Recently, the Court of Appeal for British Columbia made an interesting decision. The court overturned a $100,000 award by the trial judge to the victim of multiple car accidents for a psychological injury suffered.
Why? Because there was no medical opinion at the original trial that the man had suffered a psychological injury. The victim had initially claimed that he suffered a physical brain injury (there was no claim of psychological injury), but the judge dismissed this claim. After hearing from friends and relatives though, the judge reached his own conclusion that the victim had suffered a psychological injury, not a physical injury to the brain. A judge’s opinion isn’t the same as a medical opinion regarding psychological matters, and the appeal court overturned the $100,000 award.
The victim’s lawyer argued that a judge is perfectly capable of determining whether a psychological injury had occurred without a doctor’s opinion, just like a judge can do when there is a physical injury. For example, if a person shows up at court with an x-ray of their broken leg why does a judge need a medical opinion to find and rule that the leg was broken? The Court of Appeal disagreed and the case might go to the Supreme Court of Canada. I wish that man the best of luck.
Photo by Jon Collier via CC BY-SA 2.0
This case highlights the importance of claiming both physical and psychological injuries when a head injury has been suffered in an accident. Just because a judge denies your claim of a physical brain injury, doesn’t mean your claim to psychological injuries (and their compensation) is lost. But, as we’ve seen here, you may lose that compensation if your claim isn’t properly pleaded in the first place!
It is extremely important to cover all bases and have medical opinion on your side when you go to court. But medical science has its limitations and weaknesses. Just because an injury cannot be scientifically ascertained doesn’t mean it doesn’t exist.
Medical history is filled with examples of conditions that doctors did not understand and could not explain. When this happens, the standard medical response was, and often still is: “it’s all in your head”. In other words, there is nothing wrong with you — just change your thinking and you’ll solve the problem. A good example of this is depression. Doctors used to think that depression was “all in your head”, but now we know that people who are depressed have chemical imbalances in their brain.
At Azevedo & Nelson, we are experienced in dealing with claims of both physical and psychological injury. If you’ve been in a car accident or otherwise injured, call us at 416-533-7133 for a free consultation.
