When a Brain Injury Claim Is Contested

Paine Edmonds - Tuesday, June 06, 2017

If you have suffered a head injury, concussion, or mild or traumatic brain injury you should retain a personal injury lawyer as soon as possible. It is said that there is no other area of medicine is as controversial as mild traumatic brain injury. These cases require expert assessments and reports in order for your claim to be substantiated.

A defence lawyer seeking to avoid payment for a brain injury claim in Vancouver or elsewhere in BC may arrive at any number of defences. These defences can include the existence of pre-existing injuries, a broken chain of causation, failing to mitigate injuries and lack of credibility, to name a few.

Pre-existing Injuries

If you have a pre-existing injury, the insurer may or may not have a valid point in arguing that the accident did not cause your injuries. It’s not that a healthier victim with no pre-existing injury would have suffered less, but rather that the injury you claim may not be a result of this particular accident.

In WCAT-2015-00592 (Re), 2015 CanLII 42786 (BC WCAT), for example, a worker sought compensation injuries sustained while he was riding in a boat at work in rough water. The boat had hit a large wave and the worker was jarred from the impact. He stated that he had not felt immediate pain, but had developed pain later in the day, which had progressively worsened, resulting in severe headaches, poor focus and concentration and chest pain.

The tribunal heard that the symptoms experienced were due to an exacerbation of pre-existing anxiety and depression and new concussion symptoms on top of a pre-existing brain injury. The tribunal did not find the evidence supported that the worker suffered a head injury, brain injury or concussion as a result of the work incident in his claim.

Broken Chain of Causation

In order to get compensation in a tort claim, you must establish that the loss suffered was actually caused by the defendant. In most cases, a simple application of the “but for” test will resolve the question of causation. In other words, “but for” the defendant’s actions, would you have suffered the loss? If the answer to this questions is no, then the defendant is liable. Likewise, if the answer to this question is yes, then the defendant is not liable.

In making a broken chain of causation defence, sometimes it is argued that a new act of a third party or an act of the claimant was an intervening factor. For example, in Hussack v. Chilliwack School District No. 33, 2011 BCCA 258, the Board of School Trustees appealed a prior judgment in an attempt to have the prior decision overruled. In this case, a 13-year-old boy, Devon Hussack, was hit in the face with a field hockey stick on April 17, 1998 while playing the game in his physical education class.  He suffered a concussion, which developed into a serious psychiatric illness in which Devon complained he suffered physical symptoms that had no underlying physiological basis.

In 2009 (when Devon was 24 years old), the trial judge awarded $1,365,000 in damages after finding that the responsible teacher breached his duty of care by permitting Devon to play field hockey without having the necessary skills. She found that the disorder, as a result of head injury, was caused by the accident.

In 2001, an appeal was made by the trustees, submitting that the father’s interference after the accident broke the chain of causation; the father interfered in many ways, including conducting endless investigations, overprotecting Devon, worrying that caused Devon new symptoms, and more. The appeal was allowed, but only to the extent that the past wage loss award and loss of future earning capacity could be reduced. The total award was reduced to $935,000 as it was accepted that the teacher owed a duty of care to Devon, which was breached, and caused him to sustain damages.

Failure to Mitigate Injuries

Of course every injured party has a duty to mitigate, lessen or try to resolve his or her injuries and so failing to take steps to remediate injuries can lessen an award. Sometimes this argument by the defendant is not successful, however.

In Gabor v. Boilard, 2015 BCSC 1724, the vehicle of the plaintiff, Ms. Gabor, was struck by a pickup truck driven by the defendant as he ran a red light, which he admitted. The defence claimed Ms. Gabor failed to mitigate her injuries, and that her failure to actively pursue a career was due to a lack of motivation from a loss of confidence and interest in her previous goals, and was not due to her cognitive inability to do so.

The court heard ample evidence of Ms. Gabor’s ambition to be a practicing artist. Psychiatrist Dr. Smith's opinion was that Ms. Gabor suffered a mild traumatic brain injury, and because she had persistent residual cognitive difficulties due to brain injury for more than two years, the impairments were permanent. Justice Ballance awarded $200,000 in damages to Ms. Gabor, stating, “There is no principled basis to reduce Ms. Gabor's damages based on the doctrine of mitigation."

Lack of Credibility

The success of a brain injury claim can be greatly affected by your credibility even if there is evidence from witnesses about your post-accident condition. For example, in the appeal case of Tambosso v. Holmes, 2016 BCCA 373, Ms. Tabosso’s credibility was at issue after being involved in two motor vehicle accidents where she claimed she suffered a mild traumatic brain injury and post-traumatic stress disorder as result of the earlier accident. The trial judge found Ms. Tambosso’s evidence questionable and awarded her zero for future wage loss and small award for pain and suffering.

On appeal, however, Madam Justice Bennett questioned the judge’s decision to completely discount the expert evidence based on a questionable credibility and disregard the evidence of 15 witnesses who supported the opinions of the experts. The Court of Appeal ruled that the errors by the trial judge were of such importance that the only resolution was to order a new trial.

Sometimes injustices can be rectified in an appeal. To increase the likelihood of winning your case, you may consider selecting a personal injury lawyer with experience in the appellate court.

Contact a Brain Injury Lawyer in Vancouver at Paine Edmonds LLP

At Paine Edmonds LLP, the lawyer you hire will fight hard against an ICBC injury lawyer. In Vancouver or elsewhere in BC, we will represent you in a case we believe you can get compensation for in a settlement, at trial or otherwise through an appeal. We work on a contingency fee basis, which means we only collect legal fees when you do. Call us at 604-683-1211.