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Forty grams per day of marijuana likely to blame for plaintiff’s foggy memory

Hauer & Co. > Contributory Negligence  > Forty grams per day of marijuana likely to blame for plaintiff’s foggy memory

Forty grams per day of marijuana likely to blame for plaintiff’s foggy memory

In the recent case of Kirby v. Loubert, 2018 BCSC 498, the plaintiff, Mr. Kirby, claimed damages for injuries he suffered in an intersection motor vehicle collision.  The collision occurred on March 4, 2009, in Vancouver.  Mr. Kirby was already a paraplegic at the time of the accident.  He used 20 grams per day of marijuana to help him deal with the pain.

The defendant, Mr. Loubert, had been driving northbound on Main Street and was turning left at National Avenue.  Mr. Kirby was driving southbound on Main Street in the curb lane, heading straight through that intersection.  They collided as Mr. Loubert turned in front of Mr. Kirby. Contributory negligence was an issue. Although the Court found that Mr. Kirby had the right-of-way, he was going too fast for the circumstances, driving beyond his ability to react.  Given that traffic in the two lanes to his left was at a standstill, blocking his view of anything in the intersection, the Court found that reasonable care required him to move past that stopped traffic into the intersection with caution, reduce his speed below the speed limit.  Had he done so, the Court found it probable that he would have been able to come to a stop, albeit a sudden one, before colliding with the defendant’s SUV.  Instead, he proceeded at full speed. Considering all of the circumstances, the Court apportioned fault 75% to the defendant and 25% to the plaintiff.

With respect to damages, when Mr. Kirby was 23, he was a victim of a tragic accident on the Alaska Highway which left him a paraplegic and an incomplete quadriplegic.   In 2002 he suffered another accident, which gave him whiplash.  He was 50 at trial. The injuries Mr. Kirby attributed to the 2009 accident were extensive.  He maintained that he has lost mobility, was in near constant pain, and has had to double his consumption of medical marijuana from 20 g per day before the accident to 40 g per day afterwards  Mr. Kirby’s claim was complicated by the question of causation: to what extent did the 2009 accident cause or contribute to his post-collision complaints, and to what extent are they the natural consequence of the catastrophic injuries that he suffered in 1991?

His sister described him as “consumed with his health”, and his mother described him as “obsessed”.  His family members further described him as hostile, frustrated and angry.  His obsession led him to some extreme measures, including unsanctioned hyperbaric oxygen treatments in Parksville, BC, and stem cell treatments and neurosurgical consultation in Tijuana and Puerto Vallarta, Mexico.  He became very focused on the litigation and frustrated by delays.

Some experts agreed that his consumption of marijuana was at an extreme level, with at least one suggesting a possible link between his marijuana use and his anger, irritability, and “mild paranoid beliefs”. The court found his evidence was not always reliable.  There were two reasons for this: his difficulty with recall, and his pressing focus on his health in the context of the injuries he suffered in 2009. The result is that the Court was obliged to assess Mr. Kirby’s claims cautiously, with careful attention not only to his evidence, but also to the medical records and the expert opinion evidence.

One doctor wrote in their report

I would caution Mr. Kirby about his large consumption of marijuana.  He is taking a substantial amount of marijuana using up to 40 g per day.  This is a large quantity but clearly something that he has become accustomed to.  Anecdotally, many of the spinal cord patients will use marijuana to control their spasms but probably not in the same volume as Mr. Kirby is using.  They also use marijuana for pain management and indeed, we now have prescription-based drugs using tetrahydrocannabinoids for pain relief that work quite effectively.  In other words, his medication dose is dealing both with his spasms and with this pain.  However, he is consuming free marijuana which results in a fair amount of mood-altering ability and this could be impacting on his cognition.  There were times during the assessment where his cognition was slightly off and he could not really remember things, possibly related to his chronic use of marijuana.  In any event, I would definitely recommend he consider reducing his dosage to not more than 15 to 20 g a day and consider stopping its use.  This will come with an increase in pain but his body will adjust to the new dose and the pains will settle to their baseline.  In my opinion, there will be long-term cognitive ramifications if he continues to use his marijuana.  I defer to other experts in chemical dependency for their opinions on the marijuana.

The Court concluded that Mr. Kirby did not suffer any neurological injury in the accident of March 4, 2009, and that any neurological deterioration he has experienced or is experiencing is not due to that accident.

The Court found that Mr. Kirby suffered soft tissue injuries to his neck, right shoulder and upper back region as a result of the accident of March 4, 2009.  He also suffered a contusion to the left chest wall.  On a balance of probabilities, the rib fracture predated the accident.

Although there were pre-existing complaints relating to the left shoulder (following the accident of 2002, but not thereafter), there is no evidence of pre-existing complaints concerning the right shoulder, and these complaints were found to arise principally from the forces sustained in the accident acting upon pre-existing degenerative conditions.

On a balance of probabilities, the labrum tear in the left shoulder was not caused by the forces in this motor vehicle accident; neither were the other findings on MRI, including tendinopathy and the subscapularis tendon tear in the right shoulder. Although the accident did not cause the labrum tear in the left shoulder and other degenerative changes, it caused many of those changes to become symptomatic following the accident, leading to pain and limitation in the left shoulder as well as the right. The soft tissue injuries to the neck exacerbated pre-existing degenerative changes in the cervical spine arising from the 1991 injuries. Mr. Kirby’s ability to recover from these injuries through physiotherapy (which he underwent on three occasions with good effect) and exercise was significantly hampered by the deconditioning effects of his pressure sore wound injury and the time spent dealing with that problem, as well as by the effect of his pre-existing degenerative changes. In the result, Mr. Kirby’s mobility has been reduced, his pre-existing state of chronic pain has been exacerbated, and the consequences of his pre-disposition to degenerative changes have been advanced. The Court found that while he is unlikely to return to his pre-accident state, his condition is likely in time to converge with the state he would have reached in any event due to his pre-existing degenerative conditions.  The Court concluded that Mr. Kirby does not suffer from PTSD.

The Court awarded Mr. Kirby non-pecuniary damages of $140,000, damages for loss of homemaking capacity of $55,000, and future care costs of $9,440.  Reduced by 25%, these awards total $153,330. Mr. Kirby was also entitled to special damages reduced by 25%.  Finally, Mr. Kirby was entitled to 75% of his ordinary costs, subject to potential adjustment if either side had made a formal pre-trial offer.

At Hauer and Co we assist with motor vehicle accident claims, whether or not marijuana is involved,

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