Lawyers achieved justice for a young man tragically injured in a car accident many years ago finally achieved justice on his behalf following a recent trial.
The case stemmed from a serious car accident which took place in Wyoming in 2000. The victim was a 20-year-old who was a passenger in a car driven by his friend. The vehicle was towing a mobile home. With the victim asleep in the back seat of the car, the mobile home fishtailed after being passed by a large truck. The driver lost control of the car and the victim was hurled from the vehicle as it crashed.
The victim’s head banged against the pavement. His brain suffered blunt trauma by violently hitting the inside of his skull. His eye was badly damaged, his right chest and lungs punctured and his ribs and pelvis were fractured. He was taken to Hospital where he remained for a long time during a difficult period of recovery. Many of his injuries healed. Unfortunately, he continues to suffer from personal injuries, the most significant of which is a lasting brain injury. His cognitive injuries were described as follows:
Attention: Mr. Vogler showed reduced focus on specific topics (staying with a specific visual, auditory or motor activity), reduced sustaining attention (completing a schedule, organizing papers such as his portfolio). Mr. Vogler showed intermittent « shutter effect » or « blanking out » during the task in which he « forgot » what we were working on, mild distractability, mild reduction in shifting attention (alternating between two tasks) and reduced divided attention (doing two things at once).
Memory: Mr. Vogler had difficulty recalling what was said to him and did not use rehearsal strategies on a consistent basis. He had intermittent lapses in information processing specifically during the middle of the message and at times of fatigue. Immediate, recent and prospective memory (forward planning) were reduced as was task planning, initiation, execution, speed, organization of information and time management.
Word Retrieval: Mr. Vogler showed borderline-mild word retrieval difficulty. He used circumlocution, verbal mazing or word substitution occasionally. This became exaccerbated [sic] during fatigue.
Thought formulation: Mr. Vogler showed reduced information processing through reduced speed of responding, reduced accuracy and reduced problem solving skills. This was not apparent when asked to problem solve neutral topics such as what would you do if you lost your keys but did not show strategic problem solving during personal experiences such as losing a bag that had his scarf and assignment in it at the hospital. Identification of alternate solutions (flexability) [sic] was reduced.
Social communication: Mr. Vogler showed a borderline-mild degree of redundancy, tangential humor/comment and reduced awareness of others’ perspective.
After hearing evidence from a variety of medical experts and hearing from the victim, his friends and his family, the Court awarded him damages. In assessing pain and suffering, the Court favoured the « functional approach », where the purchase of comforts to balance the loss of vision, brain impediments, stiffness and sufferings inform the analysis. The Court considered the cost of a college education under the functional analysis. It awarded $150,000 to provide some solace related to the victim’s intellectual impairments.
The young man did not have a long history of pre-injury earnings to definitively inform the Court what his income would have been « but for » the accident. The Court then used its « best estimate » to « attempt to put the injured party in the position the party would have enjoyed if the accident had not occurred. »
The Court accepted that the victim would earn less over this lifetime due to his injuries. In quantifying this loss, the Court hypothesized what he would have done but for the accident. The Court then awarded a global sum of $180,000.
Halifax personal injury lawyers for the victim successfully argued for other heads of damage. In the end, the insurance company defending the claim was ordered to pay a total judgment of $485,972, plus costs.
We see this as a great result for a heartbreaking set of circumstances. Unhappy with having to pay the permanently injured young man the awarded level of compensation, the insurance company is appealing the ruling. We will update on the outcome of the appeal.