Might the court find that you sustained a brain injury even if there is no evidence that you struck your head in a crash? What evidence will the court look at to make the determination?
In today’s case of Mayer v. Umabao (2016 BCSC 506), the court wrestled with, among other things, whether or not he had sustained a mild traumatic brain injury in a crash.
Mr. Mayer was 69 at the time of the collision. He worked as a journeyman carpenter and had no intention of retiring. He was running his own operation and working 9-10 hrs/day, 5-6 days/week. He sustained injuries to his back, neck, shoulders, and hips and a head injury that caused him dizziness/balance issues, impacted his memory and mood, and caused him cognitive difficulties. The onset of dizziness and diagnosis of inner ear issues was nine months after the collision, which ICBC argued meant it was not caused by the collision.
Mr. Mayer’s behavior in the minutes and hours after the collision was very out of character. He was aggressive and insulting to his wife, and eventually grabbed the keys to leave. His wife was concerned about him driving in that state, so blocked in the car. He drove up so the car was touching her body and revved the engine. He composed himself by the next day, and his ability to function resumed to some extent, until the significant dizziness began several months later. His wife said that he was unsteady on his feet from the date of the collision onward. She described their relationship post-crash as “a big silence”. His personality post-injury was altered significantly, as was their life together. His wife also described his stoicism with medical professionals and that 8 months after the collision, she started attending the doctor with him so that she could describe his symptoms for him.
Madam Justice Young found that he suffered a mild traumatic brain injury even though she could not determine whether he struck his head. She concluded that his mTBI and somatoform disorder were caused by the crash, and awarded $175,000.00 in non-pecuniary damages. She provided the following commentary:
 In conclusion of the general damage section of the decision, Curtis J. describes the now 67‑year-old Mr. Chowdhry as having lost a large measure of who he was. While human identity is partly associated with physical ability, it is much more related to a person’s mental state and abilities. Mr. Chowdhry is quite simply not the man he was. Rather than being energetic and happy and employed as the lease manager, he is unemployed. Rather than being the social outgoing man he was, he is now socially withdrawn and has little or no interest about anything. Rather than supporting his family, he is dependent upon them in a way that corrodes his relationship with his wife and his children. Curtis J. assessed non‑pecuniary damages at $200,000.
 There are many obvious similarities between these cases relied on by the plaintiffs and the Mayer case, however, I find that the cases relied on by Mr. Mayer’s counsel involve more significant brain injuries which were readily apparent because of the dramatic effect it had on the plaintiffs. Mr. Mayer’s brain injury was more subtle and went undetected for a considerable period of time because of his ability to function. Nonetheless he is a changed man and he has suffered a considerable loss in his enjoyment of life, family, friends, social interests and vocational interests. I conclude that Mr. Mayer is entitled to an award of non‑pecuniary damages in the amount of $175,000.
It is noteworthy that Madam Justice Young also awarded Mr. Mayer $250,000 for a loss of earning capacity over five years.