COURT CASES on BRAIN INJURIES

 

In Harrington v. Sangha, the court awarded $210,000 in pain and suffering damages for frontal lobe and brachial plexus injuries, commenting that:

 

[183]      There is no doubt that the plaintiff has been severely and dramatically affected by the injuries sustained in the January 18, 2007, motor vehicle accident. There is no doubt with respect to the extent of her physical injuries. There is convincing evidence that she has suffered a traumatic brain injury. That injury has affected her cognition and may have reduced her global intelligence. There is ample evidence from her family and friends that her behaviour has been significantly affected. She is irritable and disinhibited. Her memory and concentration are poor. These changes are typical of those experienced by people who have suffered frontal lobe injuries of the sort sustained by Ms. Harrington. She is affected by chronic pain and headaches. She requires significant medication to deal with her pain and that has further impacted her emotional state and her intellectual functioning. By all accounts she is now unemployable.

 

[184]      Fortunately, she is still largely independent and capable. As the defendants point out, she appears, to the casual observer and even to trained professionals on first encounter, to be someone who is functioning well and behaving appropriately. She is still capable of enjoying many of the amenities of life and may do so to a greater extent if she benefits from certain of the chronic pain management programs recommended to her.

 

[185]      It is true, as the plaintiff submits, that there is no “range” of devastating injuries. All devastating injuries should attract an award of general damages at the upper limit permissible. I am of the view, however, that while Ms. Harrington will be seriously affected for the balance of her life by the significant injury she sustained, her injury cannot properly be described as devastating. Unlike the plaintiff in Morrison v. Cormier Vegetation Control, she is not limited to minimal participation in the activities of daily living. She is unlikely to be shunned and the range of relationships open to her should not be forever limited. She appears, still, to have reasonable insight into her situation and condition and has in fact formed relationships since her accident. By suggesting an award that is marginally less than the upper limit, the plaintiff’s counsel implicitly acknowledges that this is not a case where the rough upper limit of general damages is an appropriate award.

 

[186]      On the other hand, the defendants, by referring only to the examining experts’ first impressions of Ms. Harrington and her appearance in the witness box at trial, underestimate the dramatic effect of the injury upon her. There is no reference in the defendant’s submissions to the common findings of the neuropsychologists with respect to the nature and extent of the consequences of the head injury.  Nor is there any reference to the testimony of the many family and friends who testified with respect to the dramatic change in the plaintiff’s behaviour. Taking into account both the very significant limitations in her physical activities associated with her brachial plexus injury and the functional impact of her head injury, I am of the view that general damages in this case should be assessed at $210,000.

The court also awarded the Plaintiff over $325,000 for diminished earning capacity, and close to $500,000 for cost of future care.

 

In Rintoul v Gabriele, the court awarded $175,000 for pain and suffering for a mild traumatic brain injury, noting that:

 

[242]      Particularly in light of the corroborative evidence of Ms. Shergill, and to a lesser extent that of Ms. McEwen and of the plaintiff’s mother, it is far more reasonable to conclude from the evidence as a whole that Ms. Rintoul is a person who has suffered a brain injury which is subtle in its presentation but which nevertheless has significantly impacted her life, particularly in the workplace, in ways which Ms. Rintoul to some extent finds difficult to articulate.

 

[243]      I do not find that Ms. Rintoul is, from a neurological or physical standpoint, totally disabled.

 

[244]      I find that the plaintiff has established on a balance of probabilities that the cognitive issues in her post-accident employment, and her ultimate dismissal from Shergill & Company, are attributable to the brain injury sustained in the subject accident.

 

[245]      I find that the evidence has established that the plaintiff has sustained a mild traumatic brain injury that has permanently impaired her cognitive abilities such that she will not be competitively employable beyond the level of the most junior legal secretary.

 

[246]      I find on the balance of probabilities that as a result of her cognitive injuries she cannot and will not in the future be competitively employable in a position of the type she was hired for at Shergill & Company, that of an intermediate secretary, nor in any more advanced position requiring her to work with minimal or no supervision on complex tasks or multiple tasks.

 

[247]      I also find that Ms. Rintoul likely retains some residual level of potential employability, up to the level of a most junior legal secretary, or a junior level clerk/typist. This is subject to a number of contingencies, as will be discussed below.

 

[248]      The defendant, accordingly, is liable for the pecuniary loss that flows from these findings.

 

It should be noted that the Plaintiff was also awarded $750,000 for diminished earning capacity.

 

MEANING of “MILD” in MILD TRAUMATIC BRAIN INJURY (MTBI)

 

The term “mild” to describe the traumatic brain injury refers to the severity of the blow to the brain, whereas the aftereffects of the blow can be much more serious.

 

In Madill v Sithivong, the Plaintiff suffered a mild traumatic brain injury. The Court addressed this area of law, effectively noting that even though the classification is “mild”, there can be serious, long term consequences.

 

[112]      Dr. Hunt said he tries to concentrate on the individual.  He finds it helpful to see the notes of the family doctor, which deal with initial complaints, as do the notes of the ER doctor and responders.  But he notes that those doctors are very busy, and things get overlooked.  The same is true with an ambulance crew.  Dr. Hunt stated there may be no loss of consciousness, but there may be a loss of awareness.  An ambulance crew may give a 15 score for the Glasgow scale, indicating normal, but that could be misleading.  He also noted that someone may be described as being in good health pre-accident, but that would not mean he would not have issues.

 

[113]      Dr. Hunt disagreed that the best evidence of whether the plaintiff was an amnesiac, were notes at the hospital of “no LOC” and “zero amnesia”.  It was the evidence of Dr. Hunt that no matter how many times you see those terms, that a patient is alert and wide awake, that sometimes in looking at crew reports, the necessary information is not there.  A person does not need to strike his head for a concussion to have occurred.  It need only have been a shaking.

 

[114]      It is important to explain what a mild traumatic brain injury is, he stressed; Dr. Hunt referred to the many concussions in sports.  He said it is important to look at what happened following the accident, what symptoms have occurred and are continuing to occur.  Patients often deny a loss of consciousness or a loss of awareness, and it may be so fleeting that they may well be unaware.  But if the head has been shaken or jarred enough, this will equal a concussion, which is the same as a mild traumatic brain injury.  There may be no indication of bruises on the head, but it still could be a concussion.  Dr. Hunt noted that something prevented the plaintiff from exiting the vehicle, so the Jaws of Life was used.

 

[115]      Dr. Hunt noted that Dr. Tessler agreed that the plaintiff had a cerebral concussion in his initial report, but it was the opinion of Dr. Hunt that Dr. Tessler was not up to date on mild traumatic brain injuries.

 

[116]      In his evidence, Dr. Hunt listed some of the symptoms that are compatible with a concussion having occurred:  headaches, altered vision, balance difficulties, general fatigue, anxiety, memory disturbance, inability to manage stress.  “A concussion is a mild traumatic brain injury.  We no longer grade concussions.”

 

[117]      I found Dr. Hunt to be an excellent witness.  He was cautious, detailed, thoughtful, low key, thorough and utterly professional.  In cross-examination, he gave a minor clinic on mild traumatic brain injuries.  He was subjected to a rigorous, lengthy and skilful cross-examination, which only served to expand upon and magnify his report and opinions.

 

[118]      He commented on the history of Mr. Madill prior to the accident, pointing to a number of things that may have caused excessive jarring or shaking of the head, even if there had been no symptoms of concussion.  He believes that the first responders’ observations are not always accurate as to what actually happened.  He said he himself may not have identified problems of concussion at the scene of the accident.  Ninety percent of people with concussions have headaches.  They have difficulty describing the headaches, and they are not the same as migraine or tension headaches.

 

[119]      Dr. Hunt was further critical of Dr. Tessler in opining that Dr. Tessler had diluted his opinion, and that he had concerns with the report of Dr. Tessler.  He felt that Dr. Tessler was still “in the dark ages” with regard to mild traumatic brain injuries, that he has not had the advantages that Dr. Hunt has had in working with sports brain injuries.  “Concussion is cumulative.”

 

[120]      I found the report and the evidence of Dr. Hunt persuasive.  He came across as an advocate of a better understanding of concussions or mild traumatic brain injuries, not as an advocate on behalf of the plaintiff.

 

In Cikojevic v Timm, the Court discussed the meaning of “mild” in a mild traumatic brain injury (MTBI).

 

[249]      A loss of consciousness is unnecessary for the diagnosis of MTBI. The Glasgow Coma Scale measures levels of conscious to assess initial severity, not to rule out traumatic brain injury. However, some degree of altered consciousness must be present before diagnosing MTBI. How long the altered consciousness lasts is relevant, as is loss of memory of events before the trauma. Matthew Hogg, the other passenger in the accident vehicle, said the plaintiff was dazed, shaky and “out of it”. She did not know what had happened. She could not undo her seat belt. The plaintiff described gaps in memory, and Mr. Cikojevic said the plaintiff was not making sense at the hospital. Altered consciousness clearly occurred in this case.

B.   What does “Mild” Refer to?

 

[250]      Although experts sometimes disagree on whether to call an injury a mild concussion or a MTBI, either term is suitable.

 

[251]      “Mild” describes the severity of the organic injury, not its effect.

 

[252]      Although the organic severity of an injury usually associates with the severity of symptoms, sometimes symptoms can be severe while the organic injuries to the brain are mild.

 

[253]      Upwards of 85% of people suffering uncomplicated MTBI recover within six months. The recovery range lies between 85% and 95%, depending on the expert’s views and the literature they accept. I find that around 90% of people suffering uncomplicated MTBI recover according to scientific literature. However, as noted by Dr. Anton, such statistics are of no value when dealing with a patient who falls into the subset of people who never fully recover. Each case must be evaluated individually.

 

[254]      The cognitive and emotional effects of MTBI can severely disable and impact the injured person’s life.