After a car accident, a mild traumatic brain injury case usually relies heavily on the credibility of the claimant. With a normal MRI and no objective signs of injury, the court must rely on the credibility and reliability of the claimant and the strength of any corroborating evidence. The following appeal of a Brain Injury Dismissal case illustrates just how important the judges finding on credibility are to the finding of brain injury (Minhas v. Sartor,2014 BCCA 455).
The claimant contended the judge was wrong in finding he had not suffered brain injury, and in particular said the judge failed to allude to “new brain science” supporting that there are several mechanisms associated with surgery that can compromise brain functions, not only the hypoxia referred to by the judge. He claimed recent scientific literature was ignored by the judge.
However, the Court of Appeal found that there was no real challenge taken to any of the judge’s descriptions of the evidence, although there was explanation proffered. It was up to the trial judge whether to accept the explanation. “As this was a case highly dependent on credibility findings, it seems to me that if the claim of brain injury was to be won, it was to be won at trial. Without the finding of fact that [the Claimant] had suffered a brain injury, it is simply premature to analyze the theories of causation.”
The appeal was dismissed. Read my review of the double costs award against this claimant for failing to accept a $275,000 offer to settle.
Posted by Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.
