Article by Walter W. Kubitz, KC, a personal injury lawyer in Calgary, Alberta.

Assume that Mr. Plaintiff, was injured in a motor vehicle accident. The driver of the car, in which he was a passenger, was impaired and the car rolled. Mr. Plaintiff was seriously injured and was hospitalized for approximately four months immediately following the accident. He was in intensive care for the first couple of weeks immediately following the accident. His Glasgow Coma scale was 3/15 at the start of the hospital stay.

Other medical interventions resulting from the accident that took place during the hospital stay included:

• Left eye surgery;
• Incision and drainage of tibia, fibula fracture;
• Exploratory laparotomy;
• Fixation of facial fractures and wiring of jaw;
• Tracheostomy and closure of laparotomy;
• Open reduction and internal fixation left tibia, fibula fracture and open reduction and internal fixation of the left elbow fracture as well as PEG tube placement; and
• Transposition and flap closure to left lower extremity deficit and exploration of facial fractures for query entrapped lateral rectus muscle.

After the hospital stay, Mr. Plaintiff attended physiotherapy at the hospital and attended at the Brain Injury Relearning Service Centre. After the hospital stay, Mr. Plaintiff had day surgery on his left elbow and left ulnar nerve. He also had right knee surgery after the accident but it appears this was not due to the accident.

Prior to the accident, Mr. Plaintiff had suffered some minor to moderate injuries. These included the following:

• Head and neck injury 11 years prior due to diving off a wharf;
• Brain injury, intracranial hemorrhage, basal skull fracture, apex fracture, left TMJ fracture and left facial nerve palsy 6 years prior due to a prior accident. This required some surgery and hospitalization;
• Hit back of head 5 years prior due to a fall;
• Struck in face with jaw pain and left neck pain 4 years prior due to being hit in face; and
• Foot fracture 3 years prior due to being assaulted at work;

It appears to be established in the documentation that Mr. Plaintiff was suffering from some cognitive impairments prior to the accident. However, it also appears to be the consensus on the file that the accident caused significant brain damage and was of a much greater magnitude than any previous cognitive impairments.

Mr. Plaintiff resumed employment on a part time basis approximately two years after the accident. He has since maintained some employment since that time however he is unable to do very demanding physical work.

For the purposes of this quantum assessment, Mr. Plaintiff’s injuries resulting from the accident are considered as follows:

• Amnesia with respect to the details of the accident and events immediately preceding;
• Broken left arm and leg;
• Left side facial fractures and broken neck;
• Stomach surgery for exploration of injuries with resulting scar on his abdomen;
• Tracheostomy scar;
• Hardware in arm and jaw;
• Severe traumatic brain injury;
• Left subarachnoid haemorrage;
• Diffuse axonal injury;
• Vertebral fracture of C2 and spinous process fracture of C7;
• Left comminuted supra condylar fracture;
• Left open tibia and fibula fractures; bilateral pulmonary contusions;
• Chemical burns on torso;
• Entrapment of left rectus muscle; and
• Intimal tear of internal carotid artery.

Mr. Plaintiff currently suffers from the following as a result of the accident:

• Painful left leg for which he uses extra strength tylenol. There is also significant deformity with respect to this leg;
• Cannot extend his left arm fully due to elbow broken in accident;
• Personality change including more mood swings;
• Currently uses Synthroid for thyroid issues;
• Cognitive impairment, easily overwhelmed and confused
• Bad balance and cannot run;
• Missing part of left visual field. It is also noted there is facial scarring on his left side;
• Hearing is weak on left side;
• Reduced sensitivity in taste and smell;
• Numbness in left pinky;
• Memory problems;
• Requires eye drops for his left eye (which he still cannot completely close);
• Altered speech; and
• Potential 23% whole person impairment for orthopedic injuries and potential whole person impairment of 42%

Clearly, the pain and suffering experienced by Mr. Plaintiff resulting from the accident is significant. His ability to enjoy his life to the fullest has been seriously compromised given his injuries. He has also had to follow a different career path given his inability to do any physically demanding work.

According to the Bank of Canada inflation index, the current trilogy cap is $366,384.18.

CONCLUSION:

Alberta case law suggests general damages ranging from $230,000 to $250,000. Two outlying British Columbia cases are presented where the damage awards exceeded $330,000.

The judgment awards in the cases discussed below have been inflation adjusted using the Bank of Canada inflation calculator, rounded off.

The cases (discussed in detail below) are presented in the order of most relevant to Mr. Plaintiff’s situation, having regard to the amount of the damage award as well, to least relevant.

Ward v. Ward, 2010 ABQB 654, [2010] AJ No 1200

Damage Award: $205,000

Inflation Adjusted Damage Award: $230,000

The 16-year-old male plaintiff (Cory Ward) was injured when he was a passenger in a vehicle that was involved in a motor vehicle accident. As a result, he suffered extensive internal and external injuries. He almost died twice en route to the hospital and required immediate surgeries to be kept alive. He was in a coma for 19 days. He suffered multiple brain hemorrhages, diffuse axonal injuries, multiple fractures to skull including a jaw fracture, mandible, shoulder blade, ribs and pelvis, liver lacerations and blood and air in the space between his lungs.

As result of the injuries, the plaintiff maintained he was totally and permanently disabled and would require supervision for the rest of his life. The defence argued that while he did suffer a severe brain injury and multiple physical injuries which would have some permanent effect, he had made a good recovery from his injuries.

The plaintiff had done various kinds of therapy following the accident including physio, OT, speech therapy, neuropsychology, and social work. He also took part in rehab for his brain injuries. He had to relearn various skills while in rehab including basic life skills like toileting, grooming, feeding, speaking, etc.

The plaintiff did make great strides in recovery and it was reported that he became independent in self-care but his memory was poor and he was a greater risk of experiencing seizures because of the accident. His gross and fine motor skills were sufficiently impaired such that he would not be safe on such things as ladders, scaffolding or stilts. He was assessed as having a 17% whole body impairment due to the physical injuries and a 20% impairment of the whole person due to the cognitive impairments. Using a combined value, total impairment was 34%. While the plaintiff was well within the range of being physically functional in the home setting and able to manage basic self-care tasks, he had significant cognitive and behavioural deficits and would require guardianship and trusteeship. Cognitively, he was at a very low level prior to the accident and the court concluded he would not have completed high school in any event.

Plaintiff’s counsel argued given his severe brain injury, his young age and long life expectancy that general damages were appropriately in the range of $250,000.00 to $300,000.00. It was admitted by plaintiff’s counsel and recognized by the court that the cap amount is generally reserved for the most severe cases involving both physical and mental disability.

Defence counsel argued that the plaintiff had made a good recovery and damages were in the range of $175,000 to $205,000 arguing that the top end in a brain injury case is reserved for a case where the plaintiff has suffered almost total physical debilitation but still has retained their mental faculties and therefore experience the full range of mental anguish for what they have lost.

The court reviewed the cases of the plaintiff and defendant (many of which are covered in this memo) and made an award of $205,000 for general damages in this case. This amount inflation adjusted is $230,000.

Madge v. Meyer, 1999 ABQB 1017, aff’d 2001 ABCA 97, [1999] AJ No 1566

Damage Award: $150,000

Inflation Adjusted Damage Award: $212,000

A 53-year-old- male was severely injured in a motor vehicle accident. He had no memory of the collision or aftermath and was in the ICU for approximately 3 weeks. Upon admission, his Glasgow Coma Scale Score was 3/15. He remained at the hospital for a total of approximately 3 months. The plaintiff’s injuries included: a basal skull fracture with accompanying severe brain injury, left femoral fracture requiring open reduction and internal fixation, right cranial nerve palsy resulting in double vision, left side hemiparesis (weakness) and scars to voice box (due to intubation). He required surgery to repair his broken femur by way of nailing. When the plaintiff was discharged from his physio, it was noted he was fully independent and functional level was normal with his main complaint being of tiredness. The only formal rehabilitation he received after being released from the hospital was 15 physiotherapy sessions. He did attend for brain injury rehab for approximately 2 weeks over a year after his accident.

The court found that while the plaintiff had suffered a significant physical and mental disability because of the injuries from the accident, he was sufficient in daily care and was able to contribute to his home and work environment (farming) on a reduced basis. In terms of pre-accident history, the plaintiff had a long history of complaints regarding his health. However, the court found none of these impacted the injuries he suffered from the accident.

The court (at paragraph 242) found that the general damage awards in cases such as these with traumatic brain injuries ranged from $125,000 to $133,000 (in 2017 that would be $177,000 to $188,000).

At paragraph 243 the court stated:

It must be remembered that the purpose of non-pecuniary damages is to compensate the plaintiff for losses by way of an award of damages to the extent that money can be used to purchase solace for the losses that have been sustained. Here, Madge, age 53 at the time of the accident, suffered a severe brain injury, left temporal fracture, right cranial nerve palsy, scars to the voice box and left sided herniparesis. He required extensive hospitalization as well as orthopaedic surgery. He suffered complications in the hospital. He is not the man he was pre-accident and more importantly, he understands that and feels it and must deal with it daily. In my judgment, having regard to the cases, the legal principles applicable, Madge’s age, injuries, treatment and permanent disabilities, pain and suffering, an appropriate award for non-pecuniary damages would be $150,000.

Crackel v. Miller, 2003 ABQB 781, aff’d 2004 ABCA 374, [2003] AJ No 1160

Damage Award: $180,000

Inflation Adjusted Damage Award: $227,000

 The 35-year-old male plaintiff was injured in a motor vehicle accident when the vehicle he was driving drove into the back of a three tonne truck that was parked on the side of the road due to mechanical issues. He was hospitalized for approximately two months and suffered from amnesia for at least two weeks after the accident. He suffered a severe traumatic brain injury as a result of the accident. He made a remarkable physical recovery from his injuries but continued to suffer from cognitive and emotional difficulties in the aftermath. His intellectual abilities recovered to close to the level they were at pre-accident but he had greater difficulty recalling verbal information, more so than visual information. He suffered anger management issues resulting from the accident. The plaintiff also suffered a fractured skull in the left frontal sinus area and a subdural haematoma, an open left distal radius and ulna fracture, a burst fracture of the first lumbar vertebra and transverse fracture of the third left metacarpal. He also lost his sense of smell as a result of the accident. He had continued pain and limited movement in the mid-low back and left wrist.

The plaintiff’s medical expert assessed the plaintiff with a 5% whole person permanent, partial disability due to the loss of motion in the left wrist, a 1% whole person permanent, partial disability due to the diminished back flexion and extension resulting in a 6% whole person permanent, partial disability.

After considering the case law presented, the court found this case similar to Madge v. Meyer and awarded $180,000 in general damages.

Labrecque v. Heimbeckner, 2007 ABQB 501, [2007] AJ No 1462

Damage Award: $200,000

Inflation Adjusted Damage Award: $254,000

The female plaintiff was injured in a motor vehicle accident. She was thrown from the vehicle and badly injured. The plaintiff had an extensive pre-existing medical history including substance abuse, a personality disorder and general mental issues. She was involved in two previous motor vehicle accidents although did not suffer any serious injuries in either.

As a result of the accident in question, she suffered a fractured right humerus, a fractured clavicle, a compression fracture of the lower spine, a complex fracture to her left calcaneus. She also suffered multiple abrasions, cuts and bruises to her head, face and body and significant scarring as a result of the “gravel rash” from the accident. She also suffered a brain injury and was unconscious for a period of time after the accident.

Plaintiff’s counsel argued it was a moderate brain injury whereas defence counsel argued it was at best, a mild brain injury and that her situation was primarily the result of her drug dependency and personality disorder which existed prior to the accident. She was discharged from the hospital approximately three weeks after the accident. She moved back to her home where she was essentially bedridden for two or three months. She did attend physiotherapy sessions for about three months after arriving home from the hospital (approximately 19 visits). She continued to have difficulties with short term memory and multi-tasking. She attended at the Brain Injury Centre at the Foothills Medical Centre where she accessed physio, OT, chiro, massage and psychology.

Given the plaintiff’s extensive drug abuse and mental health issues, the court struggled with the issue of whether the plaintiff did suffer a traumatic brain injury. After reviewing the evidence, the court concluded that she did suffer a traumatic brain injury as a result of the accident. She became incapable of living independently from the help of her family and care givers. She was not able to run a business, look after herself, her son or her property without daily assistance.

On the other hand, the court recognized that her drug dependency prior to the accident was a major complicating factor and would have significantly interfered with her life in any event if not treated. As a result, the court concluded she was entitled to $200,000 in general damages. The Court at paragraphs 147 to 155 reviews its reasoning in granting that order noting that this case did not justify an award of the upper limit. It appears the court may have allotted $150,000 for the brain injury (relying on Madge v. Meyer and Bourbonnais v. Gavreau) and $50,000 for the physical injuries for a total non-pecuniary award of $200,000.

Bourbonnais v. Gauvreau, 2003 ABQB 952, varied on other grounds 2005 ABCA 154, [2003] AJ No 1429

Damage Award: $150,000

Inflation Adjusted Damage Award: $189,000

The 35-year-old male plaintiff was injured when he was hit by a vehicle while riding his bike. He suffered a severe brain injury resulting in a 12% impairment of the whole person. He also suffered a broken arm and rib, a punctured lung and multiple lacerations and abrasions. He continued to have cognitive impairments and significant speech and fatigue problems. He also lost his sense of smell. He continued to receive regular chiropractic treatments and required such treatments for the foreseeable future.

He suffered amnesia immediately after the accident and did not remember the following three weeks. While the plaintiff suffered a very severe brain injury, he made a remarkable recovery and was able to teach a college level computer programming course. The court awarded $150,000 in general damages and gave the following summary of injuries at paragraphs 165 and 166:

He sustained a very severe traumatic brain injury with extensive deficits that will affect him for the rest of his life. The deficits include: on-going limitations of his right shoulder; the total loss of his sense of taste and smell; significant fatigue and reduced endurance which will impact his ability to work and to enjoy the physical leisure activities in which he excelled. In general, his level of intellectual function has been reduced from a high level to a low average level. His ability to acquire new information has been negatively affected. When his fatigue increases, there is the resulting loss of word finding ability and difficulty in speech. Extreme fatigue in early 2002 raised fears of incontinence.

Dr. Nagy testified as to the other medical issues which he may now face as a result of his brain injury and the risk of subsequent injury to his brain. Those include a higher risk of epilepsy and increased vulnerability to future stroke and brain injury. In addition, Mr. Bourbonnais sustained physical injuries which included fractures to the right humerus; fractured right acromium and third right rib; a hole drilled into his skull to insert a drain to relieve the pressure on his brain; punctured right lung and scarring from his shoulder to his elbow.

Calahasen v. Northland School Division No. 61, 2012 ABQB 611, [2012] AJ No 1058

Damage Award: $135,000

Inflation Adjusted Damage Award: $137,900

The 40-year-old male plaintiff was injured when he was assaulted by a group of people. He suffered a moderate-severe brain injury, fractures including facial fractures, dylopia, ongoing pain and depression, cognitive impairment, PTSD, post-concussion syndrome, decreased senses, dizziness, fatigue and speech difficulties. His enjoyment and quality of life were severely compromised.

He underwent surgery to address the facial fractures and multiple plates were inserted. He experienced double vision for two years due to his left eye being lower than his right eye. His face remained misshapen. Cognitively, he suffered short term memory loss and difficulty with calculation and attention. He experienced constant facial pain, blurry vision and watery eyes all resulting from the assault. He medicated using Tylenol 4 on a regular basis to control the facial pain. He has also suffered from gait changes, decreased gross motor coordination, speech difficulties and exacerbation of emotional anxiety and stress.

The assault and corresponding injuries had a grave impact on the plaintiff. He became reclusive with sleep disruption and it impacted his family as well. He had concerns he was a burden to his wife.

Plaintiff’s counsel submitted the appropriate range of general damages was between $125,000 and $150,000. The court awarded $135,000.

Izony v. Weidlich, 2006 BCSC 1315, [2006] BCJ No 1986

Damage Award: $275,000

Inflation Adjusted Damage Award: $330,000

The male plaintiff was injured in a motor vehicle accident. He alleged the following injuries:

• L4 burst fracture;
• Grade 3B open proximal left tibia fracture associated with distal segmental fibula fracture;
• Posterior fracture dislocation of the right acetabulum;
• Fracture of the left distal radius;
• Fracture of the right radius;
• Comminuted mid-shaft fracture of the right humerus;
• Fracture of the sternum;
• Multiple rib fractures;
• Pulmonary contusion;
• Cardiac contusion;
• Abdominal wall laceration;
• Multi-system organ failure;
• Systemic MRSA (methicillin resistant staphylococcus aureus) infection resulting in infection of his left tibia;
• Hyperbilirubinemia;
• Hyperkalemia;
• Renal failure;
• Liver failure;
• Pneumonia;
• Traumatic brain injury;
• Hearing loss;
• Depression;
• Hernia at abdominal incision; and
• Sexual dysfunction.

The plaintiff underwent numerous surgeries and was left with extensive scarring. He continued to suffer from decreased mobility, chronic pain and effects from his brain injury. He complained of difficulties with attention, concentration and memory and could no longer multi-task.

The court found that the plaintiff had suffered a mild traumatic brain injury resulting in cognitive impairment. The court also found the injuries suffered caused him pain which caused some difficulty and decrease in sexual activity. His most serious limitations were his physical ones, notably his decreased mobility due to the multiple surgeries he underwent after the accident. He developed a staph infection from these surgeries. The head of his femur was removed, leaving his right hip joint unstable and thus, he was unable to walk long distances. The court found that while he suffered some decrease in mobility, he was not completely helpless and continued to enjoy hiking, fishing and hunting. He did not experience continual pain but rather when the weather changed or when he was required to move strenuously. When medication was required he used Tylenol #3. The court awarded $275,000 for general damages.

Coulter v. Ball, 2005 BCCA 199, 39 B.C.L.R. (4th) 82

Damage Award: $284,000

Inflation Adjusted Damage Award: $348,000

The plaintiff Coulter was a passenger in a vehicle that was driven by Ball. The accident occurred when Ball attempted to cross the highway and collided with a vehicle driven by Leduc. Coulter suffered a serious injury to the frontal lobe of his brain and suffered other injuries, including a fractured mandible, fractured clavicle, fractured pelvis and bruised kidneys.

The trial judge awarded general damages at the rough upper limit of $284,000 primarily because of the extent of the brain injury. The trial judge accepted the defence theory that before the accident the plaintiff was distractible, exercised poor judgement and impulse control, and that he was aggressive, becoming more rude and confrontational when drinking. She found that after the accident Coulter was socially isolated in the sense that he was unable to form and maintain friendships, he exhibited emotional volatility, disinhibition, and had an inability to interpret social situations and presented a danger to himself and to others. He had lost the psychological benefits of engaging in competitive employment. He required a committee for the management of his financial affairs. While the negative traits of his personality and lifestyle were present before the accident, they were accentuated by the accident to the extent that his functional ability was substantially impaired. The degree of impairment was within the “catastrophic” category, sufficient to support an award at the rough upper limit of pecuniary damages.

This general damage award was upheld on appeal.

 

Walter W. Kubitz, KC, a personal injury lawyer in Calgary, Alberta