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Brain Injury Case Appeal Dismissed as Fact Driven


A car accident injury claimant is entitled to appeal a Supreme Court decision to the Court of Appeal. However, as shown in our case study, absent a palpable and overriding error affecting the trial judge’s assessment of the facts, the Appeal Court will not interfere with a finding of fact or an inference based on those facts.
The appellant was injured in a motor vehicle accident on 12th Avenue in Vancouver when his vehicle struck a car that had emerged quickly to his right from Vine Street without giving the claimant an opportunity to brake in time. He claimed the accident caused a mild traumatic brain injury (MTBI), which affected his ability to manage his financial affairs, resulting in losses of approximately $5 million.
The trial judge found that he had suffered a mild concussion with no lasting consequences. The judge awarded him $75,000 in non-pecuniary damages (pain and suffering) and $2,750 in special damages (out of pocket expenses).
In upholding this trial decision the Court of Appeal comments:

[49]  This was a fact-driven case. The trial judge accepted the evidence of Drs. Prout and Smith and found that as a result of the accident the appellant had suffered a minor concussion with no lasting effect, and no effect on his stock trading and financial decisions. The judge accepted the evidence of Mr. Boyce that the pattern of trading was no different before and after the accident. Therefore, he concluded there were no financial losses caused by the accident.(Barta v. DaSilva,2018 BCCA 68)

In the month before the Supreme Court trial  ICBC made an offer to settle for $150,000 plus costs and disbursements which the claimant did not accept. The claimant was denied his costs after the ICBC offer was made.
It is critical that the potential facts in a personal injury case be evaluated according to the rules of evidence. A claimant should only rely on those facts and assumptions they can prove and which are not contradicted by a stronger more reasonable facts or opinion.
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.
 
 

Tags: Findings of Fact, icbc case examples, Pain and Suffering

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