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$200,000 Award for Carbon Monoxide Brain Injury

 This husband and wife suffered brain injuries from carbon monoxide (“CO”) emissions when maintenance of their living room fireplace was negligently performed. The fireplace had been removed and later reinstalled and serviced by the defendant heating company (Edwards v. Parkinson’s Heating Ltd.,2018 BCSC 593).  The wife was awarded $50,000 and the husband $200,000 for the pain, suffering and loss of enjoyment of life arising from the brain injuries.

The judge found that the exposure to the carbon monoxide leak went undetected for about two months and the CO exposure caused the husband an injury to his brain. His brain injury resulted in a mood disorder, which was accompanied by irritability and general mild anxiety, and a CO-related depression disorder.

The standard of care for installing and servicing a gas fireplace was said by the judge to be the following:

(a)   Reasonably inspect the fireplace to ensure it was:

(i)   operating in accordance with the manufacturer’s specifications (per s. 57 of the Gas Safety Regulations); and

(ii)  was venting in a safe and proper manner (per s. 57 of the Gas Safety Regulations);

(b)   Reasonably test for CO emissions using a suitable CO detector;

(c)   Repair or remediate any defects or problems that would interfere with the safe operation and venting of the fireplace.

In awarding the husband $200,000 for pain and suffering arising from the brain injury the judge reviewed some relevant caselaw:

[345]     In Danicek, a 32-year-old lawyer was injured when she struck her head on a dance floor. Some 14 months later she was further injured in a motor vehicle accident. In assessing non-pecuniary damages at $185,000 for the dance injuries alone, Kelleher J. found that that accident had a profound effect on her life, affected her physical and mental abilities, and that she experienced a loss of enjoyment of life as she was unable to pursue her career or engage in recreational activities she previously enjoyed.

[346]     In Wallman, a 45-year-old emergency room physician sustained a concussion when a bus rear-ended his vehicle. The plaintiff in that case had a long history of functioning at a high level, but after the accident was found to have cognitive and communication difficulties and low energy, and be unable to work effectively. He also suffered from episodes of anxiety and depression. He continued to suffer from post-concussion syndrome at the trial date. He was awarded $200,000 in non-pecuniary damages.

[347]     In Gabor, a 29-year-old woman was injured in a motor vehicle accident. She had experienced periodic neck and shoulder pain prior to the accident, but neither presented a problem by the date of the accident. Following the accident, she received acupuncture, massage therapy and physiotherapy for headaches and neck and back injuries, and occupational therapy for cognitive difficulties. Her memory, attention, concentration, and processing difficulties continued to trial. Her experts diagnosed her with an adjustment disorder, relating to her depression and anxiety,   and a probable mild traumatic brain injury, believing that her cognitive deficits were permanent and negatively affected her ability to work as a fine arts technician or teacher. Madam Justice Ballance awarded her the sum of $200,000 for non-pecuniary damages.

[348]     In Payne, a 16-year-old pedestrian was struck by a motor vehicle. Prior to the accident, she was found to have been independent, hard working, cheerful, sociable, active and ambitious. Her injuries from the accident were found to have fundamentally transformed and diminished her life such that she lived a largely solitary existence, and struggled with serious depression, anxiety, anger, irritability, memory, concentration and fatigue. She also failed or struggled in her academic endeavours and was constrained in her employment efforts. Her ability to live independently was impaired and she was at risk of further and ongoing difficulties with a real and substantial possibility that her earning capacity was impaired. Mr. Justice Voith awarded her non-pecuniary damages of $210,000.

[349]     In Adamson, a 42-year-old commercial contractor was injured in a motor vehicle accident. As a result of the accident, he was found to have sustained a mild traumatic brain injury, chronic pain syndrome as a result of injuries to his upper neck and left shoulder, severe headaches, exacerbation of a pre-existing hearing loss, as well as a Major Depressive Disorder of Moderate Severity. He was also found to be totally disabled at the trial, and competitively unemployable for the remainder of his life.

[350]     His prognosis was discouraging as he was also found to suffer from Chronic Pain Disorder and Major Depression. With appropriate treatment, it was likely that his depression would improve and he would be better able to cope with his life situation, and it was likely when his depression improved that there would be a slight reduction in his pain perception. Mr. Justice Bauman, as he then was, assessed his non-pecuniary damages at $200,000.

[351]     In Hunt, a 66-year-old electrician suffered from mesothelioma, a cancer which in general terms can be said to invade the pleura as a result of exposure to asbestos for which the defendants were found liable. He required repeated treatment to drain his lungs, and his life expectancy was reduced as a result of his condition, which understandably caused him metal distress.

[352]     At the time of Mr. Hunt’s trial, the maximum recovery permitted for non-pecuniary damages was $219,000. Mr. Justice Thackray awarded Mr. Hunt $105,000 for non-pecuniary damages.

[353]     In Bakhtiari, one of the plaintiffs suffered severe injuries including permanent organic brain damage due to smoke inhalation when she was trapped in a stairwell in her apartment building while attempting to escape a fire. Mr. Justice Lane assessed her non-pecuniary damages at $225,000 out of the then upper limit of approximately $300,000…

The total damages awarded to these injury claimants were as follows:

a.   Non-pecuniary damages-Pain and suffering (Wife) of $50,000.00

b.  Non-pecuniary damages-Pain and suffering (Husband) of $200,000.00

c.  Out of pocket expenses of $5,792.00

d.  Cost of care of $53,000.00

e.   HCCRA award$ 2,624,57

The lawyers for the litigants need to be commended for spending 10 weeks in trial.

Carbon Monoxide Exposure and Brain Injury

Here are some interesting but disturbing  facts found by the judge about carbon monoxide exposure and brain injury:

[24 ] CO can affect people in variable ways.  Adverse sequelae after CO poisoning is common and can immediately follow poisoning and persist or can become manifest months following poisoning. There is no known cure for CO-related brain injury and its associated adverse sequelae.

[25]  CO exposure can affect parts of the brain including the cerebellum, hippocampus, globus pallidus and basal ganglia, and can cause more general brain atrophy. Hippocampal atrophy may cause a decline in memory performance. The changes in the brain can occur after some delay after CO poisoning. Such changes may not show on brain imaging until some years after the exposure. Patients who have had CO exposure can also have abnormal biochemical reactions, including iron deposition in the globus pallidus, altered choline, and N-acetyl aspartate (“NAA”).

[26] CO exposure can result in neuropsychological deficits, neurobehavioural changes, sensory-motor changes, gross neurological deficits, cognitive disorders and depression. Symptoms may include headache, fatigue, tiredness, dizziness, balance problems, shortness of breath, chest pain, muscle and joint pain and others, which can continue for years after termination of the exposure. Residual cognitive effects from CO may relate to memory, executive function, speed of processing, ability to focus attention and concentrate on work at hand, in following directions and in making decisions

Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

Tags: Legal Causation, Negligence, Pain and Suffering, standard of care for gas fireplace maintenance

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