Motor vehicle accidents are the most common cause of personal injury lawsuits arising from a traumatic brain injury (TBI). Traumatic brain injury refers to damage to the brain caused by a traumatic event such as a blow or jolt to the head. In many cases of TBI, the injured person experiences only temporary symptoms that resolve within a few days or weeks. But, for others, TBI causes damage to brain tissue and results in long-term and acute symptoms that forever change the accident victim’s life.
Kwok v. Abecassis is a civil action involving an accident victim who sustained a debilitating brain injury in a Toronto car accident. This case presents a disturbing insight into the serious and long-term effects that can be experienced when a car accident victim sustains a serious head and brain injury.
The injured man (the plaintiff) was involved in a series of events that led to a crash on Highway 401 in Toronto. While travelling eastbound on the 401, the plaintiff, Mr. Kwok, was cut off by an unidentified motor vehicle that swerved into his lane. This caused Mr. Kwok to lose control of his car and collide twice with the concrete median dividing traffic on the highway. The plaintiff’s stopped car was then T-boned by another vehicle.
In Kwok, the injured man brought a lawsuit for damages against the driver (Mr. Abercassis) and owner of the vehicle which T-boned his car as well as against his own insurance company (which provided standard Unidentified Automobile Coverage as well as Family Protection Coverage). All of the parties and the Court agreed that there was no break in the chain of causation that led to Mr. Kwok’s injuries and under the law, all three collisions can be considered a single accident.
Negligence in the Accident
On the question of negligence and liability for the accident, the judge in this case examined all the circumstances of the accident and reviewed evidence from an accident reconstructionist and several motorists who called 911 to report what they had witnessed. Based on the evidence, the judge decided that the unidentified motorist’s driving conduct “fell below the required standard of care of an ordinary and prudent driver” and created a danger for the plaintiff and other road users. Further, there was no evidence to suggest that Mr. Kwok’s actions were negligent or contributed to the accident.
The judge also found that the driver of the third vehicle, Mr. Abecassis, was driving too closely for his speed and not paying enough attention to the road ahead and as a result, was unable to avoid crashing into the plaintiff’s car. These actions fell below the expected standard of care and therefore, the defendant was deemed negligent in contributing to the accident. The judge apportioned responsibility for the accident at 70 percent for the unidentified driver and 30 percent for Mr. Abecassis.
The judge also assessed evidence describing the movement and forces in the first and third collision to determine whether one or the other played a larger role in causing the plaintiff’s brain injury. The judge concluded that it was impractical to attribute Mr. Kwok’s diffuse axonal injury to one of the collisions and therefore concluded that all defendants must share in the damages jointly and severally.
Injuries and Symptoms
The car accident caused the plaintiff to sustain a traumatic brain injury, as well as soft-tissue injuries to his back, neck and shoulders. Mr. Kwok was taken to Sunnybrook Hospital immediately after the accident and then later readmitted to reassess his head and brain injury. He was determined to have a laceration above his right ear which required stapling, and a CT scan indicated a 7 mm hematoma in the left cerebral peduncle. And, on the day after the accident, the plaintiff experienced the following initial symptoms.
- nausea and vomiting
- vertigo (dizziness)
- diplopia (double vision)
- left upper weakness and left-sided facial droop
In the months after the accident, the plaintiff received further assessments and rehabilitation treatments at several Toronto clinics, including the Acquired Brain Injury Unit at the Toronto Rehabilitation Institute. These assessments and Mr. Kwok’s other injuries were well-documented and the medical evidence was largely uncontested. The evidence supported the fact that the plaintiff would need a significant amount of ongoing care and will never be able to work again.
The plaintiff’s injuries are as follows and reflect the fact that a TBI may affect all aspects of a person’s being, including cognitive, physical, behavioural, executive and psychological spheres.
- Moderate to severe traumatic brain injury
- Right side head laceration
- 7 mm hematoma
- Impaired judgement and decision making - such as grabbing a pan that’s very hot, wanting to spend almost all his money to buy a jet pack, leaving doors unlocked
- Impaired memory
- Behaviour impairments - such as forgetting to wear a coat in winter and failing to watch for traffic before crossing the street
- Easily angered and agitated - for example, threatening family members and refusing to co-operate or listen
- Anxious and stressed – worries about the future, panics in unfamiliar situations
- Reduced attention span
- Mood disorders and irritability – Doesn’t maintain normal eye contact, lacks empathy and has abnormal outburst
- Speech difficulty
- Unable to learn and retain information, and slow in processing information
- Impatient and exhibiting immature personality - such as tantrums and an absence of restraint
- Difficulty competing steps such as creating a shopping list and finding his way in supermarket
- Easily confused
- Sleep disturbances, nightmares and fatigue
- Lost libido
- Impaired planning – unable to remember to do laundry or cook on his own.
- Impulsive – makes inappropriate comments, places orders with telemarketers
- Poor balance and coordination
- Dizziness when bending or kneel still occurs a few times a day
- Slowed movements, walking
- Double vision/diplopia
- Obsessive thoughts, such as food obsessions
- Frequent headaches
- Myofascial pain in lumbar, neck and right shoulder
- Post-traumatic stress disorder (PTSD)
In determining the appropriate damages to be awarded to the plaintiff, the judge considered many factors, including the plaintiff’s pre-accident health (i.e. he had high blood pressure, gout, hyperthyroidism, sleep apnea and had undergone triple bypass surgery after a heart attack); his reduced life expectancy due to the accident; and the fact that he was a low-income earner. However, it was noted that all of the plaintiff’s medical issues were being managed and did not impact his ability to function normally.
Based on the judge’s assessment of the plaintiff’s cost of future care, the plaintiff was awarded $2,666,345 in damages. In addition to the funds that were allocated for items such as rehabilitation support, psychological services, home maintenance, occupational therapy and recreational activity, the bulk of the cost of future care (over $2 M) was to pay for 24-hour attendant care for Mr. Kwok, which was recommended by the doctors and occupational therapists who gave evidence and had assessed the plaintiff. Further, it was determined that the plaintiff would require his own two-bedroom apartment to accommodate himself and his care worker, as his wife and son did not want to continue having him reside in the family home.
The plaintiff was also awarded $210,220 for future loss of income (which assumes that he would have retired at age 65) as well as $290,000 in non-pecuniary damages for pain, suffering and loss of enjoyment in life. The latter amount is in the high range for non-pecuniary damages and reflects the fact that Mr. Kwok suffered catastrophic losses and essentially every aspect of his life has been adversely impacted by the car accident. He is no longer able to work; he cannot participate in recreational activities; his friendships and marriage have ended; and he no longer has the freedom and independence to properly care for himself and do what he wants.
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