BC Supreme Court Awards $175,000 For A Mild Traumatic Brain Injury And Cognitive Dysfunction

The case of Maer v. Umabao, 2016 BCSC 506, involves a 69-year-old male Plaintiff who was injured in a collision on November 19, 2012 when two vehicles exiting parking lots, both attempting left turns, collided. The Plaintiff had yielded to the Defendant, but the Defendant, who was looking right, accelerated and collided with the Plaintiff. The Defendant was found to be entirely at fault for the collision. The Plaintiff sustained vestibular injury, mild traumatic brain injury (MTBI) and suffered from somatoform disorder. Madam Justice Young provided the following reasons for assessing non-pecuniary damages at $175,000:

 [246]     I am satisfied on the basis of Dr. Chahal’s evidence and Dr. Krywaniuk’s evidence that Mr. Mayer did suffer some trauma to the left side of his head resulting in vestibular difficulties and symptoms of a mTBI. The trauma may have been caused by an acceleration/ deceleration trauma or it may have been caused by a blow to the left side of his head. I find most convincing Dr. Krywaniuk’s evidence. If there was damage to the left vestibular apparatus at the accident then it is likely that the adjacent area of the brain also suffered some trauma. The adjacent area of the brain is the area of the brain that moderates receptive language input where Mr. Mayer reports he has difficulty.

[247]     Having said that, however, I find that the brain injury was quite mild and only affected higher level speech and executive functioning or the ability to multitask. I come to this conclusion because I believe that if the mTBI symptoms were more than very mild, they would have been picked up by Dr. Koss who I find to be a very thorough and careful practitioner who has special training in the area of concussions. The symptoms of brain injury became apparent at work and when judging wine. The irritability, personality changes and memory loss are more likely caused by the long term effects of pain, sleeplessness, anxiety and Mr. Mayer’s somatoform disorder.

[248]     I reject Dr. Dost’s differential diagnosis of the de novo event of acute vestibular syndrome because it disregards the similar symptoms of dizziness and imbalance that Mr. Mayer suffered (although didn’t report for some time) at the accident and in the months following. I do accept Mrs. Mayer’s and Mr. Kroitzsch’s evidence on this point.

[249]     Anxiety and somatoform disorder do explain some of Mr. Mayer’s cognitive difficulties but not all. Mayer’s cognitive difficulties are unusual because his nonverbal intellectual abilities are in the superior range but his verbal intellectual abilities are just below average level. It is more likely than not that this unusual configuration was caused by trauma.

[269]     In conclusion of the general damage section of the decision, Curtis J. describes the now 67‑year-old Mr. Chowdhry as having lost a large measure of who he was. While human identity is partly associated with physical ability, it is much more related to a person’s mental state and abilities. Mr. Chowdhry is quite simply not the man he was. Rather than being energetic and happy and employed as the lease manager, he is unemployed. Rather than being the social outgoing man he was, he is now socially withdrawn and has little or no interest about anything. Rather than supporting his family, he is dependent upon them in a way that corrodes his relationship with his wife and his children. Curtis J. assessed non‑pecuniary damages at $200,000.

[270]     There are many obvious similarities between these cases relied on by the plaintiffs and the Mayer case, however, I find that the cases relied on by Mr. Mayer’s counsel involve more significant brain injuries which were readily apparent because of the dramatic effect it had on the plaintiffs. Mr. Mayer’s brain injury was more subtle and went undetected for a considerable period of time because of his ability to function. Nonetheless he is a changed man and he has suffered a considerable loss in his enjoyment of life, family, friends, social interests and vocational interests. I conclude that Mr. Mayer is entitled to an award of non‑pecuniary damages in the amount of $175,000.

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