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Proving a Traumatic Brain Injury in a Pedestrian Accident Case

There are over 2,000 pedestrian accidents in British Columbia each year. The pedestrian obviously feels the brunt of a collision, as he or she lacks any protection from the road or other elements. Even when the motor vehicle driver is clearly at fault for the accident, there may still be a dispute as to the extent of the pedestrian’s injuries.

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Henbury v. Egilson

A B.C. Supreme Court judge recently decided such a case. In Henbury v. Egilson, the defendants initially disputed both liability and damages. But following a January 2018 trial before Justice G.P. Weatherill, the defence admitted liability, leaving the Court to address the matter of damages.

The Details of the Accident

The plaintiff is a 45-year-old man who lives with his wife in Summerland, a town on the west side of the Okanagan Lake, approximately 50 kilometres from Kelowna. The plaintiff moved to Summerland in 2006 to take a job at a winery in the nearby town of Penticton. Later, in 2009, the plaintiff accepted a position with the Canada Revenue Agency (CRA) in Penticton.

Two days before Christmas 2014, the plaintiff went for his regular evening walk on a hiking trail near Giant’s Head Park in Summerland. It was dark at the time–around 7 p.m.–but the weather was dry and clear. The plaintiff lived on Milne Road in Summerland at the time, which is at the foot of Giant’s Head Mountain.

The plaintiff crossed Milne Road and traveled up a gravel shoulder towards the hiking path, which was about 30 yards away. At that same time, a Volkswagen Jetta was driving down Milne Road. The plaintiff saw the car’s headlights. He observed the Jetta appeared to be going “well in excess” of the posted speed limit of 30 km/hr. As the Jetta approached the plaintiff, he realized the car was going to hit him. He tried to jump out of the way but the Jetta still managed to strike the plaintiff in the knee. The Jetta then rolled over and came to a stop on Milne Road.

The Plaintiff’s Injuries: knee pain, neck and back pain, chronic headaches, traumatic brain injury, more

At trial before Judge Weatherill, the plaintiff testified that he continued to suffer from “chronic left knee pain, intermittent neck and back pain, and chronic headaches,” even more than three years after the accident. The plaintiff also said he suffered a traumatic brain injury as a result of the Jetta hitting him, which has caused additional “psychological issues, anger issues, decreased concentration, mental fatigue, noise and light sensitivity, distractibility, and difficulty multi-tasking.” This, the plaintiff said, kept him from advancing in his career with the CRA.

The defendants–the driver and the owner of the Jetta–maintained the plaintiff only sustained minor injuries in the accident, the “majority” of which had already healed. The defence denied the evidence supported the conclusion that the plaintiff sustained a traumatic brain injury, and that any “ongoing cognitive issues” are the result of psychological trauma or psychiatric disease and not any physical damage to his brain.

As is typical in B.C. personal injury cases of this kind, expert witnesses testified for both sides. The Court also heard lay testimony from the plaintiff’s current wife and some of his co-workers.

The Judge’s Decision

After reviewing all of the available evidence, Justice Weatherill concluded that while the plaintiff had “some lingering physical and psychological issues” from the 2014 accident, his injuries were not “as serious or as functionally disabling as he alleges.”

First, the Court found that the plaintiff did sufficiently prove his chronic knee pain. Indeed, the defence never disputed the diagnosis of the plaintiff’s treating physician, who testified as an expert witness, on this point. Based on this evidence, the judge said the plaintiff “will continue to have some [knee] pain which will wax and wane throughout his life.”

The judge sided with the defence on the critical issue of whether or not the plaintiff suffered a traumatic brain injury. Based on the evidence, Justice Weatherill said he was “not persuaded” such an injury occurred. Among other issues, the judge noted there was “no gap” in the plaintiff’s memory of the accident. That is to say, he never recalled losing consciousness after being struck by the Jetta, which would have been consistent with a traumatic brain injury. In fact, the defendant driver testified she spoke with the plaintiff immediately following the impact, and she did not appear “dazed or disoriented” to her.

Nor did the plaintiff’s own medical records support a brain injury diagnosis, the judge said. Rather, as the defence suggested, they indicated the plaintiff developed a number of psychological problems following the accident, including possibly depression and post-traumatic stress disorder. Of course, Judge Weatherill said the defence was liable for those damages, as the plaintiff will require “ongoing counselling to return to his pre-Accident psychological function.”

Justice Weatherill ultimately awarded the plaintiff $100,000 in general damages, which are designed to compensate him for his ongoing knee and psychological problems. The court also assessed $80,000 in damages to reflect the plaintiff’s future wage loss and “loss of earning capacity.” The judge based this assessment on the assumption that the plaintiff “will stay with CRA until he retires” and that “his continued psychological difficulties” creates a “substantial possibility” that additional opportunities for advancement “will be stalled.”

Taking into account other categories of damages, such as past wage loss and certain special damages, the judge ordered the defendants to pay the plaintiff a grand total of $237,930, which does not include any costs that may be assessed later.

Speak with a Kelowna Personal Injury Lawyer Today

Personal injury cases are only as good as the evidence presented in court. So if you have been injured in a pedestrian-motor vehicle collision, it is especially that you engage a qualified Kelowna pedestrian accident lawyer as soon as possible. Call the Preszler Injury Lawyers to schedule a free consultation with one of our lawyers today.


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Schedule a call with our personal injury legal intake team. Our team is available 24/7 so call us now to book your call. Our scheduled intake allows you to tell us details about your accident and gives our legal team an opportunity to review your case and advise you on possible solutions and outcomes. The best part is, if you decide to hire us after this call - you don't pay anything unless we win. We can help clients regardless of where they reside in British Columbia so let us help you get started on your road to recovery.


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