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Brain Injury Award Reduced due to prior Cocaine Addiction


In a stunning personal injury decision the Supreme Court has reduced a damage award for a brain injured 27 year old claimant. The court has taken judicial notice that cocaine is highly addictive, with heavy users facing a significant long-term and possibly life-long risk of relapse.(Kirilenko v. Bowie,2017 BCSC 2048)
There was no real issue that the claimant had sustained severe injuries in the car accident when the vehicle in which he was a passenger turned left into the path of an oncoming truck.
The injuries include internal injuries, nerve damage to his left leg, and a brain injury, specifically diffuse axonal injury affecting function of the frontal lobes. He was hospitalized for 29 days.  The judge however did not accept that future dementia was a real possibility due to the brain injury.
Despite the finding that the claimant suffered profound brain damage with permanent impairment of executive skills and significant functional impairment in daily living, the upper limit of $370,000 for pain and suffering was denied  this claimant. He was awarded $200,000 for his pain and suffering with this comment from the judge:

[56]  However, I do conclude that the potential for Mr. K’s drug addiction to adversely affect various facets of his life even without the accident must be accounted for. The assessment of non-pecuniary damages must take into account factors such as the impairment of family, marital and social relationships, the impairment of physical and mental abilities, and loss of lifestyle: Stapley v. Hesjlet, 2006 BCCA 34 at para. 46. All of these facets of Mr. K’s life will be affected by his injuries, but there is a real and substantial possibility that they would have been detrimentally impacted in any event, in varying degrees, as a consequence of his addiction. Having said that, I also recognize that Mr. K’s brain injury, and his consequential difficulties with executive function, especially lack of judgment, will likely increase his risk of relapse.

[57] Whatever award might be appropriate for a man of Mr. K’s age and station in life who had similar injuries, without a history of cocaine addiction, Mr. K’s award must be substantially reduced. The defendants submit that an award of $200,000 under this head is appropriate, and on that basis, bearing in mind the foregoing considerations, I assess Mr. K’s non-pecuniary loss in that amount.

Judicial notice allows a judge, without proof, to assume facts that everybody knows or assumes to be true. In this case the judge took judicial notice of the longevity of addiction to cocaine without any filed evidence to support this conclusion. There was no expert evidence from specialists in addiction medicine, as to how difficult it is to overcome cocaine addiction, how responsive cocaine addiction is to treatment, the probabilities of relapse with and without professional treatment, and similar questions.
The court, in my mind, did not need to rely on judicial notice of cocaine addiction. The claimant acknowledged in cross-examination that in in year or two before the accident he was in a “downward spiral” due to cocaine addiction. He said he was using 2 grams of cocaine a day at the peak. He was not working very much; he agreed that in the months leading up to the subject car accident things were continuing to spiral out of control. His cocaine usage was significant enough that he suffered perforation of his nasal septum.
The court went on to assess, despite the cocaine addiction, his loss of earning capacity at $1,000,00 and cost of future care of $456,746.00 making the total award for this brain injury under $2 million.
The parties likely expected a higher award because the judge made no order as to damages as further submissions on structuring the judgment were requested.
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.
 

Tags: Diffuse Axonal Brain Injury, Judicial Notice, Pain and Suffering, Rules of Evidence, Traumatic brain injury

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