Wagners Serious Injury Lawyer Blog

Earlier this summer, a New Brunswick Court, in Wawanesa Mutual Insurance Company v. Johnston assessed and awarded damages to the victim of a serious car accident.

The car accident victim is a New Brunswick resident. She and her son were struck by an uninsured driver in 2006. She suffered serious physical injuries as a result of the accident. She was diagnosed with right and left wrist fractures; right pelvic fractures; right hip fractures, right and left tibia fractures and a laceration of the left scalp. She underwent several surgeries as a result of her injuries. It was also determined that she suffered a closed head injury as a result of this accident. She suffered a severe traumatic brain injury.

Lawyers commenced actions on their behalf against their insurance company to recover insurance benefits pursuant to Section D, uninsured automobile coverage of their standard policy. This protects drivers in the event they are harmed by an insured or unidentified driver.

Lawyers presented the expert opinions of the accident victim's doctors. Among the more relevant opinions, her doctors stated:

"At the time of the motor vehicle accident of 2006, [she] was reported by her treating caregivers to be in a state of remission from psychotic symptomatology, and was, at the time, compliant with suggested treatment. Whether or not compliance would have ensued, is also moot, given her previous history of non-compliance, even when "things were going well." Independent living for [her] would have been somewhat precarious, although possible, with close outpatient supervision prior t the accident of 2006."

"...the motor vehicle accident of November 15, 2006 dramatically changed [her] life. ...She has greatly reduced function at this point and requires supervision to ensure that she does not inadvertently harm herself. This may be the situation for the prolonged future or even for the remainder of her life. She will be unable to return to work."

"This woman sustained severe injuries in the accident in question. She had a severe traumatic brain injury. She has been left with residua from this in the form of mental fatigue, slowing of information processing and problems with divide attention. Language is generally intact, calculating ability is intact. She has some difficulties with changes in set and maintaining set. The Wisconsin Card Storing Test showed a number of errors of failure to maintain set....

Her memory is significantly affected, both for verbal and visual information....

There are significant compromises of her functional capacity...."

The victim's lawyers researched many cases across Canada where people were regrettably similarly severely injured. They presented the Court with results of the research to help the judge decide the appropriate quantum of damages.

After hearing the totality of the evidence and submissions, the Judge awarded this unfortunate car accident victim $200,000 for pain and suffering, $40,000 for income loss and $565,570 to contribute to her cost of future care together with her costs and disbursements.

The insurance company was ordered to pay the car accident victim a total award of $805,570.

As a result of another driver's negligence, this lady suffered life-altering injuries. The injuries are permanent. While financial compensation will not heal her injuries, it is the way the Canadian legal system recompense injury victims. This New Brunswick lady hired personal injury lawyers. They did the necessary research and made appropriate submissions to the New Brunswick Court to guide the decision-making process. The circumstances of this case were unfortunate but it is hoped that the Court award will provide this injured lady with the means necessary to continue to treat her injuries and improve her altered lifestyle.

Earlier this summer, the Court of Nova Scotia released a decision in Hayward v. Young. The case stemmed from an April 5, 2003 car accident. The plaintiff was driving in Halifax when he was without warning T-boned at the driver's side door by another vehicle. He got out of the vehicle with some difficulty as the door was crushed in and the window shattered.

The collision caused him to strike his head against the window and he was subsequently disoriented and nauseous. In the days that followed, the accident victim became stiff and sore. He was going through a significant amount of pain and had difficulty moving his neck. The neck pain later developed into persistent migraine headaches.

In 2006, he underwent an MRI of the brain, which revealed some residual scarring to the inferior frontal lobe.

The Plaintiff commenced a lawsuit for the car accident against the driver who caused the accident. He asked for compensation for the physical injuries and also alleged that he had suffered a brain injury as a result of the car accident.

At trial, the defendant was represented by his insurance company. He admitted being at fault for the accident but denied responsibility for a brain injury.

As a teenager, the Plaintiff was assaulted on a sidewalk in downtown Halifax. He remained unconscious for a half hour. Medical records reveal that four days later he still could not remember the event. The insurance company's lawyers argued that if the Plaintiff had sustained a traumatic brain injury, it was as a result of the assault many years earlier, and not the car accident.

The Plaintiff himself testified that following the accident he had memory problems and found himself to be moody, irritable, short of temper, and chronically tired. He also said that he had difficulty meeting performing work tasks and would miss project time lines.
In determining the test to be used in assessing causation, the Judge cited the following words from the Supreme Court of Canada:

Much judicial and academic ink has been spilled over the proper test for causation in cases of negligence. It is neither necessary nor helpful to catalogue the various debates. It suffices at this juncture to simply assert the general principles that emerge from the cases.

First, the basic test for determining causation remains the "but for" test. This applies to multi-cause injuries. The plaintiff bears the burden of showing that "but for" the negligent act or omission of each defendant, the injury would not have occurred. Having done this, contributory negligence may be apportioned, as permitted by statute.

This fundamental rule has never been displaced and remains the primary test for causation in negligence actions. As stated in Athey v. Leonati, at para. 14, per Major J., "[t]he general, but not conclusive, test for causation is the 'but for' test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant". Similarly, as I noted in Blackwater v. Plint, at para. 78, "[t]he rules of causation consider generally whether 'but for' the defendant's acts, the plaintiff's damages would have been incurred on a balance of probabilities."

The "but for" test recognizes that compensation for negligent conduct should only be made "where a substantial connection between the injury and the defendant's conduct" is present. It ensures that a defendant will not be held liable for the plaintiff's injuries where they "may very well be due to factors unconnected to the defendant and not the fault of anyone": Snell v. Farrell, at p. 327, per Sopinka J.

Various medical doctors testified on the nature of the plaintiff's injuries and their views on causation. After hearing the expert opinions, the court ultimately concluded that the plaintiff had not proven that "but for" the accident he would have no brain injury. The Court found that the prior assault was deemed to be the most likely explanation for the scar tissue shown in his 2006 MRI.

However, the court did accept that Mr. Hayward suffered soft tissue injuries that developed into a chronic pain problem as a result of the accident. The Court awarded $120,000 for pain and suffering. In addition, the Court awarded the Plaintiff all his out-of-pocket expenses, $10,000 for future care, plus interest on all the awards.