The decision of Madam Justice Dickson in Gilbert v. Bottle, 2011 BCSC 1389 was released on Monday, October 17th, 2011 . In my view, this is a good decision on many fronts.

The injury

Ms. Gilbert was injured in a motor vehicle accident on March 8, 2005 when she was a backseat passenger ejected from a vehicle being driven by an impaired driver.  She was not wearing her seatbelt.  As a result of the accident, she suffered a traumatic brain injury, fractured clavicle and multiple soft tissue injuries.  At issue were Ms. Gilbert’s contributory negligence for getting into a car driven by an impaired driver and not wearing a seatbelt, and the extent of her injuries.

Ms. Gilbert’s credibility

Ms. Gilbert is a 37 year-old First Nations woman who lived much of her life on the Sugarcane Reserve near Williams Lake.  She was exposed to poverty, substance abuse and other tragic circumstances before the accident.  In part because of these circumstances, the credibility and reliability of her evidence, as for the evidence of all witnesses, was scrutinized particularly closely.  Despite being mistaken and careless in her testimony, the judge did not find her to have consciously attempted to mislead the court.  This had a bearing on the contributory negligence and damages components of Ms. Gilbert’s claim.  Ms. Gilbert was not found to be contributory negligent in this case.

The judge’s conclusions

Madam Justice Dickson concluded that Ms. Gilbert sustained a “complicated” mild traumatic brain injury with significant and permanent sequelae as a result of the accident.  The factors she based this finding on are:

1. Ms. Gilbert lost consciousness for at least 20 minutes after the accident and experienced posttraumatic amnesia for over a day.
2. Ms. Gilbert’s brain was vulnerable to injury due to her pre-existing and long-standing pattern of significant substance abuse.
3. Ms. Gilbert’s increased post-accident problems with cognitive processes, including poor memory and focus, executive function and associated personality change, are characteristic of frontal lobe brain injury.
4. There is a strong temporal relationship between Ms. Gilbert’s increased cognitive and executive function problems and the accident in that the increased problems appeared immediately after its occurrence and have persisted ever since.
5. Ms. Gilbert’s increased problems with cognitive function improved for a time, then plateaued, in a pattern typical of partial recovery from brain injury symptoms.
6. The MRI findings show organic change to Ms. Gilbert’s brain, which, given her presentation, I am satisfied was caused by the accident.
7. There is no plausible alternate explanation for the constellation of altered cognitive, executive function and emotional compromises consistently displayed by Ms. Gilbert since the accident.

She preferred the opinion of Ms. Gilbert’s experts with respect to causation of the traumatic brain injury.  Despite Ms. Gilbert’s history, Madam Justice Dickson found that Ms. Gilbert’s increased cognitive, emotional and neurobehavioural problems were related at least in part by the injury, and that the memory loss, low frustration tolerance and poor concentration are primarily connected with her TBI.  Madam Justice Dickson also concluded that Ms. Gilbert suffers from a chronic pain disorder, particularly in her neck, shoulder and back.  She also suffers from cervicogenic headaches.

Relationship between Ms. Gilbert’s past and her injuries from the accident

Discussing the relationship between her past and her injuries from the accident, Dickson J. described her as a “thin skull plaintiff” (taking the plaintiff as she is found, in the already damaged condition that may affect the extent of the loss actually suffered), as opposed to a “crumbling skull plaintiff” (a plaintiff who would have likely suffered the debilitating effects of her damaged condition in any event, regardless of the accident).

The court awarded $200,000 for her pain and suffering, noting particularly her permanent loss of capacity to work and engage emotionally with others in coming to this conclusion.  No amount was deducted for failure to mitigate despite Ms. Gilbert’s failure to follow recommendations made by her family physician.  She could not afford recommended programs and had deteriorated because of her injuries which led to her difficulties in pursuing recommended treatment.

Her past loss of capacity was nominal for any loss of capacity to work between the accident and the trial date but her loss of future earning capacity was much more significant, at $400,000, assuming a present value of an annual loss of $24,000 in earnings to age 65 (28 years).  Madam Justice Dickson took into account the risk that Ms. Gilbert might have continued her substance abuse habit beyond mid-life but also that her health may have improved somewhat, thereby opening up other career options to her.

Future care awards are notoriously difficult as they require prediction about what will happen in the future.  Madam Justice Dickson awarded $200,000 for future care needs based on her conclusion that Ms. Gilbert’s pre-existing mental, physical and emotional condition deteriorated significantly because of the accident; her traumatic brain injury sequelae are serious, debilitating and permanent; and her chronic pain is also debilitating.  What the court did not award was costs for a shared-living arrangement as it was considered to be highly likely that she would be helped and supported by her family with shelter and care for the rest of her life.

The bottom line is that notwithstanding Ms. Gilbert’s very significant history on physical, emotional, mental and psychological fronts, a significant award was warranted for her injuries, earning capacity and care because of the huge impact that her “complex” mild traumatic brain injury and chronic pain symptoms have had and will continue to have on her life.

Everyone has a history; this does not mean that injuries or the effects of those injuries are either without merit or merit less attention.