Cognitive functionalities refer to the way we think, analyze, perceive and process information. If someone suffers from a traumatic injury or impact to the head, some neurological abilities such as memory, concentration, reasoning and understanding can be lost permanently. Cognitive dysfunction is life-altering and can thus be extremely frustrating resulting in emotional outbursts or drug dependence and abuse.
Cognitive dysfunction can range from simple memory loss to serious inability to make sense of the world around you. Such wide-ranging effects can greatly impact our daily lives; from being able to drive a vehicle or cook for yourself to being able to continue working and taking care of your children.
As an example, Labonte v Sowers, 1994 CanLII 9062 (AB QB) is a case where the plaintiff suffered head injuries resulting in permanent mental dysfunction to areas of cognitive abilities. Specifically, he suffered from verbal memory deficit and intellectual skills deficit due to a car accident. The plaintiff had been walking along a road when he was struck by a vehicle and thrown up onto the hood of the vehicle before he was thrown back down onto the pavement. The court found the pedestrian accident changed his life forever and he would be limited in his future ability to work and earn an income to support himself. The plaintiff was awarded $385,000 in damages including general damages, past loss of income, future loss of income and special non-wage damages.
Need for Hired Care
In severe cases, an injured person may require personal care for a limited period of time or for the rest of his or her life. Due to the psychological and physical devastation of dealing with cognitive dysfunction following a traumatic brain injury, the main goal of the court when awarding damages is to ensure adequate compensation for future personal care. The personal care cost must be reasonable and justified based on medical evidence. The job of the court is to determine the amount that would restore the plaintiff back to their original position, not to improve them beyond their financial position prior to the accident.
Personal care for cognitive dysfunction can come under a variety of headings such as the following:
• Medical management
• Psychiatric care
• Scar revision
• Psychological counseling
• Family counseling
• Physiotherapy programs
• Life skills therapy
• Professional consultation/case management
• Rehabilitation programs
• Orthopedic support
• Memory aids
• Household management
• Outdoor maintenance
A brain injury victim may require some or all types of personal care depending on the impact of the accident. For example, in Labrecque v Heimbeckner, 2007 ABQB 501 (CanLII), the plaintiff was travelling in a vehicle that was struck by an RCMP vehicle at a high speed. The plaintiff was thrown 30 feet from the vehicle and suffered severe injuries including a serious closed-head injury. Although the plaintiff had a pre-existing personality disorder, the court found the degree to which the accident caused her cognitive dysfunction was high. After the accident, the plaintiff suffered from memory loss and severe bouts of depression, lacked motivation and self-esteem and could no longer cope with herself let alone her son. The court found that the plaintiff would require personal care totaling $481,850. The total award the plaintiff received for additional damages, including general damages, diminished earning capacity, diminished housekeeping capacity, and special damages, among others, was $1.2 million.
To make a successful claim, a plaintiff must prove, on a balance of probabilities, that the defendant is liable for his or her injuries. This includes:
(i) establishing the defendant owed the plaintiff a duty of care and that the defendant breached the standard of care,
(ii) proving the injury or loss and,
(iii) proving the defendant’s actions were the actual and legal cause of the plaintiff’s injuries.
The legal system can be a complex one to navigate – from starting the legal process to collecting witness evidence and medical reports, and negotiating with the other side for a fair settlement. Our lawyers can help you through this difficult time.
Call Braithwaite Boyle for An Accident Injury Lawyer in Edmonton, Calgary or Red Deer
It’s tragic and complicated to figure out how to obtain adequate compensation for the care that your loved with the cognitive dysfunction may require. That’s why our accident lawyers Edmonton, Calgary and Red Deer are here to take care of the legal aspect of the situation. Our lawyers are experienced in personal injury claims, and specifically serving plaintiffs who are suffering from cognitive dysfunction. Call us today at 1-800-661-4902 to book your free consultation.