While it is relatively easy to prove that a person has suffered a fractured bone after slipping and falling due to another person’s negligence, it is often much more difficult to prove that a person has suffered a brain injury as a result of a slip and fall. Further, it is often even more difficult to try and prove whether cognitive and personality problems that arise after a slip and fall are due to a brain injury or whether they are a product of chronic pain, depression, or a combination of them.
However, in the recent B.C. Supreme Court decision of Roy-Noel v. Buckle, 2024 BCSC 752, Justice Crerar addressed this issue of causation and held as follows:
29 Jurisprudence also dissuades the Court from obsessing on whether chronic pain, depression, and other conditions are attributable to a brain injury or underlying psychological or other trauma. As noted by Justice N Smith, whose experience and expertise in this area is well known, in Scoates v. Dermott, 2012 BCSC 485:
[103] On the medical evidence, it appears impossible to know with any degree of confidence if the plaintiff’s cognitive and personality problems relate to brain injury, if they are the product of depression and chronic pain, or if they stem from a combination of all these factors. In terms of the plaintiff’s current condition, I find that it makes very little difference. The symptoms are very real and the chronic pain and depression, which clearly flow from the plaintiff’s injuries, are sufficient to cause them with or without an organic brain injury.
[104] The only possible difference is that the plaintiff’s condition is theoretically treatable if no physical brain injury is involved. However, I am persuaded by the opinions of Dr Schmidt and Dr Ancill that significant improvement is unlikely in this case. The chronic pain is going to be permanent and I believe the plaintiff will continue to experience depression as a result of his pain and limitations and from the loss of his ambulance career, which had been a defining feature of his life.
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[175] … Although I have found the plaintiff’s cognitive, emotional and personality difficulties may result from the complex interaction of chronic pain and depression, rather than organic brain injury, the intractable nature of those problems makes the distinction largely irrelevant.
The upshot is that when a plaintiff has suffered a brain injury due to a slip and fall, it is important for counsel to focus on proving that the symptoms are real and establishing what the plaintiff’s function was like before the slip and fall occurred, and how that differs from their condition after the fall. Trying to precisely pin these symptoms on a brain injury is not necessarily a must; given that if the symptoms are permanent, then it makes little difference whether those symptoms are from a brain injury or chronic pain and depression.
When advancing a claim for injuries due to a slip and fall the label applied to the injuries is less important than the symptoms and the impact the injury has had on the plaintiff. In order to do this, it is important to identify friends, family, and co-workers who can speak to the plaintiff’s physical and mental condition prior to the slip and fall.
For more information about seeking legal support after a slip and fall, information related to brain injury law, or any other personal injury inquiries, please reach out to Bryan Fitzpatrick at [email protected] or call him at 250-869-1127.
