IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20101223

Docket: S16905

Registry:
Chilliwack

Between:

Ronald Edward
Madill

Plaintiff

And

Linda Sithivong,
Douang Sithivong, Somchit Sithivong,
Charles Peter Howard and Super H Holdings Ltd.

Defendants

Before:
The Honourable Madam Justice Morrison

Reasons for Judgment

Authorities Considered:

Relevant Provisions of the Motor
Vehicle Act, R.S.B.C. 1996, c. 318

Relevant Provisions of the Offence
Act, R.S.B.C. 1996, c. 338

Bedwell v. McGill,
2008 BCCA 6

Deneault v. Fleming,
2006 BCSC 1219

Wright v. Dillon,
2009 BCSC 176

Wiebe v. Neal, 2004
BCSC 984

Perren v. Lalari,
2010 BCCA 140

Lowe v. Larue, 2000
ABCA 28

Moskaleva v. Laurie, 2009
BCCA 260

Burdett v. Eidse,
2010 BCSC 219

Lines v. Gordon, 2006
BCSC 1929

Lines v. Gordon, 2009
BCCA 106

Adamson v. Charity,
2007 BCSC 671

Athey v. Leonati, [1996]
3 S.C.R. 458

Abma v. Paul, 2008
BCSC 783

Bittante v. Zichy, 2008
BCSC 728

Carifelle v. Gill, 2009
BCSC 1117

Pacheco (Guardian ad
Litem) v. Robinson (1993), 75 B.C.L.R. (2d) 273 (C.A.)

Ponipal v. McDonagh
(Committee of), 2009 BCSC 461

Willing v. Ayles,
2009 BCSC 1035

Rosvold v. Dunlop,
2001 BCCA 1

[1]            
The plaintiff, Ronald Edward Madill, claims damages against the
defendants for injuries arising from a motor vehicle accident that occurred
June 28, 2004 on Clearbrook Road in Abbotsford, British Columbia.  At the time
of the accident, the plaintiff was a passenger in a motor vehicle owned by the
defendant, Super H Holdings Ltd., and operated by the defendant, Charles Peter
Howard.  The action against Super H Holdings Ltd. has been discontinued.

[2]            
A vehicle owned by the defendants, Douang Sithivong and Somchit
Sithivong, and driven by the defendant, Linda Sithivong, collided with the
motor vehicle driven by Mr. Howard.

[3]            
The plaintiff claims head and neck injuries, an injury to his right arm
and lower back and right leg, a mild traumatic brain injury, loss of acuity of
vision and loss of memory, as a result of the accident.  He claims
non-pecuniary damages, wage loss, future wage loss and loss of earning
capacity.

[4]            
The accident occurred around noon on June 28, 2004.  The plaintiff was
in the rear passenger seat of a 1992 Lincoln Continental driven by Peter
Howard.  Mr. Howard’s wife, Jean Howard, was seated in the front passenger
seat.  They were en route back to their place of business at Super H Holdings
Ltd. from the courthouse in Abbotsford.

[5]            
They were proceeding south on Clearbrook, a street with two lanes
running south, two lanes running north, and a “suicide lane” in the middle,
allowing cars to make either a left or right turn at certain points.  There was
construction on the west side of Clearbrook, and a number of southbound
vehicles were stopped in the curb lane, waiting to proceed toward the
intersection of Oak Avenue and Clearbrook.

[6]            
The defendant, Linda Sithivong, was heading east out of a parking lot
entrance in mid-block of Clearbrook, attempting to cross the two southbound
lanes of Clearbrook in order to turn left and head north on Clearbrook.  A gap
in the cars which had been stopped for construction opened up to allow her to
proceed into the southbound lane of Clearbrook.  A large van had stopped as a
courtesy to allow her to enter traffic.  She emerged into the centre lane of
Clearbrook just as the Howard vehicle was passing that gap.

[7]            
Mr. Howard testified he was travelling one or two miles an hour, stop
and start, waiting to merge with the traffic in an effort to pass the
construction which was just ahead.  He did not see the Sithivong vehicle until
it emerged from the gap and was heading directly for his car.  In an effort to avoid
the collision, Mr. Howard, an experienced trucker, turned his wheel sharply to
the left into the suicide lane and accelerated.  The Sithivong vehicle struck
the rear passenger door where Mr. Madill was seated.

[8]            
Linda Sithivong concedes some negligence, but suggests that Peter Howard
was also negligent.  That he ought to have anticipated or could reasonably have
been expected to anticipate seeing Ms. Sithivong moving across the curb
side lane with the intention of moving into his lane.  Counsel for the Sithivongs
suggests that Mr. Howard should be found at least 25% responsible for the
accident.

[9]            
Counsel for Mr. Howard contends that Ms. Sithivong is liable for
the accident and there should be no contributory negligence assigned to
Mr. Howard.  That he was entitled to proceed on the assumption that other
vehicles would observe the rules of the road; he was in no position to see the
Sithivong vehicle until it was too late to avoid the collision.

[10]        
Ms. Sithivong testified that the driver of the van that had stopped
to allow her to go through the space in the stationary line of vehicles had
given her a wave, which she believed meant it was clear to go.  Counsel for
Mr. Howard argued the van effectively blocked any chance Mr. Howard
had to see the Sithivong car emerging from the parking lot entrance.

[11]        
Mr. Madill had his seatbelt on.  After the quick acceleration and sudden
left turn, he found himself in an awkward position, pushed into the rear corner
of the rear passenger seat, with his head and neck at an uncomfortable sideways
and backward angle.  He felt immediate pain.  He asked Mrs. Howard to
telephone 911, which she did.

[12]        
The rear passenger door could not be opened, although the damage on impact
for both vehicles was not major.  Because of concern over the neck injury and
pain of Mr. Madill, the rescue and fire department responders made the
decision to use equipment commonly referred to as the Jaws of Life to bring
Mr. Madill out of the vehicle in a safe manner.  Part of the roof of the
Lincoln was peeled back, the rear passenger door was pried open and taken off
the vehicle.  Mr. Madill was evacuated by helicopter to the hospital.

[13]        
The Lincoln Continental, prized by Mr. Howard, had suffered fairly
insignificant damage in the accident but was now a write-off, because of the
work required to extract Mr. Madill.  Damage to the Howard vehicle
attributed to the accident, excluding Jaws of Life damage, was $1,761.83.  Damage
to the Sithivong vehicle was estimated at $807.

Background

[14]        
Ronald Madill is 43, born June 10, 1967.  He had just turned 37 at the
time of the accident.

[15]        
Peter Howard owns a transportation company, which was called Super H
Holdings Ltd. at the time of the accident.  His company has been under
different names from time to time.  Ronald Madill began working with
Mr. Howard in 1999 and quickly became the fleet manager, or operations
manager of Mr. Howard’s company.  His wife, Shannon Madill, was brought into
the company in 2002 as an administrative manager/dispatch assistant.

[16]        
Mr. and Mrs. Madill met in approximately 1994.  They became a couple in
1995, were living together before 1996, and were married in 1998.  It was a
second marriage for each of them.  Before the accident, they led a very active
lifestyle, sharing a passion for motorcycles.  Mr. Madill had a big Harley
Davidson, an ultra classic, Mrs. Madill a Yamaha.  Mrs. Madill
testified that they were on their motorcycles most evenings, and a lot of
weekends and would log 30,000 to 35,000 kilometres a year on motorcycle trips.  They
drove their motorcycles year round and had them insured year round.

[17]        
Their other activities included camping, fishing and gardening.  Mr. Madill
particularly was a keen gardener, having his own greenhouse, and had
transformed their backyard into something of a showpiece.  Mr. Madill also
skied, played golf, was a pilot and an avid skydiver.  He was also head of the
local Harley Davidson owners group for some years.

[18]        
At the time of the accident, only three persons worked at Super H
Holdings Ltd., Mr. Howard, and Mr. and Mrs. Madill.  Mr. Madill was in
charge of loading and unloading the trucks, all complaints, drivers’ issues,
regulatory matters with licensing or regulatory authorities, collections, any
and all small claims or other legal actions in which the company might be
involved, and on occasion, he would travel outside the Province if there was a
freight claim dispute.  According to his wife, Ronald Madill was a very
organized and talented multitasker.  He was good at dealing with people, he was
excellent at troubleshooting, he had no trouble speaking, and he generally
seemed to thrive on a highly energetic level of activity.

[19]        
The plaintiff graduated from high school in 1984 and joined the medical
branch of the armed forces, where he remained for three and a half years.  He
was then in forestry for three years at 100 Mile House.  He was with Super H Holdings
Ltd. from 1999 on.  Initially his duties with Mr. Howard included local
deliveries, yard work, inventory and maintenance.  The company was involved in
both trucking and brokerage, and Mr. Madill had experience with two
companies previously in these areas.

[20]        
The plaintiff’s later duties as operations manager included everything
in and out of the yard, supervising all dangerous cargo, and the list of duties
detailed above.  Mrs. Madill testified he was virtually on call 24/7, and often
worked 70 hours plus a week.  He was operations manager for Mr. Howard for
four years before the accident.

[21]        
Mr. Madill testified his activities did not include as much driving of the
trucks as he might have done in previous jobs.  He said that might have been
20% of his work; most of his work was as an administrator, in the office.  He
holds a Class 1 operator’s licence, but has concerns that June 2011 will mark
the end of his ten year licence, as he will not, in all likelihood, pass the
medical.  Mr. Madill stated that he could operate anything before the
accident:  forklifts, scales, trucks of any size, a super B train, those large
tandem trucks that most of us prefer not to challenge on the road.  Because he
has had a head injury, he knows that he will not pass his medical to renew his
pilot’s licence; he no longer has a valid pilot’s licence.

[22]        
Mr. Madill recalls the accident.  He said there was road
construction ahead.  All the vehicles in the right lane were stopped.  He
testified Mr. Howard had pulled out to the left lane to pass the stopped
vehicles.  Suddenly they saw the Sithivong vehicle come out from between the
parked cars on the right.

[23]        
He said the woman kept accelerating and so did Peter Howard.  When the
Sithivong vehicle struck the Howard vehicle, it was at the rear passenger door
where Mr. Madill was seated.  He testified, “My head felt pinched in the door.”

[24]        
Mr. Howard drove into a nearby gas station lot and Mr. Madill said,
“I couldn’t get out of the car.”  He said he felt sick most of the time and
dizzy, and his neck felt pinched.  It seemed to him he was in the car a long
time before the first responders cut the car apart to get him out.  He said his
hair and his head were in the frame of the car.  The pain in his head was
“excruciating”; his back and neck were hurting.  He testified that he slipped
off the gurney onto his head while he was being loaded onto the helicopter that
took him to the Royal Columbian Hospital.  He could not see out of his right
eye.  His vision problems occurred within the first few hours, not immediately.
He said it was like tunnel vision and then he started seeing things in three’s.
He says that still occurs if he has a bad headache.

[25]        
In the hospital he was in a room with others who were screaming and
yelling; he wanted to get out of the hospital.  The nurse had told him that he
could not leave until he could safely go up and down stairs.  He spent two
nights at the hospital and testified he worked hard to make sure he could do
the stairs so he could get out of there.

[26]        
On the day of the accident, Mrs. Madill testified she received a
call at 12:30 from Jean Howard to say they had been in an accident.  The phone
cut out and Jean Howard called again to say that Ron was being cut out of the
car.  Then Peter Howard called to say they would come to the office so she
could go to the hospital.  She was not able to leave the office until about
2:30, and made her way to the hospital.  When she saw her husband, she said he
was disoriented and confused, and in a lot of pain.  She saw him a bit later
and he was still disoriented and in pain, and holding his head and his chest.  There
was bruising on his face and chest.  She said her husband was drifting in and
out.  She left about 4:00 or 5:00 in the morning.

[27]        
When Mrs. Madill went back to the hospital the next day, she said
her husband was still having trouble getting words out, or completing a
sentence.  He had been moved to a room with four other people, and was trying
to get out of the hospital.  Eventually she was called by her husband to come
and get him, to her surprise, and she went to pick him up.  They saw no doctor
on leaving the hospital.

[28]        
On getting her husband home, Mrs. Madill said that he was in a lot
of pain, shaky, unstable, on medication, and his right side was hurting.  She
got him home about 8:00 or 9:00 p.m. that evening.  She took him to the
family doctor, Dr. Harder, the next morning.  He has been their general
practitioner for 14 years.

[29]        
Mrs. Madill’s evidence is that her husband was still cranky, sore,
having trouble moving and having trouble finding words.  He had been given a
prescription for pain.  And while she had to leave for work, she would check on
him by phone.  For the next several months, for sleeping, Mr. Howard
alternated between lying on the couch or a mattress on a futon.  He was not
talking a lot, which was unusual.

[30]        
The crux of the evidence of Shannon Madill is that her husband is not
the same guy that she married.  That there has been a significant change in him
since the motor vehicle accident.

[31]        
According to Mrs. Madill, when her husband came back to work, he
would work a bit and then either sit in his office with the lights out, or she
would take him home.  She testified that Peter Howard asked them not to make
any disability claim, and he kept paying Mr. Madill’s salary as usual,
even though the plaintiff was not working as before.  Although her husband was
coming in to work, she could see he was not working.  She said he continued
really just doing part time work until they were no longer with Super H
Holdings Ltd.  That employment ended November 30, 2005 when Mr. Howard and
the Madills had a falling out, on other matters.

[32]        
When Mr. and Mrs. Madill lived in Clearbrook Village, a strata with
300 units, he was chair of the strata council from 1998 to 2001.  They then
moved to their home at 2511 Guildford Avenue in Abbotsford in 2001, a four-bedroom,
two-storey house with a large yard, front and back.  After the accident,
Mrs. Madill said her husband was no longer capable of doing the kind of activities
either at work or at home that he had before, and that continues to this day.

[33]        
As far as his motorcycle was concerned, Shannon Madill said because of
his condition after the accident, particularly his loss of balance, she had his
motorcycle put in storage.  They eventually sold his prized motorcycle.  She
said that he loved that motorcycle; it had been made to order for him.  But with
his balance affected after the motor vehicle accident, it was not possible for
him to continue on the motorcycle.

[34]        
In 2008, Mrs. Madill testified she bought a dirt bike for her
husband.  He rode it for 10 or 15 minutes at most.  It jarred him and he was
not able to continue riding that bike.

[35]        
Then by December 2008, Harley Davidson had come out with their trike, a
three-wheel motorcycle, sometimes referred to as a motorcycle with training
wheels.  Mr. Madill has been able to ride that.  In the summer of 2009, they
took a trip to Vernon on it, and he has also been to Penticton.  They have
taken short trips, to Bellingham or Seattle, or Chilliwack, and once to
Vancouver Island.  But they have not been able to do the kind of motorcycle
trips that they did before the accident.

[36]        
Mr. Madill’s evidence with regard to the trike is telling.  He acknowledged
he could not ride a street bike after the accident; that his wife stopped him.  He
did not feel comfortable, and he would lose his balance on a corner, “You go
down”.  He never rode a motorcycle after the accident.  He says the trike is some
use, but not much.  Both he and his wife ride it.  According to
Mr. Madill, “It’s not the same.  [On] two wheels – the freedom of the
road.”  He also said one can’t ride with groups.  A trike is more of a solo
thing.

[37]        
Although there is video surveillance of Mr. Madill riding his trike
with three other motorcyclists, he testified he prefers not to do group rides.  “The
trike is awkward, spits up rocks, causes problems with others.”

[38]        
In cross-examination, the plaintiff was asked if he had told anyone
before the accident that he was thinking of getting a trike.  He denied that,
saying, “No.  I hated them.  I thought they were stupid.”

[39]        
The evidence of Ronald Madill and his wife, Shannon Madill is crucial in
this case.  The plaintiff’s allegations are that the accident has caused him
serious and permanent injuries, in the form of a mild traumatic brain injury
that has affected his ability to work, and all aspects of his life, work, social,
recreational and marital.

[40]        
Mrs. Madill has been in the best position to observe her husband
both before and after the accident.  They have been together for 15 years and
have worked together since 1998.  They enjoy the same activities and have both
been very active people.

[41]        
Before the accident, in addition to the activities already mentioned,
Mr. Madill played darts every Friday evening in a fun league.  He also
pitched in a slow pitch baseball beer league and his wife was a catcher.  Mr. Madill’s
love of gardening was such that his wife described their garden looking like a
“mini Butchart Gardens”, saying that her husband loved to garden.  He would
supply friends and neighbours with flowers and vegetables.  As a couple, they
were active and socialized a lot with friends and neighbours.  They both were
volunteers with the Variety Club, beginning in 1996.  Mrs. Madill still
volunteers for this club, Mr. Madill no longer does.

[42]        
At work, Mr. Madill, before the accident, would put in 10 to 12
hour days, and was on call 24 hours a day.  He could multitask and had no
shortage of energy.

[43]        
After the accident, Mrs. Madill said her husband can no longer
multitask, he cannot concentrate.  He has short term memory problems, difficulty
reading the computer screen at times, and has problems focusing.  He might put
in two to four hours a day in the office, but cannot put the hours in that he
did before.

[44]        
The plaintiff has complained about his persistent and debilitating
headaches.  According to the plaintiff and his wife, he did have headaches
before the accident; these were sinus and migraine headaches that he would
treat from time to time with Tylenol 3.  Since the accident, his headaches are now
on the right side of his head.  He goes into a darkened room and experiences
nausea and pain that he says is unbearable.  He wears dark glasses, gets pale,
and when the headaches are really bad, his wife says, “we tell him to leave”,
meaning leave work.  He has become angry and aggressive, and argumentative; he
goes into immediate rages.  There has been a marked change in personality.

[45]        
His wife indicates that before the accident, Mr. Madill was
easygoing, happy, always busy, and social; they enjoyed a good relationship
with one another and he had a good relationship with her 12 year old son,
Aaron.  Since the accident, Mrs. Madill testified that her husband has
become a person who is completely opposite, one who is verbally abusive, short
tempered.  “I’d not be married to him … he is a totally different person.”  “…
it’s been a really hard six years.  Some days I don’t know how to deal with
it.”

[46]        
According to Mrs. Madill, her husband became much harder on Aaron
after the accident.  Aaron no longer lives with them.

[47]        
The headaches that Mr. Madill had before the accident were more in
the frontal area, as opposed to the headaches that he now has.  Before the
accident, the plaintiff had no balance issues, no vision problems and no speech
or memory problems.

[48]        
When Mr. Madill returned to Super H to work after the accident, he
did not work full time, according to both him and his wife.  Mrs. Madill
testified, “He could not and did not stay all that time.”

[49]        
His balance has been affected since the accident.  If he is tired, he
stumbles, according to his wife, and is not as stable on his feet, as he was
before.  There are times when she has had to take her husband to the ER at the
nearest hospital.  This trial had to be interrupted in April of this year when
Mr. Madill was hospitalized for several days.

[50]        
In 2005, Mr. Madill took up scuba diving.  He had done some
research on the internet and believed that the hyperbaric chamber at UBC might
help to alleviate the headaches he was getting.  However, he could not afford
those treatments.  So he began scuba diving and found that after diving, his
headaches would be gone for two or three days.  He became serious about his
scuba diving, and took lessons and became certified up to a master diving
level, taking lessons both here in British Columbia and in Mexico.  He is now
qualified as an instructor.  Mr. and Mrs. Madill bought a boat in the
summer of 2005, in efforts to alleviate the stress and the headaches.  They
used the boat for some diving, but the boat was sold later in 2006, due to the
expenses.

[51]        
According to his wife, Mr. Madill has been getting more social in
the last year.  He now goes to darts, although he goes only to socialize and
does not play.  She remains concerned with his changes in personality and his
balance and other problems which have manifested following the accident.

[52]        
Mrs. Madill has voiced her concerns to Dr. Harder.  On one occasion
Mr. Madill had said, “It would be all over if I put a gun to my head.”  Mr. Madill
has been on anti-depressants following the accident.

[53]        
The working relationship between Peter Howard and Mr. and
Mrs. Madill appeared to be a very good one for a few years.  It seemed
apparent that all three individuals were very hard working, and Mr. Madill,
with his background in the trucking industry, was able to serve some needs that
Mr. Howard had as well as assist with some of the problems that
Mr. Howard and his companies were having with some regulatory agencies.  The
relationship between the parties was excellent at work, and they socialized to
some degree when they were boating.  Mr. and Mrs. Howard also used the
credit card of Mr. Madill when the Howards went on vacation out of the
country.

[54]        
After the accident, Mr. Howard continued to pay Mr. Madill as
before, even though it was apparent Mr. Madill was not putting in the same
amount of hours.  I accept from the evidence that Mrs. Madill was taking
up a great deal of the slack at work from her husband after the accident.  In
any event, the pay continued as before.

[55]        
The Madills and Mr. Howard then had a serious falling out which
culminated in Mr. Madill being fired for cause on November 30, 2005.  There
is ongoing litigation between the parties as a result of events that happened
around that time.  Mr. and Mrs. Madill have not worked for Super H Holdings since
that date.

[56]        
Following that rupture in the working relationship, Mrs. Madill
formed a company with James Webber, who had been working with his own trucking
firm out of office space at Super H Holdings Ltd.  The new company, owned 50-50
by Shannon Madill and James Webber is called Spruce Hollow, and Mr. Madill
became an employee of Spruce Hollow shortly after the company was created.  Spruce
Hollow specializes in heavy haul, oversize transportation.  The office for
Spruce Hollow is set up in the Madill home.  Mr. Madill receives a salary of
$1,200 a month as an employee.  According to the evidence, Mr. Madill
began on December 6, 2005 with Spruce Hollow as a fleet manager.  Both Mr. and
Mrs. Madill and Mr. and Mrs. Webber testified to Mr. Madill’s
inability to work a full day, and the effects of his continuing headaches and
problems since the accident.

[57]        
Mr. Madill does do some short distance driving jobs for Spruce
Hollow.  But it is always if someone else is on the same trip.  He drove a
large flatbed trailer loaded with an airplane tailpipe down to Washington
State.  The route that was given to him by the authorities who issued the
permit for the transportation was a route that was improper, with the truck purportedly
taking the large airplane tailpipe under a bridge where there was insufficient
clearance.  Mrs. Madill testified that “In his right mind, he’d have challenged
the route given him.”, as Mr. Madill, with his experience, knew the route
and knew the height of the overpass in question.  No accident occurred, but it
was of sufficient interest to get bemused coverage on Global TV News.

[58]        
I found Shannon Madill to be an honest and credible witness, and while
she became somewhat hostile during cross-examination, that did not affect her
credibility.  I accept her evidence that Spruce Hollow is only paying
Mr. Madill $1,200 a month, but I do question whether he is worth more than
that to the company.  Mrs. Madill’s evidence and her observations of her
husband before the accident and after the accident had the ring of truth.  No
one else has been in a better position to observe and report on the plaintiff
at work and outside of work, both before and after the accident, than his wife.
They have lived together, worked together and socialized together for the last
15 years.

[59]        
I also found Ronald Madill to be truthful.  He was also grumpy, flat at
times, grim, obviously smart, but not out to charm anyone, including the court.
He was abrupt and not given to exaggeration.  He was responsive to questions,
albeit frustrated on more than one occasion.  But credible.

[60]        
One of the sports he no longer does, following the accident, is skiing.  The
plaintiff testified he began skiing in 1998, and skied with his stepson Aaron;
they both had a seasons pass to Hemlock Valley, which allowed them access to
other ski hills as well.  He has not skied since the accident.

[61]        
According to Mr. Madill, every day is different.  There is no such
thing as a typical day.  He is on a number of medications for pain, for
depression, and anti-inflammatories.  He says headaches are the worst part of
his life since the accident.  His vision and balance are affected and he never
knows when he might fall down.  He did not have those problems before the
accident, with the exception of sinus headaches, which he says are totally
different from the headaches he now gets.  He would deal with any headaches he
got before the accident by taking Tylenol 3.  Those headaches would not
interfere with his work or recreational activities.  That is not the case now.

[62]        
His sinus headaches before the accident were over and under the eye, and
treated well with painkillers, Tylenol 3, and antibiotics for the infection. 
These headaches were manageable and he testified that you could carry on with
them.  After the accident, his headaches are much worse.  They are on the right
side of his head, the top of his head from back to front.  “They blind you”. 
He said they are incapacitating; he has quit going to the hospital when they
become too bad, but instead goes to a room that is dark and quiet.  They can
last 12 hours and sometimes weeks.

[63]        
Before the accident, Ron Madill, as operations manager for Super H
Holdings, was responsible for all the in and out of yard work, all the
dangerous cargo, and numerous duties which he related in quick succession.  A
lot of his duties were administrative; he worked with the computer a great deal
and was the person who represented Super H Holdings in any and all legal
matters including court.  He operated at that level for Peter Howard and his
company for four years.

[64]        
His activities outside of work were many.  He was a director of the
Harley Davidson Owners Association, an active member with Variety Club, coached
his son’s softball team, loved parachuting and was active with his family.  He
has had no contact with his two children from his previous marriage since the
motor vehicle accident and admitted that it has been a struggle dealing with
his stepson, Aaron since the accident.  He no longer does baseball, golf,
piloting a plane and skydiving.  Before, in addition to his Harley, he had
several dirt bikes, went hunting, fishing and camping.  He said that every
weekend he and his wife tried to get away with the kids.  They rode their
motorcycles.  Because Aaron has Chrohn’s disease, they did a lot of work for
Variety Club, because Variety Club did a lot for them.  Before the accident, he
said his sinus problems were the biggest health problems he had, and those
troubles dated from the time he was a kid, when he was hit in the nose.

[65]        
After the accident, Ronald Madill testified he could not do what he had
done before.  After a couple of hours at work, “I was done.”  He would sit in
the office with the lights out.  He said he cannot keep up at all.  His legs
will give out for no reason.  He considers his balance issues severe now.  He
falls down frequently with no warning.  His hand-eye coordination is not what
it used to be.  He drops things, even sometimes when he is eating food with a
fork.  He said he could not pitch a softball to save his life now.

[66]        
These episodes are intermittent.  The plaintiff does not know when they
are coming.  He described it as if he has a short circuit.  He has never returned
to full time work.  He confirmed that his wife did a lot of his work for him
after the accident.  When he was at Super H Holdings, he testified he fell down
stairs a couple of times; he passed out on the shop floor once and also fell
off a forklift.  With his Class 1 operator’s licence, he could operate anything;
he will not be able to renew that licence.  After the accident, he tried to
operate equipment from time to time.  On one occasion he ran into a hydro pole
and took out the power.  On a good day, Mr. Madill says he can do things,
but he is concerned about the risk.  He has tried a number of drug trials,
physiotherapists, as well as other therapists.  He had hoped the hyperbaric chamber
would assist, but was not able to afford that treatment on his own.

[67]        
Spruce Hollow moves very heavy equipment, large buildings, and is a very
specialized trade.  They call on him and he does what he can.  He testified he
has had some driving, some local pickup and delivery; he has also driven pilot
cars and says he is called out when there is an absolute crunch.  If he is not
up to it, he will say no.

[68]        
His longest trip since the accident has been to Calgary, but any trips
are always with other people.  “If I have an episode, someone has to be there.”
After the accident, he could not ride a street bike; his wife stopped him.  He
did not feel comfortable riding.

[69]        
Mr. Madill has had weight problems since his accident.  His weight
is such that he has described himself as obese.  His weight is preventing him
from scuba diving now.  He believes that his lack of activity and the effect of
some of the medication that he has been taking since the accident have
contributed to his weight gain.  He now weighs 285 pounds.  Before the accident
he weighed 210.

[70]        
The plaintiff expressed deep resentment at the many days of surveillance
that have occurred since the accident, around his home, his employment, and
when he was teaching students scuba diving.  “They follow me all the time.  They
videotape me all the time.”  According to the evidence, surveillance certainly
was occurring at different times over the years since the accident.  The full extent,
number of days, number of hours, has not been disclosed by the defence.  Mr. Madill
mentioned a number of times and places where surveillance obviously occurred. 
Some surveillance tapes were shown in court.

[71]        
Evidence given by three experienced private investigators hired by ICBC
disclosed surveillance on Mr. Madill on the following dates:  in 2005, May 26,
August 8, 10, 13 and September 10 and 13; in 2006, April 24, May 9, 10, 11; in
2010, April 17 and 18.  Other dates were not shown.

[72]        
The surveillance was generally for long hours, all videotaped.  It began
at times from early morning at the plaintiff’s home, and followed him driving
on streets and highways; it showed the plaintiff at a nursery looking over
plants with his wife; at work in a truck yard, moving vehicles, walking around,
washing a truck.  In May 2006, the videos over three days followed his
preparations and driving to haul the airplane tail from the airport to the U.S.
border.

[73]        
The 2010 video showed Mr. Madill on his trike with three others on
motorcycles, going to the Harley Davidson shop.  That video was more beneficial
to the plaintiff’s case than the defendants’.

[74]        
Much of the videotaping occurred while both the plaintiff and the
private investigator were moving on streets and highways, driving at the speed
of other traffic.  The investigators testified they drove with one hand on the
wheel and the other hand operating the video camera, up at the side of their
head, to allow them to view through the camera what they were taping.  That
continues to be their practice today, according to at least one of the
investigators, which was interesting, considering from whom they receive their
instructions, a corporation dedicated to road safety.

[75]        
I found the tapes did little to advance the case of the defendants.

[76]        
In commenting on stress, Mr. Madill said he now does not cope with
it well, that he makes irrational decisions and gets irritable.  He is trying
meditation and referred to “big boy time out”, and medication and diving as
means of trying to cope with the stress that he now feels.

[77]        
As far as work is concerned, Mr. Madill estimates he works sometimes 10
or 12 hours a week.  “I have good times, I can work.  Bad times, I can’t.”  With
the office in the house, he testified he can leave, go to another room and come
back.  He does not feel his condition is getting better.

[78]        
In cross-examination, in describing his memory problems, he said it can
be short or long term.  He knows that something is there, but he cannot
remember it.  Then in a day or two, he will.  This has all been since the
accident.  It seems to be stress related at times.  He will blank out.  Then
later, the memory will return.  He was not describing total amnesia.

[79]        
The plaintiff had another head injury in 2006 when he was working under
a truck in the yard, went to move upwards and took a blow to the head.  He went
to see Dr. Harder after this.

[80]        
In describing his job before the accident, he said there was always a
lot of stress at work, that it was a high stress job.  He denied that other
medical problems he had before the accident, such as his sinus and migraine
headaches and his low testosterone problems, interfered with his work or his
life.  It is the bigger problems now that concern him, his balance, his vision,
and his headaches.  And he is very aware that his relationship with his wife
has deteriorated since the accident.

[81]        
Mr. Tim Winter, a consultant occupational therapist testified.  He had
prepared a report of the functional capacity evaluation of the plaintiff.  Mr. Winter
saw the plaintiff on August 7, 2008 for about eight hours and then checked his
status over the telephone on August 29, 2008.

[82]        
Mr. Winter’s report was based on his testing of the plaintiff, and on what
Mr. Madill told him by way of history.  In his report, Mr. Winter was of
the opinion that Mr. Madill is capable of gainful employment, but felt
there were some functional problems.  He did his assessment during eight hours
of activity on the date he saw Mr. Madill.  He found that Mr. Madill
met the strength capacities, reaching and material handling, sitting and
standing taller as is required of his current and pre-injury work positions,
also his scuba diving.

[83]        
Mr. Winter acknowledged he was not an expert in equilibrium disorders,
and would defer to a doctor in this area.  He felt that balance may be an issue
for Mr. Madill, but agreed he was not able to diagnosis any cognitive
disorders.  That was not within his qualifications.  His testing was to try and
determine what barriers there might be for Mr. Madill moving forward, to
gainful employment.  He concluded that for the work of an operations manager,
his capacity and tolerances did not match the job.  During the lift capacity
evaluation tests, with regard to strength etc., Mr. Winter said that
Mr. Madill showed a high effort in the testing, that he tested well for
high effort and competitiveness.  He found Mr. Madill has the capacity to
work and can work longer, given ideal conditions.  The plaintiff had reported
headaches to Mr. Winter throughout the day.

[84]        
Joseph McGee testified.  He has known Mr. and Mrs. Madill since the
spring of 1996 when they moved next door.  They developed a quick friendship
and he found the plaintiff to be a good person.  They did a lot of outdoor
activities together.  Even though Mr. McGee later moved from the neighbourhood,
the friendship has remained.  They were usually in contact every weekend for
social and outdoor activities.  He and his wife and the Madills would go on vacations
before the accident and for long weekends.

[85]        
He testified that they still have a friendship, but it is not as good.  The
plaintiff “is not the same person as he used to be.”  He described a
temperament that used to be easygoing, but now Mr. Madill snaps at someone
for no reason, he is argumentative, and he gets angry very quickly.  “Definitely
not like that before, not the same person as before.”  Mr. McGee says he now
deals with his friend point blank.  That he tells him if there is a problem,
that he, Mr. McGee, will get up and walk away, and he has done so on occasion
since the accident.

[86]        
Mr. McGee says that he would have done anything for Mr. Madill
before.  That he stays friends with him now, because of who he was before, and
because of his wife, Shannon Madill.

[87]        
They have motorcycled together.  According to Mr. McGee, in the last two
years, he might have motorcycled with the plaintiff a dozen times, and on one
occasion this year, they went to Kelowna in July for the weekend.  On the trips
before, it would usually be one stop, not three as they now have to make to
accommodate Mr. Madill.

[88]        
Since the accident, Mr. McGee has been on holidays four times with the
Madills, to Mexico, Las Vegas, and Kelowna.

[89]        
Leonard Marriott, a scuba diving instructor, gave evidence on teaching
scuba diving to Mr. Madill.  He testified that he taught him privately,
and was therefore more lenient in breaking up the lessons for Mr. Madill.  He
said it was whenever Mr. Madill had the time, because of business, and
when he was feeling well, and so forth.  Mr. Marriott specializes in technical
diving.  He testified that times would be set up with Mr. Madill for
either a lecture or a dive, and at times, the plaintiff would tell him that he
was not up to it today, that he was “not feeling too good.”  Mr. Madill
obtained his Diving Master rating on February 11, 2006 and qualified as a
master scuba diver/trainer on June 27, 2007.

The Medical Experts

[90]        
Four specialists testified; Dr. Brian Hunt, a neurosurgeon, Dr. Anthony
Constantino, a neurologist, Dr. Arthur Harder, the family doctor for
Mr. Madill, and Dr. Bernard Tessler, a neurologist, whose testimony had
been videotaped before the trial.

[91]        
Dr. Harder submitted two reports, March 30, 2005 and August 28, 2008.  Some
of his clinical notes were also before the court.  His clinical notes were a useful
chronology of the number of visits and the various medical complaints of the
plaintiff both before and after the accident.

[92]        
In the 2005 report, Dr. Harder summarized that:

Ron was involved in a very severe MVA in June of last year
which caused him concussion syndrome, traumatic loss of vision in his right
eye, a right arm nerve injury causing temporary paralysis, a lumbar spine nerve
injury causing right leg pain and weakness, as well as a fairly large contusion
over his abdomen.  He also has clear evidence of post-concussion syndrome with
headaches and memory problems.  He had a severe cervical strain which on the
background of cervical osteoarthritis seems to be causing him prolong
disability.

His abdominal injury and arm
injury seem to have healed 100%.  His lumbar back pain is resolving somewhat
slowly.  He is still having a good deal of difficulty with his cervical strain
and underlying osteoarthritis, as well as the post-concussion syndrome with
memory problems, emotional instability and lack of energy.  He also has
headaches from this.  I am unsure how long Ron will still be unfit for work, it
is likely that it will still be at least two or three months.  He may yet require
some return to work training program or work hardening program prior to being
able to actually return to his job.  I do envisage that in the next six months,
he should be able to return to work with only minimal residual symptoms.

[93]        
It was apparent from Dr. Harder’s evidence that he had the impression
that the accident was indeed horrific, as he was aware that Mr. Madill had to
be cut out of the car by the Jaws of Life.  Dr. Harder was unaware that the
impact itself did not cause that much damage to the two vehicles involved.

[94]        
In the August 2008 report of Dr. Harder, he described the visit by
Mr. Madill to his office on October 3, 2006 where the plaintiff described
the episode where he banged his head while sitting up underneath a large tank
that he was transporting and had knocked himself unconscious for a few seconds.
That had worsened his headaches over the next few weeks.  By March 2008, Dr. Harder
described the plaintiff as being increasingly depressed and having pain around
the right side of his jaw and head.  He also described symptoms of decreased
memory, unstable mood, fatigue, and difficulty concentrating and sleeping.  It
was Dr. Harder’s belief that Ronald Madill had suffered permanent brain damage
from the accident.

[95]        
In testifying, Dr. Harder referred to Dr. Constantino’s report.  He
concurred with a conclusion of post-concussion syndrome, as Mr. Madill was
suffering from many of the list of symptoms of such a syndrome, including
headaches, loss of cognitive functions, temperament and personality changes and
memory loss.  What Dr. Constantino had observed was consistent with what Dr. Harder
had observed of the plaintiff.  In cross-examination, Dr. Harder confirmed that
the first time a memory loss complaint was made by the plaintiff, as noted in
his clinical notes, was on December 8, 2004.  That this would have been the
first report of any cognitive difficulties after the motor vehicle accident.  When
asked if he was an advocate for the plaintiff, Dr. Harder confirmed that he was
an advocate for a patient when looking after him.  That that is the way it
works.  He confirmed also that he would defer on his opinions on the
plaintiff’s headaches to Dr. Constantino.

[96]        
Dr. Constantino saw the plaintiff on January 24, 2006.  He was aware
that before the motor vehicle accident, Mr. Madill had sinus type
headaches, and these were associated with noise and light sensitivity, but no
nausea or vomiting.  He was aware the plaintiff had previously had facial
surgery and correction of the nasal problem for those types of headaches.  After
the accident, the headaches had changed.  Dr. Constantino found that Mr. Madill
had no complaints previously relating to cognitive dysfunction, nor did he have
trouble multitasking or carrying on a full time job as the general manager of a
trucking company.  However, Mr. Madill reported to Dr. Constantino
poor short term memory, and that he became easily frustrated and irritable; to
some extent, the plaintiff related this to the headaches.

[97]        
The plaintiff advised Dr. Constantino that he had to sell his motorcycle
because of two close calls where he tended to lose his balance, and that he was
no longer skiing because of balance problems.  But that scuba diving improved
the headaches.  Mr. Madill reported that since the accident, he found that
his cognitive function had improved, but was still not back to normal.  Dr. Constantino
confirmed that Mr. Madill was a non-smoker and a non-drinker.

[98]        
In the opinion of Dr. Constantino, the headaches of the plaintiff were
compatible with post-concussion type of headaches and had migraine qualities,
which is not unusual.  Dr. Constantino wondered about the possibility of a
medication induced headache phenomena complicating the problems.  He
recommended limiting some of the medication.  He also advocated a preventative
type of medication approach as well.  He suggested a trial of an anti-depressant
medication.

[99]        
In the opinion of Dr. Constantino:

The headache and cognitive
complaints are compatible with post concussion syndrome.  I understand he had a
non-contrast CT scan of the head performed on October 5, 2005 which was
negative and performed without contrast due to his contrast allergy.  A MRI
scan may be helpful in further delineating evidence of head trauma but it will
not change management.  This should continue to gradually improve over time.  I
am please at least that he is working part time and most important is going to
be to remain mentally active as well.  I understand that he is continuing to
try and take some courses and I would encourage this.

[100]     The
plaintiff saw Dr. Tessler once on May 4, 2005 at the request of the defence.  Dr.
Tessler had two reports, July 6, 2005 and October 22, 2008.  There was no
second interview prior to his October 2008 report.

[101]     Dr. Tessler
found that the plaintiff was able to provide a good history, but when formal
mental status testing was done, he reported Mr. Madill made little
attempt.  He found this to be out of proportion to the manner in which he
presented his clinical history.

[102]     Although
Mr. Madill reported loss of consciousness for a few minutes at the time of
the accident and confusion for the first day or two after, Dr. Tessler noted
that there was no reported confusion by ambulance attendants or in consultation
reports.  The report of Dr. Tessler states that Mr. Madill was discharged
the same day of admission to Royal Columbian Hospital after the accident.  That
the diagnosis at that time was concussion, cervical strain and questionable
ulnar nerve injury.  In bold print, Dr. Tessler’s report stated, “The diagnosis
of concussion was based on the patient’s claim that he had lost consciousness
for a very short duration, although, this is in contradiction to the report of
the ambulance crew report.”  In reviewing Dr. Harder’s letter of March 30,
2005, Dr. Tessler noted that Dr. Harder indicated Mr. Madill had
post-concussion syndrome with headaches and memory problems, but Dr. Tessler
opined that documentation of the memory problems occurred remote from the time
of the accident.

[103]     The
opinion of Dr. Tessler was that the concussive injury “would be deemed very
mild in degree.  The diagnosis is based on the patient’s claim that he lost
consciousness for about a minute, although, there is no report of this in the
ambulance crew records that indicate there was no loss of consciousness and
that he was awake and alert.”

[104]     On the
mini mental status testing, Dr. Tessler found that Mr. Madill demonstrated
difficulty with recall registration of objects and attention which one would
expect from a severe injury, and not from the minor injury that he sustained.  He
also found that the results were incompatible with the manner in which
Mr. Madill was able to present his history and conduct himself during the
interview.

[105]     Dr. Tessler
concluded, “He may have sustained a mild concussion but most likely a transient
reversible physiological injury.  There may be some psychosocial factors that
are contributing to his present symptoms.  His cognitive disability is out of
proportion to the degree of injury.”

[106]     In October
2008, after reviewing other records, including the reports of Dr. Harder, Dr. Constantino
and Dr. Lee, Dr. Tessler was of the opinion that there was no indication that
Mr. Madill sustained any structural brain injury.  His opinion of 2005
remained at trial.  He expressed a suspicion that there was some magnification by
the plaintiff of his cognitive complaints.  He also expressed a concern about
the possibility of addiction as Mr. Madill was on Percocet, a narcotic,
for a period of time.

[107]     In his
testimony, Dr. Tessler testified that he accepted what Mr. Madill had
said, and that he would agree “that he’s had a very mild concussion.  … we
don’t usually use the term mild traumatic brain injury in clinical practice; we
use the term concussion.”

[108]     Mr. Madill
saw Dr. Brian Hunt on October 26, 2009 at the request of counsel for the
plaintiff.  The reports of the other doctors were provided.  Dr. Hunt’s report
was extensive, comprehensive and impressive.  As was the testimony of Dr. Hunt.

[109]    
Dr. Hunt’s opinions, stated in his letter of November 8, 2009, were as
follows:

40-1     It is
this writer’s opinion that Mr. Ronald Madill suffered a cerebral concussion
or a mild traumatic brain injury at the time that he was involved in the motor
vehicle accident of June 28, 2004.

40-2     It is
this writer’s opinion that Mr. Madill suffered muscle and ligamentous injuries
to his spine and in particular, the cervical spine.  The tissues that will have
been injured include the paravertebral muscles and ligaments that attach to the
individual vertebrae at multiple levels as well as the capsular fibers of the
facet joints at multiple levels and the annular fibers of intervertebral discs
at multiple levels.

40-3     It is
this writer’s opinion that Mr. Ronald Madill had a previous ulnar nerve injury
and that he was more vulnerable to suffering injuries to the ulnar nerve as it
was encased in scar tissue and had not been transposed with the previous
surgery performed at MSA Hospital on October 29, 2002.

40-4     It is
this writer’s opinion, based on history from Mr. Ronald Madill and review of
the clinical records, that there were direct soft tissue contusions to the
right shoulder and abdominal wall as well as the right hip region at the time
of the motor vehicle accident of June 28, 2004.

40-5     It is
this writer’s opinion that Mr. Madill should be carefully assessed by a
clinical neuropsychologist and that in-depth mental status testing be performed
in order to determine cognitive difficulties experienced by Mr. Ronald Madill
as reported to this writer on October 26, 2009.  It needs to be emphasized that
the testing performed by Dr. Tessler and Dr. Constantino is very superficial
and according to Dr. Tessler, there were obvious difficulties in trying to
assess Mr. Madill’s mental status problems.

40-6     It is
this writer’s opinion that Mr. Ronald Madill be seen by a headache specialist
such as Dr. Gordon Robinson (neurologist) for a further opinion as to the
origin of the headaches requiring ongoing use of narcotics.

40-7     It is
this writer’s opinion that in view of Mr. Ronald Madill’s numerous, previous
accidents likely involving head injuries, that Mr. Madill was more vulnerable
to suffering the adverse effects of the excessive shaking and jarring that
occurred to his head and brain at the time of the motor vehicle accident of
June 28, 2004.  It is on this basis, that it is this writer’s opinion that the
headaches could well be a form of a post-traumatic headache and not as Dr.
Tessler and Dr. Constantino have suggested, related to primarily to the ongoing
use of the narcotics.

40-8     It is
this writer’s opinion that it will be important to obtain all the previous
medical records prior to the motor vehicle accident, so that it can be
determined as to exactly why Mr. Madill was requiring regular Tylenol #3
medication before the motor vehicle accident of June 28, 2004.

40-9     It is
this writer’s opinion that repeat cervical spine x-rays should be done both in
neutral as well as full flexion and full extension views to determine if there
is abnormal posture and/or any degree of instability following the soft tissue
injuries to the supporting structures of the cervical spine at the time of the
motor vehicle accident of June 28, 2004.  In addition, a MRI Scan of the
cervical spine is required to determine the possibility of injuries to the
intervertebral discs that might be demonstrated through MRI Scanning.

[Emphasis
added.]

[110]     The MRI
referred to was done, and Dr. Hunt testified that it confirmed his opinion.

[111]     When asked
in cross-examination if he was not an advocate, Dr. Hunt was rather emphatic.  He
testified he has always tried not to be an advocate but there are times when
doctors are tempted to counter unfair opinions.  He said he approaches a case
without a bias, and an open mind.  He reviews other material after he has seen
the patient, because he likes to see if anyone has offered an opinion with
which he might disagree.  He does not pay much attention to pictures of damage to
automobiles.  He believes that one has to be very careful when looking at such
pictures.

[112]     Dr. Hunt
said he tries to concentrate on the individual.  He finds it helpful to see the
notes of the family doctor, which deal with initial complaints, as do the notes
of the ER doctor and responders.  But he notes that those doctors are very
busy, and things get overlooked.  The same is true with an ambulance crew. 
Dr. Hunt stated there may be no loss of consciousness, but there may be a
loss of awareness.  An ambulance crew may give a 15 score for the Glasgow
scale, indicating normal, but that could be misleading.  He also noted that
someone may be described as being in good health pre-accident, but that would
not mean he would not have issues.

[113]     Dr. Hunt
disagreed that the best evidence of whether the plaintiff was an amnesiac, were
notes at the hospital of “no LOC” and “zero amnesia”.  It was the evidence of
Dr. Hunt that no matter how many times you see those terms, that a patient
is alert and wide awake, that sometimes in looking at crew reports, the
necessary information is not there.  A person does not need to strike his head
for a concussion to have occurred.  It need only have been a shaking.

[114]     It is
important to explain what a mild traumatic brain injury is, he stressed;
Dr. Hunt referred to the many concussions in sports.  He said it is
important to look at what happened following the accident, what symptoms have
occurred and are continuing to occur.  Patients often deny a loss of
consciousness or a loss of awareness, and it may be so fleeting that they may
well be unaware.  But if the head has been shaken or jarred enough, this will
equal a concussion, which is the same as a mild traumatic brain injury.  There
may be no indication of bruises on the head, but it still could be a
concussion.  Dr. Hunt noted that something prevented the plaintiff from exiting
the vehicle, so the Jaws of Life was used.

[115]     Dr. Hunt
noted that Dr. Tessler agreed that the plaintiff had a cerebral concussion
in his initial report, but it was the opinion of Dr. Hunt that
Dr. Tessler was not up to date on mild traumatic brain injuries.

[116]     In his
evidence, Dr. Hunt listed some of the symptoms that are compatible with a
concussion having occurred:  headaches, altered vision, balance difficulties,
general fatigue, anxiety, memory disturbance, inability to manage stress.  “A
concussion is a mild traumatic brain injury.  We no longer grade concussions.”

[117]     I found
Dr. Hunt to be an excellent witness.  He was cautious, detailed, thoughtful,
low key, thorough and utterly professional.  In cross-examination, he gave a
minor clinic on mild traumatic brain injuries.  He was subjected to a rigorous,
lengthy and skilful cross-examination, which only served to expand upon and
magnify his report and opinions.

[118]     He commented
on the history of Mr. Madill prior to the accident, pointing to a number
of things that may have caused excessive jarring or shaking of the head, even
if there had been no symptoms of concussion.  He believes that the first
responders’ observations are not always accurate as to what actually happened.  He
said he himself may not have identified problems of concussion at the scene of
the accident.  Ninety percent of people with concussions have headaches.  They
have difficulty describing the headaches, and they are not the same as migraine
or tension headaches.

[119]     Dr. Hunt
was further critical of Dr. Tessler in opining that Dr. Tessler had
diluted his opinion, and that he had concerns with the report of
Dr. Tessler.  He felt that Dr. Tessler was still “in the dark ages”
with regard to mild traumatic brain injuries, that he has not had the advantages
that Dr. Hunt has had in working with sports brain injuries.  “Concussion
is cumulative.”

[120]     I found
the report and the evidence of Dr. Hunt persuasive.  He came across as an
advocate of a better understanding of concussions or mild traumatic brain
injuries, not as an advocate on behalf of the plaintiff.

[121]     Dr. Andrew
Lee, a neurosurgeon, saw Mr. Madill on June 28, 2004, saw him again in
July of that year and for the third and last time on October 8, 2004.  He
testified briefly.  There was no report from Dr. Lee.

[122]     The
defence called two witnesses at trial, Eric Visser, a former friend who had a
dispute with Mr. Madill in the spring of 2005 and has not been friends
with the plaintiff since that time.  And Kevin Unger, a freight broker, who knew
Mr. Madill before the accident through work.  He testified that six or
eight months after the motor vehicle accident, he and Mr. Madill had “a
very intense moment”, and he has had no dealings with the plaintiff since that
time.  “I don’t want nothing to do with Ron Madill.”

[123]     Both these
witnesses said they noticed no difference at all in Mr. Madill before the
accident and after the accident.  It is difficult to know how much opportunity they
had to observe Mr. Madill, particularly Mr. Unger, or how much, if
any, reliance to put on their evidence, given their obvious animus toward
Mr. Madill.

[124]     Mr. and
Mrs. Howard testified.  In Peter Howard’s statement to ICBC shortly after
the accident, he wrote that he was on the inside lane looking to merge into the
curb lane to get through the construction.  When he saw the Sithivong Pathfinder
coming through the gap in the stopped lane, “I swerved into the oncoming lanes
to try and avoid being T-boned – I accelerated at the same time so as to
try to avoid impact for both passengers…”.  He saw the Sithivong vehicle
accelerate right into them.  He and his two passengers all exclaimed out loud
that she should stop, but “by that time she had already drilled us in the rear
passenger door…”.  He went on to say that they were all shaken up, “But Mr. Madill
suffered a neck injury…”.

[125]     Asked in
cross-examination about hitting the brakes at the time of the accident, Mr.
Howard said “If I would have hit the brakes, my wife would have been killed.” 
Mr. Howard confirmed that he could not open the door on Mr. Madill’s
side of the Lincoln, that he tried to open it, it would not open, nor could the
fire department get it open.

[126]     In spite
of his personal pain at losing his treasured 1992 Lincoln Continental, after
the Jaws of Life had finished with it, Mr. Howard had nothing but good
things to say about Mr. Madill’s work with Super H.  Mr. Madill had
been working for Mr. Howard, and in early 2001, the dispatcher left the
office and didn’t show up for work.  The plaintiff offered to help, and from
that point he took over all the office and accident claims.  He also became
involved in a very serious claim involving damage to an MRI machine that was
being transported by Super H in Alberta.

[127]     According
to Mr. Howard, Mr. Madill showed a real aptitude in dealing with accidents,
claims, accounts receivable, drivers, motor carrier issues and courts.  Mr. Howard
referred to Mr. Madill as his in-house paralegal and said that
Mr. Madill had many titles including fleet manager, general manager.  There
was never any issue with regard to titles.  In general, Ron Madill was very
well versed.  Mr. Howard considered him as an independent contractor with Super
H, although Mr. and Mrs. Madill said they were both employees.  Before the
accident, Mr. Howard was unaware of any medical issues concerning the
plaintiff.

[128]     Following
the accident, it is Mr. Howard’s recall that the plaintiff missed some
time off work, possibly several weeks.  He then began with partial days,
working from home at times.  That presented no problem for Mr. Howard.  He
said Mr. Madill then came back full time and there appeared to be no
problems.  Mr. Madill’s duties were open and carte blanche, and according
to Mr. Howard, the plaintiff was his right hand man.  He was aware that
after the accident, Mr. Madill was using a cane, and he had some balance
issues, and he was also aware of some headaches.  He also knew that there had
been some headaches before the accident.  It was Mr. Howard’s testimony
that he never understood why the plaintiff used a cane.  He saw the plaintiff
using the cane for several months around the office.

[129]     There was
never any loss of pay because of the accident.  And at the request of the
Madills, the cheque for the income for both Mr. and Mrs. Madill went
in the name of Shannon Madill.

[130]     According
to Mr. Howard, he never saw much of the plaintiff, because the plaintiff
was in his office on the other side of the building, and Mr. Howard was on
his side dealing with sales and dispatch concerns.  He testified he noticed no
change in mood or personality in the plaintiff, and when asked if
Mr. Madill was short tempered, he said he was always like that.  They
would hear him barking on the telephone, and Mr. Howard said that was one
of Mr. Madill’s persuasive ways to get results.  He was volatile when he needed
to be.

[131]     Mr. Howard
saw no change in Mr. Madill’s weight or his activities.

[132]     When asked
about the plaintiff’s motorcycle, Mr. Howard said that he understood that
the plaintiff was not allowed to drive “his beautiful Harley – it was his
pride and joy.”

[133]     Until the
parties had their falling out at the end of November 2005, Mr. Howard
said that he had implicit trust in Mr. Madill.  After the accident,
Mr. Howard cannot recall seeing the plaintiff riding his motorcycle.  He
acknowledged he knew the plaintiff liked camping and was a pilot, but had no
idea what his activities were after the accident, other than boating, when they
would meet in their respective boats at the top of Indian Arm, where
Mr. Madill would do some diving.

[134]     Jean
Howard has been married to her husband for 38 years.  They have worked together
in their businesses over the years.  She knows Mr. Madill from working
closely with him in their business.  It was her recollection that
Mr. Madill was back at the office one or two weeks after the accident.  She
saw him with a cane for a couple of months after the accident.  It was her
evidence that the plaintiff was the same as far as his mood and personality
were concerned both before and after the accident.  That he could be very nice,
and he could quickly flare into a temper.  She noticed no difference in him.  While
she did not work in the office around the time of the accident, she was there
frequently, wanting to keep up with things.

[135]     The
plaintiff was always on his computer at the office, and his office was always
dark, according to Mrs. Howard.  Both before and after the accident, she could
hear him on the phone, sometimes angry with the drivers, when he would yell and
scream at them.

The Position of the Plaintiff

[136]     The
plaintiff is completely innocent of any negligence in this accident, which
occurred over six years ago.  He was injured and disabled to a degree, and that
continues and will continue into the future.  Although the accident was apparently
minor in nature, it had serious consequences for Mr. Madill.  He has
suffered a mild traumatic brain injury, and injuries from the accident have had
serious effects on him personally, emotionally, work wise, socially, and with
his marriage.  He is no longer able to function in a high stress environment
where he was responsible for much, prior to the accident.  He was a problem
solver and a trouble shooter, a person of high energy, able to multitask and
work long hours.  He can no longer work full time, and certainly not at the
same capacity.

[137]     It is the
position of the plaintiff that the evidence of the Howards was argumentative
and selective in their memory of Mr. Madill after the accident.  While the
events of November 30, 2005 constituted a big mistake on the part of the
plaintiff, when the Howards went from trusting him to accusing him of trying to
steal their company, their animus now results in them denying that there was
any change in his personality or work abilities after the accident; in effect,
that he suffered little or no injuries.

[138]     As for the
surveillance evidence, it shows Mr. Madill able to function physically,
driving, but it does not give the picture of his life and symptoms on a 24/7
basis.  Mrs. Madill is the one who for the past six years has seen her
husband day in and day out.  The evidence with regard to the motorcycle is
pivotal.

[139]     The video
of the trip on the trike to Abbotsford and Chilliwack shows Mr. Howard
standing around at Harrison, then they went to Mission, and then home.  This
does not compare to the long trips he and his wife took before the accident.  The
video on May 10 and 11 showed Mr. Madill climbing a ladder two times.  This
does not negate the evidence that he has balance problems.  The activities of
the plaintiff have been severely restricted, and there is no sign that things
will improve for him.

[140]     The
plaintiff seeks non-pecuniary damages in the range of $200,000 to $245,000 and
past wage loss of 59 months times $3,500 for a total of $206,500.  This is
based on Mr. and Mrs. Madill’s evidence that from January 6, 2006,
had he been earning $5,000 a month as before, this loss would not have
occurred.  It is the plaintiff’s submission that he has the ability to earn
$1,500 a month as of January 2006.

[141]     On the
issue of future income, Mr. Madill is 43, and if he were to work to age
65, earning only $1,500 net income per month, his future income loss would be
$924,000.  That means a total wage loss of $1,131,500 for past and future
income loss.

[142]     A number
of cases were cited by counsel for the plaintiff including the Burdett
case, Lines v. Gordon, Adamson v. Charity and Athey v. Leonati.

The Position of the Defendants, Linda Sithivong, Douang Sithivong and
Somchit Sithivong

[143]     The
defendant, Linda Sithivong, acknowledges some negligence on her part, but contends
Peter Howard should be found to be contributorily negligent.  There was an
obvious gap between the vehicles that were stopped to the right of
Mr. Howard, and he should have been alerted by that gap, and moving with
greater caution.  The Sithivongs submit that Mr. Howard was negligent and
should have anticipated or could reasonably have been expected to anticipate
and see that Ms. Sithivong was moving through the gap with the intention
of moving into the southbound lane.  He failed to exercise due caution to avoid
the collision and should be found at least 25% responsible for the accident.

[144]     On the
issue of non-pecuniary damages, these defendants acknowledge that the plaintiff
may have suffered some soft tissue injuries, but that his complaints are purely
subjective, and must be examined carefully.  As must his credibility.  These
defendants submit that the plaintiff is not currently suffering from any
symptoms and/or conditions attributable to the motor vehicle accident.  That
the plaintiff is exaggerating his ongoing symptoms, and has attributed
pre-existing difficulties to the accident.  That his post-accident difficulties
are not causally linked to the motor vehicle accident.

[145]     The amount
of medications taken by the plaintiff before the accident is critical,
according to the defendants.  His Tylenol 3 consumption from August 26, 2001 to
just prior to the accident was heavy.  The plaintiff displayed selective memory
when asked about his prior medical problems and medications.  According to the
defence, it is not clear that the pre-accident headaches were in fact sinus
headaches.  Other causes cannot be ruled out.

[146]     Further,
the plaintiff was on an anti-depressant medication before the accident.  Also
medication for acid reflux and ulcers and medication for his testosterone
level.

[147]     Counsel
for the Sithivongs questions the two medical reports of Dr. Harder and the
conclusions reached in his reports.

[148]     While
acknowledging that the plaintiff may have suffered an injury that impacted on his
vision for a period of time, and that he may indeed have suffered a concussion,
the defendants contend that the plaintiff substantially recovered from all of
these injuries within a year of the accident.

[149]     Pointing
to the minimal amount of damage to both vehicles, and the lack of injury to any
of the other persons involved in the accident, these defendants question the
post-accident history given by the plaintiff and its credibility.  There is no
medical evidence linking the plaintiff’s alleged balance difficulties to the
motor vehicle accident, according to the defence.  Neither Dr. Harder nor
Dr. Tessler mentioned them.  The plaintiff has failed to prove that any
balance difficulties were caused or contributed to by the motor vehicle
accident.  The plaintiff has been seen climbing a ladder on surveillance, and
this is inconsistent with someone with a balance problem.

[150]     Counsel
for the Sithivongs argues that the plaintiff’s headaches are not different
post-accident than they were pre-accident.  He points to Dr. Harder’s
clinical notes, both pre and post-accident.  The plaintiff’s post-accident
history of headaches as reported to Dr. Harder is similar in nature to
those that he was reporting before the accident.  The defence contends that the
plaintiff has greatly exaggerated the extent of his memory problems and has
exhibited a very selective memory.

[151]     With
regard to work, the defendants’ position is that Mr. Madill is functioning
at a much higher level than he claims.  For example, he has been actively
involved in litigation with Peter Howard since late 2005.  His affidavits in
those legal proceedings are full of information, not consistent with memory
problems.  Also, the plaintiff appears as a representative of Spruce Hollow in
various litigation matters.

[152]     Counsel
for the Sithivongs points out that Mr. Madill has never been tested by a
neuro-psychologist, although Dr. Hunt made that recommendation in his
report of November 8, 2009.

[153]     The
plaintiff is a skilled scuba diver, able to instruct.  This is not consistent
with somebody with cognitive difficulties.  The defence rejects the evidence of
Mr. and Mrs. Madill with regard to any change of personality of
Mr. Madill.  Instead, they point to the evidence of Mr. Visser, Mr.
and Mrs. Howard, Mr. Unger and Mr. Newman, of Langley Diving,
who was unable to give any evidence that the plaintiff was short tempered,
moody or irritable.

[154]     The video
surveillance of the plaintiff shows “no smoking gun” in the words of counsel
for the Sithivongs.  However, the video surveillance taken as a whole should be
viewed as informative and having probative value.  They show the plaintiff
going about his business and his life.  At times, he is laughing and having a
good time.  The defence says this must be contrasted to Mr. Madill’s
evidence that he and his wife no longer communicate.  In particular, counsel
points to the surveillance of May 10 and 11 where Mr. Madill put in two
long days, as he prepared to transport the tail pipe from the airport to
Washington State.

[155]     On the
subject of expert medical opinions, the defence suggests the reports of
Dr. Harder should be given little weight, that he is clearly an advocate
for the plaintiff.  Dr. Constantino confirmed that Mr. Madill had
headaches before the accident.  The defence relies on the evidence and report
of Dr. Tessler who felt there were some psycho-social factors contributing
to the symptoms of the plaintiff, and that the plaintiff’s “cognitive
disability is out of proportion to the degree of injury.”  Also, Dr. Tessler
indicated that the plaintiff’s use of Percocet raised a diagnosis of medication
over-use headaches; that Tylenol 3 is also known to cause headaches.

[156]     As for
Dr. Hunt’s report and recommendations, counsel suggests that
Dr. Hunt’s recommendations were not followed up, and that Dr. Hunt
specifically stated he was unable to offer any opinion on prognosis until those
additional investigations and assessments by other specialists had been
performed.

[157]     Counsel
for the Sithivongs suggests that non-pecuniary damages should be in the range
of $26,000 to $40,000, citing Deneault v. Fleming, Wright v. Dillon
and Wiebe v. Neal.  In Wright v. Dillon, where $40,000 was
awarded, the plaintiff reported continuing flare-ups.

[158]     There was
no income loss up to November 30, 2005, at which time Mr. Madill was fired
for cause.  The defence contends that Mr. Madill’s involvement with Spruce
Hollow is substantially greater than asserted by the plaintiff and his wife.  It
is submitted that Mr. Madill’s post-accident earnings at Spruce Hollow
have been deliberately kept artificially low to enhance his claim on this
litigation.  The plaintiff has not proven any past wage loss, according to
these defendants.  They also deny that the plaintiff has or will suffer a
future wage loss or any loss of income earning capacity.

[159]     Physically,
the plaintiff has recovered, according to the defence.  He may be suffering
from headaches, but he was before the accident.  There is no medical evidence
that these headaches are disabling.  The plaintiff has failed to prove his
claim for loss of future earning capacity.  Dr. Hunt has offered no
prognosis.  Mr. Unger noted no difference in the plaintiff before or after
the accident.  The defendants deny any further claim by the plaintiff.

The Position of the Defendant, Charles Peter Howard

[160]     Ms. Griffin,
arguing on behalf of Mr. Howard, submits that the defendant, Linda
Sithivong, is liable for the accident and Mr. Howard is not.  Mr. Howard
was entitled to proceed on the assumption that other vehicles would be observing
the rules of the road.  Ms. Sithivong was not doing so.  She was issued a
violation ticket for failing to yield to a passing vehicle, which she
acknowledged.

[161]     The
defendant, Mr. Howard argues the plaintiff has not met the onus of
establishing anything other than a mild soft tissue injury to his neck and back
with possibly a very mild concussion, with no ongoing sequalae.

[162]     There is
no evidence of any past loss of earnings up to the end of the plaintiff’s
employment with Super H Holdings, and the evidence of Mr. Madill working
for Spruce Hollow Haulage does not support any loss of earning capacity or loss
of opportunity to earn income in the future.  The defence submits that the
plaintiff is capable of earning income similar to his pre-accident earnings and
has not met the necessary onus.  There is little in the way of objective
medical findings to support his claim of injury.

[163]     Counsel
for Mr. Howard submits that the plaintiff lacks credibility.  Medical
reports are based on the plaintiff’s self-reporting.  Where there is
inconsistent reporting, the court should be cautious of claims made by the
plaintiff for ongoing injuries beyond a reasonable time, given the minor nature
of this accident.  Counsel points to a number of areas in the evidence which
would cast doubt on the reliability of the plaintiff’s evidence.  While the
inconsistencies, viewed alone, might appear to be minor, counsel submits that
the plaintiff has a tendency to colour his evidence to advance his claim, and
his subjective complaints must be viewed with caution.

[164]     On the
issue of liability, I agree with counsel for Mr. Howard.  The facts in
this case do exonerate Mr. Howard of any negligence.  On the evidence, I
conclude Mr. Howard had no chance to avoid the collision.

[165]     A number
of cases were cited by both defence counsel on liability.  In the Bedwell v.
McGill decision, cited by Mr. Grady representing the Sithivongs, the
motorist was proceeding from a mall parking lot through an obvious gap into
traffic, and collided with the plaintiff’s rear passenger side door and quarter
panel.  On appeal, the finding of liability was found to be 75% against the
defendant driver and 25% against the plaintiff.  It was found the plaintiff
should have been alerted and moving with greater caution.  The plaintiff was
familiar with the area, and knew that other drivers might be exiting from the
mall’s parking lot.  Further, the plaintiff in that case was in a hurry, and
was looking ahead to the advance green light, intent on making the light.

[166]     I would
distinguish the Bedwell v. McGill case from the facts of this case.  In
my view, there should be no blame placed on Mr. Howard under the
circumstances of this case.

[167]     Non-pecuniary
damages suggested by the defendant, Mr. Howard were between $30,000 and
$45,000.  As with the other defendants, Mr. Howard felt there should be no
income loss awarded to the plaintiff for either past or future income.

Conclusions

Liability

[168]     I find the
defendants, Linda Sithivong, Douang Sithivong and Somchit Sithivong 100%
responsible in negligence for the accident that occurred June 28, 2004.  There
was no contributory negligence by the defendant, Peter Howard.

Non-Pecuniary Damages

[169]     The cases cited
by counsel for the plaintiff awarded non-pecuniary damages ranging from
$200,000 to $240,000.  However, in each of those cases, the plaintiff’s
injuries were considerably more severe than this case.  In Moskaleva,
the 49 year old plaintiff, a software designer, suffered injuries that meant
her profession was closed to her in the future.  She suffered head and brain
injuries, a mild traumatic brain injury.  Her symptoms of headaches, fatigue,
anxiety, depression, memory loss and inability to concentrate were significant.
The jury awarded $240,000 for non-pecuniary damages.  The Court of Appeal did
not disturb that amount, although considered it at the high end of damages
under the circumstances.

[170]     In the Burdett
case, a successful businessman, aged 58, suffered mild traumatic brain injury,
with the result that he had trouble organizing his thoughts, his speech was
slurred and he was unable to continue in a successful construction and
renovation business.  The experts were of the opinion that he would remain significantly
disabled, and would have worked past 65, given his work history.  His loss of
earning capacity was placed at $900,000, and the non-pecuniary damages assessed
at $200,000.

[171]     A 32
year-old plaintiff had suffered a mild traumatic brain injury in Lines v.
Gordon.  That injury was found to be permanent.  The plaintiff’s intended
career as a marine engineer was impossible, as he was unable to perform the
duties of a heavy duty mechanic as a marine engineer.  The court also found
that his enjoyment of life had been destroyed, that he had lost the degree of
control of his life that he had had before.  Non-pecuniary damages were
assessed at $225,000.

[172]     In Adamson
v. Charity, the plaintiff also suffered a mild traumatic brain injury, as
well as chronic pain and major depression.  He was 42, a self-taught
construction and renovation businessman, described by the court as a gifted
carpenter with significant artistic talent.  He had been in excellent health
and performing at a very high level before the accident.  His physical injuries
were significant and he had intense daily headaches.

[173]     Following
the accident, he found work at Home Depot where he could only work a maximum of
six to seven hours a day for a few days a week.  His injuries were much more
significant than the plaintiff in this case, and he was found to be not
physically capable as he had been prior to the accident.  He was found to be
competitively unemployable for the rest of his life.  A medical expert
testified that he was totally disabled at the present time, and the prognosis
was not optimistic for long term employment.  Non-pecuniary damages were
assessed at $200,000; damages for loss of working capacity based on $80,000 to
$100,000 a year income were assessed at $925,000.

[174]     Counsel
for the defendants, the Sithivongs, cited Deneault v. Fleming, where
$26,000 was awarded for non-pecuniary damages.  The plaintiff was 26 years of
age when the motor vehicle accident occurred.  The court found that she was a
poor historian, and had suffered poor health and emotional problems before the
accident.  While she complained of headaches since the accident, she was not
prescribed Tylenol 3 pain medication until approximately 11 months post-accident.
Her headaches were not viewed as a permanent condition.  The facts in Deneault
are not that helpful to this case before the court.

[175]     In Wright
v. Dillon, the 53 year old female plaintiff was in sales for most of her
career.  Her headaches were reported immediately after the collision, and were
consistent until the time of the trial.  She suffered flare-ups in the pain in
her shoulder and neck.  Her evidence was that she was severely restricted in
her walking activity, but the court found that her restrictions were not as
severe as she had portrayed.  The court accepted medical opinion evidence that
the plaintiff had not sustained any permanent disability, and that she would be
largely symptom free of injuries in approximately three years.  Non-pecuniary
damages of $40,000 were awarded.

[176]     In Wiebe
v. Neal, the plaintiff suffered headaches, lower back, neck and shoulder
pain injuries following the accident, together with sleep disturbances.  Following
the accident, the 45 year old mother of four children pursued her goal of
becoming a nurse, enrolled in the course and did extremely well.  She was
presented as a very determined person.  Her non-pecuniary damages were assessed
at $50,000.  It was found that her pre-existing headache disorder was aggravated
by the accident.

[177]     Those
cases were not dealing with a plaintiff with a mild traumatic brain injury, nor
with symptoms as long standing and severe as those in the present case.

[178]     First of
all, I find that Mr. Madill was a good historian, and I have already
indicated that I found both Mr. and Mrs. Madill to be credible witnesses.  In
my view, there has been a significant change, not only in the life of
Mr. Madill, but in his lifestyle; his loss of enjoyment of life is
apparent.

[179]     The
negligence of Linda Sithivong materially contributed to the injuries whose
symptoms have been set out in this judgment.  The headaches that
Mr. Madill experienced before the accident were not chronic, but episodic
and were of a different nature.  They were headaches that were treated and
managed.  They did not interfere with his work in any way, nor did they
interfere with an extremely active lifestyle.  The headaches that followed the
motor vehicle accident, I find, were of a completely different nature.  I am
satisfied that the plaintiff has suffered a mild traumatic brain injury and
that the changes to his life are as a result of injuries sustained in the motor
vehicle accident.

[180]     The
suggestion that Mr. Madill is exaggerating or making it up as far as his
injuries, loss of balance, memory problems, chronic headaches are concerned, is
not fair or appropriate, given all the evidence in this case.  This is not a
man who, at the age of 37, would willingly go from a special order Harley
Davidson motorcycle to a Harley trike.  His social and recreational activities
have been significantly curtailed because of and since the motor vehicle
accident.  He no longer brings energy and exuberance to his work, as before.

[181]      The
surveillance videos were of little or no assistance.  They did not and cannot
convey the picture of someone going through symptoms that Mr. Madill has
experienced sometimes daily, sometimes weekly.  His temperament is now
alienating those closest to him, his wife, children, close friends.  They have
testified to a change of personality.  I accept as credible that testimony.

[182]     The
plaintiff is awarded $110,000 for non-pecuniary damages.

Wage Loss Claims

Mr. Madill’s Earnings

[183]     Exhibit 18
at trial was a large binder of documents placed in evidence by counsel for the
Sithivongs under a Notice to Admit.  Some of those documents show the earnings
of Mr. Madill from 1997 to the end of October 2008.  His total income for those
years, taken from his tax returns, is as follows:

[184]     For the 12
months preceding the accident, Mr. Madill’s gross earnings were as follows:

[185]     In Exhibit
18, there was a cheque dated December 24, 2004 to “Ron or Sharon Madill” for
$1,500, “Merry Christmas”.  There was also a calculation of holiday pay for
2004 for Mr. Madill of $3,326.52.  The evidence is not clear whether those
amounts were included in the $58,068 figure of gross earnings.  In the large
number of cheques to both Mr. and Mrs. Madill from Super H Holdings up to the
time of their termination in November 2005, there were a number of cheques
payable to them for “Reimbursements”, “paid – office expenses”, “work
expenses”, and “Howards’ holidays”.  Clearly reimbursements of that nature,
which were for significant amounts, were not included in any calculation of Mr.
Madill’s pay for work performed.  But they do indicate his worth to his
employer on another plane.

[186]     Shannon
Madill wrote a letter verifying her husband’s employment, that Ron Madill had
been employed by Spruce Hollow since February 2006 as an independent
contractor, that he is the fleet/general manager for Spruce Hollow.  He does
not have set days and/or hours “due to his unstable and unpredictable and
always changing health issues (i.e.:  headaches, memory etc…)”.  She estimated
that during a good month, he would work a total of 60 hours.

[187]     In 2007,
Mr. Madill earned $3,565.04 from the Great Pacific Diving Co. Ltd.  It would
appear this was from a combination of scuba diving instruction and also
representing that company at demonstration booths set up at a retail business.

[188]     In the
last number of years, while working for both Super H Holdings and Spruce
Hollow, Mr. and Mrs. Madill appear to have been paid jointly, with one cheque,
that cheque being made out to Shannon Madill.  Then a note on each cheque
apportioned a certain amount for Mr. Madill and a certain figure for Mrs.
Madill.  Their joint income increased with Super H Holdings.  Their income has
been less with the new company, Spruce Hollow Haulage.  While working for Super
H Holdings, the greater amount was apportioned to Mr. Madill.  Since the
inception of Spruce Hollow, the greater amount has been credited to Shannon
Madill.  I accept the evidence that since the accident, Shannon Madill has
performed the greater amount of work, in support of both herself and her
husband.

[189]     For 2006,
the payments for 12 months credited to Shannon Madill totalled $51,500, and
$12,000 to Mr. Madill, from March to December 2006.  For 2007, $49,140 to
Shannon Madill and $14,400 to Mr. Madill.

[190]     I accept
the plaintiff’s evidence that Mr. Madill’s ability to perform work has been
diminished since the motor vehicle accident.  But I also believe that he has
significant value to the new company, Spruce Hollow.  He brings with him his
knowledge of the trucking industry, his experience and background in trucking
and brokerage, as well as heavy haul.  He has significant litigation knowledge
and experience in the kinds of claims involved in this industry.  Ron Madill is
obviously intelligent, and has had an excellent work ethic and capacity for
long hours and multitasking.  He not only has had his driving experience, but
also his experience in administration.  These are all assets that he brings to
the company owned by his wife and Mr. Webber.  Mr. Madill has not sought any other
employment, which is understandable under the circumstances.  He is not able to
bring the same capacity to work that he had before the accident, and that loss
is due to his injuries arising from the motor vehicle accident.  I believe he
is underpaid in his present situation in what I will call a family company.

[191]     There is
insufficient evidence before me to determine what, if any, past wage loss has
occurred that would be attributable to the motor vehicle accident.  There was
no wage loss from the date of the accident to November 30, 2005, when the
plaintiff was fired for cause.

[192]     There is
certainly past wage loss after November 30, 2005 that is attributable to Mr.
Madill being fired for cause.  At what point, and in what amount, does past
wage loss become attributable to the motor vehicle accident?  The evidence is
not sufficient for such a determination, and therefore, there will be no award
for past wage loss.

Loss of Earning Capacity

[193]     In Wright
v. Dillon, on the issue of loss of earning capacity, at paragraph 38, the
court referred to the plaintiff’s employability as “an impaired capital
asset”.  “The plaintiff’s employment search will be affected as she will be
less valuable to potential employers.”  The court then went on to cite one of
the leading cases in this area, Rosvold v. Dunlop, a decision of Huddart
J.A. in 2001.  Madam Justice Huddart reviewed the principle that a plaintiff
“is entitled to be put into the position he would have been in but for the
accident so far as money can do that.  An award for loss of earning capacity is
based on the recognition that a plaintiff’s capacity to earn income is an asset
which has been taken away.”

[194]     That is
what has occurred here.  Ronald Madill’s ability to earn, and ability to work
is no longer the same as it was before the accident, due to his injuries from
the accident.  He is less attractive and valuable to potential employers as a
result.  His injuries limit his capacity to do the same amount of work, with
the same energy, for the same hours of work that he was able to prior to the
accident.  He is no longer capable of a 60 or 70 hour work week as he was
before.

[195]     On a
balance of probabilities, I accept from all the evidence that the plaintiff cannot
work at the same level of energy and multitasking as he did before the
accident.  Mr. Madill had some medical issues before the motor vehicle
accident, but I find from the evidence that none of those issues interfered
with his work or active lifestyle in any way.  Those issues were well
documented by his family doctor, and obviously well managed.

[196]     His
medical issues following the accident involve his balance, lack of focus,
inability to concentrate, and inability to remember at the time required.  His
history of memory loss since the accident is not one of complete amnesia, but
rather, he cannot remember something until hours or maybe a day or two later,
which obviously is a serious problem in the workplace.  His mild traumatic
brain injury has resulted in headaches that have virtually stopped him at times
from either work or social activities.  His change of mood, temperament and
personality have been testified to and I accept that evidence as accurate.

[197]     However,
Mr. Madill is capable of gainful employment.  In the functional capacity
evaluation that was performed by Tim Winter in August 2008, Mr. Madill
performed a number of tests over an eight hour period.  Mr. Winter’s opinion is
that Mr. Madill is capable of gainful employment, that he meets strength
capacities, reaching and material handling, sitting and standing tolerances
that would have been required in his work prior to the accident.  But Mr.
Winter noted Mr. Madill’s headache pain and fatigue during the assessment
testing, and as the testing continued, his symptoms perpetuated.

[198]     Mr. Winter
found that Mr. Madill’s description of his work demands and his present
schedule, with its built in flexibility, presented an environment in which Mr.
Madill could continue to work.  In testing, Mr. Winter found that Mr. Madill
was providing “high physical effort during the physical effort testing.”  He
was also exhibiting competitive test behaviours and there was nothing to
suggest that the plaintiff was approaching the testing with low physical
effort.  Mr. Madill was able to perform sustained work when working above and
below his waist and shoulders.  The speed in which Mr. Madill could work in
those positions met and might even exceed the industry standards when performed
over a concentrated short period of time.  But Mr. Winter noted the emergence
of pain behaviours which suggested to him an intolerance for repeated neck
extension movements, for example.

[199]     Mr. Madill
reported being more comfortable while working in a seated position.  When
tested for jobs typical of clerical workers, Mr. Winter found that Mr. Madill
exhibited behaviour that suggested to Mr. Winter there was difficulty with
concentration and attention.  During this testing Mr. Madill reported vision
problems and exacerbation of his headache pain.  He was also unable to deal
with distractions and showed an increased irritability with Mr. Winter,
together with fatigue.

[200]     On
lifting, the plaintiff was able to begin with 10 pounds and went up to 80
pounds safely.  Again in this area, Mr. Winter noted that the plaintiff
provided high levels of physical effort during that testing.  His conclusion
was that Mr. Madill’s lifting, carrying and pushing/pulling capacities indicate
he is able to perform all work tasks in the heavy strength category, with
aspects of very heavy strengths.

[201]     Mr. Madill
himself testified that he has his good days, and apparently he can work quite
well on those days.  But on those days when his symptoms are such that he
cannot work, he requires a job that offers the kind of time flexibility he has
working in the family company in which he now works.  The testing provided
valuable information over a period of eight hours.  Ultimately the court has to
make a decision on the plaintiff’s overall ability and capacity to work over a
long period of time.

[202]     In my
view, the motor vehicle accident has had a serious and lifelong effect on Mr.
Madill.  His earning capacity has been diminished.  He is now not as
competitively employable as he was before the accident.  He is employable, but
less employable than before the accident.  There are real and substantial
possibilities of loss of future income for this plaintiff.  He is able to
continue doing the kind of work in which his background and training are valuable,
and in a work setting where he has the kind of flexibility, given his symptoms,
that working in his wife’s company presently allows.  His value remains, given
his background, experience and expertise, and his ability to do physical work
from time to time.  But are these qualities that he can sell in the marketplace
on his own?

[203]     After the
accident, the plaintiff’s wife was doing much of his work, and continues to do
so.  They continue to work as a team, as they were working before the
accident.  Mr. Madill is probably also able to earn modest income from
instruction in scuba diving.

[204]     Mr. and
Mrs. Madill were doing a form of income sharing or fee splitting before the
accident, with the plaintiff doing the most and earning the most; those roles
have now reversed.  In the new company, half owned by Mrs. Madill, there are
still two incomes coming in, and they are still sharing that income; however,
Mrs. Madill is doing a greater share of the work, and Mr. Madill is unable to
do the share he formerly did, due to his injuries.

[205]     The courts
can seek some preliminary guidance on what amount would be appropriate to award
for loss of earning capacity by looking at the history of the plaintiff’s
earnings.  These are seen from his income tax returns and from his pay for the
12 month period prior to the accident.  But such an award is really not based
on actual prior earnings.

[206]    
As Huddart J.A. said in Rosvold v. Dunlop:

What is being compensated is not lost projected future
earnings but the loss or impairment of earning capacity as a capital asset.  In
some cases, projections from past earnings may be a useful factor to consider
in valuing the loss but past earnings are not the only factor to consider.

Because damage awards are made as
lump sums, an award for loss of future earning capacity must deal to some
extent with the unknowable.  The standard of proof to be applied when
evaluating hypothetical events that may affect an award is simple probability,
not the balance of probabilities.

[207]     The court
in Rosvold v. Dunlop also cautioned that real and substantial
possibilities, chances, opportunities and risks must also be considered when
trying to assess an appropriate award of damage under this category.  In my
view, some of those real possibilities must include a situation where Mr. and
Mrs. Madill may no longer be working together, sharing and income splitting,
either because of illness of one or the other, or separation or divorce.  The
marriage has been under considerable strain since the accident.  If this
partnership were to break up for one or more reasons, then Mr. Madill would be
on the open market presumably, with much less marketable skills than he had
before the accident.

[208]     Spruce
Hollow is a fairly new business, and some real possibilities to be taken into
account might be a slowdown in the company due to economic conditions or other
business related factors.  Other contingencies that should be taken into
account are the possibility that Mr. Madill’s health may improve, or, it may
worsen, physically, mentally and/or emotionally.  Mr. Madill does not control
the family company, his wife does.  So he is reliant upon his wife and that
company for his work at the present time.

[209]     On the
other hand, the company may do exceedingly well, and if that is the case, Mr.
Madill would stand to profit along with his wife.  There is a possibility of
improvement in the plaintiff’s condition, although there is not a lot of
evidence to support this.  There is evidence from both the plaintiff and his
wife that there has been some improvement at least in his social life in the
last year or two.  But there is little evidence to support improvement in his
work capacity.  Any award for loss of earning capacity looks to the best
interests of the plaintiff.  But it must also be fair to the defendants.

[210]     It is my
view that Mr. Madill will remain affected by his mild traumatic brain injury,
and that injury is permanent.  I have made an award based on the assumption
that Mr. Madill will work to age 65.  From all the evidence, I conclude that
the value of the plaintiff’s work in the future is in the range of $1,500 to
$2,500 a month.  I believe an appropriate award for loss of future earning
capacity is $650,000.

Summary

[211]     In
summary, the plaintiff is awarded the following:

[212]    
If necessary, counsel may arrange to speak to the issue of costs.

“Morrison J.”