Escalating Damages in Serious Brain Injury Cases

Three recent, well-publicized court decisions produced multimillion dollar awards of damages in cases involving brain injury. The injuries were catastrophic. But the damages awarded were unprecedented.

In Marcoccia v. Gill, the plaintiff, Robert Marcoccia, was a twenty-something male who injured the frontal and temporal lobes of his brain in a car accident, and was left with a left-sided hemi-paresis. The brain injury affected his behaviour, social functioning and emotional response, his ability to initiate and plan, and his ability to anticipate the consequences of his actions. He was unable to manage his emotions, and inappropriate behaviour in social situations eliminated any prospect of returning to work. He would only be able to live in his own apartment with support. He would require 24-hour supervision, seven days a week. The jury assessed damages at $16.9 million.

In Sandhu v. Wellington Place Apartments, as a direct result from a fall from a fifth story window, the plaintiff, a two-year-old boy, sustained a serious frontal lobe brain injury. As a result of the brain injury, the boy would not appreciate that he was disabled. He would not understand why he could not work or drive a car. Behavioural problems could develop. Expert evidence was led at trial to show that the boy would grow into his disability. In other words, it would become more apparent as the boy grew older. There was a risk that he would become too outgoing, too trusting or too friendly. He might lack judgment and behave inappropriately in social situations. The jury awarded damages in excess of $12.9 million.

In Gordon v. Greig, three young men were on their way up north for a cottage weekend. Ryan Morrison and Derek Gordon were passengers in a pick-up truck driven by Corey Greig. Greig had been drinking. Travelling at high speed, the pick-up entered a sharp turn and Greig lost control. The pickup left the road, rolled, and both Morrison and Gordon were thrown into the ditch. Morrison sustained a spinal injury which left him a paraplegic. Gordon sustained a catastrophic brain injury. His bladder and bowel control, senses of smell, taste, hunger, temperature and his sexual function were all affected. Because his frontal lobes were damaged, his emotional control was also affected. Justice Glass held that Gordon would never be able to work again, and awarded damages of $11.3 million dollars.

It would be wrong to attribute these high awards to runaway juries. For one thing, although Sandhu and Marcoccia were jury decisions, Gordon was a judge-alone decision. Moreover, the Sandhu decision has now been upheld in the Court of Appeal.

So, why were these awards so high? True, in each case, the plaintiff sustained a serious brain injury, and so received the maximum award for general damages. And, in each case, the plaintiff had no residual earning capacity, and so received damages for lifetime loss of earnings. However, general damages represent small portions of the overall totals. In Sandhu, the maximum award for general damages was $311,000. In Gordon, it was $310,000, and in Marcoccia, it was $312,200. Today, the maximum is approximately $315,000. Similarly, the loss of earnings awards — $1.8 million in Gordon, $1.38 million in Marcoccia, and $1.4 million in Sandhu — also represent small fractions of the totals.

What made up the lion’s share of damages in each case was the cost of future care — in Sandhu, $10.9 million; in Gordon, $8.6 million; and in Marcoccia, $13.9 million.

Within the future care awards were allowances for therapies and services such as speech language therapy, tutoring, occupational therapy, and psychotherapy. In Marcoccia, the plaintiff suffered a hemi-paresis, so there was also an award for physiotherapy. How- ever, in each case, therapy and services amounted to only a few hundred thousand dollars — a small portion of the future care awards.

The bulk of the future care awards related to the cost of round the clock supervision. But there were also new types of future care damages that contributed significantly to the totals, which flow from the seemingly lower standard of proof for future damages.

Proof of future care costs

The burden of proof is on the plaintiff to prove damages for future care costs. However, the plaintiff does not have to prove these damages on a balance of probabilities. Although damages are not recoverable for things which are merely speculative or fanciful possibilities, to succeed, the plaintiff need only show there is a “real and substantial risk” the loss will be incurred.

Supervision

There are two key factors which drive the big numbers for supervision: the number of hours and the level of care.

In the three cases, the trial courts held the brain-injured plaintiffs needed to be supervised 24 hours a day. But why? For the most part, they exhibited no physical problems; they appeared normal; they could do many things for themselves; they slept through the night; they did not require physical care in the way that a person suffering from paraplegia or quadriplegia does. However, in each case, doctors testified the plaintiff might not be safe if left alone. Or rather, there was a substantial risk he might not be safe. For example, in an emergency such as a fire, the plaintiff might become confused and unable to react. Or, left unsupervised, he might wander off in the middle of the night and get into trouble.

What if the brain-injured plaintiff lives with his family? Why should the defendant have to bear the cost of overnight supervision, while the plaintiff is sleeping? After all, family members are just down the hall. That’s not how it works. The defendant cannot conscript family members into service. If not for the accident, the plaintiff would not require the supervision at all. The plaintiff is entitled to be placed in the position he was in before the accident in as much as money can accomplish that. His damages are what it would cost him to go into the market to purchase the supervision he needs.

In all three cases, supervision was required during the day to help cue and prompt the plaintiff through his daily activities. In Sandhu, because of the infant plaintiff’s frontal lobe brain injury, the infant plaintiff would not be able to initiate tasks. He would not have the judgment necessary to conduct himself properly in social situations and, because of a desire to be accepted, he might be easily led astray by unscrupulous individuals seeking to take advantage of him. The boy would require a “prosthetic frontal lobe” to cue him and prompt him to initiate tasks and to exercise judgment. A com- panion would be needed, someone to modify and modulate his behaviour, someone to look out for him — at all times.

Level Of Care

The second factor that drives the large awards for supervision is the level of care. There are a number of options available, and hourly rates vary widely depending on the level of expertise of the caregiver. In some cases, the required level of care may vary depending on the time of day and the activities in which the plaintiff is involved.

In Marcoccia, plaintiff’s counsel led evidence that the plaintiff would require supervision by a rehabilitation support worker (RSW) at the rate of $54 per hour during the productive hours of the day. An RSW is an individual with college-level training on how to manage a person with a brain injury. People with brain injuries can sometimes be overly aggressive, or overly friendly, exhibit socially inappropriate behaviour and a lack of judgment. The RSW is trained to recognize signs of problem behaviour and intervene before problems escalate. Evidence was led in Marcoccia that if RSW support was not provided, situations could arise which could become dangerous to the plaintiff or others in the community.

In Sandhu, evidence was led
that different levels of care would be required at different times of the day. Take, for example, a typical school day during the infant plaintiff’s school years. In the morning, the infant plaintiff would require supervision while getting his breakfast, cleaning his teeth and getting ready for school. During this time, supervision at the level of a Personal Support Worker (PSW) would be adequate. The agency rate for a PSW is $22 per hour.

At school, between 8:30 a. m. and 4 p. m., the plaintiff would require an educational assistant (EA). There was evidence this should be provided at the level of an RSW, at $54 per hour. After school, there would be a couple of hours to unwind, maybe to play video games or watch television, or have a snack. Supervision at the PSW level would suffice during this time. In the evening, between 6 p. m. and 8 p. m., as the demands of cueing and prompting the plaintiff through homework assignments would be more advanced, so he would again need supervision at the more expensive RSW level.

At bedtime, between 8 p. m. and 10 p. m., the PSW level of supervision would suffice. The infant plaintiff would be getting into his pyjamas and getting ready for bed.

Overnight, before the age of 16, the infant plaintiff would have been supervised by his parents if uninjured. So there would be no extraordinary cost for overnight care during these years. However, after age 16, there would be no legal responsibility for parents to supervise, so overnight supervision becomes an extraordinary cost. Plaintiff’s counsel sought damages for overnight supervision at a babysitter’s rate of $10 per hour.

All told, the cost to supervise the infant plaintiff round the clock, on a typical school day, exceeded $700 a day. Different scenarios were presented for each phase of the infant plaintiff’s life, with similar daily cost figures.

New heads of damages

The seemingly lower burden of proof for future claims permits arguments in support of an increasingly broad range of claims. For example, in both Marcoccia and Sandhu, the plaintiff led evidence to show that because such large awards had been made for future care costs, there was a real and substantial risk the plaintiff would require guardians to manage all the money. In both cases, there was a substantial risk both a corporate guardian, likely a trust company, and a non-corporate guardian would be appointed. In Sandhu, the judge awarded guardianship costs totalling $1,127,000 and non-corporate guardian costs of $268,800. In Marcoccia, corporate guardian costs of $715,557 and non-corporate guardian costs of $161,250 were awarded.

As well, damages were assessed for future legal expenses, which might be incurred by the estate — in Sandhu, $400,000 and in Marcoccia, $389,009. Of these amounts, substantial sums were attributed to “contingent litigation expenses.” It was argued that due to problem behaviours related to brain injury, there was a substantial risk the plaintiffs could become involved in family law disputes or the criminal justice system. As a result, there was a substantial risk legal fees would be incurred at some point in the future.

Conclusion

Both Marcoccia and Gordon were car accident cases brought against automobile leasing companies with unlimited exposure. Since the accidents, which gave rise to these cases, changes in automobile insurance legislation have been made to protect automobile leasing companies. These changes may have restricted the number of cases which could give rise to multi-million dollar damages awards.

But does this mean the high damages awards in Marcoccia, Sandhu and Gordon were anomalies? Blips on the radar screen? Clearly not. It is likely that the range and scope of future care cost claims will continue to expand so long as there are defendants who are capable of paying.

Ian Mair is a partner with Moodie Mair Harley & Walker LLP. He practices civil litigation with an emphasis on matters involving serious personal injury and insurance coverage.