ICBC Brain Injury Claim – Jury Notice Struck

If you suffer a head injury or brain injury as a result of a motor vehicle accident, you may be left with persistent problems including headaches, dizziness, memory issues, or cognitive difficulties. ICBC brain injury claims are proven by evidence that typically includes medical records, hospital charts, and opinions in expert medical reports. Evidence on brain injuries contained in expert medical reports is often highly complex and not easily understood, and in many ICBC brain injury claims, the expert reports contain opposing opinions on whether the accident caused the alleged brain injury. https://simpsonthomas.com/injury-types/brain-injury-lawyers-vancouver/

One of our team of brain injury lawyers wins application to strike jury notice

Where the complexity of the evidence on whether there is a brain injury caused by the accident is too much for a jury to fully understand, it may not be in the interests of justice to leave the issue to a jury. That was precisely the situation in Dhaliwal v. Shao, 2019 BCSC 1098 https://www.bccourts.ca/jdb-txt/sc/19/10/2019BCSC1098.htm, an ICBC personal injury claim handled by Stephen Ferguson, https://simpsonthomas.com/our-team/stephen-ferguson/ one of our team of brain injury lawyers. Acting for the injured plaintiff, Steve won an application to strike the jury notice filed in this complex ICBC brain injury claim.

Opposing expert opinions in ICBC brain injury claim

The plaintiff in Dhaliwal v. Shao was injured when his car was rear-ended. He claimed that he sustained a number of injuries as a result of the accident, including an injury to his head and a traumatic brain injury which caused him to suffer from headaches, nausea, dizziness, fatigue, and memory issues. Following the accident, the plaintiff underwent an MRI which showed lesions on his brain. A central issue was whether the lesions identified on the MRI of the plaintiff’s brain were as a result of the accident or unrelated to the trauma of the accident. The expert reports of the two neuroradiologists offered opposing opinions on that critical issue – the defendant’s expert was of the opinion that the lesions were not consistent with the plaintiff having suffered from a traumatic brain injury, while the plaintiff’s expert was of the opinion that the plaintiff’s multiple brain lesions were consistent with a traumatic brain injury caused by the motor vehicle accident.

Brain injury claim too complex to be tried by a jury

The defendants in the Dhaliwal v. Shao personal injury action served the plaintiff with a notice requiring that his case be tried by a jury. Steve brought a successful application to strike the defendants’ jury notice, with the BC Court agreeing that it was in the interests of justice that the trial of the action be with a judge without a jury. Causation for the lesions on the MRI was a central issue; the medical reports relating to that issue were of a scientific and complex nature and involved interpreting highly technical and scientific terminology. The Court said this in granting Steve’s application to strike the jury notice:

[34]      These conflicting opinions are the central issue on damages in this case and by virtue of their nature and content are fairly described in my view as “complex, multifaceted, and not easily or lightly considered or understood”. To fully understand this evidence, the trier of fact will need to be able to ask questions of these experts and assimilate their answers carefully to reach a reasoned conclusion on whether the plaintiff sustained a traumatic brain injury. Even with the guidance and assistance of the trial judge, it will be a difficult task for a jury to retain a clear understanding of this technical medical and scientific evidence through this 15 day trial while also dealing with the other issues on liability and quantum. I find it would not be convenient for the jury to do so as that term is defined in the governing authorities. In the result, I direct that the trial of this action be with a judge without a jury.

Get legal advice from an experienced brain injury lawyer

As the Dhaliwal v. Shao case demonstrates, ICBC brain injury claims can be extremely complex. If you have sustained a head injury, concussion, https://simpsonthomas.com/injury-types/head-injury-lawyers-vancouver/ or brain injury as a result of a BC motor vehicle accident, you need a personal injury lawyer who knows how to handle traumatic brain injury claims. Contact the team of highly experienced personal injury lawyers at Simpson, Thomas & Associates by using our online form to request a free consultation or calling (604) 243-2657.

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