IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110419

Docket: S67563

Registry:
New Westminster

Between:

Marc
Joseph Jampolsky and Perry Jampolsky

Plaintiffs

And:

Cindy Salina
Shattler, Robert A. Smithson and
Insurance Corporation of British Columbia

Defendants

AND

Docket: M117747

Registry:
New Westminster

Between:

Perry
Jampolsky

Plaintiff

And:

Insurance
Corporation of British Columbia

Defendant

AND

Docket: S68488

Registry: New
Westminster

Between:

Perry
Jampolsky

Plaintiff

And:

Jaswinder
Janjua and Manjit Parmar

Defendant

And:

Insurance
Corporation of British Columbia

Third
Party

AND

Docket: S68557

Registry:
New Westminster

Between:

Marc Joseph
Jampolsky and Perry Jampolsky

Plaintiffs

And:

Insurance
Corporation of British Columbia

Defendant

Before: The Honourable Mr.
Justice Harvey

Reasons for Judgment

[1]            
The plaintiff, Perry Jampolsky, is a 28 year old Surrey resident injured
in four separate motor vehicle accidents. The first three accidents occurred
over the summer of 1999; the last accident occurred in August 2007. At the time
of the first accident the plaintiff was 18 years old. He was accompanied in the
vehicle by his brother, Marc, who has since settled his claims arising from the
initial accident.

[2]            
The plaintiff asserts that in one, or perhaps all, of the 1999 accidents
he sustained a mild traumatic brain injury (MTBI) which has left him with significant
personality changes, memory deficit, and sensory deficit.  The symptoms were
worsened by the effects of the 2007 accident. The injury, he says, impairs his
future employment prospects.

[3]            
All defendants were represented in these proceedings by the same
counsel. While admitting fault on behalf of at least some of the defendants in
each of the first three accidents, it is denied that the plaintiff has
sustained an injury of the magnitude claimed. Instead, it is the defendants’
position that the plaintiff sustained soft tissue injuries in each of the four
accidents, and that he recovered uneventfully from each without any residual
effects or impact upon his future employability.

[4]            
The four actions were directed to be heard together.

[5]            
The issues are as follows:

1.       The
liability, if any, of the defendants, Shattler and Smithson, to the plaintiff
for any injuries sustained by him in the accident of June 26, 1999;

2.       The
liability of the unidentified motorist in the accident which occurred on August
7, 2007;

3.       The
extent of the plaintiff’s injuries from each accident together with the impact,
if any, on his past earnings, future earning capacity, and his need, if any,
for future medical treatment arising from his injuries.

[6]            
Prior to trial the defendants abandoned any defences relating to
contributory negligence or the failure of the plaintiff to mitigate his
damages.

[7]            
The four accidents occurred on June 26, 1999, (the “first accident”);
August 7, 1999 (the “second accident”); August 13, 1999 (the “third accident”);
and August, 12, 1999 (the “fourth accident”).

The June 26, 1999 Accident

[8]            
The first accident occurred at or near the intersection of 140^th
Avenue and 100^th Street in Surrey, B.C. The plaintiff, accompanied
by his brother, Marc, was driving his brother’s vehicle in the early morning
and was stopped at the intersection for a red light.

[9]            
The vehicle driven by the defendant Smithson was passing lawfully
through the intersection in compliance with the traffic signal when a vehicle
owned by Shattler and driven by an unidentified motorist entered the
intersection against the red light opposite the plaintiff. The Shattler vehicle
collided with the Smithson vehicle at what appears to be a high rate of speed,
causing Smithson’s vehicle to spin and collide with the plaintiff’s vehicle.

[10]        
The plaintiff’s vehicle was stationary when struck. Neither the
plaintiff nor his brother could recall the impact or give any description of
what occurred to them when struck by the Smithson vehicle. It does not appear
from the evidence that the plaintiff struck his head.

[11]        
Smithson’s vehicle caught fire. Both the plaintiff and his brother
emerged from their vehicle. Marc Jampolsky thinks he called 911. A bystander
attended with water which was thrown onto the Smithson vehicle. Marc called his
mother who then attended at the scene.

[12]        
Mary Jampolsky described the plaintiff as babbling when she arrived at
the scene of the accident. Neither son reported any injury to her, although she
eventually transported both to Surrey Memorial Hospital for examination. This
was done on the advice of medical personnel present at the scene.

[13]        
The plaintiff and Marc stayed at the accident scene for approximately an
hour or so, the time necessary for the fire department to begin extricating
Smithson from his vehicle.

[14]        
Marc Jampolsky has no recall of his brother speaking to either the
driver of the Smithson vehicle or the vehicle which struck it.

[15]        
The plaintiff attended an examination for discovery in 2006, the same
year he first saw Dr. Ancill. He responded to questions concerning the accident
and its aftermath in a reasonably detailed fashion. Dr. Ancill stressed the
importance of asking for a patient’s personal recall of what happened as
opposed to the more generic, “what happened?” If the latter question is posed,
a patient suffering from MTBI is likely to fill in gaps in his memory with the
memory of others who have discussed the event with him.

[16]        
At trial the plaintiff adopted as accurate the following summary taken
from his discovery: In response to the question, “Just tell me what you
remember about this accident,” the plaintiff advised (in summary) that he
remembers sitting at the red light but not the actual impact. He advised that
he recalled getting out of the car after asking his brother, Marc, if he was
alright and then going to another car, “that was sort of on the sidewalk,” and,
“asking if they were okay.” He said that he did not know, at the time, that it
was the car that ran the red light that he had approached. He said that he did
not go to the other car, or at least he didn’t remember doing so, and that the
next thing he recalls was either a police officer of fireman telling him to
extinguish his cigarette. He recalled coming from the pool hall.

[17]        
He could not recall his attendance at Surrey Memorial or his return
home. His next memory is of falling in his bathtub, “the next day or a couple
of days later.”

[18]        
The unidentified driver in the Shattler vehicle fled the scene without
being apprehended. When Ms. Shattler was approached following the accident as
to the whereabouts of her vehicle she thought it was in her parking lot;
however, when told of the collision she advised the officers that she thought
the car had been stolen by a man she was seeing socially, Ali Maya.

Liability for the June 26, 1999 Accident

[19]        
Liability has been admitted by ICBC on behalf of the uninsured driver
involved in the first accident.

[20]        
At the conclusion of the trial the plaintiff abandoned any claim in
negligence as against the driver of the vehicle which ultimately collided with
the plaintiff’s vehicle, but still seeks a finding of liability against Ms.
Shattler.

[21]        
Ms. Shattler’s negligence is said to be the failure properly guard
against the possibility of one of her invitees, whom she knew was drunk,
stealing her motor vehicle and then driving it in an unsafe manner.

[22]        
The Supreme Court of Canada has, so far,
rejected the notion of liability of social hosts (Childs v. Desormeaux,
2006 SCC 18).

[23]        
The plaintiff points to the dicta of McLachlin,
C.J. in Childs, wherein the Chief Justice discusses what might
engage social host liability. In Childs, the social host held a party
after which one guest was involved in a fatal motor vehicle accident. At para.
44, McLachlin C.J. stated in obiter:

…It might be
argued that a host who continues to serve alcohol to a visibly inebriated
person knowing that he or she will be driving home has become implicated in the
creation or enhancement of a risk sufficient to give rise to a prima facie duty
of care to third parties, which would be subject to contrary policy
considerations at the second stage of the Anns test.

[24]        
The plaintiff claims that Ms. Shattler knew that Ali
Maya was already drunk when he arrived. She already considered him to be an “ass”
and a “jerk.” Yet she let him in. She could have refused him entry. She says
she let him in so as to avoid causing a “scene.”

[25]        
Be that as it may, the evidence does not support a
finding that the defendant, Ms. Shattler, served Ali Maya alcohol or actively
encouraged his continued drinking. To the contrary, there is no evidence that
she paid him any attention or that he continued to drink alcohol while at her
residence.

[26]        
There is nothing in the evidence to suggest that Ms.
Shattler knew or ought to have known of the risk of one of her guests,
specifically, Ali Maya, stealing her car keys and then engaging in unsafe
driving.

[27]        
In the result, I dismiss the action against both
defendants, Shattler and Smithson.

The August 7, 1999 Accident

[28]        
The second accident involved an unidentified motorcyclist who collided
with the side of the plaintiff’s vehicle while attempting to pass between it
and the curb when traffic was stopped.

[29]        
ICBC has admitted fault on behalf of the unidentified motorcyclist.

[30]        
The motorcyclist attempted to pass the plaintiff’s vehicle on the curb
side. The motorcycle scraped the right side of the Jampolsky vehicle as it fell
to the side. The motorcyclist left the scene without exchanging any information
with the plaintiff. Noting that the driver was sporting club colours, the
plaintiff, wisely, did not give chase.

[31]        
When reporting the incident to ICBC on August 9, 1999 the plaintiff
reported as follows:

I was stopped at the light at 154th Street
and waiting to go straight through. There is two lanes there and I was in the
curb lane. A Harley Davidson motorcycle with orange flames came up beside me on
the right hand side. He went between me and the curb and sort of fell over and
hit the rear passenger side door and the right rear quarter panel of my car. He
didn’t fall off his bike, he sort of fell to the right. He was still moving
slowly so I guess that is how the scrape on my door happened. My friend, Greg,
asked him if he was all right. He mumbled that he was all right and then he
drove off. Greg thought that he sounded drunk. The guy was big. I had just
glanced over and when the light turned green I turned right and thought that
the guy was going to follow me around the corner but he went straight instead.
We turned around and went into the Ramada Inn. There was a Constable McLellan
there and he gave us a file number of 99-77363. I then called the 24 hour ICBC
line and they gave me this file number. The bike driver had a passenger on the
bike with him. This is a true statement to the best of my knowledge.

[32]        
No report was made of any injuries arising from the event. The plaintiff
made no reference to the earlier accident of June 26, 1999. He advised the
adjuster that he was not working at the time of the accident but was looking
for work and was, “going back to finish a couple of courses in Grade 12.”

[33]        
The plaintiff attended Dr. Tang on two occasions in August for
complaints unrelated to this or the first accident.

The August 13, 1999 Accident

[34]        
The defendants, Janjua and Parmar, have admitted fault for the third accident.
The driver, Mr. Janjua, failed to observe the plaintiff’s vehicle before
executing a lane change. The right rear of the Janjua vehicle came in contact
with the left front fender and wheel area of the plaintiff’s car.

[35]        
The Jampolsky vehicle sustained approximately $1,400 in damage; the
Janjua vehicle sustained approximately $1,000 in damage. I am satisfied that the
collision was more forceful than the description given by Mr. Janjua in his
evidence.

[36]        
In his report to ICBC following this accident, the plaintiff told the
adjuster:

This is the statement of Perry
Jampolsky, of 305 9979 140^th Street, Surrey, B.C. taken on August 16^th,
1999. I hold an active valid class 5 drivers licence and on August 13^th,
1999 I was involved in a motor vehicle accident. I was sitting in the back seat
behind Mark. I was wearing my seatbelt. When the car was hit it just aggrivated
(sic) my old injuries. I was about 80 percent better when I was involved in a
hit and run with a motorcycle. That accident aggrivated (sic) the neck. This last
accident aggrivated (sic) my back and neck and I started to drop things again.
I did not hit my hand or anything. I have read the above statement and it is
correct to the best of my knowledge and understanding.

[37]        
Apart from the reference to “dropping things again”, the plaintiff did
not make complaints referable to the earlier two accidents. The reported
complaints related to an exacerbation of the plaintiff’s back and neck injuries
which he related to Dr. Tang in his visits in June and July of 1999.

[38]        
At subsequent attendances upon Dr. Tang for unrelated complaints, the
plaintiff did not mention the third accident or its effects.

The August 12, 2007 Accident

[39]        
The fourth accident involved another unidentified driver who, for
reasons unknown, seems to have intentionally caused her vehicle to collide with
that driven by the plaintiff and occupied by three other passengers.

[40]        
The evidence of the plaintiff, Ms. Mcleister, and Mr. Watkins satisfies
me that the unidentified motorist was at fault for the accident and that
reasonable attempts were made to ascertain the identity of the driver.

[41]        
No particulars as to the damage suffered by the plaintiff’s vehicle were
provided, nor did the plaintiff elaborate on any injuries he suffered in the
fourth accident.

[42]        
One witness, Mr. Burnett, testified that the plaintiff became more
irritable following this accident. None of the other witnesses called by the
plaintiff made any distinction between the plaintiff’s behaviour and cognitive
function prior to or after the fourth accident. The plaintiff did not seek
medical treatment for the fourth accident.

The Plaintiff Prior to the June 26, 1999 Accident

[43]        
Prior to his involvement in the first accident, the plaintiff was completing
his graduating year at secondary school in Surrey, British Columbia. He resided
in the home of his mother, Mary Wong Jampolsky, along with his older brother,
Marc.

[44]        
The plaintiff had recently quit Air Cadets. He began Air Cadets at the
age of 12. Despite his young age he quickly showed an aptitude for both the
musical and military aspects of the cadets. He enjoyed an impressive career
ending with the rank of flight sergeant.

[45]        
The plaintiff appears to have been an aspiring, if not an accomplished,
musician upon entry into the Air Cadets. His background was in piano and
clarinet. He later taught himself to play the saxophone when one was given to
him by his uncle, Perry Smith.

[46]        
His musical abilities allowed him to become a member of the drill band. In
his later teens, he led the band as drum major and taught many of the younger
cadets to play either clarinet or saxophone. He also choreographed the marching
drills which the band performed when in parades or competitions.

[47]        
The plaintiff was the recipient of a number of awards for both his music
and his leadership skills. As recently as 1998, the year prior to the first
accident, he won a variety of awards and his picture appeared on the front page
of a local newspaper to honour his achievements.

[48]        
That same year, or possibly in early 1999, the plaintiff quit Air Cadets
out of frustration over what he perceived was the growing involvement and
interference of the parents group in selecting cadets for promotion. The
plaintiff felt a promotion was withheld from him as lesser candidates received
promotions based on pressure applied from outside sources.

[49]        
Involvement with the Air Cadets occupied much of the plaintiff’s free
time between age 12 and 17. He won attendance awards for never having missed a
meeting. He also attended the cadet hall for training sessions and other social
occasions. It would appear that he was involved with cadets for as many as five
days per week during the school year. He also attended and taught at summer
camps as he progressed in rank.

[50]        
The plaintiff’s academic pursuits were not as successful as his
achievements in Air Cadets.

[51]        
An average to slightly better average student in his elementary school
years, his performance declined in high school after transferring from a French
immersion program to Johnston Heights Secondary. The plaintiff blamed some of
the decline on the fact that he was now learning in English rather than French.
His marks in French and music composition remained high, but his other marks
slipped such that he was failing or barely passing the bulk of the academic
courses.

[52]        
His attendance also declined. Some of the courses he failed to pass in grades
11 and 12 appear to be directly the result of poor attendance. His uncle, Perry
Smith, testified that this was explained by the plaintiff’s lack of interest in
some of his school subjects, but accepted that he may have skipped classes
because he was bored with school. His mother stated that he was afflicted with
headaches which interrupted his attendance. His brother, Marc, recalled that
the plaintiff suffered from stomach problems which caused him to miss school in
his late high school years.

[53]        
Whatever the reason, outside of French and music, the plaintiff did not
do well in his final two years of high school. His marks were mediocre to
failing. But for the credits he received for his work with the Air Cadets, it
is likely that he would have had to repeat more than mathematics and English to
eventually receive his Grade 12 equivalency.

[54]        
The plaintiff’s medical history is of also of note. In the summer of
1996, while vacationing in Fort St. John, the plaintiff was involved in an
accident while riding his bicycle. His mother recalled that she was called to
the scene of the accident by a neighbour and attended the scene while the
plaintiff was still on the road. She thought the accident was the fault of the motorist
involved. In any event, the plaintiff was apparently struck by, or ran into,
the motorist and was thrown onto the hood of the car and ultimately to the
pavement. The plaintiff was not wearing a helmet at the time.

[55]        
Following this accident the plaintiff experienced headaches. There is no
record of him having any period of unconsciousness or memory loss following the
accident.

[56]        
Both the plaintiff and his mother were unable to recall the 1996
accident or its consequences when they attended upon Dr. Ancill, the doctor who
diagnosed the plaintiff as suffering from traumatic brain injury.

[57]        
It would appear that the plaintiff remained partially symptomatic from
the bike accident until at least January 1997, when his family physician, Dr.
Tang, recorded in his medical chart that the plaintiff was still suffering
headaches six months following the event.

[58]        
Despite the bike accident, it appears that the plaintiff was able to
carry on with his high level of performance at Air Cadets. As noted he
continued to excel in the years following the bicycle accident.

[59]        
The remainder of the plaintiff’s medical history appears uneventful save
for reference to another “head injury” in June, 1997. Whatever, the origin of
the complaint, it did not result in any further reporting of symptoms to Dr.
Tang in the period leading up to the first accident.

[60]        
Apart from cadets, the plaintiff had an interest in playing pool. He
appears to have become a reasonably accomplished pool player and it apparently
remains one of his major forms of recreation. He continues to play in leagues
and occasional tournaments. The whole of the evidence indicates that his skill
is undiminished since the series of accidents beginning in the summer of 1999.

[61]        
A common theme of those witnesses who testified as to the plaintiff’s
pre- accident personality was his extraverted personality, willingness to help
or teach others, and generous nature.

[62]        
According to the witnesses who were called to testify as to the
plaintiff’s personality, his disposition changed following the accidents of the
summer of 1999.

After the Summer of 1999

[63]        
Although scheduled to graduate in June 1999, the plaintiff had
insufficient credits and needed to complete Math 12 and English 12. He
testified that he passed English 12 without much trouble. When he passed
English 12, his mark was consistent with his academic performance in subjects
other than music or French.  The plaintiff had to take Math 12 repeatedly over
the next several years, ultimately taking a less challenging version of Math 12
in order to complete the requirement so as to obtain his Grade 12 equivalency.

[64]        
It is not clear if or when the plaintiff was working during the summer
of 1999. From CPP records admitted at trial, it would appear that the plaintiff
commenced working in 1999 (other than at cadet camps) and has since held a
variety of jobs until he began his present employment with Actes Environmental
in or about 2006. His pre-Actes employment appears to have been steady.

[65]        
His occupational history is varied and bears some comment given
complaints of the plaintiff as to his mental state and the observations of
friends and family who testified on his behalf.

[66]        
The plaintiff’s resume indicates that he held a number of jobs before
his current employment. Between 1999 and 2006, he worked in a furniture
warehouse assembling and moving furniture, interned with Corrections Canada,
sold vacuums, tended bar, and worked for a window blind cleaning service. Other
than the views of Mr. Burnett concerning the plaintiff’s abilities tending bar,
the evidence did not disclose that the plaintiff experienced any difficulty
maintaining the various other positions he held. While working at the bar, the
plaintiff was also working full time for Corrections Canada doing his internship.

[67]        
In 2006, the year that the plaintiff first saw Dr. Ancill, the plaintiff
was an intern with Corrections Canada as well as a bartender at a club in
Surrey, working from the early evening until 1:00 am or 2:00 am four to five
days a week. The internship was sponsored by the YMCA and ran for approximately
a year. The plaintiff had hoped for a career in law enforcement or corrections.

[68]        
The plaintiff’s other pre-Actes employment involved working for Wosk and
JYSK furniture outlets. As part of his duties the plaintiff was required to
assemble furniture in the warehouse and then load it on trucks for delivery.

[69]        
In 2004 the plaintiff worked briefly for his current employer, Actes
Environmental. In 2006 he resumed his current employment with Actes.

[70]        
The plaintiff has remained steadily employed since the time of the first
accident and claims past wage loss only for a period of absence from work
following the fourth accident.

[71]        
In addition to the medical evidence, the plaintiff called a variety of people
who knew the plaintiff both before and after the first three accidents to
testify as to their observations of perceived changes in his character and
demeanour following those accidents.

The Aftermath of the Accidents and the Claim of Mild Traumatic Brain
Injury (MTBI)

[72]        
The plaintiff’s family physician, Dr. Howard Tang, saw the plaintiff on
a number of occasions following the first three accidents. He prepared a
medical report on the plaintiff’s condition in November 2000, which was
tendered in evidence on behalf of the defendants. Dr. Tang was not, at least
then, of the opinion the plaintiff had sustained more than soft tissue
injuries.

[73]        
In 2006 the plaintiff was seen by Dr. Raymond Ancill, a psychiatrist
specializing in the diagnosis and treatment of brain injuries.

[74]        
Dr. Ancill’s opinion that the plaintiff suffered a MTBI caused the
defendants to engage Dr. Paul Janke, a psychiatrist, and Dr. Peter Rees, a
neurologist. Both examined the plaintiff and opined that he did not sustain a
MTBI in any of the accidents under consideration.

[75]        
Each of the experts testifying as to the existence, or otherwise, of
MTBI agreed that evidence of MTBI would not necessarily appear on either a CAT
scan or MRI.

[76]        
Instead, the diagnosis of an MTBI, in most instances, is dependent upon
the determination of whether there is:

(1)      A credible mechanism of injury
sufficient to cause damage to the brain tissues;

(2)      Whether or not there were
demonstrable clinical effects of brain injury at the scene of the accident;

(3)      Whether in the weeks following
there were symptoms/and or findings consistent with a concussion; and

(4)      Whether the longer term symptoms
and findings are unique to brain trauma or whether they have been caused by
other confounding factors.

[77]        
According to the Centers for Disease Control and Prevention (CDC), the
following are signs and symptoms of a traumatic brain injury. Symptoms may not
appear, according to the CDC, until days or weeks following the injury, or may
be missed as people may look fine even though they may act or feel differently:

·       
Headaches or neck pain that do not go away

·       
Difficulty remembering, concentrating, or making decisions

·       
Slowness in thinking, speaking, acting, or reading

·       
Getting lost or easily confused

·       
Feeling tired all of the time, having no energy or motivation

·       
Mood changes (feeling sad or angry for no reason)

·       
Changes in sleep patterns (sleeping a lot more or having a hard
time sleeping)

·       
Lightheadedness, dizziness, or loss of balance

·       
Urge to vomit (nausea)

·       
Increased sensitivity to lights, sounds, or distractions

·       
Blurred vision or eyes that tire easily

·       
Loss of sense of smell or taste

·       
Ringing in the ears

[78]        
The medical experts in these proceedings accepted that the extract from
the CDC is an accurate description of the road signs to the diagnosis of an
MTBI, and that each of the above symptoms is non-specific to an MTBI. That is
to say, seen in isolation, the symptoms described above could have a variety of
causes, including the existence of an MTBI.

[79]        
The plaintiff is not the best historian when it comes to recounting
events following the first three accidents. This is, perhaps, not surprising
when each of the witnesses called by the plaintiff testified as to observations
on their part relating to plaintiff’s poor recall of matters generally. Nor, in
keeping with the passage referenced from the CDC, would it be expected that the
patient himself would be aware of personality changes involving irritability,
mood change, or slowed thinking.

[80]        
One of the plaintiff’s significant ongoing complaints relates to his
memory. He testified that he has trouble remembering events and conversations
which relate to his duties at work and the timing of social events. He
testified that he has misplaced his wallet, cell phone, and keys on numerous
occasions resulting in him having to re-apply for his driver’s license on four
or five occasions. He did not provide a timeline as to when these events began
to occur.

[81]        
The plaintiff called a succession of witnesses who knew him both before
and after the accidents which occurred in the summer of 1999.

[82]        
Appreciating that none are medically trained, each witness brought
observations to bear which, according to Dr. Ancill, provide the roadmap to a
diagnosis of MTBI arising from the first accident. Having said that, Dr. Ancill
reached his opinion concerning the existence of a MTBI after speaking only to
the plaintiff and his mother on one occasion for approximately ninety minutes
to two hours. The interview occurred seven years after the first accident. Dr.
Ancill did not embark upon an exhaustive interview process with others who knew
the plaintiff before the accident, but based his opinion on the observations of
Mary Jampolsky and the self report of the plaintiff.

[83]        
At some time following the preparation of his initial report containing
the diagnosis of an MTBI, Dr. Ancill spoke to the plaintiff’s current girlfriend,
Ashley Tupper, who confirmed some of the observations of Mary Jampolsky.
However, by this time, the diagnosis had been made.

Mary Jampolsky

[84]        
Mary Jampolsky, the plaintiff’s mother, testified as to the plaintiff’s
behaviour and demeanour before the accidents, immediately after they occurred,
and in the long period between the happening of the accidents and his
attendance upon Dr. Ancill in October 2006.

[85]        
Ms. Jampolsky described the plaintiff as an active and engaging young
person during his pre-teen and early teenage years. He was kind and giving in
that he readily volunteered his time and energy to a number of different activities.
He volunteered at his church and answered phones at a telethon for disabled
children. His kindness toward and involvement with others was a constant
throughout his teens. Nowhere was that more apparent than in his involvement
with Air Cadets, where he assisted and taught those who were below him in rank.
He was an avid reader, chess player, and self motivated to see to his cadet
activities. He would practice his musical instruments for hours without
direction or urging on her part.

[86]        
While acknowledging that her son was not the most accomplished student,
she depicted a son of whom most mothers would be proud. His less than stellar
academic achievement was, in part, because she, as a single parent working long
hours, was not often available to assist him with his homework or even ensure
that it was done.

[87]        
Ms. Jampolsky described the changes that she began to notice over days
and months following the first accident, coupled with her involvement with him
at the scene. She has resided with the plaintiff in different residences since
the first accident. She, the plaintiff, and his girlfriend, Ashley Tupper, currently
occupy a home recently purchased by the plaintiff and his brother, Marc.

[88]        
She attended the scene of the accident after being advised by Marc that he
and the plaintiff had been in an accident. At the scene, she described both her
sons as, “all excited and babbling away.” She stated that the plaintiff was not
making any sense and that she had him sit on the curb. A fireman advised her to
take both to the hospital to be checked.

[89]        
Ms. Jampolsky drove them to the Surrey Memorial Hospital. On route, the
plaintiff complained of a headache. By the time of his arrival, she said he was
talking “non-stop.”

[90]        
Both the plaintiff and Marc were examined in the emergency room and
discharged home without any treatment being administered.

[91]        
Ms. Jampolsky recalls the plaintiff falling in the shower over the next
few days following the first accident. She heard a big crash. She began to
insist that he not lock the bathroom door over fears that he would fall and she
would be unable to help.

[92]        
She testified that the plaintiff was experiencing headaches off and on following
the accident “for quite awhile,” and that he had not complained of similar
headaches in the past. She said in the weeks and months following, “He had
quite a bit of headaches.” The plaintiff gradually became moody and she began
to notice that his memory was not as good as she thought it had been before the
accident.

[93]        
The report of Dr. Ancill does not indicate that Ms. Jampolsky mentioned
headaches prior to or following the first accident. Her evidence on direct
examination concerning the frequency and quality of post-accident headaches
should be contrasted with the following passage extracted from her cross-examination:

21        Q         Do you recall having
discussions with your

22        son Perry in grade 12, when he was
in grade 12,

23        about his attendance at school and
the failure to

24        do homework?

25        A          Specific grade 12
doesn’t mean that much to me

26        right now. What I recall is that I
went to all

27        the parents/teachers meetings. I
spoke to all the

28        teachers. If they had any
problems, we tried to

29        change it. I did try to get him
switched to

30        different classes. Sometimes if
his mark was —

31        he wasn’t understanding, I did try
to get them to

32        switch the teacher and didn’t. He
couldn’t

33        understand what they were — the
way the teacher

34        was explaining stuff to him, and
that’s what I can

35        say about that.

36        Q         All right. So you recall
inquiring about it and

37        being concerned about his lack of
progress or lack

38        thereof in grade 12, yes?

39        A          Yes, I always did.

40        Q         And the conclusion you
drew was that he was having

41        trouble following some of the
subjects that he was

42        taking?

43        A          Yes.

44        Q         And you mentioned a
moment ago that when he was

45        absent from school, you approved
it?

46        A          Yes.

47        Q         headaches?

48        I know lots of that was from
headaches.

49        So he had headaches — headaches
from time to time

50        that were strong enough to keep
him out of school

51        in grade 12?

52        A          Yes.

53        Q         What about grade 11 and
10?

54        A          Not
that I recall.

[94]        
According to his mother, the plaintiff began to exhibit mood changes
shortly after the first accident. He gradually became more moody and was neither
as happy nor agreeable as he had been before the accident. He had quick mood
swings where he would quickly change from happy to “grumpy” within minutes for
no apparent reason.

[95]        
Ms. Jampolsky also noticed memory lapses. The plaintiff did not recall
simple instructions. When studying for exams, he would complain to her, “I
can’t remember anything.”

[96]        
As to his music, she testified, “He played a little bit and then he quit
totally.” He told his mother, “I can’t remember stuff. I can’t do it.” She
stated that he no longer played the clarinet or saxophone following the first
accident.

[97]        
The plaintiff began to act inappropriately at times by saying hurtful
things to others, and has become more “short tempered” than he as before the
first accident. He quarrels with her more often than was the case before and
speaks to her disrespectfully at times.

[98]        
Ms. Jampolsky, like other witnesses who followed her, says that the
plaintiff would frequently complain of unpleasant smells that others did not notice.
They generally were of something burning or a chemical smell.

[99]        
Lastly, she stated that the plaintiff was more forgetful than ever
before, and that she notices that he becomes easily confused during
conversations. She referred to him as “scatter-brained.” She stated that he
used to do some of the cooking in the home but, since the first accident, he
will get distracted in the middle of cooking and on occasion has forgotten to
return to the task he left before the distraction.

[100]     She
accompanied the plaintiff when he attended Dr. Ancill and provided much of the
information about the changes to the plaintiff upon which Dr. Ancill premised
his opinion. She did not report to Dr. Ancill, or at least he did not record,
the reference to the plaintiff’s headaches either prior to the accident or
after. Nor did she mention, seemingly, his irritability.

[101]     She told
Dr. Ancill that the plaintiff was “babbling away” and “hyper and jumbled” when
she attended at the scene and, in response to queries from Dr Ancill, advised that,
“his thinking was slower, he did not remember things and complained of numbness
in his hands.” She clarified the later remark by saying that it was not really
numbness but that he had developed a weak grip and dropped things, such as a
pool cue. She reported that after the first accident there was period where he
would get quite dizzy and fall over. She relayed a singular incident of him
falling in the bathtub.

[102]     When asked
about the plaintiff’s prior medical history, neither Ms. Jampolsky nor the
plaintiff recounted the 1996 bicycle accident and its aftermath of headaches.

[103]     The other
important source of pre- and post accident behaviour was the plaintiff’s
brother, Marc. Dr. Ancill never interviewed Marc in the preparation of his two
medical reports, completed in 2006 and 2007.

Marc Jampolsky

[104]     Marc
Jampolsky is a customer service representative for Telus. He has lived in
Prince George since about 2004. Before moving there he resided with his mother
and brother. He has kept frequent contact with his brother and sees him for
holidays and some weekends.

[105]     His
recollection of the aftermath of the first accident differs from the account
given by the plaintiff at his discovery. Marc testified that the plaintiff
never approached either of the other vehicles and that he recalled pulling his
brother to his mother when she arrived. He said she told the plaintiff that he
was, “not making any sense and to slow down.” Marc, contrary to the evidence of
his mother, said that his brother was quiet on the way to the hospital. Marc
did not say whether the plaintiff complained of headache either on the way to
the hospital or in the days thereafter.

[106]     Marc reaffirmed
much of what was said by his mother about his brother’s early years. He
described his brother as a talented musician and the driving force behind Marc
joining cadets. The two played chess together in elementary school and both
were provincially ranked at one time. They participated in tournaments together
and played speed chess or multi-board chess, where more than one opponent is
played at the same time.

[107]     Marc
recalled his brother being a good reader when he was young. The plaintiff was
outgoing and comfortable in the presence of adults. He enjoyed the hierarchical
structure of the cadets and was meticulous about his appearance and his uniform.

[108]     Marc did
not recall any immediate change in his brother. Following the first accident he
had his own injuries to contend with and was working full time. He was busy
with his own friends and was not as attentive to the plaintiff as was his
mother. He recalled the plaintiff slipping in the bathtub, “multiple times over
the years.”

[109]     Marc noticed
changes in his brother four to six months following the accidents in 1999. He
noticed that his brother became frustrated easier and was becoming angry
without any real provocation. Marc has observed his brother being aggressive
and sharp towards their mother. He stated that this never happened when they
were young. The plaintiff will yell at her without provocation. Marc also
testified that his brother will act or speak inappropriately in company.
Sometimes it is in an attempt to be funny with friends, but the remarks are
seen by those present as being inappropriate. An example was a bawdy reference
made by the plaintiff to a friend dressed up for a wedding. The remark was made
in front of the plaintiff’s mother and his counsel, who was present at their
home at the time.

[110]     Marc
recalled that the plaintiff played his musical instruments for pleasure after
leaving cadets, but did not reference the fact that the plaintiff apparently
announced, sometime following the accidents of 1999, that he could not remember
how to play anymore.

[111]     Marc
thought the plaintiff’s judgment began to change and that he could not
differentiate between friends and acquaintances. He would take time off work to
help people he barely knew move their residences. He bought elaborate gifts for
people he supervised at Actes. He acted impulsively. One example given was the
plaintiff’s recent purchase of a motorcycle.

[112]     Marc
indicated that his brother is no longer as meticulous as he was when attending cadets.
He is not organized and has trouble managing his finances. His impulsive
spending leads him to financial shortfalls when it comes time to make a payment
on the mortgage. Marc has loaned or given his brother money on a number of
occasions to cover such situations despite the fact the plaintiff earns a good
income from his current job. Despite the theme of fiscal improvidence, the
plaintiff was able to save about $8,000 to put towards the down payment on the
house he and Marc bought together.

[113]     Marc identifies
the plaintiff’s memory as the major problem. Marc testified that his brother
would become confused over simple things and just appeared slower in his
thought and speech.  The plaintiff would quickly forget conversations that the
two of them had had. He cannot remember phone numbers or to send in time sheets
to his employer. Various examples were given by Marc indicating the plaintiff’s
forgetfulness; including problems he had organizing Marc’s bachelor party. He
misplaces things and cannot locate them later. When asked to retrieve things
about his house, he forgets where they are kept and then gets mad. The
plaintiff seems befuddled by technology. He cannot remember the functions of
the remote control for the entertainment system in his home. Marc began to
notice that the plaintiff would drop things, specifically his pool cue.

[114]     Marc also
noted that the plaintiff identified bad odours that no one else ever smelt, and
that bright lights at night caused him to become drowsy when he was driving.
When driving with his brother at night, Marc has to check from time to time on
his alertness and ask if the plaintiff is okay. Marc said the plaintiff had
been through three or four tire rims from running through potholes.

[115]     Another
noted difference, according to Marc, was his brother’s level of energy. Prior
to the first accident he felt that his brother was energetic and he never
noticed any difficulty with the plaintiff’s ability to wake up in the morning.
Now, according to Marc, the plaintiff must set more than one alarm and it often
can go off for forty-five minutes before he will get up. If Marc, or anyone
else, tries to prompt him to rise, he gets angry. Reportedly, this has caused
some tardiness at work. The plaintiff gets more energy as the day progresses
and functions better than in the morning. Often, he does not go to bed until
after midnight.

[116]     Unlike
others who testified on this subject, Marc thinks his brother is a good poker
player who wins his share of the pots.

[117]     Finally,
Marc was driving the vehicle during the third accident.  He described the
plaintiff as “perfectly fine” following that accident.

[118]     In
addition to Mary and Marc Jampolsky, the plaintiff called a spectrum of
witnesses who knew him both before and after the accident, as well as several
who met him after the first accident.

[119]     Those who
knew him both before and after the first accident include his current
girlfriend, Ashley Tupper, his uncle Perry Smith, Michael Reilander, and Alana
Voupotic. While each testified as to various apparent changes in his
personality when they saw him again following the first accident, each depicted
a similar picture of a well motivated, musically talented young man before the
first accident.

Michael Reilander and Alana Voupotic

[120]     Both
Reilander and Voupotic met the plaintiff through cadets. He outranked them and
taught or led both of them in drill practice. They indicated that he was
organized and demonstrated leadership beyond his years. He not only taught the
drill team but choreographed the routines that they performed in competitions.

[121]     Each
respected the plaintiff’s judgment and looked up to him. Both described him as
committed to the instrument he played the most, the saxophone, and as someone
who would practice his instrument well beyond what was normally expected.

[122]     According
to both, the plaintiff demonstrated no difficulties with his memory, temper,
concentration, or mood. Reilander said he, “was sure of himself” and would take
charge in a crowd.

[123]     Reilander
lost contact with the plaintiff when the plaintiff quit cadets in the spring of
1999. They reconnected in 2002 or 2003. Reilander noticed that the plaintiff no
longer played his musical instrument, seemed far less active and motivated than
before, and had obvious memory deficit.

[124]     When asked
by Reilander as to why he no longer played, the plaintiff apparently advised that
“he can’t play anymore,” and then related the details of “the accident”.

[125]     As to
memory issues, Reilander related at least one occasion where the plaintiff had
missed a social gathering despite being reminded of the event shortly before it
was to occur.

[126]     Reilander
also noted that the plaintiff seemed to lose his temper more than he had before
they lost contact with one another. The plaintiff behaved badly at a gathering
where Reilander had other friends who worked for a fast food chain. Apparently
the plaintiff was ridiculing the outlet to the point that one of the guests
wanted to fight him. The plaintiff apparently did not realize the extent to
which his comments were offending the other guests. Reilander testified that he
observed the plaintiff quarrel with Mary Jampolsky and utter profanities at
her. When the Reilander and the plaintiff previously knew one another, the
plaintiff was respectful of his mother and not prone to disagreement with her.

[127]     Reilander
is part of a loose group of friends who play poker weekly with the plaintiff.
He described the plaintiff as a poor poker player who will often mistake the
strength of his hand and bet aggressively, not as a bluff, but because, as an
example, he thinks he has a straight when in fact the sequence is broken and
the hand of no value.

Ashley Tupper

[128]     Ashley
Tupper is the plaintiff’s girlfriend. They live together with Mary Jampolsky.

[129]     Ms Tupper
knew the plaintiff from before the first accident. They were in cadets
together, albeit in different squadrons. She thought of the plaintiff as a
mentor as he gave her useful advice about stressors in her home life.

[130]     In the
time she knew him before the first accident, she found him a happy, well
adjusted young man who got along well with others. He acted appropriately
around others and exhibited no difficulties apparent to her with his memory,
mood, concentration, or his ability to engage in or follow along in
conversation with others. He was passionate about his music.

[131]     She lost
touch with him sometime in 2000 and did not reconnect with him until sometime
in 2007.

[132]     Little was
said by Ms Tupper about any observations made by her about the plaintiff
between the summer of 1999 and when they lost contact. She said she did not see
him much because he did not like her boyfriend of the time but she did not
notice any changes to his personality when they did see one another.

[133]     However,
when they began seeing one another in 2007, initially as reacquainted friends
and later in a romantic relationship, she noticed changes from the person she remembered.
Specifically, he was quick to lose his temper. He gets angry at himself for forgetting
things and others for little or no reason.

[134]     According
to Ms. Tupper he has a very poor memory. He cannot recall when they first
kissed or their first date. He often forgets appointments and is easily
distracted from the task at hand.

[135]     His work
requires him to send his employer time sheets for him and his crew at the end
of each week. Ms Tupper testified that the plaintiff had trouble both
remembering to do so on occasion and that was unable to figure out how to use
email to append the time sheets as an attachment, thereby necessitating the use
of a fax machine.

[136]     She does
not notice the plaintiff reading or, if he does, he spends a long time going
over short passages of text. She helped the plaintiff with correspondence he
received from his counsel.

[137]     According
to Ms. Tupper his judgment is poor. Despite having to rise early for work, he
goes out at night and sometime does not return until 2 am or 3 am in the
morning. Not surprisingly, he is difficult to rise the next morning.

[138]     They have
been in an intimate relationship since 2008. She describes the plaintiff as a
restless sleeper. He snores and moves about while he sleeps. She opined that
his sleep is not restful and thus causes him to be grumpy in the morning and difficult
to rise.

[139]     The
plaintiff has been diagnosed with a mild to moderate sleep apnea.

[140]     She finds the
plaintiff impulsive in a number of ways, including the purchasing of gifts for
people he barely knows. In the summer his former girlfriend, Ms. Barwick, was
injured in accident. The plaintiff wanted to rush to Toronto to be with her
despite the fact her injuries were non-life threatening and he and Ms. Tupper
were planning a trip East later in the summer to visit Ms. Tupper’s family. The
visit to Ms. Barwick could have been tied into the pre-planned trip without
causing any major change to their plans.

[141]     Finally,
she notes that the plaintiff is argumentative but tends to lose track of the
topic of the argument midway through it and ultimately has no idea what the
conversation is about. She notes his complaints about foul smells when no one
else can notice them.

[142]     Despite
these observations, Ms. Tupper seems committed to the relationship. She hoped
to marry the plaintiff within two to three years. Her only stated concern is about
how his anger management might play out with children.

Perry Smith

[143]     Perry
Smith, the plaintiff’s uncle, noticed changes following the 1999 accidents. The
plaintiff’s judgment was not as good and he was more irritable than before. Mr.
Smith thought that the plaintiff made bad choices in relationships. His
decisions were based on emotion, not reason.

[144]     He also
described the plaintiff as “lazy” when describing his general energy level.

Workplace Witnesses

[145]     Witnesses
called by the plaintiff in relation to his work capacity included Bill Burnett,
Ryan Watkins, and John Harris. Each described the plaintiff as likeable and all
enjoyed his company. Mr. Burnett and Mr. Watkins are part of the poker playing
group that meet weekly at the plaintiff’s house.

[146]     Each
testified as to difficulties they had seen the plaintiff experience in his
workplace. Mr. Burnett trained the plaintiff to be a bartender sometime around
2002. They worked together at a Surrey club called Pancho and Lefty’s for
several months.

[147]     Mr. Burnett
described the plaintiff as poor with customers. He could not recall their names
or regulars’ drinks. He often got drink orders wrong by pressing the wrong
liquor or pop dispenser, resulting in odd concoctions such as gin and coke.
When the bar was busy, the plaintiff, according to Mr. Burnett, seemed visibly
agitated by the additional pressure of having to deal with customers in line-
ups. Burnett said the plaintiff dropped glassware more often than was normal.

[148]     Actes does
both large and small remediation projects. The work involves the removal of
hazardous material, such as asbestos or mould, from the work site. In such
instances, a Hazmat suit and face masks are required to be worn by the field
employees to prevent the inhalation of harmful particulate. Employees are
required to be clean shaven in order to provide a proper seal for the face
mask. Failure to do can result in WorkSafeBC violations. Those employees who
attend unshaven are apparently directed off the site or must shave before
commencing work.

[149]     Ryan
Watkins works with the plaintiff at Actes. They met first at a pool hall in
2002. Mr. Watkins began at Actes before the plaintiff and had achieved a
supervisory level by the time the plaintiff was employed. The required training
for the position is two courses conducted over several evenings and one day.

[150]     Originally,
the plaintiff began working for Mr. Watkins at Actes during the Christmas break
of 2004. Mr. Watkins thought highly enough of the plaintiff to ask him to come
back to work for Actes in 2006. The plaintiff has been there ever since. He
requested the plaintiff for his crew. At trial, however, he testified that he
would not hire the plaintiff to work for Actes were Mr. Watkins in charge of
hiring.

[151]     They
worked together until separated by the superintendant, John Harris, who wanted
the plaintiff on another crew. It would appear that this coincided with the
plaintiff taking on supervisory responsibility. The plaintiff eventually
obtained the same credential as Mr. Watkins and, most of the time, is foreman
of his own crew.

[152]     When work
is slow and the crews reduced, the plaintiff will be re-assigned to work for Mr.
Watkins. Despite inviting the plaintiff to re-join Actes in 2006, Mr. Watkins
was less than glowing in his description of the plaintiff’s work ethic and
capacity. He testified that the plaintiff was forgetful and often did not bring
the proper tools to the job site. He said that he “could not be left alone for
too long without someone holding his hand.” He described the plaintiff as lazy
and not anxious to do physical labour. He forgets to shave; a clean shave is a
requirement of WorkSafeBC so that the facial respirators can achieve a full
seal to the face.

[153]     The
paperwork requirements of a supervisor are not onerous. It is the supervisor’s
job to get the time sheets of him and his crew into payroll before Monday
morning each week. Recently, the employer implemented a log system for
completion by the supervisors. Its purpose is to keep track of the work done
and any problems encountered on the jobs where the crew is working.

[154]     On the
other hand, Mr. Watkins was positive about the plaintiff’s ability to deal with
customers. Even though Mr. Watkins is the supervisor when they work together,
he leaves customer liaison to the plaintiff. He answers their questions and can
walk them through the process of what is going to happen in their home or place
of work. Mr. Watkins believes it is this skill which keeps the plaintiff in the
good books of his employer. Despite their friendship, Mr. Watkins testified that
he would not hire the plaintiff for the job he is currently performing.

[155]     Outside of
work the two remain friends. Mr. Watkins observed that the plaintiff is a poor
card player and is “aggressive and loud” when he plays. He is usually caught
out bluffing. If he is quiet, that means he has a good hand.

[156]     Mr. Watkins
was a passenger in the plaintiff’s car when the fourth accident occurred. He
testified as to the erratic driving of the unidentified motorist but did not
say that the plaintiff sustained any observable injuries.

[157]     Mr. Watkins
agreed with others who said that the plaintiff has difficulty maintaining his
temper and that he can quickly become upset over matters of no consequence.

[158]     John
Harris was the former general superintendant at Actes. He worked there until
the summer of 2009. During his tenure with Actes, he was the person who
directly oversaw the plaintiff’s work.

[159]     Actes has
anywhere between 30 to 50 employees depending on the work load. The plaintiff
was promoted to a supervisory position while Mr. Harris was still employed at
Actes. He said that the plaintiff was promoted, “because we got busy.” Nonetheless,
he acknowledged that the plaintiff was in the middle of the pack when it came
to making mistakes and that he was a good worker. Mr. Harris would hire him as
a worker.

[160]     The
defendants called Michael Fleming, an owner of Actes, and Annette Turgeon, the
plaintiff’s supervisor during an internship at Corrections Canada.

[161]     The thrust
of Mr. Fleming’s evidence was that the plaintiff was a good employee who had
been promoted on two occasions, initially to lead hand and later to
supervisor/foreman. Mr. Fleming rated the plaintiff in the middle of the pack
of his nine supervisors.

[162]     Mr.
Fleming did not testify as to any disciplinary steps taken by Actes against the
plaintiff for errors, tardiness, or WorkSafeBC violations, nor was he asked
about same on cross-examination.

[163]     Mr. Fleming
did not provide evidence, nor was he asked, about the plaintiff’s absenteeism,
particularly as it related to the period following the fourth accident.

[164]     Nor was
Mr. Fleming asked about Mr. Harris’s assertion that Mr. Fleming and Mr. Morrey
had discussed firing of the plaintiff.

[165]     Annette
Turgeon, the plaintiff’s supervisor from January to March 2006 at Corrections
Canada, testified. Her evidence indicated that the plaintiff worked during an
internship, in part, as a data entry clerk her department at the Men’s
Correctional Center in Agassiz, British Columbia. According to Ms. Turgeon, the
plaintiff’s work was satisfactory but for his habit of late attendance. His
late attendance appeared to be chronic in nature from the employment records
referenced by Ms Turgeon.

[166]     No other
employer or co-worker was called in respect of the Plaintiff’s earlier
employment with Wosk or JYSK. The nature of the jobs required some assembly of
stock, specifically furniture. The plaintiff did not testify as to any
difficulties he experienced with any of these positions.

Lauren Barwick

[167]     Lauren
Barwick was the plaintiff’s girlfriend for almost five years. She is a
paraplegic as a result of a sports injury that occurred in 2000. She met the
plaintiff in 2001. She described him as being very inquisitive about her injury
when he first met her. She thought he was very forward.

[168]     After
additional contact they began seeing each other romantically. They saw a lot of
each other. For a period of time prior to their break up in 2006, they lived in
side-by-side duplexes and spent a lot of time at Ms. Barwick’s residence.

[169]     Ms.
Barwick stated that the most frustrating thing about the plaintiff was that he
would argue about things of little importance and then, part way through the argument,
it became apparent to her that he had forgotten the topic of disagreement. He
would become angry with her and accuse her of manipulating him or the
situation. He was poor with money and impulsive in his spending. He was
socially inappropriate at times and would swear at his mother for no good
reason.

[170]     She, like
Ms. Tupper, noticed that he had trouble getting restful sleep and was very hard
to awaken in the morning.

[171]     Despite
requests she made to hear him play the saxophone, he never played for her. She
did not say why he declined.

[172]     She stated
that his memory was poor and he was forever writing himself notes. She would
text him to remind him of appointments. However, Ms. Barwick indicated that he
could recall events such as anniversaries and birthdays better, in fact, than
her.

Perry Jampolsky

[173]     The
plaintiff, despite his reasonably good recollection of events surrounding all
three accidents of 1999 on discovery, recalled little of the detail in his
testimony. He was similarly unable to recall much of his employment history,
even when referred to his resume which detailed his job history up until 2002.

[174]     He could
not recall that his mother had attended with him at his appointment with Dr.
Ancill, nor did he recall his attendances upon either Dr. Rees or Dr. Janke.

[175]     He recalled
that he continued his musical pursuits up to 1999, until just before or after
the first accident, and then just started to “forget things.” Similarly, he
stopped playing chess with friends because it frustrated him.

[176]     He gave a
history of headaches dating back to elementary school and thought that he had
missed some school because of them. He still gets headaches, but they are not
as frequent now as they were when he was younger and prior to the accidents in
1999. He has not taken any prescription medicine but takes an Advil or two if
the headaches persist for a long time.

[177]     He
testified that the unpleasant smells which he began to notice following the accidents
in 1999 are not associated with his headaches.

[178]     Although
he knows of the bicycle accident of 1996, he has no personal recall of the
events. His knowledge of its happening and its effect upon him are provided by
the recollections of others.

[179]     His
evidence of the first accident was limited. His next recall following the
accident was falling in the shower. He thought this occurred the following day.
He remembers being dizzy and then going blank. He cannot recall how many other
times he fell.

[180]     He was
similarly unable to recall much of the detail of the second and third accidents,
nor of the consequences to him of either. He acknowledged that the statements
given to ICBC in respect of each would have been truthful and accurate.

[181]     He
described significant physical limitations with his back and volunteered that
he carried a cane in the back of his car. No other witness testified as to
having seen him using the cane. He removed his jacket during cross examination
noting it, “was putting a lot of pressure on me.” He was demonstrably
uncomfortable during most of his testimony and bent over grimacing on more than
one occasion.

[182]     He
commented that he was sore following the fourth accident and unable to go to
work for a week. He apparently did not seek medical treatment with respect to
those injuries and did not specify what part of his body hurt. He did not
testify with any detail as to the physical symptoms which arose from the first
three accidents or as to when he recovered from them. It is apparent from his
job history, and the duties described as part of position with Actes, that the
plaintiff has performed a number of physically demanding jobs since the first
three accidents.

[183]     One of the
witnesses, either Mr. Harris or Mr. Watkins, described jobs where the plaintiff
has been required to operate a small jackhammer overhead so as to deal with the
removal of ceiling tile.

[184]     The
plaintiff’s primary non-physical complaint is his memory, or lack thereof. He
perceives it as being the root of his relationship problems with Lauren Barwick
and the source of his insecurity at work. Most of his jobs go well but when he
forgets something he fears that his employer will react and terminate his
employment.

[185]     While the
plaintiff said that he had been accommodated at his employment with Actes by
John Harris or others who “covered for him,” he gave no evidence of any
specific disciplinary action taken against him by his employer, nor did John
Harris, his supervisor between 2006 and 2009. Mr. Harris did say that the
owners of Actes, Mr. Morrey and Mr. Fleming, had threatened to “get rid of him
a couple of times,” and noted that the plaintiff required more supervision than
other supervisors.

Dr. Raymond Ancill

[186]     The
plaintiff’s only medical expert was Dr .Raymond Ancill, a psychiatrist with
extensive background as a clinician dealing with the effects of MTBI.

[187]     Dr. Ancill
met the plaintiff twice in preparation of the two reports which were filed on
the plaintiff’s behalf. The first visit was in October 2006, more than seven
years following the first three accidents. It was one and half to two hours in
length. The second visit was in July 2007.

[188]     According
to Dr. Ancill, the term Mild Traumatic Brain Injury is a misnomer. In his
opinion, there is nothing mild about a brain injury. While many “mild brain
injuries” go on to full recovery, approximately 15% do not. The plaintiff,
according to Dr. Ancill, falls into the latter category.

[189]     MTBIs are
seldom visible on CT scans or MRIs owing to the fact the damage occurs,
generally, to a small area of the brain beyond the imaging capacity of either
the MRI or the CT scan.

[190]     The
hallmark of MTBI, according to Dr. Ancill, is a sudden change in behaviour and
function that can be traced back to head trauma. Dr. Ancill testified that in
the first few weeks and months following the trauma symptoms tend to be maximal
and then begin to improve. Recovery generally occurs within three months.  Approximately
85% resolve within a year. The remaining 15% result in permanent symptoms.

[191]     Dr. Ancill
testified that a blow to the head is not necessary for the occurrence of a
brain injury. What is necessary is a significant force sufficient to cause the
brain to come into contact with the skull. An acceleration/deceleration force
such as that responsible for most “whiplash” injuries can be of sufficient
force to provide the mechanism for an MTBI.

[192]     Dr. Ancill
opined that the mechanism of the injury to the plaintiff was not head contact
with some other object but contact of his brain with the frontal skull.

[193]     Diagnosis
of an MTBI is based on pattern recognition of behaviour or, more importantly,
behavioural change, in the period following the trauma. The diagnostic criteria
utilized by Dr. Ancill were those set out in the CDC report referred to earlier.

[194]     Diagnosis
is pattern recognition on the part of the assessor. According to Dr. Ancill, the
more symptoms, the clearer the pattern. . Most of the symptoms, on their own,
are non-specific. A diagnosis is unlikely to occur on one complaint alone, but following
a pattern of complaints over a period of time.

[195]     For a
diagnosis of MTBI there must be an initiating event. The symptoms alone do not
result in a diagnosis without there being evidence of trauma to the brain. One
of the hallmarks of such trauma is retrograde amnesia, a period following the
trauma where the patient has either dense amnesia or a period of discontinuous
memory.

[196]    
In diagnosing the plaintiff Dr. Ancill was provided with a letter from
the plaintiff’s counsel which contained instructions and the following information:

Please be advised that we act for Perry Jampolsky in a claim
arising out of the above-noted motor vehicle accidents. Mr. Jampolsky is
reported as having the following injuries.

1.         bruising and swelling on the head;

2.         blackening of both eyes;

3.         injury to the neck and musculature of the
shoulders;

4.         bruising on the right shoulder and chest;

5.         injury to the mid back;

6.         injury to the lower back;

7.         bruising over the pelvic area; and

8.         injury to the knees, including lacerations,
bruising and swelling.

At our request you have agreed to see Mr. Jampolsky, for the
purposes of an assessment on 26 October 2006, and you will record your findings
in a report addressed to these offices.

We ask that you please contact the writer prior to writing
any report.

To aid you in your assessment we enclose a binder containing
all medical records obtained to date.

We shall endeavour to obtain
educational, employment and work records and we will forward same to your
attention. Please contact the writer should you require any further information
regarding this accident or claim.

[197]     In his
meeting with the plaintiff and his mother Dr. Ancill took a history of the
accident and the events which followed. The plaintiff told Dr Ancill that he
had no recollection of the actual collision of first accident, and that his
recollection was primarily based on what he had been told. His memory was “discontinuous,”
in that there was recollection of events throughout the aftermath following the
accident but not a coherent memory of the sequence of events. While the
plaintiff did recall speaking to a firefighter and paramedic, he had no memory
of speaking with his mother at the scene of the accident or being transported
to and examined at Surrey Memorial Hospital.

[198]     Ms.
Jampolsky told Dr. Ancill that her son was, “babbling away…hyper and jumbled.”
She did not advise Dr. Ancill that this was also her perception of Marc.

[199]     No
recorded discussion took place about headaches immediately following the first accident
and in its aftermath. Given the presence of persistent headaches on the CDC
checklist, had either the plaintiff or his mother mentioned headaches, I
conclude that Dr. Ancill would have referenced these in his initial report.

[200]     Dr. Ancill
asked Ms Jampolsky what, if any, changes she had observed in her son since the
accidents. She advised that his “thinking was slower” and that he “complained
of numbness in his hands.” She also told Dr. Ancill that he no longer played
the saxophone or clarinet and that, “he could not remember how to play.” She
did not mention his increased irritability, sensitivity to light, or
impulsivity.

[201]     Dr. Ancill
stated that he did not need to know with particularity what was meant by
“thinking slower,” only that the plaintiff’s behaviour had changed from his pre-accident
presentation.

[202]     Unlike Dr.
Janke, who commented on the plaintiff’s presentation, Dr. Ancill made no
mention of whether the plaintiff’s demeanour and presentation was consistent or
otherwise with his stated complaints. He did state that the plaintiff was,
“cooperative and pleasant and did not show any tangentiality, perseveration or
confabulation.”

[203]     Ms.
Jampolsky also relayed the plaintiff’s complaints of foul smells which others
could not smell and that he was dizzy “after the accident” and would fall over.
She stated that, “One time he passed out in the bath.” She did not mention
other falls despite her evidence that such was a recurring event causing her to
prohibit her son from locking the bathroom door when he showered.

[204]     Finally,
Dr. Ancill was told that the plaintiff had recently broken up with his
girlfriend (Ms. Barwick) owing to discord over his poor memory. The plaintiff
relayed that he easily became frustrated and irritable and that he was not like
that prior to the accidents.

[205]     Despite
asking about previous injuries, Dr. Ancill was not told of the previous bike
accident by either the plaintiff or his mother.

[206]     Dr. Ancill
reviewed the Hamilton Depression rating scale, a test designed to determine the
presence of depressive behaviour, and found the plaintiff just above the normal
range. He concluded the plaintiff did not meet the formal criteria for major
depression.

[207]     Dr.
Ancill’s diagnostic technique, where the referral is from counsel as was the
case here, is to review the retainer letter from counsel, have the patient
attend for an interview, and to then read the accompanying information which
counsel provided.

[208]     Following
his interview of the plaintiff and his mother. Dr. Ancill reviewed the
information included in the package he received from counsel. He never obtained
the plaintiff’s school records despite the reference to them in the letter and
the fact that counsel had them at the time the letter was written. Dr. Ancill
acknowledged under cross-examination that a proper history would include
information about the plaintiff’s pre-accident academic performance.

[209]     Dr. Ancill
had access to the clinical records from Surrey Memorial Hospital but made no
reference to any observations contained in them which indicated any concerns on
the part of the attending physician.

[210]    
He also received the consultation report of Dr. Richard O‘Brien, a
neurologist. Dr. O’Brien did not give evidence nor was his consultation report
admitted into evidence.

[211]    
After concluding that the plaintiff had a “brief period of dense post
trauma amnesia followed by a longer period of discontinuous memories,” Dr.
Ancill stated:

What is troubling is after the
first motor vehicle accident he stopped playing his musical instruments. He
said he could not remember how to play and this loss of skill is suggestive of
his having sustained a brain injury and (sic) the accident. This loss of
musical skill was combined with a change in his personality and behaviour, as
confirmed by his mother. This, too, is suggestive of brain trauma. His
increased difficulties in grade 11 mathematics may also point to his having
sustained a brain injury.

[212]     Dr. Ancill
apparently made no further inquiry into the plaintiff’s loss of the ability to
play musical instruments despite it being central, it would appear, to his
diagnosis of an MTBI with ongoing symptomology.

[213]    
In the report stemming from the visit in October 2006, Dr. Ancill
opined:

1.         The
plaintiff was suffering from MTBI at the time he first interviewed him; and

2.         The
precipitating cause was of the injury was the accident of June 26, 1999.

[214]    
Under the heading “Facts and Assumptions”. Dr. Ancill stated:

9.         Mr. Jampolsky was reported as having bruising on his
head, bruising around both eyes, injuries to the neck muscles of the shoulders,
bruising on the right shoulder and chest injuries to his mid and lower back,
bruising over his pelvis and injuries to both knees including lacerations and bruising.

10.       Mr. Jampolsky was unclear which accident occurred
next but he described that in one of them the driver and sole occupant of the
vehicle. He was stationary at a red light when his vehicle was struck on the
side by a Harley Davidson motorcycle. He said that the car was jolted in (sic)
his head struck the side of the door just above the window stop he said his car
was pushed over a foot.

…

19.       Regarding his past
medical and psychiatric history, Mr. Jampolsky suffered from the usual
childhood illnesses and had a surgical repair of a hernia and (sic) five months
of age. He said he was in good physical and mental health prior to the first
accident and denied any prior psychiatric history.

[215]     Each of
those assumptions is substantially or totally wrong.

[216]     Nowhere in
the evidence is there support for the conclusion of facial bruising or
contusions on the plaintiff’s head. In his evidence at trial, Dr. Ancill
testified that head contact was not necessary for an MTBI to occur. Despite his
original assumption that the plaintiff suffered facial bruising, he attributed
the trauma to an acceleration/deceleration injury.

[217]     Further,
the account given of the second accident by the plaintiff, and relied upon by
Dr. Ancill, does not accord with the statement given by the plaintiff several
days following the accident.

[218]     Finally,
the plaintiff’s medical history was not as benign as was relayed to Dr. Ancill.
When asked of previous traumatic injury to the plaintiff, neither the plaintiff
nor his mother mentioned an accident in 1996 where the plaintiff was struck or
ran into a motor vehicle while riding his bike. He was not wearing a helmet at
the time and his head came into contact with either the side or hood of the
car. Mary Jampolsky did not refer to her son’s pre June 1999 headaches which
were debilitating enough to cause him to miss substantial school work.

[219]     Despite
having access to Dr. Tang’s clinical records referencing the head injury and
complaints of diminished memory as late as January 1997, Dr. Ancill explained
that he mistook the date of the entry for 1999 and assumed that the symptoms
related to the first accident. When he discovered his error, following the
preparation of his second report in July 2007, Dr. Ancill opined that the
previous concussive injury was more conclusive of his current diagnosis because
prior trauma makes the brain more vulnerable to subsequent injury.

[220]     Dr. Ancill
found nothing unusual in the omission of both the plaintiff and his mother of the
details of his 1996 accident, despite his acknowledgement in cross-examination
that a proper medical and psychiatric history is important to the diagnosis of
MTBI.

[221]     Another
feature of Dr. Ancill’s diagnostic technique worthy of note is that he does not
keep independent notes of the patient’s attendance or his subsequent reference
to material sent via counsel. Instead, he uses the notes taken at the time of
his interview and “morphs” them into the medical report which is ultimately
provided to counsel. That which Dr. Ancill considers unimportant is excised and
no record of his observation or impression is preserved.

[222]     The
difficulty with this technique is that it leaves no trace of details observed
by Dr. Ancill which, while unimportant to him, might be important to others
reviewing his opinion or to the Court when faced with Dr. Ancill’s inability to
recall detail which does not make it into the final report.

[223]     Dr. Ancill
arrives at his opinion, in this case that the plaintiff suffered traumatic
brain injury in the first accident, on the basis of the observations of
untrained lay people, in this instance the plaintiff’s mother, which provide
him with objective baseline data of the plaintiff’s prior personality. He then
determines from subsequent observations whether changes have occurred which can
only be explained by reference to an event causing brain injury.

[224]     No follow
up was done with other persons close to the plaintiff who could provide the
necessary pattern of behavioural changes on which to found the diagnosis of an
MTBI.

[225]     In his
report of November 2006, Dr. Ancill references a passage from the consultation
report of Dr. O’Brien where the plaintiff apparently told Dr. O’Brien that his
brother, Marc, advised the plaintiff that he had struck his head in the collision.
Dr. Ancill noted that, “it would helpful to obtain collateral information from
Mark Jampolsky regarding this.”

[226]     No such
follow-up was undertaken. Marc’s evidence was devoid of any mention of head
contact by his brother or that he had ever told his brother such.

[227]     Dr. Ancill
conceded in cross-examination that of all the patients he treats or clients he
sees, he concludes that 90% of them present with MTBI.

[228]     Dr. Ancill
was aware of the second and third accidents but placed no particular
significance upon them in terms of explaining the plaintiff’s enduring symptoms,
despite the fact that the plaintiff reported that his head had struck the side
of the car in the second accident.

[229]     The second
accident was depicted as a minor scrape in the plaintiff’s statement. In his
report to Dr. Ancill in October 2006, the plaintiff told him, “His vehicle was
struck on the side by a Harley Davidson motorcycle. He said the car was jolted
in (sic) his head struck the side of the door just above the window stop he
said his car was pushed over about a foot.” This is clearly at odds with the
statement provided to ICBC and adopted by the plaintiff, at trial, as being
truthful.

[230]     A
subsequent visit in 2007 resulted in a further report by Dr Ancill confirming
his diagnosis. Dr. Ancill attributed the plaintiff’s experiencing unpleasant
smells undetectable to others to paranosmia, and related the condition to the
brain injury he received from the first accident. In his second report, Dr.
Ancill notes that the paranosmia earlier thought to be associated with a
possible seizure disorder was also associated with traumatic brain injury.

[231]     In his
second report, Dr. Ancill recites that, “Mr. Jampolsky has started to get
headaches again. These were more frequent and more severe after the MVA, then
improved but had become worse over the last year-now two or three per month.
There appeared to be a relationship with job stress.” Given that there was no
reference in Dr. Ancill’s earlier report to the plaintiff having suffered
headaches following any of the 1999 accidents; it is difficult to understand
this reference.

[232]     In neither
of the interviews was the plaintiff subjected to any objective testing
regarding his complaints. Dr. Ancill accepted all of the complaints at face
value. He expressed no reservations about the lack of objectivity of either the
plaintiff or his mother. The best information comes, he thought, from those who
knew the plaintiff well and were in contact with him in proximity to the traumatic
incident. Despite that, his opinion is founded on one interview with the
plaintiff and the plaintiff’s mother.

[233]     Dr. Ancill
was not provided with the plaintiff’s examination for discovery transcript
which provided a more detailed recount of the accidents than that given to Dr.
Ancill in October 2006. Nor was he given the plaintiff’s statements to ICBC
following second and third accidents.

[234]     In his
initial report, Dr. Ancill concluded, based on the history given him by the
plaintiff and the plaintiff’s mother that the plaintiff suffered a period of
“dense post trauma amnesia” followed by a period of “discontinuous memory”
after the first accident. He concluded that the most probable cause of the
symptoms relayed to him by the plaintiff, the plaintiff’s mother, and later Ms.
Tupper, was that the plaintiff suffered an MTBI in the first accident.

Dr. Howard Tang

[235]     Dr. Tang
was the plaintiff’s general practitioner for many years prior to the first accident.

[236]     He saw the
plaintiff following the bike accident of 1996 and noted a history of headaches
which followed into 1997. In January 1997 the plaintiff attended and complained
of decreased memory. This is the only record Dr. Tang has, prior to the accidents
in 1999, which relate to cognitive deficit.

[237]     However,
no permanent sequalae of the 1996 accident were noted by Dr. Tang, nor was any
specific treatment administered. The plaintiff continued to do well in cadets
but his academic performance deteriorated for the school years 1997/1998 and
1998/1999.

[238]     On June 9,
1997 the plaintiff attended Dr. Tang complaining of wrist and arm pain and
reported a “head injury the day before.” The plaintiff denied loss of consciousness
but complained of dizziness. Dr. Tang testified that there were no findings
upon examination. No further details were provided.

[239]     Subsequent
attendances by the plaintiff upon Dr. Tang prior to the series of accidents in
1999 were for complaints unrelated to any cognitive deficit, although he did
attend complaining of headaches in 1998.

[240]     Following
the first accident, and prior to the second and third accidents, the plaintiff
attended Dr. Tang on two occasions.

[241]     On the
first visit of June 29, 1999 Dr. Tang recorded a series of complaints related
to soft tissue injuries which commonly flow from collisions such as was
experienced by the plaintiff. There was no apparent complaint concerning loss
of concentration or any issues associated with mood or cognitive function. The
plaintiff did not complain of headaches. There was seemingly no report of the
fall in the bathtub which occurred within days of the accident.

[242]     At the
visit of July 6, 1999 the plaintiff mentioned that he was “forgetful” and
reported, “that his lawyer suggested a CT scan.” The plaintiff specifically
related that he experienced no loss of consciousness and had been alert since
the accident. Dr. Tang did not think a CT scan was warranted. No other symptom
was recorded by Dr. Tang nor was any other treatment administered.

[243]     The plaintiff’s
next visit was on August 30, 1999, over two weeks following the third accident.
The plaintiff complained of cough-like symptoms. No mention was made of the second
and third accidents he had been involved in, nor did the plaintiff make any new
reports about symptoms relating to his mood, cognition, light sensitivity, or
smells. Nor did he ever advise Dr. Tang, seemingly, that he was “dropping
things.”

[244]     In January
2000 the plaintiff attended Dr. Tang to report upper respiratory symptoms.

[245]     Not until a
visit of February 24, 2000, eight months following the first accident, did the
plaintiff complain of altered mood and fatigue. Blood tests were administered
and came back normal. The fatigue, according to the doctor’s notes, had been
present for three weeks. The plaintiff also complained of poor appetite.

[246]     By August
5, 2000, over a year following the first accident, the plaintiff complained of
light sensitivity and possible blackouts. Dr. Tang made a referral to Dr. 
O’Brien. The consultation did not result in any further investigation or
treatment by Dr. Tang.

[247]     In
November 2000 Dr. Tang provided a medical legal report to plaintiff’s counsel
wherein he diagnosed the plaintiff with multiple soft tissue contusions arising
from the accidents and opined that, “there was nothing to suggest intracranial
trauma.”

[248]     Subsequent
visits by the plaintiff, following preparation and delivery of Dr. Tang’s
medical report, were in respect of back pain which resulted from the plaintiff
wrenching his lower back. A course of treatment with anti-inflammatories was
administered.

[249]     After a
lengthy and productive cross-examination by plaintiff’s counsel referencing the
CDC publication regarding symptoms of MTBI symptoms, and with reference to the
Dr. Tang’s own clinical notes, Dr. Tang was asked whether he now thought the
plaintiff suffered from post-concussive syndrome. His answer, “Yes.”

[250]     In
re-examination, Dr. Tang reaffirmed that the plaintiff never complained of
symptoms suggestive of post-concussive syndrome until, at the earliest, February
2000.

Dr. Peter Rees

[251]     Dr. Rees
is a neurologist. Since approximately 2004 his practice has been largely
comprised of examining persons with suspected brain injuries on behalf of
defendants, principally ICBC.

[252]     In that
period Dr. Rees had not examined a litigant whom he found to have suffered an
MTBI where the symptoms lasted beyond two years. He opined that the plaintiff
had not sustained an MTBI in the first accident or any of those which followed
in August 1999.

[253]     The
plaintiff continues to present with symptoms over 10 years post-accident. This
factor alone, according to Dr. Rees, eliminates MTBI as the origin of the
plaintiff’s complaints.

[254]     Dr. Rees
also stated that the loss of the ability to play a musical instrument, such as
complained of by the plaintiff, could only occur where there was moderate to
severe brain trauma capable of being visualized on an MRI. He likened the skill
of playing the saxophone to riding a bicycle and rejected the notion that any
cognitive impairment affecting sequencing or memory was sufficient to result in
the loss of the ability to play.

[255]     Dr. Ancill
completely disagreed with this and testified that he was treating two patients
that had lost a core skill as a result of an MTBI.

[256]     Dr. Janke,
while of the opinion that the plaintiff did not suffer from an MTBI,
particularly as it related to loss of the capacity to play the saxophone,
acknowledged, in cross-examination, that an MTBI could affect the plaintiff’s
ability to sequence, such that his ability to perform the necessary fingering to
play an instrument might be affected.

[257]     Dr. Rees initially
testified that a Tesla 1.5 MRI could provide imaging of an area as small as 100
neurons in the human brain. I am satisfied that Dr. Rees was in error in this
regard. Although counsel suggested, and Dr. Rees ultimately adopted,
126,000,000 as being the smallest grouping of neurons visible on the Tesla 1.5,
counsel subsequently advised the Court of his own mathematical error resulting
in agreement that the actual number was 126,000. While the difference between these
numbers is significant, it still appears that Dr. Rees was outside his area of
expertise and was “guessing” at the degree of resolution.

[258]     Dr. Rees
was also reluctant to acknowledge that brain trauma could occur without contact
between the head and some other source. Although he acknowledged that an
acceleration/deceleration injury could result in brain trauma, he confined such
instances to situations where there as a concussive blast, such as that which
was experienced by troops in Afghanistan when an I.E.D. exploded. He was
resistant to the notion that an acceleration/deceleration injury of the type
commonly seen in motor vehicles accidents could cause an MTBI.

[259]     A major
difference in the opinion of Dr. Rees and Dr. Ancill is whether or not the
plaintiff experienced a “credible event” which would account for brain trauma.
During vigorous cross examination Dr. Rees acknowledged that he could not offer
an opinion on the tensile strength of brain matter, and that an
acceleration/deceleration impact could damage muscle tissue which he
acknowledged is denser than brain matter.

[260]     Dr. Janke,
the other defence expert, and Dr. Ancill were both of the opinion that a force
far less than that described by Dr. Rees could result in an MTBI.

[261]     Dr. Rees
accepted, without question, the veracity of the plaintiff when it came to
maters related by the plaintiff which tended to negate or be neutral as to the
existence of a brain injury, but questioned, without proper foundation, the
plaintiff’s truthfulness if his answer to a particular question came into
conflict with Dr. Rees’ rigidly held views as to the length of time the sequalae
from MTBI could persist and the extent to which an MTBI could interfere with
what he called core skills. He referred to the plaintiff’s response to queries
regarding whether he had undergone any sleep studies for his reported apnea as
“disingenuous.”

[262]     Both
psychiatrists were of the opinion that the sequalae from MTBI, while usually
lasting under two years, were capable of being permanent. Often, but not
always, psychological or psychiatric overlay came into play in such cases.

[263]     Dr. Rees
remained firm in his opinion that whatever the cause of the plaintiff’s
complaints, it was not an MTBI originating from any of the three accidents
which occurred in 1999.

Dr. Paul Janke

[264]     Dr. Janke
is a psychiatrist who saw the plaintiff on two occasions in 2008 on behalf of
the defendants. The interview was spread over two occasions because the
plaintiff arrived late for the initial appointment. Dr. Janke also had access
to the various medical records previously described.

[265]     He, like
Dr. Rees, was of the view that the first accident or those which followed did
not result in an MTBI. As to the second and third accidents, he opined that they
were insignificant insofar as the plaintiff’s cognitive well-being, and noted
that the only complaints following these two accidents related to his physical well-being.

[266]     The
plaintiff’s principal complaint relates to his memory. He described it to Dr.
Janke as “limited and hazy.” He also complained of ongoing pain in his back. He
was unable to attribute particular symptoms to the various accidents in which
he had been involved in up to 2008, and was uncertain, it would appear, as to
when his memory began failing and when he began dropping things.

[267]     He
reported headaches following the accidents but they improved over time. They
were of migraine like intensity causing him to almost pass out. He wore tinted
glasses at night because bright lights made him sleepy. None of this
information was relayed to Dr. Tang, the ICBC adjusters who dealt with the two
accidents of August 1999 nor to Dr. Ancill.

[268]     Dr.
Janke’s observation of the plaintiff’s presentation in both interviews was
unremarkable; the plaintiff’s speech was even and there was no evidence of word
finding difficulties. Despite his stated lack of memory, Dr. Janke felt that the
plaintiff was able to give considerable detail of the events he was describing
other than their timing.

[269]     Following
the fourth accident the plaintiff reportedly was very sore. He advised Dr.
Janke that he took two weeks off of work. He denied any new symptoms arising
from the fourth accident.

Dr. Dean Powers

[270]     Dr. Powers
is a vocational rehabilitation consultant engaged by the plaintiff to prepare a
vocational assessment of the plaintiff. The plaintiff attended Dr. Powers in
May 2010 and performed a battery of tests under the supervision of Dr. Powers
and a technician.

[271]     The
plaintiff was able to provide significant detail concerning his educational and
vocational history to Dr. Powers. Since leaving school, he reported to Dr.
Powers that he completed, in addition to English 12 and Math 11 Essentials,
certification in First Aid, Forklift Operator, Boom Operator, Scissor Lift Operator,
and Workplace Hazardous Materials Information System.

[272]     The
plaintiff presented to Dr. Powers as follows:

Mr. Jampolsky had no difficulty understanding the
instructions presented to him and did not require clarification. He was alert
and oriented. No obvious difficulties with focusing and maintaining attention
were observed. Auditory language comprehension appeared grossly normal. Speech
was normal. No difficulty comprehending more abstract concepts or complex
constructions was apparent in informal conversation. No problem with affect
regulation or restriction was seen. Expressed and observed affect were
generally neutral to positive. He appeared to work to the best of his ability
on all tasks.

During the testing session, it
was observed The (sic) Mr. Jampolsky has limitations for prolonged sitting
postures. He was observed to shift in his seat, stand up on occasion during
testing to relieve pain and stiffness.

[273]    
The plaintiff’s performance in mathematics, reading, and written
language were significantly below average to low average.

[274]     His short
term memory, working memory, and auditory memory for words were either average
or, in the case of working memory and auditory working memory, high average.

[275]     No tests
for longer term memory were administered.

[276]     Dr. Powers
concluded that the plaintiff was unlikely to be able to upgrade his education
formally unless the new training is of the “on the job” type with courses of
short duration, specifically several days.

[277]     Dr. Powers
recommended a Functional Capacity Assessment be carried out to ascertain
specific areas of limitations. A referral to a professional psychologist or psychiatrist
was also recommended for “unresolved” symptoms which have existed over a long
period of his post injury history.

[278]     According
to Dr. Powers, the plaintiff performed appropriately on the tests designed to assess
exaggeration or feigning of memory complaints and effort was described as
optimal.

[279]     Dr. Powers
was advised by the plaintiff that he worked the two days following the fourth
accident but, “did not return to work for two days following this.”

[280]     Dr. Powers
concluded:

In summary, Mr. Jampolsky is a twenty-eight
year old single man who was injured in three separate motor vehicle accidents,
the first two MVA’s occurring when he was seventeen years of age. Nearing the
eleventh anniversary of the first two MVA’s, there remains unresolved chronic
pain and physical limitations interfering with his ability to withstand many of
his present employment duties without aggravation. Yet, in interview with me on
May 10, 2010, Mr. Jampolsky stated that though he works as a Foreman in pain,
he is more concerned about his cognitive difficulties, especially memory. He
complained of ongoing psychological symptoms, which combined with pain and
cognitive problems, increase frustration and causes irritability on the job as well
as at home (Mr. Jampolsky has just recently separated from a long term relationship).
The impact of the combination of physical, cognitive and psychological problems,
he stated, threaten his ability to be competitively employable in his present job.
It is my understanding that Mr. Jampolsky had been receiving accommodations at
this job from his direct supervisor, whom he reported had also became a friend
-until recently – when this supportive/boss/friend left the company. Now, Mr. Jampolsky
is being supervised by new owners of the company and his mistakes, memory
difficulties and reduced physical ability is under scrutiny. He is concerned that
he will lose his job. He has been an employee with Actes Environmental for six years.

In my opinion,
and in light of the testing I conducted on May 10, 2010, Mr. Jampolsky is unsuitable
for upgrading his education formally unless the new training or upgrading is of
the "on-the-job" type of training, or at best, short duration courses
or programs lasting a few days, etc. He has problems with prolonged sitting,
concentration and elevated levels of irritability when frustrated, decreasing
his potential for doing well in formal education settings where rigid postures,
memory and alert cognitive focus are also essential to fully attending and
completing course requirements.

Dominic Shew

[281]     The
plaintiff was seen by Mr. Shew, a Functional Capacity Evaluator, in July 2010.
Mr Shew tested the plaintiff over the course of a day.

[282]     He
initially interviewed the plaintiff and took a pre-accident history. The
plaintiff provided a reasonably detailed medical and employment history
together with the history of the four accidents in which he was involved
between 1999 and 2007.

[283]     Apart from
his ongoing memory deficiency concerning the details of the accidents in 1999,
he gave a reasonably detailed medical and employment history. He advised Mr.
Shew of the 1996 bicycle accident.

[284]     Mr. Shew
tested the plaintiff for “reliability” and his results were consistent
throughout as showing appropriate and consistent reporting.

[285]     Mr. Shew
found significant impairment to the plaintiff’s ability to continually perform
manual labour. The primary reason was back and right shoulder pain. He
recommended physiotherapy to assist in the management of the plaintiff’s
physical complaints together with supportive footwear for both casual wear and
work.

Position of the Plaintiff

[286]     The
plaintiff submits that the only probable cause of his current cognitive and behavioural
complaints is an MTBI originating from the first accident and exacerbated in
the three subsequent accidents.

[287]     As a result,
the plaintiff seeks an award of general damages in the range of $125,000 to
$245,000, together with damages for loss of future employment capacity of
slightly in excess of $1,000,000.

[288]     The sum of
$77,000 is claimed for loss of interdependent relationship and $12,000 for
future care. The later amount is comprised of the costs of physiotherapy
treatments, cognitive training, and the increased cost of adaptive footwear.

[289]     The
plaintiff seeks $1,700 for past wage loss.

Position of the Defendants

[290]     The
defendants submit that the evidence falls short of discharging the plaintiff’s
burden of establishing that he suffered an MTBI in any of the accidents. They
concede that he has shown that he suffered soft tissue injuries in the first accident
and that those injuries were exacerbated by the second and third accidents.  They
submit that no injuries or wage loss have been proven in relation to the fourth
accident.

[291]     The
defendant’s suggest a global award of damages of $10,000 in relation to the first,
second, and third accidents.

Analysis and Conclusions

[292]     The three
accidents which occurred in 1999 undoubtedly resulted in soft tissue injuries
to the plaintiff as opined in the report of Dr. Tang in November 2000.

[293]     On the
totality of the evidence, including the evidence of the plaintiff and his
brother relating to the force of the impacts in the first and third accidents,
the statements of the plaintiff made to ICBC concerning the second and third
accidents, the video depicting the damage to the plaintiff’s vehicle in the first
accident,  and the absence of any complaints which might reasonably have given
rise to a suggestion of brain trauma in the second and third accidents, I am
unable to conclude that there was any head trauma in the second or third accidents
which resulted in an MTBI.

[294]     The
contact with the motorcycle in the second accident was modest. The plaintiff
acknowledged in his statement to the ICBC adjuster that, except for aggravation
of his neck pain, there was no worsening of his symptoms which, by then, had
80% recovered.

[295]     The third accident,
involving Mr. Janjua, was more significant in terms of impact. However, there
is no suggestion of head trauma in this accident. Marc Jampolsky stated that his
brother was “perfectly fine” following the accident. The plaintiff, in his own
words, felt his back and neck had worsened and he was “dropping things again.”

[296]     In short,
there was no credible event in either the second or third accidents such that such
that an MTBI could have resulted. If a MTBI occurred, it is as a result of the
first accident.

[297]     I conclude
that the soft tissue injuries sustained in the first accident had not resolved
by the time of the second accident, and that the effects of the first and
second accidents combined had not resolved by the time of the third accident.

[298]     Despite
evidence that the plaintiff continues to suffer back and shoulder pain, plaintiff’s
counsel suggests that the plaintiff’s current compensable complaints relate to
the MTBI claim.

[299]     Given the
gap in time between the three accidents in 1999 and the fourth accident, it is
improbable that any of his physical complaints endured from the first three
accidents to the fourth.

[300]     The
plaintiff clearly suffers from physical limitations. His own account of his
present physical situation, coupled with the findings of Mr. Shew, indicate
ongoing physical complaints of significance. The origin of these complaints is
not suggested to be any of the four accidents nor, on the evidence, does it
seem possible, let alone probable, that these symptoms have endured, undiagnosed
and untreated, for the past 10 years.

[301]     The
plaintiff, over the course of his working life, has performed a variety of
physically demanding jobs. He has never sought any form of treatment relating
to his soft tissue injuries. The medical records available to Dr. Janke, Dr. Ancill,
and Dr. Rees make mention of various attendances by the plaintiff upon medical
clinics after he ceased seeing Dr. Tang. None of the attendances relate to
injuries said to have been sustained in any of the four separate accidents.

[302]     As such, I
assess the damages for the soft tissue injuries from the three accidents which
occurred in 1999 globally at $14,000. The defendants, ICBC in the first and
second accidents, and Janjua and Parmar in the third accident, are jointly and
severally liable (Bradley v. Groves, 2010 BCCA 361).

[303]     As to the fourth
accident, there is a complete paucity of evidence as to the injuries, if any,
suffered by the plaintiff in that collision. The plaintiff seemingly did not seek
out medical treatment in respect of any injuries. Nowhere in the evidence did
he describe them other than to say, in effect, that he must have been hurt
because he took a week off work. He told Dr. Janke in 2008 that he had taken
two weeks off of work. He told Dr. Powers that he took two days off of work
although, in fairness, Dr. Powers’ review of the Actes employment records
seemed unclear on what days the plaintiff missed.

[304]     Given the
attendance of two employees and an owner/manager of his employer, Actes, to
give evidence, it would have been quite simple to elicit from one or all of
them the plaintiff’s attendance at work during the period following the fourth
accident.

[305]     An absence
from work in the period following the fourth accident would have been some
evidence of an injury of consequence. Here, I have nothing other than the
happening of the collision.

[306]     None of
the other witnesses called on the plaintiff’s behalf gave any evidence on which
I could meaningfully assess a significant award of damages in respect of the fourth
accident. It is incumbent upon the plaintiff to prove not only fault on the
part of the unidentified driver but, as well, that damages flowed from that fault.

[307]     Here, I conclude
the plaintiff suffered, at worst, at extremely mild soft tissue injury and I
assess his damages for the fourth accident at $1,000.00.

[308]     That
leaves the issue of whether the plaintiff suffered an MTBI in the first
accident.

[309]     The onus
rests with the plaintiff to prove, on the balance of probabilities, the causal
connection between his current cognitive and behavioural complaints and the
first accident.

[310]     The plaintiff bears the burden of establishing a causal link between
the defendants’ negligence and occurrence of an MTBI, the resultant pain and
suffering, loss of enjoyment of life, and the reduction in his income or income
earning capacity. He must establish, first, that the negligent act caused or
materially contributed to the damage he sustained and, if he can do so, prove
the measure of damages.

[311]     Here, because I have concluded that an MTBI could only have occurred
in the first accident, causation
is established by showing that but for the negligent act or omission of the
unidentified motorist the plaintiff’s injury would not have occurred (Athey v. Leonati, [1996] 3 S.C.R. 458; and Resurfice
Corp. v. Hanke, 2007 SCC 7).

[312]     I return
to the four part test for an MTBI earlier referenced, requiring:

(1)      A credible mechanism of injury
sufficient to cause damage to the brain tissues;

(2)      Demonstrable clinical effects of
brain injury at the scene of the accident;

(3)      In the weeks following
symptoms/and or findings consistent with a concussion; and

(4)      Longer term symptoms and findings
unique to brain trauma not explained or caused by other confounding factors.

[313]     I accept
that the collision of the first accident was of sufficient force and magnitude
to provide the credible mechanism all medical experts agreed was a necessary prerequisite
to begin the investigation.

[314]     As to the
demonstrable clinical effects of brain injury, Dr. Ancill concluded that there
was both dense amnesia and discontinuous memory sufficient to satisfy these
criteria. He did so solely on the basis of the self report of the plaintiff
more than seven years following the event and on the report of his mother who
attended the plaintiff at the scene and then drove him to the hospital.

[315]     Dr. Rees
suggests that the absence of clinical observations at the scene by someone
medically trained speaks against such a finding. With respect, I cannot agree
that I am precluded from finding that the plaintiff suffered a concussive
injury just because there were no medical personnel at the scene or at Surrey
Memorial Hospital who diagnosed the plaintiff with such injuries.

[316]     I place
little or no reliance on the opinion of Dr. Rees. He assumed, for much of his
testimony, the role of advocate as opposed to that of a disinterested and
detached expert. Nonetheless, the defendant is not obliged to disprove
anything. The onus of proof never shifts from the plaintiff to the defendant.

[317]     The
plaintiff relies on the opinion of Dr. Ancill, augmented by the observations of
lay witnesses, to discharge that burden.

[318]     Dr. Tang
was only qualified as an expert in the field of general medicine. His
conclusion, arrived at during cross-examination, that the plaintiff was
demonstrating symptoms of post-concussive syndrome is of little assistance
given his written report and the timing of the symptoms reported to him.

[319]     As earlier
referenced, some of the “facts” upon which Dr. Ancill relied to reach his
opinion are, at best, questionable.

[320]     While I
find Mary Jampolsky a credible witness, that does not mean I find her evidence
reliable. In describing the plaintiff’s actions at the scene of the accident,
she neglected to mention that her other son, Marc, appeared similarly agitated
and was babbling as well.

[321]     Her
testimony that the plaintiff was talking non-stop as they went to hospital is
in contradiction to that of Marc who described him as quiet. In her evidence at
trial, she described the plaintiff as having suffered headaches in the days
following the first accident. She made no mention of this to Dr. Ancill in
their meeting in 2006, four years earlier in time. There is no mention of a
history of headaches in the report to Dr. Tang.

[322]     Both the
plaintiff and his mother testified as to the fall in the bathtub in the days
immediately following the first accident. The unstated inference is that the
plaintiff feinted or blacked out as a result of the motor vehicle accident. In
the visits to Dr Tang on June 29 and July 6, 1999 there is no mention of this
significant event. Nor was the evidence consistent as to whether there were one
or more such falls. Marc Jampolsky testified that there were numerous such
falls over the time he and his brother lived together, but no time frame was
given for them.

[323]     While Dr.
Tang may well have been pressed for time in the consultations involving the
plaintiff, I am satisfied that he noted complaints made by the patient and the
history which accompanied them. I conclude that there is no note of the fall in
the bathtub because it did not happen within the time frame recalled by Ms.
Jampolsky and the plaintiff. Similarly, no complaints were made by the
plaintiff of headaches to Dr. Tang, only soft tissue injuries for which no
treatment was sought or proffered. Dr. Tang recorded, and I accept, that the
plaintiff described himself as “alert” in the time period following the
accident until his second attendance upon Dr. Tang.

[324]     In both
statements to ICBC in August 1999, there is no mention of any the road signs,
as taken from the CDC checklist, of an MTBI. In neither report did the
plaintiff complain of headaches. Dr. Ancill testified that the symptoms of an
MTBI tend to appear in the weeks following the event and peak within a month or
so following the injury. Thereafter, the symptoms tend to improve to complete
resolution in all but approximately 15% of cases.

[325]     The
available information concerning the plaintiff during this crucial period of time
appear to suggest that by the end of August ,1999, his symptoms were confined
to soft tissue injuries.. Twice in August 1999 he gave statements to ICBC
adjusters which belied any but soft tissue injuries save for the reference to
“dropping things again.” “Dropping things” does not appear to be a recognized
symptom associated with MTBI. There is no mention of any of the symptoms later
described to Dr. Ancill or by the witnesses who testified at trial. Similarly,
he saw Dr. Tang twice in a short period following the third accident and made
no mention of any complaints arising from the three accidents which are now
said to have caused MTBI.

[326]     The first
report of fatigue was in February 2000. It was of recent origin and remains
undiagnosed.

[327]     In
relation to the second accident, Dr. Ancill was told the plaintiff struck his
head as a result of a significant force to the right side of his vehicle. Several
days after the accident the plaintiff described it to ICBC as a scrape to his
car. The latter seems far more probable than the former.

[328]     As to the
plaintiff’s primary complaint of poor memory, Dr. Ancill formulated his opinion
in the absence of any objective data. He accepted, on the basis of the
information solely from the plaintiff and the plaintiff’s mother, that the
plaintiff’s memory was impaired. The only objective testing, albeit for short
term memory, belies that conclusion. Dr. Powers determined that the plaintiff,
when tested in 2010, demonstrated average to above average memory in the
various categories tested.

[329]     Further,
the evidence concerning the plaintiff’s memory from other sources is mixed. Ms
Barwick noted that the plaintiff was good remembering anniversaries, birthdays,
and the like. Others did not appear to know that he complained of memory issues.

[330]     In the
history given to both Dr. Powers and Mr. Shew, considerable detail was given by
the plaintiff about his employment history. This is at odds with his inability
to recall attendances upon Dr. Rees and Dr. Janke.

[331]     In his
work, the plaintiff was expected to oversee the performance of remedial work to
conform with the building code. There is no evidence of any deficiency in his
job performance as it relates to the actual performance of those duties.

[332]     Further,
Dr. Ancill seemingly accepted, without reservation, the plaintiff’s statement
that he had simply stopped playing musical instruments because he “lost the
ability.”

[333]     Both Dr.
Rees and Dr. Janke approached this stated symptom with scepticism. Both viewed
the loss of such a “core skill” as inconsistent with an MTBI. They opined that
it was similar to forgetting how to ride a bicycle. Both acknowledged such
could happen, but that the trauma to the brain had to be more severe than what
occurs within the definition of an MTBI.

[334]     Dr. Ancill
noted that two patients of his had experienced a similar loss of core skills.
Given the number of MTBI patients Dr. Ancill has treated it has to be seen as,
at least, unusual for such a loss to occur. Despite that, no inquiries were
made by Dr. Ancill beyond noting that the loss occurred. No follow up questions
of a diagnostic nature were conducted to try and determine when the loss
occurred in relation to the first accident. Whether it was graduated or sudden,
there was no investigation as to what efforts were made upon discovery by the
plaintiff, his mother, or brother to follow the matter up with Dr. Tang or any
other medical advisor. Marc Jampolsky offered no insight as to the timing or
reason of his brother stopping his musical pursuits.

[335]     While
agreeing that the lack of a proper medical history was an impediment to an
accurate diagnosis, Dr. Ancill was quick to point out that the prior injury in
1996 was supportive of his diagnosis because brain injuries are cumulative,
making the plaintiff more susceptible to an MTBI of lasting duration.

[336]     Despite
agreeing in cross-examination that obtaining and reviewing  the plaintiff’s
school records would be part of the history necessary for a proper diagnosis,
Dr. Ancill dismissed he records’ contents as meaningless without further
explanation as to the cause of the plaintiff’s poor performance in the his
later high school years.

[337]     Dr. Ancill
clearly described that symptoms of an MTBI appear in the first few weeks or
months following the credible event. No contrary view was offered by either Dr.
Janke or Dr. Rees.

[338]     Given the
caution I find I must exercise in accepting the evidence of Mary Jampolsky,
there is very little upon which to conclude that the plaintiff was experiencing
any of the symptoms within the time frame Dr. Ancill provided.

[339]     Marc
Jampolsky said he noticed changes in his brother four months after the first
accident. There was no corresponding event or specific evidence which he
referred to which gives me any confidence in the timing of his observation.

[340]     In
reviewing the evidence of Dr. Tang concerning the entries in the plaintiff’s
chart and the two statements given to ICBC, there is no objective evidence on
which to found the conclusion that the plaintiff was suffering from other than
a temporary bout of forgetfulness when he attended Dr. Tang on July 6, 1999.

[341]     Were it
otherwise, I conclude that the matter would have been raised in the following
visits with Dr. Tang in August of 1999 or in the statements made to the ICBC
adjusters.

[342]     The
mention of fatigue in February 2000 was of recent origin and appeared to
resolve. Given the subsequent diagnosis of sleep apnea, the appearance of this
symptom eight months following the accident does not support a conclusion that
the symptom is suggestive of an MTBI.

[343]     In the
testimony of Dr. Rees it emerged that apnea has two origins. The first, and
most common, is obstructive apnea. The condition occurs as a result of flaccid
skin in the airway causing snoring and sleep interruption. The most common sufferers
of obstructive apnea are stout to obese persons. The second type is central
apnea, which can occur as a result of a brain injury (albeit not an MTBI
according to Dr. Rees).

[344]     In the
absence of evidence that the plaintiff’s apnea is central apnea, for which
testing is apparently available, it is logical to conclude, given the plaintiff
is five foot nine and weighs 204-250 pounds, that he has obstructive apnea.

[345]     Whether apnea
accounts for reported lethargy and cited lack of motivation is difficult to say.
When coupled with the plaintiff’s penchant for keeping late hours, it is the
far more likely cause, in my view, given the time delay between the appearance
of this symptom and the first accident.

[346]     As against
a finding that the plaintiff’s fatigue and lack of motivation is an ongoing
concern, I look to the fact that the plaintiff held two jobs for much of 2006.
His employment history with his present employer is reasonably impressive both
for his progression from labourer to supervisor as well as his attendance
history.

[347]     His
previous work history appears to have been unaffected by the complaints he
currently presents with.

[348]     Lastly, if
another foundation is required to conclude that the plaintiff has failed to
discharge the burden of establishing an MTBI as having as having been
materially contributed to by the first accident, I return to the four part test
earlier referenced.

[349]     The
plaintiff, according to Dr. Powers, has chronic pain. Mr. Shew found the primary
impediment to the plaintiff’s performance of manual labour was ongoing back and
right shoulder pain. No medical practitioner has suggested these symptoms relate
to any of the four accidents before me. The plaintiff’s discomfort seemed
apparent both from his testimony and his appearance throughout the proceedings.
Its origins are unknown. However, coupled with sleep apnea, the pain syndrome
described by the plaintiff would be a confounding factor to explain some, if
not all, of the various symptoms which Dr. Ancill concludes are indicative of
MTBI.

[350]     In
conclusion, while I find that the collision of the first accident provides a credible
mechanism of brain injury, I am not satisfied that the evidence discloses that
the plaintiff demonstrated that there were demonstrable clinical effects of
brain injury at the scene of the accident, nor that in the weeks following were
there symptoms/and or findings consistent with a concussion. Lastly, I conclude
that the plaintiff’s apparent chronic pain syndrome, coupled with his sleep
apnea, both unrelated to the sequelae of the four accidents I am considering,
are confounding factors which provide a plausible explanation for some or all
of the complaints with which he presents.

[351]     The
plaintiff has not discharged the onus upon him; I conclude that he has not
suffered an MTBI. I therefore need not consider the other heads of damage
advanced by the plaintiff.

Costs

[352]     Unless
there are formal offers of settlement which might impact the question of costs,
the plaintiff is entitled to costs in each of the four actions before me. The
plaintiff is entitled to one set of costs for the trial and those pre-trial
procedures where all four actions were being dealt with.

“The Honourable Mr.
Justice Harvey”