frontal Lobes

May 13-14, 2011
Fairmont Waterfront Hotel, Vancouver, Canada

Brain Webster, QC, is co-chairing the Trial Lawyers Association of British Columbia’s brain injury conference with Harvard trained addictions psychiatrist Dr. Shaohua Lu. This year’s conference will be held on May 13th and 14th at the Fairmont Waterfront Hotel in Vancouver, with the theme The Anatomy of a Brain Injury Case: Focus on the Frontal Lobes.

The conference is aimed at lawyers, physicians and allied health professionals.  It is geared towards educating those with limited brain injury experience to those with a significant history in the field. It aims to provide attendees with tangible, practical, and theoretical information on brain injuries. A number of renowned, legal and medical professionals will provide their insight into key elements of a brain injury case: from incident and diagnosis, to treatment and successful prosecution of brain injury litigation cases. Medical physiology, imaging and behavioural aspects of frontal lobe presentation will also be covered.  As well, special guest Neil Sugarman, one of the UK’s leading litigation experts on shaken baby syndrome, will  provide unique perspective on the Canadian system in comparison to Great Britain.


Legal speakers include:

  • Brian Webster, QC, Solicitor, Webster & Associates
  • Daniel Corrin, Lawyer, Webster & Associates
  • Neil Sugarman, Solicitor, GLP Solicitors
  • Mike Slater, QC, Founding Partner, Slater Vecchio
  • Albert Roos, QC, Founding Partner, Sugden, McFee & Roos LLP
  • Richard Lindsay, QC, Partner, Lindsay Kenney LLP
  • Linda Wong, Senior Medical Malpractice Lawyer, Pacific Medical Law
  • Avon Mersey, Partner, Fasken Martineau

Medical speakers include:

  • Dr. Shaohua Lu, Addictions Psychiatrist
  • Dr. Cherly Wellington, Brain Injury Research Pathologist
  • Dr. Joe Tham, Neuropsychiatrist
  • Dr. Nick Bogod, Neuropsychologist
  • Dr. Manrag Heran, Neuroradiologist
  • Dr. Bradley Allen Fritiz, GP

Videos: “A Day in the Life” and “Aquired Brain Injury”

Conference attendees and speakers are encouraged to watch the below videos as they will serve as harmonizing features of the conference. Please bring your comments and thoughts about the videos with you to the conference. Please note that the videos will also be shown at the event.

“A Day in the Life” provides a glimpse into the life of Christina MacEachern, a severly brain injured woman. Christina suffered severe bi-frontal lobe injuries on September 12th, 2005 when her head came into contact with a semi-trailer truck. A 60-minute video of Christina (post-injury) was produced by Shawn Serdar of Pacific Producers Group and was shown by Christina’s counsel (Webster & Associates) during her trial. This 13 minute, edited version of the video has kindly been made available by Christina’s guardian for educational purposes.


“Aquired Brain Injury” was produced by Dean Powers, a Rehabilitation Consultant and Vocational Expert. The video follows a Q&A format, documenting the feedback of six suvivors with varying degrees of brain injury. It looks at the impact of brain injury on these individuals’ personal and professional lives, including the barriers to employment they have faced.


For more information and to register to attend this event, please visit the TLABC website.

Gender differences in outcome after TBI – are there really?

It seems that researchers these days are really trying to look at the differences between men and women in brain injury.  When I started practicing in this area, the new research was about whiplash-type injuries and the discussion looked at the female physiology (slimmer necks and less musculature in the neck and upper back) and how that could lead to more headaches, neck pain and even more traumatic brain injuries after being in a rear end collision. However, current research is more focused on symptoms and recovery following TBI.

In “Gender differences in self reported long term outcomes following moderate to severe traumatic brain injury,” researchers looked at individual men and women who had sustained a moderate to severe traumatic brain injury.  The study revealed that significantly more men reported difficulty with setting realistic goals while women reported more headaches, dizziness and loss of confidence. These findings accord with my experience where sometimes men have a very difficult time even accepting injury, which can have a devastating consequence on their relationships following TBI. In this study, the men were found to report functional symptoms like sensitivity to noise and sleep disturbances as significantly more problematic than women. Whereas for women, lack of initiative and needing supervision were significantly more problematic in daily functioning.

The study did note some similarities across both genders as four of the five most reported symptoms were the same for men and women, highlighting similarities in symptoms experienced after TBI. These symptoms include being forgetful, irritable, having poor balance, and difficulty finding words.

In comparison, a study in the Journal of Neurotrauma entitled “Sex Differences in Outcome after Mild Traumatic Brain Injury” examined the outcomes following mild TBI. In this study, three months after mild TBI, males had significantly lower chances of having post-concussive symptoms than females. These findings were most significant when the women were of child-bearing age. Researchers thought that this pattern of disability for females during the child-bearing years might be related to disruption of hormone production.

I will say that individual differences and individual responses to brain injury are much more the norm for lawyers like us, who practice in this area.  If I were to look at the range of symptoms in my last 100 brain injury cases I could honestly say that I would not be able to discern any specific patterns of difference by age or gender, except to say that real world functionality is markedly impaired. So, while there is a growing body of literature examining gender and other differences in outcome post- TBI, when looked at closely, findings are inconsistent. While this research helps treatment modalities in a population, if you need to find a lawyer, therapist or other professional for someone you know who is suffering from the consequences of a TBI, look for experience in handling TBI cases.  Those of us who do this realize the importance of examining all areas to find the specific area of dysfunction affecting the individual in front of us.

To find out more, read:
“Gender differences in self reported long term outcomes following moderate to severe traumatic brain injury” in BMC Neurology (October 2010), by Angela Colantonio and Jocelyn E Harris.

“Sex Differences in Outcome after Mild Traumatic Brain Injury” from the Journal of Neurotrauma (March 2010), by Jeffrey Bazarian, Brian Blyth, Sohug Mookerjee, Hua He, and Michael P. McDermott.

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.

Peer group support can enhance well-being after brain injury

three people walking arm in armOur experience with survivors of TBI certainly accords with proposition that both survivors and their families need support to enhance the survivor’s functional capabilities and everyone’s well-being. Recent research agrees with us.  A six-week group intervention study looked at patients with acquired brain injury and their significant others and found that support enhanced both client well-being and psychosocial outcomes. Both higher levels of community integration and improvements in depression scores were noted where support had been provided.

We work hard to ensure that survivors and their families are connected with support through brain injury programs or even with therapists that we know have experience in brain injury. It’s not just the ‘touchy feely stuff’ either.  Many family members struggle with questions like “How do I encourage my loved one to improve his memory without doing it for them” or “How do I respond to anger or frustration that I think comes from the brain injury”. It’s essential that this support is provided, either through community groups or by allowing your brain injury lawyer to organize that high level of therapy and training.

To review this study see: “Evaluation of an outpatient, peer group intervention for people with acquired brain injury based on the ICF ‘Environment’ dimension” in Disability & Rehabilitation (2009, Vol. 31, No. 20 : Pages 1666-1675). This research was produced by Jennifer Fleming, Pim Kuipers, Michele Foster, Sharon Smith and Emmah Doig.

Drivers with TBI are slower to anticipate traffic hazards

traffic signs indicating construction areaUnfortunately, the consequences of brain injury are far reaching, and the risk of further injury after an initial brain injury is a real risk that many of our clients face.  Most clients find that the struggle through rehabilitation is hard enough, but as they are told that they can’t (or shouldn’t) go back to the activities that they used to enjoy, they become even more frustrated.

A recent study was conducted to examine the effect of traumatic brain injury (TBI) on drivers’ ability to anticipate traffic hazards. Slower anticipation of hazards has been associated with higher crash rates, but this driving skill has never been assessed after TBI.

The study found that participants with TBI were significantly slower to anticipate traffic hazards than controls. Within the TBI group, while hazard perception response times were significantly related to duration of post-traumatic amnesia, they were not significantly related to Glasgow Coma Scale scores. Not surprisingly participants with a complicated mild TBI (which means that the initial injury met the ‘mild’ criteria, but upon imaging damage was noted) were significantly faster in anticipating traffic conflicts than participants with moderate to severe TBI.

This is not to say that people with past TBI’s can never drive, but for many of our clients, driver training is an essential part of the recovery process. Supporting a return to activities is really important (one of the consequences of prohibiting a return to activities is depression and a decrease in functioning) but proper rehab and therapy is essential to make sure it is done safely.

To review this study see: “Assessment of drivers’ ability to anticipate traffic hazards after traumatic brain injury” from the Journal of Neurology, Neurosurgery & Psychiatry with Practical Neurology (Sept 2010). By Megan Preece, Mark Horswill, and Gina Geffen.
Most clients find that the struggle through rehabilitation is hard enough, but as they are told that they can’t or shouldn’t go back to the activities that they used to enjoy, they become even more frustrated.

Dr. Duhaime on concussions

I had the privilege of attending grand rounds at VGH where the guest lecturer was neurosurgeon Dr. Christine Ann Duhaime discussing new research on ‘concussion’.  I first became aware of her work while working on a Shaken Baby Case, because she was the neurosurgeon whose work resulted in the description of the most common symptoms of shaken baby syndrome known as ‘Duhaime’s triad’.  Dr. Duhaime was presenting on her work in the area of concussion and concussion in sport.  I found the talk  fascinating.  Dr. Duhaime described the studies she is involved in at some American universities.  They are installing sensors in the helmet’s of football players that measure the forces on the player’s heads as they play throughout the year.  Essentially, the data gathered shows rotational, angular and direct impact forces in “G-Forces” which is then compared to the reports of concussion.  The science is fantastic, but I expect that the researchers in the audience were disappointed with small sample sizes and the need for longitudinal studies and consistent measures.  She candidly stated that the science does not show any specific cut off for angular, direct or other force that can be related to result.  In other words, “host specific” or individual differences between individuals are important, but difficult to study.  Some people sustain huge forces with no impacts, but others develop concussions and symptoms with less force.

Dr. Duhaime described the fMRI studies that were conducted on some of the players following there concussions. Apparently they were given basic neuro-psychological testing while the fMRI studies were performed.  Comparing these test results to those who were not concussed revealed much greater areas of brain utilization amongst the concussed individuals, although the two groups scored the same on the testing.  This result is not surprising to those who have worked in this field, as our client’s constantly describe how they put in much more “cognitive” efforts to accomplish necessary tasks, resulting in cognitive fatigue and other sequalae.  While we have come far in our ability to image and see brain anatomy and physiology, we still don’t know who will sustain injury and who will have a difficult course of recovery.

Dr. Duhaime was also candid in describing her own history and that of neurosurgery.  She spoke about how medicine has changed from her perspective – where in the 1980’s a neurosurgeon might have told a patient that ““it’s just a concussion”, today, she would tell patient’s that it is a “brain injury”.  She believes that instead of denying injury to the brain, the focus should be on the recovery and on the potential for the individual to recover function.

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

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