10 Feb Comparing Pre-Injury and Post-Injury Status: the “Big Picture”

In nearly every legal claim for injuries, the injured person at some point asks his or her lawyer, “What is my claim worth?”  You may hear lawyers refer to this valuation as the “quantum,” which simply means the amount of damages. The answer to this important question depends on the unique circumstances of each case, the quality of the available medical information and the lawyer’s skill and experience.

Determining what a claim is worth is not an exact science, although there are a number of “tools” that assist with valuing a claim.

One of the most important tools used by lawyers, insurance adjusters, experts and the courts is to consider the injured person’s condition, abilities, and lifestyle before the injuries, and compare these to their post-injury status. This reveals not only what parts of that person’s life have been affected by the injury, but also the extent of the effect on that person’s ability to earn a living, enjoy recreational activities, or care for themselves or their families.

As one would expect, it is a general “rule of thumb” that the worse the post-injury status is, the greater the value of the claim. Many will struggle to regain their pre-injury functioning after being injured, at least for a period of time. However, this is not always the case.

In some cases, remarkably resilient individuals will manage a higher level of achievement after an injury than they did before it, at least in some areas of their lives.  Although the “rule of thumb” would suggest that personal injury claims brought by such persons would be limited in value, that is not necessarily so. When British Columbia courts consider the value of a claim in such circumstances, they tend to look at the “big picture,” rather than just focusing on the areas where the injured person’s life improved or worsened.

For example, in the case of Grassick (Guardian ad litem of) v. Swansburg, 2015 BCSC 2355, Stirling Grassick suffered a traumatic brain injury in a car accident when he was 16 years old. The accident left Stirling with difficulties with memory, processing speed, focus and cognitive efficiency, as well as fatigue, anxiety, and depression.  These limitations are all associated with brain injuries. Despite these limitations, Stirling achieved better marks in school following the accident than he had before the accident. He went on to pursue a degree in applied sciences at university and hoped to work as a civil engineer upon graduation.

The Court found that Stirling attained his educational achievements only because he devoted all of his time to his studies and he gave up nearly everything else in his life. The Court determined that Stirling would never be able to work as a civil engineer and would only be non-competitively employable in the future. As a result, the Judge awarded Stirling $3,000,000 for his loss of future earnings, which was close to the amount Stirling would have earned over the course of an engineering career.

The Judge’s ruling implies that Stirling’s ability in school, which apparently improved after his injury, amounted to only one piece of the puzzle.  On the other hand, the “big picture” showed that the accident significantly worsened Stirling’s ability to earn a living and enjoy his life.

The lawyers at Acheson Sweeney Foley Sahota will ensure that insurance adjusters, defence lawyers, judges and juries see the “Big Picture” in your case. Do not hesitate to contact us if you have been injured.

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