In the case of Liu v. 1226071 Ontario Inc. the Plaintiff Liu
sustained serious head injuries when he was struck by a car. He struck
the windshield, rolled over the top of the car and crashed onto the
road. At the time the
trained ambulance attendants arrived at the scene, his Glasgow Coma
Scale (GCS) was 3/15. Twelve minutes later it was registered at 8/15.
Twelve minuets after that, it was registered at 12/15 and at the
arrival at the hospital, his GCS was measured at 14/15. The evidence
disclosed that although Liu regained consciousness on the way to the
hospital, he remained impaired in the days following the accident. He
had also suffered a long period of post-traumatic amnesia.
The meaning of Catastrophic Impairment (in 1999), was a brain
impairment that as a result of the incident, results, in a score of 9
or less on the Glasgow Coma Scale according to a test administered
within a reasonable period of time
after the incident by persons trained for that purpose. The case went
to Court and the jury returned a substantial verdict based on
catastrophic impairment.
The Defendant brought a motion to ask the Judge whether or not Lieu had
suffered a catastrophic impairment within the meaning of the Insurance
Act noted above. The trial Judge concluded that the Plaintiff did not
suffer a catastrophic impairment and as such, he was not entitled to
receive a damage award for future medical, rehabilitative and attendant
care services. The case went to the Court of Appeal and the Court of
Appeal noted that an analysis must begin with the language of the
legislation. In their view, the language of the statute is clear. A
catastrophic impairment means a brain impairment, which the Plaintiff
did suffer, that results in a score of 9 or less on the Glasgow Coma
Scale according to a test administered within a reasonable period of
time after the accident by a person trained for that purpose. There
was no issue that the ambulance attendants were not trained for that
purpose.
The issue in the case was
what is a reasonable time?
The Court of Appeal noted that the trial Judge fell into error in
equating the statutory test to a medical test. It is not so. They
noted that the statutory scheme created a Bright Line Rule which is
relatively easy to apply. All that is required is a brain impairment
and a Glasgow Coma Scale reading of 9 or below within a reasonable
period of time after the accident. They noted that the Appellant met
both criteria and should be entitled to recover damages or health care
costs in accordance with what the jury awarded. In their view,
provided that there is a brain impairment, all that is required is a
Glasgow Coma Scale of 9 or less within a reasonable time following the
accident. It is a legal definition to be met by the claimant and not a
medical test. The fact that the Plaintiff had higher Glasgow Coma
Scales within a reasonable time after the accident is irrelevant. THey
stated that the medical evidence that Lieu sustained a brain impairment
and had at least a Glasgow Coma Scale of 9 or less, taken within a
reasonable time post-accident and therefore met the statutory
definition of a catastrophic impairment. This allowed him to recover a
substantial award for future care to help him deal with his life with a
brain impairment for his remaining days. This is the type of case that
advances the rights of injured victims that suffer a brain injury - if
there is a brain injury and the GSC is administered within a reasoanble
amount of time - that score will be determinitive.
If you would like more information on catastrophic impairments caused
in car or motorcycle accidents, please do not hesitate to contact Matt
Lalande at (905)-639-8894.