Warning To The Brain Injured Client: Your Lawyer Needs Experience In Handling Serious Brain Injury Cases

The question of a client’s mental capacity to initiate legal action can be a complex one, and something which can be a trap for unwary clients and lawyers alike.

I was reminded of a client’s near brush with disaster when I was asked recently to speak at the Atlantic Provinces Trial Lawyers Association conference. The conference is about psychological injury. The particular client’s case is reported, so I refer to him as Mr. Snow.

Mr. Snow suffered a medical injury caused by lithium administration which was not properly monitored and blood levels became toxic, resulting in brain damage and catastrophic injury. His medical injury almost was succeeded by a legal injury, by the way in which his lawyer chose to commence the action. The action was commenced after the normal limitation period had expired.

The brain damage Mr. Snow suffered was mainly to his frontal lobes. This caused a loss of executive function. Neuropsychological testing was useful in elucidating the nature of the damage, and opinion was received from plaintiff and defence psychologists and psychiatrists.  The court found the mental disability affected “not so much his cognitive powers, but his ability to initiate actions which are out of the ordinary.”:  para. 16.

A friend had brought the previous lawyer to visit Mr. Snow at his home. This lawyer commenced the action, but without describing Mr. Snow as a person under a disability. I succeeded to the file. I was able to get the normal two-year limitation under the Medical Act declared to be inapplicable to Mr. Snow owing to infringement of his Charter of Rights section 15(1) equality rights.

This case illustrates two take-home points: (a) that mental incapacity can be a subtle concept, and (b) that the plaintiff lawyer should try to get the question of capacity right from the get-go.

The first lawyer on the file, who had been brought to Mr. Snow’s home by a friend of Mr. Snow, commenced action naming Mr. Snow in his own right and not with a guardian. This lawyer went to the bench and I became the successor. After investigations, I received leave to amend and proceed by a guardian.

In the Court of Appeal, the manner in which proceedings were initiated was a pivotal point for the dissenting judge, who noted that “a senior member of the bar” (the previous lawyer) had commenced proceedings naming Mr. Snow as plaintiff. “Surely, one can conclude that, had the lawyer encountered any difficulty receiving instructions or had been unsure as to the mental capacity of the plaintiff, he would have commenced the proceedings by way of a guardian ad litem.”:  para. 122. This judge would have found that Mr. Snow had not proved that he was a person under disability, and was not entitled to the anti-discrimination protection of the Charter of Rights.

So a practice point for an audience of lawyers might be that not getting the question of capacity right at the start of proceedings, could land you in a legal malpractice suit. Fortunately for Mr. Snow (and perhaps for his original lawyer), the majority of the Court of Appeal took a more sympathetic view of the claimed incapacity, and allowed the Charter to protect his right of action.

And the take-home point for friends and family of people who may have suffered brain damage bad enough to affect cognitive ability, due to the fault of another, is to do some homework and make sure you find a lawyer who is the perfect lawyer for the case. This lawyer will be someone experienced in handling serious and catastrophic brain injury cases in Newfoundland and Labrador, and knows the pitfalls of the law of limitations.

Asking around for referrals is always a good starting point, and nowadays having a look through the prospect lawyer’s website, and any reports or books he or she offers to the public, is an excellent way to find a perfect lawyer for the case.

Find less than the perfect lawyer for the case and you may have a lawsuit for legal malpractice to pursue.