12 Sep BC Supreme Court Holds That It Is The Effect, Not The Label Of The Injury That Matters
The case of Tan v. Mintzler and Miller, 2016 BCSC 1183, involves the personal injuries sustained by a 56 year old female Plaintiff as a result of a collision wherein the Defendant driver ran a red light. The Court found that the Plaintiff sustained a head injury that resulted in ongoing symptoms for the Plaintiff. There was a debate at trial as to the type of injury the Plaintiff sustained. The Court emphasized that whether the diagnosis of that injury was a mild traumatic brain injury (“MTBI”) or chronic pain and sleep disturbances, only mattered insofar as they relate to the quantum of general damages and to the Plaintiff’s prognosis; what mattered was whether the injuries were caused by the collision. Reasons provided by Mr. Justice Groves are as follows:
[57] The reality is that there is little disagreement regarding the symptoms Ms. Tan experiences and the psychological difficulties she is struggling with. The distinction between whether Ms. Tan’s psychological injuries and cognitive difficulties were caused by an MTBI or by Ms. Tan’s chronic pain and sleep disturbances is relevant only to the quantum of general damages and to Ms. Tan’s prognosis going forward.
[58] In considering all of the evidence, including Ms. Tan’s testimony and clinical history, the evidence of Cst. Upshall, the hospital records, and the testimony of all of the experts, I find that Ms. Tan suffered an MTBI. This is so for several reasons.
[59] First, I accept Ms. Tan’s evidence that she suffered at least an altered state of consciousness, if not a loss of consciousness, following the impact of the Accident. Cst. Upshall was clear in his evidence that it took him approximately five minutes to get from the coffee shop, to the Accident scene, to secure the Accident scene, and to attend to Ms. Tan. There was some evidence at trial that paramedics attended to Ms. Tan’s vehicle before Cst. Upshall, but I do not have the evidence of those individuals to confirm Ms. Tan’s mental state immediately following the Accident. Dr. Dost suggested that Ms. Tan’s loss of memory during this period of time was due to natural attrition, but under the circumstances I find that suggestion unlikely. Even Ms. Tan’s earliest medical records indicate a loss of memory during that period. I therefore accept the factual assumption made by the plaintiff’s doctors that Ms. Tan suffered a period of retrograde amnesia.
[60] Second, it was also the evidence of several doctors that Ms. Tan’s MRI was abnormal and that they attributed this anomaly to the Accident. Dr. Dost was critical of the plaintiff’s experts for relying on the MRI results without considering the false positive rate of the test and for linking the abnormality directly to the Accident. It was also his opinion that, according to the diagnostic standards, an MRI should not be used to diagnose a brain injury. However, the plaintiff’s doctors did not consider the MRI results in isolation. There was no evidence in Ms. Tan’s medical history or at trial that Ms. Tan had suffered any previous trauma which may have contributed to or caused the lesion shown in the MRI. The doctors did not utilize the MRI scan alone to come to their diagnoses, but considered it with all of the other evidence.
[61] Nearly all of Ms. Tan’s complaints continue to the present. I therefore accept Dr. Adrian’s evidence that that Ms. Tan suffered soft tissues injuries to the left side of her body including her neck, shoulder, mid and low back as well as referred pain to her knee and left foot. These injuries have caused chronic pain on her left hand side. I also accept that she suffers frequent headaches and dizziness. It is possible that her jaw issues, only recently diagnosed by Dr. Chan, will improve with treatment. The prognoses for all of these issues are guarded or poor. She has however experienced some improvement in her dizziness and she no longer experiences any losses of balance.
[62] Consistent with the experts, I accept that Ms. Tan suffers from mild depression, anxiety, and PSTD. Based on the expert evidence and Ms. Tan’s presentation and testimony at trial, I accept that Ms. Tan suffers from some mild cognitive difficulties, including memory issues.
[63] As already stated, I find that Ms. Tan suffered an MTBI at the time of Accident. I would attribute Ms. Tan’s symptoms since the accident, including her psychological injuries and cognitive difficulties, to that injury.
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