IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20120530

Docket: M99946

Registry:
New Westminster

Between:

Jarnail Chico Minhas

Plaintiff

And

Alexander David
Sartor aka

Alex Sartor

Defendant

Before:
The Honourable Madam Justice Baker

Reasons for Judgment

INTRODUCTION

[1]            
On October 25, 2005 in Coquitlam, British Columbia the 1984 Honda Accord
driven by the defendant Alex Sartor collided with the 1991 Jeep YJ driven by
the plaintiff Chico Minhas.  Mr. Sartor admits that the collision was caused
solely by his negligence but alleges that Mr. Minhas contributed to his
injuries by failing to wear his seat belt.

[2]            
The parties disagree about the nature and severity of Mr. Minhas’s
injuries resulting from the collision; the severity and duration of symptoms;
and the effect that the injuries have had or will have on Mr. Minhas’s capacity
to earn income and to continue to live independently.  The defendant submits
that Mr. Minhas suffered only temporary soft tissue injuries to his face, neck
and back. The plaintiff alleges that in addition to those soft tissue injuries,
he suffered a significant and permanent brain injury.  Mr. Minhas also alleges
that the accident caused a chipped tooth, a jaw fracture, hearing loss, impairment
of the ability to smell, vertigo, dental malocclusion, a broken leg,
tracheostomy scar, diabetes, depression, anxiety and alcoholism.  The plaintiff
alleges that since the date of the accident he has been totally incapacitated
from work of any kind; that he will never be able to work again; and that in
future he will need to live in a supervised residential facility for persons
with acquired brain injury.

[3]            
The parties’ very divergent positions were emphasized by their closing
submissions.  Counsel for the plaintiff submitted that Mr. Minhas should be
awarded in excess of $3 million in damages.  Counsel for the defendant
submitted the award should be $45,000, before a reduction of 20% for
contributory negligence.

FACTS

[4]            
In this case, there is no objective evidence of brain injury.  Mr.
Minhas relies on his own testimony, and the testimony of his family and a
friend, that following the accident, he became a fundamentally different person
– physically, cognitively, and emotionally – than the person he was before the
accident.   The expert witnesses who provided opinion evidence about brain
injury, and the other injuries alleged by Mr. Minhas, relied almost entirely on
information provided to them by Mr. Minhas, his wife, brother or mother.  In
order to assess the testimony, it is necessary to have a clear understanding of
what Mr. Minhas was like before the accident.  It is also necessary to assess
the credibility of the witnesses who testified about Mr. Minhas’s behaviour
before, and after, the accident.

MR. MINHAS’S HISTORY

[5]            
Jarnail Minhas, who uses the name “Chico” in place of his given name,
was three days short of his 37^th birthday when the accident
happened, and 42 years old when he testified at trial.

[6]            
Mr. Minhas’s family immigrated to Canada from India in 1972 when Mr.
Minhas was a toddler.  The family settled in Kitimat, B.C.  Mr. Minhas’s father
worked for Alcan, an aluminum smelting company.  He died when Mr. Minhas was a
teenager.  After his father’s death, Mr. Minhas’s mother, Surinder Minhas, took
a job at Alcan, working as a janitor.

[7]            
Mr. Minhas is the eldest of three siblings.  His younger sister,
referred to at trial by the name “Lovely” and also by the name “Kelli”, is
married to David Sidhu, who is in the construction business.  Mr. Minhas and
his sister are estranged.  Mr. Minhas also has a brother, Yasjeet Minhas, known
as “Binty”, who is seven years younger than the plaintiff.  Binty Minhas is
employed as a teacher.

[8]            
At time of trial, Mr. Minhas, his wife and their two children were
residing with Mr. Minhas’s mother, Surinder Minhas, in a home she owns.  Binty
Minhas also resided in the home, although he was planning to be married in July
2011, following which he intended to move out of his mother’s home.

[9]            
Mr. Minhas testified that English is his primary language.  He attended
public schools in Kitimat for all of his elementary and intermediate
education.   In a resume’ Mr. Minhas provided to a prospective employer in 2004
(“the 2004 resume’”) he stated that he had obtained his Grade 12 diploma from
Mount Elizabeth Secondary School in Kitimat.  He gave the same information to psychologist
Marshall Wilensky, who interviewed Mr. Minhas on January 13, 2010.  At trial,
however, both Mr. Minhas and his mother testified that after completing Grade
11 in Kitimat, Mr. Minhas moved to Edmonton, lived with his grandmother, and
took his Grade 12 there.

[10]        
Mr. Minhas did not produce any records in relation to his 11 years of
elementary and secondary schooling in Kitimat.  No explanation was provided for
the absence of these records.  None of the expert witnesses who assessed Mr.
Minhas, including Dr. Wilensky, who administered psychometric test arrays to
Mr. Minhas to assess his cognitive abilities post-accident, was provided with
Mr. Minhas’s school records.  Mr. Minhas told Dr. Wilensky that he had been an
“average” student.  Dr. Hearn, a psychologist who provided opinion evidence at
trial, said he believed Mr. Minhas had been a “B” or “C” average student in
school.  I conclude it is more probable than not that Mr. Minhas was a
below-average student.

[11]        
Surinder Minhas described Mr. Minhas as an extremely active child; she
said she would rate him “4” on a scale of 1 to 5, where 5 is the most active
child.  Binty Minhas testified that Mr. Minhas had poor study habits; that he
was impulsive; could not focus; sometimes forgot about assignments; and rushed
through his schoolwork.  He said that an uncle tutored Mr. Minhas in
mathematics in Grades 10 and 11 but that Mr. Minhas sometimes got frustrated
and left before completing the tutoring session.  Mr. Minhas told his wife,
Parminder Minhas, that he was not very interested in school.

[12]        
Mr. Minhas’s counsel submitted that the court should conclude that Mr.
Minhas has (and had, as a child and as an adult) a condition counsel referred
to both as adult attention deficit disorder and attention deficit hyperactivity
disorder.

[13]        
The only exhibit introduced at trial relating to Mr. Minhas’s
performance as a student is a copy of a document titled “Statement of Courses
and Marks”,  issued by “Alberta Education” on October 13, 2009.  The document states
on its face that it is not an official transcript.  According to this document,
Mr. Minhas obtained a general high school diploma in 1986.  His marks ranged
from a low of 50% (he scored 50% in three subjects, including two Industrial
Education courses) to a high of 70% (he scored 70% in two Physical Education
classes).  His overall average, if every course is weighted equally, was 60%. 
If the grades for the Physical Education classes are left out of the
calculation, his average is less than 60%.

[14]        
Mr. Minhas was examined for discovery on four days – August 17, 2007,
April 21, 2009, July 21, 2009 and December 17, 2009.  On the first, third and
fourth discoveries, and at trial, Mr. Minhas testified in English, without any
apparent difficulty, and without the assistance of an interpreter.  On the
second occasion on which Mr. Minhas was examined for discovery – April 1, 2009
– he insisted on giving his testimony through a Punjabi interpreter.  Mr.
Minhas was asked at trial why he had insisted on an interpreter despite the
fact that he considers English to be his primary language.  He said that he did
not require an interpreter because of any difficulty comprehending or speaking
English but because he tends to get angry easily; in effect, that he used the
interpreter as a buffer.

[15]        
The first time Mr. Minhas was examined for discovery – on August 17,
2007 – he was asked whether he had any education beyond Grade 12 and he said
“No.”  When asked “No courses of any kind?” he said that he had taken a course
to obtain a forklift operator’s ticket.

[16]        
At trial, however, Mr. Minhas testified that after graduating from high
school he took a class or classes at a community college in Terrace; that he
later took some “upgrading” at a college in Edmonton, Alberta; and that he also
attended “CDI College” in Coquitlam, where he studied “computer stuff”.  No
proof of enrollment or completion, or transcripts of grades were produced in
relation to any of these courses.  With the exception of the CDI class, Mr.
Minhas could not recall the subject matter of any of the courses he says he
took.  He testified he did not complete the CDI course.  I infer from the
failure to produce records that it is more probable than not that Mr. Minhas
failed to successfully complete any of the post-secondary courses he took, with
the possible exception of the forklift course.

[17]        
Both Mr. Minhas and his mother were vague about what Mr. Minhas did
after graduating from high school in June 1986.   Surinder Minhas testified
that Mr. Minhas moved back to Kitimat and took a casual job at Alcan that later
became a permanent position.  However, a claim filed by Mr. Minhas with the
British Columbia Workers’ Compensation Board (“WCB”) on September 8, 1986
indicates that Mr. Minhas worked at BC Packers Ltd. in Prince Rupert, B.C.
during the summer after completing high school.

[18]        
Mr. Minhas testified at trial that he started working at Alcan in 1987,
but Kalvinder Bhatti, who is Mr. Minhas’s friend and first cousin, testified
that in 1987 Mr. Minhas lived with the Bhatti family in Squamish for six
months; and that Mr. Minhas was unemployed during that time.  He testified that
Mr. Minhas moved from Squamish to Edmonton, and lived there from 1987 until
1992.  Mr. Minhas told William Stanus, an occupational therapist, that he attended
community college in Terrace from September 1987 until June 1988.   I am
satisfied that Mr. Minhas was not living in Alberta from 1987 to 1982 but am
otherwise unable to reconcile the conflicting evidence about where Mr. Minhas
was living and what he was doing during the first couple of years after he graduated
from high school.

[19]        
I am satisfied that Mr. Minhas was working for Alcan in Kitimat in 1990,
because on August 30, 1990 he filed a claim with WCB claiming to have injured
himself while cleaning a washroom floor at Alcan.  On July 18, 1991, and on May
12, 1992, Mr. Minhas filed two more WCB claims relating to workplace injuries
at Alcan.

[20]        
Eventually Mr. Minhas moved to the Lower Mainland, but the evidence
about when he did so is unclear.  Mr. Minhas testified that he moved from
Kitimat to the Lower Mainland in 1993 or 1994.  Binty Minhas testified that Mr.
Minhas moved from Kitimat to the Lower Mainland in 1994.  Kal Bhatti testified
that Mr. Minhas moved from Edmonton to the Lower Mainland of British Columbia
in 1992 and that he and Mr. Minhas renewed their friendship at that time.

[21]        
There is evidence from which I can infer that Mr. Minhas was living in
the Lower Mainland by 1995.  Mr. Minhas filed a WCB claim on February 7, 1995. 
On the claim form, Mr. Minhas wrote that his employer at the time was “Ingram
Micro”; that it was a “Computer Whare house” located in Richmond, B.C., and
that his occupation was “Mateiral handler”.   In these Reasons, I have
reproduced statements written by Mr. Minhas without correcting spelling,
punctuation or grammatical errors.

[22]        
Mr. Minhas testified that after he moved to the Lower Mainland he did
some warehouse work, but mostly worked as a construction labourer for which he
was paid in cash.  Mr. Minhas said that there was lots of construction work
available, that he earned about $10 an hour, and that he worked four days a
week.

[23]        
Mr. Minhas told Dr. Smith, a psychiatrist who assessed Mr. Minhas on
behalf of the defendant that he had moved from Kitimat to Coquitlam to
“…participate in a family construction business”.  Mr. Minhas told Mr.
Worthington-White, the occupational therapist retained by plaintiff’s counsel
to carry out a work capacity evaluation of Mr. Minhas, that while working as a
warehouseman prior to the motor vehicle accident:

…he
would also work after his regular work hours, building homes with his family. 
With this business he would perform labouring tasks such as shovelling and
clean-up as well as bobcat operation.

[24]        
Mr. Minhas told Mr. Stanus, a vocational consultant retained by
plaintiff’s counsel, that between 2000 and October 2005, he:

 …also
performed some construction labouring with a firm owned by his brother-in-law.

[25]        
 At trial, the only family member who was identified as working in
construction was David Sidhu, Mr. Minhas’s brother-in-law.  Mr. Sidhu owns a
construction company.

[26]        
David Sidhu testified that in 2000, Mr. Minhas was sharing a residence
with Mr. Sidhu and his wife, Lovely.  Mr. Sidhu said that he believed that Mr.
Minhas was working regularly in 2000.  As Mr. Minhas’s tax returns will show,
Mr. Minhas reported no employment income in 2000.

[27]        
At trial, David Sidhu would not agree that he was one of Mr. Minhas’s
cash construction employers in the years prior to the October 25, 2005 motor
vehicle accident although he and others testified that he had employed Mr.
Minhas in 2006.  If Mr. Sidhu provided Mr. Minhas with a T-4 record of
employment income in 2006, Mr. Minhas did not file it with Canada Revenue
Agency because Mr. Minhas reported zero employment income in 2006.  I conclude
it is more probable than not that Mr. Sidhu did employ Mr. Minhas from time to
time in the years prior to the motor vehicle accident on October 25, 2005 and
after that date, and paid him in cash so that Mr. Minhas would not have to
report his income or pay tax on it.

[28]        
I am satisfied that Mr. Minhas has routinely filed false tax returns
with Canada Revenue Agency in the years since he left his employment with
Alcan.  Mr. Minhas testified that while he was working almost full-time in
construction he also applied for and collected social assistance benefits.  He
said other guys were doing it and he just jumped on the bandwagon.

[29]        
Defendant’s counsel put into evidence some of Mr. Minhas’s tax return
summaries, beginning with the summary for the tax year 1989.  The following
table summarizes Mr. Minhas’s reported income and the sources for the years
1989 to 1995:

[30]        
On his tax returns for the years included in the preceding table, Mr.
Minhas claimed his province of residence to be British Columbia.  In his 1996
tax return, Mr. Minhas reported Alberta as his province of residence.  I am
satisfied he was living in Alberta in 1996 and that he probably lived in
Alberta from 1996 until 1999, when he returned to British Columbia.

[31]        
Mr. Minhas claimed at trial that he was unable to recall when he moved
to Alberta or when he moved back to British Columbia.  I referred earlier to a
resume’ Mr. Minhas gave to a prospective employer in 2004.  In the 2004
resume’, Mr. Minhas claimed he had been working for a company in Coquitlam,
British Columbia throughout the time that I have concluded he was actually
living in Alberta.  Mr. Minhas admitted at trial that his entire 2004 resume’
is a fabrication.

[32]        
 Binty Minhas testified that Mr. Minhas lived in Alberta until 2000, or
perhaps 2002.  Surinder Minhas appeared to have no memory of her oldest son
having lived in Alberta for any extended period except for the 10 months he
spent there to acquire his Grade 12.

[33]        
The following table records information from Mr. Minhas’s tax returns
for the tax years 1996 to 2000 inclusive:

[34]        
Mr. Minhas could not recall the names of any of his Alberta employers except
for one – Quality Steel.  He could not recall when he worked for Quality
Steel.  He said Quality Steel sent him to a college in Edmonton for
“upgrading”.  He was unable or unwilling to be more specific about what class
or classes he took; when and for how long.

[35]        
Mr. Minhas testified that in 1997 he was living with his grandmother in
Edmonton.  He was not sure what he did to earn a living; he said he believes he
was working full time but might have got laid off.  He could not recall if he
was still taking classes in 1997.  Mr. Minhas could not recall what he was
doing in 1998 either.  He testified that perhaps he was still taking upgrading
classes in 1998.  He said “I’m kind of slow”.

[36]        
At some point while he was living in Alberta, Mr. Minhas stopped living
with his grandmother and moved in with his girlfriend at the time, Ayesha
Asim.  On March 6, 1998, Mr. Minhas was charged in Alberta with assault on Ms.
Asim.  He entered into a Criminal Code Section 810 peace bond on August
20, 1998 in relation to this charge.

[37]        
In his tax return for 1999, Mr. Minhas reported his province of
residence as British Columbia.   The only income Mr. Minhas reported in 1999
and 2000 was social assistance payments.  Mr. Minhas could not recall what he was
doing that year; he said he might have been working in construction for cash,
or perhaps he was going to CDI College in Coquitlam.

[38]        
Mr. Minhas was involved in a motor vehicle accident on August 7, 2000. 
Although Mr. Minhas reported zero employment income on his 2000 tax return, he
told an insurance adjuster that he had been working as a labourer for Hercules
Precast Concrete in Coquitlam for three or four months prior to the August 7
accident.   Mr. Minhas admitted in cross-examination at this trial that he was
prepared to lie to get what he wanted.

[39]        
Mr. Minhas also admitted that he was prepared to threaten physical harm
to other people in order to get what he wanted.  In 2001, Mr. Minhas was
charged with three counts under the Criminal Code of Canada – two counts
of uttering threats to cause death or bodily harm, and one count of criminal
harassment.  The complainants were Ms. Asim and her parents.  The first two
counts related to incidents on March 30 and March 31, 2001 “at or near
Edmonton”; the count of criminal harassment spanned the period January 10, 2001
to November 14, 2001.  Mr. Minhas pleaded guilty to these charges on March 6,
2003 and was given a suspended sentence and one year probation.   Mr. Minhas
concealed these charges and convictions from his mother and his wife.

[40]        
Mr. Minhas testified that he could not stop himself from threatening his
former girlfriend and her family because he was in love, and “Love makes you do
weird things”.  He said he committed these offences because he was “…dealing
with a crazy girl-friend and their (sic) family”.  When asked if the victims
were to blame, Mr. Minhas replied:

I’m
sure it was 50 percent my fault, 50 percent their fault and 50 percent
society’s fault because I can’t marry a Muslim girl.

[41]        
As I stated earlier, David Sidhu, who was sharing a home with Mr. Minhas
at the time, testified that he believed Mr. Minhas was working full time in
2000, but Mr. Minhas reported no employment income in that year.  In the four
years prior to the October 25, 2005 motor vehicle accident Mr. Minhas was fired,
laid off, or quit sixteen jobs.  The longest period he held a job in those four
years was eight months.  Several of the jobs lasted less than a month.

[42]        
The following table sets out information taken from Mr. Minhas’s income tax
summaries for the years 2001 to 2004:

[43]        
Records of employment found in HRDC files indicate that Mr. Minhas
worked for Wesgar Industries Ltd. from August 8, 2001 until November 1, 2001;
and for Ikea Canada from December 4, 2001 until January 11, 2002.  Mr. Minhas
reported to HRDC that he was fired from the Ikea job and that he was:

…deal
with racial remarks at Ikea by the Human Resource personal Simone as well as a
manger Mick…That incident resulted in my disimal.

[44]        
According to HRDC records, Mr. Minhas worked for D. Atkinson
Manufacturing Co. Ltd. from April 2 to April 17, 2002; for BC Woodthings Ltd.
from April 22 to May 3; and for Kingsway Auto Detail from May 13 to May 31.

[45]        
On October 10, 2002, Mr. Minhas filed a claim with WCB alleging he had
injured his lower back and both shoulders on September 30, 2002 while working
as a “dock worker” at “Western Express” in Port Coquitlam, B.C.  I am satisfied
that the employer was actually BCWest Terminal Freight Services Inc.
(“BCWest”).  On the claim form Mr. Minhas wrote:

Fell
off pallet 8 Ft in Air with Water Heater in Hand.  Proper equipment not
supplied to do job.  the job I was doing was unsafe.  This was brought up too
supervisor but he still agnored the topic of/unsafe work.  So I continued job
which resulted injury.  *Several empolles complained about the job also Grahm
Union rep was informed about procedure.* Was called a Hindu by supversor racial
empollyer.

[46]        
BCWest disputed Mr. Minhas’s claim that he had been injured at work on
September 30.  David Banks, BCWest’s Dock Supervisor, had called Mr. Minhas
into his office on September 30, 2002 and told Mr. Minhas that he was being
fired for poor job performance; and should “punch out” immediately.  Mr. Minhas
did not say anything to Mr. Banks about having been involved in an accident
that day.

[47]        
The WCB rejected Mr. Minhas’s claim that he had suffered a workplace
injury and concluded that his employment had been terminated for poor
performance.  Mr. Minhas filed an appeal.  The Workers’ Compensation Appeal
Tribunal heard his appeal and dismissed it.

[48]        
Dr. Gill, Mr. Minhas’s family doctor since 2000, testified that he
understood Mr. Minhas was off work due to a workplace injury from September 30,
2002 to November 25, 2002.  Very soon after Mr. Minhas was fired by BCWest, however,
and during a period he was claiming to be entitled to disability benefits from
both HRDC and WCB, Mr. Minhas went to India to look for a wife.   He testified
that his brother and brother-in-law had told him it was time for him to settle
down.  His cousin was going to India to find a wife and Mr. Minhas decided he
would go along.

[49]        
Through a relative in India, Mr. Minhas was introduced to the woman who
is now his wife.  Parminder Minhas testified that she and the plaintiff were
married in India on November 11, 2002; that she had known the plaintiff for one
or two months before they married; and that Mr. Minhas stayed in India for three
or four weeks after the wedding.    After returning to Canada in late November
2002, Mr. Minhas sponsored Parminder Minhas to immigrate to Canada and she
arrived here on July 3, 2003.

[50]        
 Mr. Minhas testified that he did not have to work much in 2003 because
he had received a generous dowry from his wife’s family.  Parminder Minhas
testified that her family did not pay a dowry to Mr. Minhas.  She said her
family gave her some money when she married but that it was only $2,000, or
perhaps $2,500; and she did not give the money to Mr. Minhas.

[51]        
In March 2003, HRDC wrote to Mr. Minhas informing him that the agency
had concluded that Mr. Minhas had been paid benefits to which he was not
entitled as he had claimed to earn no income during two weeks in August 2002 when
had had actually been receiving wages.  Mr. Minhas wrote back, stating that he did
not knowingly make a false statement; that he:

…could
of made a mistake on my hours…I appozize if there was a mistake.

[52]        
HRDC rejected Mr. Minhas’s explanation and concluded that he had
knowingly made a false representation.

[53]        
In 2003, Mr. Minhas worked for short periods of time for Northern Golden
Foods Ltd.; for Consolidated Fastfrate Inc.; for Northwest Plastics Ltd., for
Xtra Cartage & Distributors Inc., and for Winco Nurseries.

[54]        
In October and November 2003, HRDC notified Mr. Minhas that the agency
had concluded that he had knowingly made false representations by failing to
declare wages received from Consolidated Fastfrate Inc. and Northern Golden
Foods.  Penalties were imposed.

[55]        
Dr. Gill testified that Mr. Minhas told him that he had injured himself
on April 22, 2004.  The evidence does not establish where Mr. Minhas was
employed at that time, if he was employed.  Dr. Gill described the injury as a
separation of the left shoulder.  Dr. Gill believed that Mr. Minhas was off
work because of this injury from April 22, 2004 until October 12, 2004.  As it
turns out, Dr. Gill was mistaken or misled.  Mr. Minhas worked for at least two
employers during that period.

[56]        
Mr. Minhas worked for J.M. Schneider Inc. for six weeks in the summer of
2004.  Mr. Minhas told HRDC that he’d been let go because the company
considered him unsuitable for the work that he was hired to do.

[57]        
Mr. Minhas did warehouse work for Enterprise Paper Co. Ltd.
(“Enterprise”) from August 9, 2004 until September 21, 2004.  On September 25,
2004, Mr. Minhas filed a claim with the WCB alleging he had injured his left
shoulder and his neck on September 21, 2004.  His description of the accident
was:

a
(Loose) 40lbs – 50lbs item fell off.  Frm a palletrack onto my shoulder.  *item
wasn’t strapped.

[58]        
Enterprise disputed Mr. Minhas’s WCB claim.   James McDowell,
Enterprise’s Distribution Manager, testified at this trial that Mr. Minhas
worked in the company’s warehouse as an “order picker”.  The job involved
taking a customer’s order sheet and driving around the warehouse with a pallet
jack picking items off racks and assembling the items to fill the order.  A few
weeks after Mr. Minhas was hired, Mr. McDowell began receiving reports that Mr
Minhas was not doing a good job; that he was not productive; made a lot of
errors; and was urging other workers to slow down so he would not stand out. 
Mr. McDowell met with Mr. Minhas and told him he had to do better or his
employment would be terminated.

[59]        
 Mr. McDowell testified that the day after he warned Mr. Minhas about
possible termination, Mr. Minhas claimed to have been injured at work.  Mr.
McDowell was sceptical about Mr. Minhas’s claim.  He said that the racks in
Enterprise’s warehouse are fastened to the floor and boxes do not just fall off
racks unless a rack is struck by a forklift or someone is climbing on it.  He
said that although other workers saw Mr. Minhas lying on the warehouse floor
after Mr. Minhas called for assistance, no one witnessed the actual incident. 
Mr. Minhas was still in his probationary period.  Enterprise terminated his
employment.

[60]        
A week later, Mr. Minhas sent Mr. McDowell an e-mail.  The subject line
of the e-mail was: “unisource rejects”.  Unisource is one of Enterprise’s
competitors.  The e-mail said:

unisource
rules bicthes.

[61]        
Around the same time, some of Enterprise’s customers reported having
received e-mails and letters stating that Enterprise was a rotten company; that
Mr. McDowell was a member of Hell’s Angels; and that Enterprise was running
drugs in its trucks.  Some of the e-mails came from Mr. Minhas’s e-mail
address.  Mr. McDowell saw one of the letters an Enterprise customer received. 
It was handwritten and after comparing the handwriting and spelling errors to
documents in Mr. Minhas’s employment file, Mr. McDowell concluded that Mr.
Minhas had written the letter. The matter was reported to the Coquitlam RCMP. 
Mr. Minhas could not recall if the RCMP had spoken to him about the matter.

[62]        
Earlier in these Reasons I referred to the 2004 resume’; the false
resume’ that Mr. Minhas created in 2004.  Mr. Minhas testified that he created
a fake resume’ because he wanted to get a job and did not want prospective
employers to know his true employment history.  I am satisfied that by 2004,
Mr. Minhas was finding it increasingly difficult to find employment, given his
sporadic work history, numerous WCB claims, and the fact he was unlikely to get
positive references from previous employers.  I am satisfied that he was unable
to retain employment when he did get hired because he was not a good or
reliable worker, and did not get along with supervisors.

[63]        
The 2004 resume’ appears to have been prepared using a computer.  It is
probable that Mr. Minhas was assisted in the preparation of the 2004 resume’ by
someone more literate than he is.   Both David Sidhu and Binty Minhas testified
they had formats for a resume’ on their computers.  David Sidhu, Mr. Minhas’s brother-in-law,
testified that Mr. Minhas had asked him for help in preparing resume’s from
time to time.  Mr. Sidhu testified that the 2004 resume’ was in a format he
used and kept on his computer, but he denied having prepared the 2004 resume’
for Mr. Minhas.  Although Mr. Minhas testified at trial that Corgate Systems
was a fictitious company, Mr. Sidhu testified that Corgate Systems was one of
his businesses.   However Mr. Sidhu testified that Mr. Minhas had never worked
for Corgate Systems and that the company did not even exist in 1990, the year
in which Mr. Minhas claimed to have started working for Corgate.

[64]        
Mr. Minhas was hired by Lance Bissett on October 12, 2004 as a
warehouseman.  Vito Bordignon is Lance Bissett’s human resources manager.   Mr.
Bordignon and Lance Bissett’s warehouse manager interviewed Mr. Minhas after
receiving the 2004 resume’ from Mr. Minhas.  There are handwritten notes in the
margins of Mr. Bordignon’s copy.  In the typed portion, Mr. Minhas stated that
between September 1997 and December 2002 he had been employed as a “Lead Hand”
by Gill Construction in Port Coquitlam, B.C.  Mr. Bordignon asked Mr. Minhas
for the name of a person at Gill Construction that he could contact for a
reference.  Mr. Minhas handwrote the name “Binty Gill” and the telephone number
418-0902 on Mr. Bordignon’s copy of Mr. Minhas’s resume’.

[65]        
On Mr. Bordignon’s copy of the resume’ the name “Gill” has been crossed
out and the word “Minhas” written above it.  Mr. Bordignon testified that he
crossed out the name Gill and wrote the name Minhas above it and the word
“Good” after speaking to someone who answered the phone at the number Mr.
Minhas had given for Gill Construction.   Mr. Bordignon recalled that the
person he spoke to on the phone confirmed the details of Mr. Minhas’s
employment as stated on the resume’ and said that Mr. Minhas been a good
employee, came to work on time, and was capable of doing all warehouse
functions.

[66]        
Mr. Minhas agreed in cross-examination that he had told his brother
Binty and his brother-in-law Dave that he had given their names as employment
references.  He testified that he asked his brother and brother-in-law to lie
for him and to give him a good reference if a prospective employer called
them.  He agreed that they had lied for him.   Later he said he was not sure if
they had lied for him.  He never retracted the admission that he had asked them
to lie for him.

[67]        
Binty Minhas testified that the telephone number Mr. Minhas provided on
the false resume’ was his telephone number.  He denied, however, having spoken
to Mr. Bordignon and he denied having provided a false reference for Mr.
Minhas.  I do not believe Binty Minhas, and I conclude that he did speak with
Mr. Bordignon and did provide a false reference for Mr. Minhas.

[68]        
I referred earlier to Mr. Minhas having claimed on the 2004 resume’ that
he worked for Corgate Systems from 1990 to 1997 as an inventory clerk.  When
asked by Mr. Bordignon for a contact person at Corgate Systems who could
provide a reference, Mr. Minhas wrote the name “Dave” and the telephone number
552-9770 on Mr. Bordingnon’ s copy of the resume’.  Next to the word “Dave”, Mr
Bordignon wrote “Sidu”.  Mr. Bordignon testified that on the same day he
interviewed Mr. Minhas; and immediately after speaking to Binty Minhas, he
telephoned the number Mr. Minhas had provided for “Dave” and spoke to the man
who answered the phone.  This man, who gave his last name as Sidhu, said that
Mr. Minhas had been a good employee.

[69]        
 David Sidhu denied having spoken to Mr. Bordignon and denied having
provided a false reference for Mr. Minhas.  I do not believe Mr. Sidhu’s denial. 
I conclude that David Sidhu did lie on the plaintiff’s behalf and did provide a
false reference when contacted by Mr. Bordignon.   Mr. Sidhu laughed when the
2004 resume’ was shown to him in examination in chief.   He agreed in direct examination
that the number Mr. Minhas gave to Mr. Bordignon for Corgate Systems is Mr.
Sidhu’s home telephone number.  When told that Mr. Minhas had testified that
Mr. Sidhu had provided a false reference for him, Mr. Sidhu unconvincingly
simulated shock and anger.  Mr. Sidhu testified that he never answered the
telephone in his home, but Mr. Bordignon’s evidence establishes that Mr. Sidhu also
answered the telephone on April 27, 2005 when Mr. Bordignon called to inform
Mr. Minhas’s family that Mr. Minhas had been taken to hospital.

[70]        
In the 2004 resume’ he gave to Mr. Bordignon, Mr. Minhas claimed to have
been working for Quick X Transportation from August 2002 to October 2004.  Mr.
Minhas gave Mr. Bordignon a letter on what appears to be letterhead of Xtra
Cartage and Distribution Inc.  The letter is dated October 6, 2004 and signed
by “Alastair MacGregor, Operations Manager”.  The letter states that Mr. Minhas
had worked for Quick X Transportation, a branch of Xtra Cartage, for “…the
last couple of years”.  Mr. Bordignon testified that he telephoned the number
provided for Mr. MacGregor and spoke to someone who identified himself as
“Mac”.  “Mac” told Mr. Bordignon that Mr. Minhas was a good worker with good
people skills; that he was pleasant and knew his job.

[71]        
This reference was also false.  Mr. Minhas admitted in cross-examination
that he asked Mr. MacGregor to provide a false reference for him.  Mr. Minhas
had not been working for Xtra Cartage for “…the last couple of years” as the
letter indicated; he had worked at Xtra Cartage for only a few months between
October 2003 and January 2004.

[72]        
As stated earlier, Mr. Minhas started working in Lance Bissett’s
warehouse on October 12, 2004.  At first Mr. Minhas’s work was adequate
although he did no more than the bare minimum required.  After the first three
months, however, Mr. Minhas’s performance began to deteriorate.  On April 21,
2005 Mr. Bordignon was called to a location in the warehouse where he found Mr.
Minhas lying on the floor with some boxes around him.  Mr. Minhas claimed the
boxes had fallen on him and he said his shoulder was sore.  Other employees
were nearby, but none had seen the accident happen.  Mr. Minhas asked for an
ambulance to be called and he went to hospital.

[73]        
Mr. Bordignon retrieved Mr. Minhas’s employment file so he could
telephone Mr. Minhas’s family to tell them that Mr. Minhas had gone to the
hospital.  In the file he found an emergency contact information form that Mr.
Minhas had filled out on October 26, 2004.  When Mr. Bordignon saw the
emergency contact names and numbers, he realized that one of the emergency
contacts provided by Mr. Minhas was Binty Minhas, who was stated to be Mr.
Minhas’s brother; and that the emergency contact telephone numbers provided was
the same as the number Mr. Minhas had given Mr. Bordignon as the number for
Gill Construction.   He noticed that the second emergency contact was “Kelli
Sidhu”, who was described as “sister” and that her telephone number was the
same as the number Mr. Minhas had provided for Corgate Systems.  When Mr.
Bordignon called the contact number provided for Kelli Sidhu, David Sidhu
answered the phone.

[74]        
 Mr. Minhas filed a WCB claim in which he said he had been injured while
working at Lance Bissett on April 21, 2005.  On the claim form Mr. Minhas
described what happened in this way:

was
filling a card out when a box above  – about 6’ – 8’ (Feet) (box of nailes)
weight 30-40lbs above fell striking me  Fell directly on right shoulder.
(right neck)  I also fell over cutting my left hand.  Told a empollee
came over to see me lying on floor then called First Aid attettend. 
then I was sent to  Royal Columbia IN AMBULANCE

[75]        
Mr. Minhas returned to work at Lance Bissett on May 30^th,
2005, but the company terminated his employment four days later.  Mr. Bordignon
said Mr. Minhas’s performance on the job before April 21, 2005 had not been
good and when Mr. Minhas came back to work his behaviour was disruptive.

[76]        
Mr. Bordignon testified that a few days after he fired Mr. Minhas he
received a handwritten facsimile message addressed to him and purporting to be
from “Ash”.  “Ash” is the first name of Lance Bissett’s warehouse manager. 
After comparing the handwriting on the facsimile message with documents written
by Mr. Minhas, Mr. Bordignon concluded that the facsimile message had been
written by Mr. Minhas.  The message was:

Vito,
you fat fuck, you should lose weight.

[77]        
Mr. Bordignon testified that about a month later a very rude message
about the warehouse manager was spray-painted on Lance Bissett’s warehouse
door.  Mr. Bordignon again recognized the writing to be that of Mr. Minhas.

[78]        
 This otherwise presumptively inadmissible evidence of bad character is
relevant to Mr. Minhas’s credibility as a witness; but also highly relevant to
the claims by Mr. Minhas and his family and friends that before the accident
Mr. Minhas was an easy-going, entirely pleasant man who did not have problems
with anger or impulsivity; got along well with everyone; and had no trouble maintaining
steady employment.  It is also highly relevant to an assessment of the weight
to be given to the opinions of experts who relied on information or assumptions
to the effect that Mr. Minhas’s personality and behaviour after the accident
were significantly different than prior to the accident.

[79]        
In a report written May 8, 2009 for use in this lawsuit, Dr. Gill wrote
that Mr. Minhas had lost consciousness for a brief period as a result of the
workplace accident at Lance Bissett on April 21, 2005 and had been diagnosed
with a “mild concussion”.  He reported that Mr. Minhas strained his neck and
back and had a left shoulder separation.   Mr. Minhas saw a physiotherapist on
May 16, 2005.  Mr. Minhas told the physiotherapist that he was having “some
tinnitus” and headache as a result of the workplace accident.

[80]        
Dr. Gill testified that Mr. Minhas came to see him for treatment for the
workplace injuries several times after April 21, 2005.  He told Mr. Minhas he
could return to work on May 26, 2005 although Mr. Minhas was still complaining
of tenderness in his right shoulder and the right side of his neck.  In his
report, Dr. Gill stated that Mr. Minhas had enrolled in and successfully
completed a rehabilitation program at CBI Physiotherapy Rehabilitation Centre
and was “…discharged back to work as of June 30, 2005”.

[81]        
Dr. Gill’s records cannot be reconciled with those of Lance Bissett or
HRDC.  As I said earlier, Mr. Bordignon testified that Mr. Minhas returned to
work at Lance Bissett on May 30 and was dismissed on June 3, 2005.  On June 8,
2005, Mr. Minhas wrote to HRDC claiming that both Lance Bissett and Enterprise
had dismissed him because he was “…collecting WCB” and was “…awared wcb
compensation”.

[82]        
On July 5, 2005, Mr. Minhas got a job as a warehouse person with a
numbered company doing business as Treksta Canada.  This job ended on August
25, 2005.  Mr. Minhas reported to HRDC that he quit the job because the
workplace was unsafe and the employer had done nothing to remedy the situation
after he complained.  Mr. Minhas filed a claim with WCB on August 29, 2005 claiming
that his right leg had fallen into a hole in a balcony floor.

[83]        
At his examination for discovery, Mr. Minhas denied having quit the job
with Treksta Canada; he said Treksta had improperly hired someone to replace
him while he was recovering from his groin injury.  When asked why he had
reported that he had “quit” on his application for EI benefits, Mr. Minhas said
that the word “quit” was “slang”.  At trial he said that his discovery evidence
was true, but that he had been heavily medicated when he was examined for
discovery.

[84]        
Dr. Gill testified that Mr. Minhas came to see him in August 2005
complaining of a right groin strain.  Dr. Gill referred Mr. Minhas to the CBI
Physiotherapy Rehabilitation Centre and Dr. Gill testified that in October 2005
Mr. Minhas was again participating in a rehabilitation program at CBI.  According
to Dr. Gill, Mr. Minhas was expected to return to work on October 17, 2005 but
when he saw Dr. Gill’s colleague on October 20, 2005 Mr. Minhas said he had
been too stiff to return to work.   Dr. Gill’s colleague recommended a gradual
return to work starting October 24, 2005.

[85]        
 Mr. Minhas started a new job on October 24, 2005, only one day before
the motor vehicle accident at issue in this trial. Precision Metalform Ltd.
(“Precision”) hired Mr. Minhas as a “shear operator/metal fabricator”, at a
wage of $11 an hour.

MR. MINHAS’S PRE-ACCIDENT MEDICAL HISTORY

[86]        
I have already referred to Mr. Minhas’s history of workplace accidents
and injuries.  While I am sceptical about the legitimacy of some of his
reports, the history indicates that Mr. Minhas had suffered debilitating
injuries to his back, neck and shoulders in the spring of 2004, the fall of
2004 and the spring of 2005; had suffered a concussion in April 2005 that
caused tinnitus and headache; and had a groin injury in August 2005 that kept
him off work for two months and continued to be symptomatic in October 2005. 
On October 20, 2005, only five days before the accident that is the subject of
this lawsuit, Mr. Minhas’s doctor had recommended that he return to work on a
graduated basis.

[87]        
Mr. Minhas had other workplace injuries in 1990, 1991, 1992, and 1995,
but the nature of the injuries reported in those years is not in evidence.

[88]        
As I stated earlier, Mr. Minhas was involved in a previous motor vehicle
accident on August 7, 2000.  Following that accident, Mr. Minhas reported
injuries very similar to those he claims to have suffered as a result of the
accident on October 25, 2005.  Mr. Minhas claimed in 2000 that he had struck
the left side of his face on the steering wheel of his vehicle; had ringing in
his ears and blood in his mouth; and pain in his neck and upper and lower back.
He reported that his jaw was very painful and felt “locked”.

[89]        
Mr. Minhas had also been diagnosed as suffering from an anxiety disorder
for which Dr. Gill had been prescribing the drug Paxil since at least 2000.  Mr.
Minhas testified he had a lot of anxiety and panic attacks. He said his
condition was aggravated by inactivity and boredom; and that he drank alcohol
to calm himself when he was anxious.   The evidence about the dosage of the
medication that Mr. Minhas was taking is not entirely clear, but I am satisfied
that during most periods for which there are Pharmanet records in evidence, Mr.
Minhas was taking 40 mgs. Paxil daily.  Mr. Minhas was still taking this
medication prior to the accident on October 25, 2005, and at time of trial.

MR. MINHAS’S DRIVING HISTORY

[90]        
Before turning to the circumstances of the October 25, 2005 motor
vehicle accident, I consider it useful to summarize Mr. Minhas’s British
Columbia Driving Record.   The Driving Record is relevant to an assessment of
the credibility of Mr. Minhas’s testimony that he was wearing his seatbelt on
October 25, 2005.  It is also relevant to an assessment of the weight to be
given to claims by the plaintiff’s witnesses that Mr. Minhas’s behaviour after
the accident was markedly different from his behaviour before the accident; in
particular, the evidence that it was only after the accident that he began to
abuse alcohol.

[91]        
Mr. Minhas’s British Columbia driving record reveals 50 violations
between December 13, 1986 and April 30, 2009.  Forty-six of the 50 violations
occurred before October 25, 2005.  The majority of the violations are for
speeding; but there are also convictions for disobeying stop signs; failing to
wear a seat belt; failing to produce a driver’s licence or proof of insurance;
and driving without a valid licence.  Mr. Minhas agreed in cross-examination that
he did not feel obliged to abide by driving rules and regulations.

[92]        
The only significant gap in the record is for a period during which, I
conclude, Mr. Minhas was living in Alberta.  Mr. Minhas’s Alberta driving
record is not in evidence.

[93]        
Prior to the October 25, 2005 accident, Mr. Minhas had received five 24-hour
roadside suspensions for driving after having consumed excessive amounts of alcohol.

[94]        
The record also reveals numerous driving prohibitions.  The
Superintendent of Motor Vehicles prohibited Mr. Minhas from driving from July
1989 to November 1989; August 1990 to October 1990; January 1992 to March 1992
and September 1992 to November 1992.

[95]        
If Surinder and Parminder Minhas are believed, Mr. Minhas had successfully
concealed his poor driving record from his mother and his wife.  Surinder
Minhas testified that Mr. Minhas was a very safe driver; that he had no
speeding infractions; and that in the several years he lived with her in
Kitimat after graduating from high school and before moving to the Lower
Mainland; Mr. Minhas had no problems with drinking and driving.   She said Mr.
Minhas had only one driving violation – for failing to wear a seat belt.  She
described his habit of jumping out of the vehicle he was driving when it had
barely come to a stop. She did not appear to be aware that Mr. Minhas had ever
had his licence suspended or that he had ever been prohibited from driving.

[96]        
Parminder Minhas testified that her husband told her that when he was in
high school he had received one or two traffic tickets.  She was not aware that
he had had any driving suspensions related to drinking and driving before the
October 25, 2005 accident.

[97]        
Since the October 2005 motor vehicle accident, Mr. Minhas has had two
more 24-hour roadside suspensions for driving after consuming excessive alcohol,
one in December 2008 and the second in April 2009.  The Superintendent of Motor
Vehicles imposed an administrative driving prohibition for the period January
6, 2009 to April 6, 2009.

[98]        
On March 16, 2009 Mr. Minhas was convicted of impaired driving, fined $1,000
and prohibited from driving for one year, all arising out of an incident on December
14, 2008.   The court-imposed driving prohibition commenced March 16, 2009 and
continued to March 16, 2010.  It overlapped with the earlier administrative
prohibition, and two other administrative driving prohibitions imposed for the
periods May 22, 2009 to August 20, 2009 and June 22, 2009 to September 20,
2009.

[99]        
On April 30, 2009, only six weeks into his one year court-imposed
driving prohibition, Mr. Minhas was charged with impaired driving and driving
while prohibited.  On March 9, 2010 he pleaded guilty to the charge of driving
while prohibited.  He was fined $500 and was prohibited from driving for one
further year.

[100]     At time of
this trial, Mr. Minhas had yet to go to trial on the outstanding charge of
impaired driving.  He said that his defence would be that he had not consumed
any alcohol at all but had consumed two bottles of an over-the-counter
medication called NyQuil.  Mr. Minhas also testified that the police offered to
drop the charges if Mr. Minhas would be a “rat”.  He said the police were
interested in information he could give them because some members of his family
are drug dealers.

[101]     Constable
Dumais of the Coquitlam RCM Police detachment was called as a witness by the
defendant.  He testified that he was the police officer who arrested Mr. Minhas
on April 30, 2009, and charged him with impaired driving and driving while
prohibited.  Constable Dumais testified that he stopped Mr. Minhas’s vehicle
after having observed the vehicle weaving from lane to lane.  He asked Mr.
Minhas to produce his driver’s licence and insurance papers and when Mr.
Minhas, after much fumbling, produced a driver’s licence, Constable Dumais
realized the photo on the licence was not a photo of Mr. Minhas.  Mr. Minhas
eventually admitted that it was his brother Binty’s driver’s licence.  Constable
Dumais took Mr. Minhas to the detachment where Mr. Minhas provided two breath
samples.  The first reading was .18; the second was .17.

[102]     Constable
Dumais testified that Mr. Minhas telephoned him a few days later and asked
whether the charges could be dropped in exchange for information.  Mr. Minhas told
Constable Dumais that he had worked on the docks and could provide information
about illegal activity going on there.  The offer was declined.

CREDIBILITY OF THE WITNESSES

[103]     Taking
into account the findings of fact referred to so far, I conclude that in the
years before the October 25, 2005 motor vehicle accident, Mr. Minhas:

–         engaged in criminal harassment
of and threatened to kill or injure a former girlfriend and her family;

–         was charged with assault of a
former girlfriend and entered into a peace bond;

–         flouted or ignored traffic laws
dozens of times;

–         applied for and accepted social
assistance payments to which he was not entitled;

–         applied for and accepted
employment insurance benefits to which he was not entitled;

–         applied for workers’
compensation benefits to which he was not entitled;

–         falsified an employment resume’
and misrepresented his employment history;

–         enlisted his brother, his
brother-in-law, and a former co-worker to provide false references to a
prospective employer;

–         faked a workplace injury in
order to collect benefits;

–         failed to report taxable income
to Canada Revenue Agency and filed false tax returns;

–         retaliated against a former
employer and former supervisors who terminated his employment by writing
scurrilous e-mails and graffiti, and by making false accusations about an
employer to the employer’s customers;

–         misled or provided inaccurate
information to his doctor about the severity of a workplace injury and its
impact on his ability to work.

[104]     Mr. Minhas
has continued to demonstrate that he is a dishonest person.  After the accident
in October, 2005 that is the subject of this trial, Mr. Minhas asked a former
supervisor to provide a false statement of earnings.  Ralph Calzuolo, a foreman
employed by Precision, the company Mr. Minhas had worked for one day before the
accident, testified that about three weeks after the accident, Mr. Minhas came
to Precision’s premises.  He asked Mr. Calzuolo to give him a letter for ICBC stating
that Mr. Minhas had been earning $25.00 an hour (instead of his true wage rate
of $11 an hour).  Mr. Calzuolo refused to provide the letter.

[105]     Mr. Minhas
was involved in another motor vehicle accident on June 8, 2008.   When asked about
this accident at trial, Mr. Minhas testified that he was driving his mother’s
car near Chilliwack, B.C., that Jeet Deol was with him, and that a rock had
struck the windshield.

[106]     Insurance
adjuster Cindy Rheaume testified.  She said that a telephone report of an
accident involving Mr. Minhas’s mother’s vehicle had been received by ICBC at
11:30 p.m. on Sunday June 8, 2009.  She identified a statement she prepared
during her interview with Mr. Minhas on June 9, 2008.  Ms. Rheaume testified
that Mr. Minhas told her that he had borrowed his mother’s vehicle and had gone
to Merritt, B.C. for the weekend to visit family.  He said that at about 9:30 p.m.
on Sunday June 8, he was alone in the vehicle, driving back from Merritt to the
Lower Mainland, and had just passed Hope, B.C. when a truck passed him and a
rock hit his windshield.  He said that just after the rock hit the windshield,
he saw something on the road, swerved to the right and hit something.  He said
he pulled over at the next rest stop, looked at the hood of his vehicle and saw
something red on the right hand side.  He was not sure it if was blood.

[107]      Ms.
Rheaume testified that Mr. Minhas’s story about what had happened changed a few
times during her interview with him, and there were inconsistencies among his
report to her, the Dial-a-Claim report that had been called in the night
before, and statements made by Mr. Minhas to the vehicle damage estimator.

[108]     Ms.
Rheaume testified that after her interview with Mr. Minhas, an ICBC fraud
investigator spoke to Mr. Minhas and advised him to take his statement home and
consider it.  Mr. Minhas left without signing the statement.  Ms. Rheaume wrote
to Mr. Minhas advising him that ICBC had concluded that he had prejudiced their
investigation by making inconsistent statements and that his claim was being
denied.  The letter also informed him about the review process he could follow
if he disagreed with the decision to deny the claim.  Mr. Minhas did not pursue
the claim and did not ask for a review.

[109]     I am
unable to arrive at a conclusion about how the June 8, 2008 accident really
happened, but I am satisfied that Mr. Minhas made inconsistent statements
concerning the circumstances of that accident.

[110]     Mr. Minhas
demonstrated at this trial that he is both an unreliable and a dishonest
witness.  There were numerous unexplained internal inconsistencies in his
testimony, as well as inconsistencies in testimony he gave on examination for
discovery and at trial; and inconsistencies between his testimony and that of
other witnesses I found to be reliable.  I am satisfied that Mr. Minhas lied
deliberately when he perceived that a lie would benefit him; but he also lied
carelessly when he could not be bothered to turn his mind to what the truth
might be.

[111]     I am
satisfied that all of Mr. Minhas’s testimony – with the possible exception of
statements against interest – must be regarded with scepticism and given little
or no weight.   I am also satisfied that to the extent any expert’s opinions
are based in whole or in part on information provided to the expert by Mr.
Minhas, the opinions of that expert must be carefully scrutinized and are
likely to be unsupported.

[112]    
I am reminded of the statement made by Justice Southin, as she then was,
in Le v. Milburn, [1987]  B.C.J. 2690, as follows:

When a litigant practices to
deceive, whether by deliberate falsehood or gross exaggeration, the court has
much difficulty in disentangling the truth from the web of deceit and
exaggeration.  If, in the course of the disentangling of the web, the court
casts aside as untrue something that was indeed true, the litigant has only
himself or herself to blame.  (para. 2).

[113]     I regret
to say that I also have serious concerns about the credibility and reliability
of the lay witnesses who testified on behalf of Mr. Minhas, in particular, his
brother and his brother-in-law, but also his mother, wife, and cousin, and his
friend Jeet Deol.

[114]     I have
already said that I am satisfied that Binty Minhas and David Sidhu provided
false employment references for Mr. Minhas in 2004, when far less was at stake
than the quantum of the judgment Mr. Minhas is seeking to recover in this
lawsuit.

[115]     I am
satisfied that David Sidhu was less than candid about having employed Mr.
Minhas both before and after the October 25, 2005 motor vehicle accident.

[116]    
The plaintiff is advancing a substantial “in-trust” claim on behalf of
Binty Minhas, Parminder Minhas and Surinder Minhas so each of those witnesses
has a financial interest in the outcome of the litigation.

[117]    
Binty Minhas testified that Mr. Minhas’s behaviour changed significantly
after the October 25, 2005 accident, but demonstrated in his testimony that he
actually knew very little about his brother’s life prior to the accident.  He
said he rarely socialized with his brother and was absent from the home he
shared with his brother, mother and sister-in-law several nights each week.  He
could not remember when his brother moved back to British Columbia from
Alberta.  He was mistaken about the year that his brother married and the year
in which his sister-in-law arrived in Canada.  He did not know where Mr. Minhas
had been employed prior to the accident or what work he did.  He said he knew
that Mr. Minhas had collected employment insurance from time to time; he did
not know that Mr. Minhas had also collected social assistance payments while
being paid under the table for construction work.

[118]    
There were numerous inconsistencies between the testimony Binty Minhas
gave at trial, statements attributed to him by expert witnesses who had
interviewed him, and evidence he gave in an affidavit he swore on November 22,
2010 for use on a summary trial application brought by the plaintiff.  Binty
Minhas was cross-examined about some of the inconsistencies but was unable to
provide a credible explanation.  At trial, for example, he testified that Mr.
Minhas’s abuse of alcohol was at its worst in 2008 and had improved since that
time.  In his affidavit sworn November 22, 2010, he stated that within the last
several months Mr. Minhas’s health had deteriorated and that Mr. Minhas was
abusing alcohol almost every single day and was usually passed out due to
excessive drinking by the time Binty Minhas came home from work.

[119]      I am not
convinced that Surinder Minhas or Parminder Minhas were intentionally
untruthful, but I do doubt the reliability of their testimony at trial, and of the
information they provided to the expert witnesses who interviewed them.    Surinder
Minhas presented as vague and confused when testifying at trial, even though
almost all of her evidence in chief was extracted by leading questions.  I
consider it to be likely that she was coached by other family members prior to
giving her testimony at trial.  Although she was described as having been “very
close” to Mr. Minhas before the accident, she demonstrated that she really had
no idea what he was doing, where or when he was working, that he was frequently
unemployed, that he drank to excess and drove after having consumed alcohol,
that he was a bad driver, or that he had been convicted of criminal offences.

[120]     Mr.
Minhas’s decision to refrain from regular employment and to focus all of his
attention on the prospect for financial gain from this lawsuit has caused
financial hardship to his family.  His alcohol abuse, irritability, and
irresponsibility have strained his relationship with his wife, children and
mother.  I am not persuaded, however, that Parminder Minhas was entirely
forthright in her testimony.  Although she was insistent that Mr. Minhas’s
entire character and personality have changed in recent years, Parminder Minhas
appeared to have little knowledge about her husband’s life before she came to
Canada in 2003; and, if she is to be believed, had been kept in the dark about
her husband’s work, or lack thereof, his alcohol abuse and deplorable driving
record, and his criminal convictions.  She appeared to have little knowledge
about what her husband was doing when he was absent from their home, both before
and after the 2005 accident.

[121]     Parminder
Minhas testified, for example, that prior to the October 25, 2005 accident, Mr.
Minhas had been working for the same employer since the fall of 2004.  She
testified that after he injured his shoulder in April 2005 he was off work for
only a short time, had gone back to work for the same company, and was still employed
there in October 2005.  The employment records in evidence indicate that Mr.
Minhas was off work from April 21 until May 30, 2005 after the workplace
accident he claimed to have had on April 21; and had been fired from that job on
June 3, 2005.  He was unemployed from June 3 until July 5 when he started
working for Treksta; and unemployed again from August 29 until October 24,
2005.

[122]     To the
extent that expert witnesses relied on information provided by Binty Minhas,
Surinder Minhas or Parminder Minhas, their opinions must also be carefully
scrutinized to determine if the facts and/or assumptions on which the expert
witnesses relied have been established by reliable evidence.

[123]     I have
already mentioned that Kal Bhatti testified that he believed Mr. Minhas was
living and working in Alberta when Mr. Minhas was actually living and working
in Kitimat.  I shall refer later in these Reasons to other testimony that
indicates that Mr. Bhatti is mistaken about the timing of other events about
which he testified.

[124]     Jeet
Deol’s wife is David Sidhu’s cousin.  Mr. Deol and his wife lived in Mr.
Sidhu’s home for four years and Mr. Deol also worked for Mr. Sidhu after Mr.
Deol immigrated to Canada in March 2005.  Surinder Minhas testified that Mr.
Deol does not speak English and Mr. Deol testified with the assistance of an
interpreter.  It may be that some of the confusion about timing and sequence of
events in Mr. Deol’s testimony resulted from problems with translation.   Mr.
Deol was not a persuasive witness.

THE OCTOBER 25 MOTOR VEHICLE ACCIDENT

[125]     Evidence
about how the accident happened on October 25, 2005 was given by three
witnesses – the plaintiff; the defendant Alex Sartor; and Alison Yau, a friend
of Mr. Sartor’s who was a front seat passenger in his vehicle at the time of
the accident.  Evidence about the events immediately following the accident was
given by the same three witnesses, plus a fourth, Charlene Walford, a
receptionist who was on duty at the Community Centre to which the plaintiff and
defendant were both headed when the accident happened.

MR. MINHAS’S TESTIMONY ABOUT THE ACCIDENT

[126]     There is
no dispute that the accident happened on the evening of October 25.  Mr. Minhas
was driving a 1991 Jeep YJ registered in his mother’s name.  Mr. Minhas
testified the Jeep was a heavy duty model with a strong steel bumper and big
tires.  He recalled that it was raining heavily at the time of the collision,
and that the roadway was wet.  He was heading to the gym at a Community Centre
where he and his brother often worked out.

[127]     Mr. Minhas
testified at trial that the defendant’s vehicle clipped the Jeep he was driving
with considerable force, causing the Jeep to mount a curb and collide with a
light pole.  He testified that his body did not move forward as a result of the
impact, but instead went up and to the left and then down.  He said he hit his
face on a roll bar above his head or the frame of the window above and at the
rear of his driver’s side window.  He testified that he went blank for a little
bit and that the next thing he recalled was chasing Mr. Sartor’s vehicle into
the parking lot of the Community Centre.   He recalled standing in the
Community Centre in front of a cashier.  He testified that Mr. Sartor filled
out a piece of paper and signed it and that Mr. Sartor was apologizing to him. 
He said he kept a copy of the paper Mr. Sartor signed.   He testified that he
did not recall speaking to police.

[128]     At various
times Mr. Minhas has claimed to have no memory of the accident.  At other times
he has provided colourful and detailed descriptions of the event.  When he has
described the collision it has always been in terms that suggest that
significant force was involved.  At trial he described the impact as “brutal”.

[129]     According
to the emergency department record from Eagle Ridge Hospital for October 25,
2005, Mr. Minhas reported that his vehicle had been “t-boned” on the driver’s
side by a small car and also that his vehicle had been “broadsided”.   Mr.
Minhas told Dr. Mehta, a dental specialist, that he was sideswiped by a vehicle
that was “racing.”   Mr. Minhas told William Stanus, a vocational expert
retained by his counsel, that his vehicle was struck by another car
“…swerving across three lanes.”

[130]    
At his first examination for discovery on August 17, 2007, Mr. Minhas
said:

“…this
guy comes smoking high-speed, hits me, and I just went that way, jumped the
curb and hit the post.”

[131]     At his
second examination for discovery on April 1, 2009, Mr. Minhas testified that he
could recall very little about the collision.  He did not claim that his memory
had faded over time; he claimed he had become “crazy” immediately following the
accident.

[132]     Although I
shall discuss this topic in more detail when I address Mr. Minhas’s claim that
he suffered a brain injury as a result of the accident, I am satisfied that Mr.
Minhas did and does recall the collision, events leading up to the collision
and events that transpired in the minutes, hours, and days after the
collision.  I am satisfied that Mr. Minhas does not have and has never had pre-
or post-traumatic amnesia in relation to the October 25, 2005 motor vehicle
accident.

[133]     In
concluding that Mr. Minhas does recall the accident and what happened before and
after the accident, I do not mean to suggest that I accept that his
descriptions of the accident are truthful or accurate.  Where his evidence
conflicted with that of the defendant, or the defendant’s passenger, Ms. Yau, I
prefer the testimony of Mr. Sartor and Ms. Yau.

ALEX SARTOR’S DESCRIPTION OF THE ACCIDENT

[134]     Alex
Sartor was 25 years old when he testified at trial; 20 when the accident
happened.  Since 2008 Mr. Sartor has worked as a mechanic for a bus company. 
At the time of the accident he was driving a 1984 Honda Accord, a vehicle much
smaller than the Jeep driven by Mr. Minhas.  Mr. Sartor was going to the
Community Centre to drop off his friend and passenger, Alison Yau, for water
polo practice.  Mr. Sartor impressed me as a careful witness. He gave his
testimony in a calm and under-stated manner.

[135]     Mr. Sartor
recalled that he was southbound on Pinetree in the inside lane.  It was dark
outside and raining.  He and Ms. Yau were not sure of the exact location of the
entrance to the Community Centre.  When Ms. Yau spotted the entrance, Mr.
Sartor activated his right turn signal, shoulder-checked; saw no vehicle in the
curb lane to his right; and had started to move into the curb lane when he felt
the impact.

[136]     Mr. Sartor
said the impact was not forceful; that it felt like a tap or bump on the right
side of his car. A “squeegee” sitting on his dashboard was not dislodged.  After
the impact, Mr. Sartor braked and brought his vehicle to a stop.  He asked Ms.
Yau if she was okay and she said she was.

[137]     Mr. Sartor
did not see Mr. Minhas’s vehicle leave the roadway or strike a pole. Mr.
Sartor’s first recollection of seeing Mr. Minhas’s vehicle was when he noticed
a Jeep in the curb lane ahead of him, turning off the street into the parking
lot of the Community Centre.  Mr. Sartor testified he followed the Jeep into
the lot.

[138]     Both
vehicles initially parked along a curb next to the Community Centre building
and Mr. Sartor, Ms. Yau and Mr. Minhas got out of the vehicles.  Mr. Sartor
apologized to Mr. Minhas and asked if he was okay.  Mr. Minhas said his jaw was
sore.  Mr. Sartor inspected both vehicles.  He noticed a dent on his passenger
side door, just below the door trim.  He saw a scratch to the running board on
the left hand side of Mr. Minhas’s Jeep.  The vehicles were parked in a
no-parking area so both men got back into their vehicles and drove into
available parking stalls before the two of them, and Ms. Yau, went inside the
Community Centre to exchange licence and registration information.

[139]    
Inside the Centre, Mr. Minhas asked Mr. Sartor to write a note
acknowledging responsibility for the collision.  Mr. Minhas testified that Mr.
Sartor wrote the note.  Mr. Sartor testified that the handwriting is his, but
that Mr. Minhas told him what to write. I believe Mr. Sartor.  Mr. Sartor
signed the note and added his phone number and address.  The note reads:

Alex,
Sartor, license number … turned right without seeing Jarnail and hit his
vehicle to a pole.  License plate number ….

[140]     Mr. Sartor
testified that he wrote and signed the note even though he had not seen Mr.
Minhas’s vehicle hit a pole.  He said that Mr. Minhas was older and more
experienced and Mr. Sartor had no reason to doubt his word.

[141]     Mr. Sartor
testified that although Ms. Yau told him she smelled alcohol on Mr. Minhas’
breath, he did not notice the odour, perhaps because he had a cold at the
time.   Mr. Minhas did not mention feeling dizzy or complain about ringing in
his ears.   Mr. Sartor noticed that Mr. Minhas’s face was starting to swell,
but he did not see any blood on Mr. Minhas’s face.

ALISON YAU’S DESCRIPTION OF THE ACCIDENT

[142]     Alison
Yau, the passenger in Mr. Sartor’s vehicle, was 20 years old in October 2005. 
She is a yoga instructor and piano teacher.  I found her to be a credible
witness.  She recalled that she and Mr. Sartor were driving in the inside lane
when she spotted the entrance to the Community Centre and alerted Mr. Sartor. 
She recalled that Mr. Sartor signalled his intention to move into the curb lane
and that as he started to change lanes she felt Mr. Sartor’s vehicle bump into
another vehicle.   She believed that the front passenger side of the Sartor
vehicle struck the left side of the vehicle on their right.  She recalled that
after feeling the impact, Mr. Sartor steered back into his original lane and
both vehicles stopped briefly before driving into the parking lot of the Centre
where both drivers parked their vehicles.  She, Mr. Sartor and Mr. Minhas all
went into the reception area.

[143]     As they
were walking in together, Ms. Yau smelled alcohol on Mr. Minhas’s breath and
decided that the police should be called.  Mr. Minhas was complaining about the
left side of his jaw and holding it with his hand.   Ms. Yau said she was
surprised that Mr. Minhas was injured because she was on the side of the Sartor
vehicle that struck the Minhas vehicle and she had felt very little impact.  She
said she had hardly moved in her seat as a result of the impact.  She did not
see any blood, bruising, abrasions or swelling on Mr. Minhas’s face.

[144]     Ms. Yau
noticed Mr. Minhas go into a washroom and when he came out, he was talking on a
cell phone.  When the police arrived, Ms. Yau, Mr. Sartor and Mr. Minhas all
went outside with the police to inspect the vehicles.  After the police had
gone, Ms. Yau and Mr. Sartor left the Community Centre.

CHARLENE WALFORD’S TESTIMONY

[145]     Charlene
Walford testified that she was working as a registration clerk at the front
desk in the Community Centre on October 25, 2005.  She recalled that Mr. Minhas
came up to her at the desk, told her there had been an accident and asked her
to sign a piece of paper he presented to her.  She did not want to sign the
paper because she had not seen the accident happen but Mr. Minhas continued to
press her to sign the note.  She recalled Mr. Minhas hovering around the
reception desk for about 15 minutes.  She was trying to help other customers
but Mr. Minhas was very persistent.  She felt uncomfortable and intimidated. 
Eventually she signed the paper so that Mr. Minhas would allow her to get back
to work.

[146]     Ms.
Walford recalled that Mr. Minhas was able to communicate with her without
difficulty and she did not recall him complaining of pain.   She did not notice
any signs of facial injury – no blood or swelling.  Her evidence that she saw
no visible signs of facial injury contradicts testimony given by Mr. Minhas at
his examination for discovery that he had blood all over his face and that he
spoke to the receptionist so that she could witness the blood.

TESTIMONY OF THE ACCIDENT RECONSTRUCTION EXPERT

[147]    
Mr. Goulet, an engineer and expert in accident reconstruction, prepared
a collision reconstruction report for the defendant.  Mr. Goulet’s conclusions
are summarized on the final page of his report, as follows:

1)       The left front wheel of the Minhas Jeep probably
contacted the front of the right door of the Sartor Honda.

2)       The velocity change experienced by the Minhas
Jeep when it collided with the Sartor Honda was likely less than 6 km/h.

3)       The velocity change experienced by the Minhas
Jeep when it struck the pole was probably less than 19 km/h.

4)       Mr. Minhas was likely not wearing his seat
belt.

5)       If
Mr. Minhas had worn his seat belt, he would probably not have hit his head on
the steering wheel.  Even if contact could have occurred, proper seat belt use
would have reduced the head velocity at steering wheel contact compared with
unrestrained motion.

[148]     Mr. Goulet
has impressive credentials.  He was vigorously cross-examined about his
opinions, but his opinions withstood scrutiny.  He was a responsive and helpful
witness in cross-examination and did not present as an advocate for the
defendant’s cause.  I was impressed with his analysis and his conclusions.  He
was able to explain how he had arrived at his opinions in clear and
understandable terms.  His opinions were not challenged or disputed by any
other expert witness.  I accept his testimony and his opinions.

[149]     Mr. Goulet
explained that the occupant of a vehicle moves in a direction opposite to the
force applied to the vehicle on impact, and therefore that Mr. Minhas’s body
would have moved forward, and not back or up, if the front of his vehicle
struck a pole.  Mr. Goulet’s opinion is that it is unlikely that Mr. Minhas’s
face struck the frame of the driver’s side door, and that it is probable that
his face came into contact with the steering wheel rim.

[150]     I find
support for Mr. Goulet’s conclusion that Mr. Minhas likely struck his face on
the steering wheel of his vehicle in the report of Dr. Gill, Mr. Minhas’s
family doctor.  Dr. Gill noted that when he saw Mr. Minhas on October 26, 2005,
the day after the accident, Mr. Minhas had bruising around his nose as well as
swelling and bruising to his left cheek and jaw.  An injury to Mr. Minhas’s
nose is more consistent with Mr. Minhas having struck his face on the steering
wheel.   According to the Eagle Ridge emergency room record, Mr. Minhas chipped
his left incisor, a tooth located at the front of his mouth.  I conclude that
it is more probable than not that Mr. Minhas struck his face on the Jeep’s
steering wheel and not on the driver’s side window frame, or on a roll bar
above Mr. Minhas’s head.

[151]     Mr.
Goulet’s testimony cast some doubt on Mr. Minhas’s claim that his vehicle
collided with a pole.  Mr. Goulet said that the damage to the front of the
Minhas Jeep appeared more consistent with the bumper having struck a tow-ball,
rather than a pole; in other words, that it appeared to him to be damage caused
by some other event.

[152]      I am
satisfied that the force of the impact between Mr. Sartor’s smaller vehicle and
Mr. Minhas’s larger vehicle was relatively minor.  There was very little damage
to the Jeep Mr. Minhas was driving.  Mr. Sartor and Ms. Yau both testified the
impact between the two vehicles felt like a bump rather than a crash.  Mr.
Goulet’s opinions about the likely velocity change involved both in the impact
between the two vehicles and the impact between Mr. Minhas’s vehicle and the
pole, if he did strike a pole, indicate neither collision involved significant
force.

WAS MR. MINHAS WEARING HIS SEATBELT?

[153]     Mr.
Goulet’s opinion is that it is likely that Mr. Minhas was not wearing his
seatbelt when the collision happened.  At trial, Mr. Minhas not only testified
that he was wearing his seatbelt on the evening of October 25, 2005; he said
that he always wears his seatbelt when driving.  The latter assertion is
clearly false.  Mr. Minhas’s driving record includes seven violations for
failing to wear a seat belt, the first on December 13, 1986 and the last on May
8, 2001.

[154]     I accept
the opinion of Mr. Goulet and I am satisfied that it is more probable than not
that Mr. Minhas was not wearing his seat belt when the collision occurred and
that if he had been wearing his seat belt, the force of any contact between his
face and any part of the interior of his Jeep, if any contact would have
occurred, would have been reduced, and the extent of the bruising to Mr.
Minhas’s face and any injury to his face, in particular, the muscles and soft
tissues on the left side of his face, would have been less than it was.  I
consider it more probable than not that the severity of soft tissue injuries to
Mr. Minhas’s neck and back would also have been lessened had he been restrained
by a seat belt.

THE INJURIES AND MEDICAL TREATMENT

[155]     Mr. Minhas
has claimed, at times, that after the accident he was spitting blood from his
mouth, was bleeding from his left ear, and had a lot of blood on his face. 
Even at times when he has claimed to have no memory of the accident, Mr. Minhas
has said that he can recall his brother Binty wiping blood from his face with a
towel that Binty Minhas kept at the gym. Binty Minhas did not corroborate Mr.
Minhas’s testimony on this point.  Mr. Sartor, Ms. Yau and Ms. Walford all
testified that they did not see any blood on Mr. Minhas’s face.  I accept their
testimony in preference to that of Mr. Minhas.   I do not believe that Mr.
Minhas bled from his ear, or that he had blood on his face.

[156]     Mr. Minhas
was examined in the emergency department at Eagle Ridge Hospital.  How he got
to the hospital is one of the matters about which Mr. Minhas has provided
several irreconcilable and even absurd explanations.   The matter is only
marginally relevant to any issue at trial – Mr. Minhas’s claim that he cannot
recall how he got to the hospital is relied on as evidence that he had post-traumatic
amnesia.  The testimony is more relevant to Mr. Minhas’s credibility.  To the
extent that some of the expert witnesses relied on Mr. Minhas’s claims of lack
of recall of post-accident events, it is also relevant to the weight to be
given to the opinions of those witnesses.

[157]     The
version of events that Mr. Minhas most often asserted prior to trial is that
after the accident, his brother Binty came to the Community Centre, picked him
up and drove him to Eagle Ridge Hospital.  At other times he claimed that he had
no memory of how he got to the hospital but asserted that Binty told him that
Binty had driven him to the hospital.  At yet other times, he claimed that he
recalled being driven to the hospital by his brother, but that his brother denied
having done so.   Mr. Minhas testified that it was only a short time prior to
trial that Binty Minhas had told him that he had not driven Mr. Minhas to the
hospital.   Binty Minhas testified that he had told Mr. Minhas four or five
years prior to the trial that he had not driven him to the hospital.  At trial
Mr. Minhas testified that he now believes he walked to the hospital from the
Community Centre.

[158]     Binty
Minhas testified he did not drive Mr. Minhas from the Community Centre to Eagle
Ridge Hospital, but was at home and got a call from someone at the hospital
asking him to pick Mr. Minhas up from the hospital.  He said that Mr. Minhas
did not have a cell phone with him that evening.  Alison Yau testified that she
saw Mr. Minhas talking on a cell phone at the Community Centre.

[159]     I do not
believe that Mr. Minhas walked to the hospital and I consider it more probable
than not that Binty Minhas did drive Mr. Minhas from the Community Centre to
the hospital, as Mr. Minhas has most often asserted.  If he did not do so, then
I conclude that Mr. Minhas probably drove himself to the hospital.  Parminder
Minhas testified that the Jeep Mr. Minhas had been driving at the time of the
accident was parked at the Minhas home when she and her mother returned there
on October 26, the day after the accident.

[160]     Mr. Minhas
was assessed in the emergency department.  There is a reference in the
emergency department record to the odour of alcohol about Mr. Minhas’s person. 
Ms. Yau testified that she smelled alcohol on Mr. Minhas’s breath as they were
walking into the Community Centre.  Mr. Minhas denied having consumed alcohol
before driving to the Community Centre, but I consider it likely that he had.

[161]     The
emergency department record states that Mr. Minhas had hit his head on the
“windshield”.  Mr. Minhas complained of jaw pain, pain in his left ear and pain
in his back.  The emergency department record indicates “tooth minor chip
incisor left…”  An x-ray of Mr. Minhas’s jaw revealed no bone, soft tissue or
joint space abnormality.  The diagnosis was soft tissue injury to the face. 
Mr. Minhas was discharged with instructions to apply ice, take Tylenol #3, eat
a soft diet, and follow up with his family doctor.

DID MR. MINHAS SUFFER A BRAIN INJURY ON OCTOBER
25, 2005?

[162]     Mr. Minhas
claims that he suffered traumatic brain injury as a result of the accident;
that he has not recovered from the brain injury and the injury will be
permanent; that the brain injury has manifested itself in cognitive impairment,
impaired memory and concentration, emotional liability and impulsivity, and
impaired judgment, and that the symptoms have worsened over time.   Based on
information provided by the plaintiff and/or members of his family, some expert
witnesses – Dr. Ancill, Dr. Hearn, and Dr. Cameron – formed the opinion that
Mr. Minhas did suffer a brain injury as a result of the collision.  Later in
these Reasons I will deal with the issue of whether Mr. Minhas suffered a brain
injury as a result of a post-surgical respiratory infection he contracted in
April 2006.

[163]     The expert
witnesses who supported a diagnosis of brain injury caused by the collision
based their opinions on most or all of the following assumptions:

–         that Mr. Minhas’s head struck
some part of the interior of his vehicle during the collision;

–         that Mr. Minhas struck his head
with sufficient force to fracture his jaw;

–         that Mr. Minhas lost
consciousness;

–         that following the accident Mr.
Minhas was dazed or confused;

–         that following the collision Mr.
Minhas had little or no recall of the collision itself, and could not recall,
or had incomplete recall, of events happening before and after the collision;

–         that Mr. Minhas’s cognitive
abilities post-accident are inferior to his cognitive abilities prior to the
motor vehicle accident; that he is less intelligent now than he was before the
accident;

–         that following the accident Mr. Minhas
had problems with concentration and memory that he did not have before the
accident;

–         that Mr. Minhas was an
easy-going, law-abiding, steadily employed,  and responsible person before the
accident and that his behaviour changed after the accident; that he became
impatient, impulsive, irritable, and physically aggressive and that these
changes had a close temporal relationship with the accident;

–         that Mr. Minhas did not drink to
excess before the accident and only began to abuse alcohol after the accident.

[164]     I have
concluded that only two of these assumptions have been established by reliable
evidence.  I am satisfied that Mr. Minhas’s face came into contact with some
part of the interior of his vehicle; likely the steering wheel or possibly the windshield. 
There is objective evidence of facial bruising and swelling that supports this
conclusion.

[165]     Although I
do not believe much of the testimony of Mr. Minhas and his family and friends,
I am also satisfied that in recent years – especially in the two years prior to
trial – Mr. Minhas’s behaviour has deteriorated.  The plaintiff has failed to
prove on a balance of probabilities any of the other facts or assumptions on
which the expert witnesses relied in making a diagnosis of brain injury.

[166]     Mr. Minhas
has failed to prove, on a balance of probabilities, that he suffered a brain
injury as a result of the motor vehicle accident.  None of the expert witnesses
who provided opinions about brain injury had been provided with the
comprehensive review of Mr. Minhas’s life prior to the accident in October 2005
that was presented  in evidence at this trial.

[167]     I do not believe
that Mr. Minhas blacked out or lost consciousness following the collision.  Mr.
Minhas has claimed at times that he did black out; more often he has denied
having done so.  Following the collision, Mr. Minhas displayed no delayed
reaction consistent with even a brief period of loss of consciousness.  I
accept Mr. Sartor’s testimony that Mr. Minhas reacted more quickly than Mr.
Sartor in the aftermath of the accident.

[168]     Mr. Minhas
did not appear dazed, confused or incoherent during his interactions with Mr.
Sartor, Ms. Yau and Ms. Walford at the Community Centre immediately following
the collision.  He displayed no lack of concentration or focus and had no
difficulty communicating with Mr. Sartor, Ms. Yau and Ms. Walford.  To the
contrary, Mr. Minhas had the presence of mind to dictate a note in which he had
Mr. Sartor admit responsibility for the accident and confirm Mr. Minhas’s claim
that his Jeep had struck a pole.  As neither Mr. Sartor nor Ms. Yau had seen
Mr. Minhas’s vehicle strike the pole, this description of the accident could
not have come from them.  Mr. Minhas had the presence of mind to have Mr.
Sartor sign the note; and to persist in his insistence that Ms. Walford also
sign the note, despite her reluctance to do so.

[169]     A very
short time after the collision, Mr. Minhas was assessed at Eagle Ridge
Hospital.  According to the emergency department record, Mr. Minhas denied
having lost consciousness as a result of the accident, and presented as alert
and oriented.   His Glasgow Coma Scale was normal.  There is no note indicating
that he appeared dazed or confused.  He was able to provide a description of
the accident and of his injuries and pain complaints.   Nothing in the record
suggests concern about a possible concussion.

[170]     I consider
it significant that Dr. Gill, who had been Mr. Minhas’s doctor for five years, saw
Mr. Minhas the day after the accident, and had more contact with him following
the accident than any other doctor, did not ever diagnose brain injury.    Although
he included this diagnosis in his medical legal report dated May 8, 2009, it is
clear from the report that Dr. Gill adopted the diagnosis from the reports of
other physicians.

[171]      Based on
Dr. Gill’s report, on October 26, 2005 – the day after the accident – Mr.
Minhas did not tell Dr. Gill that he had blacked out, lost consciousness, or
felt dazed or confused.  He did not say he felt dizzy.  He did not say he could
not recall what happened.  He gave Dr. Gill a description of the accident.  Dr.
Gill did not observe signs of cognitive impairment.  Mr. Minhas did not
complain of cognitive symptoms during his medical appointments with Dr. Gill in
2005 or 2006, the two years in which such symptoms, if there were any, should
have been most pronounced.

[172]     By the
time Mr. Sartor went to Mr. Minhas’s home on the afternoon of October 26 – the
day after the accident – Mr. Minhas had already hired a lawyer and submitted a
written statement to ICBC.  The statement includes a description of the
accident, including the location and time of day.  Mr. Minhas reported that his
car had been “sideswiped” and had struck a pole.  Mr. Minhas also included in
the statement a list of symptoms he claimed to be experiencing.  The list did
not include loss of consciousness.

[173]     On October
28, 2005, Mr. Minhas saw a locum doctor in Dr. Gill’s office.  He reported pain
in his neck, back and jaw, and also severe headaches with dizziness.  The locum
arranged for Mr. Minhas to have a CT scan.

[174]      Mr.
Minhas had a CT scan of his head and brain on November 1, 2005.  It revealed no
abnormalities.  I accept that evidence of a mild traumatic brain injury may not
be visible on a CT scan.  However, Mr. Minhas is alleging that he suffered a
brain injury severe enough to cause permanent cognitive and behavioural impairment,
worsening over time, and severe enough to disable him from all work and render
him incapable of independent living.

[175]     An MRI of
Mr. Minhas’s brain done on March 11, 2009, apparently for litigation purposes, revealed
no abnormalities; and an EEG conducted May 6, 2010 indicated normal brain
activity.

[176]     Mr. Minhas
did report a problem with concentration and memory when he saw Dr. Mehta on
November 2, 2005.  He told Dr. Mehta he had changed from reading the whole
newspaper on a daily basis to reading only parts of the paper.  This claim was
repeated at trial by more than one of the plaintiff’s witnesses.  Dr. Mehta
testified, however, that he did not detect any objective signs of cognitive
impairment at his first meeting with Mr. Minhas or in any of his subsequent
interactions with the plaintiff.  Dr. Mehta recalled that Mr. Minhas came to
the first appointment unaccompanied.  Mr. Minhas did not appear to have any
difficulty relating his medical history or the circumstances of the accident.  He
was able to give Dr. Mehta a detailed description of his symptoms and the
treatment he had received at Eagle Ridge Hospital.  He did tell Dr. Mehta that
he had had headaches with associated nausea and vomiting, but he also said that
those symptoms were already decreasing.

[177]     By
February 6, 2006, Mr. Minhas reported to Dr. Mehta that his memory and
concentration had improved.  On June 7, 2006, he told Dr. Mehta that his memory
and concentration were okay.

[178]     On November
14, 2005, Mr. Minhas saw a physiotherapist, Virginia Fenzyl.  He completed a
questionnaire she gave him that included more than two dozen specific questions
about the accident.

[179]     Mr. Minhas
has repeatedly contradicted himself in relation to his ability to recall the
events leading up to, during, and immediately following the collision.  As I
stated earlier, at his first examination for discovery in 2007, he described
the accident.  At his second examination for discovery he claimed that he had
never been able to recall the accident.

[180]     Mr. Minhas
began seeing psychologist Dr. Hearn in November 2006, on a referral from Mr.
Minhas’s previous counsel.  Dr. Hearn’s first report to counsel was made on
February 14, 2007.  By that time, Dr. Hearn had met with Mr. Minhas four
times.  Dr. Hearn did not diagnose brain injury; his diagnosis was “Major
Depression and Panic Disorder with Agoraphobia”.

[181]     Dr. Hearn
was not an impressive witness.  He had made no notes of his meetings with Mr.
Minhas.  He had obtained an inadequate history from Mr. Minhas but appeared to
accept all information provided by Mr. Minhas without question, even when the
information was internally inconsistent.  He refused to reconsider his opinions
when facts that clearly cast doubt on his conclusions were put to him in
cross-examination.  He provided a plethora of diagnoses.  Most significantly,
he presented himself as an advocate for the plaintiff’s cause both in his
written reports, and during his testimony at trial.

[182]      Dr. Hearn
reported that Mr. Minhas told him that he “…will not drive by the site of the
accident unless he has no choice”.  In cross-examination, Dr. Hearn was shown
attendance records from the Community Centre that demonstrate that Mr. Minhas
went to the Community Centre more than 45 times between January and March 2006;
and Dr. Hearn was told that Mr. Minhas had testified that he had to drive right
by the accident site to get to the Community Centre.  Dr. Hearn refused to
concede that Mr. Minhas may have misled him.

[183]    
In cross-examination of Dr. Hearn, Dr. Hearn’s attention was directed to
a clear inconsistency between his report dated February 14, 2007 in which he
said that Mr. Minhas recalled the accident and was having intrusive daydreams
about it; and his January 11, 2010 report in which he stated that Mr. Minhas had
no memory of the accident and therefore was not troubled by intrusive memories
or flashbacks.  Dr. Hearn was unable to explain this contradiction.

[184]    
Dr. Maryana Apel is a physiatrist.  She was the first physician to make
a tentative diagnosis of brain injury.  She saw Mr. Minhas for the first and
only time on January 19, 2007, on a referral from Mr. Minhas’s counsel at that
time.  By time of trial she was residing in Alberta and she declined to make
herself available for cross-examination.   In her report to counsel, Dr. Apel wrote
that she had observed clinical features and signs of closed traumatic brain
injury consistent with location of impact to Mr. Minhas’s left temple and a
fracture of the left temporal bone.  She also noted the possibility of
secondary cognitive changes superimposed on a background of “…more obvious
psychological abnormalities”.  I described Dr. Apel’s diagnosis of brain injury
as “tentative” because in the concluding paragraph of her report, she referred
to “…the possibility of a closed traumatic brain injury”.  She recommended
cognitive and psychological testing to clarify the diagnosis; and an MRI of the
brain.

[185]    
The failure to produce Dr. Apel for cross-examination means that the
court must be cautious in according weight to her untested opinions.  There are
also numerous factual inaccuracies and unproven assumptions underlying Dr.
Apel’s opinion.  Dr. Apel believed that Mr. Minhas had worked full-time before
the accident; had been employed at Precision Metal “…for the last
unidentified number of years”, and had not worked at all after the accident. 
All of those assumptions have been shown to be incorrect.  Dr. Apel believed Mr.
Minhas owned his home; the home actually belongs to his mother.  He told her he
drove only occasionally; I am satisfied that except for periods during which
his licence was suspended, and even then, he has continued to drive as he had
before the accident.   Mr. Minhas told Dr. Apel that he developed depression
and anxiety after the accident and had started to take Paxil only six weeks
before she met with him on January 19, 2007.  None of that is true.

[186]    
Dr. Apel believed that following the accident, Mr. Minhas was bleeding
from his ears and had “…severe blood on the left side of his face…”  She
also accepted that Mr. Minhas had fractured his temporal bone; although she was
aware that a CT scan done on March 2006 did not reveal a fracture.  I am
satisfied that I should give no weight to Dr. Apel’s opinion.

[187]    
 Dr. Ancill was not a careful or persuasive expert witness.  He saw Mr.
Minhas for the first time in June 2008, two and a half years after the
accident.   He took no notes of his conversations with Mr. Minhas, Binty
Minhas, Parminder Minhas, or Surinder Minhas.  Like the other experts, Dr.
Ancill relied on information or assumptions that have been shown to be
incorrect or false.  Dr. Ancill believed, for example, that the collision had
involved enough force to cause a fracture of Mr. Minhas’s jaw and he described
the accident as a “serious MVA”, whereas the evidence establishes that the
accident involved relatively little force and Mr. Minhas’s jaw was not
fractured.

[188]    
Dr Ancill accepted, incorrectly I conclude, that Mr. Minhas had no
memory of the accident at all, and that his ability to recall events happening
after the collision was fragmented and discontinuous; in other words, that Mr.
Minhas had “post-traumatic amnesia”.

[189]     Dr. Ancill
believed that Dr. Gill had diagnosed a traumatic brain injury, which is not
correct.  Dr. Ancill assumed, without investigation, that Mr. Minhas was in
good physical and mental health before the accident.  He knew that Mr. Minhas
had been taking Paxil, but accepted or assumed, incorrectly, that prior to the
accident the dosage was only 10 mgs daily.  At trial Dr. Ancill testified that
Mr. Minhas displayed “alexothymia” (lack of emotional affect) during their
meetings, but admitted in cross-examination that there is no mention of this
observation in any of his several written reports.  As Dr. Ancill had never met
Mr. Minhas before June 2008, he could not know what Mr. Minhas’s “emotional
affect” had been before the accident in 2005.

[190]     Dr. Ancill
failed to obtain a proper and detailed history from Mr. Minhas despite having
met with him on several occasions.  Dr. Ancill said he did not take a complete
history from Mr. Minhas when he first met with him because he was Mr. Minhas’s
treating psychiatrist and had not been retained to do a medical legal report.  Even
if that could be considered a reasonable explanation, Dr. Ancill took no steps
to amplify or verify the sketchy history he had earlier obtained after he was
retained to provide a medical-legal report.  He agreed that he had no
information about how well (or poorly) Mr. Minhas had done at school; or about
Mr. Minhas’s employment history.  Dr. Ancill accepted without question, and
without further exploration, all information he was given by Mr. Minhas despite
his knowledge that the plaintiff was pursuing litigation.  He said that he
assumes his patients are truthful.  He displayed no healthy scepticism about
any of the information provided by Mr. Minhas’s family members.

[191]      Dr.
Ancill testified that if he was presented with information that contradicted
what a patient had said he would discuss the apparent contradiction with the
patient, but he continued to rely on Mr. Minhas’s claims of post-traumatic
amnesia even after he learned that Mr. Minhas had given a description of the accident
to emergency room personnel on October 25, 2005, and had given Dr. Mehta
details about the accident a week later.  He never discussed the apparent
contradictions with Mr. Minhas, although he conceded in cross-examination that
his diagnosis of brain injury was largely based on Mr. Minhas’s report of
memory loss.

[192]     Dr. Ancill
is, I am satisfied, predisposed to diagnose brain injury when considering an
explanation for mental health problems or behavioural changes.  He agreed in
cross-examination that he had arrived at a diagnosis of traumatic brain injury
in relation to two-thirds of the patients referred to him by doctors or lawyers
in the context of personal injury litigation.  He testified that he is among a
group of psychiatrists who are rejecting psychological models of mental illness
and assume a biological or organic cause for behavioral disorders.  He applied
a diagnosis of traumatic brain injury to Mr. Minhas the first time he met him
although he did not use the standard DSM-IV diagnostic framework.   He said he
might have failed to do so because he did not have enough time to follow the
framework in a clinical setting.  He conceded that even after he knew he would
be providing medical-legal reports for use in this litigation, he did not use
the diagnostic framework.  He gave no good reason for his failure to do so.

[193]     In Abma
v. Paul, 2008 BCSC 783, Justice Gropper rejected opinion evidence from Dr.
Ancill that the plaintiff Abma had suffered a brain injury.  She noted that Dr.
Ancill had diagnosed Ms. Abma with a traumatic brain injury based on a one-hour
initial consultation without following the standard for psychiatric
consultation reports.  She concluded that, based on the evidence before her,
Dr. Ancill’s scientific method is to “…diagnose first and then confirm the
diagnosis in subsequent examinations.” and that the diagnosis thereby becomes a
“self-fulfilling prophecy”.  (para. 292).  Dr. Ancill’s approach to diagnosis,
and his failure to base his diagnosis on objective data was also the subject of
unfavorable judicial comment from Justice Harvey in Jampolsky v. Shattler,
2011 BCSC 494.  The criticisms in those cases could be applied with equal force
in the circumstances of this case.

[194]      In this
case, Dr. Ancill concluded that Mr. Minhas had also suffered a brain injury as
a result of a respiratory infection he contracted following jaw surgery in
April 2006.  In fact, Dr. Ancill’s opinion was that the respiratory infection
was the major cause of the brain injury, not the motor vehicle accident.    Dr.
Ancill agreed, however, that he had never reviewed the Burnaby Hospital records
to determine if there was any evidence that Mr. Minhas had suffered oxygen
deprivation.  He ignored Dr. Cameron’s report indicating that the records
showed that Mr. Minhas had not suffered hypoxia while in hospital even though
he said he believed Dr. Cameron is a competent neurologist.

[195]     I reject
Dr. Ancill’s opinions.  He lacked objective information to support his hastily
formulation diagnosis; almost all of the assumptions on which he relied have
not been established by reliable evidence at trial; he failed to follow the
clinically accepted method of diagnosis; and he engaged in speculation.

[196]     Dr.
Cameron was the most credible of the plaintiff’s expert witnesses on the issue
of brain injury.  He was a thoughtful and responsive witness and did not
present as an advocate.  I am satisfied, however, that nearly all of the
assumed facts on which Dr. Cameron based his opinion were disproved, or have not
been established by the evidence at trial. Dr. Cameron agreed that the accuracy
of his diagnosis was largely dependent on the accuracy on the information with which
he had been provided.  Dr. Cameron acknowledged that Mr. Minhas’s claim that
his problems with memory and concentration worsened as time passed is unusual
as the natural course of memory dysfunction following a mild traumatic brain
injury is improvement over time.

[197]     In
general, the expert witnesses who provided opinions supporting Mr. Minhas’s
claim of brain injury relied for their diagnosis on information provided by Mr.
Minhas and one or more of his wife, brother and mother.  I am satisfied that
some of the information provided by Mr. Minhas and his family members was
incomplete, inaccurate or false.  The experts also agreed that changes in
behaviour alone are not diagnostic for brain injury.

[198]     The report
of Dr. Marshall Wilensky, a psychologist who conducted psychometric testing of
Mr. Minhas, was entered into evidence, but his report does not establish that
Mr. Minhas suffered cognitive impairment as a result of the accident.   Dr.
Wilensky had not been provided with any reliable pre-accident data to use as a
baseline to compare to his test results; in particular, he was not given any
school records.  Dr. Wilensky assumed that Mr. Minhas was in the average range
of intelligence before the accident.  Mr. Minhas scored in the low average
range on the intelligence tests administered by Dr. Wilensky.

[199]     In
relation to alleged behavioural changes post-MVA, Dr. Wilensky’s report
contains no references to Mr. Minhas’s criminal convictions, erratic employment
history, deplorable driving record, and anti-social behaviour before the
accident.  When Mr. Minhas’s recent employment history was put to Dr. Wilensky,
he agreed that he had probably over-estimated Mr. Minhas’s level of
pre-accident function.

[200]     Dr.
Wilensky agreed in cross-examination that neuropsychological testing scores
alone are not diagnostic of brain injury and that in order to make a diagnosis,
one needs signs of injury at the time the trauma happened, such as loss of
consciousness and/or memory loss.

[201]     Dr.
Wilensky said that he had only been informed on the morning of the day he
testified that Mr. Minhas had undergone psychometric testing with at least one
other psychologist not long before being tested by Dr. Wilensky.  Dr. Wilensky
was provided with the raw data from the earlier battery of tests.  He agreed
that the psychologist who had earlier tested Mr. Minhas had refused to
interpret the data because that psychologist considered the test results
unreliable due to elevated validity scores.  Dr. Wilensky agreed that it would
have been useful for him to know that information before he assessed Mr.
Minhas.

[202]     Dr.
Wilensky agreed that there had also been some “yellow flags” in his test
results.  He agreed that Mr. Minhas had an elevated validity score on one of
the three validity tests he employed, and that the elevated score could
indicate an attempt to appear especially disturbed or dysfunctional.  He agreed
that both the plaintiff and Binty Minhas had rated Mr. Minhas more negatively
on a perception scale than 99 to 100% of the normative testing group.

[203]     Dr.
Wilensky agreed that it is very rare for vocabulary to decline following a mild
traumatic brain injury and therefore he would assume that the test result he
obtained from Mr. Minhas in relation to vocabulary was the same result he would
have obtained before the accident.  Dr. Wilensky agreed that Mr. Minhas scored
below the 1^st percentile, meaning more than 99% of people who had
taken the test had scored better than Mr. Minhas.  Dr. Wilensky agreed that was
an unusually low score.  He suggested it might be because English was not Mr.
Minhas’s first language; however he agreed that the history taken from Mr.
Minhas indicated that Mr. Minhas considered English to be his first language.

[204]     Dr.
Derryck Smith, a psychiatrist, assessed Mr. Minhas on behalf of the defendant. 
His opinion is that Mr. Minhas did not sustain a traumatic brain injury as a
result of the motor vehicle accident.  In reference to Dr. Wilensky’s opinion,
Dr. Smith said it was “…extraordinarily unlikely” that Mr. Minhas’s IQ was
affected by the motor vehicle accident, given that any brain injury or
concussion Mr. Minhas might have had was mild at most.  Dr. Smith opined that
IQ generally declines only after a moderate to severe brain injury.  I have
already stated that both a CT scan and an MRI of Mr. Minhas’s brain revealed no
evidence of brain injury.

[205]     Dr. Smith
found no good evidence that Mr. Minhas suffered any type of brain injury.  He
said the only evidence was a brief gap in Mr. Minhas’s memory.  I have already
said that I am not persuaded Mr. Minhas had any memory gap or loss following
the accident.  I found Dr. Smith’s analysis and opinion to be logical and
persuasive and I accept his opinion.

[206]      I am
satisfied that Mr. Minhas did not black out or lose consciousness following the
collision; was not dazed or confused in the minutes, hours or days following
the collision, and did not have memory loss or amnesia about the events leading
up to, during, or following the collision. I am not persuaded that Mr. Minhas’s
cognitive abilities have declined.  I accept that Mr. Minhas’s behaviour has
deteriorated; or at least that he has taken less care to conceal his true
character and certain of his activities from family and friends in recent years
– but I am not persuaded that the change is as significant as Mr. Minhas’s
family have claimed and I am not persuaded the changes were caused by trauma to
his brain.  I conclude that Mr. Minhas did not suffer a brain injury as a
result of the motor vehicle collision on October 25, 2005.

DID MR. MINHAS SUFFER SOFT TISSUE INJURIES TO
HIS FACE, NECK AND BACK?

[207]     The
defendant does not dispute Mr. Minhas’s claim that he suffered soft tissue
injuries to his neck, back and face as a result of the collision, although the
severity and duration of symptoms caused by the injuries are in issue.

[208]     On October
26, 2005, Mr. Minhas told Dr. Gill that he was having jaw pain, ringing in his
left ear and pain in his neck and back.  Dr. Gill noted spasm in the muscles
along the spine in the upper, mid and lower back.  He noted decreased range of
motion in Mr. Minhas’s back.  Pressing on the left side of Mr. Minhas’s jaw
produced reports of pain and Dr. Gill found Mr. Minhas was unable to fully open
his mouth.  There was bruising around Mr. Minhas’s nose.  Dr. Gill prescribed
“Naprosyn”, an anti-inflammatory medication; Flexeril – a muscle relaxant to be
taken at bedtime; and “Percocet” as a painkiller.

[209]     Mr.
Minhas’s Pharmacare Patient Profile was entered as an exhibit at trial.  There
is no record of Mr. Minhas having purchased any of the medications prescribed
by Dr. Gill on October 26, 2005.  According to the Pharmacare record, Paxil was
the only prescription drug purchased by Mr. Minhas between October 25, 2005 and
January 1, 2006.  On January 1, 2006, Mr. Minhas purchased Tylenol #3 with
codeine.

[210]     When Mr.
Minhas saw dental specialist Dr. Mehta on November 2, 2005, he reported that he
was having problems on the left side of his body from “head to toe” and had
restricted jaw opening, although facial swelling was diminishing.  Dr. Mehta’s
initial impression was that Mr. Minhas had left facial inflammation caused by
severe trauma.  Dr. Mehta’s opinion was that Mr. Minhas’s restricted ability to
open his mouth was because of injury to the muscles surrounding the jaw and not
damage to or displacement of the “disc” (cartilage) in the joint itself.  Dr.
Mehta recommended that Mr Minhas apply ice to his jaw; take anti-inflammatory
medication and pain medication, go to physiotherapy, and eat a soft diet.

[211]     Mr. Minhas
was seen by Dr. Gill again on November 15, 2005.  He continued to complain of
pain in his left TM joint as well as neck and back pain.  He told Dr. Gill he
had been going to physiotherapy.  Physiotherapist Virginia Fenzl testified that
Mr. Minhas’s first visit to her was on November 14, 2005.

[212]     On
November 15, 2005, Dr. Gill assessed muscle spasm and decreased range of motion
in Mr. Minhas’s back.   Mr. Minhas had decreased mouth opening.  When seen on
November 23, 2005, Mr. Minhas reported similar symptoms.  He had a slight improvement
in his ability to open his mouth.

[213]     Mr. Minhas
saw Dr. Mehta a second time on November 30, 2005.  Mr. Minhas told Dr. Mehta he
had been going to physiotherapy; that the facial bruising had improved, his
sleep was improving, and there was a slight improvement to his ability to open
his mouth.

[214]      Dr. Gill
saw Mr. Minhas on December 21, 2005.  He reported neck and back pain and
headaches.  Dr. Gill assessed reduced range of motion in Mr. Minhas’s back.  He
recommended massage therapy in addition to ongoing physiotherapy.  Dr. Gill
reported that he “renewed” Mr. Minhas’s prescription for Tylenol #3.  There is
no record of when Dr. Gill first prescribed Tylenol #3.  As noted earlier, Mr.
Minhas first filled a prescription for Tylenol #3 in early January 2006.

[215]     The
records from the Community Centre attended by Mr. Minhas indicate that on
January 12, 2006, Mr. Minhas resumed going to the gym at the Community Centre. 
He went to the Centre 13 times in January 2006.  Between January 12 and March
29, 2006 he went there 48 times; usually in the evening, but occasionally in
the afternoon.

[216]     Dr. Gill
next saw Mr. Minhas on January 27, 2006.  Mr. Minhas reported he still had TM
joint pain, neck and back pain but that his neck and back pain had been
improving.  Dr. Gill continued to assess decreased range of motion and muscle
spasm in Mr. Minhas’s back in February 2006.

[217]     Dr. Mehta
saw Mr. Minhas on February 6, 2006, Mr. Minhas reported some improvement in his
ability to eat, but said he could not eat a steak.  He could open his mouth 40
millimetres.  Mr. Minhas told Dr. Mehta his memory and concentration had
improved.  He said that he was beginning to increase his physical activity
although he noticed increased clenching of his jaw when he was jogging or doing
weight-bearing exercises at the gym.  Dr. Mehta’s notes indicate that he
understood that Mr. Minhas was going to go back to work on a graduated return
basis.

[218]     Dr. Mehta
arranged for Mr. Minhas to be fitted with a mouth guard to wear while
exercising.

[219]     On February
6, 2006, Mr. Minhas finally told Dr. Mehta about the earlier motor vehicle
accident he had been involved in on August 7, 2000; the accident in which he
had previously injured the left side of his face and jaw.   However, Mr. Minhas
downplayed the force involved in the earlier accident and his injuries.  He
told Dr. Mehta that the 2000 accident was minor and that “It was like a hit at
a hockey game”.  He told Dr. Mehta that he had consulted a dental specialist,
Dr. Bianco, following the 2000 motor vehicle accident but that he had been told
he did not need treatment.  These statements by Mr. Minhas to Dr. Mehta are
inconsistent with the information in Dr. Bianco’s records, and with the
statement Mr. Minhas gave to ICBC following the 2000 accident.  I shall say
more about this accident later in these Reasons.

[220]      I
consider it probable that the soft tissue injuries to Mr. Minhas’s neck and
back were not debilitating for more than a month or two, and had largely
resolved by the time Mr. Minhas was re-injured in an unrelated motor vehicle
accident on August 28, 2006.  The fact that Mr. Minhas did not purchase the anti-inflammatory
medications and painkillers that Dr. Gill had prescribed for him on October 26,
2005 suggests that any discomfort Mr. Minhas was experiencing from the soft
tissue injuries was tolerable or could be alleviated by over the counter
medications.  Mr. Minhas did purchase 60 tablets of Tylenol #3 in January 2006
and again in March 2006, but not after that date.   Binty Minhas deposed in an
affidavit sworn November 22, 2010 that Mr Minhas had taken Tylenol #3 from a
supply prescribed for Binty Minhas; but that this was in 2010.  Binty Minhas
speculated that Mr. Minhas might be developing a drug addiction problem as well
as an alcohol problem.

[221]     Mr. Minhas
continued to report pain or tenderness in the muscles of his neck and back
after February 2006, but I am satisfied that the symptoms were not severe or
debilitating.  Mr. Minhas told Dr. Gill on June 5, 2006 that he had been
experiencing improvement in his neck and back pain.  He continued to report
some tenderness and Dr. Gill noted muscle spasm and decreased range of motion
in July and August, 2006.

[222]      Mr.
Minhas had injured his neck, back and shoulders several times in 2004 and 2005,
and I consider it likely that he would have experienced episodes of pain and
stiffness in his neck, back and shoulders even if the October 25, 2005 accident
had not happened.  On August 28, 2006 Mr. Minhas was involved in another motor
vehicle accident that re-injured his neck and back, especially his lower back. 
He reported to Dr. Gill on September 29, 2006 that he had been experiencing
increased neck and back pain following the August 28, 2006 accident.   However
by October 10, 2006 his neck and back pain were again improving although there
was still tenderness and restricted range of motion.  Dr. Gill noted continuing
gradual improvement in early February 2007.

DID MR. MINHAS SUFFER A JAW FRACTURE AS A
RESULT OF THE ACCIDENT?

[223]     Mr. Minhas
had a CT scan of his left TM joint and jaw at the University of British
Columbia on February 13, 2006, on a referral from Dr. Mehta.  Dr. Orpe, the
radiologist who initially interpreted the scan, reported that there were
arthritic changes in Mr. Minhas’s left TM joint.  She also concluded that there
appeared to have been a fracture of the left temporal bone through the left
glenoid fossa and a loose fragment that she believed to be a bone fragment.

[224]     Dr. Orpe was
not produced for cross-examination at trial.  Instead, the parties entered an
Agreed Statement of Facts.  The Agreed Statement says that having reviewed other
scans of Mr. Minhas’s jaw, Dr. Orpe no longer believes that there was a
fracture of the temporal bone,  but is still of the opinion that there was a
loose bone fragment.  She was not able to express an opinion about where the
fragment came from or when the fragmentation occurred.

[225]     Other
dental specialists who interpreted the same scans disagreed with Dr. Orpe’s
interpretation of the February 13, 2006 scan.  No other specialist supported
Dr. Orpe’s opinion that Mr. Minhas had suffered a fracture or fragmentation of
his jaw.  Dr. Mehta testified that a subsequent scan of both of Mr. Minhas’s jaws
done on March 23, 2006 ruled out a fracture or any other abnormality in either
of Mr. Minhas’s TM joints.

[226]     Dr.
Connell, another dental specialist who examined the scans of Mr. Minhas’s jaws,
found no fracture and no loose bone fragment.  Dr. Connell’s opinion is that
both sides of Mr. Minhas’s jaw look the same on the scans.

[227]     Dr. Ian
Matthew, a dental surgeon, also examined the scans of Mr. Minhas’s jaw done on
February 13 and March 23, 2006.  Like Dr. Connell, he saw no evidence of a fracture
or a bone fragment.  Dr. Matthew testified that a glenoid fossa fracture is
uncommon; and that when he has seen such a fracture, the patient was usually in
hospital, critically ill, with major facial injuries.

[228]     Dr. Burton
Goldstein is a certified specialist in oral and maxillofacial surgery and oral
medicine who provided expert opinion evidence in the defendant’s case.  Dr.
Goldstein examined Mr. Minhas on June 25, 2009.   He noted, as Dr. Matthew had,
that there were no clinical signs or symptoms consistent with a fracture.  He
said that it is extremely rare for a patient to have a fracture of the glenoid
fossa without an accompanying dislocation of the mandibular condyle.  In his 25
years of experience he had never seen an isolated glenoid fossa fracture.

[229]     I conclude
that the motor vehicle accident did not cause a fracture or fragmentation of
any part of Mr. Minhas’s jaw and in particular, did not cause a fracture or
fragmentation of the left temporal bone.

[230]     Dr.
Matthew testified that he told Mr. Minhas in April 2006 that his jaw had not
been fractured.  Mr. Minhas appears to have disregarded this information and
has perpetuated the misunderstanding about his jaw.  He continued to report to
expert witnesses to whom he was referred in subsequent months and years, that
his jaw had been fractured.  In April 2009, for example, Mr. Minhas told Dr.
Cameron that the accident had caused “…a left fractured jaw bone…” and that
he “…underwent surgery to repair the jaw injury…”

[231]     The error
in diagnosis and the misunderstanding about the reason for and nature of the
surgery performed by Dr. Matthew in April 2006 is evident in Dr. Gill’s May 8,
2009 report.  In summarizing his opinion about the injuries resulting from the
motor vehicle accident, Dr. Gill stated, at page 19 of his report:

Perhaps
most significantly Mr. Minhas sustained a fracture to the left glenoid fossa
and temporal bone.  Subsequent to this he required surgery to correct this
problem.

The date of this report indicates that two years after Mr.
Minhas had surgery on both of his jaws Dr. Gill was still reporting that Mr.
Minhas had suffered a left jaw fracture and that surgery had been performed to
repair a fracture.  Neither of the statements made by Dr. Gill is accurate.

[232]     One of the
problems caused by the mistaken diagnosis of a fracture was that several of the
plaintiff’s expert witnesses – Dr. Ancill, Dr. Hearn, Dr. Apel, Dr. Cameron,
and Dr. Longridge, among others – assumed that the force of the impact between
Mr. Minhas’s face and the interior of his vehicle was much greater than it
actually was; and therefore more likely to have resulted in traumatic brain
injury and other conditions.

THE JAW SURGERY

[233]     When Dr.
Mehta met with Mr. Minhas on March 8, 2006, he believed, based on Dr. Orpe’s
radiology report, that Mr. Minhas had a jaw fracture.  Mr. Minhas told Dr.
Mehta that the mouth guards Dr. Mehta had given him had been very helpful in
reducing his jaw pain.  However, according to Dr. Mehta’s medical-legal report,
he and Mr. Minhas discussed “…addressing the (jaw) fracture…” by surgical
correction.

[234]    
Dr. Mehta wrote to Dr. Ian Matthew on March 8, 2006.  In this letter he
referred to the apparent fracture of the left temporal bone and left glenoid
fossa.  He said:

I
would appreciate your opinion as to the best surgical correction and management
of the fracture.

[235]     Dr.
Matthew did perform surgery on Mr. Minhas’s jaw in April 2006, but as Dr.
Matthew testified at trial, the surgery he performed had nothing to do with an
actual or suspected jaw fracture.  The surgery Dr. Matthew performed, which
involved cutting the jaw bones on both sides of Mr. Minhas’s jaw, was carried
out to correct a problem with Mr. Minhas’s “bite” – the same problem Dr. Bianco
had diagnosed following the car accident Mr. Minhas had in August 2000 – and to
relieve chronic problems in both of Mr. Minhas’s TM joints.

[236]     Earlier in
these Reasons I referred to Mr. Minhas having been involved in a motor vehicle
accident on August 7, 2000.  Mr. Minhas provided a statement about that
accident to an insurance adjuster on August 8, 2000.  He told the adjuster that
the left side of his face had struck the steering wheel; that he had ringing in
his ears and blood in his mouth and bleeding gums.  He stated that following
the accident his jaw was “…giving me lots of pain and it feels locked.”

[237]     Mr. Minhas
complained to Dr. Gill of pain in his left TM joint in August and September
2000.  Dr. Gill referred Mr. Minhas to a dental specialist, Dr. Bianco.  Mr.
Minhas had restricted jaw opening and reported to Dr. Bianco that his jaw was
locking, and that he had “clicking” and pain in the left TM joint.

[238]     Dr. Bianco
observed what he considered to be a Class 1 malocclusion in Mr. Minhas’s
permanent dentition; meaning that the upper and lower teeth did not meet
properly; and Mr. Minhas’s lower dental arch midline was shifted to the left in
relation to the center plane of his face.  Dr. Bianco also noted evidence that
Mr. Minhas had been grinding his teeth – a condition referred to as bruxism.  Dr.
Bianco recommended that Mr. Minhas have a complete TM joint evaluation,
including radiographs (“tomograms”) of both his right and left TM joint, in
anticipation of fitting him with a corrective splint.

[239]     Dr.
Bianco’s clinical records indicate that Mr. Minhas did not show up for the appointment
to have tomograms done. Soon after, according to Dr. Bianco’s clinical records,
Dr. Bianco was informed by Mr. Minhas’s insurance adjuster that Mr. Minhas had
been assessed as at fault in the August 7, 2000 accident.  Mr. Minhas did not
return to Dr. Bianco for the recommended investigations or therapy and had no
further contact with Dr. Bianco until January 2006, when Mr. Minhas called Dr.
Bianco’s office and asked for copies of his dental records.

[240]     Dr.
Matthew is a specialist in oral surgery.  From 1999 to 2008 he was the chair of
the Division of Oral and Maxillofacial surgery in the Dental College at the
University of British Columbia.  Dr. Matthew testified that he and Dr. Mehta
“… share a professional interest in the management of patients with chronic
facial pain and conditions associated with the jaw apparatus.”

[241]     After
taking a history from Mr. Minhas and examining him on March 14, 2006, Dr.
Matthew concluded that the facial pain Mr. Minhas was experiencing was caused
by an internal derangement of his TM joints.  Dr. Matthew testified that the
jaw is a double hinge, supported by a capsule of soft tissue, with muscles
functioning around the hinge.  If the muscles are overworked, chronic facial
pain or headaches can result.  In addition, ongoing muscle clenching can damage
the cartilage in the joint itself; including macerating the cartilage or
rupturing the cartilage and displacing it.

[242]     Dr.
Matthew testified that when a patient reports pain or tenderness associated
with the masseter muscle, – the facial muscle involved in chewing – the pain is
usually indicative of over-function, or clenching of the teeth and jaw.  Over
the long term, Dr. Matthew testified, clenching of the muscle and grinding of
the teeth can lead to tenderness in facial muscles.  Dr. Matthew testified that
this condition is usually chronic, meaning it has been going on for some time;
but can also have an “acute” component when a patient has an acute injury.

[243]     Dr.
Matthew testified at trial that untreated TM joint problems can result in
chronic pain and also deterioration of the jaw.  Excessive and chronic
clenching of the jaw resulting in pressure in the joint can cause destructive
osteoarthritis in the joint.  He said that if severe arthritis develops it can
destroy the joint, and the last resort is joint replacement.

[244]     Dr.
Matthew observed that Mr. Minhas’s teeth were generally flattened and lacked
the normal rounded cusps; and that rather than having normal interdigitation of
the teeth Mr. Minhas’s teeth were meeting together on a flat plane.  Dr.
Matthew noted evidence of grinding was present on both the front and back
teeth.  Dr. Matthew said the resulting flattening of the teeth could be seen in
the MRI done in March 2006.

[245]     Dr. Shen, a
dentist Mr. Minhas had seen for the first time in May 2005, noted in his
records that Mr. Minhas was grinding his teeth.  He recommended that Mr. Minhas
wear a night guard.

[246]     Dr.
Matthew did not have access to Dr. Bianco’s records in 2006 and did not see
those records until after this lawsuit was commenced.  After having reviewed
Dr. Bianco’s records, Dr. Matthew testified that those records indicated that
Mr. Minhas had been grinding his teeth for many years; even before he was seen
by Dr. Bianco in 2000.  Dr. Bianco reported that in 2000, “generalized wear was
noted in both dental arches” and “parafunctional problems were noted with
severe clenching and grinding”.

[247]     Dr.
Matthew testified that according to Dr. Bianco’s records, Mr. Minhas had even
more restricted mouth opening when seen by Dr. Bianco in 2000 than he had
following the accident in 2005.  The normal range is 40 to 45 millimetres.  The
intercisal gap was measured by Dr. Bianco at only 15 millimetres; described by
Dr. Matthew as a “moderate to severe” restriction.  When Dr. Matthew saw Mr.
Minhas on March 14, 2006 he measured the intercisal opening to be 25
millimetres.

[248]     Dr.
Matthew testified that Dr. Bianco’s records indicated that Dr. Bianco had
recommended that Mr. Minhas be fitted with a mouth guard that was intended to
not only protect Mr. Minhas’s teeth from the effects of grinding, but also to
reposition his jaws to try to increase the joint space so that the joints and
the cartilage in the joints could rest and heal.

[249]     Dr.
Goldstein also reviewed Mr. Minhas’s dental records.  His opinion is that prior
to the October 25, 2005 motor vehicle accident, Mr. Minhas already had a
temporomandibular disorder (“TM disorder”) caused by his long-standing habit of
clenching and grinding his teeth; and the injuries he had sustained in the
August 7, 2000 motor vehicle accident.

[250]     Dr.
Matthew told Mr. Minhas in March 2006 that his jaw had not been fractured, but
that Mr. Minhas had a TM joint problem.  He told Mr. Minhas about two
procedures that could be done to attempt to alleviate Mr. Minhas’s TM disorder. 
One procedure involved injections into the TM joint.  The other was a surgery
involving cutting both jaw bones to allow both jaws to be repositioned.

[251]     The
surgery that Dr. Matthew recommended to Mr. Minhas is called a “vertical ramus
osteotomy”.  The ramus is the vertical bone that goes up from the mandible
(lower jaw) toward the temporal bone on both sides of the face.  The osteotomy
procedure involves making a vertical cut through the bones on each side of the
face, which permits the structures within the joint to find a natural position
and eliminate the problems of pain and restricted jaw movement.

[252]     Dr.
Matthew testified that one of the possible negative outcomes of the procedure
is a “malocclusion” – a failure of the upper and lower teeth to meet properly. 
Dr. Matthew said that he explained to Mr. Minhas that one of the risks of the
surgery was that some patients develop an “anterior open bite”, meaning that
the teeth do not meet fully at the front of the mouth.  To prevent a
malocclusion following the cutting of the jaw bones, the jaws are fixed or
wired together for a period of four to six weeks; sometimes followed by
“elastic traction”.

[253]     Dr.
Matthew testified that Mr. Minhas opted to have the surgical procedure and
seemed very relaxed at the prospect.

[254]     The
surgery was performed with general anaesthetic at Burnaby General Hospital on
April 28, 2006.  Dr. Matthew testified that the surgery went according to plan,
although he found it was difficult to lift Mr. Minhas’s masseter muscles off
the surface of the bones due to very tenacious muscle attachments.  Dr. Matthew
testified that this could be an indication that over time, the abnormal
function of Mr. Minhas’s jaw had caused the connection between the bone and the
muscle to become much firmer than would normally be expected.  At the start of
the surgery Dr. Matthew placed a structure of wires and bars in Mr. Minhas’s
mouth to fix the position of Mr. Minhas’s jaws and teeth.  After the bone cuts
had been made, the wires and bars were positioned to hold the jaws in place
until the bones had healed.

[255]     Although I
have concluded that Mr. Minhas’s jaw was not fractured as a result of the
October 25, 2005 accident, and that the surgery he had on both jaws in April
2006 was not performed to repair a jaw fracture, I have concluded that there is
a causal connection between the accident and the surgery.

[256]     The
muscles and soft tissues on the left side of Mr. Minhas’s face were injured in
the accident.  There is objective evidence that the left side of his face was
swollen and that he had restricted mouth opening.  The testimony of Drs.
Matthew and Goldstein establishes that Mr. Minhas had chronic TM joint problems
and that the problem on the left side of his face had been exacerbated by the
2000 motor vehicle accident injuries.  However, Dr. Matthew also testified that
a chronic TM joint problem can be exacerbated by trauma to the facial muscles,
and I am satisfied that that is what occurred here.  But for the pain, swelling
and restricted mouth opening resulting from the accident trauma, I do not
believe Mr. Minhas would have sought out treatment from Dr. Matthew, and I do
not believe he would have elected to have the surgery recommended by Dr.
Matthew.

[257]     I conclude
therefore, that the defendant is liable to compensate the plaintiff for the
pain and discomfort of the surgery and for any damages caused by the surgery,
and also damages flowing from a respiratory infection Mr. Minhas developed
following the surgery.

THE RESPIRATORY INFECTION

[258]     Although
the surgical procedure performed on April 28 went well, Mr. Minhas developed
pneumonia, and serious respiratory complications, probably the result of
discharge from a chronic sinus infection being transferred into Mr. Minhas’s
lungs during intubation prior to surgery.

[259]     In the
normal course, Dr. Matthew testified, Mr. Minhas would have been kept in
intensive care until the morning after the surgery; then moved to a surgical
ward for observation; and then be discharged in the afternoon of the day
following the surgery.  Instead, Mr. Minhas remained in hospital until May 15,
2006; initially in the Intensive Care Unit and later on a ward.  In order to
ensure adequate oxygen, a tracheostomy was done on May 6.  Mr. Minhas has a
small scar low on the front of his neck, as a result of this procedure.

[260]     The
infection Mr. Minhas developed following the surgery was referred to as “acute
respiratory distress syndrome”.  It is a serious illness that can be
life-threatening.  During some of the time he was in hospital following the
surgery, Mr. Minhas was unconscious.  At times, he displayed symptoms of
delirium, including paranoid delusions and visual hallucinations.

[261]     Kal Bhatti
visited Mr. Minhas in hospital and recalled that Mr. Minhas asked questions
about Ayesha (his former girlfriend) and seemed to think he was married to her. 
Mr. Bhatti said that Mr. Minhas was talking “rubbish”.   Binty Minhas testified
that he visited his brother every day in hospital.  He said that when Mr.
Minhas woke up his jaw was wired shut and that he tried to communicate by
writing on a note pad.  He said Mr. Minhas claimed people – even dead people –
were after him and that Ayesha was trying to kill him.  He wanted Binty to sell
their mother’s house.

[262]     Dr. Lim, a
psychiatrist who assessed Mr. Minhas while he was an in-patient at Burnaby
General Hospital thought the delirium symptoms displayed by Mr. Minhas might
have been caused by withdrawal from Paxil.  Dr. Martyn, a respiratory
specialist, thought the symptoms were more likely due to a condition referred
to as “ICU psychosis”.

[263]     The day
before Mr. Minhas was discharged from hospital, Binty Minhas got a phone call
from the hospital telling him that Mr. Minhas had left the hospital without
having been discharged.  Binty Minhas, Mr. Bhatti and Mr. Sidhu drove around
looking for Mr. Minhas.   Surinder Minhas testified she found Mr. Minhas in the
laundry room of their home, putting a jacket into the laundry.  He told her
someone was following him.  She said he was moving rapidly from room to room in
the house.  He told her that he was not feeling good at the hospital and that
he had stayed in hospital too long.  When Binty Minhas got back to the house,
Mr. Minhas was lying down in the den and did not want to go back to the
hospital.  He claimed people were after him.  Eventually the family persuaded
Mr. Minhas to return to the hospital.  He was discharged the next day.

[264]     Binty
Minhas testified that after Mr. Minhas was discharged from hospital, he had no
memory of having left the hospital the previous day and no memory of the
hallucinations he had had while in hospital.  Binty Minhas testified that he
and other family members told Mr. Minhas about the things he had done and said
while he was in hospital.   I mention this because Mr. Minhas later claimed to
have “flashbacks” about events that he had told his family he did not recall.

DID MR. MINHAS SUFFER A BRAIN INJURY IN
HOSPITAL DUE TO LACK OF OXYGEN?

[265]     Counsel
for the plaintiff suggested to witnesses during the trial, and submitted at the
conclusion of the trial, that Mr. Minhas had suffered brain damage caused by
hypoxia – lack of oxygen – as a result of the respiratory infection he
developed following the jaw surgery.  I have already mentioned that Dr. Ancill
supported this diagnosis although he had never reviewed the hospital records.

[266]     There is
no evidence that Mr. Minhas did suffer hypoxia and there is persuasive opinion
evidence to the contrary.  Dr. Cameron, the neurologist who testified as an
expert witness on behalf of the plaintiff, testified that he had reviewed Mr.
Minhas’s Burnaby General Hospital records, in particular records of oxygen
levels and blood pressure, looking for indications that Mr. Minhas might have
suffered from either hypoxia or persisting hypotension during his hospital
stay.  Dr. Cameron testified that patients in ICU have an arterial line in
place so blood gases can easily be measured and that patients are monitored to
ensure that oxygen saturation levels are adequate.  He said that the readings
obtained from the arterial line would closely reflect oxygen levels in the
brain.  Dr. Cameron said that the Burnaby Hospital records indicate that Mr.
Minhas did not have hypoxia, or low oxygen, during his stay in hospital.  Dr.
Cameron’s opinion is that Mr. Minhas did not suffer hypoxic brain injury during
or following the surgery at Burnaby General Hospital.

[267]      I
conclude that the plaintiff has failed to prove, on a balance of probabilities,
that he suffered a brain injury caused either by the surgery in April 2006 or
the subsequent respiratory infection.

MR. MINHAS’S DENTAL MALOCCLUSION

[268]     There is
no dispute that Mr. Minhas has a dental malocclusion and that his upper and
lower teeth do not meet properly at the front of his mouth.  I have already
referred to the records of Dr. Bianco indicating that Mr. Minhas already had
dental malocclusion problems when seen by Dr. Bianco in 2000, but the problem
with his bite is much worse now than it was before the surgery on April 28,
2006.

[269]     Dr. Gill
saw Mr. Minhas on May 16, 2006, the day after Mr. Minhas was discharged from
Burnaby General Hospital.  Mr. Minhas told Dr. Gill his jaw was to remain wired
shut for another six weeks.

[270]     Dr.
Matthew saw Mr. Minhas on May 23, 2006.  He observed that Mr. Minhas had
developed an anterior open bite and some of the wires and arch bars Dr. Matthew
had installed on April 28, 2006 were missing, broken or loose, possibly the
result of procedures performed by hospital personnel while Mr. Minhas was being
treated for the respiratory infection.

[271]     Dr.
Matthew attempted to tighten the wiring and arch bars on May 23, but it proved
to be difficult.  Dr. Matthew recommended to Mr. Minhas that the wires and bars
previously inserted be removed and replaced; with the use of a local
anaesthetic so that the procedure would not be painful for Mr. Minhas.   Dr.
Matthew testified that the jaw surgery was sufficiently recent that the
developing problem with Mr. Minhas’s bite could still be corrected.

[272]     Mr. Minhas
agreed to have Dr. Matthew remove the existing wires and arch bars and replace
them; and he signed a consent form for the procedure.  An appointment was made
for May 26 for the procedure to be carried out.

[273]     On May 26,
2006, Mr. Minhas arrived for his appointment but told Dr. Matthew that he had
changed his mind and did not want the wires and arch bars replaced.  He said
that he felt 100% better and did not want to have the anterior bite problem
corrected.  Dr. Matthew left the original wires and bars in place.

[274]     Mr. Minhas
saw Dr. Shen on May 29, 2006 and had the wires and arch bars removed.

[275]     Mr. Minhas
saw Dr Mehta on June 7, 2006.  He told Dr. Mehta he was significantly better. 
He told Dr. Mehta that he could now open his mouth as far as he could before
the accident; and that he felt a “million times better since after the
accident” although his jaw was still mildly painful.  He said he was not
concerned about his open bite.  He told Dr. Mehta that being able to eat better
had helped him to get stronger physically.  He said he was taking Tylenol #3
only rarely.  He said he was not having any headaches; was sleeping comfortably
for up to eight hours without interruption, and that his memory and
concentration were okay.

[276]     By June 7,
2006, Dr. Mehta was of the view that Mr. Minhas’s remaining jaw symptoms were
not significant enough to prevent Mr. Minhas from returning to work.  Dr. Mehta
confirmed this opinion in a letter to Mr. Minhas’s counsel.  In a subsequent
letter, Dr. Mehta said that Mr. Minhas had had “…remarkable improvement
during the summer of 2006 with pain reduction and improvement to left-sided
facial inflammation”.

[277]     In
contrast to the positive reports that Mr. Minhas gave Dr. Mehta he appears to
have told Dr. Gill on July 11, 2006 that he was still experiencing “marked” TM
joint pain.  This claim can also be contrasted also with Mr. Minhas’s report to
Dr. Matthew when he saw Dr. Matthew on July 13, 2006.  Mr. Minhas told Dr.
Matthew that his jaw was much more comfortable than it had been before the
surgery and that he had a better mouth opening.  He said the surgery had helped
his jaw tremendously.

[278]     On August
28, 2006, Mr. Minhas was involved in another motor vehicle accident that,
according to Dr. Mehta, again compromised Mr. Minhas’s jaw opening and caused
pain to the muscles and the TM joint.  Mr. Minhas reported increased TM joint
pain to Dr. Gill over the next several months following this accident. 
According to Dr. Hearn, this accident “…aggravated all of Mr. Minhas’s
sufferings, physical and psychological.”

[279]     I conclude
that the August 28, 2006 accident re-injured Mr. Minhas’s jaw and facial
muscles.  He reported to occupational therapist Gary Worthington-White in March
2007 that his jaw symptoms were the most disabling of his symptoms at that
time.   In sharp contrast to his reports to Dr. Mehta and Dr. Matthew in 2006
and 2007, Mr. Minhas told Mr. Worthington-White that his jaw had improved for
approximately one month after the April 2006 surgery, but since then had
significantly worsened.

[280]     Dr. Mehta
saw Mr. Minhas on June 18, 2007.  According to a report he wrote to Dr. Gill on
June 21, 2007, Dr. Mehta’s opinion was that Mr. Minhas’s jaw condition was not
debilitating and did not prevent him from working.  He said that there was no
pain directly attributable to the TM joints as there had been in 2005.  He
reported “The restricted opening, left facial inflammation and left
temporomandibular joint pains have resolved, most likely from the surgical
procedure.”  He was of the view that any remaining facial pain was likely
muscle pain.

[281]     Dr.
Matthew saw Mr. Minhas on October 9, 2007.  Mr. Minhas told Dr. Matthew he had
had a significant reduction in jaw pain following the surgery and was happy
with the outcome.  He said that his only current problem was the open bite at
the front of his mouth and that he could live with that.  Binty Minhas
testified at trial that he had not heard Mr. Minhas complain about jaw pain for
years.

[282]     The
plaintiff entered into evidence a February 8, 2010 report from Dr. Karateew, a
dentist with advanced training in prosthodontics and peridontics, about Mr.
Minhas’s jaw function and dental malocclusion and possible courses of
treatment.  The defendant entered into evidence two reports authored by Dr.
Goldstein, a specialist in oral and maxillofacial surgery and oral medicine. 
Dr. Goldstein disagreed with Dr. Karateew’s opinions and his recommended
courses of treatment.   He noted, for example, that Dr. Karateew appeared to
believe that the surgery Dr. Matthew had performed on Mr. Minhas’s jaws was a
“saggital osteotomy”, which is incorrect.  The actual procedure, as noted
earlier, was a vertical ramus osteotomy.   Dr. Goldstein’s opinion is that the
treatment proposed by Dr. Karateew would not be successful in correcting Mr. Minhas’s
malocclusion problems.

[283]     Dr.
Goldstein’s qualifications are, in my view, superior to those of Dr. Karateew. 
I found Dr. Goldstein’s opinions to be reasonable and supported by the evidence
and I accept his opinions in preference to those of Dr. Karateew.

[284]     In any
event, I am satisfied that Mr. Minhas’s current problems with his bite are
entirely attributable to his decision to refuse to allow Dr. Matthew to fix his
jaws in position following the April 2006 surgery.

[285]     Dr.
Matthew testified that in his opinion, Mr. Minhas would not have an anterior
bite problem if he had allowed Dr. Matthew to replace the wires and arch bars
designed to hold his jaws in place, as Dr. Matthew had recommended.   This
opinion is unchallenged.  Although Dr. Goldstein did not share Dr. Matthew’s
opinion about the advisability of the 2006 surgery, he agreed that the bite
problem that Mr. Minhas currently has is the result of the lack of bony
fixation following the surgery.

[286]     At trial,
Mr. Minhas provided no reasonable justification for his decision to decline to
allow Dr. Matthew to replace the wires and arch bars in May 2006.  The
procedure did not require the administration of a general anaesthetic, so Mr.
Minhas’s decision is not explained by fear of further respiratory complications
arising from a procedure performed under general anaesthetic.

[287]     I conclude
that Mr. Minhas’s decision to decline the treatment was unreasonable and
constituted failure to mitigate his damages.  Mr. Minhas is not entitled to
recover any award for the cost of past or future care related to problems with
his jaw and/or teeth from and after May 26, 2006, the date on which he declined
to have the wires and arch bars replaced.

DID MR. MINHAS DEVELOP DIABETES AS A RESULT OF
THE OCTOBER 25, 2005 MOTOR VEHICLE ACCIDENT?

[288]     Mr. Minhas
testified that he developed diabetes when he was in hospital following the jaw
surgery in April and May 2006.  He said when he came out of the hospital he had
a dry mouth and was drinking a lot.  He said that he had been drinking a lot of
“shakes” after the accident and he attributes his diabetic condition to his
post-accident diet.   I am satisfied Mr. Minhas is mistaken both about the
timing of onset of his diabetes, and the cause.

[289]     Dr. Gill’s
clinical records and reports indicate that Mr. Minhas was not diagnosed with
Type 2 diabetes until March 2007, 18 months after the motor vehicle accident,
and 10 months after Mr. Minhas was discharged from Burnaby General
Hospital.

[290]     Dr. Gill
was prepared to attribute the onset of Mr. Minhas’s diabetes to weight gain
resulting from inactivity and diet following the motor vehicle accident and jaw
surgery, but in cross-examination he conceded that Mr. Minhas has a genetic
predisposition to develop diabetes, as Surinder Minhas also has Type 2 diabetes. 
Dr. Gill also conceded that he did not record or take note of Mr. Minhas’s
weight at any relevant time.  I was unable to find any reference to weight or
weight gain in the excerpts from Dr. Gill’s clinical records that are in
evidence.   There is no evidence that Dr. Gill ever cautioned Mr. Minhas about
weight gain or made recommendations to him about improving his diet.

[291]     Dr.
Matthew’s chart indicates that Mr. Minhas weighed 190 pounds in March 2006, the
month prior to the jaw surgery.  According to Dr. Bianco’s records, Mr. Minhas
weighed 180 pounds in August 2000.  It was suggested to Mr. Minhas in
cross-examination that he had told physiatrist Dr. Reebye, who assessed Mr.
Minhas in May 2006, that his weight prior to the accident in October 2005 was
200 pounds.   Mr. Minhas said he could not recall if he had said that to Dr.
Reebye.  Virginia Fenzl recorded Mr. Minhas’s weight on November 17, 2005 at
185 pounds.  There is a reference in Dr. Apel’s report to Mr. Minhas having
claimed in January 2007 that he had gained 15 pounds after the accident.  At
other times he has claimed to have gained as much as 40 pounds.  Neither of
those reports was verified by reliable independent evidence.  Mr. Minhas told
vocational consultant William Stanus that he weighed 180 pounds in January
2010.

[292]     I related
earlier in these Reasons that by January 2006, Mr. Minhas was well enough to
resume working out at his regular gym and that he continued to do so to the end
of March 2006.  Dr. Mehta fitted Mr. Minhas with a mouth guard to wear while
exercising.  Mr. Minhas told Dr. Mehta following that surgery that by early
June 2006 he was able to eat more normally and was regaining his strength.

[293]     On several
occasions in 2006, Dr. Gill and Dr. Mehta both recommended that Mr. Minhas
engage in active rehabilitation to improve his fitness.  Mr. Minhas appears to
have ignored these recommendations for reasons that were not explained at
trial.  He was noted to be “significantly deconditioned” in January 2007.  Dr.
Gill recommended that Mr. Minhas “continue to exercise” at an appointment in
May 2007.  Presumably Mr. Minhas did follow this recommendation as Dr. Gill
noted on July 25, 2007 that Mr. Minhas “…was encouraged to continue to
exercise in the gym and pool”.

[294]     Given his
family history of diabetes and the period of time that passed between the motor
vehicle accident and the diagnosis of diabetes, I am not persuaded that the
onset of diabetes in 2007 was caused by the motor vehicle accident, or that but
for the accident Mr. Minhas would not have developed diabetes when he did.

DID MR. MINHAS SUFFER A HEARING LOSS OR DEVELOP
VERTIGO OR BALANCE DISTURBANCE AS A RESULT OF THE ACCIDENT?

[295]     Mr. Minhas
is claiming that as a result of the accident, he suffered a loss of hearing in
his left ear, tinnitus, loss of smell and a balance disturbance, also referred
to as vertigo.  He was assessed on June 12, 2009, three and a half years after
the accident, by Dr. Longridge, an otolaryngologist, on a referral from Mr.
Minhas’s counsel.  Dr. Longridge was asked to provide an opinion with respect
to “…hearing loss, tinnitus, dizziness and disturbed sense of smell…”

[296]     According
to Dr. Longridge’s report, Mr. Minhas told him that following the accident, his
sense of smell was substantially reduced, his sense of taste was impaired and
food tasted bland.  He also told Dr. Longridge that following the accident he
had significant hearing reduction in his left ear that had remained constant.  Despite
having earlier told Dr. Longridge that he could not recall the accident, he
said that he had a vague memory of having blood in his left ear at the time of
the accident.  He told Dr. Longridge that he had had “ringing tinnitus” in his
left ear since the accident which was intrusive and irritating, interfered with
his sleep, and that the ringing tinnitus had “…persisted unchanged…” since
the accident.

[297]     According
to Dr. Longridge’s report, Mr. Minhas said he was aware of feeling dizzy
“….immediately early on after the accident…”; that the dizziness came in
episodes lasting five seconds, associated with positional change, but not
occurring when looking up.  Mr. Minhas told Dr. Longridge that his dizziness
had persisted unchanged from the date of the accident to the appointment with
Dr. Longridge.

[298]     Much of
the history provided by Mr. Minhas to Dr. Longridge was either false, or has
not been proved by evidence at this trial.  Mr. Minhas told Dr. Longridge that
he had complete memory loss starting a few hours before the October 25, 2005
accident; could recall nothing about the accident; and had inconsistent recall
of events for several days following the accident.  He told Dr. Longridge that
someone else had described the accident to him.  He said that his left jaw had
been fractured.

[299]     Mr. Minhas
told Dr. Longridge he had never had a head injury prior to the accident in
October 25, 2005, which is incorrect, if Dr. Gill’s report concerning the workplace
accident in April 2005 is accurate.  Mr. Minhas told Dr. Longridge about the earlier
motor vehicle accident in August 2000 when he also struck his face on the
interior of his vehicle, but said, incorrectly, that it had caused no dizziness
or hearing change.   He told Dr. Longridge that he had not even made a claim in
relation to the accident in 2000, which is also false.  Mr. Minhas did tell Dr.
Longridge that the accident he had in August 2006 had worsened all of the
symptoms related to the October 2005 accident.

[300]     During his
assessment of Mr. Minhas, Dr. Longridge ruled out a loss of smell as Mr. Minhas
was able to correctly identify test scents.

[301]     Dr.
Longridge sent Mr. Minhas to the Neuro-Otology Unit at VGH for audiometric
testing on June 12, 2009.  Those test results showed normal hearing in the
right ear, but Mr. Minhas gave inconsistent responses when his left ear was
being tested.  In Dr. Longridge’s report, he referred to these inconsistent
responses as a “functional component”.   In cross-examination, Dr. Longridge
conceded that what he meant by a “functional component” was the fact that Mr.
Minhas appeared to be exaggerating his hearing loss during the testing; trying
to seem more hearing impaired than he actually was.

[302]     The
testing was repeated on September 9, 2009 after it was made clear to Mr. Minhas
that he had to do better.   Dr. Longridge testified that the second test
indicated that Mr. Minhas had a “…mild low frequency mixed left hearing loss,
recovering to normal in the upper frequencies”.   Based on the information he
had been given about the October 2005 accident, Dr. Longridge attributed the
hearing loss to the accident, although he testified that the most common cause
of hearing loss is spontaneous “otosclerosis”.

[303]      Dr.
Longridge does not believe that Mr. Minhas needs a hearing aid.  The hearing
loss in the left ear is mild and in the lower frequencie only and Mr. Minhas has
very good hearing in his right ear.  Dr. Longridge said that a hearing aid
might be needed only if Mr. Minhas needed to optimize hearing, for example, if
he was on a lot of committees.  I consider it to be highly unlikely that Mr.
Minhas will ever be a member of a lot of committees.

[304]     Dr.
Longridge accepted Mr. Minhas’s self-report of tinnitus.  Dr. Longridge
testified that tinnitus is a subjective symptom and it cannot be objectively
verified or measured.  He testified that tinnitus resulting from trauma does
not usually get worse over time; it is usually worst at onset, improves over
time and plateaus after about one year.

[305]     Dr.
Longridge concluded that Mr. Minhas’s reported dizziness – brief episodes
occurring on position change – is likely due to a condition called Benign
Paroxysmal Positional Vertigo.  The condition does arise spontaneously, but Dr.
Longridge said it is also frequently seen following significant head trauma,
and is then often more intractable and persistent.  He said if the condition is
present for two years it is likely to be present long-term or permanently.

[306]     Dr.
Longridge also concluded that Mr. Minhas has a disturbance of his balance
system, which he also attributed to the October 25, 2005 accident.

[307]      I accept
Dr. Longridge’s diagnoses, but not his opinions about causation.  I conclude
that the plaintiff has failed to prove on a balance of probabilities that the dizziness
and tinnitus he reported to Dr. Longridge, or the balance problem and minor
hearing loss diagnosed by Dr. Longridge were caused by the October 25, 2005
motor vehicle accident.

[308]      Dr.
Longridge did not assess Mr. Minhas until more than three years had passed
following the accident.  Many of the assumptions on which Dr. Longridge based
his opinions – in relation to causation, in particular – are not supported by
the evidence.  At trial, Mr. Minhas did not confirm the accuracy of most of the
information attributed to him by Dr. Longridge.

[309]     Mr.
Minhas’s reports of the symptoms he related to Dr. Longridge have been
inconsistent.  Mr. Minhas did report to Dr. Gill’s locum on October 28, 2005
that he was having “…severe headaches with dizziness”.   On subsequent visits,
however – November 15, 2005, November 23, 2005, December 21, 2005, January 27,
2006, February 24, 2006, and March 15, 2006, for example – Dr. Gill did not
record any complaints of dizziness, vertigo, or impaired balance.  Mr. Minhas
was seen by one of Dr. Gill’s colleagues on August 19, 2006.   Dr. Oh recorded
no complaints of dizziness, vertigo or impaired balance.

[310]     On March
20, 2007, Mr. Minhas had a day-long assessment with Gary Worthing-White, an
occupational therapist and work capacity evaluator.  Mr. Worthington-White
testified that when asked to describe his ongoing symptoms as a result of the
accident, Mr. Minhas made no mention of dizziness, tinnitus, hearing loss or
balance problems.  Part of the work capacity evaluation carried out by Mr. Worthington-White
required Mr. Minhas to look up for prolonged periods while engaging in overhead
reaching.  Mr. Minhas complained that prolonged periods of looking up when
working overhead resulted in increased neck pain but he did not claim that it
made him feel dizzy.  He was able to ascend and descend four rungs of a step
ladder and a vertical ladder, four times.  He was able to balance on his right
and then his left leg, and was able to walk along a 3.5 inch wide balance beam
normally, with his hands on his hips.  He reported that stooping aggravated his
low back, but did not report that it made him dizzy.

[311]    
Mr. Minhas participated in a rehabilitation program in 2008, attending
several times each month for most of that year.  The records of the program indicate
that Mr. Minhas demonstrated no physical limitations.  In particular, there are
no references to reports of vertigo, dizziness, hearing loss, or balance
problems.

[312]    
Mr. Minhas’s reports of dizziness or vertigo must also be regarded with
some suspicion because I conclude that Mr. Minhas fabricated testimony in
relation to this symptom.  Mr. Minhas testified at this trial that on September
28, 2009 he was lying on the couch, stood up, had a dizzy spell, fell and broke
his right leg.

[313]    
Defendant’s counsel produced a copy of the initial assessment record
from the emergency department where Mr. Minhas went to have his right ankle
examined on September 29, 2009.  The assessment record states:

While
chasing/playing with daughter, twisted and fell onto floor.

[314]    
A consultation report dated October 2, 2009 prepared by surgeon Dr.
Boyer, reported:

Mr.
Minhas is a 40-year-old gentleman who was playing with his kids, twisted his
leg, and was unable to weightbear on September 27, 5 days ago.

[315]    
Mr. Minhas was assessed by Scott Myles, an occupational therapist, in
2009.  In a report written by Mr. Myles on November 27, 2009, Mr. Myles wrote:

On
September 28, 2009, Mr. Minhas was playing with his children when he twisted
his ankle and fell.  He was seen by paramedics on the 29th and an x-ray
indicated he had fractured his ankle.  He reports that it is healing well and
at the time of this assessment, he was no longer walking with assistance or
wearing a cast.

[316]     I am
satisfied that Mr. Minhas’s fall in September 2009 was not the result of
vertigo or dizziness and is not causally related to the October 25, 2005 motor
vehicle accident.

[317]      Earlier
in these Reasons I set out my conclusions that Mr. Minhas did not suffer memory
loss or a fractured jaw as a result of the accident; so to the extent that Dr.
Longridge relied on Mr. Minhas’s reports about those topics, he was misled.   It
was clear from his testimony at trial that Dr. Longridge believed that the
force of the 2005 impact was much more significant than it really was, and that
Mr. Minhas’s injuries were more significant than they really were.

[318]     Dr.
Longridge was also misled, or relied on incorrect assumptions, in relation to the
onset of Mr. Minhas’s reported symptoms.  Mr. Minhas did include “ringing in
ears” as one of the injuries he reported to ICBC in a written statement he
provided on October 26, 2005, but Mr. Minhas had earlier reported tinnitus following
the accident in August 2000 and the workplace accident he claimed to have in
April 2005.  Dr. Longridge agreed that he was not aware that Mr. Minhas had
also been diagnosed with a “mild concussion” in April 2005 or had made
complaints of tinnitus that pre-dated the October 2005 accident.  He said that
information could have affected his opinion about causation.

[319]      Mr.
Minhas told Dr. Mehta on November 2, 2005 that he was having “…some ringing
in his ears” but there is no mention of this symptom at any subsequent visit.  Mr.
Minhas told Dr. Apel on January 19, 2007 that he had no changes in his hearing
following the motor vehicle accident.  The first note in Dr. Gill’s records of
Mr. Minhas complaining to him about diminished hearing or tinnitus was made on
October 8, 2008.   After that date, there is no further reference to tinnitus
until after Mr. Minhas was involved in yet another vehicle accident on January
2, 2009.

[320]      There is a
reference in Dr. Gill’s report to Mr. Minhas having been seen by a Dr.
Donaldson on March 6, 2007.  Dr. Donaldson is a dentist.    According to Dr.
Gill’s report, Dr. Donaldson’s opinion was that Mr. Minhas’s ringing in his
left ear, “deafness”, vertigo and a feeling of obstruction in his ear were
“…consistent with Costen’s syndrome which would indicate involvement of the
lateral pterygoid muscle”.  Dr. Donaldson did not testify at trial and no
report from him was entered into evidence.  Dr. Gill was unable to assist the
court with an explanation of Dr. Donaldson’s diagnosis.

[321]      Mr.
Minhas has made inconsistent statements about the tinnitus symptoms.  He told
Dr. Longridge in 2009 that his tinnitus symptoms had not changed from the date
of the accident to his appointment with Dr. Longridge more than three years
later.  However, in his February 14, 2007 report, Dr. Hearn noted that Mr.
Minhas claimed that the intensity, frequency and duration of his tinnitus were getting
worse.  Mr. Minhas told Mr. Worthington-White in March 2007 that the ringing in
his ears significantly worsened after the jaw surgery in April 2006.  Dr.
Longridge testified that it would be unusual for tinnitus caused by trauma to
get worse over time.

[322]     Mr. Minhas
told Dr. Longridge he had trouble sleeping because of the ringing in his ears
but he told Dr. Apel his sleep problems were due to anxiety and muscle pain and
he told Mr. Worthington-White he had difficulty sleeping because of jaw pain
and grinding of his teeth.  I noted earlier, however, that he reported to Dr.
Mehta on June 7, 2006 that by that date he was sleeping comfortably for eight
hours at a time.

[323]     Given the
inconsistency of reports from Mr. Minhas about the symptoms assessed by Dr.
Longridge; the evidence that some of the symptoms pre-dated the October 2005
accident; that Mr. Minhas did not complain of others (hearing loss) for a
considerable time after October 2005, that Mr. Minhas had suffered an earlier
concussion, that he re-injured the left side of his face in the accident in
2006;  the long passage of time between the 2005 accident and the assessment by
Dr. Longridge; and Mr. Minhas’s general lack of credibility, I am not persuaded
that Mr. Minhas has met the burden to establish that any hearing loss, tinnitus
or balance problems diagnosed by Dr. Longridge were caused by the October 25,
2005 accident.

MR. MINHAS’S BEHAVIOUR AND ACTIVITIES AFTER THE
ACCIDENT

[324]     Mr. Minhas’s
family members and Mr. Deol testified that since the motor vehicle accident in
October 2005, Mr. Minhas’s personality and behaviour have changed significantly,
for the worse.  Most of the witnesses testified that the negative changes became
more noticeable after the surgery in April 2006 and even more pronounced in
2008.

[325]     Mr.
Minhas’s family are not disinterested witnesses.   An in-trust claim for $190,000
has been advanced by the plaintiff on behalf of Binty Minhas, Parminder Minhas and
Surinder Minhas, so they have a direct and significant financial interest in
the outcome of this lawsuit.   In addition, because Mr. Minhas shares a
household and household expenses with his wife, mother (and brother, at time of
trial), all have an indirect financial interest in the outcome of the
litigation.

[326]     Mr. Bhatti
is Mr. Minhas’s first cousin, as well as his friend; Jeet Deol is related to
David Sidhu by marriage, and is beholden to Mr. Sidhu for help provided to Mr.
Deol following his arrival in Canada.

[327]     The
assessment of the weight to be given to the testimony of the witnesses who
testified about what Mr. Minhas was like before and after the accident, has to
take into account the fact that, if their testimony is believed, none of the
“before and after” witnesses knew about several aspects of Mr. Minhas’s pre-accident
life – his driving habits, his sporadic work history, his conflict with
employers, his criminal activity, and his dishonesty.  The witnesses also
demonstrated a poor grasp of the timing of some of the events about which they
testified.  There were also some significant inconsistencies among the
descriptions witnesses gave of the same event.

[328]     If her
testimony is believed, Parminder Minhas had no idea what her husband had been
doing before the motor vehicle accident.  She testified that as far as she
knew, he had worked at the same full-time job from when she came to Canada in
July 2003 until he changed jobs in 2004 at her urging because, she said, he was
not earning enough money.  She testified that he had been unemployed for
perhaps one month between July 2003 and October 2005.  So far as she was aware,
he had never been fired from any job. She recalled that her husband had injured
his shoulder two times during the period between 2003 and 2005, but she
described the injuries as nothing to worry about, “…just a little bit”, and
she said he only missed two or three days of work due to the injuries.

[329]     I have
already stated that the testimony of Surinder Minhas reveals that she had little
or no knowledge or understanding of when, where or for how long, her son was
employed; where he was living at times, including in which province he was
residing; his criminal record, driving infractions and drinking habits.  She testified
that Mr. Minhas had worked full-time steadily prior to the motor vehicle
accident.

[330]     Although
Mrs. Minhas testified at trial that her son was a different person now; some of
her testimony reveals that she has very little recall of when she observed
these changes.  In general, she demonstrated that she is a poor historian.

[331]     Surinder
Minhas testified, for example, that before the accident and the surgery, Mr.
Minhas was a much more involved parent than he was after the accident.  She
testified that their home is located in a cul de sac and that before the
accident Mr. Minhas was teaching his son G. to kick a soccer ball in the
street.  She said that before the accident Mr. Minhas read books to G. for 20
minutes at a time, (Parminder Minhas testified it was 10 to 20 minutes at a
time), did colouring with G.; and went to the library with “the children”. 
She said that before the motor vehicle accident her house was full of joy,
with” two young children” playing everywhere.

[332]     Binty
Minhas testified that before the accident, Mr. Minhas used to go to watch G. play
soccer.  Later he corrected himself and said it was swimming – that before the
accident Mr. Minhas used to take G. to swimming lessons.  He said that G. was a
year and a half old when he began swimming lessons.  However, he later
testified again that Mr. Minhas went to watch G. play soccer before the
accident.

[333]     The
difficulty with this testimony is the fact that Mr. Minhas did not have “two
young children” before the accident.  He had only one child, his son G.  The other
difficulty with the testimony is that G. was born November 24, 2004, so he was
only 11 months old when the motor vehicle accident happened and 16 months old
when Mr. Minhas had jaw surgery.  Parminder Minhas did not become pregnant with
the couple’s second child – their daughter J., until February 2006 and J. was
born November 9, 2006.

[334]     If Surinder
Minhas recalls two young children playing everywhere in her joyful house, she
must be recalling events that happened long after the accident and the April
2006 surgery.  Binty Minhas also testified that before the accident, Mr. Minhas
spent more time playing with his “kids”.  Plaintiff’s counsel corrected him and
reminded him that the plaintiff had only one child prior to the motor vehicle
accident.

[335]     Parminder
Minhas and Binty Minhas are also mistaken in their description of activities
Mr. Minhas did with G. before the accident.  I do not believe that Mr. Minhas
was teaching G. to kick a soccer ball in the street when G. was 11 months old,
that he was reading books to G. for 20 or even 10 minutes at a time, that he
and G were colouring together, or that he was taking G. to the library, to play
soccer, or to swimming lessons, at that young age.  I conclude that these are
activities in which Mr. Minhas engaged after the accident and after his surgery
in April 2006.  Although his behaviour may have changed at some point prior to
the commencement of this trial, the testimony I have just referred to indicates
that Mr Minhas was an active, engaged parent after the accident, and after the
surgery.

[336]      Kal
Bhatti and Parminder Minhas demonstrated the same lack of accuracy in relation
to the timing of events.  Mr. Bhatti and Parminder Minhas testified about a
driving trip their two families took together to Edmonton.  Both Mr. Bhatti and
Parminder Minhas said that this trip happened before the accident in October
2005.  Binty Minhas testified that he also recalled this trip and that it was
before the accident.

[337]     Mr. Bhatti
and Parminder Minhas both testified about Mr. Minhas’s behaviour during this
trip as an illustration of what a good father and loving husband Mr. Minhas was
before the motor vehicle accident.  I am satisfied that all of the witnesses
who testified about his trip are mistaken about the timing of the trip and that
this trip actually took place in the summer or early fall of 2006, many months
after the October 2005 accident, and after the April 2006 surgery.

[338]     Kal Bhatti
testified that he, his wife and their two children drove to Edmonton in his van,
and that travelling with them in the same vehicle were Mr. Minhas, Parminder
Minhas and G.   Mr. Bhatti testified that Parminder Minhas was pregnant with
her second child when the two families took this trip together, and that Mr.
Minhas’s son G. was around 2 years old.

[339]      Mr.
Bhatti recalled that Mr. Minhas was not irritable or angry during this driving
trip and that he sat in the very back of Mr. Bhatti’s van with Parminder Minhas
and G.  He recalled that the two families interrupted their drive to stay
overnight in Kamloops and Mr. Minhas played with G. on swings there.  He
recalled that in Edmonton they all stayed in the same house and that Mr. Minhas
played ball with G. and watched TV with G. and read to him.

[340]      Mr.
Bhatti testified he was concerned about Parminder Minhas sitting in the rear
seat of his van; that he thought she might be uncomfortable because of her
pregnancy.  That testimony suggests that Parminder Minhas’s pregnancy was quite
advanced when the trip happened.   She did not become pregnant with J. until
February 2006.  The fact that Mr. Bhatti estimated G.’s age to be about two at
the time of this trip and that he recalls Mr. Minhas playing on swings with G. also
suggests the trip likely occurred in the summer or early fall of 2006.

[341]      David
Sidhu, Mr. Minhas’s brother-in-law, also seemed confused about whether certain
events happened before or after the motor vehicle accident.  In providing an
example of Mr. Minhas’s good parenting abilities before the accident, for
example, Mr. Sidhu said how impressed he was that G. had been taught by Mr.
Minhas to come up to Mr. Sidhu and shake hands.  I note again that G. was only
11 months old when the motor vehicle accident happened, so Mr. Sidhu must be
recalling G. at an older age, which means at a time after the motor vehicle
accident happened.

[342]      I
conclude, from a careful assessment of the testimony of the witnesses who gave
evidence about perceived changes in Mr. Minhas’s behaviour that significant and
noticeable deterioration in Mr. Minhas’s mood and behaviour developed over time
and coincided with an escalation in Mr. Minhas’s consumption of and abuse of
alcohol and, possibly, prescription medication, and his frustration over the
slow pace of litigation (there is no evidence that the defendant delayed the
trial).  This is clearly indicated in the affidavit Binty Minhas swore on
November 22, 2010.

[343]     I think it
likely that changes in Mr. Minhas’s family situation have contributed to
increased frustration and irritability on his part.  In October 2005, Mr.
Minhas and Parminder Minhas had been sharing a life together for less than
three years and had only one child, an infant.   Surinder Minhas was physically
active and able to assist with the care of that child.  She had a driver’s
licence and could transport Parminder and the children.   Mr. Minhas, at age
42, is now the father of two active young children, one of whom – G. – was
described at trial as hyper-active, possibly suffering from attention deficit
disorder; and displaying challenging behaviours.  Surinder Minhas has had
health problems in recent years, culminating in knee replacement surgery
shortly before trial.  In addition to no longer being available to help out
with child care, cooking and household maintenance, she now requires assistance
from other family members and needs to be driven to her own medical
appointments.  Binty Minhas described his own busy life at time of trial,
teaching full-time, various extra-curricular activities, a fiancée and his
approaching marriage.  Mr. Minhas was prohibited from driving during most of
2009 and 2010 as a result of his numerous traffic violations and conviction for
impaired driving; and had to rely on other family members to provide him with
transportation.

[344]     I am
satisfied that it is more probable than not that Mr. Minhas abused alcohol
before the motor vehicle accident in 2005.  I have already referred to the five
24-hour driving prohibitions Mr. Minhas had racked up before October 2005. 
Binty Minhas, David Sidhu and Jeet Deol all testified about Mr. Minhas
consuming alcohol prior to the accident.  Binty Minhas said it was usual for
Mr. Minhas to consume five or six beers while watching a hockey game; other
witnesses said that Mr. Minhas drank after work and on weekends; and that he
regularly went out with friends to bars.

[345]     Dr. Ancill
stated in his reports that on June 13, 2008, when he met with Mr. Minhas for
the first time, Mr. Minhas reported that he was drinking two large whiskies and
two to three beer daily.  Mr. Minhas claimed in December 2008 that he had been
able to reduce his alcohol intake “…back to where it was pre-accident”, but
Binty Minhas reported on February 24, 2009 that Mr. Minhas was “…drinking too
much alcohol again”.    Although Mr. Minhas had earlier told Dr. Ancill that he
drank because he had headaches, on February 24, 2009 he said he was drinking
more because he was bored.  In his report dated December 13, 2010, Dr. Ancill
pointed out that alcohol abuse can contribute to cognitive impairment.   Binty
Minhas deposed in his November 22, 2010 affidavit that at their last visit with
Dr. Ancill, in 2009, Dr. Ancill had recommended that Mr. Minhas get help for
his alcohol problem and he recommended a counselling group.  Binty Minhas deposed,
and testified at trial, that he drove Mr. Minhas to his first “alcohol rehab
appointment” and to an AA meeting, but that when he picked Mr. Minhas up
afterwards, he smelled of alcohol.  Binty Minhas also deposed that he was
concerned that Mr. Minhas had recently developed an addiction to Tylenol #3
after he took a supply from Binty Minhas’s room, and consumed almost an entire
bottle in one week.

[346]     Dr. Cameron,
the neurologist retained by Mr. Minhas’s counsel to provide opinion evidence,
met with Mr. Minhas and Binty Minhas for the first time on April 8, 2009.  Dr.
Cameron noted that Mr. Minhas’s family members did report having noticed
changes in Mr. Minhas’s memory as well as mood swings, increased irritability,
and change in sleep pattern “…very shortly after the accident”.   He also noted,
however, that both Mr. Minhas and Binty Minhas reported that Mr. Minhas’s
problems had worsened over time.  Dr. Cameron noted that deterioration over
time was unusual if the changes were due to trauma, and that the worsening in
symptoms was more likely due to “…ongoing psychological problems”.

[347]     According
to Dr. Cameron, Binty Minhas reported on April 8, 2009 that Mr. Minhas’s
behaviour had deteriorated over time and had become noticeably worse in the six
months prior to April 8, 2009.  Binty Minhas told Dr. Cameron that Mr. Minhas was
increasingly angry and was drinking alcohol to excess even more than he had
previously.

[348]     In his
affidavit sworn November 22, 2010, Binty Minhas deposed that Mr. Minhas’s
behavior “…began to deteriorate significantly” after the surgery and the
respiratory infection in late April 2006, but had grown worse as the years have
passed, and Mr. Minhas’s addiction to and abuse of alcohol escalated.  I am
satisfied that Mr. Minhas had a problem with alcohol abuse before the accident
in October 2005 and that that he has continued to abuse alcohol in subsequent
years.  More than one physician who has assessed Mr. Minhas has recommended
that he enter into treatment or counselling for alcohol abuse.

[349]     On one
occasion when Mr. Minhas was heavily intoxicated – Binty Minhas testified this
was in 2008 – Mr. Minhas physically assaulted Parminder Minhas, striking her in
the face, after an argument about Mr. Minhas drinking while Parminder Minhas
was at work and Mr. Minhas was caring for J.  Mr. Minhas had been charged with
assault on a former partner and convicted or uttering threats and criminal
harassment before the accident in 2005, so this type of behaviour is not new.

[350]     I am not
persuaded that the behavioural changes that Mr. Minhas has demonstrated in
recent years are causally related to the motor vehicle accident or the surgery
in the sense that they are compensable.  Nothing in Dr. Gill’s records or
report indicates that he was concerned about Mr. Minhas’s psychological status
or mental health in the fall of 2005 or in 2006.  The referral to Dr. Hearn
came from Mr. Minhas’s counsel and not from Dr. Gill.

[351]     I have
already outlined my conclusion that much of what Mr. Minhas told Dr. Hearn in
November 2006 was inaccurate or untrue and that most of Dr. Hearn’s several
psychiatric or psychological diagnoses – post-traumatic stress disorder,
agoraphobia, post-concussion syndrome, severe depression, frontal lobe syndrome
– are based on an incorrect or incomplete grasp of the facts.  According to Dr.
Hearn, Mr. Minhas told him in November 2006 that since the accident he had been
having panic attacks lasting five to 10 minutes, three or four times each
week.  There is no record of Mr. Minhas having reported an increase in anxiety
symptoms to Dr. Gill, although it was Dr. Gill who was prescribing Paxil for
Mr. Minhas.  It was not until after Dr. Hearn wrote to Dr. Gill on November 25,
2006 recommending an increase in the dosage of Paxil, that Dr. Gill became
aware that Mr. Minhas was claiming to have increased symptoms of anxiety or
psychological distress.

[352]     I do
accept the testimony of Binty Minhas, Surinder Minhas and Parminder Minhas that
Mr. Minhas has displayed increased irritability, distractibility, and
impatience in recent years.  Having decided to focus his efforts and attention
on this litigation and the prospect of a significant award, I have little doubt
that Mr. Minhas found the delay in getting to trial frustrating.  He has been
assessed, diagnosed and sometimes treated by a myriad of health care
professionals, mostly, but not entirely, for reasons related to this
litigation.  At some point, Mr. Minhas was either unable to find employment, or
decided to abandon his efforts.  He was angry and frustrated that his insurer
would not provide him with benefits to which he thought he was entitled.  He
did not follow up on a referral to the UBC Anxiety Disorder Clinic in 2007
because he thought it was too far from his home.  The testimony of Binty Minhas
and the affidavit he swore in November 2010 indicate that Mr. Minhas’s alcohol
addiction has spiralled out of control in the last couple of years.

[353]     Given his
testimony that boredom and inactivity exacerbate his anxiety and panic
disorder, and Mr. Minhas’s predilection to self-medicate with alcohol, it is
not surprising that Mr. Minhas’s behaviour has deteriorated.  The loss of his
driver’s licence for extended periods, including the prohibitions imposed in
relation to his conviction for impaired driving, has meant that he has been
more immobile and dependent on his family members for transportation.

[354]      The
defendant is not liable, however, to compensate Mr. Minhas for his decision to
focus on this litigation, rather than getting on with his life; for pre-existing
conditions; or for unreasonable decisions he has made.

DAMAGES FOR PAST LOSS OF INCOME

[355]     I turn now
to a consideration of the damages for which the defendant is liable to
compensate Mr. Minhas.   The plaintiff’s submission is that he should be awarded,
in respect of all heads of damages, the sum of $3,155,410.

[356]     Mr. Minhas
is seeking an award for pre-trial income loss of $102,535, based on the premise
that the accident injuries totally disabled Mr. Minhas from all work; and that
but for the accident, Mr. Minhas would have earned income of $29,000 in each of
the years 2006 to 2010 inclusive, and would have earned $40,000 in 2011.

[357]     The
defendant submits that Mr. Minhas was only temporarily disabled from work
following the accident, and that an award of $15,000 would adequately
compensate him for loss of income.

[358]     Mr.
Minhas’s complete 2004 income tax return is not in evidence and there are no T4
slips for 2004 in evidence.  The Tax Return Summary that is in evidence does
not indicate when it was filed – whether before or after the October 25, 2005
accident.   According to Mr. Minhas’s tax return summary, his net income in
2004 was $29,134; $24,459 from employment, $3,765 from EI and $1,183.42 from
WCB benefits.   This was the highest income reported by Mr. Minhas in any year
since 1991 and a somewhat surprising figure given the evidence the court heard
about when and where he worked in 2004.

[359]     Mr.
Minhas’s average annual reported income in the years 1999 to 2003 inclusive was
only $11,262, so his reported income in 2004 is anomalous.  However, Mr. Minhas
did report income in 2003 of $20,500, which was also a substantial increase
over the income he had reported in the previous four years.  2003 was the year
after his marriage to Parminder Minhas and the year in which she arrived in
Canada.   Mr. Minhas reported employment income of $15,654 in 2005, plus EI of
$2,352 and WCB benefits of $6,144, for total net income of $23,742.

[360]     As with so
many of the other issues in this lawsuit, there is a surprising lack of  reliable
evidence about exactly when Mr. Minhas returned to work following the October
25, 2005 accident; what work he did, how often he worked, and what he was paid.
The plaintiff’s position at this trial was that he was completely and
permanently disabled from all work following the October 25, 2005 accident, but
even Mr. Minhas testified at trial that he had done some work after the
accident.

[361]     There is
no evidence about why Mr. Minhas did not go back to his pre-accident job with
Precision Metal.  I mentioned earlier that he had only worked there for one day
before the accident and prior to that had not worked since injuring his groin
in the workplace incident at Treksta on August 25, 2005.  Three weeks after the
October 25, 2005 accident, Mr. Calzuolo, one of Precision’s foremen, declined
Mr Minhas’s request to falsify his record of earnings, so it may be that Precision
Metal would not take Mr. Minhas back.

[362]     As with almost
every aspect of Mr. Minhas’s own testimony, I consider his testimony about his
ability to work, and the work he has done since the accident, to be unreliable
and likely to be untrue, unless it amounts to a statement against interest.  With
few exceptions, when asked about the topic by the many doctors and other health
care professionals who have assessed him in relation to this litigation, Mr.
Minhas claimed to have done no work following the accident in October 2005.  He
told Mr. Stanus, the rehabilitation consultant who carried out a vocational
assessment in January 2010 that he had not worked at all after the
accident.

[363]     At this
trial, however, there was evidence from Surinder Minhas, Parminder Minhas,
Binty Minhas, David Sidhu and Jeet Deol, and from Mr. Minhas himself,  that Mr.
Minhas did work after the accident.  He worked for Jeet Deol and for David
Sidhu, cleaning up construction sites, loading and unloading construction
debris for disposal, pressure-washing the exterior of a home, sorting lumber
and monitoring trucks transporting fill to or from a construction site.   Mr.
Minhas told Dr. Gill on August 18, 2007 that he was “…working doing cleanup
on construction sites”.

[364]      Mr.
Minhas was specifically asked in cross-examination at this trial whether he was
working on March 9, 2010, the date on which he appeared in Provincial Court to
plead guilty to driving while prohibited.  Mr. Minhas replied that he was not
working.  A transcript of the March 8, 2010 hearing was produced.  Mr. Minhas
told the Provincial Court Judge:  “I just got off work and I’ll just pay for
the fine.”  Mr. Minhas attempted, without success, to explain the statement he
had made in Provincial Court on March 9, 2010.

[365]      Mr.
Minhas’s tax returns are not, as I stated earlier, reliable evidence of whether
he was working and earning employment income because he does not report his
income when he is paid in cash.  For the 2006 tax year, Mr. Minhas reported
income of only $2,749, made up of a universal child care benefit of $700 and
$2,058 from EI, but there is evidence from Binty Minhas, Jeet Deol, David
Sidhu, and other witnesses, that Mr. Minhas worked for both Mr Sidhu and for
Mr. Deol in 2006, and, therefore, evidence that Mr. Minhas did not report
employment income earned in that year.

[366]     Mr.
Minhas’s 2007 Notice of Assessment (his actual tax return is not in evidence)
indicates Mr. Minhas had $2,400 in income.  The source is not identified, but
his 2008 tax return (the most recent tax return entered into evidence at trial)
also reports $2,400 in income, all from the Universal Child Care benefit, so I
consider it likely that his 2007 reported income came from the same source.  However,
Jeet Deol testified that Mr. Minhas worked for him in 2007 and in 2008 and I
conclude, therefore, that Mr. Minhas failed to report income earned from that
work in those years.

[367]     Surinder
Minhas testified that Mr. Minhas went back to work after the accident.  She
said that he worked for David Sidhu on the site of a house Mr. Sidhu was
building, picking up garbage and doing light jobs.  She said that David Sidhu
paid Mr. Minhas for the work.  She said that Mr. Minhas worked for a few
months, that his work hours varied and sometimes he worked four, five or six hours
a day.  She said that Mr. Minhas went to work whenever he was called.  She said
that there was another fellow that used to work with Mr. Minhas who did not
speak English and that Mr. Minhas was helping this man, whose name was “Jeet”. 
I conclude this was Jeet Deol.

[368]     Binty
Minhas testified that after the motor vehicle accident on October 25, 2005 and
before Mr. Minhas had surgery in April 2006, Mr. Minhas worked with Jeet Deol
on weekends, doing whatever work needed to be done around David Sidhu’s
construction sites.  Binty Minhas testified that that job eventually ended, but
that in 2007, Mr. Minhas was again working for David Sidhu and for Jeet Deol.

[369]     Parminder
Minhas testified that after the accident, Mr. Minhas worked with Jeet Deol, but
she said she did not know if he had worked for Mr. Deol before the accident. 
In cross-examination she said that two or three months after the accident, Mr.
Minhas went to “help” Mr. Deol; working for Mr. Deol part-time or “once in a
while” – perhaps three, four or five times – for three or four hours each
time.  She said that Mr. Deol used to take Mr. Minhas to work in his car.  She
said that Mr. Minhas also helped David Sidhu.   Parminder Minhas testified that
Surinder Minhas may have believed that Mr. Minhas was working full-time after
the accident because Mr. Minhas went somewhere every day.

[370]     David
Sidhu testified that Mr. Minhas worked for him a few times after the motor
vehicle accident.  He produced two one-page documents – records of trucks
loading fill from a construction site – dated April 8 and April 11, 2006.  He
testified that these documents indicated that Mr. Minhas was not performing the
task of keeping track of the loads adequately.   He was unsure whether Mr.
Minhas had worked for him on other occasions during the same time period,
although I am satisfied that he did employ Mr. Minhas.   For reasons he was
unable to explain, and I consider disingenuous, Mr. Sidhu said he had only
retained records for the two dates on which he said that Mr. Minhas had not
done a good job.  The record for April 11, 2006 appears to be only one page of
several for that date (it appears to cover the time period 7:30 a.m. to 10:55 a.m.
only, and an arrow with the word “Contin” appears at the top of the document. 
The page dated April 8, 2006 begins with an entry for 11:13 a.m. and ends with
an entry for 3:40 p.m., suggesting it may only be a partial record also.  The
handwriting on the two documents also appears quite dissimilar.

[371]     Jeet Deol
testified with the assistance of an interpreter.  Whether the problem resulted
from interpretation difficulties or the fact that most of his testimony was
elicited through the use of leading questions, or some other cause, much of Mr.
Deol’s testimony is confused, particularly in relation to what time period –
even what year or years – he was talking about.   Mr. Deol testified that he
immigrated to Canada on March 11, 2005 and that when he first came to Canada he
was employed at Superior Poultry.   He agreed with the suggestion that in
addition to working at Superior Poultry, he also worked for David Sidhu, doing
“cleanup”.

[372]     Mr. Deol
said that before the accident in October 2005 he had worked with Mr. Minhas a
couple of times, for an hour or two hours, and that Mr. Minhas was working as a
“helper”.  Mr. Deol said that on those occasions, he – Mr. Deol – was working
hard because it was his own company.  However, he had earlier testified that he
did not start his own construction company until 2006.   This ambiguity was not
clarified.

[373]     Mr. Deol
testified that after the October 2005 motor vehicle accident but before Mr.
Minhas’s surgery in April 2006, Mr. Minhas worked with him “many times”.  In
cross-examination he said that he paid Mr. Minhas $10 to $12 an hour for this
work.  He also testified that three or four months after the surgery, Mr.
Minhas asked Mr. Deol for work.  He testified that they needed workers and
David Sidhu had suggested Mr. Minhas.

[374]     Mr. Deol testified
that Mr. Minhas worked for him in 2007 and 2008.  Mr. Deol said he could not
remember how many times Mr. Minhas had worked for him in those years, but he
recalled a couple of times during which Mr. Minhas “…spoiled the work”, and
said he did not hire Mr. Minhas after that. He said the work he did with Mr.
Minhas involved cleaning newly constructed homes, and collecting gyproc, nails
and other garbage from the work sites, loading it into trucks and a “trolley”
and taking the garbage to the dump.  He said they also pressure washed the
exterior of a home; and sorted lumber.  In cross examination he said that at
one time he was working on five or six houses that were being constructed at
the same time, and he did not leave Mr. Minhas unsupervised because he did not
know what Mr. Minhas would do if left alone.

[375]      Jeet
Deol, Binty Minhas and David Sidhu did not testify that Mr. Minhas was or is physically
incapable of doing the same kind of work he did before the accident.  Mr.
Minhas did not testify that he ever declined work or left a job early because
of pain or physical disability from his accident injuries.  There is no
evidence that Mr. Minhas was rejected by any specific employer to whom he
applied for work.  There is no evidence that he ever took a job and then quit
or got laid off or had his employment terminated because he was physically
incapable of performing the required work.  In his affidavit sworn November 22,
2010, Binty Minhas deposed that:  “His family and I have tried unsuccessfully
to get him hired as a laborer.  His psychological problems (sic) has caused him
not to be able to work.”  Binty Minhas deposed that Mr. Minhas abused alcohol
“almost every single day” and was often drunk by early afternoon.

[376]     Mr. Deol
and Mr. Sidhu claimed that while working for them as a construction labourer,
Mr. Minhas made errors and was careless, including throwing out some tools and
good lumber, and allowing water to enter around a doorway and damage hardwood
flooring in a newly constructed home.  While these witnesses suggested that
these errors were evidence of a brain injury or some related psychological
problem, I am satisfied that Mr. Minhas was a careless and sometimes
incompetent employee before the motor vehicle accident in 2005.  The evidence
establishes that Mr. Minhas had been dismissed from several jobs in the four
years prior to the accident because he did not work hard, could not do the job
for which he had been hired, or made too many mistakes.  I am satisfied that he
was aware, in 2004, that his work record made him unattractive to employers and
that he created a false resume’ and procured false references, in order to try
to get hired.  The very short duration of many of the jobs Mr. Minhas worked at
in the four years prior to the accident indicates that Mr. Minhas was not a
good employee.

[377]     According
to Dr. Ancill’s report, Mr. Minhas told him on August 20, 2008 that he was not
working but “…had the objective of being retrained for another occupation.”

[378]     Dr. Gill’s
clinical records include a note dated September 23, 2009 that Mr. Minhas was
“…trying to find job” and a note on December 1, 2009 that he was “unable to
find work, feeling much better and stronger” and “unable to find suitable
employment”.   Neither of these entries indicates that Mr. Minhas was not able
to work.

[379]     In his
medical legal report dated May 8, 2009, Dr. Gill did not state that he had ever
recommended to Mr. Minhas that he not return to work following the accident.  Although
Mr. Minhas told Mr. Worthington-White in March 2007 that it was his jaw
symptoms that were preventing him from working, Dr. Mehta’s opinion in June
2006, confirmed in November 2006, that Mr. Minhas’s jaw condition did not
prevent him from working.

[380]     In January
2008, Mr. Minhas began attending a physical rehabilitation program with
Innovative Rehabilitation Services (“IRS”).  He participated in this program
during most of 2008, but attended only a few days each month.  According to the
IRS client record, Mr. Minhas reported no pain or discomfort most days during
the program, and demonstrated no physical limitations at any time.

[381]     Mr. Minhas
missed a number of scheduled sessions with IRS.  He often called in to cancel,
or left part-way through a session, indicating that he had a medical
appointment or assessment to attend.  On July 23, 2008 he reported that he
would not be coming in the following Friday because he was going to Whistler
for the weekend.  He called on August 6, 2008 to cancel his appointment because
he was in Calgary.   He called on November 10 and November 12, 2008 to cancel
sessions on those dates, advising that he was on Vancouver Island.  He called
on November 17, 2008 to say he would not be coming in because he was taking a
trip to Las Vegas.  In cross-examination, Mr. Minhas denied having gone to
Calgary or Las Vegas in 2008.

[382]     On
December 1, 2008, Mr. Minhas told his IRS consultant that he needed to work on his
strength, so he could go back to work in construction doing manual labour.  I
note that Jeet Deol testified that Mr. Minhas worked with him in 2007 and 2008,
doing manual labour.  On January 7, 2009 Mr. Minhas reported to the IRS consultant
that he had been going to the gym and could bench press 180 pounds.

[383]     Having
considered all of the evidence, I consider it more probable than not, that Mr.
Minhas was partially disabled from the soft tissue injuries to his neck, back
and face for a month or two after the accident, but that after that time he was
no longer disabled from work and did start working again, at least part-time. 
I am satisfied he worked with or for Mr. Deol between the accident in October
2005 and the surgery on April 28, 2006; and that he worked for Mr. Sidhu during
that period also.

[384]     Following
the jaw surgery on April 28 and the respiratory infection that resulted in his
hospitalization until May 15, 2006, I conclude that Mr. Minhas was disabled
from work for a further period of two to three months, while his jaws and his
treacheostomy site healed; and he recovered his strength.  By June 2006, Dr.
Mehta was satisfied that Mr. Minhas’s jaw condition no longer prevented him
from working.  He thought that Mr. Minhas’s soft tissue injuries to his neck
and back might require a graduated return to work, although as a dentist, he
said he would defer to others in that respect.  The medical evidence does not
establish that Mr. Minhas’s neck and back soft tissue injuries incapacitated
him from work in 2006.

[385]     Although
there is not a lot of evidence, the evidence there is about work done by Mr.
Minhas indicates he was able to perform physically demanding tasks – sorting
lumber, loading and unloading gyproc and other construction debris, operating a
pressure washer – without apparent physical difficulty in 2006, 2007 and 2008. 
The rehabilitation records for 2008 indicate that Mr. Minhas demonstrated no
physical limitations.  I have already mentioned notations in Dr. Gill’s records
indicating that Mr. Minhas was seeking employment in 2009 but having trouble
getting hired.  I conclude this was a problem Mr. Minhas was already
experiencing before the accident, and the reason he created a false resume’ in
2004.

[386]     The fact
that Mr. Minhas was prohibited from driving in 2009 and 2010 due to a series of
administrative prohibitions and a court-imposed one-year driving prohibition
following his conviction for impaired driving, would also have made it more
difficult for Mr. Minhas to find work.  Binty Minhas needed his own vehicle and
the rest of the Minhas family shared one vehicle.  Someone would have had to
transport Mr. Minhas to job interviews and to his workplace.

[387]     I conclude
that Mr. Minhas was totally or partially disabled from employment for a period
of two months following the motor vehicle accident, and totally or partially disabled
from work for a further period while he was in hospital and for two to three
months following his discharge from hospital.  I conclude that Mr. Minhas probably
missed work on some later dates in order to attend medical appointments with
Dr. Gill, Dr. Matthew and Dr. Mehta related to the accident injuries, and the
jaw surgery.  I award Mr. Minhas the sum of $20,000 for loss of income or the
capacity to earn income to commencement of trial.

FUTURE LOSS OF THE OPPORTUNITY TO EARN INCOME

[388]     Mr. Minhas
is seeking an award of $517,240 for loss of the capacity to earn income in
future, based on the assumption that he is totally and permanently
incapacitated from all employment and that in 2011 and each year after he
would, but for the accident, have earned $40,000 a year.

[389]     I am not
persuaded that Mr. Minhas’s capacity to earn income post-trial has been
impaired, let alone destroyed, or that he will, as a result of the injuries
caused by the accident suffer a loss of income in future.  I am not persuaded
that Mr. Minhas’s capacity to earn income – his “capital asset” – has been
impaired or diminished by the April 28, 2006 jaw surgery and subsequent
respiratory infection.   I am not persuaded that any of the relevant factors
referred to by Justice Finch, as he then was, in Brown v. Golaiy, (1985)
26 B.C.L.R. (3d) 353 (S.C.) have been shown to apply in the circumstances of
this case.  In particular, I am not persuaded that there are occupations or job
opportunities that are now closed to Mr. Minhas that would otherwise have been open
to him; or that he is, as a result of the accident injuries, less marketable or
attractive now to any prospective employer than he was pre-accident.  I make no
award for damages for loss of the capacity to earn income post-trial.

COST OF FUTURE CARE

[390]     Mr. Minhas
is seeking an award in excess of $2 million for the cost of care that he says
he will require in future as a result of the accident.  Of that, the sum of
$1,803,574 relates to the cost of a residential care facility for persons with
acquired brain injury.  I have earlier stated my conclusion that Mr. Minhas did
not suffer a brain injury caused either by the accident, or the respiratory
infection.   I also consider there to be no possibility that Mr. Minhas would
agree to reside in a supervised residential setting; or that he could be
compelled to do so.

[391]     Mr. Minhas
is seeking an award of $53,650 for orthodontic work to correct the problem with
the open bite at the front of his mouth.  I have earlier stated my conclusion
that Mr. Minhas’s decision in May 2006 to refuse to allow Dr. Matthew to
replace the arch bars and wires designed to hold his jaws in position is the
sole cause of the current problem with his bite.  I am satisfied that it is
more probable than not that the problem with the bite would not have developed
if Mr. Minhas had allowed Dr. Matthew to replace the wires and bars.  Mr.
Minhas is not entitled to be compensated by the defendant for a problem of his
own making and I make no award for future orthodontic or dental work.

[392]     The remaining
claim is for $35,796 based on the report of Scott Myles dated February 16, 2010
and the report of Paul Pakulak dated December 20, 2010.  The assumptions
underlying those reports have not been established by reliable evidence at this
trial.  In particular, the reports are premised on the assumption that Mr.
Minhas suffered a brain injury, which I have concluded he did not.   Mr.
Pakulak was asked by plaintiff’s counsel to assume that Mr. Minhas is
unemployable and that he will, as a result of cognitive and psychiatric issues
caused by the accident, require residential care.  He was also asked to assume
that Mr. Minhas had only recently developed problems in relation to the
consumption of alcohol.   Despite the fact Mr. Minhas had previously been
assessed by several psychologists, including Drs. Hearn and Wilensky, had been
treated by Dr. Hearn, had been assessed and treated by Dr. Ancill and assessed
by Dr. Smith, Mr. Pakulak was also asked to assume that Mr. Minhas would
benefit from an in-patient psychiatric and cognitive assessment.   None of
these assumptions has been shown to be well-founded.

[393]     Although
not referred to in plaintiff’s counsel’s summary of cost of future care items,
there is evidence that Mr. Minhas has a small scar on the front of his neck
from the tracheostomy performed while he was in hospital following the jaw
surgery on April 28, 2006.  In evidence is a report from Dr. N. Carr, a plastic
surgeon, who saw Mr. Minhas on January 27, 2010.  Dr. Carr noted that the scar is
1 by 4 cms and located low on the front of Mr. Minhas’s neck.  Dr. Carr
described it as “…white centrally and red at the periphery with slight
elevation”.   Mr. Minhas is bothered by the appearance of this scar.

[394]     Dr. Carr
stated in his report that surgery might improve the appearance of the scar,
although there is a risk of “recurrent scar hypertrophy”.  The cost of the
day-surgery with local anesthetic would be $1,000 plus taxes; with general
anesthetic the cost would be $3,000 plus taxes.  In addition, Dr. Carr said
that it would cost about $200 for a topical cream to be applied to the revised
scar for a year after the surgery.

[395]     I think it
unlikely that Mr. Minhas would choose to have the procedure done under general
anesthetic given his experience with the respiratory infection he developed in
2006.  I award Mr. Minhas the sum of $1,350 for the cost of the cosmetic
procedure to revise the appearance of the tracheostomy scar.

IN TRUST CLAIMS

[396]     Mr. Minhas
is seeking an award of $189,559.56 “in trust” for Binty Minhas, Surinder Minhas
and Parminder Minhas.   The claim is made up of $60,000 alleged to have been
loaned to Mr. Minhas or Parminder Minhas by Binty Minhas, $21,244.56 alleged to
be “interest charges” on the loan, and $108,315 for “family care”.

[397]     Plaintiff’s
counsel did not provide any authority for the proposition that an “in trust”
award can be made in relation to a loan, or interest on a loan made to a
plaintiff by a family member, or any other creditor.  If Mr. Minhas or
Parminder Minhas are indebted to Binty Minhas, then Binty Minhas may seek
repayment from Mr. Minhas or Parminder Minhas, or both, but Mr. Minhas cannot
recover from Mr. Sartor for the amount of such loans in addition to claiming
damages for loss of income, as that would constitute double recovery.

[398]     In any
event, the evidence about loans made by Binty Minhas is inconsistent and
inconclusive.  Binty Minhas did not testify at trial that he had lent $60,000
to Mr. Minhas or to Parminder Minhas.  In his November 22, 2010 affidavit,
Binty Minhas deposed that in the past five years he had loaned Mr. Minhas
“…approximately $75,000” and that he had also dipped into his mother’s line
of credit for another $50,000.  Neither of these assertions was confirmed at
trial.

[399]     Surinder
Minhas did not testify that she had lent any money to Mr. Minhas.   Binty
Minhas testified that he believed that his mother had borrowed between $30,000
and $40,000 from her line of credit, in two installments.  He said his mother
used $20,000 of the total to purchase a used vehicle to be driven by Surinder
Minhas and Parminder Minhas.  He said the balance was used for “household
expenses”.  Surinder Minhas did not confirm this information.

[400]     Surinder
Minhas is the owner of the home in which she, Mr. Minhas and his family, and
Binty Minhas were residing at time of trial. Binty Minhas testified that his
mother pays the mortgage on the home.  There are tenants in the basement of the
home.  Parminder Minhas testified that the rent is paid to Binty Minhas.

[401]     Binty
Minhas testified that before the motor vehicle accident, he and Mr. Minhas had
contributed equally to the household expenses.  He said that since the
accident, he had been contributing about $1,000 a month to the household
expenses from his bi-weekly paycheques.

[402]     The
plaintiff testified that he had customarily contributed $1,200 a month to the
household expenses and said he had continued to do so to time of trial. 
According to a report written by Dr. Derryck Smith, a psychiatrist retained by
the defendant, Mr. Minhas told Dr. Smith that he had had to spend “…$50,000
of his own money to support his family” since the accident.  Binty Minhas
testified that Mr. Minhas has not been contributing $1,200 a month to the household
expenses.  I am unable to reconcile this conflict in the testimony.

[403]      Parminder
Minhas works part-time, three days a week, as a grocery store clerk.  She
testified that Binty Minhas had been helping to support her family by providing
her with approximately $1,000 a month in cash.  She said she did not pass this
money on to Mr. Minhas.  She testified that Mr. Minhas did sometimes ask her
for money but she had stopped giving him money because he spent it on alcohol.

[404]     During her
direct examination, Mr. Minhas’s counsel showed Parminder Minhas a bundle of
photocopies of 26 stationery-store “receipt” forms.  Parminder Minhas said none
of the writing on the receipts is her writing.  All of the forms state that
money was “received from” Parminder Minhas.  Each receipt is initialled but the
initial is indecipherable.  Parminder Minhas said the initials are Binty
Minhas’s initials and that she had previously seen the receipts lying in Binty
Minhas’s room.

[405]      Each of
the receipts is dated the first day of each month.  The receipts are
hand-numbered with consecutive numbers from 1 to 26; and there are 26 receipts
in total, spanning the period November 1, 2005 to July 1, 2009.  There are
notes on the receipts.  The first three receipts, dated November 1, 2005,
December 1, 2005 and January 1, 2006 each acknowledge receipt of $500 and each
one has a note on it reading “for expenses”.  Except for the last two receipts,
the other receipts state that they are for $1000 each.  One receipt, dated July
1, 2009, is for the amount of $900.    Leaving aside the second to last
receipt, the other receipts total $23,400.

[406]      The
second to last receipt, dated May 31, 2008, is in the amount of $15,000 and on
it someone has written “from line of credit for months May 2008 to July 2009”. 
Also in evidence is a photocopy of an “official cheque” from Envision Credit
Union, dated May 31, 2008, for $15,000.  It is payable to Parminder Minhas “C/O
Binty Minhas”.   These documents were not explained, but I can infer that they
were intended to be related, and that this cheque may relate to the used vehicle
purchased for use by Surinder and Parminder Minhas.   

[407]     The
balance of the “in trust” award claimed is stated to be compensation payable to
Binty Minhas, Parminder Minhas and Surinder Minhas for care “of Chico &
kids”.  The plaintiff’s position is that an award should be made for
compensation for Binty Minhas at the rate of $165; $120 a week for Parminder
Minhas; and $150 a week for Surinder Minhas.  The underlying assumption is that
Mr. Minhas has required virtually constant supervision because of his brain
injury.  I have concluded that Mr. Minhas did not suffer a brain injury, and the
evidence I accept does not establish that he has been supervised by his wife,
mother or brother.

[408]     There is
no evidence that Binty Minhas or Parminder Minhas lost employment income in
order to care for Mr. Minhas, even immediately following the accident or after
he was released from hospital in May 2006.  Surinder Minhas is retired and does
not work outside the home.  There is evidence that Mr. Minhas was left to look
after his children while Parminder Minhas was at work, although there were a
couple of episodes during which Mr. Minhas drank himself to the point of
intoxication while one or both of the children were in his care.

[409]     The
plaintiff has failed to establish an evidentiary basis for or entitlement to an
in trust award.

SPECIAL DAMAGES

[410]     Mr. Minhas
is seeking an award of $87,415.01 for Special Damages, said to be comprised of
$19,015.01 “Paid by former counsel and unpaid treatments”; and $68,400 said to
be:

Cost
for transporting Mr. Minhas out of the facility to visit children with an
attending aide (i.e. home visits, recreational activities with his children and
supervised sporting events).

Although the
latter sum was included in the submission under the heading of special damages,
I conclude that it was really intended to be part of the claim for cost of
future care, and premised on the assumption that Mr. Minhas will live in a supervised
residential facility for persons with acquired brain injury; and will not be
able to drive a motor vehicle, all as a result of the alleged brain injury.  As
I have concluded that Mr. Minhas did not suffer a brain injury the claim cannot
succeed, whether considered under the heading of special damages or cost of
future care.  Mr. Minhas has continued to drive since the motor vehicle
accident.  I am satisfied that Mr. Minhas is capable of driving a vehicle and
providing his own transport, when his ability to do so is not impaired by
consumption of alcohol and he is not prohibited from driving.

[411]     Defendant’s
counsel did not refer to special damages in their written submissions.  In oral
submissions, counsel said he had had difficulty understanding the plaintiff’s
claim for special damages, but in any event, no award should be made for any
expenses incurred after the fall of 2006, at the latest.

[412]     In the
written submissions provided by plaintiff’s counsel in relation to special
damages, he included a list of items totalling $19,015.01.  No evidence was led
about many of the items on the list.  No evidence was led about any payments
made by “former counsel”, who I understand was Mr. Spraggs.

[413]     A binder
labelled “Special Damages Binder” was entered as an exhibit at trial.  Binty
Minhas and physiotherapist Virginia Fenzl identified some of the documents in
that exhibit.  In general, however, the evidence about special damages was
presented in an entirely unsatisfactory way, leaving the court to try to make sense
of the documents with little or no assistance from either the witnesses or
plaintiff’s counsel.

[414]     Virginia
Fenzl identified a billing record and testified that the patient portion of
fees she charged for physiotherapy services for Minhas for the period November
14, 2005 to January 26, 2006 totalled $280.  A further amount of $180 was paid
in September 2006 for treatments in February, March and July 2006.  After July
19, 2006, Mr. Minhas did not return to Ms. Fenzl for further treatment until
August 2007.  He had five physiotherapy treatments in 2007; two treatments in
2008 and two treatments in early March 2009 after which he was discharged from
further treatment.  Those treatments cost $1,135.

[415]     Mr. Minhas
did not testify about why he sought further physiotherapy treatments in 2007
and 2008.  The records relating to the rehabilitation program he attended off
and on in 2008 indicate that with very few exceptions, he had no pain
complaints and no physical limitations.

[416]     Although I
concluded that all of Mr. Minhas’s injuries had largely resolved by the second
half of 2006, the 2005 injury and 2006 surgery may still have contributed to
some symptoms for which Mr. Minhas sought treatment from Ms. Fenzl on a few
occasions in 2007, 2008 and early 2009  I award Mr. Minhas $1,135 for those
treatments.  The total award for physiotherapy treatments is therefore $1,595.

[417]     The list
of special damages in the plaintiff’s closing submission includes fees charged
by “Innovative Rehab Services”.  No witness testified about these fees.  Several
sets of identical fee records were included in the Special Damages Binder, some
showing the service provider as “Innovative Rehab Services” and others showing
the service provider as “Northside Injury Rehab Ltd.”. Ms. Fenzl said that
these records may relate to a kinesiologist.  I reviewed evidence earlier in
these Reasons that Mr. Minhas participated in a rehabilitation program in 2008
and I conclude that these fee records probably relate to that program.

[418]     It appears
from the fee records that Mr. Minhas was referred to that program by his
present counsel.  Dr. Gill testified that he had recommended an active
rehabilitation program for Mr. Minhas but it appears that recommendation was
made much earlier, probably on December 6, 2006.  Dr. Gill’s report indicates
that on that date “A referral was made for active rehabilitation”, presumably
because Mr. Minhas had become deconditioned.  There is a reference in Dr.
Gill’s report for January 15, 2007 that “Again active rehabilitation was recommended”. 
Dr. Gill noted on August 21, 2007 that Mr. Minhas “…continued to wait for his
active rehabilitation program”; on September 11, 2007 that “Active
rehabilitation had not been approved” and on September 16, 2007 that Mr Minhas
“…was due to start his active rehabilitation program”.

[419]     Dr. Gill’s
report indicates that when he assessed Mr. Minhas on February 28, 2008, Mr.
Minhas was not experiencing significant jaw pain; reported some tenderness but
had no muscle spasm in his neck or back; and had improved range of motion.  As
I noted earlier in these Reasons, the records kept by the rehabilitation
consultant indicate that Mr. Minhas demonstrated no physical limitations while
participating in the rehabilitation program in 2008.  There is evidence that
Mr. Minhas had returned to construction work in 2007 and 2008, without apparent
physical difficulty.

[420]     I am not
persuaded that Mr. Minhas required an active rehabilitation program in 2008 for
reasons related either to the October 25, 2005 accident, or the April 2006
surgery.

[421]     There are
a number of invoices from Workfit Health Services Inc. addressed to “Access
Law” for services apparently provided in 2009.   They are included in the
Special Damages exhibit binder under the sub-heading “Occupational Therapy
Costs”.  No witness identified or explained these invoices.  Scott Myles is an
occupational therapist and certified work capacity evaluator according to a
report he prepared on Workfit Health Services Inc. letterhead dated February
16, 2010.  This report provides opinion evidence about cost of future care. 
There is also a two page report from Workfit dated November 27, 2009 relating
to assessments of Mr. Minhas carried out on March 20, 2009 and November 25,
2009.   Both of these Reports were included in the Plaintiff’s book of expert
reports.  If the 2009 invoices relate to preparation of these reports, they should
properly be claimed as litigation disbursements.  If the invoices relate to
treatment, I would make no award in relation to them, as I have concluded that
Mr. Minhas did not require the treatment in 2009 for any symptoms or injuries
causally related to the 2005 accident or the 2006 jaw surgery and subsequent
infection.

[422]     There is a
“Statement of Account Outstanding” from Dr. Mehta, totalling $1,000.  The first
four entries – for March 8, 2006, July 7, 2006, August 30, 2006 and June 18,
2007 are described as “follow up” and billed at $175 each.  There is an entry
for November 16, 2007 described as “telephone consult with lawyer D.
Creighton”.  There is a further entry dated January 20, 2010 described as
“follow up”.  There is a separate invoice for $380 with the description
“General Treatment for Jarnail” dated November 2, 2005.  A third document is
titled “Dental Pre-Authorization Form” and it provides an estimate of $1,000
for certain listed treatments.  Dr. Mehta testified at trial, but was not asked
to identify any of the invoices or other documents included in the special
damages exhibit binder.  He did not verify any of the charges.  However, from
Dr. Mehta’s reports and testimony, and references to Dr. Mehta in Dr. Gill’s
report, I am able to conclude that Dr. Mehta did meet with Mr. Minhas on the
dates indicated in 2005, 2006, and 2007.   The follow- up visit in January 2010
was related, I conclude, to the problem that had developed with Mr. Minhas’s
bite, which I have concluded is not the responsibility of the defendant.  The
telephone consult on November 15, 2007 between Dr. Mehta and Mr. Creighton is
not properly claimed as special damages, although it may be a proper
disbursement on a bill of costs.  The estimate is not evidence of a cost
actually incurred.   I award the plaintiff $1,080 for treatment provided by Dr.
Mehta.

[423]     The
plaintiff is seeking reimbursement for $426.70 billed by Dr. Shen, Mr. Minhas’s
dentist, on February 3, 2006, $498.70 billed on July 2, 2009, and $203.20
billed on October 19, 2010.   Dr. Shen did not testify at trial and no witness
identified or verified Dr. Shen’s accounts.   The invoice for February 3, 2006
states that the procedure was “Fillings”.  There is no evidence indicating that
the need for fillings was related to the accident.   Although not referred to
in the plaintiff’s summary of special damages, there is an invoice from Dr.
Shen dated March 27, 2009 for $407.20.  This invoice is either wrongly dated,
or the photocopy has been cropped and pasted, as the services described were
apparently provided on March 27 and May 29, 2009.  The March 27 services appear
to relate to a routine examination and cleaning and the defendant is not liable
for those.  The May 29 charges relate to an examination and removal of the wire
and arch splint that Dr. Matthew had inserted following Mr. Minhas’s jaw
surgery.   Although I have concluded that Mr. Minhas was negligent in having
the original jaw fixation removed prematurely without allowing Dr. Matthew to
replace it, it is the case that the wires and arch bars would have had to be
removed eventually, so I allow the charge of $117.90 for services provided by
Dr. Shen on May 29, 2006.  The invoice dated July 2, 2009 includes the charge
for services rendered on March 27 and May 28, presumably because the bill had
not been paid, and there is a billing for cleaning Mr. Minhas’s teeth which is
not the responsibility of the defendant.  The October billing is simply a
balance carried forward.

[424]     I award
Mr. Minhas special damages of $118 for services provided by Dr. Shen.

[425]     There are
invoices that Binty Minhas testified are for services provided by a dentist,
Dr. Donaldson.  Dr. Donaldson did not testify at trial.  Binty Minhas testified
about some of the invoices.  The first invoice dated February 13, 2006 is for
radiographs and I award $351 for this service.   The second, dated March 6,
2007 says it is related to an oral infection and examination.  I do not recall
any evidence about an oral infection, but Binty Minhas testified that this
invoice was paid by Parminder Minhas and I accept it was in some way related to
the accident injuries and I award the sum of $250.  There is an invoice for a
“periodontal appliance” dated September 7, 2007.  Dr. Mehta’s report dated June
21, 2007 indicates that he recommended an updated oral appliance and I am
prepared to accept that the appliance provided by Dr. Donaldson was the
appliance Dr. Mehta had recommended for Mr. Minhas.  I award $600 for the cost
of this appliance.  There is a second invoice dated April 29, 2008 for a “Periodontal
Appliance Mandibular & Lab”.  I have no evidence to support this charge. 
There is no reference to a new dental appliance in Dr. Gill’s report.  There is
a reference in Dr. Mehta’s clinical record for January 1, 2010 indicating that
Mr. Minhas had had several visits with Dr. Donaldson, but no reference to an
appliance.

[426]     I award
Mr. Minhas $1,201 for goods and services provided by Dr. Donaldson.

[427]     There is a
bill from Dr. Matthew dated October 21, 2010 for $425.37.  The description of
the service is “Underbilled previous treatment”.  Dr. Matthew testified at
trial.  He was not asked to explain or verify this account.  Binty Minhas was
not able to say what the bill was for, but did say he believed it had not been
paid.  I am prepared to accept that the bill relates to services provided by
Dr. Matthew in relation to his assessment and treatment of Mr. Minhas’s jaw and
award the sum of $426 for his services.

[428]     Included
in the special damages exhibit binder is a bill from Dr. Bianco dated either
November 7, 2006 or July 11, 2006 for $65.  No services are described.  There’s
no evidence that Dr. Bianco treated Mr. Minhas in 2006, but Mr. Minhas did ask
for copies of his dental records.  If this account relates to production of
copies of those records, it should properly be treated as a litigation
disbursement and I make no award of special damages in relation to it.

[429]     Included
in the special damages exhibit binder is an invoice in the amount of $975 for
the cost of the MRI of Mr. Minhas’s head obtained on March 11, 2009.  $100 of
the cost is for a second CD copy.  The invoice is addressed to Mr. Creighton’s
office, although the referring doctor is said to be Dr. Gill.  Dr. Gill did not
refer to this MRI in his report dated May 8, 2009.  Binty Minhas testified that
he did not believe that he had paid for it.  The evidence does not establish
whether the MRI was carried out for treatment purposes, or for litigation purposes. 
As I have concluded that Mr. Minhas did not suffer brain injury as a result of
either the accident or the respiratory infection following surgery, I can see
no basis for an award against the defendant in relation to this charge.

[430]     There is a
bill from Vancouver General Hospital for some of the testing associated with
Dr. Longridge’s assessment of Mr. Minhas.  This should properly be treated as a
litigation disbursement rather than an out of pocket expense related to the
plaintiff’s injuries caused by the accident.

[431]     Counsel
for Mr. Minhas included a listing of prescription drug charges from Shoppers
Drug Mart for the period August 30, 2007 to July 22, 2010 in the special
damages exhibit binder.  Binty Minhas testified he paid for some of these
medications.   The invoices from Shoppers Drug Mart appear to include every
medication Mr. Minhas was taking during the period for which there are
receipts.  These include the Paxil he had been taking for many years before the
October 25, 2005 accident and which I conclude he would have continued to take
even if the accident had not happened; other medications that appear to have
been prescribed by Dr. Ancill for anxiety; and drugs that Mr. Minhas was taking
for the treatment of diabetes.  None of the bills are for medications purchased
in 2006 or 2007.  None of the medications listed appear to be the medications
Dr. Gill prescribed for Mr. Minhas in October 2005.  To the extent that I can
identify the medications, they do not appear to be anti-inflammatories or analgesics
for soft tissue pain or inflammation.  The Pharmanet record and Dr. Gill’s
report indicate that an antibiotic was prescribed for Mr. Minhas following his
discharge from hospital on May 15, 2006 and that he may also have had to
purchase some surgical dressings for the tracheostomy incision, but there are
no receipts for those expenses and I cannot guess at the cost. I make no award
in respect of the invoices from Shoppers Drug Mart.

[432]     There are
also prescription receipts from Mountainside Pharmacy but these are for the
medications “Crestor”, which I believe is for the treatment of high
cholesterol; and “Paroxetine”, which I believe to be a trade name for the Paxil
that Mr. Minhas had been taking for many years before the accident in 2005.  I
make no award for the cost of these medications.

[433]     Finally,
there is an invoice for the cost of rental of a television for Mr. Minhas’s
hospital room for the period May 11 to May 15, 2006, the last four days of Mr.
Minhas’s hospital stay for treatment of the respiratory infection he developed
following the jaw surgery performed on April 28, 2006.  I award $46 for this
expense.

[434]     The total
of special damages awarded to Mr. Minhas is $4,466.

GENERAL DAMAGES FOR NON-PECUNIARY LOSSES

[435]      The
plaintiff is seeking an award of $330,000 for general damages, essentially an
award at or near the “cap” for non-pecuniary loss.  The defendant submitted
that an appropriate award, before deduction for contributory negligence, would
be $30,000.  I understood that submission to be based on the defendant’s
position that the accident did not cause or contribute to the condition that
resulted in Mr. Minhas having jaw surgery in April 2006; and therefore that the
subsequent respiratory infection and hospitalization was also not causally
related to the accident.

[436]     In Stapley
v. Hejslet, 2006 BCCA 34, Justice Kirkpatrick, writing for the majority,
set out an inexhaustive list of factors for the court to consider when
assessing non-pecuniary damages, including the plaintiff’s age, the nature of
the injury or injuries, the severity and duration of pain, whether disability
resulted, emotional suffering, impairment of family, marital and social
relationships, impairment of physical and mental abilities; and loss of
lifestyle.

[437]     As a
result of the motor vehicle accident, Mr. Minhas suffered soft tissue injuries
to his neck and back that caused discomfort and reduced mobility or range of
motion in his neck and back.  I conclude the injuries to the soft tissues of
Mr. Minhas’s neck and back fall in the mild to moderate range.  By January 2006,
Mr. Minhas had resumed regular work-outs at his gym.  By February 2006 Mr.
Minhas reported to Dr. Mehta that he did not require anti-inflammatory
medication and was taking Tylenol #3 only occasionally.

[438]     Mr. Minhas
also had pain and swelling in the tissues on the left side of his face;
bruising to his nose, and he chipped the enamel of one incisor.  The injury to
the tissues and muscles of the jaw on the left side of his face exacerbated the
chronic problem with the physiology of Mr. Minhas’s jaw and caused pain and a
significant reduction in his ability to open his mouth that affected his
ability to chew certain foods.

[439]     Mr. Minhas
reported having headaches and some dizziness following the accidents.  These
symptoms improved quite rapidly and, I conclude, resolved completely.

[440]     I have
concluded that but for the accident on October 25, 2005, Mr. Minhas would not
likely have sought out surgical treatment from Dr. Matthew to address the
chronic jaw problems diagnosed by Dr. Bianco in 2000 and by Dr. Matthew in
2006.  The defendant is therefore liable to compensate Mr. Minhas for the pain,
suffering and loss of enjoyment of life associated with that surgery; and the
respiratory infection he developed following the surgery, which resulted in
hospitalization from April 28, 2006 to March 15, 2006.  By May 29, 2006 the
respiratory infection had resolved completely and Mr. Minhas’s chest was clear.

[441]     During
part of his hospital stay, Mr. Minhas was unconscious and he also displayed
paranoia and had hallucinations.  However, Mr. Minhas had no memory of the
hallucinations by the time he was discharged from hospital and I am not
persuaded that he has ever suffered from post-traumatic stress disorder in
relation to either the accident, or his hospital stay.

[442]     The jaw
surgery left Mr. Minhas with bilateral scars below his jaw line, according to
plastic surgeon Dr. Carr.  The scars are about 2.5 by .5 cms, and are located
just below the jaw line on each side.  Dr. Carr described the scars as “…flat
with slight brown hyperpigmentation” and “not very conspicuous”.  The scars
were not visible to me when Mr. Minhas was testifying.  Dr. Carr recommended
against revision of these scars.

[443]     Mr. Minhas
had a tracheostomy incision, which required a dressing change in Dr. Gill’s
office on May 16, 2006, the day after Mr. Minhas’s discharge from hospital. 
The dressing was changed again on May 20 and May 22, 2006.  The tracheostomy
site was well healed by May 29, 2006.  Mr. Minhas has been left with a small
scar on his neck, which he finds disfiguring, although the scar was not visible
to me from the bench in the courtroom when Mr. Minhas, seated in the witness
box, pulled down his collar to display it to me.  I referred earlier to Dr.
Carr’s description of this scar.

[444]      Mr.
Minhas continued to have some discomfort and decreased mobility caused by the
soft tissue injuries to his neck and back in the second half of 2006,  and in
the early part of 2007 although, I conclude, these symptoms continued to
improve and were not debilitating.   Mr. Minhas had injured his neck and back
more than once in previous work-related accidents, and had engaged in physical
labour in the construction industry, in a smelter, and as a warehouseman.  I
consider it more probable than not that he would have experienced some
discomfort in his neck and back from time to time even if the October 25, 2005
accident had not happened.

[445]     The jaw
surgery was successful and greatly reduced the discomfort in the jaw and
increased Mr. Minhas’s ability to fully open his mouth and to eat normally.  By
the early part of June 2006 his jaw condition was not debilitating, although
Mr. Minhas continued to have some discomfort in facial muscles after that
date.  Mr. Minhas told Dr. Mehta on June 7, 2006 that he no longer required
pain medication and might need to take Tylenol #3 only “once in a blue moon”. 
He said he was no longer having headaches and could sleep eight hours at a
time.

[446]     In August 2006,
Mr. Minhas injured the soft tissues of his face, jaw, neck and back in an
unrelated motor vehicle accident.  The plaintiff is not liable for the increase
in symptoms, or any new symptoms caused by that accident.

[447]     I am also
satisfied, given the chronic problems with his jaws noted by Dr. Bianco and Dr.
Matthew, that it is likely Mr. Minhas would have had some discomfort from time
to time even if the accident had not happened.

[448]     There is
evidence that Mr. Minhas was physically active and played hockey as a child and
soccer when he was in high school but no convincing evidence that he was
playing any organized sports in 2004 or 2005.  His regular routine of working
out at the gym was interrupted for a period of about two and a half months,
after which he resumed regular work-outs.   Mr. Minhas was encouraged to resume
physical exercise and activity following his discharge from hospital in May
2006.  The evidence is not entirely clear, but it appears that Mr. Minhas had
resumed some physical activity by June 7, 2006 as he reported to Dr. Mehta that
his jaw symptoms were exacerbated by heavy lifting and Dr. Mehta fitted Mr.
Minhas with a mouth guard to wear while exercising.  As Mr. Minhas was
subsequently described as “deconditioned”, it appears he did not follow the
recommendations of his doctors to increase his physical activity and engage in
active rehabilitation.

[449]     I accept
that the pain and restricted mobility caused by the soft tissue injuries
probably interfered with Mr. Minhas’s ability to perform some household tasks
and yard maintenance in 2005, and for a period of some weeks following the
surgery in 2006, although I am satisfied that when he was well enough to resume
his work as a construction labourer, he was also able to resume household tasks
and yard work.

[450]     It appears
that aside from regular work-outs, Mr. Minhas’s pre-accident social life
consisted primarily of family functions, drinking with friends after work and
on weekends, playing poker, and watching a soap opera and sporting events on
television.   I am not persuaded he was unable to continue to participate in
these activities after the accident.   Mr. Minhas and his wife both testified
that the accident injuries affected their sex life, but Parminder Minhas did
become pregnant in February 2006.

[451]     By the
summer or early fall of 2006, Mr. Minhas was sufficiently recovered from all of
his injuries to enjoy a driving trip to Edmonton during which he was seated in
a rear seat of his cousin’s van, with his wife.  During an overnight stay in
Kamloops and while he was in Edmonton, he played actively with his son G.

[452]     Mr. Minhas
had a pre-existing anxiety disorder, and, I conclude, a pre-existing
predilection to abuse alcohol.   Beginning with Dr. Hearn’s report dated
February 14, 2007, a number of psychological labels have been applied to Mr.
Minhas.  Mr. Minhas did not provide a complete or accurate history to Dr.
Hearn, Dr. Ancill, or Dr. Wilensky.  I am satisfied that in the interests of
pursuing financial compensation he also fabricated and exaggerated symptoms of
depression and anxiety, while being less than forthright about his abuse of
alcohol.  I am not persuaded that there is a compensable causal relationship
between the accident and Mr. Minhas’s reported symptoms of depression and
anxiety, or his abuse of alcohol.

[453]     I have
considered the authorities provided by counsel relating to the quantum of
general damages.   Almost all of the authorities provided by plaintiff’s
counsel are of no assistance as the plaintiffs in the cases cited suffered traumatic
brain injuries and much more serious physical injuries than those Mr. Minhas
suffered.

[454]     Plaintiff’s
counsel did provide the court with the decision in Sauer v. Scales, 2009
BCSC 1250.  In that case, the plaintiff sustained a serious TM joint injury as
a result of the accident, for which he would require dental reconstruction
work.  There was some evidence that the plaintiff had had a problem with
bruxism before the motor vehicle accident, but Justice Cohen concluded that the
real problems the plaintiff had with his teeth and jaws were caused by the
accident.

[455]     Justice
Cohen awarded non-pecuniary damages of $135,000.  However, the plaintiff in
that case had also sustained “…moderate to severe injuries to his eyes…neck
and back” leaving him with “…significant musculoskeletal and neurological
symptoms with respect to his left arm…” and cervical spine compression and
thoracic outlet syndrome.  The plaintiff Sauer had had two jaw surgeries and one
eye surgery, as well as surgery to his left wrist for carpal tunnel syndrome. 
He was expected to require surgery for a cubital tunnel problem with his left
elbow and well as two other possible surgeries.

[456]     Mr.
Sartor’s counsel provided the court with the decision of Justice Humphries in Anderson
v. Routbard, 2005 BCSC 752.  In that case, the plaintiff had suffered soft
tissue injuries, earache, headaches, a cut to his chin that left a scar,
cracked teeth and a jaw injury that resulted in surgery for a TM joint problem
a year after the accident.  His teeth could not be repaired until after the jaw
surgery.  Following the surgery Mr. Anderson’s jaw was wired shut for two weeks
and he lost 15 pounds which he could ill afford to lose.  Justice Humphries
assessed non-pecuniary damages at $25,000 although she subsequently found against
the plaintiff on the issue of liability for the accident.

[457]     In Dhaliwal
v. Loong, 2010 BCSC 612, Justice Russell found the plaintiff Dhaliwal to
have suffered mild injury to his neck, back and shoulder and two fingers of his
right hand which resolved after a few months; mild to moderate pain in his mid
back which lasted longer but was affected by his work and his pre-existing
condition; and a brief exacerbation of pre-existing depression and associated
symptoms such as insomnia.  She awarded the plaintiff $20,000 for non-pecuniary
damages after a 20% deduction to take into account his pre-existing health
problems.

[458]     Each award
must be fashioned based on the unique facts of the case. I conclude that the
appropriate award to compensate Mr. Minhas for non-pecuniary losses is $70,000.

SUMMARY OF UNADJUSTED DAMAGES

[459]     The
damages awarded are summarized here:

ADJUSTMENT FOR CONTRIBUTORY NEGLIGENCE

[460]     I stated
earlier my conclusion that Mr. Minhas contributed to the severity of his
injuries, in particular the injury to his face, by failing to wear his seat
belt.  The award shown above shall be reduced by 20% to reflect the finding of
contributory negligence resulting in an adjusted award of damages of $76,653.

COSTS

[461]     In the
normal course the plaintiff, having obtained judgment against the defendant,
would be entitled to his costs and I would consider Scale B to be the
appropriate scale.  However, there may be factors that have not been disclosed
to the court such as offers of settlement that should be considered in relation
to costs.  The parties may have other submissions they wish to make about costs
based on the outcome of the trial.

[462]    
The parties are at liberty to make submissions in writing about costs if
they wish to do so; or may arrange with Trial Scheduling to appear before me to
make oral submissions.  Any written submissions the parties wish to make about
costs should be filed with the court on or before September 30, 2012.  If the
parties wish to make oral submissions, they should reserve a date for the
hearing on or before September 30, 2012.  To be clear, the hearing date need
not be before September 30, but a hearing date should be reserved on or before September
30.  If no written submissions are received and no hearing date has been
reserved before September 30, the order shall be that the defendant shall pay
the plaintiff’s costs, to be assessed on Scale B.

“W.G. Baker J.”