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Court of Appeal Upholds Decision in ICBC Brain Injury Case

In the recently reported case of Madill and Sithivong, 2012 BCCA 62 the Court of Appeal considered an appeal of an award of $760,000 for non-pecuniary damages and loss of future earning capacity that had been made at trial to a plaintiff injured in a motor vehicle accident in June 2004. At trial, the plaintiff testified that the accident he had suffered from severe headaches, loss of balance, diminished energy and mood changes.


Brain Injury in ICBC Accident Case


The appellants asserted that the plaintiff had exaggerated his symptoms and pointed to is pre-accident medical problems, including headaches and extensive use of Tylenol #3. The appellant argued that the trial judge had erred in finding that the accident was the cause of the plaintiff’s symptoms and disability and erred in assessing the plaintiff’s credibility.


The Court of Appeal agreed with the appellants that a court must be cautious when inferring causation from “a temporal sequence: that is from a consideration of pre-accident versus post accident condition”. However, ultimately the court held that the trail judge had ample evidence on which to base her findings.
Writing for the court, Mr. Justice Chiasson said the following regarding the issue of credibility:


[30] Whether another trier of fact would have reached the same conclusion as that of the trial judge does not matter. There was evidence to support the judge’s finding that Mr. Madill’s condition after the accident was materially different from his condition before the accident. She was entitled to prefer the evidence of Mr. and Mrs. Madill and stated specifically why she accepted Mrs. Madill’s evidence. The judge was alive to the shortcomings in the testimony of Mr. Madill. She was entitled to conclude that overall he was truthful when describing his post-accident condition.


The Issue of Causation in ICBC Accident Case


With respect to the issue of causation, Justice Chaisson found that there was “ample evidence” to support the judge’s conclusion that the plaintiff’s “post-accident headaches differed from the pre-accident headaches.” In dismissing the appeal, he also made the following points regarding the evidence at trial:


[41] Dr. Hunt testified that it would not have been necessary for Mr. Madill to have suffered a loss of consciousness in order to have sustained a concussion; strong shaking of the brain would have been sufficient. He concluded that Mr. Madill had “suffered a cerebral concussion or a mild traumatic brain injury at the time that he was involved in the motor vehicle accident of June 28, 2004”.


[47] Dr. Hunt testified that he knew Mr. Madill had suffered from migraine headaches and had taken Tylenol 3 because he read the reports of other doctors and was provided with the Pharmanet data. Dr. Hunt’s mandate was to consider why Mr. Madill suffered the symptoms he displayed after the accident. The doctor opined that these symptoms were consistent with concussion or a mild traumatic brain injury. His opinion was based on a consideration of symptoms, not on Mr. Madill’s pre-accident condition or on the details of the accident.


[48] The judge accepted Dr. Hunt’s conclusion, as she was entitled to do. That is, she accepted the conclusion that Mr. Madill had sustained a concussion or mild traumatic brain injury. That also was the view of Drs. Tessler and Constantino. She stated at para. 210 that “[i]t is my view that Mr. Madill will remain affected by his mild traumatic brain injury, and that injury is permanent”. Having accepted the evidence of Mr. Madill’s condition post-accident as opposed to pre-accident, the judge was entitled to conclude, as she did at para. 202, that “the motor vehicle accident has had a serious and lifelong effect on Mr. Madill” and to award damages accordingly.

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