IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121031

Docket: S18538

Registry:
Chilliwack

Between:

Graham Leon

Plaintiff

And

Dr. Kimphry
Michael Tu and Dr. K Tu MD Inc.

Defendants

Before:
The Honourable Mr. Justice A. Saunders

Reasons for Judgment

Introduction

[1]            
On the afternoon of October 28, 2004, the plaintiff, a 17 year-old
labourer at a window manufacturing company and part-time university student,
attended at the Chilliwack General Hospital emergency department for suturing of
a laceration he had sustained at work. He was discharged from hospital the next
morning with sutures in his hand, a basal skull fracture, and a significant
brain injury.

[2]            
The hand injury had occurred at about 1:40 p.m., when the plaintiff,
Graham Mair (formerly Graham Leon) was working with a chisel. He cut the
posterior of his left thumb, and cut the left middle finger at the knuckle; the
company’s first aid attendant treated the wounds with saline solution, applied
a bandage to the thumb, closed up the finger wound with a butterfly bandage and
wrapped it with gauze and tape. It was apparent that the finger wound would
require stitching. The company receptionist drove the plaintiff to the hospital.
He arrived there at about 2:00 p.m.

[3]            
After being triaged and waiting for a time in the waiting room, he was
brought to a gurney placed in the hallway, due to all of the acute care beds
being occupied. After a wait of about a further one-half hour he was seen by
the defendant, Dr. Tu, at about 3:40 p.m. Dr. Tu applied freezing to Mr. Mair’s
finger by injecting anesthetic, and then led him into a room (the “Treatment
Room”), where there was a sink with a high pressure water supply. Dr. Tu turned
on the cold water faucet and instructed Mr. Mair to hold his hand under
the stream of water. Dr. Tu intended this to aid in the cleaning of the
wound, prior to suturing. He then left Mr. Mair in the Treatment Room,
unattended.

[4]            
While Dr. Tu was absent, Mr. Mair evidently fainted, striking
his head on the floor. Dr. Tu recalls that a bystander informed a nurse
that Mr. Mair had fainted. The nurses’ notes state that Mr. Mair’s
loss of consciousness lasted “seconds”, however it is unclear whether anyone
actually witnessed his fall. Mr. Mair was found on the floor of the
Treatment Room. He was pale and sweaty. He was put on a gurney, and taken to
the acute care area.

[5]            
Mr. Mair complained of headache. Dr. Tu assessed him, and
proceeded to suture the finger. Because of the possibility of Mr. Mair
having sustained a head injury, Dr. Tu decided to keep him under
observation for a few hours. There is no record of Mr. Mair having been assessed
again between 4:00 p.m. and 6:45 p.m.

[6]            
At 6:40 p.m. Mr. Mair vomited. He complained of pain in the back of
his head, and he drifted off to sleep quickly. Dr. Tu suspected Mr. Mair
had suffered a brain injury, and a CT scan of the head was performed. The scan
showed evidence of a basal skull fracture, and a contrecoup-type injury in the
frontal lobes.

[7]            
Mr. Mair was transported to Royal Columbian Hospital by ambulance for
a neurological consultation. No neurological intervention was deemed necessary,
and he was returned to Chilliwack General Hospital and admitted. He was
observed overnight and discharged in the morning.

[8]            
A follow-up MRI investigation in November 2004 showed three areas of
hemorrhagic contusion and/or scarring in the frontal lobes, and at least thirty
additional areas of hemorrhagic diffuse axonal injury in the frontal, temporal,
parietal and occipital lobes.

[9]            
The foregoing facts are not in contention. At issue are both Dr. Tu’s
liability for Mr. Mair’s brain injury, and the severity of the resulting disability,
including in particular the extent of the loss of earning capacity, if any.

[10]        
There is a corporate defendant to this action, which I assume is a
management company. It was not implicated in any of the evidence before the
court. I refer throughout to Dr. Tu as the defendant.

Liability

[11]        
There appears to be some agreement amongst the defendant, and the two
expert witnesses on standard of care, as to the mechanism of the plaintiff’s
injury. The plaintiff called Dr. Brian Schwartz, a former staff emergency
physician at Sunnybrook Hospital, Toronto, as an expert witness, and the defendant
called Dr. Karen Wagner, a staff emergency physician with Providence
Health Care (St. Paul’s and St. Joseph’s Hospitals) in Vancouver. The expert
witnesses agree that Mr. Mair’s fainting episode was likely a simple
faint, technically referred to as vasovagal syncope, that is, a loss of
consciousness due to drop in pulse and blood pressure resulting from
stimulation of the vagus nerve. As explained by Dr. Schwartz, such
episodes are typically brought on by physical and/or emotional stress.

Evidence of the Plaintiff

[12]        
Mr. Mair purports to have good recall of the events leading up to
his faint. He recalls waiting about a half hour or so on the gurney before Dr. Tu
came along. The doctor introduced himself. He asked Mr. Mair his history
and asked if Mr. Mair had updated his tetanus shots. Dr. Tu took off
the bandage and looked at the wound. He said he would need to get his “tools”.
[That was Mr. Mair’s word – he also used the word “stuff”. I think it
unlikely that Dr. Tu had either of these words, but I did not have the
impression that Mr. Mair was purporting to quote Dr. Tu.]  Mr. Mair
assumed Dr. Tu was going to get things to treat the finger.

[13]        
Dr. Tu was gone for a couple of minutes and then came back. Dr. Tu
held up Mr. Mair’s hand, said to him something to the effect that he might
feel a pinch, and then proceeded to give him injections of anesthetic. Mr. Mair
does not remember if he was seated on the gurney or lying down at this point.
He recalls there having been injections at three different sites, all with one
syringe, at the base of his middle finger, on the palm side of his hand.

[14]        
Mr. Mair describes the injections as having been extremely painful.
Mr. Mair watched the whole time as Dr. Tu performed the injections.
He did not have any problem doing so; he did not find the injections disturbing
to watch, and he was not queasy or nauseous. There was a little bit of dried
blood on his finger, but that is all he remembers in terms of blood. The
insertions of the needle were somewhat painful, but the injections of the anaesthetic
solution caused a lot of pain. He testified that the pain level was “10 out of
10”, “really intense”. Mr. Mair recalls that he “tensed up”; he clenched
his jaw, and his toes curled. The second injection was then administered; it
was as painful as the first. Then there was a third injection, which he felt was
somewhat dull in comparison. He claimed to have a very clear recollection of
injections in three distinct sites.

[15]        
 Mr. Mair has no history of fainting spells. He has no history of
feeling faint or queasy at the site of blood. At no time during the injection
or immediately afterwards, in the Treatment Room, does he recall feeling faint
or nauseous. Although his hand hurt from the injection, Mr. Mair did not
say anything to Dr. Tu about the pain; he was just trying to be tough and
bear it. He wanted the procedure over with as quickly as possible so he could
get back to work. He does not recall if Dr. Tu asked him how he was
feeling, but he would have said that he was okay.

[16]        
Dr. Tu then asked Mr. Mair either to follow him, or to come
with him to the sink. According to the plaintiff, between the final, third
injection and getting up off the gurney to follow Dr. Tu was just a matter
of seconds. Mr. Mair stood up and followed Dr. Tu a short distance back
down the hall and around into the Treatment Room. It just took a few seconds to
walk this distance. Dr. Tu walked up to the sink and turned it on. He told
Mr. Mair to hold his hand under the water, and said he would be back in 10
minutes.

[17]        
Mr. Mair’s evidence was that Dr. Tu then said something like,
“some people faint, but I think you’ll be okay”. Mr. Mair was not feeling
faint. He placed his hand under the tap. He recalls that he was very
uncomfortable, and concentrated on just trying to keep his hand under the
water.

[18]        
All-in-all, Mr. Mair thinks he was with Dr. Tu for about five
minutes. Mr. Mair testified that Dr. Tu seemed busy and preoccupied.

[19]        
Mr. Mair testified that Dr. Tu had not explained to why his hand
was to be placed under the water. Dr. Tu did not say the purpose was to
flush out the finger. It was cold water; Mr. Mair assumed that maybe the
cold was to help with the freezing. Dr. Tu did not confirm the extent of
the freezing before asking Mr. Mair to put his hand under the water. Dr. Tu
did not ask if Mr. Mair was okay with washing his hand. He did not ask Mr. Mair,
before leaving the Treatment Room, if Mr Mair was comfortable being left alone
at the sink.

[20]        
The next thing Mr. Mair remembers is waking up on a gurney close to
the nursing station. He was confused and embarrassed; he realized he was in a
hospital but thought he had slept in and missed work.

[21]        
Mr. Mair also testified as to treatment he received at Chilliwack
General Hospital in April 2005 when he attended to have a cut to the palm of
his hand sutured. He had anesthetic injected into the palm, and the wound was
irrigated and then stitched with him in being in a seated position.

[22]        
Similar evidence was given by his employer’s first aid attendant Mr. Thompson,
as to a hand injury Mr. Thompson suffered in July 2003. He went to Chilliwack
General Hospital’s emergency department. The wound was frozen, irrigated with a
syringe and then sutured. Mr. Thompson was not asked to stand at a sink to
have the wound washed.

Evidence of Dr. Tu

[23]        
Dr. Tu obtained his MD from the University of Alberta in 1999. Following
his graduation, he was a resident for three years; in the last year of his
residency, he obtained certification as a family medicine practitioner, with
special competency in emergency medicine. He had been working at Chilliwack
General Hospital’s emergency department since July 2002.

[24]        
Dr. Tu does not have a good recollection of the events surrounding
the plaintiff’s accident. He testified to having a vague recollection of Mr. Mair,
some recollection of administering the anesthetic block, and a vague
recollection of suturing him. He also recalls speaking with Mr. Mair’s
father after the fainting episode, and providing him with an explanation as to
why Mr. Mair fainted, though he does not recall the details. To some
extent, Dr. Tu was able to testify on the basis of his usual practice as
to what he would likely have done that afternoon.

[25]        
Dr. Tu had sworn an affidavit in this proceeding, in support of a
summary judgment application, in which he purported to give detailed evidence
of his recollection of the events in question. However, it emerged on his
cross-examination at trial that this affidavit evidence was virtually all
either based simply on his usual practice, reconstruction on his part on the
basis of the hospital records, or conjecture.

[26]        
Dr. Tu does not have a clear recollection of his conversations with
Mr. Mair during his initial assessment and treatment, when Mr. Mair
was on the gurney in the hall. Dr. Tu also does not have a recollection of
their brief time in the Treatment Room prior to Mr. Mair fainting. He has
no clear recollection of Mr. Mair’s demeanour at any time, nor as to how Mr. Mair
tolerated administration of the local anesthetic. Dr. Tu maintained, in
his cross-examination, that some memory of the events in question has slowly
come back to him through the course of this litigation, through having
repeatedly gone through the records and reviewed the incident in his own mind.
I did not, overall, find his evidence reliable.

[27]        
Dr. Tu is a professional, and Mr. Mair was in his care. Having
known within a short period of time following his treatment of Mr. Mair
that Mr. Mair had suffered a serious injury with potentially devastating
consequences, I would have expected Dr. Tu to document his evidence of
what had transpired with considerable care. I was struck by his inability to
give a reliable account of the events in question.

[28]        
Dr. Tu testified that upon seeing Mr. Mair for the first time,
he went through his standard practice of introducing himself, verifying the
patient’s identity, reviewing the chart and triage notes and eliciting further
history from the patient. He made a note on the chart that the injury had
involved a “clean metal chisel”, meaning that the wound was not grossly
contaminated. The wound definitely required suturing. Dr. Tu testified
that his thought would have been that the wound needed exploration, and
irrigation under pressure; to facilitate that, he said, he would need to anesthetize
the entire digit. The best way to do that was through a “ring block” procedure.
Dr. Tu testified that he would typically explain the procedure in layman’s
terms: “I will freeze your whole entire finger using a number of needles”, or
words to that effect.

[29]        
Dr. Tu then would have filled a syringe with anesthetic, typically
from a vial located at the nursing station. He then would have administered the
ring block to Mr. Mair’s hand. This would have entailed, first, making an
injection from the back of the hand into the web space between the index and
middle fingers, with the needle being oriented 90° towards the palm, directing
the anesthetic to the digital nerve, which sits on the palmar side. About a 1
cc dose would be administered. The needle would then be partially withdrawn,
and then re-oriented so that it was pointing across the base of the middle
finger towards the ring finger. Another 1 cc of anesthetic would be injected,
and the needle would be withdrawn completely. Following that, the syringe would
be inserted again on the opposite side of the middle finger, in the web between
the middle and ring finger. Again, a dose of 1 cc would be injected.

[30]        
Dr. Tu denied that the three doses would have been administered on
the palmar side of the hand, which was what Mr. Mair remembered. He was
taught not to administer anesthetic to a nerve on the palmar side; there is too
much risk of lacerating the nerve or an artery.

[31]        
Dr. Tu does not exactly remember what he did after he withdrew the
needle for the final time. The needle would have to be disposed of in a sharps
container. Typically, he said, he would walk to the nearest container, dispose
of the syringe, dispose of his gloves in the garbage, and then return to the
patient. He would then have escorted Mr. Mair into the Treatment Room. He
does not think it likely that he disposed of the needle at the same time as he
was walking Mr. Mair into the Treatment Room, although there was a sharps container
in the Treatment Room. Dr. Tu implied that it would be risky to walk with
an exposed needle, while at the same time paying attention to the patient
walking behind him.

[32]        
Dr. Tu’s usual practice in such cases is to irrigate wounds at a
sink. He was trained that a water stream with pressure of 30 psi should be
generated to clear the wound. Tap water can achieve that pressure. There was
another sink in front of the nursing station, but that is a busy location and
typically patients were not taken there. The sink in the Treatment Room was the
practical alternative. Its configuration was such that it would have been very
awkward to have Mr. Mair seated at that sink; to get his whole arm over
the sink and then for him to be able to see where his hand was positioned. Dr. Tu
testified it was therefore preferable to have Mr. Mair stand.

[33]        
Dr. Tu has no clear recollection of what he said to Mr. Mair. Typically,
he would tell a patient they were going to wash out the wound under a
pressurized faucet. He has no clear recollection of walking with Mr. Mair,
nor of what he did or what he said when with him at the sink. Typically, he
would turn on the tap, take the patient’s hand and direct it under the stream,
and then probably direct the patient to hold his hand under the stream and wash
it for five minutes. He would also tell a patient to return to their gurney
after they had washed the wound. Dr. Tu believes he would have anticipated
that it would take longer than five minutes for full freezing to take effect,
but he was going to attend to another patient, so by the time he saw Mr. Mair
again the finger would likely be frozen and ready for suturing.

[34]        
Dr. Tu estimated that from the first insertion of the needle, to
the last extraction, would have taken approximately one minute. From the last extraction
of the needle from Mr. Mair’s hand, to leaving Mr. Mair standing at
the sink, would have taken on the order of perhaps a minute in total, or
slightly longer. This, he said, would have included about 30 seconds to discard
the needle and walk back to the gurney. Dr. Tu agreed that Mr. Mair’s
estimate of them having spent a total of about five minutes together up to the
point when he left Mr. Mair at the sink was probably relatively accurate.

[35]        
Dr. Tu does not remember saying, “some people faint, but I think
you’ll be okay.” He thinks it is very unlikely he would have said such a thing.

[36]        
Reviewing the emergency department’s records for the afternoon in
question, Dr. Tu believes that he then went to care for one or two
patients who had particularly complex problems. About ten minutes after he left
Mr. Mair at the sink, Dr. Tu was told by one of the nurses that a
bystander had reported that Mr. Mair had had a fainting episode.

[37]        
Dr. Tu agreed that the ring block procedure he administered can be
painful for a patient. In his experience, judging from the reactions that
patients have expressed to him in the past, the pain from the administration of
an anesthetic would typically last for seconds. From facial expressions or
patient reports, he can tell that the pain quite often dissipates completely
after the needle is withdrawn.

[38]        
Patients can react to a noxious or painful stimulus of this nature in a
variety of ways. One possible reaction is a vasovagal syncope.

[39]        
Such fainting episodes are quite commonly, though not always, preceded
by warning signs. These warning signs can include excessive sweating; irregular
eye movement; difficulties maintaining balance; patients expressing that they
feel faint; or a change of colour. Such typical prodromal signs are all related
to a drop in blood pressure. They come on quite quickly, and changes in the
patient’s appearance can be quite noticeable. Dr. Tu testified that if Mr. Mair
had displayed any prodromal signs, or said anything to indicate prodromal
symptoms when at the sink, he would have told Mr. Mair to sit down on the
floor right away.

[40]        
Dr. Tu acknowledged that another reaction which a patient might
have to a painful injection is the “fight or flight” response, typically
manifested with a surge of adrenaline.

[41]        
Dr. Tu testified that in his experience, when patients are going to
have vasovagal syncope from a noxious stimulus, they will usually do so within
seconds of the stimulus being administered. He testified that a patient can
remain at risk of a vasovagal syncope once a fight-or-flight reaction has
receded; this would be very uncommon however, though not physiologically
impossible.

[42]        
Dr. Tu conceded that some doctors might, at their discretion,
prefer to irrigate similar wounds at the bedside, using a catheter, rather than
having a patient do the irrigation at a sink. He agreed that he could have
obtained the same result in this case through performing irrigation of Mr. Mair’s
wound himself at the bedside. These two different methods are equally
acceptable in his view. He also agreed that if the patient is left on the gurney
for the irrigation procedure, there is less risk to the patient.

[43]        
Dr. Tu also conceded that no note was made of the plaintiff having
been assessed between the hours of 4 p.m. and 6:45 p.m. He cannot say whether
the plaintiff was in fact assessed during that time period.

Opinion Evidence of Dr. Brian Schwartz

[44]        
Two reports authored by Dr. Schwartz were tendered by the plaintiff
as opinion evidence on the standard of care, and Dr. Schwartz was
cross-examined.

[45]        
In his first report, Dr. Schwartz responded to questions put to him
by counsel. In particular, Dr. Schwartz was asked:

Was it appropriate to leave Mr. Leon
unattended in a standing position to irrigate his wound?

Dr. Schwartz answered:

Mr. Leon had at least three conditions that may have
contributed to his faint:

i)       a
recent painful injection;

ii)      assumption
of a standing position after lying or sitting;

iii)    re-examining of
his wound when preparing to wash.

While in general it is unusual for an otherwise young and
healthy male to have a fainting spell, in this case even a cursory risk/safety
assessment would have suggested strongly that this patient should have been
observed or placed in a safe position when wound cleansing was undertaken. If
staff were not in proximity, in my opinion the patient should have been on a
stretcher. It was inappropriate to leave him both standing and
unattended to irrigate his would.

[Emphasis in original.]

[46]        
Dr. Schwartz’s assumption that Mr. Mair may have re-examined
his wound was not proven in evidence. I did not find that, however, to affect
the weight of Dr. Schwartz’s opinion overall.

[47]        
In his second report, which was written in response to reports delivered
by the defendant’s counsel, Dr. Schwartz drew a distinction between
external cleansing of a wound and irrigation. He also reiterated his concern
that an injection could lead to a vasovagal incident. He said having a patient
wash the affected area themselves at a sink would, in ideal circumstances:

. . . be adequate for external
wound cleansing but not for irrigation. Washing the wound at the sink is not
adequate for irrigation, which requires the presence of a trained health
professional to perform. Indeed Dr. Tu’s emergency department notes
indicate that he irrigated the wound himself with normal saline prior to wound
closure with 4-0 prolene suture. Moreover if irrigation was required as Dr. Tu
suggests, there is no real necessity for cleaning the wound at the sink,
especially if it had been cleaned earlier at the workplace by the first aid
attendant.

[48]        
Dr. Schwartz’s report continues:

Comments have been made by my
colleagues in their expert reports regarding Mr. Mair’s level of comfort
as noted by Dr. Tu prior to the incident to provide support for the
practice of leaving the patient standing unattended at the sink to cleanse his
own wound. While this may be reasonable practice prior to an intervention such
as a painful injection, it is my opinion that afterward this practice is not
appropriate. While there is to my knowledge no evidence of length of time it
takes a painful injection to “wear off” and there is variability in patients’
pain tolerance, it is my clinical experience that a ring block is extremely
painful and can provoke a systemic reaction including a vasovagal syncope,
which, while uncommon, would not be totally unexpected as other experts have
suggested.

[49]        
In his evidence at trial, Dr. Schwartz agreed that the
susceptibility of individual patients to vasovagal syncope, and the amount of
stress required to trigger a vasovagal event in susceptible patients, varies
greatly. Similarly, individual tolerance of pain varies greatly. However, in
his experience patients can find ring block procedure injections to be very
painful. The stress of such an incident could lead to vasovagal syncope.

[50]        
Dr. Schwartz conceded that vasovagal episodes most commonly occur
during or immediately after the imposition of a physical or environmental
stress. It is relatively uncommon for a vasovagal syncope to occur sometime
after the imposition of stress. However, Dr. Schwartz testified that in
some individuals it would make sense that their predominant reaction to stress
would be a rush of adrenaline due to the fight-or-flight response, with a
period of increased risk of a vasovagal event as the adrenaline wears off.

[51]        
Dr. Schwartz agreed in cross-examination that there is no medical
literature he is aware of which addresses the subject of how emergency room
doctors and nurses should treat people to reduce the risk of injury due to
syncope within an emergency department. However, Dr. Schwartz stated that
though the risk of a vasovagal syncope may be small, it may not cost anything
to make sure that a person is in a safe environment. Although the risk of a
vasovagal event is individualized, Dr. Schwartz does not regard precautionary
measures to be entirely within the discretion of an individual medical
practitioner. He testified that he finds it very difficult to understand why,
in a case such as this, any patient would be left in a standing position
unattended after a painful administration of a local anesthetic.

Opinion Evidence of Dr. Wanger

[52]        
Dr. Wanger offered an expert opinion report tendered in evidence by
the defendant, in which she stated that given the absence of any indication
that Mr. Mair was feeling faint, it was appropriate for Dr. Tu to
leave him unattended at the sink performing the cleaning of his finger, this
being a common practice. Asked specifically whether it was appropriate to leave
Mr. Leon unattended in a standing position, she stated as follows:

Yes, it was appropriate to leave Mr. Leon unattended in
a standing position. Emergency physicians and nurses decide many times each
shift which patients should stay sitting/lying and which patients can stand. Fainting
is a risk that exists both in and out of hospitals; many people can relate a
fainting episode in their life. Irrigating a wound while standing at a sink is
something that many, if not most patients do prior to coming to the emergency
department.

Each patient is evaluated at the
time of treatment based on the nature of injury, how they appear to be
tolerating the injury and treatment thus far. Mr. Leon tolerated the
initial injury to his finger and the treatment by first aid at work without
difficulty. He tolerated without difficulty the exam by Dr. Tu and the
ring block. He stated that he felt okay to irrigate his finger by himself. It
is common practice to have patients perform cleaning and irrigation themselves
at a sink at emergency when they feel comfortable doing so. Such patients are
commonly allowed to be unattended: they walk unattended to x-ray when imaging
is required or they go to the bathroom unattended. Whether the patient is
unattended while irrigating a wound is usually a matter of where the closest
sink is and how much traffic is around in the department at the time.

[53]        
Under cross-examination, Dr. Wanger described the complexity of the
process of assessing a patient’s reaction to a painful stimulus such as an
injection, including the process of looking for subtle signs indicating that a
patient is possibly not being forthright in describing how they are feeling. She
conceded that a 17 year-old boy might be stoical, though experiencing
significant pain. However, in her own practice, if she had no concerns that a
patient was feeling faint, Dr. Wanger would regard it as acceptable to
leave them unattended, washing their wound. This is her pattern of practice,
and something she regards as prudent.

Analysis

[54]        
With the exception of his evidence as to the specific locations on his
hand where the anesthetic was injected, I accept the plaintiff’s version of the
events leading up to his faint.

[55]        
I accept the plaintiff’s evidence that Dr. Tu asked the plaintiff
to follow him into the room where the sink was located immediately after the
anesthetic was administered. While Dr. Tu maintained that he would have
taken a short time to dispose of the used syringe and his gloves first, I was
not persuaded by his reconstruction of events. The import of this is that walking
the plaintiff immediately into the Treatment Room shortened the time period
within which any manifestation of a vasovagal response could have become apparent,
prior to the plaintiff being left alone.

[56]        
The impression left by the plaintiff’s evidence, by Dr. Tu’s
inability to remember details of his interaction with Mr. Mair, and by the
fact that no note was made of the plaintiff having been assessed over a period
of approximately 2 ½ hours following his head injury, is that the emergency
department was likely very busy during the time period in question. This gives
rise to the possibility that Dr. Tu may have been acting under some time
pressure; I make no specific finding in that regard, but I do conclude that Dr. Tu’s
interaction with the plaintiff was likely hurried, as are many
patient/physician interactions in the setting of an emergency department.

[57]        
I find on the balance of probabilities that the plaintiff’s fainting
episode was a vasovagal syncope, resulting from the administration of
anesthetic, and that the fainting response was delayed as a result of Mr. Mair
also having an adrenaline reaction to the injections. While there is always a
risk of fainting, the administration of the anesthetic materially increased the
risk of harm, and I find it was this elevated risk which became manifest,
resulting in the plaintiff fainting and hitting his head on the floor.

[58]        
The onus is on the plaintiff to establish on the balance of
probabilities that Dr. Tu’s conduct deviated to an unacceptable degree
from the relevant standard of care. In medical malpractice cases, the standard
of care by which a defendant’s conduct is judged is usually that which is
established on the evidence to be the acceptable standard practice in the
medical profession. Thus, a physician is commonly held to the standard of an
ordinary, competent physician in the relevant field of practice or
specialization.

[59]        
The evidence in this case is not conclusive on the question of whether
there is or is not a standard practice or protocol commonly recognized within
the profession as to how the irrigation or cleaning of minor hand wounds is to
be conducted, relative to the administration of freezing. Dr. Wanger
regards it as prudent, normal practice to leave a patient to carry out a
flushing operation, unattended and in a standing position, following the
administration of local anesthetic. Dr. Schwartz, while he acknowledges
that some fellow professionals may act in this manner, cannot understand why
anyone should do so. The evidence of the plaintiff and of Mr. Thompson
suggests at least that there is no standard protocol followed at Chilliwack
General Hospital.

[60]        
The defence did not take issue with Dr. Schwartz’s professional
experience being outside British Columbia; it was conceded that the standard of
care is or ought to be the same throughout Canada.

[61]        
In ter Neuzen v. Korn, [1995] 3 S.C.R. 674, Mr. Justice Sopinka J.
discussed the significance of expert evidence as to standard practices, in
respect of establishing the standard of care in negligence, and the question of
whether the court may substitute its own judgment as to what constitutes a
prudent procedure, without deference to common practice. The case concerned an
appeal of a jury’s finding of negligence on the part of the defendant, an
obstetrician and gynecologist. The plaintiff’s complaint was that she had
contracted HIV as a result of an unsuccessful artificial insemination procedure.
The trial judge’s charge to the jury had left it open to the jury to find negligence
either on the basis that the doctor had failed to comply with standard medical
practice, or alternatively that the standard practice was itself negligent. On
appeal, the B.C. Court of Appeal (in reasons reported at (1993), 81 B.C.L.R.
(2d) 39), drew a distinction between two aspects of the defendant’s practice. The
first aspect was the doctor’s decision to continue conducting artificial
insemination procedures in light of the then-current state of knowledge as to
the risk of HIV transmission. The other aspect was the screening and follow-up
of donors. The Court of Appeal held that the defendant’s liability with respect
to the screening and follow-up could potentially have been determined on the
basis of compliance with prevailing professional practice standards or on the
basis of the jury’s own view of those standards. However, the Court of Appeal
held that with respect to the first aspect, the doctor’s liability could only
be determined using practice standards as the standard of care. The jury, in
finding the defendant liable, had not distinguished between those two aspects
of the defendant’s practice, and it was therefore impossible to determine
whether the evidence supported their decision. The B.C. Court of Appeal ordered
a new trial.

[62]        
The Supreme Court of Canada dismissed the plaintiff’s further appeal. The
majority judgment of Justice Sopinka explained the rationale for determining a
physician’s liability, in matters calling for the exercise of medical judgment
or scientific expertise, on the basis of prevailing practice standards:

38 It is generally accepted that
when a doctor acts in accordance with a recognized and respectable practice of
the profession, he or she will not be found to be negligent. This is because
courts do not ordinarily have the expertise to tell professionals that they are
not behaving appropriately in their field. In a sense, the medical profession
as a whole is assumed to have adopted procedures which are in the best
interests of patients and are not inherently negligent.  . . .

[63]        
Justice Sopinka quoted from Professor Fleming’s The Law of Torts
(7^th ed. 1987):

40   With respect to the medical profession in particular,
Professor Fleming noted, at p. 110:

Common practice plays its most conspicuous role in medical
negligence actions. Conscious at once of the layman’s ignorance of medical science
and apprehensive of the impact of jury bias on a peculiarly vulnerable
profession, courts have resorted to the safeguard of insisting that negligence
in diagnosis and treatment (including disclosure of risks) cannot ordinarily be
established without the aid of expert testimony or in the teeth of conformity
with accepted medical practice.  . . .

[64]        
He then continued:

44   As was observed in Lapointe
[Lapointe v. Hôpital Le Gardeur, [1992] 1 S.C.R. 351], courts should not
involve themselves in resolving scientific disputes which require the expertise
of the profession. Courts and juries do not have the necessary expertise to
assess technical matters relating to the diagnosis or treatment of patients. Where
a common and accepted course of conduct is adopted based on the specialized and
technical expertise of professionals, it is unsatisfactory for a finder of fact
to conclude that such a standard was inherently negligent.  . . .

[65]        
However, Justice Sopinka also noted exceptions to this general rule
where triers of fact should have some discretion in finding a doctor’s course
of action negligent despite it being consistent with standard practice. His
quotation of the above excerpt from Professor Fleming’s text continued:

However there is no categorical rule. Thus an accepted
practice is open to censure by a jury (nor expert testimony required) at any
rate in matters not involving diagnostic or clinical skills, on which an
ordinary person may presume to pass judgment sensibly, like omission to inform the
patient of risks, failure to remove a sponge, an explosion set-off by an
admixture of ether vapour and oxygen or injury to a patient’s body outside the
area of treatment.

[Emph. in original]

41   It is evident from the foregoing passage that while conformity
with common practice will generally exonerate physicians of any complaint of negligence,
there are certain situations where the standard practice itself may be found to
be negligent. However, this will only be where the standard practice is
"fraught with obvious risks" such that anyone is capable of finding
it negligent, without the necessity of judging matters requiring diagnostic or
clinical expertise.

. . .

43   … Thus, it is apparent that conformity with standard
practice in a profession does not necessarily insulate a doctor from negligence
where the standard practice itself is negligent. The question that remains is
under what circumstances will a professional standard practice be judged
negligent? It seems that it is only where the practice does not conform with
basic care which is easily understood by the ordinary person who has no
particular expertise in the practices of the profession. That is, as Professor
Fleming suggests, where the common practice is fraught with danger, a judge or
a jury may find that the practice is itself negligent.

. . .

51   I conclude from the
foregoing that, as a general rule, where a procedure involves difficult or
uncertain questions of medical treatment or complex, scientific or highly
technical matters that are beyond the ordinary experience and understanding of
a judge or jury, it will not be open to find a standard medical practice
negligent. On the other hand, as an exception to the general rule, if a
standard practice fails to adopt obvious and reasonable precautions which are
readily apparent to the ordinary finder of fact, then it is no excuse for a
practitioner to claim that he or she was merely conforming to such a negligent
common practice.

[66]        
Justice Sopinka held that the same process of reasoning applies to cases
where the evidence falls short of establishing that there is a standard
practice (or by implication, falls short of establishing what the standard
practice is):

55   A related legal issue arises
with respect to the second aspect of this case. If the jury finds that the
evidence of standard practice does not establish that there indeed exist a
standard practice, can the jury fix the standard without reliance on expert
testimony? In my opinion, the answer to this question is the same as the answer
previously given. If the alleged act or acts of negligence are such that the
jury could reject expert evidence as to standard practice and set the
appropriate standard without reliance on expert evidence, then it can do
precisely that where the expert evidence fails to establish a standard
practice. In either case, the basic question is whether the nature of the issue
can be decided on the basis of the ordinary knowledge possessed by the jury or,
on the contrary, the matter requires expert evidence because it is beyond the
ken of the average juror.  . . .

[67]        
In the present case, the evidence establishes that there may be
situations in which flushing of a wound at a sink may be judged by an
individual practitioner as being reasonably necessary – for example, as conceded by Dr. Schwartz on his
cross-examination, to remove debris in order to mitigate the risk of infection,
prior to the wound being irrigated. The decision to perform a flushing or
cleansing procedure in such a situation would, it seems to me, likely be a matter
of medical judgment, requiring assessment of the nature of the wound, the
degree of contamination, the patient’s overall condition, and possibly other
factors. Being a matter of professional judgment, this would be an area where
the court ought to steer away from imposing its own view of the propriety of
engaging in such a procedure.

[68]        
On the evidence, I am not persuaded that the type of flushing procedure
which Mr. Mair was left to undertake at the sink, in a standing position,
was required. The wound was clean. There was no indication of it having been
contaminated with any debris. Dr. Tu offered no substantive explanation as
to why he considered the flushing of the wound at the sink to be necessary or
desirable. He conceded in cross-examination that in Mr. Mair’s case the
same result could have been obtained with bedside irrigation.

[69]        
Further, even if flushing of the wound at the sink was necessary prior
to suturing, there is in any event no evidence that it was medically necessary
or even desirable to have that flushing procedure conducted after the
anesthetic had been administered, rather than beforehand. Dr. Tu stated in
his evidence-in-chief that he would have considered it necessary to anesthetize
the wound to carry out exploration and irrigation. Dr. Tu was
reconstructing as he gave that evidence, and I was not persuaded that it
accurately portrayed his thought process at the time of his interaction with Mr. Mair.
I accept that prior anaesthetization might reasonably be judged necessary with
respect to exploration of a wound, if exploration would be painful and cause a
patient distress; I am not convinced that the same is true with respect to
flushing at a sink. As noted, Dr. Schwartz is of the opinion that while it
may be reasonable practice to leave a patient standing unattended at a sink to
cleanse a wound prior to an intervention such as a painful injection, it
is not appropriate to do so afterward.

[70]        
Moreover, even if there had been some rationale for having the flushing
carried out after administering the anesthetic, there is no evidence as to why Dr. Tu
could not have waited a few more minutes after the injections to allow for the
possibility of any adrenaline response receding and a potential vasovagal
response becoming manifest.

[71]        
While Dr. Wagner notes that there is always some risk of people
fainting, in and out of hospital, and that patients are routinely allowed to
walk around hospital premises, this is trite; in this case, the risk to Mr. Mair
was elevated because of the painful injection.

[72]        
As I have stated, it is evident that the emergency department was busy
on the afternoon in question, and that Dr. Tu was being confronted with a
number of complex cases. In the case of Mr. Mair, Dr. Tu appears
possibly to have acted more out of habit than on the basis of an individualized
assessment of Mr. Mair’s needs and of the risks of proceeding in
accordance with what in other circumstances may have been an acceptable
standard practice.

[73]        
As I have found, Mr. Mair’s fainting episode, and his brain injury,
likely occurred as a direct result of the stress of the painful anesthetic
injection. The risk of Mr. Mair fainting as a result was small, perhaps
unquantifiable, but was foreseeable.

[74]        
Whether or not the evidence establishes that Dr. Tu met, or fell
short of, an established practice standard, I find that Dr. Tu acted
negligently. A finding of negligence in this case does not require familiarity
with human physiology, or other scientific training. As I have stated, there is
no evidence that this procedure – that
is, the patient flushing the wound at the sink while standing without any
supervision immediately following the anesthetic injection – was medically necessary or even desirable. Had
there been such evidence, determination of liability would have required a
balancing of the risk of not proceeding in that manner, against the risk of
vasovagal syncope; and that would have required expert evidence. But that is
not the case here. As stated by Dr. Schwartz, the risk of Mr. Mair
fainting may have been small, but it would have cost nothing to eliminate that
risk. Balancing the risk of vasovagal syncope, if a course of action is
pursued, against no risk at all if that course is avoided, does not require
medical expertise. It is a matter of common sense.

[75]        
The evidence establishes that Dr. Tu unnecessarily exposed Mr. Mair
to an unquantifiable, but nevertheless real and foreseeable increased risk of
harm by leaving him unattended in a standing position, very soon after the administration
of a painful stimulus. I find the defendant liable for Mr. Mair’s
injuries.

Damages

Evidence of the Plaintiff

[76]        
Mr. Mair was 25 years old at the time of trial. When he suffered
his injury in October 2004, he was 17 years old.

[77]        
Mr. Mair had graduated from high school in June 2004. He described
himself as having been a good student. School came easy to him; he had no
difficulty paying attention in class or completing assignments. He had found
over the years up to and including Grade 11 that he could obtain good grades
without having to study much, as he paid attention, took good notes and was
able to retain what he learned in class.

[78]        
Organized sports were an important part of his life. He played golf
twice a week on average, and was on the school team. He probably had a 6 or 7
handicap. He enjoyed volleyball, soccer and baseball. He also began working
part-time – up to 25 hours a week – in Grade 11.

[79]        
From the age of 15, Mr. Mair had developed an interest in pursuing
a career in physiotherapy. His dream job was to work as a physiotherapist with
a professional sports team. He intended to pursue post-secondary studies in
kinesiology.

[80]        
In pursuit of this goal, Mr. Mair testified that he took a more
difficult load of science and math courses in Grade 12. He did not do well; on
his provincially examinable courses, he obtained grades of C- in biology,
physics and math, and a B in English. (This is to be contrasted with his grades
in comparable courses in previous year in which he had obtained B’s in math and
chemistry, a C+ in physics and a C in biology). Mr. Mair attributes his
lower grade to the increased difficulty of the course content, his lack of good
study habits, his time spent working at his part-time job, and playing sports.

[81]        
With those grades, he was only able to obtain admission to the
University College of the Fraser Valley where he enrolled part-time in their
General Studies Program, hoping that with better grades he could eventually
transfer into kinesiology.

[82]        
Following his high school graduation, Mr. Mair worked through the
summer at Westeck Windows and Doors, a company owned by Mr. Casey
Kerkhoff, who is now the plaintiff’s father-in-law. This was a full-time job on
the production line. Mr. Mair saved 10% of each pay cheque, keeping his
savings in a shoe box; he intended to use these funds to finance his education
and his living expenses. In September 2004, he commenced part-time studies at
the University College of the Fraser Valley, taking an introductory course in
computer studies, and an introductory physical education course. He recalls
that he obtained a grade of 98% on his computer systems mid-term examination. He
continued working at Westeck, and it was at that workplace that he suffered his
hand injury in October.

[83]        
For the first weeks following the accident Mr. Mair suffered from
frequent headaches and nausea. He enrolled in a rehabilitation therapy program
in December, and by January 2005 he was back at Westeck under a graduated
return-to-work schedule. He did not go to school at all in 2005, on the advice
of his neurologist, Dr. Tanha.

[84]        
Through 2005, Mr. Mair had various problems with his mood,
concentration and memory. On several occasions he was woken up in the night by
his father, who told him that he had been thrashing around wildly in bed. He
was rude and irritable with his father and brother, whom he was living with.

[85]        
Mr. Mair’s problems with anger and controlling his emotions have
dissipated; however, he is now at the other end of the spectrum, describing
himself as feeling “mellow” and “flat”. He does not get excited over things
that used to give him pleasure, such as following a hockey game. He feels
somewhat anxious. He also finds that he has a hard time empathizing with people.
In 2011 his grandmother died, but he did not feel sad, and felt that he should
have experienced the same emotions that everyone else was feeling.

[86]        
In his work at Westeck, Mr. Mair moved off the production line and
into an office job in September 2005. He worked as an order taker, typing
information from the company’s sales staff into a database. This job paid $15
to $17 an hour. Attention to detail was an important part of this job and was a
big challenge for him; he testified that he made quite a few mistakes, though
in the end he was doing better at it. He did not find this work satisfying.

[87]        
In the summer of 2006 Mr. Mair attempted to return to school
part-time, taking two or three courses a semester. He continued with his
studies until the fall of 2009, but he did not have success. He found studying
very difficult. In high school he had had no difficulty learning through
reading, and memorizing formulas, but he encountered difficulties with his
university materials. He would try to study every evening but found this very
tiring. He would read ten pages of material, realize that he had not retained
anything, and then would have to start over again. He had been far more able to
retain information when he was in high school. He tried different techniques of
studying, but could not obtain good grades. He began to lose confidence in
himself. He ultimately quit school after the fall 2009 semester.

[88]        
Mr. Mair’s transcript from the University of the Fraser Valley is
in evidence. He took 19 courses over eight semesters. (This counts a course in
Basic Human Anatomy twice; he obtained a grade of C in that course in the fall
of 2006, repeated it in the fall of 2007 and obtained only a grade of C+). While
he did obtain some grades in the “B” range, several of those appear to have
been in courses that may not have been academically challenging, e.g. “Teaching
Basketball & Volleyball” and “Socio-Cultural Aspects of Physical Activity”.
Mr. Mair withdrew from, or obtained an “Incomplete”, or a bare Pass, which
the transcript describes as “minimum level for which credit is awarded; a
course with a ‘Pass’ is not acceptable as a pre-requisite”, in seven of the 19
courses.

[89]        
In the fall of 2009, Mr. Mair began dating Arianna Kerkhoff, who he
had known in high school. Arianna’s father, Casey Kerkhoff, is the owner of
Westeck. As his relationship with Arianna became more serious, Mr. Kerkhoff
moved Mr. Mair out of the office and into a sales position, as that would
afford him the chance to earn a much higher income. Mr. Mair testified
that things have not gone well for him in this position. He has frequently made
mistakes with customer orders. He forgets to deal with customer requests and
does not follow up. He is disorganized and easily distracted. He has trouble
multi-tasking, and trouble remembering more than one thing at a time. He has tried
to use tools like notepads to assist his memory, but then forgets to use them.

[90]        
As a result of his difficulties, he has lost clients, and testified that
he is on the brink of losing another important one.

[91]        
These problems have affected Mr. Mair’s self-confidence and
motivation. There have been many mornings when he has found it difficult to get
out of bed and has slept in, and arrived late to work. His lack of confidence
in himself has led to a loss of motivation, and this has had a negative effect
on his ability to keep himself organized.

[92]        
In this position, Mr. Mair has been earning a gross salary of
$3,300 per month. Many of the other salesmen are paid on commission; he would
be entitled to earn commissions if he exceeded his base salary, but he has
never been able to do so. His perception is that he is in the bottom five of a
22- or 23-person sales force. Mr. Mair feels that he has let his
father-in-law down. He expressed concern as to his future; he knows that Mr. Kerkhoff
has mentored him and has been patient with him, but if Mr. Kerkhoff sells
the business and retires Mr. Mair does not know if another manager would be
so accommodating of his weaknesses.

[93]        
Mr. Mair and Arianna Kerkhoff became engaged in the summer of 2010.
Following the engagement, Mr. Kerkhoff provided his daughter with the down
payment for purchase of a house intended for the couple once they married. It
required some minor renovations: replacement of windows and doors, painting and
drywalling. Mr. Mair moved into the house with his brother and father in
the fall of 2010, to start the renovations. His difficulties with memory,
organization and focusing on tasks led to numerous problems. He would go to a
hardware store to buy supplies but would forget all of the things he was to
purchase, leading to him having to make up to several return trips. He would
find it difficult to complete tasks, and numerous jobs would remain
half-finished.

[94]        
In the spring of 2011 Mr. Mair and Arianna Kerkhoff incorporated a window
installation contracting company. They get their business as referrals from
Westeck, which only does manufacturing. Mr. Mair has done some of these
installation jobs himself; on other occasions they have sub-contracted out the
installation. Their intention was that Mr. Mair would run the company, but
his organizational difficulties have led to Arianna trying to run the business;
Mr. Mair handles the sales end of things and follow up with customers, but
Arianna has to do the paperwork.

[95]        
 Mr. Mair and Arianna were married in July 2011. He does not recall
his best man’s speech at the wedding reception, and does not recall his own
speech. His memory problems have impacted his social life; he forgot to attend
his best friend’s recent engagement party.

[96]        
Mr. Mair has also forgotten to attend medical appointments. He will
frequently get lost if driving by himself, and cannot navigate his way to
places he has been to which he should be familiar with. His memory problems
have put a strain on his relationship with his wife. He is very forgetful and
disorganized, putting the burden on his wife to keep the house clean and
organized. He feels that she thinks this is just “guy behaviour” on his part
and that she does not understand what it is like to live with a brain injury. He
finds that he is irritable, and is not a good communicator; he reacts to
conflict by shutting down and withdrawing.

[97]        
Mr. Mair’s involvement with sports has suffered. He does not enjoy
golfing because it requires too much concentration. While playing hockey he has
to be careful going into corners, as he is afraid of hitting his head. He has
continuing issues with his balance. He does play roller hockey once a week, and
softball. He used to avidly follow the Canucks through television broadcasts,
and could keep track of players’ jersey numbers and statistics, but cannot do
so anymore.

Neurological Evidence

[98]        
Dr. Tanha, a neurologist, assessed Mr. Mair on four occasions
in 2005, and again in December 2006. In August 2005 he prescribed Epival to
address the plaintiff’s anger issues. His opinion is that Mr. Mair clearly
suffered a brain injury from his fall at the hospital. The injury would be
classified as mild or possibly mild to moderate. In Dr. Tanha’s opinion,
any residual deficits persisting at the present time would be very unlikely to
improve further.

[99]        
Opinion evidence was also given by Dr. Clement, a neuroradiologist.
He stated in his report of October 31, 2011 that the 30 lesions identified in
the November 2004 MRI are diagnostic of and specific to hemorrhagic diffuse
axonal injury. Significant trauma is required to produce such an injury. Only
the largest lesions that have bled will be identifiable on imaging; the 30
injuries identified “represent only the very smallest fraction of lesions that
will have occurred to his brain”. Mr. Mair’s brain injury is in the category
of “complicated mild”; the functional outcome of patients with such injuries is
very similar to those with the next most serious classification, “moderate”. On
cross-examination, Dr. Clement conceded that there is no correlation
between the number of hemorrhagic lesions, and performance in
neuropsychological testing.

Neuropsychological Evidence

[100]    
Dr. Hendré
Viljoen, a registered psychologist with a practice in clinical neuropsychology
and rehabilitation, assessed Mr. Mair’s neuropsychological functioning in
April 2006, for the Workers Compensation Board. His report was tendered by the
plaintiff. On testing, Dr. Viljoen assessed Mr. Mair’s verbal IQ in
the superior range, at the 94^th percentile, but also found a very
pronounced and clinically “highly significant” discrepancy between Mr. Mair’s
verbal IQ and his performance IQ (the visuospatial and practical domains), the
latter being in the 61^st percentile only. Tests of various cognitive
skills and executive functioning were also administered. Dr. Viljoen’s
final conclusions, as set out in his report dated April 28, 2006, were that
while Mr. Mair had made a generally good recovery and demonstrated:

… functioning that is generally
within the normal range, although with evidence of a number of subtle but
consistent areas of difficulty consistent with a mild/moderate concussive brain
injury, with particular indications of mild slowing of information processing
speed, more evident with regard to visuospatial information. Evidence of a
degree of decline of overall intellectual capacity from premorbid levels was
apparent, particularly related to visuospatial functioning, like the secondary
to slowing of information processing speed in this modality as noted.

[101]     Dr. Viljoen
felt that some further improvement to a small degree could be expected over the
following six months, and that Mr. Mair had had a positive improvement
from a neurological standpoint.

[102]     Dr. Viljoen
gave evidence at trial explaining some technical aspects of his report, and was
cross-examined. Dr. Viljoen testified that the functioning of the frontal
lobes of the brain is fairly often affected by diffuse axonal injuries of the
types suffered by Mr. Mair. The frontal lobes are responsible for
executive functioning. The functioning of the frontal lobes is so complex that
it is notoriously difficult to assess executive function with a great degree of
confidence through testing. Very often, Dr. Viljoen explained, the
understanding of a patient’s functioning is revealed more through information
from collateral sources such as family members. His assessment of Mr. Mair
was based in part on an interview of Mr. Mair’s father.

[103]     Dr. Viljoen
conceded on cross-examination, that he could not state conclusively that Mr. Mair’s
cognitive functioning had actually declined as a result of his brain injury.

[104]     The
plaintiff also tendered the opinion evidence of Dr. James Schmidt, who
conducted neuropsychological evaluations of Mr. Mair in February 2009, and
again in May 2011. Dr. Schmidt’s report of November 16, 2011 deals with
these assessments and also responds to the report of the defence psychologist, Dr. Kimberly
McGuire.

[105]     With
respect to the cognitive tests, Dr. Schmidt felt that Mr. Mair showed
“subtle but consistent weaknesses in some areas”, including “generalized
intelligence, processing speed and performance on tasks making more complex
cognitive demands”. Mr. Mair also showed variable performance on similar
tasks, which Dr. Schmidt felt were most likely due to lapses in attention
which in turn would quite possibly be associated with reduced tolerance for
frustration. These cognitive weaknesses were not severe but are concerning. Similar
weaknesses are often seen in individuals with frontal lobe injuries, which
result in more profound neurobehavioral changes than neurocognitive ones.

[106]    
With respect to emotional functioning and personality, Dr. Schmidt
opined that the tests of these functions performed by Dr. Viljoen and Dr. McGuire
were quite limited in comparison to those he had used. Dr. Schmidt’s
description of his assessment of Mr. Mair’s functioning was consistent
with Mr. Mair’s evidence in court, and also with that of the collateral
witnesses, as described below. For example, Dr. Schmidt describes the Ruff
Neurobehavioral Inventory results as follows:

On this test Mr. Mair
responded in a way that again yielded a valid profile. On this test he reported
having significant problems with attention, executive functioning, learning,
memory and ability to express himself verbally after the accident, reporting
having no such problems prior to the accident. He also reported significantly
increased and clinically significant difficulties with irritability following
the accident. Somewhat increased levels of anxiety and post-traumatic stress
symptoms were also noted although these did not reach clinically significant
levels.

[107]    
Dr. Schmidt summarized his assessment of Mr. Mair as follows:

Taking all of the information
together, Mr. Mair does present with a very concerning pattern of behavioral
and emotional change. Specifically, he shows difficulties initiating and
sustaining activity, organizing himself, avoiding distraction and maintaining
focus, controlling his frustration and dealing with more than one demand at a
time. This constellation of weaknesses, which was seen on both testing and on
interview, is often associated with damage to the frontal lobes of the brain,
hence being consistent with the findings of the CT and MRI scans. Unfortunately,
although he is for the most part cognitively intact, these neurobehavioral and
emotional disruptions can nevertheless have a devastating impact on his ability
to function effectively. His current lifestyle, with him maintaining
employment, having recently married and so on, might lead one to feel that he
has been spared in this regard. However, it must be kept in mind that he has
accomplished these things in the context of living in a structured and
supportive situation ever since the accident in question, first with his father
and now with his wife, both of whom openly acknowledge that they provide a
great deal of structure and direction for him. His employer, too, has been
extremely accommodating. In short, although he is able to function in his
day-to-day life, it is only in the context of having a good deal of direction,
structure, and support supplied by those around him who function, in a sense,
as his “exterior frontal lobes”. Were they not available to him in this
context, I have grave concerns as to whether he would be able to maintain
himself in any sort of a reasonable way over the long term.

[108]     Dr. Schmidt
recommended that treatment of Mr. Mair’s condition follow a two-phase
approach. First, Mr. Mair needs to understand that it is unlikely that he
will be able to complete a university degree. He needs to undertake vocational
training, or at least vocational intervention. He and his wife will need
intervention in depth helping him to become more of an adult partner in their
marriage. Dr. Schmidt recommended that a case manager and a psychologist
both become involved to assist Mr. Mair in determining him maximum
potential, and providing him with support. The second phase of his treatment would
be aimed at maintaining Mr. Mair at whatever level of function he is able
to reach.

[109]     Dr. Schmidt
states in his report that it is impossible at this point to determine how far Mr. Mair
will be able to progress, and that he cannot therefore provide cost estimates
or time estimates with regard to the evaluation and retraining phase, or the
maintenance phase.

[110]     In his
evidence, Dr. Schmidt described the difficulties inherent in assessing
executive functioning. His opinion was much the same as that of Dr. Viljoen.
Executive functioning is notoriously difficult to assess, because it is an
intermittent problem.

[111]     In his
testimony, Dr. Schmidt likened the frontal lobes to the conductor of an
orchestra, and the individual cognitive functions to the instrumentalists. The
cognitive functions – e.g. memory,
concentration, language skills and problem solving –may be relatively normal, but with damage to the frontal lobes
there will be difficulty in integrating those cognitive functions to create
complex goal-driven behaviour. Judgment and discrimination may also be
impaired. Neuropsychological testing can show relative areas of strength and
weakness in various cognitive functions, but may only hint at difficulties with
integration. To some extent, he testified, this is because the test administrator
in a sense becomes the frontal lobes; the administrator’s goal is to provide an
environment and structure conducive to attaining an optimal level of
performance as each discrete cognitive function is evaluated. Outside of the artificial
setting of a neuropsychological assessment, it can be difficult to predict how
people are going to function in the real world. Because of this, Dr. Schmidt
emphasised, collateral sources of information are of great importance to
illustrate the impact of the frontal lobe injuries on everyday life. Dr. Schmidt
interviewed Mr. Mair’s father during both the 2009 and 2011 assessments,
and interviewed his wife in 2011.

[112]     On
cross-examination, Dr. Schmidt was asked to account for the apparent
deterioration in Mr. Mair’s emotional or behavioural state, between the
2009 and 2011 assessments. Dr. Schmidt explained that with a frontal lobe
brain injury, the patient’s level of insight into an awareness of their injury
may be limited initially, and then may gradually increase. Early on, they may
think they are doing fine, but with the passage of time and with increasing
awareness of their limitations, their frustration can increase. Dr. Schmidt
believes that Mr. Mair has become more aware of the extent of his
dysfunction since he was assessed by Dr. Viljoen.

[113]     The
defence tendered opinion evidence from Dr. Kimberly McGuire, who assessed Mr. Mair
in June 2011, and prepared a report dated December 20, 2011. The tests
administered by Dr. McGuire included two effort tests. On one of these, Mr. Mair’s
performance was well below the validity cut-off. A poor result was also
obtained on the second test. His inconsistent or suboptimal effort raised the
possibility of intentionally poor performance on his part. Given his inconsistent
performance, Dr. McGuire was obliged to regard the results of all the
tests she administered as unreliable. Her report, therefore, is largely a
critique of the conclusions which Dr. Viljoen and Dr. Schmidt drew
from their test results. (Dr. Schmidt’s effort tests had all indicated no
concerns with validity).

[114]     Dr. McGuire
took particular exception to Dr. Schmidt’s conclusions regarding executive
functioning. Whereas Dr. Schmidt saw the variability in Mr Mair’s
neurocognitive test results as a function of neurobehavioral issues, Dr. McGuire
saw it as possibly representing suboptimal effort. In reviewing the results of Dr. Schmidt’s
2006 neuropsychological testing, where there was no such variability, she found
no evidence of the significant executive function deficits.

[115]     In
addition, Dr. McGuire disagreed with the conclusion in Dr. Viljoen’s report
that there was evidence of a decline of overall intellectual capacity. Moreover,
she disagreed with Dr. Schmidt’s conclusions as to Mr. Mair’s present
pattern of behaviour and emotional functioning. Again that area of disagreement
appears primarily to be based on their different views as to Mr. Mair’s
neurobehavioral issues and their manifestation.

[116]     Dr. McGuire
interviewed Mr. Mair, but did not conduct interviews from collateral
sources.

Collateral Evidence of Mr. Mair’s Pre- and Post-Accident Functioning

[117]     The
testimony of Mr. Mair’s father, George Mair, included illustrations of
changes in Mr. Mair’s behaviour and personalities which he observed following
the accident, up until July 2011 when Graham and Arianna were married and moved
into their home. He confirmed Graham’s evidence of the incidents in the weeks
following the accident, when he was thrashing around wildly in his sleep. Before
the accident his son was pleasant, and they got along well together. In the
first year following the accident, Graham became sad, moody and withdrawn. He
complained frequently about trivial matters, and was sarcastic to his father
and his brother. He spent money quickly, and the savings he had so carefully
accumulated since Grade 11 seemed to disappear. He bought shirts costing $50 or
$60 each, and then would not wear them. He asked his father if he could change
the radio in the car, and then installed a “boom box” in the trunk – as Mr. Mair Sr. observed, the last
thing a person like him needs.

[118]     Mr. Mair
Sr. observed his son expressing frustration with his inability to study. Graham
seemed to put in more time studying, but would complain that he could not
remember things. Graham also seemed to be terribly disorganized; previous to
the accident his room was immaculate, but afterwards he became a hoarder, and
would simply dump things on the floor.

[119]     Mr. Mair
Sr. also supported the plaintiff’s evidence of getting lost when driving, and
his evidence of being disorganized and having to make multiple visits to stores
during the renovations to his house.

[120]     Mr. Mair
Sr. feels his relationship with his son has suffered.

[121]     One of the
plaintiff’s former high school teachers, Mr. Peter Jory, testified. He
taught Grade 10 English to the plaintiff, and a variety of physical education
courses. They were also involved together on the school golf team. He described
the plaintiff as a very competent student who appeared to understand concepts
easily, and whose work product was pretty good. He had a nice manner: 
responsible, reliable, and keen, respectful and with a good sense of humour. He
was not strongly extroverted, but was more on the quiet side. He had very good
social skills and was well-liked. Mr. Jory thought the plaintiff would be
successful in life; his expectation was that the plaintiff would go to college
at least, and maybe to university or beyond, given his abilities.

[122]     Mr. Kerkhoff,
the plaintiff’s employer and father-in-law, also testified. He had been aware
that the plaintiff was attending school part-time, and understood that he
intended to go into physiotherapy. In early 2010, Mr. Kerkhoff promoted Mr. Mair
into a sales position, because Mr. Mair was becoming serious with his
daughter, and he wanted Mr. Mair to be in a position to improve his income.
Mr. Kerkhoff described his sales people as being more consultants than
salesmen. He thought that Mr. Mair had the aptitude and ability to do the
job; Mr. Mair knew the product lines from his time spent in the order
department, and got along well with people.

[123]     However, Mr. Kerkhoff
found that Mr. Mair encountered difficulties with all or virtually all of
his customers – including seven or
eight builders who were, or who Mr. Kerkhoff would want developed into,
return customers. There were complaints of Mr. Mair not returning calls,
forgetting to fill orders, or filling orders improperly. Mr. Kerkhoff
worked with Mr. Mair closely in training him how to understand a
customer’s needs and fill orders, and continued to work with him to find ways
to remain organized, all without success. Mr. Kerkhoff feels that he was
protective of Mr. Mair, and treated him differently than his other
salesmen. He found, through the year that Mr. Mair remained in sales, that
Mr. Mair’s organization skills were “dreadful”. Mr. Mair seemed to be
unable to schedule, plan and prioritize. Mr. Kerkhoff’s impression is that
it is not as if Mr. Mair was not trying; he wants to do well, but is “just
not there”. Mr. Mair’s problems in his sales job were reflected in him not
being able to develop new business. Mr. Kerkhoff is not aware of any
business actually having been lost because of Mr. Mair’s issues. However,
his performance has been “very much at the bottom” of the company’s sales
force.

[124]     When Mr. Mair
left university, Mr. Kerkhoff helped him and Arianna set up their window
installation business. He has found that Mr. Mair does not always follow
through quickly with leads. There have been problems with him not giving proper
instructions to his installer contractors, and problems with Mr. Mair not
checking to see that jobs had been completed satisfactorily.

[125]     Mr. Mair
lived with Mr. Kerkhoff for four or five months while the renovations to
his and Arianna’s house were being completed, and Mr. Kerkhoff got to know
him more personally. He described Mr. Mair as flat, often aloof, and just
not part of the family. He would try to involve Mr. Mair in conversation,
but mostly would just get yes or no answers.

[126]     When Mr. Mair
had been in order entry, he had been earning approximately $2,800 per month. When
Mr. Kerkhoff moved him into sales, he gave Mr. Mair an additional
$500 per month. All new sales employees are started on a guaranteed minimum
salary which is treated as an advance; if their sales progressed, they would be
able to earn a straight commission of 7%. Typically, a salesman will reach a
sales volume of $1.25 million within two or three years of starting, resulting
in a salary of $87,500. Several of his sales staff earn more than $100,000. In
2010, Graham’s total sales were only $451,000, and his income for the year was
approximately $37,000.

[127]     For some
months leading up to the trial, Mr. Kerkhoff was contemplating removing Mr. Mair
from his sales job. He did so in the middle of the trial, after the plaintiff
had completed his testimony. Mr. Mair has now been returned to the order
entry department. His normal salary would be $17.50 to $18 an hour, but Mr. Kerkhoff
has not reduced Mr. Mair’s salary; therefore, considering his position he
is being overpaid by about $400 per month. Mr. Kerkhoff expects that Mr. Mair
should do well in the order entry department, as he has previously. If not,
there is the option of moving him back into the production department, where
employees start at $12.50 an hour and go as high as $24 per hour as supervisors
or lead hands.

[128]     Arianna
Mair testified. She was 22 years old at the time of trial. She graduated from
high school in 2007, and attended a business school in Ontario for one year. She
and the plaintiff dated for about a year and a half when she was in high
school, broke up, and then began dating again when she returned to British
Columbia. They became engaged in 2010.

[129]     Ms. Mair
corroborated her husband’s evidence as to the difficulties he had renovating
their home. She said that Mr. Mair was probably supposed to take charge of
the renovations, but she ended up having to do a lot of the organization. In
her words, he was overwhelmed with the renovations. He would go to the store
and remember to buy big things like drywall, but would forget things like
screws and putty. Big projects would not get completed. He would forget to call
the trades to remind them to come to the house and complete work.

[130]     In their
day-to-day life, he seems to get distracted easily, and forgets to do errands. She
has to take care of all of the bills.

[131]     He is
guarded with her, and does not communicate well. His reaction to being
dismissed from his sales job by her father was “flat”.

[132]     Ms. Mair
has found their marriage stressful. When they were dating, she knew her husband
had had a head injury, but did not really notice his problems: “before we got
married, everything was happy-go-lucky”. The full extent of his problems with
organization, planning and memory is now apparent to her, and she thinks that
in some ways his problems are getting worse. She said she feels unprepared for
all the responsibility that has been thrust upon her.

[133]     Evidence
was also given by Mr. Hanson, a friend of Mr. Mair. They have known
each other since their primary school years, and have been close friends. Mr. Hanson
said that both he and Mr. Mair seemed to find school pretty easy, and did
not have to study much. Mr. Mair was pretty athletic. He got along well
with his classmates, and was respectful to his teachers.

[134]     Since the
accident, Mr. Hanson has found that Mr. Mair is more quiet and
reserved. His personality seems to have “flatlined” and become “monotone”. He
has witnessed Mr. Mair becoming frustrated and irritated. He finds that Mr. Mair
has to be constantly reminded of plans they have made together.

Vocational Evidence

[135]     The
plaintiff called opinion evidence from Dr. Dean Powers, who conducted a
vocational assessment in March 2011.

[136]     Dr. Powers’
opinions may be summarized as follows:

·      
Mr. Mair’s IQ is likely in the average to above-average
quadrant;

·      
Given his complaints with concentration, memory and orientation,
his brain injury likely has affected executive functioning. “New learning” will
therefore be impaired. He would be unlikely to succeed in completing an
undergraduate degree;

·      
Mr. Mair is not competitively employable in sales;

·      
Dr. Powers’ testing indicated mild impairment of a variety
of cognitive functions;

·      
Mr. Mair will likely need a supported employment environment
for the balance of his working life;

·      
If the injury had not occurred, Mr. Mair likely would have
advanced to the position of physiotherapist, earning approximately $59,000 per
annum. Alternatively, if he had been able to complete his undergraduate degree
in Kinesiology, working in that field could have resulted in him earning a
salary of approximately $41,600 per annum;

·      
Were Mr. Mair to lose his employment at Westeck, he would
likely only be suitable for entry level employment at a wage of $10 to $15 per
hour. Mr. Mair would also likely experience difficulty maintaining
employment, and would likely experience episodic employment.

[137]     The
plaintiff also called evidence from a physiotherapist, Mr. Peterson, as to
the earnings of registered physical therapists at his clinic. He employs five
registered physiotherapists at a clinic in Langley. They are experienced
practitioners, with between eight and 30 years of practice approximately. Their
annual billing, to private patients, WCB, and ICBC, range from approximately
$90,000, to $195,000 each.

[138]     Mr. Peterson
confirmed that professional accreditation as a physiotherapist in Canada now
requires an education at a Master’s level.

[139]     Evidence
from a second physiotherapist, Ms. Wyborn, was that newly-trained
physiotherapists in private practice will earn approximately $55,000 to
$60,000. After 10 years of practice, salaries are in the range of $90,000 to
$100,000, and may be as high as $120,000.

[140]     The
defence called rebuttal evidence from a vocational rehabilitation counsellor, Ms. Samantha
Gallagher. She administered a number of vocational tests to Mr. Mair.

[141]     Ms. Gallagher’s
review of Mr. Mair’s transcripts from the University of the Fraser Valley
suggested to her that he had “completed a number of classes and received
average marks, in the C- to B+ range, in the majority of these classes”, in
addition to working full-time. This suggested to Ms. Gallagher that Mr. Mair
would be able to return to university and complete an undergraduate degree,
although it would likely take him longer than most students.

[142]     Ms. Gallagher
agreed with Dr. Powers’ conclusion that Mr. Mair was not
competitively employable in sales; however, her opinion is that this is because
that job does not suit his interests and aptitudes, not because of any
cognitive difficulties. She believes that he does not have the persuasive and
outgoing personality that in her opinion is often required to be successful in
the field of sales; in her view, even if the accident had not occurred Mr. Mair
would not likely be a successful salesperson.

[143]     Mr. Gallagher
believes that Mr. Mair is most suited for “realistic” occupations, such as
an electrician, plumber/pipefitter or auto mechanic. Training for these
occupations would involve a four-year apprenticeship, with a combination of
in-class courses and learning on the job. Average full-time full-year earnings
for male electricians are in the order of $46,800; for plumbers, $45,100. The
possibility of Mr. Mair pursuing a career as a physical education teacher
(salary of $56,000 per year) or as a special education assistant ($41,000 per year)
could also be considered.

[144]    
Dr. Powers’ opinions were also contested by Dr. McGuire. Dr. McGuire
shares Ms. Gallagher’s belief that Mr. Mair clearly has the ability
to complete his undergraduate degree. She says:

A copy of Mr. Mair’s official
transcript … indicates successful completion of 44 of the 47 credits
attempted between the Fall semester of 2004 and the Winter semester of 2008,
with Grades ranging from “P” to “B+”. He has attended on a part-time basis
only, and has withdrawn from a few courses, but his performance in the courses
he has completed to date has generally been adequate.

[145]     Dr. McGuire
is also of the opinion that Mr. Mair was unlikely, prior to the accident,
to be successful in advancing to the profession of physiotherapist or physical
therapist. This would require a Masters level education, and admission is
generally based on strong performance in undergraduate programs. Mr. Mair’s
relatively weak performance in math and science courses at the high school
level are not predictive of above-average performance in those fields at an
undergraduate level, and those subjects are not where his strengths seem to
lie.

Analysis

[146]     I found
both the plaintiff and his collateral witnesses –
his father, his wife, his father-in-law, his former teacher and his friend – to have been honest and forthright in their
testimony. The collateral witnesses in particular have given me considerable
insight into the difficulties which the plaintiff now faces and the extent of
his dysfunction in the real world.

[147]     I give
considerable weight to the opinions of both Dr. Schmidt and Dr. Viljoen.
They are experienced practitioners with impressive credentials. Their opinions,
particularly as to the limitations of neuropsychological testing with respect
to determining impairment of executive functions, struck me as sensible. Dr. Schmidt
in particular was very thorough in his gathering of collateral evidence. As a
whole, his opinions impressed me as fair and balanced.

[148]     I give
very little weight to the opinion of Dr. McGuire. Her conclusions as to Mr. Mair’s
executive functions were not based on any assessment of evidence from
collateral sources, but only on her interpretation of test scores. For the
reasons given by Dr. Viljoen and Dr. Schmidt, I am not confident that
her opinion is based on a sound footing. Furthermore, Dr. McGuire appears
to have had little insight into the extent of Mr. Mair’s difficulties
studying while he was in university, and does not appear to have had an
appreciation of the types of difficulties he encountered in his sales position.

[149]     As noted
above, Mr. Mair obtained grades of incomplete or a bare pass – insufficient to serve as a pre-requisite – or withdrew from more than one third of the
classes he took after his brain injury. Dr. McGuire’s confidence in Mr. Mair’s
ability to complete an undergraduate degree seems absurd, to the extent that I
found her opinion to verge on advocacy. The same can be said for the opinion of
Ms. Gallagher.

[150]     I accept Dr. McGuire’s
evaluation of the effort tests she administered as indicating suboptimal or
inconsistent effort on Mr. Mair’s part. Neither Dr. McGuire nor, on
cross-examination, Dr. Schmidt drew any firm conclusions from this result,
except that it called into question the validity of the cognitive test results
obtained by Dr. McGuire. I draw no other conclusion from this evidence.

[151]     Mr. Mair
has suffered a complicated mild traumatic brain injury. It is evident that he
has considerable problems with organization, planning, concentration and memory.
His emotions have become stunted, and his personality has changed. Mr. Mair
is extremely fortunate in that he has a good family and social structure that
has provided him with continuing support, and hopefully will through future
years. It must also be said that the degree of impairment to Mr. Mair’s
executive functioning is not at the extreme end of severity; he is not crippled.
Having said that, Mr. Mair is in the unhappy position of having at the
same time a significant degree of disability and an awareness of his
disability, and its impact on himself and others. His injury is profound. It is
permanent. It will affect every aspect of his life – his marriage, his work, his social life, and – should he and his wife have children, which
they both desire – his ability to parent.

Non-Pecuniary Damages

[152]     The
Plaintiff seeks an award of $200,000. The defendant’s submission is that the
court should be guided by decisions in which non-pecuniary damages were awarded
in the range of $115,000 to $160,000.

[153]    
In Stapley v. Hejslot, 2006 BCCA 34, Kirkpatrick J.A., writing
for the majority, reiterated and expanded upon a list of factors to be
considered in determining non-pecuniary awards that had been formulated in Boyd
v. Harris, 2004 BCCA 146:

[46] The inexhaustive list of common factors cited in Boyd
that influence an award of non-pecuniary damages includes:

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of life;

I would add the following factors, although they may arguably
be subsumed in the above list:

(g) impairment of family, marital
and social relationships;

(h) impairment of physical and
mental abilities;

(i) loss of lifestyle; and

(j) the plaintiff’s stoicism (as a factor that should not,
generally speaking, penalize the plaintiff: Giang v. Clayton, [2005]
B.C.J. No. 163 (QL), 2005 BCCA 54).

[154]     Of the
cases provided by counsel, those which I have found most helpful were Reilly
v. Lynn, 2000 BCSC 360 (rev’d on other grounds, 2003 BCCA 49); Roussin
v. Bouzenad, 2005 BCSC 1719; Williamson v. Suna, 2009 BCSC 576; Hodgins
v. Street, 2009 BCSC 673; and Rintoul v. Gabriele, 2011 BCSC 858. In
considering these decisions, I have had regard to the principle that awards in comparable
cases must be adjusted for inflation: Boyd v. Harris, supra,
at para. 42.

[155]     I award
the plaintiff the sum of $200,000 under this heading.

Pecuniary Loss

[156]     The
plaintiff does not claim a past loss of income, only a loss of future earning
capacity.

[157]    
In Rintoul v. Gabriele, supra, I attempted to summarize
the principles which are to guide a court in the assessment of lost capacity
claims:

[271] The consequences of the findings I have made as to the
extent of the plaintiff’s disability – together with other considerations as to
potential future outcomes, with and without the accident having occurred – are
to be evaluated by means of the type of analysis undertaken by Finch J., as he
then was, in Brown v. Golaiy, (1985), 26 B.C.L.R. (3d) 353:

The means by which the value of the lost, or impaired, asset
is to be assessed varies of course from case to case. Some of the
considerations to take into account in making that assessment include whether:

1. The plaintiff has been rendered less capable overall from
earning income from all types of employment;

2. The plaintiff is less marketable or attractive as an
employee to potential employers;

3. The plaintiff has lost the ability to take advantage of
all job opportunities which might otherwise have been open to him, had he not
been injured; and

4. The plaintiff is less valuable to himself as a person
capable of earning income in a competitive labour market.

[272] The assessment of the pecuniary loss that flows from
this analysis must bear in mind the following considerations.

1. First and foremost, the
plaintiff is entitled to be restored to the position he or she would have been
in but for the defendant’s negligence, so far as that can be done with a
monetary award. This may involve “a comparison of the likely future of the plaintiff
if the accident had not happened with the plaintiff’s likely future after the
accident has happened” – Rosvold v. Dunlop, 2001 BCCA 1 at para. 8.

2. The task of a court is to
assess damages, rather than to calculate them mathematically – Mulholland
(Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 at para. 43.
While the assessment is based on the evidence, it necessarily involves an
element of “crystal ball gazing”: Andrews.

3. The standard of proof is not
the balance of probabilities; the plaintiff need only establish a real and
substantial possibility of loss, one which is not mere speculation, and
hypothetical events are to be weighed according to their relative likelihood – Athey
v Leonati, [1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235, at para. 27.

4. Allowances must be made for the
contingency that the assumptions upon which an award is based may prove to be
wrong – Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 79 (S.C.),
aff’d (1987), 49 B.C.L.R. (2d) 99 (C.A.).

5. Any assessment is to be evaluated in view of its overall
fairness and reasonableness – Rosvold, at para. 11.

[158]     The
plaintiff has filed a report from an actuary, Ms. Christiane Clark, which
provide multipliers for the loss of each $1,000 in income per year from the trial
date to the end of a given period, and from the beginning of a given period to
age 70. Ms. Clark has also provided present values of probable incomes
based on both “risk and choice” and “risk-only” contingencies, using
census-based estimates of potential full-time full-year earnings. Information
is also provided as to the value of non-wage benefits. Ms. Clark was not
cross-examined.

[159]     The
plaintiff argues that his loss of earning capacity claim should include an
allowance for two years replacement income for a retraining program. Including
that allowance, it is argued that the plaintiff’s claim can be fairly assessed
in the range of approximately $1.22 Million to $1.45 Million. The defence has
not suggested a specific range, but contends Mr. Mair’s likely career path
would probably have been limited to kinesiology; Dr. Powers’ report puts a
kinesiologist’s income at $41,600 per year. The defence argues that Mr. Mair
has considerably residual employability, and suggests a starting point for
quantifying his loss should be approximately $163,000.

[160]     With
regard to the question of the income the plaintiff likely would have earned but
for the accident, I accept the reservations expressed by Dr. McGuire as to
the likelihood of Mr. Mair entering the physiotherapy profession. Science
and mathematics were not his strong points. He had not developed good study
habits even in high-school. I find it is unlikely he would have made it through
the competitive process of obtaining a graduate level degree. While it is
possible that Mr. Mair could have attained that career outcome, and
possible that he could have ended up earning a salary at the high end of the
physiotherapy profession, those possibilities are so small that even if they
were to be regarded as real and substantial, they would only have a marginal
impact of the assessment of his loss.

[161]     A likely
outcome, in my view, is that Mr. Mair would have completed an
undergraduate degree, but would still have ended up in Westeck’s sales force,
working for his father-in-law. I do not share Ms. Gallagher’s pessimism as
to his chances of success in such a career. Mr. Mair’s personality may not
have been the most gregarious, and may not have fit the classic profile of a
salesperson. It stands to reason that this might have limited his effectiveness
in sales. However, it is likely in my view that he could have earned a good
living in this position, without necessarily being a top performer. While such
a career may not have been an ideal match with Mr. Mair’s personality and
interests, it is likely, in my view, that Mr. Mair would have put his own
personal interests to one side in order to provide the best possible income for
his family. The fact that he would have been working in his wife’s family’s
business would likely have increased the attractiveness of this career path.

[162]     The next
most likely contingency, in my view, is that Mr. Mair would have completed
a degree in kinesiology, and gone on to work in related field, possibly in
kinesiology itself, or possibly as a high school physical education teacher.

[163]     I have
found Ms. Clark’s calculations useful in assessing the potential highs and
lows of Mr. Mair’s likely future but for the injury, under a number of
scenarios. In particular, I have relied upon her calculations based on
“risk-only” contingencies, it being highly probable that Mr. Mair, wanting
to provide for his family, would remain strongly attached to the workforce. Fundamentally,
however, it must be remembered that the determination of future earning
capacity is an assessment, not a calculation.

[164]     I consider
it most likely that but for the accident, Mr. Mair would have earned an
income in excess of the average male B.C. university graduate, towards the
lower end of the successful salespersons on Westeck’s staff. The next most
likely outcome is that his salary would have been closer to the average.

[165]     This
leaves the question of Mr. Mair’s residual employability. Given his
limitations, I do not think the possibility of him retraining in a construction
trade, for example, is realistic. I find there is a very high probability that
his current income level represents the high-water mark of what he will be able
to obtain. If his employment with Westeck does not continue, he faces the risks
outlined by Dr. Powers. There is also the additional risk posed by
technological change; workers with limited skills whose jobs do not require the
exercise of judgment are at a greater risk of being made redundant as new
technologies make their job functions reducible to automated processes.

[166]     I assess
the present value of Mr. Mair’s future loss of earnings, including
benefits, at $1.25 million.

Cost of Future Care

[167]     If the
plaintiff is unable to continue in his employment with Westeck, some assistance
with vocational training may be needed. Given his issues with memory,
concentration and organization, his ability to learn new concepts in a new
environment may be greatly impaired, and there is reason to doubt the
practicality of him learning an entirely new trade. There is also the
possibility of the plaintiff benefiting from therapy to assist him in adapting
to his brain injury. It is also evident in the testimony of the plaintiff and
his wife that they could benefit from the assistance of a psychologist and/or clinical
counsellor.

[168]     The
defendant points to the lack of conclusive evidence of the cost of such
services. Dr. Powers, as I have noted, has explained the difficulty of
providing a meaningful estimate of retraining costs. This is not a bar to
nominal amount being awarded under this head of damages. In the circumstances,
I view a further $10,000 as being appropriate.

Conclusion

[169]     The
plaintiff will have judgment against the defendant Dr. Tu in the following
amounts:

[170]    
If the parties wish to make submissions as to costs, or as to any other
matters not specifically addressed in these reasons, arrangements to appear
before me should be made by contacting New Westminster Trial Scheduling within
the next 14 days following release of these reasons. Otherwise, the plaintiff
will be entitled to costs at Scale B.

“A. Saunders J.”