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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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