IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140225

Docket: S020691

Registry:
Chilliwack

Between:

Anis Darzikolai
Fadai

Plaintiff

And

Thomas Michael
Cully, Westmeath Developments Corp
and Baycrest Resources Ltd.

Defendants

Before:
The Honourable Mr. Justice Schultes

Reasons for Judgment

I.  INTRODUCTION. 3

II.  EVIDENCE. 3

1)  Mr. Fadai’s
Background. 3

2)  Employment
Before the Accident 3

3)  Behaviour
and Abilities Before the Accident 6

4)  The
Accident and its Immediate Aftermath. 7

5)  Physical
Effects of the Accident 9

6)  Mental
and Psychological Symptoms Since the Accident 11

7)  Employment
and Education Since the Accident 13

8)  Mild
Traumatic Brain Injury and Causation of Symptoms. 16

(a)  Called
on Behalf of Mr. Fadai 16

(i)  Dr. Van
Rijn – Physiatrist 16

(ii)  Dr. Read
– Psychologist 17

(iii)  Dr. Cameron
– Neurologist 18

(b)  Called
on Behalf of Mr. Cully. 21

(i)  Dr. Tessler
– Neurologist 21

(ii)  Dr. Semrau
– Psychiatrist 23

(iii)  Dr. Williams
– Psychologist 24

9)  Employment
and Earning Prospects. 26

III.  POSITIONS OF THE
PARTIES. 28

IV.  ISSUES. 31

V.  DISCUSSION. 32

1)  Causation. 32

(a)  Expert
Evidence. 32

(b)  Evidence
of Mr. Fadai and his Supporting Witnesses. 37

(c)  Conclusion
on Causation. 39

(d)  Damages. 41

(i)  Non-Pecuniary
Damages. 41

(ii)  Past
Loss of Income to the Date of Trial 44

(iii)  Impairment
of Future Earning Capacity. 47

(iv)  Cost
of Future Care. 50

(v)  Special
Damages. 52

VI.  COSTS. 53

I.                
INTRODUCTION

[1]            
This case deals with the consequences to the plaintiff Anis Fadai of a
rear-end motor vehicle collision that he was involved in on January 11, 2008 in
Burnaby. What is in dispute are the nature and extent of the injuries that he
suffered in the accident, and the actual effect that those injuries have had on
his ability to work and enjoy life.

II.              
EVIDENCE

1)             
Mr. Fadai’s Background

[2]            
Mr. Fadai was 28 years old on the trial dates. He was born in Iran
in 1983 and came with his family to Canada in 1996, after they had stayed in
Turkey for about a year. They settled in the Chilliwack area. His father
operates a furniture refinishing business there and his mother has a background
in retail sales.

[3]            
Growing up in Iran Mr. Fadai spoke Farsi. He managed to learn some
Turkish during the family’s brief stay in Turkey. When he first came to Canada
he was in English as a Second Language programs for his first year of
schooling, and for parts of his second and third.

[4]            
He graduated from high school in 2001. In his final transcript he
obtained good marks in the non-academic subjects of art, construction and
physical education, but he did poorly in academic subjects. His attempts to
upgrade his secondary English and Chemistry courses in 2003 resulted in
marginal or failing grades.

2)             
Employment Before the Accident

[5]            
In the six-and-a-half years between leaving high school and the
accident, Mr. Fadai worked mainly in the fields of retail sales and
security.

[6]            
First he worked for “a few months” at a major chain sporting goods
store. He said that he had a record of good sales there and was asked to work
in various different departments as a result.

[7]            
He then worked for two or three years at a security firm, doing
pre-wiring of home security systems and acting as a security guard at various
locations. He described himself as also doing well in this job — reaching the
position of supervisor after only a few months.

[8]            
In 2002 or 2003 he continued with evening security work, but replaced
the alarm pre-wiring during the day with a sales position at Future Shop. He
worked there for a year or so, into early 2005. He was successful he said,
often in the top 20 in Canada for his department and a couple of times in the
top 10. Compensation was mainly by commission, on top of a low basic wage. He
testified that he made “good money” there, but did not recall his average
earnings.

[9]            
Gerry McIntyre, the Future Shop store manager in Abbotsford during that
period, recalled Mr. Fadai as a “personable, sharp guy” who quickly became
one of the leaders in sales in the audio department. No specific sales records
for Mr. Fadai are available now, but Mr. McIntyre estimated that a
top salesman could earn $35,000 – $50,000 per year in car audio and
$70,000 per year or more in the cell phone department.

[10]        
His mother also worked at Future Shop and was a perennial top seller. She
said that Mr. Fadai was well-liked by managers, and whenever she checked
his sales figures she found that he was always in the top 10 or 20 for his
department in Canada.

[11]        
Up to this point he had been living at home. When he left Future Shop he
decided to move to Nanaimo. Initially he did construction work and putting up
house siding there, before landing a sales position in the car audio department
at A & B Sound. He worked there for a year and said that during that time
he became the “number one” sales representative in the store.

[12]        
In 2006 he moved back to the lower mainland — to the A & B Sound branch
in Maple Ridge — in order be closer to his family.

[13]        
He only worked there a month and a half before returning to Nanaimo,
this time to the Future Shop there. He made that move because he felt there was
a limit to what he could earn at A & B, compared to what was available at
Future Shop.

[14]        
However, that new Future Shop employment came to an abrupt end after
slightly more than a month. On Boxing Day a glitch in entering some of his
sales into the store’s records system threatened to deprive him of hundreds of
dollars of commissions, on what is typically the highest-earning day of the
year for salespeople. The manager refused to correct it and Mr. Fadai left
the store angrily. When he returned after a few days, his name was not on the
work schedule and he and the manager mutually agreed that he should leave his
position.

[15]        
Mr. Fadai moved on to selling cell phones at Wireless Wave in
Nanaimo, a job he was able to obtain because his roommate at the time, Tony
Simonian, was the store manager. He left after about three months to pursue
what he saw as a better opportunity in sales at a local Ford dealership. In
that regard he maintained that the entry on his employment record from Wireless
Wave indicating “not suitable for position” as the reason that it ended was
incorrect.

[16]        
Mr. Simonian testified to Mr. Fadai’s proficiency as a
salesperson, and said that a person in such a position could make $50,000 – $60,000
per year, and even more in a larger market. He was no longer the manager of
that store when Mr. Fadai left, but he theorized that “not suitable for
position” was used in the case of employees who leave while still on probation,
to avoid potential legal problems, although in cross-examination he said that
he assumed that Mr. Fadai was let go because he was not suitable.

[17]        
Unfortunately the suspension of Mr. Fadai’s driver’s licence
through accumulated violations caused him to lose the auto sales position,
which not surprisingly required a valid licence, after only three months.

[18]        
He returned to Chilliwack and his father began to employ him as an
assistant in his shop. According to his father’s evidence, this was due to the
father’s back problems. His main responsibilities were stripping down furniture
and refinishing it. He worked roughly 40 hours per week and was paid $2,500 per
month.

[19]        
He also began to work on Friday and Saturday nights doing security work
at a nightclub in Vancouver called Fabric. He was paid in cash, which he did
not declare as income for tax purposes. The amount varied depending on the
amount of tips the club received that night, but he said that it was usually in
the $150 – $200 range.

[20]        
According to his tax returns for the years 2006 – 2008, his total income
during them was $8,223, $13,256 and $12,666 respectively.

3)             
Behaviour and Abilities Before the Accident

[21]        
Mr. Fadai described maintaining a high level of fitness. He was
involved in numerous sports, engaged in martial arts training and worked out
regularly.

[22]        
He had an active social life but drank alcohol very little. He enjoyed
spending time with his family, in particular playing a Persian card game that
requires a good memory.

[23]        
His habit was to avoid fights or physical confrontations in his
interactions with people, despite his background in martial arts.

[24]        
In his security work, he described himself as being adept at defusing
volatile situations involving angry and/or intoxicated attendees without having
to use violence. Among the examples he gave were of a wedding, a music concert
and at his nightclub. In each case, his verbal skills and ability to assess the
situation allowed him to de-escalate problems before they became violent or
failing that to interrupt fights and re-establish control over the situation
with minimal force.

[25]        
He described similar abilities in his sales positions — he could
placate irate customers, juggle multiple inquiries and assist his colleagues,
all without difficulty.

[26]        
He also had no problems following his father’s directions and serving as
an effective assistant in the furniture shop, which his father confirmed in his
evidence.

4)             
The Accident and its Immediate Aftermath

[27]        
Mr. Fadai has no memory of the actual accident. He recalls shifting
down to second from third gear in his car and seeing white lights behind him.
His next recollection was of putting his clothes on at the hospital after being
discharged.

[28]        
It is clear from the other evidence however that the accident occurred
at around 7:30 in the evening in the westbound centre lane of Highway 1, just
east of the Kensington off-ramp.

[29]        
In his discovery evidence, which was read in at trial, the defendant Mr. Cully
said that the traffic in front of him had stopped unexpectedly and he was
unable to brake in time to avoid hitting Mr. Fadai’s Honda sedan, which
was the vehicle immediately in front of him, with his Ford Explorer. He was
later given a ticket for driving without due care and attention, which he did
not dispute.

[30]        
Significant damage resulted to both vehicles. It appears that as a
result of the collision Mr. Fadai’s vehicle also struck the one in front
of him, causing some damage to his front end. When he went with his father to
the towing yard to recover his vehicle two days later he noticed, in addition
to the exterior damage, that his driver’s seat had been broken.

[31]        
Although Mr. Cully pulled his vehicle over to the shoulder after
impact and the vehicle in front of Mr. Fadai pulled over as well, the
Honda, with Mr. Fadai in it, remained in the centre lane.

[32]        
John Roberts, the ambulance paramedic who attended the accident, noted
in his crew report that Mr. Fadai had been wearing his seatbelt, had “no
complaints” and had suffered no loss of consciousness, but that he also
appeared to be having some memory problems, such as about what had hit him and
whether his car was totalled.

[33]        
Mr. Roberts tested Mr. Fadai’s memory by giving him some
colours to remember, but Mr. Fadai could not remember them. In the portion
of his report for the patient’s state of consciousness Mr. Roberts wrote
“aware – some confusion”. He also administered the Glasgow Coma Scale, a
standard test of a patient’s level of consciousness, twice to Mr. Fadai,
once around the time of his initial attendance and once at the hospital, and
obtained normal scores of 15 points both times.

[34]        
However Lisa Dewar, the nurse who examined him at Burnaby Hospital gave Mr. Fadai
only 14 out of 15 on that scale, downgrading him to “disoriented and converses”
under the “best verbal response” section of the test. In her notes she
described him as “alert but disoriented as to time”. He kept asking, “I was in
a car accident, right?”

[35]        
Dr. Johar, the emergency physician who examined Mr. Fadai,
found a small abrasion at the back of his head. This finding, coupled with the
documentation of amnesia in the material he was given caused him to send Mr. Fadai
for a CT scan. Mr. Fadai told Dr. Johar that he felt “fine.”

[36]        
The doctor who relieved Dr. Johar, and who actually discharged Mr. Fadai
at about 11:18 p.m. that same night, did not make any entries on the medical
chart about his observations of Mr. Fadai’s condition. However it is
common ground that the CT scan taken that night, as well as a second one taken
a few weeks later in Chilliwack, did not reveal any evidence of a head injury.

[37]        
Mr. Fadai’s younger brother Sabah received about 10 phone calls
from Mr. Fadai while he was still at the hospital. In each call Mr. Fadai
wondered whether he had a driver’s licence and whether the car was insured. He
also told Sabah in at least one of the calls that he thought he had been in an
accident.

[38]        
Mr. Fadai testified that when he examined his phone later, he found
that, although he could not recall them, he had seemingly made numerous calls
after the accident, to his brother and others.

[39]        
When Sabah got to the hospital he was surprised to find their cousin,
with whom they had fallen out the previous week and decided to cut out of their
lives, sitting there with his brother, who had apparently contacted the cousin.
He found Mr. Fadai to be “a bit out of it – not normal”.

[40]        
Sabah is a professional mixed martial arts fighter and on the drive home
Mr. Fadai was unable to recall whether Sabah’s upcoming fight had taken
place yet. Mr. Fadai also told Sabah that he had a concussion and was not
supposed to go to sleep. Sabah chatted with him to keep him awake.

[41]        
When Mr. Fadai got home his mother found him “too excited” and
“jumpy”. He complained of a headache and sore neck. His father found that he
was not speaking properly, and would jump rapidly from one topic to another.

5)             
Physical Effects of the Accident

[42]        
When he awoke the next morning, he had a headache throughout his entire
head, and was sore in his mid-back area and left wrist. He went to Chilliwack
Hospital, where he said he was prescribed “lots of Advil” for the headache and
told to see his family doctor right away. His resulting excessive consumption
of Advil was later cut back at the direction of his doctors.

[43]        
He was particularly troubled by headaches from then on, which he said
came every day, throughout the day, and were very intense. He would wake up in
the night with them as well, which disrupted his sleep.

[44]        
He began to develop pain on his right side, from his shoulder up through
the neck to the back of his head.

[45]        
He saw a physiotherapist, Mr. DeVett, for seven sessions, the last
one about six weeks after the accident. The treatment addressed issues of
mid-thoracic strain and neck strain. There is no reference to headaches in the
physiotherapy records.

[46]        
At the end of his last session he told Mr. DeVett that he was
“feeling recovered”, would like to hold off on further treatments for the time
being and had returned to the activities of daily living, including work.

[47]        
Mr. Fadai testified that the physiotherapy helped with the pain in
his mid-back but did nothing for the neck and shoulder pain and headaches.
Clearly the headaches were a significant ongoing concern, because he saw Dr. Johnston,
a neurologist, about them on June 12, 2008, following a referral by his family
doctor.

[48]        
Because notice was not given of the intention to use his letter as an
expert report, Dr. Johnston’s opinion about the cause of the headaches is
not being relied on to advance Mr. Fadai’s case. The history that he took
from Mr. Fadai will be relevant to the timing of the onset of Mr. Fadai’s
cognitive and behavioural issues however, because he recorded:

His memory is poor, but he says
his concentration is adequate. His friends noted irritability and “rudeness.”

[49]        
In relation to the wrist injury, Mr. Fadai simply said that the
pain resolved over time.

[50]        
For six to eight months he could not bend his neck to the right and it
was up to a year before the neck pain went away.

[51]        
The top of his right shoulder started to hurt as the neck pain
diminished. The duration of this shoulder pain was not clear in Mr. Fadai’s
evidence but it appeared that it was at its worst “a year and a bit” after the
accident.

[52]        
Shooting pains in his head resolved within a year to a year-and-a-half
of the accident and he said he had not had any of the headaches that started
after the accident “in the last couple of years”, which would mean that they
ended some time in 2010. Once the headaches resolved that ended his sleeping
problems.

[53]        
In cross-examination he accepted the slightly reduced recovery times
that were suggested to him for some of these injuries by Mr. Cully’s
counsel — within a year for the neck pain, by the end of a year for the
shoulder pain and by one-and-a-half years from the accident for the headaches
and resulting sleep difficulties.

6)             
Mental and Psychological Symptoms Since the Accident

[54]        
Mr. Fadai described having problems with his short-term memory
since the accident. This ranged from forgetting people’s names and phone
numbers to forgetting the topic being discussed in the middle of conversations.
He first noticed these problems a month or two after the accident, when he was
home with his headaches.

[55]        
It has since improved, “to the point that it is pretty good” he said —
later modifying that to say that there had been “some” improvement. He noticed
that improvement about six months before the trial. He does not notice problems
with his memory during conversations, but others tell him he still has them.

[56]        
He described having to take notes on his phone or on paper to remember
things. I infer that he was saying that this is necessary on an ongoing basis.

[57]        
He agreed on cross-examination that there had been an improvement in his
short-term memory after about two years.

[58]        
Perhaps the most significant change from his own point of view has been Mr. Fadai’s
post-accident problems with maintaining patience and regulating his anger, in
situations that he was formerly able to handle easily. Some representative
examples of this behaviour were:

·      
When an older man who is a long-time family friend made repeated
jokes at a family gathering about Mr. Fadai being homosexual, he picked
the friend up, turned him upside down and was about to throw him, before his
father intervened and persuaded him to put the friend down. The time when this
occurred in relation to the accident was not specified.

·      
While attending a Chilliwack bar with his brother and some
friends, he responded to threats from a stranger by knocking out that stranger
and a companion by punching them. Mr. Fadai blacked out after punching the
first person and did not know until later that he had beaten up two people. He
had been drinking alcohol, but not much because he was going to be driving.
This occurred a year to a year-and-a-half after the accident.

·      
About two weeks later, he and two companions went back to the
same bar. He had just arrived and so had not started drinking yet. When he came
out of the washroom someone was calling his female companion “a whore”. He
started beating that person up and was then struck by someone else. He ended up
with his back to the bar, beating “these guys” up (apparently others had joined
in attacking him) one after the other, knocking them all out, including a
friend who was trying to stop him.

[59]        
There were also numerous instances described of irrational impatience
and anger that did not escalate into violence, such as berating a beloved aunt
for expressing her theories on the health dangers of cell phone usage, or
becoming enraged and squaring up with an RCMP officer after what he regarded as
an unjustified traffic stop, before his father arrived on the scene to calm
things down.

[60]        
In contrast to his moderate use of alcohol before the accident, Mr. Fadai
testified that his consumption since then has increased markedly. When he and
his brother had an apartment in Chilliwack in 2008, Mr. Fadai would drink
“all day long”, including in the morning, which his brother did not like. Sabah
said that this excessive drinking went on for about a two-month period.

[61]        
Mr. Fadai has abandoned his formerly fastidious approach to
personal fitness, and gained 45 pounds.

[62]        
He has become financially irresponsible, spending to the maximum on all
of his credit cards, taking out over $20,000 in bank loans and borrowing
$20,000 or more from his parents without repaying it. His mother thought that
she alone had loaned him amounts more in the area of $40,000. He is prone to
inexplicable impulse purchases, such as buying dozens of pairs of expensive
sunglasses.

[63]        
He has also become hyper-sexualized, going from a modest number of
romantic and sexual relationships before the accident to having had “in the
range of a hundred” sexual partners since then.

[64]        
In general, he said that his friends do not want to be around him. His
parents go to great lengths to avoid getting him angry. He said it is “really
weird” how people are treating him and that he “doesn’t really know” why he
does these things.

[65]        
His parents, brother and uncle, as well as his friends — Mr. Simonian,
Yanni Giannoulas and Jordan Downing, described Mr. Fadai’s rudeness,
impatience and susceptibility to anger in numerous situations, even when he had
not been drinking; his financial irresponsibility; as well as his general lack
of motivation and inability to start or finish anything. For example, Mr. Simonian
described Mr. Fadai’s extreme difficulty in keeping up payments on his
cell phones, which he still obtains from Mr. Simonian. Mr. Downing
recalled him “flipping out” at Mr. Downing’s girlfriend for no apparent
reason, and Mr. Giannoulas had a similar experience with him at Christmas
party.

7)             
Employment and Education Since the Accident

[66]        
Mr. Fadai attempted three shifts as a bouncer at Fabric, but left
by mutual agreement with the manager. Unlike his previous approach to
controlling unruly patrons, he said that he was unable to restrain himself from
intervening violently with them right away, which had disastrous effects.

[67]        
He said that it was four to six months after the accident that he
actually went back to in his father’s furniture shop, although his father paid
him in the interim. His first paycheque after the accident was at the end of
February of 2008, a month afterwards, but he maintained that his father was
just paying him because he needed the money, not because he was actually
working. He also said that he would not have told the physiotherapist that he
was recovered and had returned to work. He agreed though that he went to the
Philippines for a two or three-week vacation in March of that year.

[68]        
His father reported that after the accident Mr. Fadai was unable to
follow his directions in the shop, for example mixing a vastly larger amount of
wood stain than his father had requested, wasting valuable ingredients in the
process. He would blow up in anger if his father corrected his mistakes. He
seemed incapable of relaying messages from customers, which cost the business
several valuable jobs, or dealing with them patiently. He also worked very
slowly, taking a long time to do routine tasks. While his father was away he
took it upon himself to redecorate the shop without permission, leaving the job
half-completed and in the course of it disposing recklessly of his father’s
very valuable antique furniture that had decorated it previously.

[69]        
During the time he was working for his father, he took a month off to
fill in for a vacationing friend at the Wireless Wave store in Victoria. He
testified that this did not pan out, because he had no patience for customers,
would forget the information that he was given, and generally had no interest
in the work.

[70]        
In May 2010 he enrolled in a pharmacy program in a university in the
Philippines. His brother studied dentistry there at the same time. I infer,
given Mr. Fadai’s previous academic record, that the standards for
admission are more relaxed at that university than at pharmacy schools
elsewhere. He stayed for two terms, failing all his courses. According to him,
the cause of this failure was that his post-accident memory difficulties had
prevented him from studying effectively.

[71]        
While in the Philippines he engaged in the same sort of irresponsible
behaviour as he had at home, such as repeatedly borrowing money from his
brother and then spending it on frivolous items or on attending restaurants. Several
times he left the assembly of electronic or mechanical items, a task at which
he was very proficient before the accident and took pride in, messily incomplete.

[72]        
In the summer of 2011, after returning from the Philippines, he moved to
Fort McMurray, Alberta, I infer in search of other employment opportunities.
His post-accident difficulties continued to plague him there.

[73]        
He was hired at the local Brick furniture store on the strength of his
sales background, but lost the position after a month, following a dispute with
his manager in which he cursed the manger out and threatened to slap him.

[74]        
On another occasion he was building a shed for someone whom he felt at
one point was asking him too many questions. He took this person by the throat
and threatened to “knock him out” if he asked anything else.

[75]        
He did a succession of other labour, construction and related jobs in
Fort McMurray, which he lost through conflict, was unable to do profitably, or
simply did not enjoy. Many were for cash. His attempts to contract the
construction of a basement ended disastrously because he was unable to complete
the job on time, which required him to borrow thousands of dollars from his
parents to hire someone else to complete it.

[76]        
Finally, he has attempted the relatively complex task of organizing and
promoting music concerts in clubs, both in Chilliwack and in Fort McMurray,
completely without success in each case. However he agreed with the suggestion
on cross-examination that the business proposal that he put forward for
promoting concerts locally was described by the person to whom he submitted it
as the best he had ever seen, and that those local concerts failed because of a
lack of financing.

[77]        
He denied the suggestion that he returned to work for his father after
moving back from Fort McMurray, despite an entry on his Twitter account for
January 9, 2012 in which he wrote “Off to work with dad! Been 3 years since
I’ve done that…” His father testified that except for minding the store once
for two days when he and his wife went on a trip, Mr. Fadai has not worked
for him since he went to school in the Philippines.

8)             
Mild Traumatic Brain Injury and Causation of Symptoms

[78]        
Several expert witnesses gave opinions in the trial about Mr. Fadai’s
injuries and level of disability.

[79]        
As I will discuss, the contested issue in this trial was ultimately
whether the injury that Mr. Fadai suffered in this accident is responsible
for his cognitive and behavioural problems since then. I will therefore focus
on the parts of the experts’ reports and testimony that deal with that issue.

(a)           
Called on Behalf of Mr. Fadai

                                                     
(i)                   
Dr. Van Rijn – Physiatrist

[80]        
He met with Mr. Fadai in June of 2009. The relevant complaints he
dealt with were problems with short-term memory and temperament since the
accident.

[81]        
His initial opinion was that Mr. Fadai had suffered a “mild to
moderate” traumatic brain injury. However, after Mr. Fadai’s actual level
of consciousness at the scene of the accident and his period of amnesia
following it were put to him on cross-examination, he accepted that those
factors met the criteria for a mild traumatic brain injury. Nevertheless, he
emphasized that very poor outcomes, of the kind that Mr. Fadai seemed to
be experiencing, are also observed following injuries that fall into the mild
category.

[82]        
He also agreed that although Mr. Fadai claimed no memory of the
events of the four days before the accident, the fact that he recalled gearing
down and seeing bright lights beforehand meant that the actual period of
retrograde (that is, pre-trauma) amnesia would only have been for seconds.

[83]        
He found the short-term memory problems “more likely” to have resulted
from alteration in Mr. Fadai’s brain function from the accident than from
more common causes, like pain medication or post-accident mood dysfunction. The
accident was also “probably materially responsible” for the changes in Mr. Fadai’s
temperament. He recommended further evaluation of Mr. Fadai’s cognitive
functioning to assess its effect on his vocational potential.

[84]        
He did not test Mr. Fadai’s cognitive or mental status and did not
investigate any collateral sources of information about his behavior.

                                                   
(ii)                   
Dr. Read – Psychologist

[85]        
He saw Mr. Fadai twice — for an initial interview and screening in
October 2009 and a full neuropsychological assessment over three days in
January and February 2010.

[86]        
As a preliminary matter, Dr. Read satisfied himself that his
testing would be accurate, even though Mr. Fadai comes from a different
cultural background than the tests are “normed” on, and English is not his
first language.

[87]        
A critical finding in Dr. Read’s report was that:

The pattern of [Mr. Fadai’s]
neuropsychological test performance was generally not typical of the
residual effects of a mild-to-moderate traumatic brain injury. [Emphasis added.]

[88]        
In essence, Mr. Fadai’s difficulties were in areas that are rarely
affected by such injuries, and his performance was at least average in tests of
the abilities that are likely to be affected by it.

[89]        
Despite this, he concluded that Mr. Fadai’s:

…post-accident difficulties with
short-term verbal memory, spelling, language comprehension and impaired
self-regulation are consistent with the direct effects of the mild-to-moderate
traumatic brain injury that he was diagnosed as suffering in the January 11,
2008 motor vehicle accident. [Emphasis
added.]

[90]        
Dr. Read based this conclusion on the fact that Mr. Fadai
suffered a “significant concussion” in the accident, and that his weak scores
on spelling and rote memory were consistent with his self-report. This was in
turn supported by his brother’s collateral report of his difficulties in the
same area.

[91]        
He elaborated on this apparent contradiction in his direct evidence. He
emphasized that neuropsychology is “not just the tests” — medical records and
interviews with the client and collaterals must also be taken into account. A
consideration of those additional sources in this case reveals aspects of Mr. Fadai’s
situation, such as his decreased self-control, that are certainly associated
with an injury to the frontal lobes of the brain.

[92]        
In cross-examination, Dr. Read accepted that the criteria for
assessing the level of a traumatic brain injury would put Mr. Fadai in the
mild category, rather than mild to moderate as Dr. Van Rijn had originally
diagnosed, and Dr. Read had relied on.

[93]        
He also accepted an excerpt from the literature in this field that
stated the symptoms of mild traumatic brain injury “generally resolves [sic] in
days to weeks, and leave the patient with no impairment” and that patients with
persistent symptoms generally have other complicating factors.

[94]        
In addition, he accepted the portion of another journal article that
asserted that the “stronger” studies of this kind of injury show that the
symptoms are largely resolved within three months to one year — although the
search goes on to find out why some individuals experience persistent symptoms.

[95]        
In his clinical experience there is a minority of individuals whose
symptoms persist in this manner. Statistically, this group of sufferers is
thought to be in the 1 ‑ 5% range of overall injuries.

                                                 
(iii)                   
Dr. Cameron – Neurologist

[96]        
He saw Mr. Fadai in October of 2011.

[97]        
His opinion, based on Mr. Fadai’s clinical condition after the
accident, is that Mr. Fadai suffered a mild traumatic brain injury, or a
“concussion” as it is often called. The “significant behaviour changes” that Mr. Fadai
has manifested since the accident may be due to focal brain trauma involving
the frontal lobes of Mr. Fadai’s brain. He is not able to say that this is
probable, but given the clinical presentation it is possible. As he put it,
“our flags go up” in this kind of situation.

[98]        
The frontal lobes regulate what Dr. Cameron described as the higher
levels of cognitive functioning, such areas as executive planning, memory,
concentration, attention span, insight, social and sexual behaviour and
relationships.

[99]        
He recommended a MRI brain scan, which would be much better at revealing
such injury than the previous CT scans. However, he emphasized that the changes
involved in a frontal lobe injury are microscopic and may not be revealed under
an MRI.

[100]     He also
recommended psychological counselling to assist Mr. Fadai in managing his
behaviour problems.

[101]     There is
no treatment for cognitive problems however. There is cognitive re-training,
which assists patients in maximizing the cognitive ability that they do have,
such as by improving their memory and concentration through practice.

[102]     His
conclusion is that Mr. Fadai is “significantly disabled” as a result of
his psychological problems. These problems could be from a frontal lobe injury
“and/or” the development of psychological problems from the concussion.
“Probable residual cognitive problems” from the concussion would also play a
role in this disability.

[103]     Given that
he was seeing Mr. Fadai more than three years after the accident, he did
not expect to see further improvement in the symptoms. The vast majority of
those who suffer mild traumatic brain injuries do not suffer long-term effects
and get better in a matter of days to a few weeks; 10 – 15% of patients do have
longer-term effects. The rate of improvement is maximal in the first year and
then tails off. At the end of two years patients will have plateaued in
achieving improvement with their problems.

[104]     Dr. Cameron
relied on Mr. Fadai’s self-report and the opinions of the other experts in
the case who examined him, in order to reach his conclusion. He was adamant
during his cross-examination in rejecting a passage from the American Medical
Association’s guide to evaluating causation that stated that relying on patient
self-reports is always an unreliable process. He explained that patients will
attribute a lot of symptoms to an accident, and it is up to the evaluating
physician to determine what may or may not be related.

[105]     He agreed
that decreased libido is seen more often following an injury of this kind than
the increased one reported by Mr. Fadai, but noted that an increase also
correlates with frontal lobe dysfunction.

[106]     He
accepted the proposition from the literature put to him that financial gain can
be seen as a motive in the small portion of patients with mild traumatic brain
injury whose symptoms persist, but added the proviso that most sufferers do not
want to be in this predicament. They end up with low self-esteem and
depression, feeling stupid or useless. When one subtracts those who did not
have pre-existing psychiatric illness and are not looking for a payout, there still
remains a group whose only motivation is that they want their previous life
back but are unable to recover.

[107]     He firmly
rejected the proposition from the literature put to him by Mr. Cully’s
counsel that a more accurate estimate of the proportion of long-term sufferers
is actually 1 – 5% of mild traumatic brain injuries. His figure of 10 – 15%
is the consensus of those who assess these kinds of injuries. Those who have no
psychiatric history or financial motive accompanying their symptoms (factors
that presumably would detract from their credibility) are a smaller group within
that 10 ‑ 15%.

[108]     In
essence, he explained that while it is impossible to tease out which symptoms
stem from the physical injury itself and which stem from depression, Mr. Fadai
is suffering from all of them as a result of the accident.

(b)           
Called on Behalf of Mr. Cully

                                                     
(i)                   
Dr. Tessler – Neurologist

[109]     He saw Mr. Fadai
in June 2011.

[110]     Based on
the effects of the accident on Mr. Fadai (his Glasgow Coma Scale scores at
the scene and the degrees of pre- and post-accident amnesia) Dr. Tessler
concluded that he suffered a mild traumatic brain injury. However he made a
point of adding that “severe injury can have a very good outcome and mild
injury may have a poor outcome, in general terms.”

[111]     He noted
that the period of pre-accident amnesia in this case was just seconds. Mr. Fadai
did not remember having had a fight with his cousin four days before the
accident, but Dr. Tessler pointed out that this absence of memory occurred
during the post-accident amnesia period, and that Mr. Fadai still had the
“presence of mind” to call his brother and his cousin and to be concerned about
his insurance coverage.

[112]     In any
case, pre-accident amnesia is not one of the criteria accepted by the American
Rehabilitation Society for classifying traumatic brain injuries, so Dr. Tessler
did not make it a factor in his assessment.

[113]     In
contrast to the results of Dr. Cameron’s mental status examination of Mr. Fadai,
some of which were unsatisfactory, Dr. Tessler observed that the results
of a more difficult test that he had administered to Mr. Fadai, to detect
mild cognitive dysfunction, yielded a score in the normal range. This
difference reflected “some inconsistency” in Mr. Fadai’s performance, Dr. Tessler
said.

[114]     Dr. Tessler’s
only opinion about cognitive issues in his initial report is that Mr. Fadai
developed several months of post-traumatic headaches, and that these could have
interfered with his concentration.

[115]     He
deferred to psychiatric assessment about the nature of Mr. Fadai’s claimed
personality changes, particularly on the questions of whether the degree of
aggression is out of the norm and the hyper-sexuality is significant. Ultimately
his view was that the cognitive and personality complaints are “best assessed
by consensus of neuropsychologists and psychiatrists.”

[116]     He agreed
with Dr. Cameron’s recommendations for vocational assessment and possibly
psychotherapy for Mr. Fadai.

[117]     He also
agreed that an MRI might detect a structural brain abnormality but suspected
that the results “might be normal”. He explained in cross-examination that,
given the loss of consciousness was brief if it occurred at all, and given the
short period of post-accident amnesia, an MRI “may or may not” show a
structural abnormality in Mr. Fadai’s brain. From a clinical point of view
it does not matter either way, he said, because “you find the patient the way
he is.”

[118]     He
accepted the suggestions in cross-examination that a mild traumatic brain
injury can occur without a loss of consciousness. In this case there is no way
of knowing whether or not Mr. Fadai had such a loss, because people are
usually unable to say themselves whether they have lost consciousness and it
was not witnessed by anyone else. He explained that Mr. Fadai’s
post-accident repetitiveness was a case of the information that he received not
being retained, because of his temporarily distorted mental state.

[119]     He also
accepted the suggestion that where there is no demonstrative evidence of a
brain injury available through CT or MRI scans, an injury to the frontal lobe
must be diagnosed through symptomology. That would include self-reporting from
the patient, and collateral reports from friends and family members who knew
him before and after the accident.

[120]     He has
diagnosed frontal lobe damage in patients with mild traumatic brain injury
before, but it usually occurs in the case of more serious injuries, not the
mild category.

                                                   
(ii)                   
Dr. Semrau – Psychiatrist

[121]     He
interviewed Mr. Fadai the day after Dr. Tessler saw him.

[122]     As an
overview, Dr. Semrau expressed concerns about the objectivity and
reliability of the information that Mr. Fadai provided to him, which he
said limited the confidence with which he could express his opinions. His
concerns were based on conflicts between the objective information available to
him and Mr. Fadai’s descriptions of his academic performance, his reasons
for not pursuing his boyhood dream of a career in aviation, and the motivation
behind his transient employment history. In his testimony Dr. Semrau added
concerns about Mr. Fadai’s style of communication during their interview,
which he found “superficial, glib and smooth”, and about Mr. Fadai’s
inability to back up his general assertions with details.

[123]     Although
the circumstances of the accident created the risk of Mr. Fadai developing
post-concussion symptoms, in Dr. Semrau’s view it is likely that any such
symptoms would have been “relatively mild and short-lived.”

[124]     He
contrasted Mr. Fadai’s description of irritability and aggressiveness with
instances of his self-restraint and appropriate behaviour in potentially trying
situations, including a frustrating test that had been administered by Dr. Read,
and when he was being confronted by Dr. Semrau himself on the accuracy of
some of his statements.

[125]     In his
view, Mr. Fadai’s behavioural symptoms are largely, if not entirely,
accounted for by factors other than a traumatic brain injury, such as his
pre-accident disposition towards aggressive physical activity, irritation due
to intense post-accident pain, difficulty in coping with his father’s
perfectionism and marked increase in alcohol consumption.

[126]     With
respect to Mr. Fadai’s cognitive problems, he noted Mr. Fadai’s
self-report that “his verbal expression abilities and short-term memory are now
okay.”

[127]     He found
evidence of mild vehicle travel anxiety and mild depression, the latter
attributable to Mr. Fadai’s (at that time) recent failure in university.
He also detected evidence of possible narcissistic personality traits based on Mr. Fadai’s
remarks during the interview.

[128]     Dr. Semrau
concluded that Mr. Fadai’s mental health prognosis for symptoms related to
the accident was excellent, because they had largely resolved. As to Mr. Fadai’s
education and employment, he found that any mental health symptoms arising from
the accident “have not been significantly limiting in the past and are unlikely
to interfere in the future either.”

[129]     In
cross-examination Dr. Semrau conceded that he could not rule out the
contribution of brain injury to Mr. Fadai’s behaviour. There is obviously
no definitive test for that. Rather, it is his opinion that the other factors
he has referred to provide a “satisfying explanation” of the increased
irritability and aggression.

[130]     Dr. Semrau
emphasized that the problem with anecdotal evidence of Mr. Fadai’s
post-accident difficulties is that everyone can come up with examples of
something if they are “properly focussed” on it. In his view it would be a poor
practice to make a diagnosis out of a collection of anecdotes.

                                                 
(iii)                   
Dr. Williams – Psychologist

[131]     The
purpose of his evidence was to provide a critique of the methods and
conclusions in Dr. Read’s assessment of Mr. Fadai.

[132]     According
to Dr. Williams, Dr. Read fell short of the required standards for a
proper neuropsychological assessment in numerous ways, including:

·      
He based important conclusions on Mr. Fadai’s self-report,
including accepting the existence of symptoms that do not usually result from
injuries of this kind;

·      
He did not take into account the potential effect of Mr. Fadai’s
alcohol use on his behaviour;

·      
He did not use what has been recognized as the best standardized
neuropsychological test battery; instead relying on obsolete tests and
interpreting other tests incorrectly;

·      
He did not assess Mr. Fadai’s pain level before taking the
tests even though Mr. Fadai told him that he was suffering from a
headache;

·      
He gave no weight to obvious examples of Mr. Fadai engaging
in complex cognitive tasks and regulating his behaviour in the face of
provocation; and

·      
Perhaps most fundamentally, he did not adjust or interpret his
testing in light of Mr. Fadai’s cultural background and limited English
language skills.

[133]     Dr. Williams’s
criticism of Dr. Read’s report was very wide-ranging. Virtually every part
of the report was annotated as having been deficient in some respect.

[134]     Dr. Williams
appended to his report and adopted in his opinion some of the same professional
standards and guidelines for assessment that Mr. Cully’s counsel had put
to Mr. Fadai’s expert witnesses in cross-examination. The most important
of these were the warning against relying solely on patient self-reporting of
injuries and the prevailing wisdom that symptoms following a mild traumatic
brain injury are usually of brief duration and mild severity.

[135]     In
cross-examination, he agreed that some of the definitions that are used in his
field say that a mild traumatic brain injury can occur without a loss of
consciousness. He also agreed that the literature acknowledges that some mild
traumatic brain injuries will not be detected by CT or MRI scans. A frontal
lobe injury could “possibly” result in some of the behavioural symptoms
experienced by Mr. Fadai, he conceded.

[136]     As to his
central concern with Mr. Fadai’s language proficiency, he agreed with the
American Psychological Association standard that assessing a subject’s language
proficiency could include the subject’s self-identification that he or she is
proficient in that language. He went on to point out however that in a forensic
setting the most accurate tools for assessing language proficiency should be
used, which go beyond simple self-identification. While he accepted that Dr. Read
had used some professional judgement in deciding to administer the tests
despite Mr. Fadai’s language skills, he had failed to use the appropriate,
rigorous tools before reaching that conclusion.

9)             
Employment and Earning Prospects

[137]     To address
the impact of the behavioural and cognitive symptoms that he claims from the
accident on his future employment, Mr. Fadai obtained an expert vocational
assessment from Derek Nordin. He saw Mr. Fadai in March 2010.

[138]     Mr. Fadai
was reporting no residual physical effects from the accident by that point. He
advised Mr. Nordin that he has “anger issues since that accident, and
frequently fights.” He also said that his memory and concentration have
“deteriorated” since the accident and that he has a “lack of insight.” He
completed a head injury checklist, in which he identified all of the tasks and
responsibilities of daily living that he found difficult to do as a result of
these symptoms.

[139]     When Mr. Nordin
saw him, Mr. Fadai was about to embark on his ill-fated attempt to study
pharmacy in the Philippines.

[140]     Mr. Nordin
administered a vocational test battery to Mr. Fadai.

[141]     He had a
very low overall reading score — similar to someone with a Grade 1 education.
Even interpreting this in the light of English not being his first language, it
is still much lower than Mr. Nordin would have anticipated, given that he
was able to graduate from high school.

[142]     His
aptitude profile (scores in tests of nine essential job-related skills) was
weak — he scored in the bottom 10% of the general working population in five
of the nine aptitudes tested. Even for the four aptitudes on which he scored
better, he would still have been in the bottom half of the population.

[143]     Presciently,
Mr. Nordin offered the opinion that these scores strongly suggested that Mr. Fadai
would not be able to cope with the pharmacy program.

[144]    
Mr. Nordin’s concerns about Mr. Fadai’s post-accident
employability are worth quoting fully:

In the absence of a demonstrated
ability to control his temper in a work environment, post-injury, as well as
having to leave one place of employment [i.e., the Fabric nightclub] due to his
anger issues, I need to raise a concern about Mr. Fadai’s ability to
sustain competitive employment (outside the “protected” environment of his
father’s business). From the information available to me, it may be the case Mr. Fadai
is unable to do so in his current condition. Further evidence of Mr. Fadai’s
ability to “self-regulate” his emotions in an employment context will only
emerge as he attempts to work outside the family business. As such, Mr. Fadai
may well be unable, at present, to sustain employment in occupations he was
able to access, pre-injury, due to the sequelae of the 2008 accident. This
concern is compounded by the cognitive difficulties Mr. Fadai noted at
interview, and is referenced in Dr. Van Rijn’s and Dr. Read’s
reports.

[145]     He agreed
in cross-examination that even before the accident Mr. Fadai’s poor
language skills would make it difficult for him to obtain certain types of
employment and his educational performance would make it difficult for him to
complete a post-secondary program. He also agreed that people with Mr. Fadai’s
test scores and scholastic performance generally end up in labour-type
positions.

[146]     Mr. Nordin
identified a list of occupations that Mr. Fadai could potentially have
accessed prior to the 2008 accident, which fall into the general areas of
labouring, sales and driving/equipment operating. The likely earnings ranged
from $37,388 for floor covering installer to $84,198 for long shore workers.

[147]     Earnings
for occupations that are now said to be foreclosed to Mr. Fadai because of
the accident were then subjected to statistical analysis in the report of
economist John Struthers. This analysis produced projections of what his future
income would have been if he had been able to do those jobs, allowing for
various likely contingencies and discounts. The report also expressed the
amounts that Mr. Fadai would have lost as a result of that inability in
terms of their present value, for the purposes of assessing damages.

[148]     Because
its figures are obviously contingent on proof of a loss of future earning
capacity, Mr. Struthers’s report was not contested.

III.            
POSITIONS OF THE PARTIES

[149]     Counsel
for Mr. Fadai argues that the validity of his claims of ongoing symptoms
of brain injury cannot be determined by recourse to the expert evidence.
Rather, I must assess his own reports of those symptoms, in light of the
evidence of the collateral witnesses who knew him well both before and after
the accident. Counsel submits that those witnesses all testified in a
forthright way and, the normal discrepancies found in all witness testimony
aside, were unshaken on their essential observations about the differences in
his post-accident behaviour. Taken as a whole, they paint a compelling picture
of significant changes that can only have resulted from the accident.

[150]     To the
extent that Dr. Semrau purported to cast doubt on the validity of Mr. Fadai’s
claims, his counsel pointed out flaws in Dr. Semrau’s approach that should
lead me to give his opinions little weight.

[151]     Dr. Semrau
had committed the cardinal sin for an expert witness of presuming to make findings
of credibility about Mr. Fadai’s version of events, counsel submitted.
This transgression by Dr. Semrau on the fact-finding role of the Court had
already led to little weight being given to his opinion in a similar previous
case (McKinnon v. Allen, 2005 BCSC 707 at paras. 44-49) and it should
receive that same treatment here. It was submitted that Dr. Semrau also
fastened on minor or readily understandable inconsistencies in Mr. Fadai’s
history to reach his finding of its supposed unreality, and became entrenched
in his negative view of Mr. Fadai’s symptoms, even when the propositions
put to him on cross-examination showed that view to be illogical.

[152]     With
respect to Dr. Williams’s opinion, counsel submitted that the severity of
his criticism of Dr. Read for failing to address Mr. Fadai’s limited
abilities in English properly should be moderated by the fact that Dr. Williams
was not present for the assessment and could not comment on how Mr. Fadai’s
abilities actually presented themselves. Dr. Williams also set an
impossibly high standard for Dr. Read to meet in this regard, calling upon
Dr. Read to support his decisions with studies of cultural factors
affecting the performance of Iranian test subjects, when such studies may not
even exist.

[153]     Counsel
submits that Mr. Fadai’s “ability to sustain competitive employment has
been severely and permanently compromised” by the effects of the accident. Both
his pre-trial loss and the impairment of his future earning capacity should be
assessed by reference to the earnings of the types of occupations that Mr. Nordin
said Mr. Fadai would otherwise have been suitable.

[154]     Mr. Fadai’s
counsel sought damages for pain, suffering and loss of enjoyment of life of
$150,000 – $200,000; for past loss of employment opportunities of $52,000; for
future loss of income earning capacity of $1,100,000; for cost of future care
of $2,625; and special damages of $877.77.

[155]     Although
liability was not formally admitted on behalf of Mr. Cully, his counsel
conceded that it is not in issue. This also applies to the vicarious liability
of the other defendants, with whose permission Mr. Cully was driving his
vehicle at the time of the accident.

[156]     In his
submissions, Mr. Cully’s counsel focussed on the inability of any of the
collateral witnesses to offer a comprehensive ongoing view of Mr. Fadai’s
symptoms over time, and on the general inconsistency of those symptoms with
what would be expected from his relatively minor injury, according to reliable
medical knowledge.

[157]     What the
collateral witnesses offer in each case, he submitted, is only time-limited
observations of conduct, to which their attention has been specifically drawn
in the context of this litigation. None of them had a comprehensive view of his
behaviour both before and after the accident. There is a real danger that they
have a hyper-focus on Mr. Fadai’s post-accident behaviour, which can have
a distorting effect on the reliability of their recollections.

[158]     As to the
medical science, counsel points out that the strongest research reveals the
very small percentage of patients who display enduring symptoms of mild
traumatic brain injury and the pervasive role of pre-existing mental health
problems and the lure of potential damage awards in keeping those symptoms alive.
He argues that the expert witnesses who offer Mr. Fadai the greatest
support — Dr. Read and Dr. Cameron — have either failed to apply
the required professional standards to their assessments or abandoned their
medical objectivity to assume the role of advocate.

[159]     Further,
counsel pointed out that Dr. Read’s own test results contradict his
subsequent opinion. Dr. Cameron explicitly deferred to a psychiatrist on
the diagnosis of Mr. Fadai’s psychological symptoms, and Dr. Semrau
has found that there are none.

[160]     What we
have here, Mr. Cully’s counsel argues, are some mild soft-tissue injuries
that resolved within nine months at the most, and the mildest sort of mild
traumatic brain injury, which also resolved within months. An award of
non-pecuniary damages of $25,000 – $35,000 is therefore appropriate.

[161]     Counsel
concedes that Mr. Fadai suffered a past wage loss of $2,500 from his
father’s business, representing the one month following the accident in which
he was clearly unable to work. Aside from that, there is really no clear
evidence of when he actually returned to that business following the accident,
what he earned in the various other jobs that he has described doing since
then, and what other jobs, if any, he was unable to do. His pattern of
employment since the accident is very similar to the one before it — many
short-term and seemingly unproductive positions. There is therefore no other
basis on which to find a loss of income due to the accident.

[162]     With
respect to the impairment of Mr. Fadai’s capacity to earn income in the
future, Mr. Cully’s counsel takes the position that the possibility of a
future event leading to an income loss has not been proven. There are no
physical limitations on Mr. Fadai now and any other limitations may stem
from educational and psychological factors that are unconnected to the
accident. In this regard, counsel stresses the crucial distinction between
“being able to do something with some possible difficulty and not having the
capacity to do it at all.”

[163]     Finally,
counsel for Mr. Cully disputes the claim for costs of future care for
psychological counselling because of Dr. Semrau’s opinion that it was not
necessary, as well as that portion of the special damages claim that consist of
mileage, because of the absence of evidence at trial explaining and justifying
it.

IV.           
ISSUES

[164]     The
critical questions to be resolved in this case are:

(1)           
whether Mr. Fadai suffered some level of traumatic brain injury in
the accident; and, if he did,

(2)           
whether any of the changes in his cognition behaviour that he reports
since the accident are attributable to that injury; and if they are

(3)           
whether he has suffered any past wage loss or impairment of his future
earning capacity.

V.             
DISCUSSION

1)                
Causation

(a)           
Expert Evidence

[165]     At the
outset I can say that I have no difficulty in finding that Mr. Fadai
suffered a mild traumatic brain injury in the accident. Dr. Cameron and Dr. Tessler,
the neurologists, agreed on that and Dr. Van Rijn and Dr. Read
accepted that suggestion in their cross-examination. It is consistent with Mr. Fadai’s
level of confusion at the scene, his Glasgow Coma Scale scores and the duration
of his post-accident amnesia.

[166]     Beyond
that finding, I agree with Mr. Fadai’s counsel that the expert evidence,
for several reasons, does not end up providing definitive assistance on what
symptoms actually flowed from the injury.

[167]     In
overview, what emerges from the expert evidence is that a small portion of
those who suffer a mild traumatic brain injury will display symptoms that are
more severe and persist for longer than the usual experience. A plausible
mechanism for such symptoms is an injury to the frontal lobes of the brain,
which control the behaviours that Mr. Fadai says he now finds himself
unable to regulate. Even Dr. Williams, who cited a study that questions
the existence of even that small group of prolonged sufferers, accepted that
the symptoms that Mr. Fadai describes could possibly be seen in the case
of such an injury.

[168]     The
experts each offer reasons to accept or reject the inference that Mr. Fadai’s
symptoms are due to such an injury.

[169]     While I
found Dr. Van Rijn to be a balanced and fair-minded witness, and while his
general observations on the persistence of symptoms in some mild traumatic
brain injury sufferers were informative, his overall opinion amounts to an
assertion that based on what he has been told by Mr. Fadai about his
symptoms, the accident is likely to have been the cause. There is no testing or
more precise medical assessment underlying that assertion. It really depends on
the truth of Mr. Fadai’s narrative.

[170]     In theory,
Dr. Read’s finding that Mr. Fadai’s test results were not typical of
the effects of the brain injury in question here could still be reconciled with
his subsequent opinion that based on all of the evidence such an injury is
likely. I take his point that opinions of this kind will inevitably involve
“more than just the tests.” The trouble is that the factors that he ends up
weighing against the test results in coming to his opinion are mainly the
consistency of Mr. Fadai’s self-report with the known effects of such
injuries, and the support provided by his brother’s collateral account of his
symptoms. As in the case of Dr. Van Rijn, the resulting opinion is no
stronger than the credibility of the reports underlying it. Most importantly,
to the extent that there is any more objective evidence in the form of the test
results, it is inconsistent with the injury claimed.

[171]     Dr. Cameron
was characterized by counsel for Mr. Cully as having strayed into the role
of an advocate, but I am not persuaded of this.

[172]     His
essential point was not that there are 10 – 15% of mild traumatic brain injury
sufferers whose actual symptoms persist longer than the usual, which would be
contrary to the literature relied on by the defence, but rather that there is a
smaller group, within that percentage of longer-term sufferers, whose
symptoms cannot be explained by pre-existing mental illness or ongoing
litigation. The implication is that there is something legitimately wrong with
that smaller group, whose actual size he did not quantify more precisely.

[173]     He was
also careful to emphasize that it is no more than a possibility that Mr. Fadai
sustained a frontal lobe injury, which could explain his symptoms. I do not
think an advocate would have been as restrained in offering such an opinion.

[174]     While he
did not accept the proposition that patient self-reports are inherently
unreliable, he stressed the clinician’s responsibility to separate the symptoms
that actually result from the accident from the many others that the patient
may attribute to it. I found that to be a candid and reasonable explanation.

[175]     Mr. Cully’s
counsel submitted that Dr. Cameron’s indication that he would defer to any
other psychiatric opinion except Dr. Semrau’s was unprofessional, and
further evidence of his lack of objectivity. It was an unusual remark to make,
and I infer that the hostility underlying it may arise from the conflicting
roles that they have as experts in this litigation, or may be a carryover from
previous cases. It was not explored further however, and in itself disdain for
another expert’s opinions is not conclusive of a lack of objectivity on the
point in question.

[176]     The only
point on which I think that Dr. Cameron over-extended himself was in his
answer on cross-examination that, even if Mr. Fadai’s symptoms are caused
by depression, then that depression is also a result of the accident. Although
I appreciate that he found that Mr. Fadai’s symptoms were likely caused by
a frontal lobe injury “and/or” the development of psychological problems from
the concussion, that alternative cause was not explored further in his evidence
and is inconsistent with his deference to psychiatrists on mental health
aspects of the case (although Dr. Read did recommend, without going much
further, that psychological counselling for self-regulation and anger
management could potentially assist Mr. Fadai).

[177]     I also
found Dr. Tessler to be a straightforward and balanced witness for the
most part. This is exemplified by his acknowledgment that poor outcomes can
result from even the mild brain injury that he found in this case. His
observation about the likely inconclusive outcome of an MRI also very fairly
assists Mr. Fadai’s position, by removing any negative inference that
might otherwise arise from his failure to obtain one.

[178]     The only
point that gave me concern about his conclusions was his characterization of Mr. Fadai
as having had the “presence of mind” to phone his brother and cousin and to be
concerned about his insurance after the accident. This does not really square
with his description of cross-examination of Mr. Fadai’s “distorted”
mental state, in which information being received was not retained.

[179]     With
respect to Dr. Semrau’s opinion, the pillars of it are Mr. Fadai’s allegedly
unreliable history, his relatively mild symptoms immediately post-accident,
examples of his demonstration of good cognition and self-control, and the
presence of inconsistencies in and alternate explanations for his symptoms. The
difficulty I have with both Dr. Semrau’s report and his evidence on
cross-examination is that these pillars are mainly factual matters, and his emphasis
on them seems to crowd out the kind of objective assessment of the extent of
the relationship between the symptoms and the brain injury, from a psychiatric
point of view, that I would have found more helpful. Aside from the general
unlikelihood of mild traumatic brain injuries yielding long-term symptoms,
which we have heard from the other experts, and his incidental diagnoses of
mild anxiety, depression and possible narcissistic traits in Mr. Fadai,
the heart of his opinion consists of a series of factual conclusions that I am
in just as good a position to reach myself.

[180]     I do not
see this as a case of Dr. Semrau intentionally intruding on the role of
the trier of fact, as was the concern in McKinnon, because he is
certainly entitled to find a subject’s history unreliable and to consider all
relevant facts before reaching his opinion. The problem is rather that very
little of his evidence here results from the application of special knowledge
and experience to the facts, which is the point of receiving the opinion of an
expert in the first place. His conclusions seem instead to proceed directly
from his preference for a version of the underlying facts that is unfavourable
to Mr. Fadai. It was more in the nature of argument than opinion. This is
why I think he became a bit defensive when he was pressed in cross-examination
on the reasonableness of some of his interpretations of the facts, such as his
rejection of the failure of Mr. Fadai’s concert promotion efforts as a
symptom of brain injury — there was no particular psychiatric expertise
informing those interpretations for him to fall back on. As a result I do not
think I can attach much weight to his ultimate preference for a combination of
alternative factors as a “satisfying” explanation for Mr. Fadai’s
symptoms.

[181]     Because Dr. Read’s
report does not in itself end up being decisive of any major issue, it is not
strictly necessary to address Dr. Williams’s seemingly innumerable
criticisms of it. If it were necessary to do so, I would say that his chief
criticism, Dr. Read’s alleged failure to account for Mr. Fadai’s
linguistic and cultural background, is diminished by his own lack of direct
exposure to Mr. Fadai’s actual manner of communicating. I do not see how
he can assail the conclusion that the standard tests were adequate without
access to the actual subject in relation to whom Dr. Read’s professional
judgement was exercised. It is unfair to throw the American Psychological
Association guidelines at Dr. Read without having first established that
there was in fact a barrier created by Mr. Fadai’s cultural and linguistic
background. It is also unfair to focus on English being Mr. Fadai’s “third
language” without considering that he had been functioning in English out in
the world since his early teens. Finally, I think he mistakenly put the onus on
Dr. Read to disprove the influence of cultural factors arising from Mr. Fadai’s
cultural background on the test results, without being able himself to point to
any particular evidence that raised such concerns.

[182]     This is
all in keeping with Dr. Williams’s overall approach in his report, which I
found rather harsh. He notes that Dr. Read did not use what the American
Psychological Association describes as the “best” standardized battery of
tests, because of its long history and extensive literature, but it was not
clear what exactly the shortcomings would be of the results of the battery that
was used. Aside from the observation that Dr. Read generally used tests
that were heavily language-based, despite Mr. Fadai’s challenges in that
area and that he used one test that is now considered obsolete, which seem like
valid criticisms, many of Dr. Williams’s other criticisms amount in effect
to asserting that he would have drawn different inferences than Dr. Read
did about the credibility and consistency of Mr. Fadai’s symptoms. I did
not find that approach helpful, particularly in the absence of any contact with
Mr. Fadai.

[183]     The
essential points that emerge from all of this expert evidence are first, that
the symptoms that Mr. Fadai claims could have been caused by the accident,
but the statistical probability of someone displaying symptoms of such severity
and duration from an injury of this kind is low. Second, while self-reported
symptoms are in themselves an unreliable basis for proving injuries resulting
from an accident, it is still possible for those symptoms to be sufficiently
confirmed by reliable external evidence to support a claim.

(b)           
Evidence of Mr. Fadai and his Supporting Witnesses

[184]     I have to
approach Mr. Fadai’s own evidence with some caution.

[185]     He had an
unfortunate tendency to describe some incidents in an inflated and unrealistic
way. The worst examples of this were his accounts of the fights that he has
been involved in since the accident — knocking out opponents with single
punches and defending against large numbers of attackers in a manner that seems
more reminiscent of an action movie than a recollection of actual events. He
seemed at times almost to revel in recounting these physical exploits.

[186]     He also
had an oddly flat affect and provided only a superficial level of detail when
recounting symptoms of the accident that one would have expected him to
describe in more plausibly human terms, such as his high alcohol consumption,
multiple sexual relationships and massive acquisition of debt. I was not left
with any understanding of how he came to experience these difficulties — they
seemed to be given essentially by rote.

[187]     I think
that his descriptions of his pre-accident prowess in sales are in some conflict
with his work history and those income documents that were provided. I accept
that salespeople probably change jobs more often than the average worker and
that Mr. Fadai was only in the early years of his career, but he still
seems to have moved around a lot for someone who claims to have been a top
performer in each location, there is not a lot of documentary evidence of his
claimed sales figures, and his reported income in the years immediately before
the accident is quite meagre.

[188]     His
employment history also demonstrates a degree of impulsivity in his motivations
for leaving one job and seeking out another that is similar to his
post-accident pattern. In that regard there was no satisfactory independent
explanation of why his record of employment at Wireless Wave shows that he was
unsuitable for the position, which contradicts his claim to have been
successful there.

[189]     Even
applying the restraint that should accompany the use of clinical records to
contradict a plaintiff’s evidence, it is difficult to reconcile his claim to
have been away from work for four to six months after the accident with his
explicit statement to his physiotherapist about six weeks after it that he was
feeling recovered and was ready to return to work.

[190]     Mr. Fadai
made other statements that did not accord with reliable evidence or common
sense. For example, he badly overstated his academic record to Dr. Semrau.
And, if he has cut back considerably on his socializing as a result of his
symptoms as he described, one wonders how he would have had the opportunity to
develop his many post-accident sexual relationships.

[191]     On the
positive side, he seemed honestly perplexed by some of his bizarre actions
since the accident and his affecting descriptions of the cautious way in which
his family and friends now treat him sounded like real human interactions.

[192]     Given the
shortcomings in his evidence, I would have found it difficult to resolve any of
the factual conflicts in this case in Mr. Fadai’s favour on his evidence
alone.

[193]     However, I
found that his family members and friends provided numerous specific examples
of his lapses in self-control, many of which contained the kinds of compelling
and idiosyncratic detail that seemed to me to defy invention.

[194]     I would
not have expected his parents, uncle and brother to be able to contrive the
bizarre interactions with Mr. Fadai that they related, such as his
redecorating the furniture shop in his father’s absence or his unusual penchant
for sunglasses.

[195]     His
friends’ recollections were a bit more generic, but they were still able to
ground their narratives in some specific incidents, which sounded like actual
recollections of real events.

[196]     I take
counsel for Mr. Cully’s points that the observations of Mr. Fadai’s
supporting witnesses are fragmentary and spread out over time; and that there
is a danger that even honest witnesses will over-emphasize the timing and
significance of events once their attention has been drawn to them.

[197]     Even after
allowing for those dangers, I am still persuaded based on the supporting
evidence that there has been some actual change in Mr. Fadai’s behaviour
since the accident, although not of the proportions that he has claimed, and
that it centers on his ability to regulate his impulses and anger. I am
satisfied that there were originally also some difficulties with his short-term
memory, but given his various answers to questions about the duration of that
symptom, I conclude that they resolved no later than two years after the
accident.

(c)           
Conclusion on Causation

[198]    
Of course the fact that Mr. Fadai’s changed behaviour followed the
accident is not in itself proof that the changes were caused by it. Mr. Justice
Ehrcke put the dangers of that kind of reasoning well in White v.
Stonestreet, 2006 BCSC 801:

[74]      The inference from a temporal sequence to a causal
connection, however, is not always reliable. In fact, this form of reasoning so
often results in false conclusions that logicians have given it a Latin name. It
is sometimes referred to as the fallacy of post hoc ergo propter hoc:  “after
this therefore because of this.”

[75]      In searching for
causes, a temporal connection is sometimes the only thing to go on. But if a
mere temporal connection is going to form the basis for a conclusion about the
cause of an event, then it is important to examine that temporal connection
carefully. Just how close are the events in time? Were there other events
happening around the same time, or even closer in time, that would provide an
alternate, and more accurate, explanation of the true cause?

[199]     This
approach was cited with approval in Madill v. Sithivong, 2012 BCCA 62 at
para. 20.

[200]     I do find
that these cognitive and behavioural symptoms were a result of the mild
traumatic brain injury that he suffered in the accident. It is persuasive that Mr. Fadai
was complaining of them to Dr. Johnston as early as June of 2008, in
conjunction with the ongoing headaches, although there is nothing in the
records of his family doctor. There is no dispute among the experts that his
symptoms fall within the scope of potential effects of a mild traumatic brain
injury, albeit they are much less frequently seen than the typical effects. As
well, despite a thorough exploration in cross-examination, no ambiguity emerged
among the supporting witnesses about whether any of this behaviour was
exhibited before the accident.

[201]     Counsel
for Mr. Cully is right to point out that there are also post-accident
examples in the evidence of Mr. Fadai exhibiting self-control in the face
of provocation and of his engaging in quite complex cognitive tasks. It is also
true that the alcohol played a role in some of his disinhibited actions. But in
my view these factors go to the extent of the effects of the accident on his
behaviour — they do not persuade me that it has not had any effect.

[202]     To summarize,
I find that Mr. Fadai suffered soft tissue injuries to his head, neck,
shoulder and left wrist as a result of the accident, including severe
headaches, and that these injuries resolved by about a year after it.

[203]     I also
find that he suffered a mild traumatic brain injury in the accident which led
to difficulties with his short-term memory, which resolved by about two years
after it. He also has some degree of impairment of his control over his
impulses and anger as a result of the accident, which was ongoing at the time
of trial. The extent of that impairment is captured by the incidents that were
observed by his family and friends. Given the expert evidence that such
problems resolve within two years if they are to resolve at all, I will proceed
on the basis that the difficulty with self-regulation will be permanent.

(d)           
Damages

                                                     
(i)                   
Non-Pecuniary Damages

[204]    
In Lindal v. Lindal, [1981] 2 S.C.R. 629 at 637, Mr. Justice
Dickson, as he then was, explained that:

…[T]he amount of an award for
non-pecuniary damage should not depend alone upon the seriousness of the injury
but upon its ability to ameliorate the condition of the victim considering his
or her particular situation. It therefore will not follow that in considering
what part of the maximum should be awarded the gravity of the injury alone will
be determinative. An appreciation of the individual’s loss is the key and the
"need for solace will not necessarily correlate with the seriousness of
the injury" (Cooper-Stephenson and Saunders, Personal Injury Damages in
Canada (1981), at p. 373). In dealing with an award of this nature it
will be impossible to develop a "tariff". An award will vary in each
case "to meet the specific circumstances of the individual case" (Thornton,
[1978] 2 S.C.R. 267, at p.84 of S.C.R.).

[205]     However it
is still useful to consider the results in similar cases, to ensure that the
award is fair to both parties: Kuskis v. Hon Tin, 2008 BCSC 862 at paras. 135-6.

[206]    
In Stapley v. Hejslet, 2006 BCCA 34, Madam Justice Kirkpatrick at
para. 46 provided a helpful, non-exhaustive list of factors to consider
when assessing the amount of damages under this heading:

(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 and [possibly subsumed within
the preceding factors]

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

(h) impairment of physical and mental abilities;

(i) loss of lifestyle; and

(j) the plaintiff’s stoicism (as
a factor that should not, generally speaking, penalize the plaintiff).

[207]     In this
case Mr. Fadai’s counsel relies on the following cases as a useful measure
of the appropriate non-pecuniary damages:

·      
Gougen v. British Columbia, 2002 BCSC 1598:  The
50-year-old plaintiff suffered fractures to multiple facial bones and his
wrist, the loss of five teeth and a mild traumatic brain injury when he was
thrown from his bicycle due to a defect in the bridge he was riding on. The
wrist injury was permanent and the brain injury had resulted in social
withdrawal, forgetfulness and emotional volatility. It was possible that
post-traumatic stress disorder also played a role in his mental challenges,
which were at least long-term if not permanent. The award was $125,000, which
counsel submits would have a value of approximately $156,000 at the time of our
trial.

·      
McKinnon (cited previously in dealing with Dr. Semrau’s
evidence):  the 24-year-old plaintiff had suffered facial scarring and a mild
traumatic brain injury in a motor vehicle accident. The brain injury left her
“her emotionally unstable and… diminished her ability to cope with life…” (para. 63).
The award was also $125,000, which should have a value as of this trial of approximately
$146,000.

·      
Scoates v. Dermott, 2012 BCSC 485:  The 38-year-old
plaintiff had been seriously injured in a motor vehicle accident, and then
suffered three more successively less serious accidents over the following six
years. He suffered “multiple orthopaedic injuries to his neck, back, pelvis and
right wrist as well as severe soft tissue injuries to his neck, back and both
knees” (para. 79) in the first accident and remained in serious pain as of
the trial eight years later. It was impossible to say with certainty if his
significant personality changes and memory difficulties were due to a mild
traumatic brain injury or other post-accident effects such as chronic pain or
depression. Mr. Justice Smith concluded that it did not matter, because in
either case they were due to the accident and his prognosis was poor even if
the cause was non-organic. The award was $250,000.

[208]     The
non-pecuniary damages cases cited by Mr. Cully’s counsel involve
situations in which the plaintiff’s symptoms of a mild traumatic brain injury
had either resolved by the time of trial or were rejected by the trial judge,
which is obviously contrary to what I have found here. Nevertheless, they may
be helpful in assessing the appropriate award for the portion of Mr. Fadai’s
pain and suffering that arises from his soft tissue injuries:

·      
Fillmore v. McKay, 2010 BCSC 1401:  the plaintiff was hit
by a vehicle while riding his bicycle. He suffered chronic pain from soft
tissue injuries to his neck, back and shoulder at the time of trial, five years
after the accident. The judge accepted that the plaintiff had likely suffered a
mild traumatic brain injury but was not persuaded that his ongoing emotional
symptoms had been caused by that brain injury. Pain from the soft tissue
injuries was a more likely cause of those symptoms. The award was $70,000.

·      
De Gaye v. Bhullar, 2010 BCSC 1798:  the 24-year-old
plaintiff suffered a moderately severe whiplash injury resulting in a painful
shoulder impingement, soft tissue injuries to his lower back and a mild
concussion in a motor vehicle accident. His neck pain was likely to continue
beyond the trial date, which was five years after the accident. It does not
appear from the trial judge’s analysis that she was asked to consider any
continuing symptoms from the concussion. The award was $70,000.

·      
Gatzke v. Sidhu, 2011 BCSC 988, affirmed on other grounds
2013 BCCA 261:  the plaintiff suffered “soft tissue injuries, a concussion, and
aggravation of a pre-existing knee problem” (para. 67). The trial judge found
that all these problems had resolved within nine months. The award was $25,000.

·      
Minhas v. Sartor, 2012 BCSC 779:  the plaintiff suffered
soft tissue injuries, in the “mild to moderate range”, to his neck and back in
a motor vehicle accident. That accident also aggravated a problem the plaintiff
already had with the orientation of his jaw, and slightly disfiguring surgery
was required to correct it. He had some ongoing pain, but much less than he
suffered previously. His allegation of behavioural and cognitive changes as a
result of the accident was rejected by the trial judge. The award was $70,000.

[209]     Obviously
every case has its own unique factors that influence the amount awarded, but
considering the helpful common themes of these authorities I would say that the
physical injuries in the cases cited on behalf of Mr. Fadai were all more
serious and enduring than his soft tissue injuries. This is also true of the
cases cited on behalf of Mr. Cully, except for Gatzke, in which it
appears that the duration and severity of the injuries were slightly lower. In
making these comparisons, I have kept in mind that although his physical
symptoms had largely resolved within a year or slightly more, Mr. Fadai’s
headaches during at least the first six months were quite severe.

[210]     I would
characterize the effects of the mild traumatic brain injuries in Gougen,
McKinnon and Scoates as being somewhat more serious than Mr. Fadai’s,
because I have found that in his case the component of short-term memory loss
and concentration problems have largely resolved, and that his difficulty is now
mainly with self-regulation.

[211]     Taking all
of this into account, I conclude that an appropriate award for non-pecuniary
damages is $100,000.

                                                   
(ii)                   
Past Loss of Income to the Date of Trial

[212]     The
records of payments to Mr. Fadai from his father’s business show quite an
erratic pattern. For months during which he was paid twice (perhaps supporting
the inference he was working full-time during them) the amounts are as low as
$2,200 per month, and as high as $3,050. Further, in some months he was
apparently paid twice on the same date and in other months not at all. It is
difficult to discern a pattern confirming his father’s evidence of a specific
salary of $2,500 per month.

[213]     Given Mr. Fadai’s
very low reported earnings before the accident, I also cannot accept that
working for his father after it represented his acceptance of reduced earning
opportunities in return for accommodation of his disabilities. There was no evidence
that he worked there after the accident only because he could find nothing
else, or that he was even looking for something else. Earnings of $38,300 for
the period covered by the records were actually a substantial increase from his
reported income in the preceding two years.

[214]     As a
result, during the period in which he was employed for his father I am only
prepared to find past wage loss where it can be identified that he was unable
to work because of his injuries. Other than his work as a bouncer, which I will
discuss, there are no other hypothetical earnings during that period that his
injuries prevented him from taking up. I do not accept, as asserted on Mr. Fadai’s
behalf, that during the period covered by his wages from his father he lost the
opportunity to do any of the kinds of jobs listed by Mr. Nordin, because
there is simply no evidence of that occurring.

[215]     During
this time, he helped out for a month at Wireless Wave while someone was in
India, and apparently did not find the work as satisfying as he had before the
accident, but he has not shown that this was an opportunity he would otherwise
have pursued for an extended period, in preference to the work with his father.

[216]     Counsel
for Mr. Cully fairly concedes that Mr. Fadai lost a month’s wages because
of his injuries. It is also common ground that he was unavailable for work for
much of March of 2008 because of a vacation to the Philippines. From the
records he seems to have been paid half the usual amount for the first pay
period in April, which lends support to his father’s evidence that he worked
fewer hours in his first two to three months after the accident. Accordingly I
am prepared to award him one and a half months’ salary, which is $3,750, as his
past wage loss for the period from the accident to December 15, 2009, as well
as for March and April 2010 — an additional period during which he was also
apparently paid by his father, according to the salary records.

[217]     Mr. Fadai’s
inability to work as a bouncer at the Fabric nightclub is also quite difficult
to quantify. Because he was paid under the table and did not declare the
income, and because no objective records of the amounts can be produced, I am
reluctant to accept his estimates of the amount he received per night. The
figures he claimed also seem absurdly lucrative for this type of work, based on
common sense and ordinary human experience. I think $150 per weekend is a more
reasonable estimate, and so I award him his lost wages from February 2008 to
his departure for the Philippines in May 2010, at $600 per month, for a total
of $16,200. There is no evidence that he sought that work out again upon his
return, or that he would otherwise have been able to pursue it between his
return from the Philippines and the trial dates.

[218]     His
injuries obviously did not deprive Mr. Fadai of the opportunity to work
while he was studying in the Philippines.

[219]     I do not
find the evidence sufficient to prove any loss of wages for Mr. Fadai’s
stay in Fort McMurray, which appears to have occupied much of his time from his
return from university to the trial dates.

[220]     The first
problem is that evidence of his employment efforts during that time emanates
entirely from him, and I have already expressed my concerns about accepting his
evidence where it is not confirmed by more reliable narrators. Second, even
accepting his basic description of the events, it is not really clear to me why
he went out there in the first place, and what employment prospects he was
trying to pursue. He told Dr. van Rijn that he hoped to establish several
businesses there with a “silent partner” and told Dr. Read that he went
there to raise money to “put on his shows”, which I infer means his concert
promoting, but these possibilities were not clarified. He had the abortive
sales job at the Brick, some basic labouring work (a portion of which he apparently
lost through unsatisfactory behaviour) and his ill-fated attempt at contracting
a renovation. How these positions and his earnings from them compared to what
he could have achieved in the absence of his problems with self-regulation was
not really explored, so I could not quantify a loss even if one had been
proven. In other words, I do not know how these outcomes compare with what he
could have accomplished out there pre-accident. While I could certainly infer,
given the termination or other premature endings to many of the jobs, that his
difficulties with self-regulation left him less than maximally employed, the actual
extent of the earnings gap that resulted is completely speculative.

[221]     As a result
I award Mr. Fadai $19,950 for past wage loss.

                                                 
(iii)                   
Impairment of Future Earning Capacity

[222]    
In Perren v. Lalari, 2010 BCCA 140, Madam Justice Garson gave a
helpful summary of the principles that govern the assessment of damages in this
area:

[32]      A plaintiff must always
prove…that there is a real and substantial possibility of a future event
leading to an income loss. If the plaintiff discharges that burden of proof,
then depending upon the facts of the case, the plaintiff may prove the
quantification of that loss of earning capacity, either on an earnings
approach…or a capital asset approach… The former approach will be more useful
when the loss is more easily measurable… The latter approach will be more
useful when the loss is not as easily measurable… A plaintiff may indeed be
able to prove that there is a substantial possibility of a future loss of
income despite having returned to his or her usual employment…But…an inability
to perform an occupation that is not a realistic alternative occupation is not
proof of a future loss. [Emphasis in original; citations omitted.]

[223]     I think
that Mr. Fadai has proven a real and substantial possibility of a future
event leading to an income loss. All of his past and likely future occupations
contain some requirement of self-regulation, in particular management of his
anger. On the evidence that I have accepted, there is a meaningful risk of him
ending up in conflict in the workplace over what would be trivial provocations
to others, or of his acting impulsively in relation to his job
responsibilities. This could well limit his prospects for advancement, or in
more extreme cases lead to a premature loss of employment.

[224]     I conclude
that this possibility of loss is best valued using the capital asset approach. Mr. Fadai
was a young man at the time of the accident, without an extensive or consistent
work history. If I were to apply the earnings approach urged by his counsel, I
do not think I could make the leap with any confidence to a finding that except
for his injuries he would otherwise be holding down one of the positions
outlined by Mr. Nordin, and at the levels of pay corresponding to them. I
also cannot find that the evidence goes as far as to show that he is completely
unemployable in the jobs for which he is or can become qualified. There is
certainly a degree of impairment present. His work for his father became
unsatisfactory after the accident, and he no longer seems temperamentally
suited for breaking up bar fights, but beyond that, as I have said, the
evidence of his post-accident construction and sales efforts has not been
reliably confirmed by evidence beyond his own narrative to a point where I am
satisfied that he is inevitably precluded from doing any or all of them.

[225]     The
capital asset approach enables me to assess the extent of his likely loss more
accurately — see for example Kwei v. Boisclair (1991), 60 B.C.L.R. (2d)
393 (C.A.), in which the plaintiff’s pre-accident history of various low-paying
jobs made it difficult for him to demonstrate a pecuniary loss. Similarly, in Perren
at para. 12, Garson J.A. said “a young person whose career path was
uncertain” was an “obvious example” of this approach.

[226]    
The elements of the inquiry under the capital asset approach were set
out by Mr. Justice Finch, as he then was, in Brown v. Golaiy
(1985), 26 B.C.L.R. (3d) 353 (S.C.) at para. 8:

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

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

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

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

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

[227]     I think
that all of these limitations now apply to a degree to Mr. Fadai. It will
be more difficult for him to get and keep jobs for which he would otherwise be
qualified than it would have been but for the accident. I foresee some
dismissals based on acting out in the workplace on his horizon. Leaving a job
under such circumstances may be a barrier to obtaining references for the next job
application, and so on.

[228]     In
reaching that conclusion, I am keeping in mind that his very minimal reading
ability is a severe pre-existing shortcoming that would inevitably have
narrowed his career options. His counsel very sensibly did not attempt to argue
that his ill-fated attempt to pursue pharmacy was an opportunity denied to him
by the effects of the accident, for example, and I see no reasonable
possibility of future training and advancement if it has anything resembling an
academic component to it. I also point out that I did not accept his
unsupported descriptions of flying off the handle at supervisors and customers
in some of his employment situations. Finally, it seems to me that other than
the one month filling in at Wireless Wave and the brief stint at the Brick,
neither of which had any objective support, the true extent of his ongoing
sales ability has not really been explored. Nevertheless even the behaviour
that was witnessed by his family and friends, and which I did find reliable, is
occupationally limiting to a degree, and it is this limitation that must be
assessed.

[229]    
The decision in Rosvold v. Dunlop, 2001 BCCA 1 is helpful in this
process:

[8]        The most basic of those principles is that a
plaintiff is entitled to be put into the position he would have been in but for
the accident so far as money can do that. An award for loss of earning capacity
is based on the recognition that a plaintiff’s capacity to earn income is an
asset which has been taken away: … Where a plaintiff’s permanent injury limits
him in his capacity to perform certain activities and consequently impairs his
income earning capacity, he is entitled to compensation. What is being
compensated is not lost projected future earnings but the loss or impairment of
earning capacity as a capital asset. In some cases, projections from past
earnings may be a useful factor to consider in valuing the loss but past
earnings are not the only factor to consider.

[11]      The task of the court is to assess damages, not to
calculate them according to some mathematical formula: … Once impairment of a
plaintiff’s earning capacity as a capital asset has been established, that
impairment must be valued. The valuation may involve a comparison of the likely
future of the plaintiff if the accident had not happened with the plaintiff’s
likely future after the accident has happened. As a starting point, a trial
judge may determine the present value of the difference between the amounts
earned under those two scenarios. But if this is done, it is not to be the end
of the inquiry: … The overall fairness and reasonableness of the award must be
considered taking into account all the evidence.

[18]      The assessment of damages is a matter of judgment,
not calculation.

[Citations omitted.]

[230]     Fundamentally
the way in which I find that Mr. Fadai’s capacity has been harmed is that
his injury will make him, under certain circumstances, a difficult and
unpredictable employee. It is true that his objectively proven pre-accident
income was very low, but I must also allow for the impairment of his ability to
progress to better paying work that might otherwise have become available as he
matured and possibly learned new skills. Keeping in mind his pre-existing serious
reading limitations and the contingency that the job market will be
unfavourable to him for reasons unrelated to his injury, which were described
by Mr. Struthers in his report, I value Mr. Fadai’s loss at $250,000.

                                                 
(iv)                   
Cost of Future Care

[231]     Given that
the working theory of the experts called on behalf of Mr. Fadai was that
an actual brain injury underlies his inability to regulate his behaviour at
times, it might initially seem inconsistent for him also to seek assistance
from a psychologist with his anger management issues as part of the costs of
his future care. The evidence was that brain injuries themselves are not
treatable.

[232]     Dr. Semrau
found no psychological problems significant enough to justify ongoing
treatment, but as I have said previously, the overall value of his
recommendations was severely limited by his unyieldingly negative perspective
on Mr. Fadai as a person, so I would not decline the award solely on that
basis.

[233]     In his
report Dr. Read identified some potential benefit to Mr. Fadai of
receiving psychological assistance, even though his main opinion was that the
self-regulation problems were a direct result of the brain injury. It might
seem to limit the value of psychological assistance further that in his
interview he had observed only mild symptoms of depression and anxiety in Mr. Fadai.
However in his trial evidence he expanded on the value of cognitive behavioural
therapy in this case, which is that it assists the patient in “making better
connections between thoughts and behaviour”.

[234]     Dr. Williams
challenged the counselling recommendation on the basis that Dr. Read had
not sufficiently explored the impact of Mr. Fadai’s alcohol abuse on his
self-regulation problems and had not given enough consideration to situations
in which Mr. Fadai had demonstrated good self-control. These concerns
really lose their force in light of my findings about the legitimacy of some of
Mr. Fadai’s symptoms.

[235]     Although,
as I have also said earlier, Dr. Read’s opinion on the main issue in the
trial was weakened by its inconsistency with the test results that he obtained,
I did not find, as urged by the defence, that all of his methods and
conclusions were inherently suspect.

[236]     At the end
of the day, this case was fought on the questions of whether Mr. Fadai’s
symptoms were credible and whether they were the result of his mild traumatic
brain injury. The possibility of a psychological overlay was not really
explored, except for Dr. Cameron’s brief reference to it as a possible
cause of the symptoms and Dr. Read’s and Dr. Semrau’s findings of mild
anxiety and/or depression.

[237]     It does
not strike me as inconsistent with common sense that despite the organic nature
of his injury, Mr. Fadai could still see some improvement from learning
psychologically-based techniques for self-regulation, in particular the
strengthening of connections between thoughts and actions outlined by Dr. Read.
The evidence that one cannot cure a brain injury did not go on to say that
nothing can ameliorate any of its effects.

[238]     As a result
I will award $2,625 for the course of counselling from a Ph.D. psychologist
that was sought by Mr. Fadai.

                                                   
(v)                   
Special Damages

[239]     Mr. Fadai
seeks $877.77 in special damages. Mr. Cully’s counsel does not oppose an
award of $218.37, which represents Mr. Fadai’s’ medication and
physiotherapy costs. Counsel does take issue with the balance that is being
claimed, which is for mileage for Mr. Fadai to attend treatment from his
family doctor and physiotherapist and for assessments by the trial experts.

[240]     This
mileage is claimed at the rate of 0.50¢
per kilometre, pursuant to my decision in Liu v. Thaker, 2012 BCSC 612
at para. 72, in which I followed Mr. Justice Stewart in Grewal-Cheema
v. Tassone, 2010 BCSC 1182 at para. 60, and awarded mileage at that
rate.

[241]     The basis
for Mr. Cully’s opposition is that “there has been no evidence at trial on
the cost for travel expenses or justification for the amount claimed.”

[242]     The
well-known test for awarding special damages is that they must be reasonable. I
do not read the submission on behalf of Mr. Cully as arguing that Mr. Fadai
did not need to drive to these appointments or that he did not travel those
kilometres to get there, but rather that he has not justified the amount he has
claimed for doing it. It is clear that there was no evidence in the trial on
that particular issue, but Stewart J.’s award in Grewal-Cheema was
based, quite properly I would say, on judicial notice of the actual costs of
operating a vehicle, in contrast to the rate urged by the defendant. I feel
comfortable following that approach here, as I did in Liu. I see no
danger at all of overcompensating Mr. Fadai in this respect. As Stewart J.
noted, “In this day and age $.50 per kilometre is, if anything, too little.” (para. 60).

[243]     The award
for special damages will be $877.77.

VI.           
COSTS

[244]     Mr. Fadai
has prevailed on the central issue in the trial, but his damages, particularly
those relating to impairment of his future earning capacity, were substantially
lower than he had claimed. As a result, I would not say that he has had
“substantial success” in this trial, as that term was defined in Fotheringham
v. Fotheringham, 2001 BCSC 1321. I think that this can be fairly addressed
by awarding him 75% of his costs.

[245]     Of course
if there have been offers to settle or other matters affecting costs of which I
am unaware, counsel are free to speak to costs, or make submissions in writing,
as they prefer.

The
Honourable Mr. Justice T.A. Schultes