This is a 2022 case that resulted in the maximum award under the heading of non-pecuniary damages in the sum of $414,000 due to the resulting catastrophic injuries.
The Plaintiff was 48 years old at the time of this very unfortunate incident, living on her own, and operating a business from her home as a bookkeeper.
At the time of this incident, the Plaintiff was walking along a road in Saanich, BC, when she was negligently struck from behind by a motor vehicle. This incident resulted in catastrophic injuries which required hospitalization for over one year and is now residing in a care home.
Her injuries included severe traumatic brain injury, left hemiparesis, severe cognitive and behavioural disturbances, left Cranial Nerve III Palsy and lost vision in the left side of her visual field, to name a few.
We will provide further information about Cranial Nerve III Palsy, which results in a lack of eye movement, in this case the left eye, and the eye tends to drift out to the side.
The oculomotor (third) cranial nerve plays an important role in the efferent visual system by controlling ipsilateral eye movements, pupil constriction, and upper eyelid elevation. Accordingly, damage to the third cranial nerve may cause diplopia, pupil mydriasis, and/or upper eyelid ptosis. Jan 6, 2022
There were numerous injuries sustained in this incident and they are documented in the published decision. A major dispute at trial surrounded the issue of liability. It is a lengthy part of this decision and an interesting case to review in its entirety.
This article will focus on the criteria relating to life expectancy – simply because it offered good intel about this analysis. We have not published an article dealing with life expectancy and this is a good decision to learn from.
As a note, in quantifying the life expectancy, this was conducted by file review. There was no in-person assessment required, and was based on a review of the clinical records.
When preparing for an Independent Medical Assessment under this heading, you will want to be sure that your document brief is properly organized and in chronological order if at all possible. Of course, an efficient document brief will ensure that key diagnostic test results are extracted from the voluminous hospital records for easy access and reference by the Assessors.
Both experts in this case referred to the publications of Dr. David Strauss’ group from San Francisco.
We note a paragraph from another case which provides information about Dr. David Strauss:
Dr. Strauss is an Emeritus Professor of Statistics at the University of California. He has conducted extensive research with respect to life expectancy for children and adults with disabilities. He is the Director of the Life Expectancy Project, which is an internationally recognized research team whose focus is statistical and epidemiological studies on children and adults with developmental disabilities. As a medical researcher specializing in the field of life expectancy, he has provided life expectancy evidence throughout the world.
Information of Dr. David Strauss’ publications extracted from this decision are noted below:
- The group has studied the survival of a cohort of approximately 5000 individuals with traumatic brain injuries.
- These studies categorize patients by their ability to feed themselves and to ambulate (walk).
- They assess life expectancy for individuals within their categories.
- For example, the 2015 study reported that a female aged 50 who could self-feed but could not walk had a life expectancy of approximately 16-17 years, whereas if she were able to walk well she had a life expectancy of 27-29 years.
- Strauss studies are published in 2007 and 2015
- Self-feeds is described as “can feed self with fingers or utensils, with assistance and/or spillage.”
- Some walking ability is described as “walks with support, or unsteadily alone at least 10 feet but does not balance well.”
We have located further articles on life expectancy by Dr. David Strauss’s group and we include the link here for your interest.
- Life Expectancy of 1-Year Survivors of Traumatic Brain Injury, 1988-2019: Updated Results From the TBI Model Systems
- Life Expectancy after Stroke Based On Age, Sex, and Rankin Grade of Disability: A Synthesis
- An update on survival after anoxic brain injury in adolescents and young adults
- Life Expectancy After Stroke: The Effect of Rankin Grade
- Long-Term Survival AfterTraumatic Brain Injury. Part II: Life Expectancy
- A note on survival after anoxic brain injury in adolescents and young adults
Both experts in this case referred to the publication of Dr. Strauss and focused on the assessment of the Plaintiff’s abilities to determine life expectancy. This portion of the decision can be accessed from the link above. After a careful assessment, the Court concluded: “I accept that her life expectancy is 24.5 years.”
The following award resulted:
- Non-pecuniary damages of $414,000
- Past loss of income of $195,600
- Damages for loss of future earning capacity $550,000
- Damages for cost of future care as set out above, with further submissions if necessary [$3,997,198.02]
- Special damages of $333,235.55
- Costs in this case are complicated by the positions advanced by and between the defendants. If the parties are not able to agree, they may make submissions.
The cost of future care are noted below:
 Assuming a life expectancy of 24.5 years and assuming Ms. Ward will be moved into long-term care after two years, the present value of Ms. Ward’s cost of future care claim is:
|Cost & Frequency of Care Item||Multiplier||Present Value of Future Care Amount|
|$136,200.00/year until moved into rehabilitative facility||1.918||$261,231.60|
|$1,667.88 for initial 12 hrs||0.995||$1,659.54|
|$3,335.76 for 24 hrs/year for 2 years||1.918||$6,397.99|
|$18,720.00 for 2 sessions/week for 2 years||1.918||$35,904.96|
|Speech Language Pathologist
|$1,220.04 for initial 12 hrs||0.995||$1,213.94|
|$1,220.04 for 12 hrs/year for 2 years||1.918||$2,340.04|
|Psychologist||$1250/year for 2 years||1.918||$2,397.50|
|Disputed Equipment note: cost per item is median amount within price range given by plaintiff|
|Commode chair||$2847.5/5 years||4.148||$11,811.43|
|Foot splint||$750/2-5 years||9.584||$7,188.00|
|Active passive trainer||$3750||0.995||$3,731.25|
|AFO for left foot||$212.50/2-3 years||9.584||$2,036.60|
Note: cost is as requested by plaintiff
|Adapted cup with long straw||$23.21/year||18.153||$421.33|
|Low air loss mattress||$5,500.00||1||$5,500.00|
|Adjustable overhead table for hospital bed||$195.00||0.995||$194.03|
|Bumpers for hospital bed rails||$80.00||0.995||$79.60|
|Wheelchair fall alarm||$50.45||0.995||$50.20|
|Bed fall alarm||$50.45||0.995||$50.20|
|Crash pads for side of hospital bed||$291.75||0.995||$290.29|
|Manual tilt wheelchair with seating supports||$9,500/5 years starting in 2025||3.148||$29,906.00|
|Budget for seating adaptions||$2,000/year||18.153||$36,306.00|
|Electronic tablet||$275.00/5 years||4.148||$1,140.70|
|Long Term Care Facility
$576.43/day (weighted average of $505 on weekends and $605 on weekdays) until death
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