Motorcyclist awarded $3.7 in Damages for Traumatic Brain Injury

Posted by Injury Lawyers of Ontario on May 01, 2020

A motorcyclist’s lack of protection in the event of an accident makes riders particularly vulnerable to catastrophic injuries such as traumatic brain injury (TBI).  According to the U. S. National Highway Traffic Safety Administration, motorcyclists suffer TBIs resulting in death about 26 times more often than persons riding in automobiles, based on distance travelled.  In Canada, the risk of fatal injuries is closer to half that reported in the United States likely because wearing a helmet is mandatory in all provinces and territories.  Helmets are a motorcycle rider’s only protection against head injuries and riders wearing helmets are significantly less likely to suffer a brain injury. 

The frequency of motorcycle accident fatalities has increased in North America in recent decades, largely due to the increase in traffic and congestion on our roads.   In 2019, the B. C. Coroners Service reported a 50 percent increase in motorcycle deaths.  And, in 2017, Ontario experienced a 10-year high in fatal motorcycle accidents.

Foniciello, et al. v. Bendall and Acculine is a recent lawsuit that arose after a 44-year old St. Thomas resident, Joe Foniciello, sustained a traumatic brain injury in a London Ontario motorcycle accident.   The plaintiff was struck by a van at an intersection where Acculine Pavement Markings was making pavement markings.  A jury found the van driver, Mr. Bendall, 60 percent liable for the plaintiff’s damages and Acculine 40 percent liable.

Unfortunately, his helmet did not protect Mr. Foniciello from sustaining a serious traumatic brain injury when he was struck by Mr. Bendall’s van.  The plaintiff’s injury is characterized as a diffuse axonal injury, including injury to both his frontal and temporal lobes. As a result of the brain injury, the plaintiff was in a semi-conscious state for about five months.  

Since the accident, Mr. Foniciello underwent extensive rehabilitation treatments and medical assessments, including neuropsychological testing, and given the seriousness or his brain injury, he has made remarkable gains in his ability to function and he no longer has any significant physical impairments.  However, the plaintiff has suffered permanent cognitive, intellectual and behavioural impairments.  His impairments include: difficulty with mental processing including thinking, reasoning and understanding complex ideas; poor impulse control; easily distracted; memory problems; needs regular direction from his caregivers; emotional impulses sometimes leading to destructive and aggressive behaviour; and feeling either agitated and frustrated, or entirely unemotional.

The plaintiff’s social interaction with family members and others has been significantly impacted by his impairments, as his conversations are awkward and he can only reply to premeditated questions and not to any new topics or questions. He is able to perform scripted and pre-defined everyday activities, such as getting dressed and making his own breakfast, going to the grocery store (if he has a list of required items) and attending doctor’s appointments on his own.  However, the plaintiff will continue to need help with many tasks, including management of his finances, preparing meals, and determining scripts and to-do lists for many normal functions.

The plaintiff can never return to work because his cognitive problems make it difficult to learn how to perform new tasks or any job; he cannot adapt to any change in routines; he is unable to work at a productive pace; and there are safety concerns arising from his cognitive impairments.  Finally, the plaintiff’s brain injury places him at a four times greater risk of developing dementia.    

On the basis of his assessed losses, the judge awarded the following damages to the plaintiff.

  • General damages (for loss of enjoyment in life): $275,000
  • Future loss of income: $524,229
  • Past medical and rehabilitation expenses: $51,282
  • Future medical and rehabilitation expenses: $1,899,969
  • Attendant care expenses: $764,411
  • Management fee (5 percent of above amounts): $175,794

The plaintiff’s wife, Mary Foniciello was awarded the following damages.

  • Non-pecuniary damages (under the Family Law Act): $50,000
  • Future counselling costs: $10,543
  • Value of caregiving services provided to the plaintiff: $122,254

The Court also awarded $25,000 in damages for loss of guidance, care and companionship to the plaintiff’s elderly mother, as well as $40,000 each to his two adult daughters.

If you were hurt in a motorcycle accident, talk to an experienced London injury lawyer  or a motorcycle accident lawyer in your community, to learn about your legal rights and how you can obtain fair compensation for your losses.  


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