THE SUPREME COURT OF BRITISH COLUMBIA
Citation: | Wallman v. John Doe, |
| 2014 BCSC 79 |
Date: 20140117
Docket: M084600
Registry:
Vancouver
Between:
Daniel Wallman
Plaintiff
And
John Doe, Jack Doe
Company Ltd.,
Insurance Corporation of British Columbia,
Rajinder S. Gill, British Columbia Transit, Whistler Transit Ltd.
Defendants
Before:
The Honourable Mr. Justice G.C. Weatherill
Reasons for Judgment
Counsel for the | J. Scott Stanley |
Counsel for the | P. Arvisais |
Counsel for | Scott B. Stewart |
Place and | Vancouver, B.C. November 4-8, |
Place and | Vancouver, B.C. January 17, 2014 |
(1) The
Plaintiff, Dr. Daniel Wallman
C. THE CASE FOR THE TRANSIT
DEFENDANTS
E. THE PLAINTIFFS REBUTTAL
EVIDENCE
(b) Was
the Snow Plow Driver negligent?
(c) Insurance
(Vehicle) Act, Section 24(5)
(ii) Past
Income Loss from Medical Practice
(iii) Future
Loss of Earning Capacity from Medical Practice
(iv) Future
Loss of Earning Capacity – Real Estate Investments
A.
INTRODUCTION
[1]
Occasionally a seemingly innocuous event can have tragic consequences.
[2]
On the morning of December 4, 2006, the plaintiff, an emergency
room physician, was driving his Honda Accord (Honda) eastbound on Lorimer
Road from his home in Whistler, British Columbia to the Whistler Health Care
Centre (WHCC). It was cold and snowing. The roads were slippery. The
traffic light at the intersection of Lorimer Road and Highway 99 (the Intersection)
was red in his direction. The plaintiff stopped.
[3]
When the light turned green, the plaintiff began to move forward.
However, a highway snow plow truck (Snow Plow) proceeding northbound on
Highway 99 slid into the Intersection, blocking the plaintiffs eastbound
route.
[4]
The plaintiff stopped. A Whistler Transit bus that had been following
the plaintiffs vehicle (the Bus) did not stop and rear-ended the plaintiffs
vehicle (the Accident).
[5]
The collision did not cause much physical damage to the vehicles.
However, the plaintiffs life changed instantly and dramatically. He claims to
have suffered a debilitating concussion. He has not returned to his
pre-Accident work either as a physician or as a developer of real estate rental
properties. He asserts that he will never again be able to do so. He claims
significant damages.
[6]
The defendants, British Columbia Transit (BCT), Rajinder Gill (Gill)
and Whistler Transit Ltd. (WTL), (collectively the Transit Defendants) say
the Snow Plow is at least partly to blame. The Snow Plow and its driver have
not been identified. The defendant, Insurance Corporation of British Columbia
(ICBC), a nominal defendant pursuant to section 24 of the Insurance
(Vehicle) Act, R.S.B.C. 1996, c. 231, says that the Transit Defendants
are to blame.
[7]
There is no suggestion of any contributory negligence on the part of the
plaintiff.
B.
THE PLAINTIFFS CASE
[8]
The plaintiff read into evidence excerpts from Gills examination for
discovery:
(a) On
the morning of December 4, 2006, he was a relatively new bus driver for WTL
having started in November 2006. He had little experience driving in snow.
(b) He
was driving the Bus eastbound on Lorimer Road. There was only one eastbound
travel lane. He had driven that route approximately seven or eight times previously.
(c) It
had been snowing all morning and snow had accumulated on the roadway. Gill knew
there was ice on the roadway under the snow. There was a slight down-slope to Lorimer
Road as it approached Highway 99. This was the most snow Gill had ever
experienced while driving a bus.
(d) Gill
saw the Honda approximately 100 feet ahead of him. He saw that the traffic
light at the Highway 99 Intersection was red. He saw that the Honda had come
to a complete stop. The Bus was still moving.
(e) Gill
saw the traffic light turn from red to green. He saw the Honda proceed forward
approximately five to six feet and then come to a full stop because the Intersection
was blocked by the northbound Snow Plow which had slid into it.
(f)
The Bus was unable to stop and the bicycle rack mounted on the front of
the Bus struck the rear of the Honda. The Honda was pushed further into the Intersection.
Thereafter, the Honda did not stop but continued through the Intersection after
the Snow Plow had passed.
(g) Gill
and the plaintiff stopped on the east side of the Intersection, exchanged
information and continued on their respective ways. Gill did not get out of the
Bus. He did not inspect the vehicles for damage.
[9]
The following witnesses testified as part of the plaintiffs case:
(1)
The Plaintiff, Dr. Daniel Wallman
[10]
The plaintiff is a 53-year-old physician. He obtained his medical
degree from McMaster University in the mid-1980s. He worked in various
hospitals in British Columbia until 1992 when he moved to Whistler to work as
an emergency room physician at the WHCC.
[11]
The plaintiff was born and raised in Ontario to parents who engrained in
him the value and rewards of hard work and property ownership. He learned home
maintenance skills at an early age.
[12]
He excelled in school. In grade six he was moved to his schools
enrichment program. He was the Canadian Junior Checkers Champion at age 13.
He taught himself to play chess and shortly thereafter placed third in the
Canadian Junior Chess Championship.
[13]
The plaintiff excelled in sports. He was his schools Athlete of the
Year in grade 12.
[14]
During high school, university and during the summers in between, the
plaintiff worked at various jobs, mostly labour intensive.
[15]
In 1983, the plaintiff earned an undergraduate degree in honours
chemistry from Queens University, finishing second in his class. That summer,
he attended a French-language immersion course in Quebec where his met his
spouse, Dagmar Roth. He and Ms. Roth now have three children, Mathew born
in 2004 and twins, Nicholas and Isabella born in 2008.
[16]
The plaintiff decided upon a career as an emergency room physician at
the WHCC because he loved the high velocity trauma, the challenges and the busyness
of the emergency room. He also liked the orthopaedics of sports-related
injuries. The job gave him an opportunity to learn and develop his medical
skills. The plaintiff found the job at WHCC to be gratifying and fulfilling.
He was proud of his accomplishments over the years, especially helping make a
difference in the lives of his patients. He received thank-you letters from
around the world. He had no plans to retire.
[17]
The plaintiff typically worked approximately 60 hours per week at WHCC,
18 shifts per month. He was Chief of Staff in the mid-1990s. Thereafter he
was President of the Medical Staff for four to five years. From 1997 until the
Accident, the plaintiff was the medical advisor to the Whistler Ambulance
Service.
[18]
The number of shifts the plaintiff worked did not change after the birth
of his son, Matthew in 2004. Although he and Ms. Roth were planning to
have more children, he loved his work and had no plans to reduce his work
hours.
[19]
Financially, the plaintiff was very astute. He was a voracious reader
of financial papers and publications. He loved detail. One of his strengths
was math.
[20]
The plaintiff and Ms. Roth purchased their first home in 1990. They
subsequently moved twice, each time purchasing a new home and keeping the previous
home for use as a rental property. They also acquired an interest in a family
cottage at Wasaga Beach Ontario as well as other properties that they built or
renovated and use as revenue properties. The plaintiff enjoyed the creativity
involved in the design and seeing his renovation ideas come to fruition. He
was the person primarily responsibility for the maintenance and repair of these
properties.
[21]
The plaintiffs plan prior to the Accident was to purchase and renovate
approximately one property per year for as long as he continued to work at
WHCC.
[22]
The following is a summary of the plaintiffs real estate acquisitions
prior to the Accident:
Acquired | Address | Ownership | Current Equity | Monthly Rental |
1990 | W. 14th Ave. Vancouver | 100% Professional Corp. | $170,662 | $1,400 |
1991 | Wasaga Beach, Ontario | 24.5% | $170,000 | $368.00 |
1992 | Casa Rio Dr., Kelowna | 100% Professional Corp. | $448,000 | $1,500 |
1995 | St. Moritz, Whistler | 100% Professional Corp. | $420,000 | $2,000 |
1996 | Family home, Whistler | 100% Ms. Roth | $636,000 | nil |
1997 | Glen Manor Triplex, Toronto | 50% plaintiff | $348,000 | $1,950 |
2001 | W. 7th Ave., Vancouver | 100% Ms. Roth | $1,166,000 | $3,350 |
2002 | Queens Ave., West Vancouver | 100% plaintiff | $1,138,500 | $2,750 |
2004 | Connaught Dr., Vancouver | 50% plaintiff | $3,704,000 | $9,300 |
2005 | Blue Mtn, Ontario | 100% Professional Corp. | $659,000 | $3,000 |
2006 | Dunbar St., Vancouver | 25% plaintiff | $339,000 | 1,975 |
[23]
The plaintiffs pre-Accident health was good. His vision was excellent,
he had lots of energy and he was an efficient sleeper needing only six to seven
hours per night. He seldom took naps during the day. He has, however,
suffered from asthma for many years, for which he takes prednisone, sometimes
self-prescribed.
[24]
In the late 1980s, the plaintiff injured his back in a car accident. In
January 2004, the plaintiff hit his head during another car accident, which
resulted in neck spasm and carpal tunnel syndrome in his arms. The plaintiff
testified that both injuries had completely resolved by the summer of 2006.
[25]
Prior to the Accident the plaintiff had never been diagnosed as having suffered
a concussion injury.
[26]
On cross-examination, counsel for the Transit Defendants pointed to ICBCs
telephone records, which indicated the plaintiff was complaining of carpal
tunnel syndrome problems in his hands arising from the January 2004
accident as late as November 24, 2006, ten days before the Accident. The
plaintiffs recollection of those telephone calls was that he had called ICBC to
obtain information about the protocol if, in the future, his carpal tunnel
symptoms returned and he was required to have surgery and miss work. He
believes that the person at ICBC who made the telephone notes misunderstood or
misinterpreted what he had said.
[27]
Regardless, none of the plaintiffs pre-Accident conditions or injuries
resulted in the plaintiff missing work.
[28]
The plaintiff enjoyed sports. He played baseball and hockey, skied,
hiked and worked out in the gym. None of these activities were curtailed by
the birth of Matthew.
[29]
On the morning of December 4, 2006, the plaintiff left his home to
attend an intubation course being held at WHCC. It was a cold and snowy day.
He drove eastbound on Lorimer Road. There was black ice on the road. He
stopped at the Intersection because the traffic light in his direction was
red. He saw the Snow Plow travelling northbound on Highway 99. The traffic
light facing the plaintiff turned green but he was unable to proceed through
the Intersection because the Snow Plow had slid into and was blocking it. The
plaintiff heard the sound of a roaring engine behind him. There was a bang and
he immediately saw a flash of white light. He believes that his head must have
whipped forward and back but has no memory of whether or not it did.
[30]
The plaintiffs memory of the rest of that day is patchy. He has a
vague recollection of being on the Bus and speaking to the driver but does not
remember what was discussed. He has no recollection of preparing and having
Gill sign a statement regarding the Accident (the Statement). He confirmed
that the Statement was written mostly in his handwriting and that one of the
telephone numbers he wrote on it was an old residential telephone number from ten
years earlier, not his current telephone number. However, he agreed on
cross-examination that the old telephone number remains an active facsimile
number in his house.
[31]
He has no memory of speaking to a WTL representative on the Bus radio
or on the telephone later that day.
[32]
He does not recall driving to WHCC. He does recall attending the
intubation course after the Accident, one that he had prepared for and had been
looking forward to attending, but was confused and could not follow what was
going on. He did not feel well. He went home at the lunch break and fell
asleep on his couch. He returned to the course in the afternoon, felt horrible
and returned home. He has no recollection of anyone from WTL attending WHCC to
speak to him that day.
[33]
On cross-examination the plaintiff was questioned about the account of
the Accident he gave during his examination for discovery and as recorded by
various medical specialists with whom he had consulted. No two versions are
identical. Some versions indicate he had a recollection that is missing or
denied in others. The plaintiffs explanation is that, on each occasion, he
was trying his best to piece together what he remembers happening with what he
thought must have happened, even though he had no memory of the latter. For
example, he testified that he has no memory of moving his vehicle after being
struck or of preparing and having Gill sign the Statement. However, he knows
those things must have happened because his vehicle was moved and the Statement
was prepared.
[34]
That evening, Ms. Roth took the plaintiff to WHCC to be examined. Dr. Rempel,
a colleague at WHCC, diagnosed a concussion and advised the plaintiff to take
some time off work.
[35]
During the days, weeks and months following the Accident, the plaintiff
was nauseated, confused and disoriented. His vision was blurred and he was
seeing double. He was sensitive to light and noise. He had trouble
remembering even simple things such as telephone numbers. He had constant,
unbearable headaches. He easily became irritable. He had trouble
understanding what was wrong with him. He was upset that he was unable to
work. He was concerned that he might lose his medical license and skills as
well as the trust of his colleagues. He minimized his symptoms in an attempt
to convince his colleagues that he was fit to return.
[36]
He felt exhausted and slept most of the day. He had graphic nightmares,
which he described as always involving violence and blood.
[37]
The plaintiff has no recollection of speaking to a representative of
ICBC on December 19, 2006. He made no attempt to identify the driver of
the Snow Plow, other than to retain the services of a lawyer who placed a small
advertisement in the local Whistler newspaper asking that witnesses to the
Accident come forward.
[38]
Shortly after the Accident, Dr. Stanley, another WHCC physician,
arranged for the plaintiff to undergo a CT scan at Lions Gate Hospital in North
Vancouver. On the drive to the hospital he became nauseated and threw up.
[39]
The plaintiff continues to suffer from most if not all of the foregoing
symptoms. He has low-grade headaches that occasionally develop into migraines,
although they are now less intense and more infrequent. His memory has
improved but is not what it was before the Accident. He is not as confused and
dizzy as he was during the first years following the Accident but still suffers
from those symptoms. His sensitivity to noise and light has improved somewhat.
[40]
The plaintiff continues to have difficulty thinking, concentrating,
remembering things and multi-tasking, all of which he testified were his fortes
prior to the Accident. He cannot seem to concentrate on more than one thing at
a time. He has trouble figuring things out and following simple instructions.
He has blurred and double vision. He gets headaches and becomes irritable when
he is tired.
[41]
The plaintiffs daily life struggles include regularly forgetting or losing
his wallet, glasses, cars keys and cell phone.
[42]
The plaintiff provided the Court with several examples of becoming uncharacteristically
distracted while minding his young children with the result that their safety was
jeopardized.
[43]
The plaintiff has difficulty initiating activities. On good days, he is
able to spend up to 2 hours on the computer or 30 minutes doing physical
activity, such as gardening and yard work. However, he finds that he becomes symptomatic
– his headaches return, he develops a cognitive fog and he becomes fatigued,
disoriented and irritable.
[44]
On cross-examination the plaintiff was shown video surveillance of him
doing various activities:
(a) January 18,
2008: Carrying his four year old son Matthew on his shoulders up three
flights of stairs.
(b) July 20
& 21, 2010: Using a wheelbarrow and digging with a shovel to plant a
cedar hedge at his Connaught Avenue property. This gardening activity did not
appear to be particularly strenuous, yet the plaintiff paused several times to
rest. He explained during his redirect examination that this activity resulted
in him suffering a brutal migraine and he was required to pace himself in
order to control his symptoms. In contrast, prior to the Accident it would
have been inconceivable for him to have needed to rest while performing such a
task.
(c) July 23,
2010: With his children and nanny at Brandywine Falls Provincial Park. He
is seen carrying Mathew on his shoulders, but resting often. He explained that
the nanny was present because he is not sufficiently attentive to his
children. Indeed, one scene shows his two-year-old daughter running along a
path parallel to the water with the plaintiff seemingly oblivious that she had
gone. The nanny chased after her.
(d) August 28,
2010: Playing in the water at Wasaga Beach in Ontario and riding on a jet
ski with his son. The jet ski ride was far from vigorous.
(e) September 3,
2010: Doing various non-vigorous errands in Ontario, such as filling a car
with gasoline.
[45]
As a result of the Accident, the plaintiff has lost his acumen for math
and detail. He provided the Court with several examples of instances where he
wrote cheques with the wrong amount or date, or forgot to sign the cheque
altogether. He has had duplicate cheques he wrote returned to him. His
computer journal entries are now of poor quality and contain mistakes.
[46]
Although the plaintiff has paid his taxes, he has not filed income tax
returns for himself or for his professional corporation, Dr. Daniel A.
Wallman Inc. (Professional Corporation), or completed financial statements
for that corporation for several years. He testified that he finds the
computer work associated with preparing the required financial ledgers and
other information for his accountant onerous. It makes him symptomatic. It
takes him months to correlate the financial information. He has not allowed others
to do it for him because finds it difficult to accept a diminishing role in
respect of matters that he feels he should be able to take care of himself.
[47]
Initially, after the Accident, the plaintiff denied that there was
anything wrong with him. He felt ashamed that he was not the productive person
he was before the Accident. He wanted to return to work and to the life that
he had made for himself.
[48]
Between November 2007 and June 2008, the plaintiff tried working
in the Squamish Hospital as a surgical assistant, a job requiring no decision making
on his part. He performed a total of 13 surgical assists. He could not
concentrate. His hand-eye coordination was off. His suturing was amateurish.
He found that his headaches, fatigue, disorientation, cognitive fog and
irritability would return. He used the wrong codes for billing purposes. Two
incidents caused him to cease this work. The first was being stopped by the
police for erratic driving of which he was completely unaware. The second was
when he arrived to assist late due to his inability to organize himself and the
surgeon had to replace him with another doctor. In 2010 he performed one more
surgical assist, but did not bill for it.
[49]
In 2008 the plaintiff began working as a physician in a walk-in clinic
in West Vancouver. He did so in an attempt to build up his tolerance as a
stepping stone towards a return to work at WHCC. He worked approximately twenty
shifts of four hours length during the fall of 2008 and spring of 2009. He was
excited and thrilled to be working again. However, he found that two hours
into his shift, he began to fog over, have difficulty following what was
being said to him, experience migraines and lose his coordination. He would be
tired and disoriented for several days after a shift and would rest as much as
possible. There was an incident in October 2008 where he prescribed a
narcotic to a substance abuse patient. The plaintiff left the room then
returned and prescribed the same drug to the same patient a second time. It
was bizarre behavior that was completely out of character for the plaintiff.
He has no idea why it happened. The incident made him begin to question his
judgment. By November 2008, he decided to take a break from the walk-in
clinic, due mostly to fatigue.
[50]
In the spring of 2009, the plaintiff once again started working at the
walk-in clinic. He continued to become symptomatic. On one occasion he froze
and could not deal with a particular patients relatively routine medical
issue. He worked a few more shifts in January and February 2010 but
stopped due to his symptoms.
[51]
The plaintiff attempted many different treatments for his problems, some
conventional, some unconventional. He has documented having paid $45,507.24
for these treatments. He has tried many different prescription drugs, some of
which have helped while others have not. Some of his medications were
self-prescribed, a practice that the plaintiff agreed was frowned upon by his
profession. Some of the drugs he tried had severe side effects. He did not
keep any of the receipts for the purchase of these drugs. On cross-examination
the plaintiff was shown records of his medication regime and consumption of
prescription medicines. He was unable to explain why some of his prescriptions
did not appear to have been filled while others were filled many weeks or
months later. He speculated that he could have been given samples by the various
prescribing physicians but he could not remember. He also speculated that he
may have lost the prescriptions and did not want to ask for replacements for
fear that his doctor would think he was not capable of returning to work.
[52]
The plaintiff was concerned about taking some medicines
(anti-depressants) because of the stigma associated with them, and others (Trazodone)
because of their addictive nature. He did take them reluctantly.
[53]
After many treatments by an Occupational Therapist (OT), Lori Nelson, and
a psychologist, Dr. Jung, the plaintiff is learning to accept his
limitations and that he will not be able to return to work as a doctor. He is
beginning to understand that he has a brain injury and intends to do what he
can to deal with it. He plans to continue with his OT and psychologist
sessions.
[54]
The plaintiff testified that, since the Accident, he has been unable to
perform most of the maintenance and repair tasks required for his various
rental properties. A handyman, Joseph Leblanc, handles those tasks for him.
He pays Mr. Leblanc $20 per hour and allows him to live in one of the
plaintiffs rental units at a rent discounted by approximately $1000 per month.
[55]
The plaintiff has not made any new investments in real estate since the
Accident. He finds the process of researching properties and creating a vision
of what he could do with them too overwhelming and stressful. He is no longer
able to create designs for the properties. He gets caught up in minute
issues. Even thinking about it and trying to run the numbers exhausts him.
[56]
In approximately 2010, the plaintiff and Ms. Roth hired a full-time
live-in nanny to assist with the children and household chores. They pay her
$1,900 per month. They never contemplated the need for such assistance prior
to the Accident.
[57]
Since the Accident, the plaintiff no longer participates in sporting
activities on a regular basis. He does not play hockey or baseball. He tried to
ski once but only lasted one half day. He skates with his children but finds
he has little endurance.
[58]
On February 1, 2007, the plaintiff began to receive disability
benefits from various insurers, totalling $8,042 per month. He will continue
to receive these benefits until age 65. He has recently begun to receive CPP
Disability Benefits, some of which will be clawed back by other insurers once
they receive the appropriate information from the plaintiff.
[59]
From his demeanour in the witness stand, particularly during cross-examination,
it was obvious to me that the plaintiff easily becomes fatigued and confused. Overall,
I found the plaintiff to be an honest, credible, sincere and forthright
witness. His explanations for inconsistencies in various accounts and
documents were logical and made sense. I do not doubt the plaintiffs
veracity as a witness, especially his descriptions of his symptoms and the changes
in his life, personality and capabilities since the Accident.
(2)
Dagmar Roth
[60]
Ms. Roth is the plaintiffs wife. They met thirty years ago in
Quebec. They moved to Whistler in 1992.
[61]
Ms. Roth was an elementary school teacher for 17 years until 2004
when Mathew was born.
[62]
Ms. Roth testified about her life with the plaintiff before the
Accident. She described him as one of the most well-rounded, intelligent
people she has met. He had an enormous amount of energy, stamina and
tenacity. He thrived on working long hours and never missed a day of work due
to illness. He never once complained of a headache.
[63]
Although the plaintiff worked long hours, he was not motivated to do so
by money. Rather, his motivation was the challenge associated with being a
doctor and an investor in real estate.
[64]
The plaintiff slept no more than 6 to 7 hours per night and worked an
average of 60 to 70 hours per week. He worked even longer hours during the
busy winter months. There was no change in the plaintiffs hours of work after
the birth of Matthew in 2004. During the summer months, when the WHCC was less
busy, the plaintiff spent more time planning, designing and renovating his
various rental property projects.
[65]
Prior to the Accident the plaintiff was strong and in very good health
both physically and emotionally. He did not wear eyeglasses. Although he had
some lower back pain from a car accident in the late 1980s, it never curtailed
his activities. The carpal tunnel syndrome caused by a car accident in January 2004
did not seem to affect the plaintiffs abilities and had fully resolved prior
to the Accident. In particular, the plaintiff was unaffected by it during the
major renovation to the Dunbar property in 2006 on which he worked many hours.
[66]
The plaintiffs productivity was very good. When he set out to do
something, it was done effectively and efficiently. He did everything to the
best of his ability and was hard on himself when he fell below this standard or
made a mistake. Ms. Roth denied that she perceived the plaintiff to be
someone with an obsessive personality. Rather, he was driven and liked to
get things done efficiently and right. He set a high standard for himself.
[67]
The plaintiff was extremely curious and was interested in detail. He
strived to learn something new every day. He had amazing insight and was able
to accurately and quickly assess the people around him.
[68]
The plaintiff had an incredible memory, particularly for numbers. He
never used a calendar or organizer, as he was able to keep everything he needed
in his head. He was the main educator of their investment group. He condensed
a complex investment strategy into easily understood language for his fellow
investors.
[69]
Ms. Roth testified that the plaintiff was the brains behind their
real estate strategies and investments. He found the investment opportunities,
did the financial due diligence, arranged and structured the financing, did the
designs and general contracting and was heavily involved in much of the actual
construction work.
[70]
Beginning with the acquisition of their West 7th Avenue
property in Vancouver in 2001, the plaintiff developed what became a good
rapport with various construction sub-contractors in Vancouver. This
relationship was strengthened by the renovations of their subsequently-acquired
properties on Queens Avenue, Connaught Avenue and Dunbar Street. In Ms. Roths
words, we were really getting on a roll building relationships with
construction trades people who had knowledge of designs, ideas and
specifications.
[71]
At the time of the Accident, the plaintiff and Ms. Roth had planned
to acquire new properties for renovation and rental at a rate of approximately one
per year.
[72]
Prior to the Accident the plaintiff liked entertaining and was a very
good host.
[73]
The plaintiff approached being a father as he did everything else —
fully committed. He was anxious to teach Matthew checkers and chess and to
involve him in his construction projects.
[74]
On the day of the Accident, the plaintiff returned home from WHCC at
lunch time. He did not greet Ms. Roth or Matthew but rather went straight
to the couch to lie down. This was very odd behaviour. Ms. Roth
testified that he seemed distant and vague which was also out of character for
the plaintiff. He did not mention that he had been in an accident.
Approximately 45 minutes later, the plaintiff uncharacteristically left the
house without any communication with Ms. Roth or Matthew. He returned
home later that afternoon and again went straight to the couch to lie down
without saying anything. He refused to eat dinner, complaining of nausea.
[75]
After dinner, Ms. Roth checked on the plaintiff. He said he had
been in an accident but provided few details. His speech was subdued and
without flow. He said he was tired.
[76]
Ms. Roth immediately took the plaintiff to the WHCC where Dr. Rempel
diagnosed a concussion and advised him to cancel his shifts. Ms. Roth had
to arrange for others to cover his shifts because the plaintiff was unable to
do so.
[77]
Ms. Roth helped the plaintiff to complete forms and questionnaires
relating to the Accident for insurance purposes but felt that what the
plaintiff was telling her to write was what he thought had happened rather than
what he actually remembered happening. She has yet to receive a straight
answer from the plaintiff regarding the details of the Accident.
[78]
In the week following the Accident, the plaintiffs condition did not
improve. He slept approximately 13 hours at night and napped during the day.
He complained of violent nightmares, headaches, nausea and dizziness. He was
agitated, moody and irritable. He mixed up simple words. He was forgetful and
withdrawn.
[79]
The plaintiff no longer interacted with Matthew the way he had prior to
the Accident.
[80]
During a meeting with an ICBC adjuster, the plaintiff lost his composure
and began to cry, which was very unusual behaviour for him.
[81]
In the months and years that followed, the plaintiffs symptoms
continued. He did not seem to have any insight into his condition. He refused
to recognize his limitations and continually pushed himself beyond his
capabilities resulting in his symptoms flaring up and him hitting the wall and
crashing. He was irritable and unkind to Ms. Roth. Living with him became
unbearable. Their relationship deteriorated to the point where Ms. Roth
was considering bringing it to an end.
[82]
In 2010, a few of the plaintiff and Ms. Roths close friends met to
celebrate the plaintiffs 50th birthday. This event proved to be a
turning point. Ms. Roth testified that their friends speeches about and
accolades for the plaintiff made her realize that she had to do more to help
the plaintiff.
[83]
Ms. Roth credits Ms. Nelson with the significant changes she
has since seen in the plaintiff. He now seems to understand his condition and
is better able to manage it using the strategies Ms. Nelson has provided.
He still cannot function for a full day and needs constant rest. However, he is
able to function cognitively for one to two hours and physically for approximately
30 minutes if he rests between activities. However, his former drive and
stamina are still not present.
[84]
The plaintiffs symptoms are minimized and he tends to feel better if he
maintains a routine, manages his energy output, does not exceed his limitations
and rests. If he does not, his symptoms return. He is slowly learning to
cope.
[85]
Changes in routine are difficult for the plaintiff. He becomes anxious
and his symptoms of irritability and fatigue tend to flare up.
[86]
Despite the improvements Ms. Roth has seen in the plaintiff, he
continues to be easily distracted and forgetful. He mixes up words when
communicating, repeats himself and finds it difficult to concentrate, all of
which results in him becoming increasingly agitated, frustrated and exhausted.
He often becomes emotional, has difficulty following a line of thought and goes
off on tangents.
[87]
The plaintiff is very inefficient at paperwork and financial matters. He
wastes time and uses it illogically. He has trouble multi-tasking and
initiating tasks or activities.
[88]
The plaintiff remains involved in the maintenance and management of the
rental properties, but to a much lesser degree than he did prior to the
Accident. He does whatever he can within his limitations.
[89]
The plaintiff is devastated that he is no longer able to work as an
emergency room physician. His attempts to return to work doing surgical
assists and at the walk-in clinic exhausted him. His symptoms of headaches,
irritability, moodiness and inability to communicate flared up such that it
would take him several days to recover from each shift.
[90]
The plaintiff is shattered by the knowledge that his children are
growing up with a father who has no role or reputation in their community.
[91]
The plaintiff and Ms. Roths social life has changed substantially
since the Accident. The plaintiff no longer engages with people as smoothly as
he did prior to the Accident. He is often inappropriate in his interactions and
does not filter out what not to say. Socializing has become stressful for Ms. Roth.
It is kept to a minimum as a consequence. Vacations are stressful and
difficult due to the number of decisions that need to be made and the disruption
to plaintiffs routine.
[92]
In Ms. Roths view, the birth of their twins in 2008 was a blessing
that has given the plaintiff reason to carry on.
[93]
Ms. Roth worries about the safety of her children when they are
under the sole care of the plaintiff. She gave several examples of lapses in
judgment on the plaintiffs part that resulted in a child becoming lost or
injured. Ms. Roth was feeling incredibly burdened by having to assume the
plaintiffs previous role in the family as well as her own. In May 2010,
they hired a nanny, Ms. Flory Galigao, to assist. For the first few
months she worked part time. Since September 2010 she has been a full-time
live-in nanny. She does many of the household chores and assists the plaintiff
when he has care of the children. In Ms. Roths words, Ms. Galigao helps
us function.
[94]
As they get older, the children are beginning to help out with small
chores around the house.
[95]
Ms. Roth expects that she will continue to require a nanny at least
until the children are in school. The nanny is paid $16,800 per year net of
her room and board.
[96]
The plaintiff continues to take Advil, Tylenol, Ativan and Trazodone to
alleviate his symptoms. He is not presently taking physiotherapy or massage
therapy. He discontinued psychological counselling for approximately 15 months
and has not returned to speech therapy despite a recommendation by Ms. Linde,
a registered speech pathologist, that he do so.
[97]
Ms. Roth testified that, but for the Accident, the plaintiff would
likely have continued to work his previous work hours at WHCC and to manage
their real estate investments. Ms. Roth would have been the primary
caregiver for the children.
[98]
I found Ms. Roth to be a sincere, straightforward witness who gave
her evidence in an open, genuine, heartfelt and credible fashion. I accept
her evidence in its entirety.
(3)
Dr. Paul Walden
[99]
Dr. Walden and the plaintiff worked as colleagues at WHCC for many
years.
[100] Dr. Walden
testified that the plaintiff was the hardest working physician at WHCC, working
18 shifts per month, several more than any other physician. The plaintiff
staunchly protected his shifts and refused to give them up for other doctors.
[101] Dr. Walden
described the plaintiff as an excellent emergency room physician. He was well
liked and respected. The plaintiff seemed to love the fast-paced work and
tolerated it well. Unlike other physicians at WHCC who would transfer patients
to other doctors at the end of a shift, if the plaintiff started with a
patient, he finished the job even though his shift may have ended.
[102] Dr. Walden
testified that, as far as he was aware, the plaintiff had no physical or health
issues prior to the Accident and certainly nothing that seemed to slow the
plaintiff down. The plaintiff never mentioned any issue regarding numbness in
his hands.
[103] He
described the plaintiff as a gracious host at social occasions, someone who
was engaging, was full of laughter and obviously enjoyed life.
[104] Dr. Walden
saw the plaintiff on December 4, 2006 at the WHCC intubation course shortly
after the Accident. Although the plaintiff did not seem confused, he was
definitely quieter and less engaged than usual.
[105] Dr. Walden
testified that the plaintiff is no longer the person he was prior to the
Accident. For several years after the Accident the plaintiff insisted that his
injury would resolve and that he would soon be back at work. However, it was
obvious to Dr. Walden that the plaintiff had changed. In Dr. Waldens
words, something was gone. The plaintiff looked pale and dishevelled. He
was quiet. His eyes were sullen and had a vacant look. It was as though his
energy had been drained from him. There was no longer any laughter. Dr. Walden
thought that the plaintiff was depressed.
(4)
Anne Townley
[106] Ms. Townley
is a nurse who worked at WHCC from 1992 to 2006. She testified that it was
usually a busy, congested and noisy environment.
[107] She
testified that the plaintiff was passionate about and proud of his work. He
worked more and longer shifts than any of the other physicians at WHCC. If not
on call, the plaintiff readily attended the WHCC if an additional doctor was
needed. He always seemed to have a high energy level and was willing to work in
the middle of the night if needed. He was very reliable.
[108] She
testified that the plaintiff excelled at assessing injuries, suturing and
fixing broken bones. He was always compassionate and was never angry with
patients or WHCC staff, with whom he had a very good rapport.
[109] Ms. Townley
testified that, as far as she was aware, the plaintiff had no health or
physical issues prior to the Accident.
[110] She
recalls that, on the day of the Accident, she was at work at WHCC and received
a telephone call from the plaintiff. He sounded confused and vague. He was
not himself. She suggested that he come to the clinic for an assessment. He
did not arrive until after her shift had ended and she had left.
[111] The plaintiff
has not worked at the WHCC since the Accident.
[112] Ms. Townley
has seen and chatted with the plaintiff on occasion since the Accident. He would
tell her that he was going to be returning to the WHCC soon, but he never did.
On each occasion he seemed vague, confused and lacked energy. He shuffled
rather than walked. His pre-Accident personality was gone. He was not his
former self.
(5)
Dr. Douglas Carrie
[113] Dr. Carrie
is an anesthesiologist who works in the Vancouver area.
[114] He first
met the plaintiff in 1991 when they worked together at a hospital in Inuvik.
[115] When Dr. Carrie
returned to Vancouver in 1992 for his anesthesiology residency at the
University of British Columbia, he began to see the plaintiff socially and they
and their respective spouses became good friends. The group went on several vacations
together.
[116] Dr. Carrie
described the plaintiff as a confident individual who was extremely adept
socially prior to the Accident. The plaintiff seemed to understand people and
their personalities. He was a natural host.
[117] The
plaintiff was very enthusiastic about his work at the WHCC. He seemed to enjoy
the rapid-fire nature of emergency room work. He was very astute in his
comments about his patients. He did not seem to slow down after his first
child was born in 2004.
[118] The
plaintiff took on ambitious house renovation projects that seemed to turn out
well for him.
[119]
Dr. Carrie described the plaintiff as an enthusiastic skier
and member of Whistlers Ski Patrol where his role was Doctor on Mountain, a
role he discontinued in 2004 after his son was born.
[120] Dr. Carrie
is aware that the plaintiff had chronic lumbar back pain prior to the Accident
that bothered him from time to time but he observed that it did not seem to
interfere with his ability to function.
[121] The
plaintiff was the major advocate of and driving force behind the formation of
an investment club comprising the plaintiff, Dr. Carrie, their respective
spouses and two other couples. The plaintiff was always extremely well
prepared for his presentations at their meetings and was a skillful
interrogator of others who made presentations.
[122] The
plaintiff has not been the same since the Accident. He seems to be off. He
fatigues easily and withdraws from conversations.
[123] The
plaintiff became less interested in the investment club. He appeared
indecisive and less capable of handling its day-to-day management and
accounting. He was not as skillful at critiquing the presentations of others.
His presentations lost their wow factor and became rather dull and uninspired.
[124] The
plaintiff is less enthusiastic about life and less capable socially. He
misreads situations that confront him. He is much less confident that he used
to be. His concentration seems to fade in and out.
[125] The
plaintiffs energy level is reduced. The plaintiff has declined Dr. Carries
invitations to go skiing and golfing.
[126] The
plaintiff continues to be a skilled host but his guests are careful not to stay
too long.
[127] Dr. Carrie
testified that he has not noticed any improvement in the plaintiff in the last
several years, and that the plaintiff has not returned to normal.
(6)
Kathryn Seely
[128] Ms. Seely
is Dr. Carries wife. Prior to the Accident she and her husband
frequently socialized and travelled with the plaintiff and Ms. Roth.
[129] Ms. Seely
described the plaintiff as an energetic, engaged, gregarious and jovial person
who loved life and being around people prior to the Accident. He was
interested in and supportive of Ms. Seely in her career as a lawyer and
later as the advocate for the Canadian Cancer Society.
[130] As a host,
the plaintiff was energetic, generous and full of spirit. He was the educator
within their investment club, and his presentations always surpassed those of
the other members.
[131] Ms. Seely
never observed the plaintiff having any physical or cognitive difficulties
prior to the Accident.
[132] She saw
the plaintiff approximately one week after the Accident. She described him as
a different person. He was tired, grimaced with pain, spoke slowly and
appeared confused.
[133] In the months
and years that followed, she noticed that the plaintiff took longer to do
things and was slow and deliberate in his communication, as though he was
trying not to lose his train of thought. He repeated himself. He fatigued
easily and needed quiet time on his own. He was forgetful and unable to focus
on too many stimuli at once. He was impatient.
[134] Ms. Seely
stated that those observations of the plaintiff continue to the present,
although Ms. Seely does not socialize with the plaintiff as much as she used
to.
(7)
Dr. Thomas Jacobs
[135] Dr. Jacobs
and the plaintiff met in medical school in 1984. They became good friends.
[136] Dr. Jacobs
testified that, prior to the Accident, the plaintiff was jovial and full of
energy. He loved the excitement and unknowns of his work as an emergency room
physician. He prided himself on this memory, which Dr. Jacobs described
as unbelievable. As far as Dr. Jacobs knew, the plaintiff had no
physical or cognitive impairments.
[137] Prior to
the Accident, the plaintiff and Dr. Jacobs occasionally went bike riding,
skiing and on vacations together. They also played hockey and golf together.
[138] In early
2006, Dr. Jacobs learned of an opportunity to purchase the house on Dunbar
Street as a real estate investment. He asked the plaintiff whether he would
like to participate. In May 2006, the property was purchased by Dr. Jacobs,
the plaintiff and their respective wives in equal shares. Thereafter, the
house was completely gutted and renovated at a cost of approximately $130,000.
The plaintiff designed the renovation based on the renovation of his West 7th
Avenue property. Dr. Jacobs and the plaintiff performed most of the physical
work for the demolition. The plaintiff never complained of or appeared to have
any problems with his hands. Dr. Jacobs and the plaintiff handled the bookkeeping
and accounting for the investment.
[139] Dr. Jacobs
testified that the plaintiff is significantly different from how he was prior
to the Accident. He is subdued, less jovial and does not seem to want to talk to
people. He has much less energy. His memory is poor, particularly with
respect to details. They have not participated in any sports together.
[140] Dr. Jacobs
has had to assume full responsibility for the bookkeeping and accounting in
connection with the Dunbar property.
(8)
Charles (Ross) Genge
[141] Mr. Genge
is a retired R.C.M.P. officer and is currently an investigator for the Royal
Bank of Canada. Mr. Genge met the plaintiff while stationed at the
Whistler R.C.M.P. detachment. He, the plaintiff and their respective wives
became close friends. They were the driving forces behind the formation of the
Conundrum investment club.
[142] Mr. Genge
testified that, prior to the Accident, the plaintiff was a fun, positive and
engaging man who was a loyal friend. He had a high level of energy and always
seemed to be involved in many different activities at once, worked long hours
and was involved in real estate and stock investments as well as sporting
activities. He always got things done. He did not seem to have much idle time
and never expressed to Mr. Genge any desire to scale back his activities.
[143] The
plaintiffs acumen for numbers was extraordinary. He made detailed
presentations at the investment club with qualitative and quantitative analyses
of investments and provided the template for the clubs investment strategies.
[144] Mr. Genge
observed the plaintiff in the WHCC both on and off duty as a police officer.
He described the plaintiff as a very professional, thorough and engaged
physician who handled difficult medical situations very well. It was obvious
to Mr. Genge that the plaintiff loved and was passionate about his job.
There was never a hint that the plaintiff was disgruntled or had a desire to
retire.
[145] The
plaintiffs pre-Accident health was good. Mr. Genge never observed
anything that suggested to him that the plaintiff was suffering from any
physical or cognitive problems.
[146] Mr. Genge
saw the plaintiff three or four months after the Accident. In Mr. Genges
words: he was a changed man
completely different than the man I had known.
He was quiet, disengaged, detached and withdrawn. He was no longer gregarious.
[147] Since
then, Mr. Genge has continued to see the plaintiff approximately four to
six times per year. The plaintiff has not improved. He complains of fatigue
and withdraws from social occasions to lie down, which he had never done in Mr. Genges
presence prior to the Accident. He is much less proficient with numbers and
seems to lose his train of thought. He is forgetful and unable to engage in a
cohesive, thorough discussion. He goes off on tangents. He is much less
focused and precise with things he is doing than he was prior to the Accident.
[148] In Mr. Genges
words, when he and his wife are together with the plaintiff and Ms. Roth,
the plaintiff is fourth in the room whereas prior to the Accident he was the
primary person in the room.
[149] In 2013,
it took the plaintiff many months to deal with the dissolution of the investment
club despite knowing that Mr. Genge needed to receive the payout of his
investment for his sons education.
(9)
Dr. Ron Stanley
[150] Dr. Stanley
received his medical degree in 1982 and has been working at the WHCC since
1987, formerly as Chief of Staff. He interviewed and hired the plaintiff in
1992 as an emergency room physician. The position requires someone who is not
only qualified medically but who is physically and mentally sharp and can think
quickly on his or her feet.
[151] In
Dr. Stanleys view, the plaintiff proved to be an outstanding acquisition
for the WHCC. His attendance record was excellent. He worked more shifts than
any other doctor at WHCC. He was the first person that Dr. Stanley called
in if the emergency room needed help. He was reliable, energetic and knew the
procedures and his skills. His suturing skills were among if not the best Dr. Stanley
had seen. He got along well with his patients and the WHCC staff. He was a
regular and active participant in the professional development programs held at
WHCC. His opinions were well regarded by his colleagues.
[152] Prior to
the Accident, Dr. Stanley considered that the plaintiff was in excellent
health. He did not believe that the plaintiff had any physical or mental
impairment. On cross-examination, Dr. Stanley recalled that the plaintiff
had complained of numbness and tingling in his right hand. The plaintiff was
referred to a neurologist who diagnosed carpal tunnel syndrome.
[153] There is
no mandatory retirement age at WHCC. Dr. Stanley never had any discussion
with the plaintiff regarding his retiring or moving away from Whistler.
[154] Socially,
the plaintiff was outgoing and energetic. He was excellent both as a host and as
a guest at social occasions and had a natural ability to converse. He was a
great guy to know and work with. He was one of the smartest people that Dr. Stanley
associated with. He was also physically active.
[155] Dr. Stanley
recalls that he treated the plaintiff in January 2004 after he had been
involved in a car accident. Although the plaintiff said he had hit his head, Dr. Stanley
made no diagnosis of a concussion.
[156] Dr. Stanley
also treated the plaintiff on December 7, 2006, the day after the
Accident. The plaintiff presented as pale and in pain. He complained of
headaches, a low energy level, insomnia, confusion, nausea and neck and upper
back pain. Dr. Stanley felt he was getting worse after the Accident
rather than better. He diagnosed a concussion and referred him for an
immediate CT scan at Lions Gate Hospital in North Vancouver to determine
whether the plaintiff was suffering from anything that could be treated surgically.
The CT scan was negative.
[157] In the
months and years that followed, Dr. Stanley has seen the plaintiff only
occasionally, approximately twice per year. He described the plaintiff as totally
different. He is not as energetic. He seems disinterested and without
focus. He never responded to several invitations to attend functions,
including professional journal club discussions. He tends to ramble in his
conversations and change the topic without getting to the point. Dr. Stanley
now finds that he becomes frustrated when speaking to the plaintiff.
[158] The
plaintiff has never returned to work at WHCC. Each year, the plaintiffs
privileges at WHCC have been renewed because it was felt that he might be able
to return in the future, albeit at least initially in a much reduced and
shadowed role. The current consensus is that he will never return to WHCC.
(10)
Dr. Willem Vroom
[159] Dr. Vroom
is the senior deputy registrar at the College of Physicians and Surgeons of
British Columbia. He sent a letter to the plaintiff in October 2008
intended to notify the plaintiff that the same patient had been prescribed a
controlled drug by more than five physicians within a 30-day period.
(11)
Dr. Monica Rempel
[160] Dr. Rempel
is a family and emergency room physician who received her medical degree from
the University of British Columbia in 1994. Since 1996, she has worked
exclusively as an emergency room physician, initially at both Squamish Hospital
and WHCC and now exclusively at WHCC.
[161] Dr. Rempel
worked with the plaintiff at WHCC prior to the Accident. She described him as
an extremely hardworking doctor who never missed work, indeed, he was
aggressive about wanting to work. He was well respected at WHCC and in the
community. He received more thank-you cards, flowers and chocolates from
patients than the rest of the WHCC physicians combined. The plaintiff loved
his work at WHCC and usually had a smile on his face.
[162] Dr. Rempel
did not observe any physical impairment on the part of the plaintiff prior to
the Accident. He never spoke about retirement.
[163] Dr. Rempel
was the plaintiffs treating physician during the evening of December 4,
2006, when he and Ms. Roth attended the WHCC. He did not look well. He
was confused about the Accident. During her examination, she checked his limbs
for numbness or weakness. The plaintiff had no complaints in this regard. She
diagnosed that the plaintiff had suffered a concussion in the Accident. She
advised him to rest at home and to take one week off from work.
[164] Dr. Rempel
has only seen the plaintiff occasionally since the Accident. On those
occasions he has appeared dishevelled, sullen and low on energy. His voice had
an uncharacteristically flat tone.
[165] For
several years after the Accident, the plaintiff continued to insist that he
would return to WHCC. His shifts continued to be scheduled, with other doctors
filling those shifts. Ultimately, his shifts were no longer scheduled, however
his WHCC privileges continue to be renewed annually because the WHCC emergency
doctors believe that removing them would be detrimental to the plaintiffs
recovery.
(12)
Joseph LeBlanc
[166] Mr. LeBlanc
is a caretaker and handyman who began working for the plaintiff in 2005 at the
Connaught Avenue property. He has continued to do renovations and odd jobs for
the plaintiff on his various properties ever since. He lives in one of the
units at the plaintiffs Connaught Avenue property, working as the resident
caretaker in exchange for discounted rent.
[167] Mr. LeBlanc
testified that, prior to the Accident, the plaintiff was an outgoing, friendly,
positive and happy person who seemed to thrive when amongst people. The
plaintiff knew what he wanted with respect to his properties and got things
done. He was not one to second guess. He seemed to have limitless energy,
doing many jobs well simultaneously. It seemed to Mr. LeBlanc as though
there was nothing the plaintiff was incapable of doing. He never complained to
Mr. LeBlanc of any physical issues or disability.
[168] Mr. LeBlanc
testified that the plaintiff has not been the same since the Accident. He
seems unhappy, withdrawn and not as comfortable with people. He is indecisive,
struggles and takes much longer to get things done than he did before. He is now
frustrating to work with and to be around. He forgets to buy supplies that Mr. LeBlanc
requests. He makes mistakes that he would never have made prior to the
Accident.
(13)
Simon Learmouth
[169] Mr. Learmouth
has been a tenant in the plaintiffs Whistler condominium since 2000. Before
the Accident he saw the plaintiff approximately once per year at the
condominium as well as occasionally around the Whistler community. He described
the plaintiff as an outgoing person with high energy and a good sense of
humour. The plaintiff was punctual and thorough with any repairs to the
condominium.
[170] When Mr. Learmouth
first saw the plaintiff after the Accident, the plaintiff seemed to be stunned,
subdued, vague, lethargic and slow. He repeated himself. He was not the
outgoing energetic person he had been prior to the Accident.
[171] Mr. Learmouth
gave examples of attempts by the plaintiff to perform modest repairs at the
condominium after the Accident which demonstrated that the plaintiff was
confused and took much more than a reasonable time to complete the tasks.
(14)
George Martin
[172] Mr. Martin
is a certified general accountant. He has been the plaintiffs accountant
since 1999. At that time, the plaintiff was five years behind in the filing of
his income tax returns. Mr. Martin prepared and filed them.
[173] Since
1999, the plaintiff has typically filed his tax returns in batches, once every
two to three years. Although he does not file his tax returns on time, he does
submit his income tax payments on time.
[174] Mr. Martin
testified that, prior to the Accident, the plaintiff had an exceptional command
of the details of his various personal and investment transactions. Mr. Martin
saw this as a unique trait among his clients, many of whom are physicians. In Mr. Martins
words, the plaintiffs ability to not only recall but also to manage details by
knowing where they fit, years after the fact, was amazing. He described the
plaintiffs energy during their meetings as relentless. He was as mentally
sharp at the end of a three-hour meeting as he was at the beginning of it. He
never seemed to get bogged down in a problem. His ability to assimilate
information and make decisions was impressive.
[175] The
plaintiff incorporated his medical practice in 1999 and various of his assets
were transferred into the Professional Corporation by way of a section 85
rollover which allowed the plaintiff to access the equity in certain of his
real estate holdings and investment portfolio, tax free. He used that equity
to acquire additional real estate investments.
[176] The
plaintiff created predictive models for his stock and real estate investment
strategies that Mr. Martin found to be remarkably accurate.
[177] For the
period 2000 to 2010, the plaintiffs personal real estate investments had net
losses during five years and net gains for the other five years.
[178] Mr. Martin
testified that, after the Accident, he observed that, although the plaintiff
continued to have considerable ability to recall the details of transactions,
he no longer seemed to possess the ability to manage those details. He cannot
recall where particular expenses fit. He becomes jumbled in his communication
and frustrated with his inabilities in this regard. He has difficulty making
decisions and becomes paralyzed. He becomes fatigued and unfocused during
their meetings.
[179] On
cross-examination, Mr. Martin confirmed that the real estate investments
owned by the Professional Corporation have had losses for tax purposes each
year. However, Mr. Martin attributes some of the loss to depreciation
expense.
(15)
Dr. Kevin Bush
[180] Dr. Bush
is a plastic surgeon at various Vancouver hospitals. In addition, since 1999
he has run a clinic in Whistler where he receives patient referrals from WHCC.
Prior to the Accident, Dr. Bush received several referrals from the
plaintiff, whom he described as a high energy, bubbly individual. The
plaintiff never complained to Dr. Wells of any personal health issues or
concerns.
[181] After the
Accident the plaintiff changed. He lost his confidence and outgoing
personality.
[182] On one
occasion in 2007, the plaintiff assisted Dr. Bush during a surgical
procedure at the Squamish Hospital. Dr. Bush found that the plaintiffs
coordination and quality of work were below expectations. The plaintiff had a
tremor in his hands and had difficulty grasping the suturing needle. The
plaintiffs short-term memory was poor. Dr. Bush had to repeat
instructions several times. The surgery was successful but it took the
plaintiff much longer to perform tasks assigned to him than it should have.
[183] Although
the plaintiff had only been scheduled for one surgical assist, Dr. Bush
gave him the opportunity to continue with other surgeries that same day. The
plaintiff advised that he was unable to continue due to a headache and fatigue.
[184] Dr. Bush
is concerned about using the plaintiff for surgical assists in the future because
of the quality and speed of the plaintiffs suturing and his poor memory.
[185] On cross-examination,
Dr. Bush agreed that numbness and/or paresthesia in the plaintiffs hands
could explain the motor skill issues Dr. Bush witnessed.
(16)
Dr. Neil Wells
[186] Dr. Wells
is a plastic surgeon who works with Dr. Bush at their Whistler clinic. He
also practices at St. Pauls Hospital and Vancouver General Hospital, the
referral centers for WHCC.
[187] Dr. Wells
knew the plaintiff prior to the Accident through his work in Whistler and
through various patient referrals he had received from him. He described the
plaintiff as one of the more enthusiastic and energetic emergency room doctors
he has met. He also described the plaintiffs referrals as consistently
accurate and very good.
[188] The
plaintiff never complained to Dr. Wells of having any personal health
issues or concerns.
[189] After the
Accident the plaintiff performed one surgical assist for Dr. Wells at
Squamish General Hospital. Dr. Wells described the plaintiffs skills as poor,
clumsy and slow. He had expected a much higher level of competence from an
emergency-room doctor. At the end of the procedure, the plaintiff reported
being fatigued.
[190] Dr. Wells
testified that using the plaintiff for surgical assists in the future would not
be advantageous to Dr. Wells although, if asked, he would be prepared to
use the plaintiff as part of his transition back to work as an emergency room
physician.
[191] Dr. Wells
agreed that numbness and/or paresthesia in the plaintiffs hands could explain
the plaintiffs clumsiness in the operating room.
(17)
Dr. Karin Kausky
[192] Dr. Kausky
is a family and sports-medicine physician. She obtained her Doctor of Medicine
degree from the University of Toronto in 1988, completed a family practice
residency at the University of Western Ontario in 1990, obtained her Certificate
of the College of Family Physicians designation from the College of Family
Physicians of Canada in 1990 and obtained a Diploma in Sports Medicine from the
Canadian Association of Sports Medicine in 2007. She has been practicing
medicine in Whistler since 1993. She is heavily involved with Alpine Canada
and the Canadian National Ski Cross Team and related entities. One of her
specialties is concussion injuries.
[193] Dr. Kausky
was qualified as an expert in family and sports medicine with additional
expertise in the diagnosis and treatment of concussions.
[194] Dr. Kausky
has known the plaintiff since 1993 when she began practising in Whistler. They
were colleagues at WHCC. Although they did not often work on the same shift,
they frequently did rounds together. The Whistler medical community is small
and she knew the plaintiff well.
[195] She
described the plaintiff as a very enthusiastic participant in the WHCC with an
excellent reputation in the community for giving good medical care.
[196] Dr. Kausky
became the plaintiffs family and treating physician after the Accident. Her
first consult with him was on December 27, 2006. She noted that he was
easily distracted and hard to keep on topic. He seemed to have a decreased
ability to process information. His voice inflection had flattened.
[197]
Dr. Kauskys opinion is that the plaintiff suffered a concussion
during the Accident. She bases her opinion on the following definition of a concussion:
an alteration of brain function
following either a direct blow to the head or a transmitted force to the head.
It is a metabolic injury to the brain rather than a structural or anatomic
injury – an injury to how the brain uses or metabolises energy.
This definition if found in P. McCrory et al, Consensus
Statement on the Management of Sports Concussion: The 4th
International Conference on Concussion in Sport Held in Zurich, November 2012
(2013) 47 Br. J. Sports Med. 250. Dr. Kausky described this as the
most widely accepted consensus statement in North America.
[198]
Dr. Kausky also testified with respect to the following, more
outdated definition of mild traumatic brain injury (MTBI) from J.
Carroll et al, Methodological issues and research recommendations for mild
traumatic brain injury: the WHO Collaborating Centre Task Force on Mild Traumatic
Brain Injury (February 2004) 43 Suppl. J. Rehabil. Med. 113 at 115:
MTBI is an acute brain injury
resulting from mechanical energy to the head from external physical forces.
Operational criteria for clinical identification include: (i) 1 or more of the
following: confusion or disorientation, loss of consciousness for 30 minutes or
less, post-traumatic amnesia for less than 24 hours, and/or other transient
neurological abnormalities such as focal signs, seizure, and intracranial
lesion not requiring surgery; and/or (ii) Glasgow Coma Scale score of 13-15
after 30 minutes post-injury or later upon presentation for healthcare.
[199] She
explained that this definition is inapplicable to the plaintiffs situation
because it is a reference to neuro-imaging, which looks for a different injury,
for example a bleed.
[200] Dr. Kausky
explained that a patients inability to process information, as opposed to an
inability to repeat learned information, is symptomatic of an alteration in
brain function. The plaintiff demonstrated such an inability.
[201] In Dr. Kauskys
opinion, the plaintiff continues to suffer from post-concussion syndrome with
accompanying symptoms such as a headache approximately 70% of the time, 1 to 2
migraine headaches per week, markedly decreased energy, a sleep disorder,
decreased memory, decreased concentration and capacity to cope with stressors,
an inability to multi-task, a balance disorder and vestibular dysfunction.
[202] Dr. Kausky
agreed on cross-examination that she was relying on the plaintiffs self-reporting
for much of her diagnosis but pointed out that the plaintiffs reports were
consistent with his objective symptoms.
[203] She
testified that the plaintiff tended to minimize his symptoms, resisted her
attempts to put limitations on his activities and wanted to return to work as
soon as possible. He did not react well to Dr. Kauskys recommendation
that he rest both mentally and physically.
[204] Despite Dr. Kausky
discouraging the plaintiff from returning to work, he did some surgical assists
and some shifts at a walk-in clinic. Neither of those attempts to return to
work was successful, as Dr. Kausky had predicted.
[205] Dr. Kausky
has told the plaintiff that he is not capable of returning to work as a
physician due to his cognitive deficits, his inability to multi-task, his sleep
disorder and his persistent headaches. It is her opinion that the plaintiff is
unlikely to succeed in any occupation requiring higher cognitive function and
multi-tasking in an environment with multiple stimuli.
[206] Although
she has seen some improvement in the plaintiffs energy, memory and sleep
disorder, it is Dr. Kauskys opinion that the plaintiffs recovery has
plateaued. Any future improvement will likely be small and slow. He will
likely require ongoing manual therapy (physiotherapy, massage therapy,
chiropractic therapy) and a personal trainer. He may also require occupational
therapy, counseling and the assistance of a neuropsychologist.
[207] Dr. Kausky
pointed out that the plaintiffs symptoms will vary from day-to-day. She agreed
on cross-examination that he would likely be able to perform activities such as
yard work, carrying a child and jet skiing but opined that his ability to
perform those activities would be intermittent rather than sustained.
[208] Dr. Kausky
was an impressive witness who testified in a straightforward and credible
manner. She handled herself extremely well on cross-examination. I have
no hesitation accepting her evidence.
(18)
Laurie Nelson
[209] Ms. Nelson
has been an occupational therapist since 1982. She specializes in assisting in
the rehabilitation of brain-injured people.
[210] Ms. Nelson
met the plaintiff prior to the Accident when her son attended WHCC with a
complicated fracture and when she needed emergency attention for a broken
tailbone. She described the plaintiff as calm, thorough and supportive
throughout. He provided excellent medical care to her and to her son.
[211] After the
Accident, Ms. Nelson was retained to provide rehabilitation advice and
assistance to the plaintiff. She visited the plaintiff at his Whistler home in
late 2010 and early 2011. He demonstrated fatigue, pain, problems with
thinking, poor decision-making and difficulty processing information. He had
difficulty bringing his thoughts to a conclusion without direction. He seemed
to be unable to initiate thoughts or actions on his own. The plaintiff
demonstrated limited awareness of and insight into his cognitive problems.
[212] Ms. Nelson
recommended that the plaintiff see a psychologist, that Ms. Roth obtain
education on traumatic brain injuries in order to better manage the plaintiff
and that the plaintiff begin a gym exercise program with the assistance of a
rehabilitation assistant to increase his endurance and productivity.
[213] Initially,
the plaintiffs focus was solely on his return to work. He saw no need for
rehabilitation strategies or to limit his activities or pace. His reaction to Ms. Nelson
was that if she was unable to resolve his difficulties so he could return to
work, she was not of much value to him. He has subsequently developed better
insight into his problems and now calls on Ms. Nelson for assistance.
[214] Ms. Nelson
developed various strategies and coping mechanisms to assist the plaintiff to
pace himself, prioritize his activities, become more productive and manage his
daily life activities.
[215] Ms. Nelson
continues to see the plaintiff approximately every three months. He is better
than he was in 2010, but continues to struggle with decision making and pacing
himself.
[216] Ms. Nelson
and a rehabilitation assistant, Tracey Fisher, created a gym program for the
plaintiff. The plaintiff worked in the gym with Ms. Fisher twice per week
and on his own once per week. Ms. Nelson observed that the plaintiff
consistently had difficulty pacing himself and seemed to overestimate his
abilities. She attempted to teach him to slow down and pace himself. The
plaintiff attended 96 gym sessions with Ms. Fisher but stopped them in June 2012.
Ms. Nelson plans to reinstitute the gym sessions when the plaintiff has
his life better under control.
[217] Ms. Nelson
was an impressive lay witness who gave her evidence in a credible, objective
and professional manner.
(19)
Shari Linde
[218] Ms. Linde
is a registered speech pathologist. She was qualified as an expert in speech
and language pathology and communication disorders.
[219] In December 2010,
Ms. Linde subjected the plaintiff to a battery of tests that are
recognized and widely used by professionals in her field. Her expert report is
dated December 27, 2010.
[220] Although some
of the tests were based upon normative data for people with ages well below
that of the plaintiff, others were standardized on a population that included
individuals of the plaintiffs age. All of the tests provided Ms. Linde
with a general indication of the plaintiffs communication abilities.
[221] Generally,
the plaintiffs performance on the tests was either below average or poor.
Ms. Linde noted that the plaintiff tended to work very quickly on the
tests and made some errors due to inattention to detail.
[222] The
plaintiff demonstrated difficulty with higher-level reasoning, providing
adequate detail when giving rationale for decisions, memory of verbal
information and verbal and written communication.
[223] Based upon
her 19 years of clinical experience (16 years at the time she tested the
plaintiff), the plaintiffs test results and Ms. Lindes observations of
him, Ms. Linde is of the opinion that the plaintiff has challenges with
communication, including difficulties remembering new information and
generating ideas verbally.
[224] Ms. Linde
recommends that the plaintiff participate in up to 50 hours of speech-language
treatment over his lifetime, the current rate for which is $125 per hour.
[225] Ms. Linde
was an impressive, objective and professional witness who did well during
intense cross-examination. I have no hesitation accepting her opinions
regarding the plaintiffs communication deficits.
(20)
Dr. Hugh Anton
[226] Dr. Anton
is a physiatrist with extensive experience in the evaluation and treatment of
patients with mild traumatic brain injuries. He was qualified without objection
as an expert in that field.
[227] Dr. Anton
provided the Court with four expert reports.
[228] In the
first, dated January 20, 2011, Dr. Anton opined that the plaintiff
suffered a MTBI (or cerebral concussion) in the Accident, as well as a possible
injury to his vestibular (balance) system. He also opined that the plaintiff
developed a post-concussive syndrome after the Accident secondary to his MTBI which
has contributed to his ongoing symptoms and associated activity limitations and
disability. In his opinion, it is probable that the plaintiffs ongoing
symptoms have arisen from the direct effects of his MTBI. Psychological
factors such as anxiety and depressed mood have complicated the plaintiffs
post-Accident situation. Dr. Anton recommended that the plaintiff:
(a) be
referred to a sleep disorder specialist to determine whether his sleep issues could
be treated medically;
(b) be
screened for anterior pituitary dysfunction;
(c) see
a neuropsychologist to better identify the severity and nature of any residual
cognitive impairments with particular regard to his previous work environment;
(d) try
stimulant medications to assist in his fatigue issues;
(e) obtain
psychological counselling;
(f)
see an occupational therapist with experience in MTBI; and
(g) work
with a kinesiologist to establish an exercise program to improve his tolerance
for activity.
[229] Dr. Anton
opined that the plaintiff would likely not be able to tolerate returning to
work as an emergency room physician because it is cognitively demanding and
requires functioning at a high level with a high degree of energy at a
sustained and consistent level.
[230] In his
second report dated January 28, 2011, Dr. Anton opined that the
plaintiff was not competitively employable in any type of work.
[231] Dr. Antons
third report is dated September 15, 2011. His opinion regarding the
plaintiff having suffered a MTBI during the Accident was unchanged. He opined
that the plaintiffs ongoing symptoms and cognitive problems were likely the
result of the interactive effects of several factors, including residual
impairments from his MTBI, the effect of psychological factors on cognitive
performance, headaches and fatigue. He opined that these contributing factors
likely arose from the direct and secondary effects of the plaintiffs
Accident-related injuries. He opined that there will be no further
neurological recovery from the plaintiffs brain injury, that he will not be
able to return to work as emergency room physician and that he will probably
not be able to consistently and durably participate in any other type of
medical practice in the future. At best, the plaintiff will be able to work
only part time with flexible hours.
[232] Dr. Antons
fourth report is dated April 22, 2013. His opinion regarding the
plaintiffs injuries and prognosis did not change. He opined that the most
likely explanation for the plaintiffs persisting symptoms is a complex
interaction of:
(a) the
plaintiff being one of the small group of people who experience permanent
sequelae after a MTBI;
(b) an
untreated psychological condition such as depression, post-traumatic stress
disorder or anxiety disorder; and
(c) another
medical condition such as sleep disorder (unlikely), the effects of pain on
cognitive function or an endocrine disorder.
[233] Dr. Anton
was an impressive witness who gave his evidence and expressed his opinions in a
clear, logical and exceedingly objective fashion. I accept his opinions
in full and unreservedly.
(21)
Dr. Philip Teal
[234] Dr. Teal
is an expert in the field of neurology and has extensive experience in the
treatment of patients with traumatic brain injuries. He was qualified without objection
as an expert in that field.
[235] Dr. Teal
was the plaintiffs treating neurologist from shortly after the Accident until
2010. During that period, he examined the plaintiff on seven occasions. At
the various consultations, the plaintiff reported that some of his symptoms (mood,
headaches, thinking and memory) were improving, although they were still not
normal. This was the case until the consultation on March 2, 2010, when the
plaintiff reported that he was doing poorly in many respects.
[236] Subsequently,
in 2010, Dr. Teal was retained to provide a medical-legal report for the
plaintiff. In that capacity, he prepared two reports, one dated March 3,
2011 and the second dated July 18, 2013.
[237] The
plaintiffs symptoms, as reported to Dr. Teal, were consistent over the
period of his clinical treatments and evaluations for medical-legal purposes,
although his symptoms did vary in frequency and intensity.
[238] Dr. Teals
opinion is that the plaintiff suffered a MTBI with chronic post-concussion
syndrome as a result of the Accident, which was the triggering event for all of
his symptoms. Dr. Teal bases his opinion on the symptom complexes the
plaintiff experienced shortly after the Accident and their persistence (with
some variability), his short period of absolute posttraumatic amnesia for the
events immediately following the Accident and his patchy memory of subsequent
events over the next hour. He examined those factors in the context of the temporal
relationship between the onset of his symptoms and the Accident, the
consistency of the symptoms and the plaintiffs pre-Accident history of no
headaches and of being able to function and multi-task at a very high level. Dr. Teal
made this diagnosis at the first consultation on March 7, 2007, and it has
not changed.
[239] Dr. Teal
testified that he does not make such diagnoses lightly. He reached his opinion
despite the fact that it is uncommon for individuals who sustain a MTBI to have
persistent post-concussion symptoms years after the traumatic event.
[240] In Dr. Teals
opinion, the plaintiff has persisting residual cognitive impairment as a result
of his MTBI and its sequelae. In addition, Dr. Teals view is that the
plaintiff sustained Benign Positional Vertigo and a Grade I or II
whiplash-associated disorder.
[241] The only
change in Dr. Teals opinion over time was with respect to the plaintiffs
ability to return to work as a physician. In his March 3, 2011, report Dr. Teal
expressed the opinion that the plaintiff would be able to resume work in the
future in some capacity as a physician but that any such future employment
would require a paced environment with controlled hours. However, in his July 18,
2013, report, Dr. Teal opined that the plaintiff is not able to resume
work as an emergency room physician due to the intensity of the work, the need
to multitask, the stress of the environment and the need for rapid judgment,
good concentration, attention and memory.
[242] Dr. Teal,
too, was an impressive witness whose opinions were thorough, given objectively
and of great assistance to the Court. I accept his opinions in their
entirety.
(22)
Dr. Ronald Remick
[243] Dr. Remick
is a clinical psychiatrist specializing in mood disorders. He was qualified
without objection as an expert in that field.
[244] Dr. Remick
had a consultation psychiatry practice at Whistler from 2001 to 2012. The
plaintiff referred patients to him from time to time. Accordingly, he knew the
plaintiff professionally prior to the Accident.
[245] Dr. Remick
described the plaintiffs personality prior to the Accident as bright,
inquisitive and energetic. He considered the plaintiff to be a very competent
emergency room physician.
[246] After the
accident Dr. Remick became the plaintiffs treating psychiatrist at the
request of Dr. Kausky. He saw the plaintiff as a patient for the first
time on April 22, 2008. He testified that the plaintiff was significantly
and dramatically different than he had been prior to the Accident. The
plaintiff was markedly anxious, disorganized, overwhelmed and frustrated. He seemed
to have lost confidence.
[247] Dr. Remicks
initial assessment of the plaintiff was that he had suffered a significant
brain injury, that his symptoms were consistent with post-concussive syndrome
and that his condition was neurological rather than psychiatric. He suggested
that the plaintiff try different psychiatric medications to see if they would
help his condition.
[248] Dr. Remick
continued to see the plaintiff clinically four or five times per year until November 22,
2010. Throughout, the plaintiff was extremely reluctant to take any medication.
The plaintiff reported that, due to side effects, he was not tolerating the
drugs Dr. Remick had recommended or prescribed for his anxiety and
depressive condition. Moreover, they provided little if any benefit for him. It
appears that the plaintiff did not follow many of Dr. Remicks
instructions or recommendations regarding use of prescription medicines. The
ones he did use were taken reluctantly. In this regard, Dr. Remick noted
that 15 to 20% of his patients are physicians. He has found that many of them
have difficulty accepting the role of patient and routinely insist on
controlling their own treatment. The plaintiffs conduct was not unusual.
[249] By November 2010,
Dr. Remick concluded that there had been no significant change in the
plaintiff and that none of the various medications for the plaintiffs anxiety
and depressive symptoms had worked. He suggested that the plaintiff undergo a psychological
assessment to determine whether his condition was psychological rather than
biological.
[250] The
constellation of the plaintiffs symptoms is such that, in Dr. Remicks
opinion, the plaintiff has a cognitive disorder (post-concussive syndrome) due
to the Accident as well as possible depressive and anxiety disorders. Dr. Remick
conceded that he has only a limited understanding of post-concussive syndrome
and would defer to the opinion of a neurologist.
(23)
Dr. Briar Sexton
[251] Dr. Sexton
is a neuro-ophthalmologist. She was qualified without objection in that field.
[252] The
plaintiff was referred to Dr. Sexton by his optometrist. She examined him
on December 20, 2011. She found that the plaintiff was suffering from
convergence insufficiency (the eyes involuntarily drift outward as an object
approaches the face). This is not a natural phenomenon. In Dr. Sextons
opinion, it was caused by trauma associated with the Accident.
[253] Although
sight tends to degrade with age, Dr. Sexton is of the opinion that the
plaintiffs near-sightedness was accelerated by the Accident.
[254] In Dr. Sextons
opinion, most patients who suffer from a concussion have vision problems.
(24)
Joseph Hohmann
[255] Mr. Hohmann
is a vocational rehabilitation consultant with over 35 years of experience in
that field. He was qualified without objection as an expert in the field of
vocational rehabilitation.
[256] Mr. Hohmann
was retained to provide an assessment of whether the plaintiff would be able to
actively return to the competitive labour force and, if so, at what skill
level.
[257] Mr. Hohmann
assessed the plaintiff on February 15, 2011 for approximately five hours.
He interviewed him, administered the General Aptitude Test Battery (GATB) related
to aptitude (but not dexterity) and reviewed the plaintiffs employment records
and various medical reports that were made available to him. All of those reports
were tendered in evidence in this proceeding with the exception of that of Dr. Riar,
a psychiatrist, dated September 20, 2010. Mr. Hohmanns expert
report is dated March 8, 2011.
[258] The
plaintiffs GATB scores as found by Mr. Hohmann placed the plaintiff in the
low and low-average range of cognitive ability.
[259] Based upon
the plaintiffs history, the length of time he has had his symptoms, his difficulties
during surgical assists and at the walk in clinic, as well as the opinions of
Drs. Anton, Remick and Wilkinson, Mr. Hohmann is of the opinion that the
plaintiff is not capable of working competitively. Any employment will be
limited to jobs that are of a non-complex, routine nature.
[260] In
particular, the plaintiff will have difficulty functioning as a physician at a
competitive level. He may be suited to employment in the clerical field,
assisting occupations in the support of health services or sales occupations,
where the employer accommodates the plaintiffs limitations. The plaintiff is
not suited to physically-oriented jobs.
(25)
Tracy Berry
[261] Ms. Berry
is an Occupational Therapist who was qualified without objection as an expert
in that field, including in future care and life planning assessment.
[262] Ms. Berry
assessed the plaintiff at his Whistler home on January 11, 2011. Her
first expert report is dated March 1, 2011. She assessed the plaintiff
again on November 11, 2011. Her second expert report is dated December 7,
2011.
[263] During her
first assessment of the plaintiff, Ms. Berry administered standardized
cognitive screening tests. He scored low on the sustained-attention and
divided-attention (multi-tasking) tasks but normal on the complex-sustained,
alternating-attention and selective-attention tasks. She testified that she
had difficulty keeping the plaintiff on topic. He was tangential, easily
distracted and appeared fatigued and overwhelmed. She was unable to complete
her testing of him.
[264] By the
time of her second assessment, the plaintiff had received occupational therapy
from Laurie Nelson and counselling from a psychologist. He still appeared to Ms. Berry
as easily fatigued and distractible but seemed to be coping better generally.
[265] Ms. Berry
provided a cost-of-future-care and life-planning assessment for the plaintiff
based upon her assessments of him, her interview of Ms. Roth, her review
of the reports of Dr. Wilkinson (neuropsychologist), Dr. Anton, Dr. Kausky,
Dr. Remick, Dr. Riar (psychiatrist), Dr. Teal, Dr. Iverson
(psychologist) and Ms. Linde (Drs. Wilkinson and Riar did not provide
evidence in this proceeding) and consultations with Ms. Nelson and Dr. Chuck
Jung (treating psychologist who also did not provide evidence in this proceeding).
(26)
Darren Benning
[266] Mr. Benning
is an economist with expertise in calculating the present values of future
losses and expenses. He was qualified without objection to give opinion
evidence in that field of expertise.
[267] Mr. Benning
prepared three expert reports:
(a) July 23,
2013: Calculating the present value of the future care costs set out in
Tracy Berrys reports. Mr. Benning conceded on cross-examination that his
childcare calculations assume the plaintiff will need child care assistance
until his youngest child reaches 5-6 years old. He assumed this would be until
November 4, 2013 (the start of the trial) rather than the commencement of
school year in September. To that extent he agreed that his calculations may
be overstated.
(b) July 29,
2013: Calculating the plaintiffs past income loss and the present value
of his future income loss. Mr. Benning assumed that the plaintiff would
have received no increase in income or future earnings after the Accident. His
calculations also include the impact of negative labour market contingencies
such as involuntary disability and reduced hours due to part time work. His
calculations do not assume voluntary withdrawal from the workforce due to
retirement prior to the age of 70.
Mr. Benning also
calculated the present value of a future income loss from real estate
development and management assuming a loss of either $25,000 or $50,000 per
year to age 70.
(c) Sept.
16, 2013: Calculating the present value of increased real estate holdings
of an additional $7.0 million in equity by the time the plaintiff reached age
65.
C.
THE CASE FOR THE TRANSIT DEFENDANTS
[268] The
following witnesses were called as part of the Transit Defendants case:
(1)
John Wong
[269] Mr. Wong
is an adjuster who has been employed in that capacity by ICBC for the past 23
years. Mr. Wong met the plaintiff on February 12, 2004, in
connection with his January 2004 accident.
[270] Mr. Wong
authorized repairs to the plaintiffs vehicle. The plaintiff indicated that he
was in no rush to have the repairs made but would do so at some time in the
future. The plaintiff also told Mr. Wong that he was very concerned about
pain and numbness in his hands. The plaintiff expressed concern that, if the
numbness persisted, his career might be shortened but stated that he would let
his claim slide if the numbness resolved.
[271] Mr. Wong
advised the plaintiff of his entitlement to temporary total disability benefits
but the plaintiff indicated he was not interested in such benefits.
[272] Mr. Wong
noted that the plaintiff was not concerned about money issues and that an
income loss claim by the plaintiff was not anticipated. Mr. Wong felt it
was unlikely that the plaintiff would make an injury claim.
[273] On August 13,
2004, Mr. Wong left a message on the plaintiffs home answering machine
advising that if, the plaintiff did not require anything further, the file
would be closed.
[274] On January 28,
2005, the plaintiff called Mr. Wong to advise that he had lost his vehicle
repair form. ICBC sent him a new form. The plaintiff complained of soreness
to his neck but did not mention any problems with his hands.
[275] There is
no evidence in ICBCs file that the plaintiff ever applied for accident
benefits in connection with the January 2004 accident.
(2)
Leanne Taylor
[276] Ms. Taylor
is an operations manager employed by ICBC. In November 2006 she was
working for ICBC as a claims manager.
[277] She
testified that, on November 24, 2006, she received a telephone call from
the plaintiff. He advised her that he had not yet repaired the damage to his
vehicle from the January 2004 accident and now wanted to do so. Her note
of the telephone call indicates the plaintiff also advised that he was having
problems with his hands, that he had been diagnosed with traumatic carpal
tunnel syndrome and that he would like to pursue a claim in respect of that
injury.
[278] Ms. Taylor
advised the plaintiff that, as the accident occurred more than two years
earlier, his claim was statute barred.
[279] On
cross-examination, Ms. Taylor agreed that there was nothing in the
plaintiffs file to indicate that he had completed or signed an application for
insurance benefits in respect of the January 2004 accident. She also
agreed that the plaintiff did not indicate what the problems with his hands
were or advise of any symptoms.
(3)
Rajinder Gill
[280] Gill testified
with the assistance of an interpreter.
[281] Gill came
to Canada from India in 1990. After working at various jobs, he was hired by WTL
in October 2006, his first job as a bus driver. He received training and started
driving a bus on his own shortly before the Accident. On the day of the
Accident, Gill was driving a route he had never driven before. It had been
snowing all night, it was freezing and the road conditions were very slippery
– the worst that Gill had experienced while driving a bus. He knew that he was
required to take extra care.
[282] Gill
pulled into a bus stop located approximately 250 meters from the Intersection.
He testified that he saw the Honda pass him as he was stopped. However, on
cross-examination, counsel put to him the transcript of his examination for
discovery on November 16, 2010. At that time, he had testified that he
did not remember whether the Honda passed him while he was at the bus stop.
Despite this earlier evidence, Gill maintained that he remembered seeing the
plaintiffs car pass him at the bus stop.
[283] Gill
testified that he accelerated from the bus stop slowly to 10 to 15 km/h, and
that he did not exceed 15 km/h. He knew the road proceeded downhill toward the
Intersection. He also knew that he would have to prepare to stop because he
could see that the traffic light was red as he was approaching the
Intersection. He began to apply his brakes because the Bus was sliding on the
road. Despite his examination for discovery evidence that he accelerated up to
18 km/h, which evidence he admitted was true, Gill refused to accept that he
could have exceeded 15 km/h because of the road conditions.
[284] Gill
testified that he saw the Honda come to a stop at the red traffic light at the
Intersection when he was approximately 50 to 60 feet away. The Bus kept moving
towards the Intersection.
[285] During
cross-examination, Gill testified he was unable to say how far back from the Intersections
stop line the Honda had stopped because the roadway was covered in snow.
However, at his examination for discovery, he testified that the Honda had
stopped five to six feet behind the stop line.
[286] The
traffic light turned green and the Honda began to move forward. Gill released
the brakes on the Bus. After the Honda had moved forward approximately 5 to 7
feet it came to a stop because the Snow Plow had slid into the Intersection.
[287] It was
suggested to Gill on cross-examination that, if the Honda had stopped 5 to 6
feet from the stop line when the light was red, and had moved only 5 to 7 feet
after it turned green before stopping for the Snow Plow, it had only barely
entered the Intersection when it stopped. However, Gill was adamant that the
Honda had crossed the posts where the lights are and gone into the
Intersection. (I note it is apparent from the photographs of the Intersection
that the posts for the traffic lights for eastbound traffic are located across
the Intersection on the eastern side of it. It is possible that Gill was
referring to posts for the lights for southbound traffic which are located on a
triangular median located on the southwest side of the Intersection, but this
is not clear).
[288] During
cross-examination Gill could not identify the Intersection from photographs
that were put to him. The best he could say was that some of the photographs looked
like the Intersection.
[289] Gill
testified that he did not see the Snow Plow until it had entered the Intersection
because he was focusing on the Honda. He testified that the Snow Plow did not
stop but proceeded through the Intersection and that he saw it for only two to
three seconds.
[290] Gill
attempted to stop but the Bus slid and rear-ended the Honda. He testified that
the Bus was skidding and that he was nervous. He was pumping the brakes. At
one point during his cross-examination he testified he was not looking at the
Honda – later he said that he was.
[291] Gill
testified that the impact pushed the Honda forward five to seven feet. The
Honda continued through the Intersection after impact and stopped on the other
side. He gave no evidence regarding how hard the impact was.
[292] Gill
testified that the Bus came to a dead stop after impact and did not move
forward. By this time the traffic light had turned amber. Gill waited for the
light to turn green before proceeding through the Intersection and stopping in
front of the Honda.
[293] The
plaintiff came on to the Bus. He prepared the Statement which Gill signed,
spoke to WTL on the Bus radiophone, said he was OK and left.
[294] Gill
testified that the plaintiff did not appear to him to be confused.
[295] At the
close of his cross-examination, Gill admitted he was struggling to recall the
events of the Accident and that it is possible he does not remember. In
particular he admitted he has no memory of how fast he was travelling and was
guessing at the Bus speed.
[296] Gill was
confused and forgetful about a statement he had given to an insurance adjuster
two weeks after the Accident. At first, he did not recall giving a statement.
Later, he recalled giving it at his home in Surrey British Columbia and that
his wife had been the interpreter. The statement was then shown to him. It
had been provided by him in Whistler, not at his home in Surrey and a co-worker
had been the interpreter, not his wife. He denied that the statement had been
read to him before he signed it despite it stating just above his signature: This
statement of 5 pages is being read to me and my co-worker Hardeep Johal is
acting as my Punjabi interpreter.
[297] Gill was
not a reliable witness. Although he tried to recall the events of seven years
ago, he had great difficulty doing so and resorted to filling in the blanks in
his memory with facts that he later admitted he did not remember. He
repeatedly contradicted himself in respect of the Bus speed, distance and
proximities.
[298] Gills
evidence was of little assistance to the Court.
(4)
Francesca Cole
[299] Ms. Cole
was the triage nurse on duty at WHCC who made a preliminary assessment of the
plaintiff when he attended the clinic on the evening of December 4, 2006.
[300] She
assessed the plaintiff as alert and oriented. His vital signs were stable
and his level of consciousness was such that she assigned him an Acuity Level
of 4 out of 5, Level 1 being assigned to those in the most need of urgent care.
[301] Ms. Cole
agreed on cross-examination that, unless a patient has a decreased level of consciousness
or is vomiting, urgent treatment for a concussion injury is not required.
[302] Ms. Cole
has known the plaintiff since she began working at WHCC in 1995. She described
him as a good and enthusiastic emergency room physician with high energy and a love
for his job. She confirmed that, until the Accident, the plaintiff worked
longer hours relative to the other physicians at WHCC.
(5)
Randy Butts
[303] Mr. Butts
is an experienced estimator employed by ICBC. He inspected the Honda on December 7,
2006. He found cosmetic damage to the rear bumper but no structural or
misalignment damage. The total repair cost was $673.10.
(6)
Scott Burley
[304] On December 4,
2006, Mr. Burley was employed by WTL as an assistant manager. At
approximately 9 am he received a call from Gill on the Bus radio advising of
the Accident. The plaintiff also spoke on the radio and informed Mr. Burley
that he could be contacted at WHCC.
[305] Mr. Burley
attended WHCC and was given a copy of the Statement. He was advised that the
plaintiff was not available to speak to him.
[306] Mr. Burley
spoke with the plaintiff on the telephone at approximately noon that day. The
plaintiff advised him that he had a headache and was not feeling well. Mr. Burley
spoke with the plaintiff on the telephone later that day and was advised that
the plaintiff was not available to meet with him to discuss the Accident.
(7)
Robin Brown
[307] Mr. Brown
is a professional engineer with both Bachelors and Masters degrees in
Engineering. He was qualified without objection as an engineer with expertise
to give opinion evidence in accident reconstruction.
[308] Mr. Brown
inspected and took measurements of the relevant components of the Bus on December 16,
2006, and of the Honda on January 18, 2007.
[309] Mr. Brown
assumed that the orientation of the impact between the Bus and the Honda was
straight on.
[310] Mr. Brown
found no damage to the bike rack attributable to the Accident. The damage to
the Honda was limited to surface scuffing and minor surface gouges on the rear
bumper.
[311] He opined
that the localized nature of the damage to the Honda bumper was such that
impact was likely between the protruding bolt on the Bus bike rack and the
bumper. He therefore assumed that the forces of the impact were point forces
and had not been distributed across entirety of the bumper as would have been
the case if the impact had been straight bumper to bumper. However, on
cross-examination he acknowledged he had been unable to find any evidence of an
impact between the bumper and the bolt. He also agreed that the paint missing
from the bumper must have been transferred somewhere, but he did not observe
any such paint on the bike rack.
[312] Relying on
published studies of impacts between vehicles and poles, Mr. Brown opined
that the damage to the bumper of the Honda is most consistent with an impact
speed change of less than 5 km/h.
[313] On
cross-examination Mr. Brown agreed that if the impact had been a
distributed impact across the bumper, rather than a localized impact between
the protruding bolt and the bumper, the speed change at impact would possibly
have been higher than the 5 km/h he estimated.
[314] Mr. Brown
was unable to correlate some of the damage to the bumper to the impact he
assumed took place.
[315] On
questioning by the Court, Mr. Brown agreed that he would expect less
damage to the Honda from the same impact forces if it the road surface was icy
because the Honda would have accelerated forward much easier than it would have
on a dry surface.
[316] I found Mr. Brown
to be an objective and helpful witness.
(8)
Donald Pohl
[317] Mr. Pohl
is a mechanical engineer who has expertise in and was qualified to give opinion
evidence on accident reconstruction, including low-speed crash testing.
[318] Mr. Pohl
attempted to reconstruct the Accident in his Edmonton shop using an exemplar
bike rack similar to the one mounted on the front of the Bus, which he affixed
to a rigid barrier. He also obtained an exemplar 2004 Honda Accord vehicle
together with three used rear bumper assemblies, each comprising a plastic
bumper cover, foam impact absorber with a solid plastic insert in the center of
the bumper and a metal impact bar.
[319] Mr. Pohl
conducted six crash tests during which the exemplar vehicle was pushed by his
staff members at various low speeds into the solidly mounted exemplar bike
rack. The damage to the exemplar bumpers caused by the impact was then
compared to the damage to the Honda depicted in photographs he had been
provided.
[320] All of the
test impacts were linear or longitudinal. Mr. Pohl did not conduct any
tests where the impact was at an angle because, in Mr. Pohls opinion, the
damage to the Hondas rear bumper was indicative of a predominantly
longitudinal force.
[321] Mr. Pohl
assumed that:
(a) the
bike rack was not damaged in the Accident;
(b) the
lowest most protruding point of the bike rack, a bolt in the center of the face
plate, (the protruding bolt) as measured by Mr. Brown, was 54 cm from
the ground as mounted on the Bus;
(c) only
the bike rack mounting brackets and face plate came into contact with the
Honda; and
(d) the
bumper assembly of the exemplar vehicle was identical to that of the Honda.
[322] Mr. Pohl
was unable to duplicate the bumper scuff marks shown in photographs of the
Honda with the protruding bolt 54 cm above the ground so he adjusted the exemplar
bike rack such that the protruding bolt was 47 cm above the ground. This
resulted in crash test bumper damage at the same approximate height and
locations as shown in the photographs of the Honda.
[323] The first
three crash tests were conducted at 3.4 km/h, 4.8 km/h and 5.4 km/h,
respectively. They resulted in the bottom flange of the exemplar bike rack
deforming. Mr. Pohl concluded that the exemplar bike rack was mounted too
high. He lowered it such that the protruding bolt was 37 cm above the ground.
[324] The final
three crash tests were conducted at 5.6 km/h, 4.5 km/h and 3.1 km/h,
respectively. Based upon the damage to the exemplar bumper covers and deformation
of the foam impact absorbers from these test impacts, Mr. Pohl concluded
that a crash test impact at 3.1 km/h best replicated the damage to the Honda.
In other words, Mr. Pohl is of the opinion that the Honda was accelerated
forward at a velocity of 3.1 km/h during the Accident.
[325] Mr. Pohl
concluded that several marks on the Honda were unrelated to the Accident
because he could not replicate them. They had a feathered appearance which,
in his opinion, is not typical in a rear-end impact.
[326] Mr. Pohl
was aware that the trunk of the Honda was found to be misaligned after the
Accident. However he did not attempt to replicate that damage because there
was no damage to the Honda suggestive of trunk misalignment caused by the
Accident and because, in his opinion, such misalignment is inconsistent with a minor
rear-end impact. In his experience a significant impact is required to
produce trunk misalignment.
[327] On cross-examination,
Mr. Pohl agreed that none of the marks on the Hondas bumper were
consistent with it having been impacted by the protruding bolt and,
accordingly, that the protruding bolt probably was under the Hondas bumper at
the time of impact and did not contact the Honda.
[328] He also
agreed that it is possible there could have been two impacts between the Bus
and the Honda and that the marks on the Hondas bumper that he could not
replicate were consistent with a double impact. He also agreed that if the
Honda was stopped and the Bus was moving it would have taken more energy to
stop the Bus than the Honda. He agreed during questioning by the Court that the
feathered the markings were indeed consistent with an angular force.
[329] Mr. Pohl
also agreed that his tests did not take into consideration that the foam impact
absorbers in the bumper would be less pliable and less likely to deform in cold
weather, although he opined that the foam would be more brittle in colder
temperatures.
[330] Mr. Pohl
did not examine either the Honda or the actual bike rack that was mounted on
the Bus. He agreed on cross-examination that the foam impact absorber in the
Honda could have been of a different constitution than the exemplar foam impact
absorber.
(9)
Mark Sawa
[331] Mr. Sawa
has both a Bachelors and Masters degree in Mechanical Engineering and is an
expert in accident reconstruction. He was qualified without objection as an
expert in that field.
[332] Mr. Sawa
conducted what is known as a Monte Carlo Simulation to calculate and predict
the probability of the Accident occurring given several variables and ranges of
variables. The 18 variables he used are:
(a) the
plaintiffs perception response time to the traffic light changing from red to green;
(b) the
total distance moved by the plaintiffs vehicle while it accelerated forward in
response to the green light and braked in response to the Snow Plow blocking
its path;
(c) the
rate at which the plaintiffs vehicle accelerated from its stopped position;
(d) the
amount of time that the plaintiffs vehicle coasted while the plaintiff moved his
foot from the accelerator to the brake pedal;
(e) the
deceleration rate for the plaintiffs vehicle braking to a stop in an emergency
fashion in response to the Snow Plow;
(f)
the maximum speed attained by the plaintiffs vehicle after accelerating
for the green light and before braking for the snow plow (calculated);
(g) the
time taken by the plaintiffs vehicle to accelerate and decelerate (calculated);
(h) Gills
perception response time to the traffic light changing from red to green;
(i)
the initial travel speed of the Bus;
(j)
the acceleration rate for the Bus after the traffic light turned green;
(k) the
grade of the roadway;
(l)
Gills perception response time to the plaintiffs vehicle stopping in response
to the Snow Plow;
(m) the amount
of time that Gill took to move his foot from the throttle to the brake pedal;
(n) the
amount of time that Gill accelerated (calculated);
(o) the
maximum speed attained by the Bus after accelerating (calculated);
(p) the
time lag between when Gill applied the brake pedal and when the air brakes
fully engaged the brakes at the wheels;
(q) the
distance required for the Bus to avoid the collision (calculated); and
(r)
the distance available for the Bus to avoid the impact.
[333] Mr. Sawa
ran the Monte Carlo Simulation for 2,000 different permutations and
combinations of the foregoing variables using randomly generated values for the
variables within their expected ranges.
[334] Assuming
the Bus was coasting after the light turned green and an initial gap of 30 feet
between the Bus and the Honda when the light turned from red to green, the
simulation showed a 93% probability that the Accident would have occurred.
Assuming an initial gap of 40 feet, the simulation showed a 28% probability
that the Accident would have occurred.
[335] Assuming
that the Bus accelerated after the light turned green, the simulation showed a
100% probability of a collision occurring regardless of whether the initial gap
was 30 or 40 feet.
[336] Assuming
an initial gap of 100 feet, approximately 42% of the iterations resulted in a
collision.
[337] If the
roadway was more icy than snowy, a collision would have been more likely.
[338] On
cross-examination, Mr. Sawa agreed that, if the facts he was asked to
assume were shown not to have existed, his simulation approach would be
inaccurate. He also agreed that his simulations did not take into account many
of scenarios that could have occurred, such as Gills perception or reaction
time being outside of the typical ranges he used. Moreover, he agreed that his
calculations were based on Gills perception time starting when the Honda had
come to a full stop and that they would have been entirely different if Gill
started to react when the Hondas brake lights came on or when Gill perceived
the Snow Plow sliding before it entered the Intersection. Mr. Sawa agreed
that Gill would have had an unobstructed view of the Snow Plow well before it
entered the Intersection.
[339] Mr. Sawa
also admitted during cross-examination that his simulations were not based on a
distance from the rear of the Honda of 25 to 30 feet and a Bus speed Bus of 8
or 9 km/h when Gill first applied his brakes despite Mr. Sawa having been
asked to assume those facts. He did not do so because his simulation would
have shown that the Bus stopped before hitting the Honda. He testified that,
since the Bus did collide with the Honda, those assumed facts could not be
valid.
(10)
Darrin Richards
[340] Mr. Richards
is a professional engineer with Bachelors degrees in Mathematics and
Mechanical Engineering as well as a Masters of Science degree in
Bioengineering. He has expertise in performing biomechanical analyses and
calculating the magnitude of forces experienced by vehicle passengers during
motor vehicle accidents. He has substantial credentials in those areas. He
was qualified by the defendants as an expert in the field of biomechanics.
[341] According
to Mr. Richards, biomechanics is the application of mechanical engineering
principles to the human body. It studies the loading that results when a human
body is subjected to acceleration forces. The threshold force on a human body
above which injury occurs is drawn from scientific studies published in
peer-reviewed literature.
[342] Mr. Richards
opined on the acceleration that the head of a vehicle passenger is subjected to
during a rear-end collision. His opinion is based upon a study he contributed
to but did not author (T. Welch et al, An Evaluation of the BioRID II and
Hybrid III During Low-and Moderate- Speed Rear Impact, Society of Automotive
Engineers 2010 International World Congress, 12 April 2010, SAE
2010-0101031 (Welch Study) together with the results of studies conducted by
others.
[343] The Welch Study
involved a series of rear-end collisions using crash test dummies (ATDs).
One of its goals was to compare and contrast the differences between an ATD
model developed in the 1970s to evaluate both frontal and rear impacts (Hybrid
III) and a new ATD developed specifically for low-speed impacts (BioRID). It
also aimed to quantify motions of and loads on the head of a human body during
rear-end collisions. The study did not draw any conclusions regarding brain
injury or concussion potential.
[344] The other
studies Mr. Richards relied upon are as follows:
(a)
L. Zhang, K.H. Yan & A.I. King, A Proposed Injury Threshold for
Mild Traumatic Brain Injury (April 2004) 126 J. Biomech. Eng. 226:
The authors calculated from game videos the dynamics
created during high-impact collisions involving 24 NFL football players. The
authors recreated those dynamics using ATDs and measured the acceleration
forces on the ATDs heads. Mr. Richards agreed that this study was merely
a small piece of the puzzle regarding the forces necessary to cause a
concussion and agreed that it must be used with caution. Mr. Richards did
not accept that professional football players were not representative of the
general population. In his words, there is no evidence that the brains of
football players are any different than normal people. He did accept that the
necks of football players are generally stronger than those of the general
population.
(b) W.E.
McConnell et al, Analysis of Human Test Subject Kinematic Responses to Low
Velocity Rear End Impacts (Warrendale, PA: Society of Automotive Engineers,
Vehicle and Occupant Kinematics: Simulation and Modeling, 1994), SAE 930889:
The authors examined rear-end impacts using 4 volunteers.
The study was focused on neck injuries, not concussions. There is no evidence
that the volunteers were examined by a physician after the impacts. Mr. Richard
acknowledged that the volunteers in this study were all robustly healthy males
who knew they were about to be involved in a rear-end collision. The study
found that injuries can occur from low speed impacts.
(c) V.
Goodwin et al, Vehicle and Occupant Response in Low Speed Car to Barrier
Override Impacts (Warrendale PA: Society of Automotive Engineers, 1999), SAE
1999-01-0442:
Four volunteers were subjected to 24 impacts while they
were aware that the impacts were about to occur. Three of the four volunteers
declined to submit to tests when the impacts were increased to 8 km/h. The
study examined the impact on both the vehicle occupants and its bumpers. The
study focused on neck injuries and did not consider concussions or brain injury
potential. However, the study indicated acceleration levels of the same order
of magnitude as those found in the Welch Study.
(d) S.
Kuppa, Injury Criteria for Side Impact Dummies (Washington: National
Highway Traffic Safety Administration, National Transportation Biomechanics
Research Centre, January 2006):
The authors studied side-swipe collisions using cadavers
and ATDs and developed risk curves of for the possibility of injuries.
(e) E.
Pellman et al, Concussion in Professional Football: Reconstruction of Game Impacts
and Injuries (2003) 53:4 Neurosurgery 799 (Pellman 2003):
The authors studied professional football players who had
sustained concussions and high-speed impacts on the field. No low-speed
impacts were studied, although concussion were suffered by two players at head
accelerations of 48 g and 52 g, respectively. The study found a high
correlation between head acceleration and concussive injury but did not study
the underlying cause of concussion.
(f)
J. Funk et al, Biomechanical Risk Estimates for Mild Traumatic Brain
Injury [2007] Association for the Advancement of Automotive Medicine 51st
Annual Proceedings 343:
Sensors were installed in the helmets of 64 young, healthy
football players. Head acceleration of less than 10 g did not trigger the sensors.
(g) S.S.
Margulies & L.E. Thibault , A Proposed Tolerance Criterion for Diffuse
Axonal Injury (1992) 25:8 Man. J. Biomech. 917:
The authors studied the kinematics of diffuse axonal injury
in primates and scaled the results to humans.
(h) S.
Rowson et al, Linear and Angular Head Acceleration Measurements in Collegiate
Football (2009) 131 J. Biomech. Eng. 1:
Sensors were installed in the helmets of 10 offensive and
defensive football linemen with an average weight of 292 lbs. Mr. Richards
agreed that, generally, these players would have been expecting the impacts to
occur.
(i)
M.E. Allen et al, Acceleration Pertubations of Daily Living — A
Comparison to Whiplash (1994) 19 Spine 1285:
The authors measured repeated, non-injurious human head
accelerations during daily activities.
(j)
W. Bussone et al, Everyday Head Accelerations of a Pediatric Population
(2009) 2:1 SAE Int. J. Passeng. Cars – Mech. Syst. 565:
The authors documented the non-injurious head accelerations
of 12 children performing a series of playground activities. Mr. Richards
contributed to this study.
(k) V.
Vijayakumar et al, Head Kinematics and Upper Neck Loading During Simulated
low-Speed Rear-End Collisions: A Comparison with Vigorous Activities of Daily
Living (Society of Automotive Engineers 2006 International World Congress,
Warrendale PA), SAE 2006-01-0247:
The authors compared low-speed rear-end collisions in
bumper cars with vigorous daily activities in which concussive injuries were
not expected. Participants were healthy and were screened to ensure they had
no physical issues.
(l)
D.F. Meaney & D.H. Smith, Biomechanics of Concussion (2011) 30
Clin. Sports Med. 19:
The authors reviewed and summarized the existing
literature.
(m) R.S.
Naunheim et al, Comparison of Impact Data in Hockey, Football and Soccer
(2000) 48:5 J. Trauma 938:
The authors studied accelerational forces to the head in
high school level football (2 participants), hockey (1 participant) and elite soccer
players. No concussions were reported.
[345] Mr. Richards
acknowledged that the football players who participated in the above studies
may well have had a tendency to underreport concussion symptoms for fear of
being sidelined.
[346] Mr. Richards
also acknowledged that no scientific study has yet been performed of rear-end
collisions where human beings sustained concussions.
[347] Mr. Richards
is unaware of any instance during these studies of a 5 km/h rear-end impact
causing a concussion. The lowest head acceleration that resulted in a
concussion was 48 g (Pellman, 2003).
[348] Mr. Richards
agreed on cross-examination that it is difficult to determine the severity of a
rear-end collision injury from vehicle damage alone. He also agreed that a
full understanding of the biomechanical causes of concussion has yet to be
achieved and that there is more to learn and more work to be done.
[349] Mr. Richards
recognizes that there are no absolutes or certainties when it comes to the
human body. The studies he relies upon merely analyze the risk of a concussion
occurring at various head accelerations. He agreed that, for genetic or other
reasons, some people are more prone to concussions than others and that there
is a spectrum of tolerances in the human body. The level of injury can vary
greatly from person to person. Injury thresholds in humans are not a black and
white science.
[350] In summary,
Mr. Richards opinion is that the magnitude of the acceleration forces
during the Accident, as calculated by Mr. Brown, were less than those that
scientific studies to date have shown are likely to result in a concussive
injury. However, his opinion is that, although these studies have shown that
there is a low risk of concussion injury with an impact speed of less than 5
km/h, he cannot rule out or exclude the possibility that a concussion injury
will occur.
[351] Mr. Richards
was an impressive expert witness whose opinions I accept.
(11)
Dr. Hedi Oetter
[352] Dr. Oetter
is the Registrar and Chief Executive Officer of the College of Physicians and
Surgeons of British Columbia.
[353] She
testified there is a mandatory requirement for medical doctors who are disabled
due to injury to report to the College only if their continued practice is a
danger to the public. Physicians may designate themselves temporarily inactive
[354] To be reinstated,
the treating physician must confirm that it is safe for the registrant to
return to practice.
[355] She
testified the plaintiff has neither reported to the College that he is disabled
nor designated himself to be temporarily inactive.
[356] Physicians
in British Columbia are expected to engage in meaningful continued professional
development on an annual basis.
(12)
Dr. John Corey
[357] Dr. Corey
is the owner and managing director of the Park Royal Medical Clinic, the
walk-in clinic at which the plaintiff worked several shifts in 2008 and 2009.
[358] Dr. Corey
testified that he received no complaints from either patients or staff
regarding the plaintiff. The plaintiff did not sound confused during the
telephone conversations Dr. Corey had with him regarding the scheduling of
his shifts.
(13)
Dr. Derryck Smith
[359] Dr. Smith
is a psychiatrist who was qualified to give opinion evidence in that capacity.
He conducted an assessment of the plaintiff on December 1, 2010. His
medical/legal report is dated March 1, 2011.
[360] It is Dr. Smiths
opinion that:
(a) the
plaintiffs reported symptoms are well out of keeping with the description of
the accident;
(b) the
plaintiff did not suffer a traumatic brain injury;
(c) the
plaintiff has recovered from his symptoms of anxiety and depression;
(d) the
plaintiff continues to have a sleep disturbance for unknown reasons; and
(e) if
the plaintiff continues to suffer from a cognitive disorder, it is likely
related to pain and/or a sleep disorder, not a traumatic brain injury.
[361] Dr. Smiths
further opinion is that the plaintiffs failure to return to work as an
emergency room physician is not related to psychiatric illness or the sequelae
of traumatic brain injury. He recommended that the plaintiff undergo
neuropsychological testing because such testing uses validity measures to determine
whether the subject is being forthright.
[362] In Dr. Smiths
opinion, any diagnosis of post-concussion syndrome is invalid because the
syndrome does not exist.
[363] Dr. Smith
was cross-examined at length. He was argumentative throughout.
[364] Dr. Smith
testified that he is very reluctant to accept a diagnosis of concussion at the
lower end of the diagnostic criteria spectrum because the symptoms are usually
too vague and non-specific. However, it was pointed out to him that he had
been quick to opine in his report that the plaintiff may have sustained a
concussion during his earlier January 2004 accident solely on the basis
of his having read that the plaintiff had hit his head during the accident
despite the plaintiff having advised him to the contrary.
[365] Dr. Smith
agreed that emergency room records are important to the formation of his
opinions yet he gave no weight to the diagnoses of concussion by the WHCC
emergency room physicians and Dr. Teal. He justified the lack of weight
based on, first, his uncertainty whether WHCC was an emergency room and, second,
his view that the diagnosis of concussion is thrown around pretty casually. Instead,
he looked for objective evidence of impairment consistent with concussion and
concluded there was none.
[366] Dr. Smith
also agreed it is important to consider the plaintiffs before-and-after-Accident
histories as described by his family and friends, yet he did not obtain any such
information.
[367] Dr. Smith
stated there was no evidence the plaintiff had suffered immediate cognitive
impairment after the Accident. It was suggested to him that there was ample
evidence of cognitive impairment. Dr. Smith agreed that memory gaps (the
plaintiff could not remember preparing the Statement or driving to WHCC),
confusion, decreased concentration, problems with multi-tasking, fogginess, irritability
and nausea following the Accident were reported to him and are consistent with
a concussive injury, yet he ignored all of those reported symptoms when
formulating his opinion.
[368] Dr. Smith
agreed that if the plaintiff slept well before the Accident, his current sleep
disorder is likely due to the Accident. He also accepted that it is possible
any cognitive impairment is the result of the Accident.
[369] Dr. Smith
ultimately agreed that if the plaintiff functioned at a high level and had his
symptoms after but not before the Accident, then it is likely that the symptoms
were caused by the Accident. He agreed that evidence the plaintiff has shown
signs of improvement in his cognitive functioning since the Accident is
consistent with him having sustained a concussion.
[370] Dr. Smith
also agreed that 10 – 15% of people who suffer a MTBI have permanent problems,
including an inability to work and function in daily activities.
[371] Eventually,
after extensive cross-examination, Dr. Smith agreed that the plaintiff may
have sustained a concussion in the Accident.
(14)
Dr. Alister Prout
[372] Dr. Prout
is a neurologist who was qualified without objection to give opinion evidence
in that specialty.
[373] Dr. Prout
met with and conducted a neurological examination of the plaintiff on February 3,
2010. His medical legal report is dated February 7, 2011.
[374] His
neurological testing of the plaintiff revealed him to be within normal ranges.
He agreed on cross-examination that the neurological examinations of most
concussion victims are normal.
[375] In Dr. Prouts
opinion, the plaintiffs ongoing reported concerns are out of keeping with the
nature of the injuries he sustained during the Accident.
[376] Dr. Prout
was of the opinion that it is unlikely the plaintiff suffered a concussion
injury during the Accident. He based this opinion on the Accident having been
a relatively low-velocity impact. He also relied on his understanding that the
plaintiff had only a very brief loss of awareness and was able to interact with
Gill in a very short period of time after the impact without appearing to be
confused. Given this understanding of the Accident, Dr. Prout testified
that he has difficulty explaining the plaintiffs ongoing difficulties.
[377] In Dr. Prouts
opinion, the majority of symptoms reported by the plaintiff following the
Accident can be explained as a combination of an emotional reaction to the
Accident, pain, sleep disturbance and the development of some psychological
difficulties. Dr. Prout opined that the plaintiff should undergo
neuropsychological testing to separate and identify any neurological issues
from any psychological issues.
[378] He opined
that the plaintiff does not have neurologic deficits or residual effects of a
neurological injury caused by the Accident that would result in an inability to
return to at least part-time work in emergency or clinical medicine.
[379] On
cross-examination, Dr. Prout conceded that he does not diagnose a
concussion injury if it is merely probable. Rather he will only diagnose a
concussion if he is almost certain that a patient has sustained a concussion.
[380] Dr. Prout
agreed on cross-examination that if the plaintiff had more than a brief period
of loss of awareness and memory and was disoriented more than the amount that Dr. Prout
identified, then the probability that the plaintiff suffered a concussion
increases.
[381] He also
agreed that he would defer to the opinion of a psychiatrist with
neuropsychology training who found no psychiatric or psychological pathology.
He agreed that if no psychiatric or psychological pathologies were found, it is
likely that the plaintiffs symptoms are due to a concussion.
[382] Dr. Prout
knows and respects Dr. Teal.
[383] Dr. Prout
agreed that, when diagnosing a concussion, it is helpful to obtain histories
from others comparing the patient prior to and after the accident. Dr. Prout
was not provided with any such information. He agreed that a patient being observed
as disoriented and confused after an accident would be weighty evidence of a
concussion. Dr. Prout conceded his understanding that the plaintiff
appeared to Gill to be functioning and behaving normally after the Accident was
of critical importance to his opinion.
[384] Dr. Prout
agreed on cross-examination that little is known about why some people are more
susceptible to a concussion injury than are others, but opined, based on the
usual clinical parameters that if the plaintiff suffered a concussion his
prognosis for a full recovery from it would have been very good. However, he
also agreed that ten percent of concussion victims do not fully recover and
have permanent problems.
[385] Dr. Prout
agreed that the plaintiff could have had mild disorientation and a mild gap in
his memory and therefore could have sustained a concussion and could fall into
the 10% of people who do not recover from a concussion injury.
[386] Dr. Prout
agreed that many of the plaintiffs symptoms are consistent with a concussion
injury having been sustained, specifically vomiting early on, ongoing
headaches, dizziness, nausea, vision problems, physical and mental fatigue,
excessive sleep, confusion, sensitivity to noise and light, irritability,
depression and anxiety symptoms and problems with memory, concentration,
multi-tasking, speech and communication. He also agreed that any one or more of
them would meet widely accepted diagnostic criterion for concussion. He further
agreed that, with a concussion, he would expect at least some of the symptoms
to improve or resolve, while they would be expected to increase rather than
improve if they were psychological.
[387] Dr. Prout
agreed on cross-examination that if the plaintiff had some disorientation and
confusion and some gap in his memory and the above symptoms without any other
explanation for them, the best explanation is that the plaintiff probably had a
concussion.
[388] Dr. Prout
agreed that post-concussion syndrome is a valid and generally recognized medical
diagnosis and that the plaintiffs reported symptoms are consistent with that
syndrome.
[389] He agreed
that the vast majority of those suffering from carpal tunnel syndrome fully
recover with the use of a brace. Of those that do not, approximately 95% fully
recover with surgery.
[390] Dr. Prout
was an impressive witness who gave his evidence in an objective, candid and
helpful fashion.
(15)
Lisa Marginson
[391] Ms. Marginson
is a rehabilitation consultant. She was retained by the plaintiffs disability
insurer, Sun Life, in early 2009 to obtain information from the plaintiff
regarding his functioning, treatment and return to work potential and plan at
that time.
[392] Ms. Marginson
interviewed the plaintiff in West Vancouver on March 12, 2009. She found
that the plaintiff answered her questions and shared information openly. She
did not observe any major issues with his memory or concentration.
[393] Ms. Marginson
noted that the plaintiff did not have a clear recollection of the Accident, but
reported headaches, nausea and difficulty following what was being taught at
the intubation course shortly thereafter.
[394] Afterwards,
the plaintiff became angry he was not being permitted to return to work.
[395] Ms. Marginson
concluded that that plaintiff was very dedicated to being an emergency room
physician where he believed he had thrived. The plaintiff was not prepared to
consider any plan other than one that involved returning to that profession.
He was defensive about any suggestion that his cognitive abilities may limit
his ability to do so.
(16)
Mark Gosling
[396] Mr. Gosling
is an economist. He was qualified without objection to give economic opinion
evidence.
[397] Mr. Gosling
provided a report in which he commented on Mr. Bennings future income
loss multipliers and provided alternative multipliers for use by the Court.
[398] Mr. Goslings
actuarial multipliers were virtually identical to those of Mr. Benning
(12.637 to age 70 on January 8, 2030 vs. 12.637 to December 31,
2029).
[399] Mr. Goslings
economic multipliers (assuming non-participation in the Labour Force due to
both voluntary withdrawal and disability) were slightly different than those
provided by Mr. Benning (10.292 to age 70 on January 8, 2030 vs.
11.770 to December 31, 2029).
D.
THE CASE FOR ICBC
[400] ICBC did
not call any witnesses. It adopts the evidence led by the Transit Defendants.
E.
THE PLAINTIFFS REBUTTAL EVIDENCE
(1)
Donald Rempel
[401] Mr. Rempel
is a mechanical engineer with expertise in forensic engineering and motor
vehicle accident reconstruction. He was qualified without objection as an
expert to give opinion evidence in that field.
[402] Mr. Rempel
reviewed and opined on the opinion evidence of the defendants engineering
experts, Mssrs. Sawa, Brown and Pohl.
[403] Mr. Rempel
dismissed Mr. Sawas Monte Carlo simulation because it assumes that Gill
would have had no regard for his speed or the distance between the Bus and the
Honda and would not have perceived the Honda to be a hazard until the Honda had
come to a complete stop as a result of the Snow Plow entering the intersection.
In Mr. Rempels opinion, such modeling has no connection to the reality of
normal driving where drivers consider the closing circumstances as they
approach other vehicles.
[404] Mr. Rempel
disagreed with Mr. Pohls opinion that the feathered markings on the
Honda bumper are unrelated to the Accident. Mr. Rempel pointed out that Mr. Pohls
crash tests had been conducted on a dry surface with a perfectly stable Honda
reversing into a fixed and perfectly stable bike rack. There was no consideration
of the real-world circumstances of a likely rough roadway or the braking action
of the Bus. In Mr. Rempels opinion, the markings on the Honda bumper are
precisely those that would be expected to result from a collision between the
Bus bike rack and the Honda on an icy, winter road surface with a braking Bus.
[405] Mr. Rempel
opined that a low-speed collision between the Bus and the Honda could be
expected to result in more than one impact in rapid succession.
F.
ANALYSIS
[406] Over the
course of this 29 day trial, I had the benefit of hearing 27 lay witnesses
and 16 expert witnesses. My analysis is based upon a considered assessment of
their credibility and reliability as witnesses and the evidence they proffered.
(1)
Liability
[407] The
Transit Defendants admit that Gill was operating the Bus at the time of the
Accident, that the Bus was owned by BCT and leased to WTL, that both BCT and
WTL were owners of the Bus pursuant to the Motor Vehicle Act, R.S.B.C.
1996, c. 318 and that Gill was operating the Bus with the express or
implied consent of both BCT and WTL. Each is an owner of the Bus pursuant to
the provisions of the Motor Vehicle Act.
[408] ICBC
admits that:
i. on
December 4, 2006, the Transit Defendants notified ICBC of the existence of
the Snow Plow sliding into the intersection;
ii. on December 19,
2006, the plaintiff advised ICBC that a snow plow had been involved in the
Accident; and
iii. on February 8,
2007, the plaintiff published an advertisement in the Whistler Question newspaper
seeking witnesses to the Accident.
(a)
Was Gill Negligent?
[409] When one
vehicle rear ends another, the onus is on the rear-ending vehicle to
demonstrate the absence of negligence: Robbie v. King, 2003 BCSC 1553,
at para. 13; Cannon v. Clouda, 2002 BCPC 26 at para. 9; Cue
v. Breitkreuz, 2010 BCSC 617 at para. 15; Stanikzai v. Bola,
2012 BCSC 846 at para. 7.
[410] This is
because the following driver owes a duty to drive at a distance from the
leading vehicle that allows reasonably for the speed, the traffic and the road
conditions: Barrie v. Marshall, 2010 BCSC 981, at paras. 23-24; Rai
v. Fowler, 2007 BCSC 1678, at para. 29. This duty is codified in ss.
144 and 162 of the Motor Vehicle Act.
[411] Driving
with due care and attention assumes being on the lookout for the unexpected: Power
v. White, 2010 BCSC 1084 at para. 28, affd 2012 BCCA 197.
[412] The
Transit Defendants argue that Gill was not negligent because the Accident was
unavoidable. They rely upon the opinion evidence of Mr. Sawa.
[413] I have
several concerns with Mr. Sawas opinion. First, it relies upon
accelerations, speeds, distances, proximities, perception speeds and a host of
other scenarios and variables that are either not in evidence or are based upon
the evidence of Gill, which I have found to be unreliable. Second, it does
not consider the scenario of a collision if the initial gap between the Bus and
the Honda was other than 30, 40 or 100 feet. Instead, Mr. Sawa invited the
Court to use averages and linear relationships that would appear to provide
an accurate result for those other distances. Third, it is based upon
variables that the Court is required to speculate about. For example, if the
plaintiffs perception response time was 1.2 seconds and the plaintiffs
vehicle moved forward five feet at 5 km/h, then there is nothing in Mr. Sawas
analysis that can be consulted to determine the likelihood of the collision.
Fourth, and most glaringly, it completely disregards the approach circumstances
that a normal driver would realistically react to.
[414] I agree
with Mr. Rempels criticisms of the Sawa report.
[415]
I also agree with the sentiments of Mr. Justice Wilson of the
Alberta Court of Queens Bench in Mulchandani v. Kooistra Trucking Ltd. 2006
ABQB 391 who stated the following regarding a similar report from Mr. Sawa,
at para. 30:
This is one of the reasons that
I give no credit to the report of Sawa or his opinions. As will be seen
from his report, he puts a position that if a number of conditions had been
fulfilled, the accident would not have happened, or the damage would have been
less severe. That is not how a case like this must be decided. Unstated in his
opinion, but equally in the realm of what ifs is the case that if the
Defendant had parked his truck that day and not proceeded, the accident would
not have happened. This sort of expertise [is] unhelpful.
[416] The
defendants use of the Sawa report to argue that the collision was inevitable
is, effectively, an attempt to support a conclusion that Gill met the required
standard of care. The Court is capable of forming its own conclusions
regarding whether or not Gill met the standard of care expected of him in the
circumstances while he was driving the Bus toward the plaintiffs stopped
vehicle. In such circumstances, the opinion of an expert is unnecessary: R. v.
Mohan [1994] S.C.R. 9 at 27.
[417] This was a
rear-end collision. The road surface was icy. When the light turned green,
the plaintiff started to proceed into the Intersection. He stopped because of
the presence of the Snow Plow. He was able to do so safely despite the
slippery conditions. Gill testified he did not even see the Snow Plow until it
was in the Intersection. The photographic evidence satisfies me that it is
inconceivable the Snow Plow would not have been seen by an attentive driver
well before it entered the Intersection. Gill had a clear line of sight. He
had a duty to be on the lookout for unexpected maneuvers by other vehicles on
the road, for example, the Snow Plow sliding into the intersection, or the
Honda coming to an abrupt stop.
[418] The
Accident did not take place because it was inevitable. It took place because
Gill was not properly attentive or because the Bus was travelling too fast for
the road conditions, or because Gill was not sufficiently competent to drive the
Bus in the road conditions he faced. There is no evidence that the road
conditions were any more slippery than would normally be expected on a snowy
winter day in Whistler. Gills conduct did not meet the standard of care
expected of him in the circumstances.
[419] The
Accident was caused by the negligence of Gill. BCT and WTL are vicariously
liable for his negligence.
(b)
Was the Snow Plow Driver negligent?
[420] The
plaintiff and the Transit Defendants argue that the Accident was contributed to
by the driver of the Snow Plow.
[421] Section
144 of the Motor Vehicle Act provides that a person must not drive a
motor vehicle on a highway without due care and attention or at a speed that is
excessive relative to road or weather conditions.
[422] A prima
facie case of negligence is established where it is shown that the
defendant had control of the vehicle and the event would not have occurred with
the exercise of proper care: Michel v. John Doe, 2009 BCCA 225 at para. 22.
[423] Although December 4,
2006, was a snowy and icy winter day in Whistler, there is no evidence that the
plaintiff had any difficulty controlling the Honda prior to the Accident. The
road conditions should not have taken any driver by surprise.
[424] The evidence
is that the Snow Plow slid into the Intersection after the traffic light had
turned yellow or red in its direction.
[425]
The applicable section of the Motor Vehicle Act is as follows:
Yellow light
128 (1) When a
yellow light alone is exhibited at an intersection by a traffic control signal,
following the exhibition of a green light,
(a)
the driver of a vehicle approaching the intersection and facing the yellow
light must cause it to stop before entering the marked crosswalk on the near
side of the intersection, or if there is no marked crosswalk, before entering
the intersection, unless the stop cannot be made in safety.
[426] Drivers
approaching an intersection exhibiting a yellow traffic light must cause
the vehicle to stop unless the stop cannot be made in safety. No
evidence was led to suggest that the Snow Plow could not have stopped in safety
had its driver been operating it at a standard of care commensurate with the
road conditions. An inference of negligent driving will be made in the absence
of such evidence.
[427] Accordingly,
I find that the driver of the Snow Plow, John Doe, was also negligent in
causing the Snow Plow to slide into the Intersection. The defendant Jack Doe
Company Ltd. is vicariously liable for the negligence of John Doe.
(c)
Insurance (Vehicle) Act, Section 24(5)
[428] ICBCs
liability is subject to the provisions of sections 24(5) and 105 of the Insurance
(Vehicle) Act, R.S.B.C. 1996, c. 231.
[429]
Section 24(5) of the Insurance (Vehicle) Act provides as follows:
(5) In an action against the corporation as nominal
defendant, a judgment against the corporation must not be given unless the
Court is satisfied that
(a) all reasonable efforts have been made by the parties to
ascertain the identity of the unknown owner and driver or unknown driver, as
the case may be, and
(b) the identity of those persons or that person, as the
case may be, is not ascertainable.
[430] The
plaintiff did nothing other than arrange for the placement of a small
advertisement in the Whistler newspaper that requested witnesses to the
Accident to come forward. The words snow plow did not appear in the
advertisement.
[431] Counsel
for the plaintiff submitted that, because s. 24(5) reads
all reasonable
efforts have been made by the parties
, ICBC was a party and was
required to make all reasonable efforts to identify the unknown driver of the
Snow Plow. He suggests that ICBC was in a vastly superior position over the
plaintiff to do so.
[432] I
disagree. The plaintiff is the party seeking judgment against ICBC and has the
burden of satisfying the Court that the requirements of s. 24(5) have been
met.
[433] The test of
reasonableness is subjective in the sense that the plaintiff must have been in
a position and condition to obtain the appropriate information: Leggett v.
Insurance Corp. of British Columbia, (1992) 72 B.C.L.R. (2d) 201 (C.A.) at 206.
The standard required of the plaintiff is not perfection: Pearce v. Insurance
Corp. of British Columbia (1999), 6 C.C.L.I. (3d) 274, 1998 CarswellBC 1039
(B.C.S.C.) at para. 26; Nicholls v. Emil Anderson Maintenance Co.,
2010 BCSC 1640 at para 6,, affd 2011 BCCA 422. Reasonableness is to be
decided on the basis of all the circumstances of the case: Holloway v. I.C.B.C.
and Richmond Cabs and John Doe, 2007 BCCA 175 at para. 12.
[434] The
evidence is that the Snow Plow was a large highway snow plow. In my view, all
reasonable efforts would have included contacting the known or easily
identifiable highway snow plow operators and contractors in an attempt to
determine which drivers were operating snow plows on the morning of the
Accident and in what location. Those enquiries were well within the resources
of the plaintiff and/or his counsel. No such steps were taken. Indeed, no
effort whatsoever was made to ascertain the identity of the driver of the Snow
Plow. The plaintiff did not provide an explanation for his failure to do so.
[435] In my
view, to the extent that the plaintiffs injuries were caused or contributed to
by the negligence of the driver of the Snow Plow, judgment in respect of those
injuries against ICBC is precluded by section 24(5) of the Insurance
(Vehicle) Act.
[436] Given this
ruling, there is no need to deal with the limit of liability found in section
105 of the Insurance (Vehicle) Act.
[437] The
defendants, excluding ICBC, are jointly and severally liable for the plaintiffs
injuries.
(2)
Causation
[438] The
plaintiff must show on the balance of probabilities that he was injured by and
his injury would not have occurred but for the defendants negligence. The but
for test must be applied in a robust common sense fashion. There is no need
for scientific evidence of the precise contribution the defendants negligence
made to the injury: Clements v. Clements [2012] 2 SCR 181 at paras 8-9.
[439] Causation
is to be decided on the whole of the evidence: Hoy v. Harvey, 2012 BCSC
1076. Here, as in many personal injury cases, the evidence of injury consists
of the subjective history of the plaintiff, the collateral evidence of his
wife, friends and former co-workers, as well as the findings and opinions of
several medical and engineering experts.
[440] The
defendants contend that the plaintiff is a malingerer and that his failure to
return to work after the Accident was part of a conscientious plot, contrived
at the time of the Accident, to transform his life from that of a workaholic to
that of a malingerer. Their theory is that the plaintiff had become burnt out,
was exhausted by his new parenting role, was angry at ICBC for denying his
earlier claim and the Accident was an opportunity to not only change his life
but also to obtain retribution against ICBC.
[441] The
defendants say the damage to the Bus and to the plaintiffs vehicle was so minor
that the plaintiff could not possibly have suffered the injuries he complains
of. They sought to bolster their position with engineering evidence they
submit demonstrates that the forces created by the collision and transmitted to
the plaintiffs body were minimal at best. Alternatively, they argue that any
injury the plaintiff suffered has either been exaggerated or is not
attributable to the Accident.
[442] Gill gave evidence
that the Bus hit the Honda with sufficient force to push it 5 to 7 feet
forward into the Intersection, albeit on a slippery roadway. He gave no
evidence regarding whether the contact between the Bus and the Honda was
straight on or at an angle. He gave no evidence regarding the force of the
impact. If the Bus merely tapped the Honda, I am confident I would
have heard evidence from Gill to that effect.
[443] The only
evidence regarding the magnitude of the impact between the Honda and the Bus
was opinion evidence of Mssrs. Brown, Pohl and Rempel.
[444] Mr. Brown
assumed the impact had been straight on point impact between the bike racks
protruding bolt and the Hondas bumper. However, he found no evidence of such
an impact. He agreed that if the impact had not been focused but rather
distributed, the forces would have been higher than those he had calculated.
[445] Mr. Pohl
was able to produce damage to an exemplar vehicle that he concluded was similar
to some of the damage depicted in photographs of the Honda at an impact speed
of 3.1 km/h. He therefore opined that the speed of the impact during the
Accident was approximately 3.1 km/h. He was unable to reproduce other obvious
damage so he concluded it was unrelated to the Accident.
[446] The
difficulties I have with Mr. Pohls crash tests are that:
(a) all
were single direct impacts between the bike rack and the vehicle whereas some
of the damage to the Honda is consistent with a double angular impact;
(b) they
did not take into consideration that the foam impact absorber in the bumper
likely reacts differently in colder weather; and
(c) they
did not replicate the actual damage to the Honda.
[447] According
to Dr. Anton, who I found to be an impressive and credible expert
witness, there is no authoritative medical literature setting out the threshold
of force required to produce a brain injury in a vehicle passenger. However,
there is a relationship between the forces occurring in a motor vehicle
accident and the likelihood of injury, albeit far from a one-to-one
relationship. He opined that, although it is useful to know something about
the mechanics of a collision, those mechanics do little to assist the medical
diagnosis. Accident reconstruction discloses nothing about an individuals
vulnerability to the forces. The forces that can cause a brain injury are
either (a) direct (a linear force causing a blow to the head with injury at the
site of the blow or, if the brain moves, at the other side of the skull) or (b)
diffuse (rotational causing traction and stretching of the long nerve fibres
resulting in brain injury at locations other than where the direct trauma
occurred).
[448] Mr. Richards
agreed. Although he was of the opinion that the risk of a concussion injury
during a low-impact collision is small, much more scientific study is required
regarding whether a particular person will be vulnerable to concussion.
[449] Dr. Smiths
view was that the Accident was a minor impact, there was no objective evidence
of a concussion and it was therefore preposterous to suggest that the
plaintiff sustained a concussive injury. However, Dr. Smith did not
attribute the plaintiffs subjectively reported symptoms to any other cause.
He ignored and made no attempt to reconcile the contrary opinions of other
respected physicians and the diagnostic criteria for concussions set out in authoritative
text books he had previously endorsed because they set the bar way too low.
He relied only upon information that was supportive of his opinions and
disregarded the information that was not. He sought to justify his approach by
stating: These are the facts and assumptions that I relied upon in
forming my opinion. Obviously I did not rely upon [the other information
I was given] because its not reflected in my facts and assumptions. This
kind of cherry-picking by experts is unhelpful. Dr. Smith was not an
objective expert witness. I do not accept his opinion that the plaintiff
did not suffer a concussion in the Accident.
[450] According
to the authoritative definitions commonly used by physicians to diagnose
concussions, the plaintiff sustained a MTBI. The defendants do not suggest
otherwise. Instead, they merely submit that because the plaintiffs complaints
are subjective and that he complains he suffers from virtually all of the
symptomatic criteria when only two or three would suffice, he doth protest too
much and must have fabricated his evidence.
[451] Although
the medical opinions at trial were based largely upon the plaintiffs
subjective descriptions of his symptoms, the fact that the plaintiffs symptoms
are subjective does not mean they are not real.
[452] To accept
the defendants submissions that the plaintiff is a malingerer and that the
forces imparted on the plaintiff by the Accident could not have injured him,
I would have to completely disregard the evidence of the plaintiff, Ms. Roth
and all other lay witnesses called by the plaintiff (several of whom are
physicians) who testified about the plaintiffs sudden and dramatic change in
character and personality in the hours, days, months and years following the
Accident. I found each to be candid, credible, forthright and, above all,
honest. The defendants theory of the case is devoid of credulity and appears
to have been inspired by nothing more than a conviction that the Accident
impact was minor and could not possibly have injured anyone.
[453] I accept
that the Accident was relatively minor in terms of the physical damage
sustained by the Honda and the Bus. However, even a low-impact collision can
cause injury: Lubick v. Mei, 2008 BCSC 555 at para. 5.
[454] The
evidence in this case establishes that the low-velocity impact was sufficient
to move the plaintiffs vehicle forward from a complete stop to the middle of
the intersection, albeit in slippery road conditions. The plaintiff saw a white
light immediately after impact.
[455] The
evidence is overwhelming and uncontradicted that, prior to the Accident, the
plaintiff had a long history of functioning at a high level. He had extraordinary
energy, was exceptionally hard working and successful. He loved people, was
well liked and had a very good reputation in the community.
[456] The
evidence is equally overwhelming and uncontradicted that, immediately after the
Accident, the plaintiff was confused, disoriented, had gaps in his memory and
was lethargic. In the days and weeks that followed it was plain to those who
knew him that he no longer had many of his pre-Accident qualities. He has
cognitive and communication difficulties, low energy, is unable to work
effectively or efficiently, and is forgetful, withdrawn and irritable. He has
had episodes of anxiety and depression.
[457] A small
yet cogent example of the plaintiffs cognitive issues was seen during his
cross-examination when he was asked about his and Ms. Roths ages at the
time his children were born. It was obvious that he was stumbling and was confused.
He appeared lost. He was wrong in their ages by five years. There were many
other instances where the plaintiff became easily confused over relatively
simple matters. Examples include the cross-examinations of him regarding Dr. Lisa
Marginsons report dated March 12, 2009, his personal training program,
his income tax returns and his receipt of Canada Pension Plan Disability
Benefits. It was obvious that he had difficulty distinguishing between actual
and planned achievements.
[458] While
there are some inconsistencies in the various descriptions given by the
plaintiff to medical practitioners regarding his recollection of the Accident,
I find that those inconsistencies reflect the day-to-day variability of
plaintiffs symptoms, his genuine struggles to remember and his legitimate
attempts to piece together as best he could what actually had happened and to
come up with an explanation for his injuries. I accept that he has a
difficult time distinguishing between what he thinks must have happened and what
he can actually remember happening.
[459] It is
obvious to me that the plaintiff continues to be confused about the details of
the Accident. It is equally obvious to me that this confusion is the result of
the plaintiffs Accident-related injuries, not an attempt to fabricate a
condition that does not exist.
[460] I find
that the plaintiffs symptoms, as he described them, are genuine.
[461] It is the
opinion of each of Drs. Kausky, Teal, Anton and Remick, all impressive experts
whose respective opinions I accept, that the plaintiff suffered a MTBI and,
thereafter, post-concussion syndrome as a result of the Accident.
[462] Dr. Prout,
who I found to be a candid and objective expert, did not diagnose a
concussion at the time of his Report because he understood the plaintiff had
been able to remember details of the Accident, he appeared to Gill to be
behaving normally shortly after the Accident and because other possible
explanations for the plaintiffs symptoms had not been ruled out.
[463] However, Dr. Prout,
agreed that, if the plaintiff was functioning at a high level prior to the
Accident, had some confusion, some disorientation, some gaps in his memory and
other symptoms associated with a concussion after the Accident without any
other explanation for those symptoms, the best explanation is that the
plaintiff probably suffered a concussion.
[464] I have
placed no reliance on Gills evidence that the plaintiff did not appear to be
confused. Gills interaction with the plaintiff was fleeting, he had never met
the plaintiff previously and he was not shown to be qualified of providing
trustworthy substantiation of normal human behaviour. Further, I have
found Gills evidence generally to be confused and unreliable.
[465] Dr. Smith
opined that post-concussion syndrome is not a valid medical diagnosis. Drs.
Teal and Prout opined that it is not only a valid, but also a generally
recognized diagnosis. I accept the opinions of Drs. Teal and Prout and
reject those of Dr. Smith.
[466] In my view
the plaintiff has established beyond the balance of probabilities that the
dramatic and sudden onset of symptoms of headaches, dizziness, nausea,
vomiting, physical and mental fatigue, confusion, sensitivity to noise and
light, irritability, depression and anxiety and problems with vision,
concentration, multi-tasking and speech and communication, are the result of
him having suffered a MTBI (concussion) caused by the Accident.
[467] Moreover,
I find that the plaintiff continues to suffer from post-concussion
syndrome as a direct result of his Accident-related concussion.
(3)
Damages
[468] The
plaintiff is entitled to an award of damages that will put him, so far it is
possible for money to do so, in the same position he would have been in had the
Accident not occurred: Blackwater v. Plint, 2005 SCC 58 at para 74, Athey
v. Leonati, [1996] 3 S.C.R. 458 at para. 32..
(i)
Non-Pecuniary Damages
[469]
The considerations to be taken into account by a court in assessing
non-pecuniary damages were set out in Stapley v. Hejslet, 2006 BCCA 34
at para. 46:
[46]
The inexhaustive list of common factors cited in Boyd that
influence an award of non-pecuniary damages includes:
(a) age of the plaintiff;
(b) nature of the injury;
(c) severity and duration of pain;
(d) disability;
(e) emotional suffering; and
(f) loss or impairment of life;
I would add the following factors, although they may arguably
be subsumed in the above list:
(g) impairment of family, marital
and social relationships;
(h) impairment of physical and
mental abilities;
(i) loss of lifestyle; and
(j) the plaintiffs stoicism (as a factor that should not,
generally speaking, penalize the plaintiff: Giang v. Clayton, [2005]
B.C.J. No. 163 (QL), 2005 BCCA 54).
[470] Prior to
the Accident, the plaintiff was a confident, decisive, energetic individual
with an excellent memory and a penchant for detail. He was able to identify a
problem facing him, define the options available for resolving the problem and
choose from among them. He loved challenge and loathed routine. He felt he
could accomplish anything he wanted to. He was the hardest-working emergency
room physician at WHCC. He loved and was passionate about his work. He
thrived on the stimulation and the trauma of the emergency room. He was happy
with his life and enjoyed helping others.
[471] At the
time of the Accident, the plaintiff was at the height of his medical career.
He had a very good reputation as an emergency room physician and was well
respected in the Whistler community. His reputation was important to him and
he was proud of his accomplishments. He had no plans to retire.
[472] There is
no question that the plaintiffs life has changed profoundly as a result of the
Accident. His ability to function in everyday life has been significantly
impaired. He has considerable cognitive challenges that will likely affect him
for the rest of his life. He has lost his overall confidence. He struggles to
make decisions and initiate activities. He is inattentive and displays poor
judgment. He has withdrawn socially. His thresholds for mental and physical
activities are limited to approximately 2 hours and 30 minutes, respectively,
beyond which he becomes symptomatic. He is no longer able to practice as an
emergency room physician, a job he was passionate about and proud of. His
ability to interact with and enjoy his children has been impaired. The medical
experts are of the opinion that his recovery has likely plateaued.
[473] As a
result of the Accident, the plaintiffs ability to work in the job he loved has
been taken from him. He has lost his sense of purpose in life. He no longer
feels that he is a contributing and productive member of society. The
realization that he will be unable to return to his profession and that his
life as it was prior to the Accident is gone has been devastating to him.
[474] He wanted
to engrain in his children the values of hard work and reputation in the
community. It is devastating to him that he cannot show his children that he
works hard.
[475] He has
difficulty identifying problems facing him and defining his options. He cannot
seem to understand the problem and make a decision. He does not trust his own
judgment either medically or as it relates to his real estate investments. He
has trouble making day-to-day life decisions. Although the plaintiff realizes
that he must learn to allow others to help him, he has a great deal of
difficulty accepting that fate.
[476] The
plaintiff submits that an award in the range of $200,000 to $225,000 for
non-pecuniary damages is appropriate in this case, He relies on the following
decisions:
(a) Roussin
v. Bouzenad, 2005 BCSC 1719 ($200,000);
(b) Lines
v. Gordon et al. and ICBC, 2006 BCSC 1929 ($225,000);
(c) Sirna
v. Smolinski, 2007 BCSC 967 ($200,000);
(d) Dikey
v. Samieian, 2008 BCSC 604 ($215,000);
(e) Young
v. Anderson, 2008 BCSC 1306 ($200,000) and
(f)
Burdett v. Eidse, 2011 BCCA 191 ($200,000).
[477] In Roussin,
the plaintiff was a full-time associate producer for a local television station,
who was characterised as being hard-working, focussed, informed and a good
researcher who wanted to excel, but was considering a change in employment (at
paras. 28-29). As the plaintiff was proceeding through an intersection, she
was struck by the defendants vehicle in a T-bone fashion (at para. 5).
The plaintiff sustained a number of injuries in the accident including a MTBI
with significant effects including loss of executive function, dizziness and
vertigo, tinnitus and headaches. She was unable to pursue her chosen career
path, and had severely limited employability (at paras. 95-96). Mr. Justice
Kelleher awarded non-pecuniary damages of $200,000 (para. 97).
[478] In Lines,
the defendant, was travelling behind the plaintiff and attempted to overtake
the plaintiff on the left side when the plaintiff was attempting to make a
left-hand turn, resulting in a T-bone impact (at para. 1). The plaintiff
sustained MTBI and post-concussive syndrome that caused profound ongoing
effects including severe headaches with vestibular dysfunction, fatigue, visual
difficulties, sexual dysfunction, depression and problems higher cognitive
function and capacity such as memory, concentration, decision making and
organization (at para. 219). He also lost his future standing in the
community as a skilled journeyman mechanic or marine engineer, and his
enjoyment of his pre-accident hobbies and activities (at para. 219). Mr. Justice
Lander awarded non-pecuniary damages of $225,000.
[479] In Sirna,
the plaintiff was rollerblading across a marked cross-walk when she was hit
by the defendants vehicle (at para14). The plaintiff was an accomplished
athlete who anticipated enrolling in a dental hygienic course (at paras. 41 and
44). As a result of the accident, the plaintiff sustained a traumatic brain
injury resulting in permanent functional deficits including deficits related to
attention and memory, and impaired sense of smell and additional fatigue,
reactive depression, and a sense of the loss of the person that she was and could
have been before the accident (at para. 111). Mr. Justice Macaulay
assessed non-pecuniary damages at $200,000 (at para. 117).
[480] In Dikey,
the plaintiff was standing in a roadway when he was struck by a sports
utility vehicle driven by the defendant. As a result, the plaintiff suffered a
number of injuries, the most significant being a traumatic brain injury (at para. 2).
After the accident, he had continuing cognitive problems including limitations
with memory, planning, attention, organizing, awareness, concentration,
decision making, judgment, reasoning, language, mental flexibility, abstract
thinking and calculations. He had a tendency to forget to eat and take
medications regularly, and to forget appointments (at para. 110). It was
unlikely that those problems would improve materially (at para. 120). Prior
to the accident, the plaintiff was social and athletic with the ambition to
work in the hotel industry and the courage to come to Canada from Turkey to
pursue that education (at para. 114). Because of the accident, the
plaintiff was unlikely to work, and lost the self-esteem, enjoyment and income
that would have been available to him from work (at para. 142). Madam
Justice Gray assessed non-pecuniary damages of $215,000 (at para. 146)
[481] In Young,
the plaintiffs vehicle was rear-ended in a truck driven by the defendant (at para. 1).
At the time, the plaintiff was almost 51 years old and had been employed for
many years as a cameraman and director of photography in the film industry (at para. 3).
As a result of the accident, the plaintiff was found to have sustained a MTBI
with tinnitus, personality changes and cognitive deficits, as well as chronic
pain, headaches and depression. It was anticipated that the plaintiff would be
chronically unemployable in his chosen profession for the rest of his life.
Madam Justice Boyd assessed non-pecuniary damages of $200,000 (at para. 126).
[482] In Burdett,
the plaintiff was involved in two accidents (at para. 1). He claimed that
as a result of the first accident, he suffered a MTBI and was no longer able to
work at his construction and renovation business (at para. 37). At trial,
Madam Justice Loo concluded that the plaintiff suffered soft tissue injuries and
an MTBI from the first accident, was unlikely to recover and was no longer
capable of working as a contractor and was competitively unemployable (at para. 41).
She also found that the MTBI caused severe cognitive impairments including an
inability to focus, sleep, concentrate or multi-task, and that the plaintiff
experienced frustration, emotional liability and a lack of interest in the
activities that used to give him pleasure (at para. 42). The Court of
Appeal for British Columbia upheld those conclusions on appeal, and thus did
interfere with the trial judges assessment of non-pecuniary damages at $210,000
(at para. 51).
[483] The
defendants submit that the plaintiff is not entitled to any award for non-pecuniary
damages other than a modest award for soft tissue injury. Moreover, they
argue that the plaintiff had a history after the Accident of not complying with
the treatment and medication regimes of his treating physicians and that his
failure to do so is indicative of the minor severity of his post-Accident
symptoms.
[484] Having
considered the principles set out in Stapley, the ordeal that the
plaintiff has gone through, the impact the Accident has had on the plaintiffs
life including the loss of a vibrant medical career that was very important to
him, as well as the cases relied upon by counsel, I find that an award of
$200,000 for non-pecuniary damages is appropriate.
(ii)
Past Income Loss from Medical Practice
[485] Loss of
past income is a hypothetical assessment guided by the plaintiffs earnings prior
to the Accident. It is not an exact calculation: Smith v. Knudsen 2004
BCCA 613 at para 34. The Court must consider both positive and negative
contingencies that, but for the Accident, the plaintiffs income between the
Accident and trial would have been more or less than it was prior to the
Accident.
[486] The
defendants submit that, by the fall of 2010, the plaintiff had received from a
psychiatrist, Dr. Riar, a prognosis that he would improve within six
months. The Court was not provided with any evidence from Dr. Riar
despite both the plaintiff and the defendants having listed him as a witness in
their respective trial briefs.
[487] The
defendants further submit that the plaintiff was not compliant with the
treatment recommended by Dr. Remick, who began treating him in April 2008.
They say that, had he done so, he likely would have been able to return to work
within six months (based upon Dr. Riars prognosis, which is not in
evidence) and that the plaintiff should be precluded from recovering any past wage
loss after October 2008.
[488] I reject
the defendants submissions in this regard. I cannot accept opinion that
was not tendered in evidence. Dr. Riar did not give any evidence let
alone evidence with respect to how the plaintiffs failure to adhere to a treatment
plan might or might not have affected that prognosis.
[489] To the
extent that the defendants suggest the plaintiff did not mitigate his losses,
I note that the plaintiff wanted and continues to want nothing more than
to return to his life as it was prior to the Accident. He did not return to
work as an emergency room physician because he was physically and mentally
incapable of doing so. He attempted to work in surgical assists and in a
walk-in clinic but was unable to continue for the reasons I have set out
above. He earned a total of $14,553.90 during those attempts. I have no
doubt that if the plaintiff could have productively worked more as a physician
he would have done so.
[490] It is
telling that Dr. Kausky, whose evidence I accept unreservedly, testified
that the plaintiff tended to minimize his symptoms, resisted her attempts to
put limitations on his activities, wanted to return to work as soon as possible
and did not react well to her recommendation that he rest both mentally and
physically.
[491] I find
that prior to the Accident, the plaintiff had no medical impairment preventing
him from continuing his work as an emergency room doctor. Although the
defendants attempted to make much of the plaintiffs telephone call to ICBC
less than two weeks before the Accident in respect of which ICBC noted that the
plaintiff continues to have problems with his hands, I accept the
plaintiffs evidence that the carpal tunnel syndrome in his hands and arms had
resolved by the summer of 2006 and that he must have been misunderstood by
ICBC. I find that his inability to concentrate and the poor short-term
memory he demonstrated while performing surgical assists are attributable to
the injuries he suffered during the Accident.
[492] Mr. Bennings
past wage loss calculations were based upon an average of the plaintiffs
income during the five years immediately preceding the Accident. The
defendants submit that the baseline should be the plaintiffs income for the
three years immediately preceding the Accident, thereby excluding the plaintiffs
peak income in 2002.
[493] Mr. Bennings
calculations assume personal income tax rates and not the rates that would had
applied had the plaintiff followed the tax planning which was in place prior to
the Accident, including the use of a professional corporation. The result is
the least favourable to the plaintiff.
[494] Mr. Bennings
income analysis reveals that the plaintiffs income was trending upwards. In
my view, it is more probable than not that the plaintiffs annual income
between the date of the Accident and the date of trial would have been at least
$346,000. That is the figure that should be used to calculate his past income
loss.
[495] I accept Mr. Bennings
calculations that based upon an annual income of $346,000 the plaintiffs net income
loss is $1,453,595. The plaintiffs earnings from surgical assists and the
walk-in clinic must be deducted from this amount. His gross earnings of
$14,553.90 reduced by 41.1% for income tax results in a deduction from his net
past income loss of $8,572.
[496] The
plaintiff is entitled to an award of $1,445,023 for past income loss.
(iii)
Future Loss of Earning Capacity from Medical Practice
[497] The
plaintiff is entitled to compensation for future losses he has shown are a real
and substantial possibility, quantified by estimating the chance of the loss
occurring: Athey at para. 27; Perren v. Lalari 2010 BCCA 140
at para. 30. The valuation of the loss may involve a comparison of what
the plaintiff would probably have earned but for the Accident with what he will
probably earn in his injured condition.
[498] The
plaintiff had no interest in altering his level of work activity before the
Accident. He loved his job and had no plans to retire from it. As a result of
the Accident, the plaintiff is significantly limited by fatigue, poor memory,
inability to concentrate and poor decision making.
[499] I accept
the opinions of Dr. Kausky, Dr. Anton, Dr. Teal and Mr. Hohmann
that the plaintiff is not capable of returning to work as a physician or to any
other occupation requiring higher cognitive function and multi-tasking due to
his cognitive deficits. Any future employment will be limited to non-complex
routine work.
[500] Each of
Drs. Sexton and Teal opined that the plaintiff was and will continue to be
disabled from working as an emergency room physician. Drs. Remick and Anton
went further. They opined that the plaintiff is totally disabled from any form
of competitive employment.
[501] The
defendants did not offer any evidence to suggest otherwise if the Court found,
as it has, that the plaintiff suffered a debilitating concussion as a result of
the Accident.
[502] Taking
into account labour market contingencies related to the plaintiff having become
disabled or deciding to work part-time, Mr. Benning calculated the
plaintiffs future loss of income from his inability to work as an emergency
room physician, assuming an annual loss of $346,000 to age 70, to be
$4,072,410.
[503] Assuming
lost annual future income of $346,000, an application of Mr. Goslings
multipliers (which assume average participation rates for health care
professionals) results in a future loss of income of $3,561,032 (using economic
multipliers) and $4,372,402 (using actuarial multipliers).
[504] In my
view, Mr. Bennings economic multipliers are appropriate in this case.
The evidence is overwhelming that there was a real and substantial possibility
the plaintiff would have continued working as an emergency room physician at
the WHCC, likely until age 70. He was not just an average physician. He
worked longer hours than any other physician at WHCC. He loved his work there.
[505] As a
result of the Accident, the plaintiff is not competitively employable as a
physician. Allowance must be made for the contingency that the assumptions upon
which the foregoing analysis is based may prove to be wrong: Reilly v. Lynn,
2003 BCCA 49 at paras. 101. The plaintiffs symptoms may improve, with
treatment or otherwise. He may secure some form of employment capacity. My
best estimate is that there is a 10% chance of one or more of these
contingencies transpiring.
[506] The
plaintiff is entitled to an award for future loss of earning capacity from his
medical practice of $4,072,410 x 90% = $3,665,169.
(iv)
Future Loss of Earning Capacity – Real Estate Investments
[507] The
plaintiff claims significant damages in respect of the lost opportunity to
purchase and develop further rental properties. He says that the evidence
establishes he had a proven track record of successful real estate development.
He says the opportunity is not mere speculation but that there was a real and
substantial possibility he would have accumulated at least a further $7 million
in real estate equity had the Accident not occurred.
[508] I note,
however, that of the eleven properties currently owned by the plaintiff, Ms. Roth
and/or the Professional Corporation, only four – the Queens Avenue, Connaught
Drive, Toronto and Dunbar properties – were purchased with the intention of
renovating and renting them. The West 14th Avenue, St. Moritz and
Crabapple Drive properties were initially purchased or built as the plaintiff
and Ms. Roths primary residences. The Kelowna property was purchased as
a potential retirement home. The Wasaga Beach property was the plaintiffs
familys vacation cottage. The Snowbridge property was built by the plaintiff
on a vacant lot for the purpose, at least in part, of a winter ski vacation
home. The West 7th Avenue property was acquired by Ms. Roth
with inheritance money she received from her father.
[509] There is
no doubt that the plaintiff is now less capable of developing real estate
property. However, it is pure speculation that any such property would have
been identified much less purchased, renovated and rented for reasonable
amounts. It is equally speculative whether they would have increased in
value. The mere fact that four real estate investments had been successful in
the past does not mean that they will continue to be successful or that any
future investments will prove to be prudent. The real estate market ebbs and
flows based on world factors that cannot be predicted. At a minimum, expert
evidence from economists and real estate professionals regarding market trends
and opportunities was required. No such evidence was led by the plaintiff.
[510] Moreover,
the plaintiff failed to tender any cogent evidence regarding the fair market
value of his various rental properties or the expenses associated with them,
including property taxes, insurance costs, strata fees and building, renovation,
maintenance and improvement costs. The Court is unable to determine the actual
increase in equity of these properties because there was insufficient evidence lead
concerning the capital cost of the properties.
[511] I accept
that, prior to the Accident, the plaintiff and Ms. Roth had planned to
continue look for real estate investment opportunities. I find the
plaintiff had a track record of acumen and success and has established a real
and substantial possibility that, if suitable properties could have been found,
they would have purchased, renovated and rented them. The plaintiff has lost
genuine potential in this regard.
[512] The
evidence is far too speculative to attempt any form of accurate calculation of
an award based upon losses from possible future real estate investments. In
such cases, the Court must do its best to assess the loss: Adamson v.
Charity, 2007 BCSC 671 at para. 278. The overall fairness and
reasonableness of the award must be considered taking into account all the
evidence. It requires an assessment of damages, not a calculation according to
some mathematical formula: Ibbitson v. Cooper, 2012 BCCA 249 at para 19.
[513] Considering
the recent investments that plaintiff made prior to the Accident, that he was on
a roll with that aspect of his investment strategy and that it is impossible
to forecast the future with any accuracy, particularly given the speculative
real estate market, I find that a fair and reasonable award for the
plaintiffs loss of future earning capacity in respect of real estate
investments is $500,000.
(v)
Special Damages
[514] The
plaintiff spent $45,507 for OT treatments with Laurie Nelson ($39,831),
counselling sessions with a psychologist, Dr. Jung ($2,520) and a
concussion clinic with Dr. Iverson ($500). The defendants contest their
obligation to pay these amounts, arguing first that Ms. Nelsons charges
greatly exceed those that Tracy Berry recommended as necessary, and second that
there is no evidence to demonstrate that Dr. Jungs and Dr. Inversons
expenses were necessary.
[515] The
plaintiff benefitted significantly from the sessions with Ms. Nelson.
They resulted in him understanding his condition and becoming better able to
manage it. Although the number of sessions exceeded those initially
recommended by Ms. Berry, I find that they were necessary. The
expenses associated with Ms. Nelsons treatments are allowed.
[516] No
evidence was proffered regarding the reason for or necessity for the sessions
with Drs. Jung and Iverson. Those expenses are not allowed.
[517] The
plaintiff also claims $63,000 for the cost of a nanny for his children
commencing September 2010 to the date of trial (3 years at $21,000 per
year). The defendants say these expenses would have been incurred regardless
of the Accident.
[518] The
uncontroverted evidence is that the plaintiff and Ms. Roth hired a nanny
to help them function because the plaintiff was unable to mind the children and
function in the household because of his Accident-related injuries. Ms. Roth
expects that a nanny will be required until her youngest children are in
school. The nanny is paid $16,800 per year net of her room and board.
[519] I accept Ms. Roths
evidence in this regard. The plaintiff is entitled to compensation for the
cost of a full-time nanny for the three year period preceding the trial at
$16,800 per year.
[520] The
plaintiff is entitled to special damages in the amount of $90,231.
(vi)
Cost of Future Care
[521] The
amounts claimed for future care costs must have some evidentiary link to a
physicians assessment of pain, disability and recommended treatment, and the
care recommended by a qualified health care professional: Gregory v. Insurance
Corporation of British Columbia, 2011 BCCA 144 at para. 39. In that
regard, the Court must perform an analysis of each item of future care cost
being sought by the plaintiff: Gignac v. Insurance Corporation of British
Columbia, 2012 BCCA 351 at para. 32.
[522] In Dr. Kauskys
opinion the plaintiff will likely require ongoing manual therapy (physiotherapy,
massage therapy, chiropractic therapy) and a personal trainer. He may also
require occupational therapy, counseling and a neuropsychologist.
[523] Ms. Berrys
assessment of the plaintiffs future care costs is flawed to the extent that it
relies in part upon assessments and consultations that were not put in evidence
(Drs. Wilkinson, Riar and Jung). Moreover, many of Ms. Berrys
recommended treatments have already been undertaken or abandoned.
[524] The plaintiff
claims the following future care costs (present valued):
(a) Trazadone
($6,229): This amount assumes the plaintiff will take this drug daily. The
evidence shows that he only takes it intermittently. I agree with the
defendants that the claim should be reduced by half to $3,130.
(b) Physiotherapy
($900): This claim is based upon Ms. Berrys 2011 opinion. The evidence
is that the plaintiff is not taking either physiotherapy or massage therapy.
In my view, it is unlikely that the plaintiff will avail himself of this
treatment modality in the future and hence nothing should be award under this
head. This claim is disallowed.
(c) Occupational
Therapy past ($8,391): This part of the claim has been accounted for
under the heading Special damages.
(d) Occupational
Therapy ongoing ($2,976): The plaintiff has benefited significantly from
this therapy. This claim is allowed in full.
(e) Psychology
($38,435): The plaintiff began psychological counseling at the
recommendation of Dr. Anton but discontinued it for approximately 15
months and has only recently resumed it. In my view, it is likely he will
continue to avail himself of this recommended treatment but not to the degree
claimed. I find that an allowance of $1000 per year is reasonable. Using
a multiplier of 16.814, the plaintiff is entitled to an award of $16,814 under
this head.
(f)
Homemaking, Yard and Home Maintenance ($150,130): This claim is
based upon the plaintiff having difficulty performing tasks around the home. I accept
that the plaintiff has limitations in this regard. However the evidence is not
that the plaintiff is physically unable to perform them but rather that he
becomes symptomatic and it takes him longer to perform them. Moreover, to the
extent that the claim for childcare is allowed, Ms. Roth will be freed up
to perform these tasks, which the evidence shows she is doing. I am not
satisfied that the plaintiff has demonstrated the required link between these
claims and his disability. This claim is not allowed.
(g) Childcare
($11,369): Ms. Berry recommends that the plaintiff and Ms. Roth have
childcare for 4 hours per day Monday to Friday and 12 hours over the
weekends, for a total of 32 hours per week. This is best provided by a
full-time live-in nanny. I accept Ms. Berrys opinion that childcare
will be required until Nicholas and Isabella are 11 years of age, that is until
July 2019. The plaintiff is entitled to a present value award of $11,369
under this head.
(h) Rehabilitation
Assistance ($6,942): The plaintiff used a rehabilitation assistant in
2011 for approximately 1‑1/2 years but discontinued that service. I am
not satisfied that the plaintiff will avail himself of this service in the
future. This claim is disallowed.
[525] In
summary, the plaintiff is entitled to an award of $34,289 for the cost of his
future care.
G.
CONCLUSION
[526] The
plaintiff is entitled to judgment against each of Rajinder S. Gill, British
Columbia Transit and Whistler Transit Ltd., John Doe and Jack Doe Company Ltd.,
jointly and severally, for the following amounts:
(a) Non-pecuniary
damages: $ 210,000;
(b) Past
income loss: $ 1,445,023;
(c)
Future Loss of Earning Capacity-Medical Practice: $ 3,665,169;
(d) Future
Loss of Earning Capacity-Real Estate: $ 500,000;
(e) Special
Damages: $ 90,231
(f)
Cost of Future Care: $ 34,289
Total $ 5,944,712
[527] The action
against the Insurance Corporation of British Columbia is dismissed.
[528] The
parties are at liberty to speak to costs.
_______ G.C.
Weatherill J._______
G.C. Weatherill J.