There are easy cases and there are hard cases. This was a hard case.
The easy cases are the ones where there are horrific crashes, typically head-on, with obvious, very visible, injuries. Victims suffer catastrophic injuries that can leave them physically disabled, often with a brain injury. They will never work again.
I call those cases “easy” cases because no one will dispute that the victim of a horrific crash, who had to have fluid drained from the brain and was in a coma for a month, suffered a brain injury.
No one will dispute physical pain and disability if there is paralysis, multiple fractures or actual loss of limbs.
The hard cases are the other 99 per cent of crash cases where the injuries don’t show up on x-rays and MRIs.
Mild traumatic brain injuries that result in subtle cognitive deficits and subtle personality changes are very difficult, and expensive, to prove.
Pain from injuries that cannot be seen on a scan, particularly where the victim has struggled to hide the pain from the world, can also be very difficult to prove.
These invisible injuries are no less real and also impact on the victim’s ability to work and enjoy life. The victim is no less entitled to fair compensation for those impacts.
It’s just so easy for an insurance company to defend these types of cases.
It can come up with all sorts of alternative explanations for how terrible the victim’s life has been since the crash.
It can accuse the victim of exaggerating and of not trying.
It can put the victim’s life under a microscope. It’s a nasty blame-the-victim approach.
That kind of approach was taken by the insurance company in the case I’m going to tell you about. And it didn’t work. The judge saw right through it.
It wasn’t a head-on crash. Rather, it was a rear-ender. The only visible injury was seat belt bruising. There was no coma. In fact, there wasn’t even a loss of consciousness.
After a 29-day trial, though, the judge found the crash victim suffered a mild traumatic brain injury with personality changes and cognitive deficits, chronic pain, headaches and depression.
She found that the victim will remain effectively chronically unemployable in his chosen profession for the rest of his life. She was awarded compensation approaching $900,000.
The crash victim, as well as his lawyer, faced a huge risk. Do you have any idea how much money it takes to run a 29-day trial?
The judge could have bought the insurance company’s arguments and made an award of compensation in the tens of thousands of dollars rather than hundreds of thousands of dollars.
That level of award would have resulted in this crash victim owing money to the insurance company instead of the other way around. But there’s more to this story.
It’s not just about justice being served when a hard case is taken to trial.
See, the lawyer who had the know-how and courage to take this hard case to trial wasn’t the first lawyer on the case.
With his first lawyer, the crash victim had come within spitting distance of settling his case at mediation for less than 10 per cent of the amount awarded at trial.
The crash victim remembers hearing the laughter of the insurance company representative when he and his lawyer presented his bottom line offer of $80,000.
What a beautiful thing that the insurance company dug its heels in and wouldn’t come up with the extra few thousand dollars it would have taken to settle the file at the mediation.
It led to this crash victim being lucky enough to find one of the best personal injury lawyers in the province and beating the odds to achieve justice. Congratulations to lawyer Joe Prodor and his client.
Published November 16, 2008 in the Kelowna Capital News