Wagners Serious Injury Lawyer Blog

Personal injury lawyers for an injured car accident victim successfully argued that correctness of a trial decision awarding damages for his brain injury.

The injured man was involved in a car accident several years ago. He unfortunately suffered a brain injury resulting in cognitive decline. On his behalf, personal injury lawyers in Nova Scotia brought an action against the individual whose negligence caused the car accident. The amount of damages was contested. The injured man argued that his brain injury resulted in a diminished capacity to earning future income.

He argued that he would be less marketable to future employers and that his career opportunities were more limited. Lawyers for the defendant's insurance company argued that his work capacity (and future income) was not affected by the car accident. The parties were unable to settle the claim before trial.

After a five day trial in Nova Scotia, the trial judge agreed with the injured man. He summed up the factual background as follows:

Richard Vogler, a very bright and popular twenty year old from Halifax, was asleep in the back seat with his seatbelt unbuckled when the gust from a passing tractor trailer sent the mobile home into a fishtail. The driver could not keep control. Mr. Vogler was hurled from the car as it crashed.

Mr. Vogler hit the ground with the kind of violence that causes the brain to bang against the inside of the skull. Also, the skull was fractured, and his brain suffered blunt trauma from that. The flesh of Mr. Vogler's right forearm was horribly torn, and one eye was badly damaged. His right chest was punctured and his lung bruised. Ribs and the pelvis were fractured.

For a time the question was whether Mr. Vogler would die. He lived. Then, the main question was what would be left of his faculties. He made a remarkable recovery thanks to good hospital care in the United States and Canada, to his parents' intense campaign of treatment involving professionals, family, and friends, to Mr. Vogler's own intellectual and spiritual strengths, and to sheer luck.

That much said, Mr. Vogler suffered brain injuries that were severe in the beginning, and there are some lasting effects. The extent and consequences of those losses are the most controversial issues for assessing Mr. Vogler's damages.

On these facts, the trial judge awarded the injured man general non-pecuniary damages (pain and suffering) at $150,000.00. He assessed damages for loss of income earning capacity at $180,000.00. The defendants appealed these awards to the Nova Scotia Court of Appeal.

The Court of Appeal found in favour of the injured man and dismissed the appeal. The Court reasoned as follows:

The trial judge had very extensive medical and other evidence before him, and was in an ideal position to determine the severity of the injuries for assessment purposes. His assessment was $150,000.00, for the combination of brain inury and loss of vision - each of which would alone command a significant award - and for the other injuries suffered. The appellants say this award is too high. We disagree. It is within the range of reasonable outcomes for the severe injuries suffered by the respondent.

Regarding the assessment of damages for loss of future income, or income earning capacity, the trial judge acknowledged the challenging task and noted that it involved making educated guesses about the life trajectory that Mr. Vogler would have enjoyed, but for the accident, and comparing this to the life that he is currently living.

On the basis of considerable evidence it was the trial judge's conclusion that the injuries have led to "information processing and memory deficits", and that but for the accident, Mr. Vogler would have been capable of "meaningful work". The result being that his injuries would probably translate into lower earnings in the future. Consistent with the case law, he opted to use a "global" rather than an actuarial approach and arrived at a figure for loss of future income earning capacity of $180,000.00. The appellants argue that this assessment is contrary to the evidence. Again we disagree. There was more than ample evidence to support the trial judge's findings and conclusions in making his award of loss of future earning capacity.

Essentially, lawyers for the defendant's insurance company tried to argue that there was not enough evidence to support an award for diminished future earning capacity. The Courts disagreed. It is impossible to know what an injured person's work situation would have been "but for" the injuries. However the Courts observed in this case that judges must make an "educated guess". If this "guess" leads to the conclusion that the life trajectory has been altered by the accident, and therefore future income loss is "probable", a loss of future earning capacity award will be granted.

In this case, the car accident caused "information processing deficits". It is impossible to know whether these deficits would result in a loss of future income, but the judge ultimately used an "educated guess" to conclude that they would. This case is an important affirmation from the Nova Scotia Court of Appeal of on the threshold required for a future earning capacity award.

Car accident victims often become injured as a result of the negligence of a driver who cannot be identified. Fortunately, Nova Scotia, like New Brunswick and PEI, has an insurance regime which grants compensation to such injured car accident victims. When a person is injured as a result of the negligence of an unidentified driver, the person's "Section D" insurance policy becomes engaged.

The relevant insurance provision reads:

The insurer agrees to pay all sums that: (a) A person insured under this policy is legally entitled to recover from the owner or driver of an uninsured automobile or unidentified automobile as damages for bodily injuries resulting from an accident involving an automobile.

The typical scenario under which this insurance provision is triggered is a "hit and run", where the victim is injured by a driver who then drives away and cannot later be identified. These situations are relatively straight-forward.

A more complex scenario occurs when a victim is injured as a result of a foreign object lying loose on a roadway and flying into the victim's vehicle (usually being projected from the tires of another vehicle). These scenarios are usually highly contested, with insurance companies arguing that the mere existence of the foreign object on the roadway is no evidence of negligence of an unidentified driver.

In such situations, the case law maintains that the car accident victim has an onus to establish facts from which the Court may reasonably draw the inference that the negligence of the driver of an unidentified vehicle was the probable cause of foreign object lying loose on the highway. The burden of proof is whether it is more likely than not that the driver of an unidentified vehicle's negligence constituted the cause of the plaintiff's injury.

As is the case in every claim involving debris lying on a roadway, the procurement of direct evidence of negligence is impossible. In circumstances such as this, plaintiffs must prove their claim using circumstantial evidence. The principles are well-established for assessing liability where the evidence is circumstantial.

In the oft-cited decision of the Supreme Court of Canada in Montreal Tramways Co. v. Léveillé, [1933] S.C.R. 456 (S.C.C.), the Court considered the role circumstantial evidence plays in meeting the burden of proof and stated at para. 35:

The general principle in accordance with which in cases like the present the sufficiency of the evidence is to be determined was stated by Lord Chancellor Loreburn in Richard Evans & Co., Limited v. Astley, [1911] A.C. 678 as follows:

It is, of course, impossible to lay down in words any scale or standard by which you can measure the degree of proof which will suffice to support a particular conclusion of fact. The applicant must prove his case. This does not mean that he must demonstrate his case. If the more probable conclusion is that for which he contends, and there is anything pointing to it, then there is evidence for a court to act upon. Any conclusion short of certainty may be miscalled conjecture or surmise but courts, like individuals, habitually act upon a balance of probabilities.

Once the Plaintiff has established that it likely came from the undercarriage of a motor vehicle, the fact that the car part fell off the vehicle and onto the highway will be sufficient to justify the a prima facie case of negligence against an "unidentified driver". A similar ruling was made by the British Columbia Court of Appeal in Lee v. Insurance Corp. of British Columbia, 1986 CarswellBC 111.

The deceased driver in Lee, supra, was driving on a highway when witnesses say he suddenly plunged over an embankment. The cause of the accident was unknown. The initial theory was that the deceased had fallen asleep at the wheel. Days later, police discovered a foreign car part (a detached trailer hitch) on the floor of the deceased's car.

Based on the presence of this foreign car part in the deceased's car, the family of the deceased surmised "that the wheels of the eastbound semi-trailer truck had thrown up the trailer hitch from the road surface and that this projectile had penetrated the windshield striking Kelly in the face." They brought a claim against the Insurance Corporation of British Columbia and argued that the accident resulted from the negligence of an "unidentified driver".

Insurance company denied the claim. There remained alternate explanations for the cause of the accident: the deceased could have fallen asleep, he could have simply lost control of his vehicle, etc. Furthermore, the insurance company argued that even if it was accepted that the car part likely caused the accident, there was no evidence of negligence on the part of an unidentified driver. It was argued that the car part could have fallen on the road due to vandalism, for example. This argument was rejected by the Court of Appeal.

Discussing whether the existence of the foreign car part in the deceased's car (likely previously on the road) established a prima facie case of negligence, the Court stated at para. 11:

In my view, in the absence of an explanation, the fact of its falling off the vehicle and onto the roadway is sufficient to justify the conclusion that most probably the driver was negligent. That does not happen " 'if those who have the management use proper care' " and " 'it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care'

A personal injury lawyer experienced in these complex fact scenarios is best able to advance a claim for damages on behalf of injured victims. The lawyers at Wagners routinely achieve successful result for victims of car accident involving an "unidentified driver".

The Supreme Court of Nova Scotia recently released a decision which underlines the importance of consent to the availability of insurance following a car accident in which someone is injured.

In the case of Deveraux v. Dixon, the son of an insured driver caused a car accident. Two passengers of the car he struck were injured. They started a law suit against the son and his mother (as the owner of the car).

The mother's insurance company did not defend the case, arguing that an exclusion clause in the insurance policy did not require them to defend the driver of an insured car when that driver is driving the car without consent. The relevant provisions in the insurance contract and the Insurance Act read, respectively:

The insurer agrees to indemnify the insured and, in the same manner and to the same extent as if named herein as the insured, every other person who with his consent personally drives the automobile, or personally operates any part thereof, against the liability imposed by law upon the insured or upon any such other person for loss or damages arising from the ownership, use or operation of the automobile.

...

114 (1) Every contract evidenced by an owner's policy insures the person named therein, and every other person who with his consent personally drives an automobile owned by the insured named in the contract and within the description or definition thereof in the contract, against liability imposed by law upon the insured named in the contract or that other person for loss or damage

(a) arising from the ownership, use or operation of any such automobile; and

(b) resulting from bodily injury to or the death of any person, and damage to property.
The mother and son did not have the financial resources to pay for the victim's damages on their own. Therefore, in the event the insurance company was absolved from having to defend the mother and son, personal injury lawyers for the victims included the victims' insurance company (Aviva) to the claim. In the event a person is struck by an uninsured driver, the victim's insurance company is statutorily required to compensate their insured.

In this case Aviva argued that implied consent was given and that, therefore, the mother and son were not uninsured.

The person that caused the accident was a 24-year-old son of the insured owner of the car. He lived with his mother. His mother bought the car, insured it, but did not register it. She said she was unemployed and was receiving a disability payment, and did not have the money to register the vehicle until the end of the month. She was holding off on the registration until then.

Though trained to drive, the son was not licensed at the time of the car accident. He therefore never drove any of his mother's cars.

On the day of the car accident, the mother went out to dinner. She left her car (and its keys) at home. The son had been drinking at a friend's house. He returned home sometime in the evening. He was intoxicated when he then decided to take the truck. He did not contact his mother to ask permission, and did not discuss it with anyone else. It was the first time he had driven the truck.

The Court noted the following test for determining whether implied consent was given for the son to drive the car:

The test for implied consent has been stated more recently by Stewart, J. of this Court as "whether upon analysing all the surrounding circumstances objectively, a reasonable person observing the situation would conclude that [the driver] had the implied consent of [the owner] to drive the truck... The state of mind of the owner and driver are strong factors in determining the issue of implied consent".

The Court found that there was no evidence that there had been consent, express or implied, for the son Emerson to drive the insured mother's vehicles. She was aware that he did not have a driver's license. As such, she did not find it necessary to explicitly tell him he could not drive her vehicles. He was not listed on her automobile insurance, and, as far as she knew, he had not driven her vehicles in the past.

This case is important to victims of car accidents in Nova Scotia, New Brunswick and PEI. The availability of an insurance company to be able to provide appropriate compensation is often necessary. Where the issue of consent is brought up by an insurance company to deny coverage, it is possible that car accident victims can be denied recourse. In such cases it takes experienced lawyers, specializing in the field of personal injury litigation to navigate the course required to ensure that an insurance company will be mandated to respond to a claim for damages.

Lawyers for a young man tragically injured in a car accident many years ago finally achieved justice on his behalf following a recent trial.

The case stemmed from a serious car accident which took place in Wyoming in 2000. The victim was a 20-year-old who was a passenger in a car driven by his friend. The vehicle was towing a mobile home. With the victim asleep in the back seat of the car, the mobile home fishtailed after being passed by a large truck. The driver lost control of the car and the victim was hurled from the vehicle as it crashed.

The victim's head banged against the pavement. His brain suffered blunt trauma by violently hitting the inside of his skull. His eye was badly damaged, his right chest and lungs punctured and his ribs and pelvis were fractured. He was taken to Hospital where he remained for a long time during a difficult period of recovery. Many of his injuries healed. Unfortunately, he continues to suffer from personal injuries, the most significant of which is a lasting brain injury. His cognitive injuries were described as follows:

Attention: Mr. Vogler showed reduced focus on specific topics (staying with a specific visual, auditory or motor activity), reduced sustaining attention (completing a schedule, organizing papers such as his portfolio). Mr. Vogler showed intermittent "shutter effect" or "blanking out" during the task in which he "forgot" what we were working on, mild distractability, mild reduction in shifting attention (alternating between two tasks) and reduced divided attention (doing two things at once).

Memory: Mr. Vogler had difficulty recalling what was said to him and did not use rehearsal strategies on a consistent basis. He had intermittent lapses in information processing specifically during the middle of the message and at times of fatigue. Immediate, recent and prospective memory (forward planning) were reduced as was task planning, initiation, execution, speed, organization of information and time management.

Word Retrieval: Mr. Vogler showed borderline-mild word retrieval difficulty. He used circumlocution, verbal mazing or word substitution occasionally. This became exaccerbated [sic] during fatigue.

Thought formulation: Mr. Vogler showed reduced information processing through reduced speed of responding, reduced accuracy and reduced problem solving skills. This was not apparent when asked to problem solve neutral topics such as what would you do if you lost your keys but did not show strategic problem solving during personal experiences such as losing a bag that had his scarf and assignment in it at the hospital. Identification of alternate solutions (flexability) [sic] was reduced.

Social communication: Mr. Vogler showed a borderline-mild degree of redundancy, tangential humor/comment and reduced awareness of others' perspective.

After hearing evidence from a variety of medical experts and hearing from the victim, his friends and his family, the Court awarded him damages. In assessing pain and suffering, the Court favoured the "functional approach", where the purchase of comforts to balance the loss of vision, brain impediments, stiffness and sufferings inform the analysis. The Court considered the cost of a college education under the functional analysis. It awarded $150,000 to provide some solace related to the victim's intellectual impairments.

The young man did not have a long history of pre-injury earnings to definitively inform the Court what his income would have been "but for" the accident. The Court then used its "best estimate" to "attempt to put the injured party in the position the party would have enjoyed if the accident had not occurred."

The Court accepted that the victim would earn less over this lifetime due to his injuries. In quantifying this loss, the Court hypothesized what he would have done but for the accident. The Court then awarded a global sum of $180,000.

Halifax personal injury lawyers for the victim successfully argued for other heads of damage. In the end, the insurance company defending the claim was ordered to pay a total judgment of $485,972, plus costs.

We see this as a great result for a heartbreaking set of circumstances. Unhappy with having to pay the permanently injured young man the awarded level of compensation, the insurance company is appealing the ruling. We will update on the outcome of the appeal.

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.

Auto insurance is mandatory for Nova Scotians. Each driver in Nova Scotia contracts with an insurer so that they may be insured against liability and for damages should they ever be involved in a car accident. While the contract is between the driver and the insurance company, because car insurance is the primary source of compensation for car accident victims, governments are heavily involved in the regulation and operation of the insurance regime. Automobile insurance is a product with a public purpose. As such, it is arguable that car insurance contracts are no "contracts" in the traditional sense. They can be considered public regulatory documents.

The importance of this distinction arises during disputes over insurance coverage and denials. When such disputes come up, Courts are inevitably asked to decide on the meaning of the insurance policy. In doing so, should they treat the policy as a "contract", freely negotiated between two parties? Or, should Court regard the policy as a "social document", akin to a piece of legislation? The answer is important as it establishes whether a narrow text-centric interpretation will be used (i.e. what is the precise wording of the document), or whether the Courts will determine coverage dispute based on public policy (i.e. what is the intent and purpose of the policy).

Wagners law firm prefers and argues for the latter. Injured victims of car accidents routinely face insurance denials from insurance companies. In deciding whether the denials are warranted, Wagners contends we must look beyond a narrow reading of the plain contract. Being more akin to a public document, we must look at the social consequences of a denial of coverage. There is an inherent power imbalance between insurance companies and injured car accident victims, consumer protection principles call for the language of the insurance policies to be construed as much as possible in favour of the injured car accident victim.

Like several provinces, Nova Scotia has a cap on the compensation victims of motor vehicle accidents can receive for their injuries. From 2003 to 2010, under the control of a Conservative government, victims of auto accidents who fell under the legislated definition of a "minor injury" had a $2500 cap imposed on their damages.

The Conservative government defined "minor injury" in a manner that was all-encompassing. Most accident victims, regardless of the extent of their pain, suffering and injury, fell under the definition of "minor injury".

Fortunately, on April 28, 2010, the current Government introduced changes to Nova Scotia's minor injury cap. The amount of the cap was tripled to $7500.

The most significant improvements to the legislation are those made to the definition of "minor injury". While the previous definition of "minor injury" included many serious and long-term injuries; now only sprains, strains and whiplash-type injuries are considered "minor". Only these types of injuries are subject to the damage award cap of $7,500. The former definition eliminated or capped fair compensation for many accident victims. The new legislation expands the rights of accident victims to pursue claims to recover damages for their injuries.

As a result of this change to the law, now most victims of car accidents fall outside of the cap and will receive fair compensation for the loss of enjoyment of life and pain and suffering that may result from the motor vehicle accident.

Another positive change in the law is that the amount of the cap is indexed annually to reflect inflation. For example, in 2011, the few who are captured by the definition of "minor injury" are entitled to $7,665 for pain and suffering. The entitlement will continue to rise with inflation.

Despite the substantial changes to the legislation, insurance companies will surely continue to suggest to victims that they are caught by the definition of "minor injury" and are therefore only entitled to a "capped" compensation.

The lawyers at Wagners know better! We understand the legislation and our experienced lawyers understand how to approach appropriate claims in a manner that ensures it is found to be over the "cap".

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