Brain-damaged MTBI accident victim an unreliable witness, still entitled to damages
In the recent decision of Gregg v. Ralen, 2018 BCSC 171, the plaintiff, Cody Gregg, claimed he suffered serious injuries including Mild Traumatic Brain Injury (MTBI) as a result of a motor vehicle accident.
The plaintiff was riding as a passenger in a van driven by his uncle. The van was pulling an old flatbed trailer that held the plaintiff’s scooter. The trailer was struck from behind by a fully loaded semi-trailer truck weighing 65,000 pounds.
The defendants admitted liability prior to trial. Therefore, the case proceeded for an assessment of damages.
The defendants denied that the plaintiff suffered a MTBI or any serious and persisting injuries as a result of the accident. The defendants relied on the fact that the truck was moving slowly at the time of the accident and the impact was so minor that there was no damage to the van in which the plaintiff was riding
The defendants also argued that the plaintiff is not a reliable witness and that much of his evidence cannot be accepted.
While the court could not rely on the plaintiff’s chronology of the progression of the symptoms caused by the accident, there was ample credible evidence that the court accepted that the plaintiff had suffered the reported psychological and cognitive disorders as well as physical injuries in the accident. The court found ample evidence in the testimony of the lay witnesses who described significant changes in the plaintiff consistent with MTBI.
Just because a witness is unreliable, doesn’t meant they are dishonest or trying to deceive the court.
The Court found that the medical evidence provided strong assistance in establishing the history of the plaintiff’s MTBI complaints. The court accepted that the plaintiff attempted to accurately report his condition to his doctors. The court also accepted the evidence of the expert witness, Dr. Hay, who worked extensively with the plaintiff and concluded that he was experiencing significant cognitive and psychological problems that were not present before the accident.
The difficulty with the defendants’ argument that the plaintiff was grossly disingenuous about his medical history is that to succeed, it would require a finding that the plaintiff set out after the accident to construct a personal profile and medical history that essentially faked MTBI. It would not have been enough for him to give inaccurate evidence in court; he must have given inaccurate information to his doctors over the space of six years and falsely convinced them of his MTBI. In addition, he would have had to act disingenuously with his friends and family for six years, faking the MTBI.
The court concluded that the plaintiff has not done that.
The Court found that:
1. The plaintiff suffered soft tissue injuries that resolved after about 18 months;
2. The plaintiff suffered an injury to his left eye, as a result of the accident.
3. The plaintiff suffered a MTBI in the accident.
4. In addition to the cognitive issues, the accident caused psychiatric injuries.
5. The plaintiff has likely reached a plateau in his recovery.
In determining what the appropriate level of damages were, the court found that the plaintiff was entitled to $150,000 for his pain suffering because the plaintiff was only 24 at the time of the accident