Legal Resource involving crumbling skull arguments
This is a recent case in which differing views led to significantly different estimates of damages. Some of the injuries discussed were concussion/mTBI, mechanical neck and shoulder pain, cervicogenic headache pain, chronic myofascial and cervicogenic headache pain, aggravated intermittent dizziness, light-headedness, and balance issues, worsened pre-existing mid-range hearing loss, exacerbated pre-existing tinnitus, anxiety et al.
Plaintiff range of damages: $285,000.
Defence range of damages: $90,000 to $100,000.
Case Summary
This was a young 22 year old Plaintiff involved in a car accident on October 4, 2018. The main disagreement is about the severity of the injuries and how they affect the Plaintiff’s ability to complete university and work. The Plaintiff claims she suffered serious, permanent injuries that have greatly impacted her life, while the defendants argue her injuries were minor, largely resolved, and influenced by her pre-existing medical history.
These differing views led to significantly different estimates of damages.
The following injuries were accepted by the Court as being caused or worsened by the subject accident and include ongoing mechanical neck and shoulder pain, cervicogenic headache pain, and chronic myofascial and cervicogenic headache pain, aggravated intermittent dizziness, light-headedness, and balance issues, worsened pre-existing mid-range hearing loss, exacerbated pre-existing tinnitus, and the development of an adjustment disorder characterized by anxiety, episodic low mood, and post-traumatic stress. Concussion/mTBI was not accepted by the Court.
Plaintiff range of damages: $285,000.
Defence range of damages: $90,000 to $100,000. (crumbling skull)
Referenced Case Law:
[166] Ms. D. claims $285,000 in non-pecuniary damages, a figure which includes about $15,000 for the loss of housekeeping capacity. She relies on the following authorities:
a) Moen v. Grantham, 2024 BCSC 937 ($300,000, including loss of housekeeping capacity);
b) Zacher v. Prescesky, 2019 BCSC 500 ($300,000);
c) Bhatti v. Ethier, 2018 BCSC 1779 ($200,000);
d) Gabor v. Boilard, 2015 BCSC 1724 ($200,000); and
e) Watkins v. Dormuth, 2014 BCSC 543 ($175,000).
[167] If there is a finding that Ms. D.’ current complaints are causally related to the accident, the defendants assess non-pecuniary damages in the range of $90,000 – $100,000, subject to a significant (unspecified) deduction on the basis she was a “crumbling skull” plaintiff before the accident. They rely on the following authorities:
a) Torrance v. D., 2022 BCSC 1630 ($110,000);
b) Wong v. Campbell, 2020 BCSC 243 ($90,000);
c) Miller v. Resurreccion, 2019 BCSC 1719 ($120,000);
d) Klinger v. Lau, 2019 BCSC 1776 ($95,000); and
e) Karim v. Li, 2015 BCSC 498 ($100,000).
Conclusion
[168] While I agree that there are some parallels between the cases counsel cited and the one before me, all are distinguishable on their facts. In my view, the decisions on which Ms. D. relies generally involved plaintiffs who sustained worse physical and psychological injuries. Some had multiple car accidents, required surgery, and experienced emotional distress that was so severe it prompted them to contemplate suicide. Unlike Ms. D., some were found to have significant cognitive deficits due to mild traumatic brain injury, to be unable to work in any capacity, or to have a bleak prognosis. While some of the cases the defendants cited involved plaintiffs with less serious injuries that had a more limited functional impact on their lives, I conclude that they are generally more analogous than the decisions on which Ms. D. relies.
[169] I accept Dr. W.’s evidence that function is an important measure of disability. Applying that measure here, Ms. D. was doing well in all aspects of her life before the accident. She was a full-time student, played university-level field hockey, maintained average grades, and made new friends. I conclude that she was a conscientious and focused student who was motivated to work hard on her studies. In my view, that remains true. I conclude that at least some of her post-accident decisions (including, for example, cutting back on sports, focusing her volunteer efforts, repeating certain courses, and reducing her course load) were likely at least partly strategic and designed to maximise her chances of gaining entry to UBC’s competitive Dietetics program. I also conclude that some of the lifestyle changes she attributes to the accident are likely explained by the inevitable life transitions that students frequently make after leaving high school and focusing on career planning.
[170] I acknowledge that Ms. D.’ life changed after the accident but I am not persuaded the accident precipitated all of those changes. In my view, given her personality structure, traits of perfectionism, and relative weakness in math and sciences, it is likely that Ms. D. would have encountered some difficulties transitioning to a more challenging university environment, absent the accident. Ms. M. testified that she initially thought university would be easy but later discovered it was not; she ultimately decided to take only two to three courses per term. In my view, there is a real and substantial possibility that Ms. D. would have decided to do the same in order to maintain her personal high standards for good grades, absent the accident.
[171] I appreciate that Ms. D. mourns the loss of her identity as a competitive athlete. However, by her own admission, at the time of the accident, she had not played competitive field hockey since 2014. I conclude that this significant life change was largely occasioned by her field hockey injuries and her decision to prioritise her academic studies over athletics, before the accident.
[172] I have found that Ms. D. has chronic myofascial and cervicogenic headache pain of variable intensity which has improved but not resolved. While I accept that Ms. D. likely has a poor prognosis for a full recovery, the expert evidence supports the conclusion that several untried treatment options remain available to Ms. D..
[173] I conclude that Ms. D.’ capacity to study is likely now diminished, especially when she has headache pain. On her evidence, she needs to pace herself when studying: she takes a five-minute break about every 15 minutes, and a longer break after about one hour. At some point, Ms. D. is unable to concentrate and she has to lie down due to increased headache pain. She focuses on one course at a time when studying. However, her UBC transcript confirms that her marks have consistently remained well above average in all her courses since January 2021. I have found that she has no objective cognitive deficits due to any accident-related brain injury.
[174] On Ms. D.’ evidence, as corroborated by her parents, cousin, friends, and roommate, she is now generally quieter, less engaged, and more noncommittal; she cancels plans more often. I accept that she now misses out more often on family occasions and special events due, at least in part, to her ongoing accident-related symptoms. Ms. D. said that she finds it difficult to be present in relationships and to plan for the future. The defendants note that she had a three-year relationship after the accident. While Ms. D. said she now feels behind in both school and in life, I conclude that at least some of her academic delay was occasioned by her own uncertainty and indecision about her preferred career choice.
[175] I accept that Ms. D. now worries about her future, including whether she will be able to have a family and whether she will be able to manage the Master’s program in Dietetics. Given her pre-accident anxiety and perfectionistic personality traits, I conclude that Ms. D. would likely have worried about all of those things to some extent, absent the accident. I accept that she likely worries more about her future now than she did before the accident. Ms. D. has some driving anxiety but is not precluded from driving.
[176] Having regard to the trial evidence as a whole, I award non-pecuniary damages of $130,000. In doing so, I have considered Ms. D.’ limitations and her current need to pace herself when performing household tasks. This award accounts for Ms. D.’ pre-accident hearing loss, tinnitus, situational stress and anxiety, related gastrointestinal symptoms, episodic low mood, previous hip and knee injuries, and corresponding physical limitations.
Case Reference: Davies v Hsu, 2024 BCSC 2119 (CanLII)
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