Part 2 - Understanding Tort Compensation: Brain Injury Compensation in BC motor vehicle accidents
Compensating for the losses suffered by an individual who has sustained a traumatic brain injury is complicated by the difficulty in assessing the loss. Loss of judgment, loss of ability to plan, loss of motivation, loss of the ability to engage in appropriate social interactions and the loss of the ability to regulate and monitor behaviour and the way in which these losses impacts upon an ability to earn an income are difficult to assess. Assessment of loss should focus on what can be done to replace what has been lost and on the nature of these deficits in cognitive, emotional and behavioural functioning. Assessment of future loss is an assessment, not a calculation with mathematical certainty. Assessment of future loss is based on the “real possibility” that a certain event might happen. A future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation.
4. Special damages
This award compensates the individual for out of pocket expenses that they have incurred as a result of injury. These may range from vocational assistance to the cost of medications. The individual “is to be restored to the position he would have been in had the accident not occurred, insofar as this can be done with money”. A court will award special damages if proof that an expenses was incurred is presented as well as proof that the expense incurred was reasonably necessary and was a result of the motor vehicle accident.
5. Future care
This award is to compensate the individual for the cost of care that they will incur in the future. The purpose again is to put the injured person in the position that he would have been in absent the injury. Judges, with the assistance of medical care providers and experts, will make a determination of what expenses will be required for the future care of the injured person.
In assessing the cost of future care, the court considers what is reasonably necessary on the medical evidence to promote the mental and physical health of the plaintiff. The test for standard of care generally is whether a reasonably-minded person of ample means would be ready to incur the expense.
The standard of proof to establish future cost of care is “simple probability”. All that has to be established is a real and substantial risk, as opposed to proof on a balance of probabilities, of the individual incurring the cost in the future, or requiring the service.
Unfortunately for severely injured individuals, a return to paid work is often not an option. Volunteer work can be a necessary party of the individuals post injury mental health and well being, although because of the deficits present following a severe injury, even attaining volunteer work may be difficult if not impossible. The British Columbia Supreme Court has recognized this and has in some cases provided an allowance for job coaching to assist the plaintiff in making the transition from one voluntary position to another. This type of award recognizes the difficulties faced by brain injured individuals in keeping volunteer work, due to the amount of supervision they require.
Other cases in the British Columbia Supreme Court have recognized the importance and benefit of provision of educational and tutorial support to assist the brain injured individual in completing education.
Future care requirements of severely injured individuals must be carefully assessed and considered to ensure adequate compensation. Unfortunately, assessment is a one time thing and all of the potential requirements of the individual must be considered and accounted for in that assessment.
In a personal injury case, the purpose of an award of damages is to put the individual in the position that he or she would have been absent the motor vehicle accident. Evidence regarding the position that the individual was in prior to injury is as important as evidence regarding the injury and consequences of the injury. Evidence typically presented includes testimony from the general practitioner, all treating practitioners, independent experts and friends, family and coworkers. Documentary evidence often includes such things as school records, medical records and employment and income earning records. Opinion evidence is relied on to prove causation, extent of injury and consequences of injury including required future care.
In my experience, outcome for the individual is impacted by legal proceedings. Specific factors that I have identified in my practice as improving outcome include ensuring that assistance is provided to the individual in a timely manner, ensuring that appropriate supports are in place, that the client's team is well informed about decisions as they are made and communication lines between all involved are kept open. Treating the individual in a compassionate and personal manner is absolutely vital. The litigation ends but the individual remains with a lifetime legacy of the injury.
Rose Keith, JD
Rose has over 20 years exper- ience in ICBC injury disputes settlements. She has worked with clients with soft tissue, whip lash, to traumatic brain injuries - as well as Medical Malpractice and Employment Law.
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see also Victoria, B.C. Brain Injury Compensation: Personal Injury Lawyers for ICBC Settlements
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