IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20140917

Docket: M131580

Registry:
New Westminster

Between:

Michael Gillespie

Plaintiff

And

Yellow Cab Company
Ltd.

Ali Dowlatabadi

Jiaqiang Yu

Defendants

Before:
The Honourable Mr. Justice Armstrong

Reasons for Judgment

Introduction

[1]            
This action concerns Mr. Gillespie’s claim for damages for injuries
he alleges were caused by motor vehicle accidents in December 2009 (the first
accident) and January 2010 (the second accident).

[2]            
On December 1, 2009, the plaintiff was driving a 2002 Honda Civic through
an intersection in Vancouver when a taxi failed to stop at a stop sign and struck
his vehicle. The plaintiff’s car then collided with a cube van coming from the
opposite direction, and he hit his head against his car’s windshield. The
impact cracked the glass, and the glass lacerated his head.

[3]            
On January 22, 2010, the plaintiff was involved in a minor rear-end
collision when he was stopped at a red light. He claims this incident
aggravated his neck and back “a bit", and the symptoms lasted seven to 10
days.

[4]            
The controversy in this case turns largely on the nature and extent of
the injury to Mr. Gillespie’s head from the first accident.

[5]            
The defendants admit liability for both accidents and this trial
concerned the extent of Mr. Gillespie’s injuries and an assessment of
damages that may have been caused by each accident.

[6]            
The plaintiff seeks the following damages for injuries in both accidents:

1.     non-pecuniary:
$85,000 – $110,000 ($1,000 to $3,000 of that claim is for the second
collision);

2.     past income
loss: $241,452;

3.     future
loss of earning capacity: $285,997;

4.     special
damages: $600 – $800; and

5.     future
care costs: $1,642 – $3,285.

The Issues

[7]            
After the accidents the plaintiff presented with various minor soft
tissue injuries, an injury to his inner ear, and symptoms indicating his brain
function was compromised. There are two principal issues and two preliminary
issues to be addressed in this trial. The findings on the secondary issues will
impact the findings on the principal issues so I will discuss them first:

Principal issues:

1.     After the
accidents, did the plaintiff suffer symptoms from metabolic syndrome unrelated to
the accidents or did he suffer a mild traumatic brain injury caused by the
first accident?

2.     What is
the proper measure of the plaintiff’s damages if:

                                              
i.         
the plaintiff suffered a mild traumatic brain injury, an inner ear
injury and soft tissue injuries to his neck and back in the first accident and
exacerbated by the second accident? or

                                             
ii.         
the plaintiff did not suffer a brain injury in the first accident but
suffered neck and back injuries resulting from both accidents?

Secondary issues:

3.     Should I
draw an adverse inference against the plaintiff for failing to call Dr. Foti?

4.     How much
weight should I give the expert medical opinion?

The Facts

Before the Accident

[8]            
Mr. Gillespie is a 65-year-old married father of two adult
children.

[9]            
He lives with his wife in Burnaby, BC.

[10]        
After graduating from high school, he attended Vancouver City College.

[11]        
Sometime after finishing at City College, he entered the flooring
business, and in 1984, opened his own business specializing in niche flooring
products. He spent most of the next 16 years operating that business, but in
approximately 2000, Mr. Gillespie and his wife were forced into bankruptcy
because that business failed.

[12]        
He then obtained employment selling “sun rooms” in BC and Alberta; he
worked in that role until 2004.

[13]        
In 2004, the plaintiff and his wife moved to Burnaby to facilitate her
education at BCIT. She pursued a course in human relations and eventually
obtained employment with the Genome Sciences Centre.

[14]        
Between September 2004 and January 2005, the plaintiff was unemployed.
In 2005 he took a position with AAA Flooring (AAA), a local flooring company.
His role was to prepare quotes for prospective flooring customers, order
materials and oversee installation work. After one and a half years, he became dissatisfied
with his employer’s work practices which he believed were adversely affecting
his health.

[15]        
He then began his own flooring proprietorship, and in January 2008, he incorporated
a company to carry on the business. His plan was to accumulate sufficient funds
in the company’s retained earnings so he and his wife could retire to the
Okanagan in approximately three years.

[16]        
He testified that before the first accident he did not have any health
problems and was not seeing a physician for specific concerns. He did have high
cholesterol, but he had no history of concussion, hypertension, dizziness, concentration
problems, and/or memory problems.

[17]        
When working for his previous employer AAA, he experienced some
difficulties with the sleep difficulties and saw a physician for advice in 2006;
he related these physical problems with stress at his work with AAA. He did not
receive any prescription medication to deal with sleep and these problems
resolved after he left his employment.

[18]        
He testified that he was not aware of having anxiety before the first
accident, and he consulted his doctor only about sleep problems. He did not
remember a meeting with his doctor in 2006 when his anxiety was discussed;
there is a record of such a discussion but the author of the notes did not
testify. Nevertheless, between 2006 and December 2009, he did not have any
anxiety or sleep issues.

[19]        
His current business is restricted to commercial and institutional flooring
supply work. When he began this business, Mr. Gillespie was responsible
for all aspects of the work, including bookkeeping, record-keeping, reviewing
proposals, measuring, and preparing quotations. When his bids were successful,
he ordered product from suppliers, rented trucks to transport material to job
sites, attended to the unloading of materials, engaged sub-contract installers and
reviewed the work after completion. He also attended work sites to correct deficiencies.
He does not do the physical work himself; he engages subcontractors to do all flooring
installations.

[20]        
He performs his record keeping and book work manually. He prepares quotes
and invoices for the business, and he uses a bookkeeper and a chartered
accountant to complete his financial statements and reporting to Canada Revenue.

[21]        
His typical work day starts at 5:30 am and concludes around 4:30 pm.

[22]        
Mrs. Gillespie confirmed that prior to the accident the plaintiff
was rarely sick and had no specific health concerns.

[23]        
Regarding physical activities before the accident, the plaintiff and his
wife regularly walked together. He used an elliptical trainer and treadmill and
occasionally played golf.

The Accident

[24]        
When the first collision happened, Mr. Gillespie was travelling in
his 2002 Honda Civic with one of his flooring installers, Will Pingot. They
were traveling westbound on 33rd Avenue when the defendant’s taxi emerged from
Culloden Avenue and struck the side of his vehicle, causing it to collide with
a cube van.

[25]        
The airbags deployed, and airbag powder filled the vehicle. The
plaintiff’s head struck and shattered the upper left side of the front
windshield.

[26]        
After the collision, Mr. Pingot asked the plaintiff what had
happened; he replied that the airbag was going off. Once they were outside of
the vehicle, Mr. Pingot then observed the plaintiff talking to someone on
the telephone. He told the plaintiff to call 911 and Mr. Gillespie placed
that call. Mr. Gillespie was walking around and sitting along the road. Mr. Gillespie
requested Mr. Pingot to drive him to the Burnaby General Hospital. He left
the plaintiff at the hospital.

Immediately after the Accident

[27]        
Mr. Gillespie testified in chief that after the accident:

(a)           
he felt woozy but did not have pain;

(b)           
his head was bleeding;

(c)           
his lip was cut;

(d)           
he got out of the vehicle and walked around;

(e)           
the damage to his vehicle and the taxi was considerable, and his vehicle
was unrepairable;

(f)             
a neighbor provided a towel for his head;

(g)           
the fire department and an ambulance arrived;

(h)           
the ambulance staff asked if he had lost consciousness;

(i)             
he declined the ambulance staff’s invitation to be taken to Vancouver
General Hospital;

(j)             
his passenger Mr. Pingot, drove him to Burnaby General Hospital;

(k)           
he waited at Burnaby General Hospital, and they tested his blood
pressure and his eyes and asked him about dizziness;

(l)             
he did not remember any unconsciousness;

(m)         
hospital staff repaired the hanging skin cut to his forehead;

(n)           
he was dizzy and nauseous;

(o)           
he had back, knee and ankle pain;

(m)     he
had a headache on the left side;

(p)           
he does not recall how long he remained at Burnaby General Hospital or
when he left the hospital, but he recalls being advised not to go to sleep;

(q)           
his wife and daughter arrived at Burnaby General Hospital and took him
home;

(r)            
he eventually went to sleep; and

(s)           
his general and low back pain worsened.

[28]        
When the plaintiff was cross-examined, he said he could recall very
little of what transpired at the Burnaby General Hospital; he could not recall being
dizzy, nauseous or experiencing headaches. When presented with his discovery
evidence he acknowledged there were differences between his testimony at trial
and his responses at the discovery. I will address that point below.

[29]        
He could not remember how long he was at the accident scene or whether
he had pain in his head. However, he specifically recalled that during the
night, his dizziness, low back and neck pain worsened, although he did not
recall having nausea. He denied the suggestion that his headaches and dizziness
occurred only in the morning.

[30]        
The plaintiff was not certain, but he believed that the next day (the
visit was actually two days later on December 3) he saw his family doctor, Dr. Levis,
who advised him to “take it easy". He testified that he told his doctor
that his headaches were sharper over the eye area, that he had neck pain at the
base of his skull, and that he had low back, leg, and ankle pain.

[31]        
He was asked about his failure to mention his headaches to Dr. Levis
on December 2 or 3, and he denied the suggestion that his headaches did not
begin until the morning of December 3. And he framed his answers about
dizziness as “to the best of my recollection I had dizziness.” When Mr. Gillespie
resorted to the phrase “to the best of my recollection" I inferred that he
does not have a clear memory of such events and was doing his best to
reconstruct what he thinks occurred.

[32]        
He said he followed his doctor’s advice, but during the following week his
headaches worsened, and he became concerned about the prospects of a head
injury.

[33]        
After approximately one week, he obtained a CT scan at Royal Columbian
Hospital; he was told that nothing was seriously wrong with his head.

[34]        
His headaches were unrelenting for the first six months after the first
accident.

[35]        
He said there was a little bit of dizziness for one week after the first
accident. He had low back pain for about one month, and the pain in his neck
and right leg also improved within a month.

[36]        
In the days after the accident, he was feeling some pressure to return
to work, but he was finding it hard to concentrate and believed he was making
mistakes. He would add numbers incorrectly and would reverse numbers even when
using a calculator.

[37]        
He does not recall telling his wife about these problems at the time,
but he does recall Dr. Levis advising him to go to physiotherapy. He
attended physiotherapy as prescribed.

[38]        
The gash on his forehead healed within four to five months although a
scar remains on his forehead.

[39]        
Other than physiotherapy the only treatment he received was medication
for his headaches and sleep issues.

[40]        
Mr. Gillespie did not tell Dr. Levis that he had experienced
anxiety before the accident and she did not review his medical records from
before the accident, until well after writing her report. He was confronted
with his family doctor’s 2006 notes which reflected a comment that for two
years he had been waking in the middle of the night feeling anxious. He
testified that he had not had any pre-accident anxiety issues. He said he had
been able to begin his new business in 2006 and had made a success of the
business without problems relating to anxiety.

The Second Accident

[41]        
On January 22, 2010, Mr. Gillespie was involved in the second
accident. This rear-end collision caused a jolt that aggravated his neck and
back pain. The changes to those symptoms lasted seven to 10 days. From then on,
his neck problems came and went, but long drives aggravated this condition. If
he turned his head sharply, he also experienced pain.

Life after the Accidents

[42]        
Although Mr. Gillespie’s low back discomfort improved, if he sits
for prolonged periods, his back will ache.

[43]        
His neck and right leg were not painful after the first one month.

[44]        
He had some dizziness for approximately one week after the first accident,
but that symptom has resolved.

[45]        
In the first month after the first accident, his headaches worsened;
they were constant and fluctuated from being bearable to unbelievably sharp
pains during the first six months post-accident. His eyes became strained if he
read too much.

[46]        
During the first month after the first accident Mr. Gillespie did
not stop working at any time. He does not remember ever refraining from driving
and could not be sure if he reduced his number of hours worked. He said it was
hard to concentrate and he was making mistakes in calculations.

[47]        
He was having memory difficulties.

[48]        
He was prescribed Tylenol 3’s, but he found they made him dozy. He
started taking over-the-counter medications and has used six to eight Tylenol
pills per day ever since. He currently takes two in the morning, two during the
day, and two at night. The Tylenol costs approximately $180 per year.

[49]        
His wife’s medical plan covered the prescription medication, and he paid
for the over-the-counter drugs (Tylenol) personally.

[50]        
He was referred to the Fraser Health Concussion Clinic on April 14, 2010
where he was advised:

1.       to reduce the number
of tasks he focused on at any one time;

2.       to stop work if he
became confused;

3.       to avoid television, radio
and noisy places;

4.       to use sticky notes
for reminders; and

5.       to focus
on smaller jobs rather than larger jobs that may involve multiple trades in
confined areas (this strategy has resulted in him not doing large jobs).

[51]        
In cross-examination, Mr. Gillespie said he had no memory of the
visit to the concussion clinic. He said he went to the clinic because of problems
with work, anxiety and memory, but he then said he could not remember which
problems actually led to his attendance at the clinic. He did not remember the
interview at the clinic or that he told them he was functioning at 90% of his physical,
emotional, and cognitive capacity at the time. He also could not remember the
questionnaire given to him at the clinic nor his responses. The concussion
clinic recommended that he return for a second session; he declined.

[52]        
He tried to maintain his routine but felt he was becoming confused; this
confusion prompted him to stop work. When he worked on more than one project at
a time, he felt his anxiety build up. He avoids using television and radios
when he is working.

[53]        
BC Housing was one of his clients, and he typically enjoyed a good working
relationship with that institution. They often did work in single room
occupancy buildings. However following the accidents, Mr. Gillespie
claimed he had to stop taking on that type of work because the job sites were
too confusing for him.

[54]        
Mr. Gillespie claims that his memory has deteriorated since the
accident. He said he forgets fax numbers, phone numbers, conversations and
other details. He has word finding difficulties and transposes numbers when
doing work related calculations. He sometimes forgets street names and numbers.

[55]        
He makes sticky notes to remind himself of tasks that need to be done.
He has a book where he lists the things he needs for specific jobs, and he has
increased the amount of detail he keeps in his workbooks.

[56]        
In May 2011, his family doctor referred him to a neurologist, Dr. Foti.
The doctor did some concussion testing, and Mr. Gillespie said he was
truthful in his answers to Dr. Foti. When he saw Dr. Foti he did not
mention any word-finding difficulties and believed his day-to-day memory was
reasonable. Nevertheless he currently asserts that his memory is not as good as
it was before the accident.

[57]        
The concussion clinic recommended that he adjust his activity level to avoid
multi-tasking. After he made this change he found it easier to cope with his
anxiety and headaches, although he feels that he was turning down too much
business because of the limitations on his working ability.

[58]        
Initially, he stopped taking on new work when he became confused. His
anxiety over minor issues increased. The anxiety occurs mostly when he is in
bed and subsides after he arises in the morning.

[59]        
Before the accident he did not have anxiety, but now he feels that he is
on the edge. He said that the things that cause anxiety are of no consequence, but
he continues to go over and over issues that cause him to become anxious.
Working on more than one task at a time seems to contribute to his anxiety.

[60]        
He makes dinner for his wife at approximately 7:00 pm. He retires each
night around 9:15 pm and gets up at 5:00 am. His wife does not go to bed until
11:00 pm. He said his intimate life with his wife has dropped off since the
accidents. He avoids noisy places such as shopping malls.

[61]        
Dr. Foti prescribed antidepressant medications for Mr. Gillespie;
he said amitriptyline has improved his sleep quality, but he continues to have
word-finding problems and difficulty recalling names, places, and street names.

[62]        
He said his injuries do not affect his energy levels unless the symptoms
become bad, and then he may sit in the dark until he improves. He finds that noisy
places such as shopping malls bother him. Large job sites may have as many as
seven trades in confined areas which seem to increase his level of stress. As a
result, he stopped taking on large projects.

[63]        
By October 2011 Mr. Gillespie was feeling better with improved
energy. He could not recall if his condition at the time of trial was changed
from how he felt in October 2011. He confirmed that at his examination for
discovery of December 12, 2013 he was feeling better and that his cognitive
functioning had improved since seeing Dr. Foti.

[64]        
He testified that before the accident he could do a “takeoff", or a
quote, in 30 to 60 minutes for a $10,000 project. The same work now takes
between 90 and 180 minutes. He forces himself to redo takeoffs as many as three
times because of his problems with numbers. If he reproduces a single quotation
three times and the results are in the same range, Mr. Gillespie is
satisfied with the quotation he has created.

[65]        
He testifed that the risk of making an error on a $100,000 job is beyond
his tolerance. On a projoct of that size, a $10,000 mistake would be very
serious and too great a risk for him. He testified that he lost $25,000 on a project
at UBC due to an installation error. There was no corroborating evidence
detailing this loss. He has no memory of losing work due to his poor memory but
claimed to have lost work (from Syd Pagliara) due to problems with a customer
over pricing. He stopped responding to Syd’s projects but continues to work for
Syd’s son.

[66]        
He said that the reason he accepts only smaller jobs is due to his
health; when defendants counsel suggested it was not because of the accident,
he answered “I cannot say yes or no". But he believes the larger jobs
exacerbate his symptoms.

[67]        
Large jobs take weeks or months to complete whereas the smaller projects
can be finished within one or two days.

[68]        
Currently, he gets upset more easily than before the accident and is
short with people. He has been told that his tone is aggressive, and he thinks
he is slow to admit mistakes when at work and at home. He believes these personality
changes and being easily upset has cost him business relationships.

[69]        
He is concerned about changes in his memory; but he is unable to usefully
compare his current memory with his capacity before the accident.

[70]        
His current memory problems have not changed from the date of the first accident:
they include difficulty in word-finding, reversing numbers, leaving pots on the
stove (he has done it twice), needing to make notes, and being anxious about
making errors in his project quotations. He believed these symptoms came on at
the time of the accident, but he cannot be specific. He complains of ongoing
headaches which develop throughout his day; he uses Tylenol medication to
ameliorate the symptoms.

[71]        
He was cross-examined about his memory problems. As an example, he had
testified at his discovery that his memory difficulties were limited to numbers
and names whereas at trial he claimed a much broader range of memory problems.
He acknowledged that he could not remember his conversation with Mr. Pingot
at the accident scene.

[72]        
Both he and his wife testified that his personality has changed since
the accidents. He is more aggressive now and is more easily upset by people and
events. She said he has become mean and aggressive at times and can be rude to
others. She has observed the plaintiff’s difficulty in sleeping since the
accident. She said there is a lot of tossing and turning and moaning when he is
asleep.

[73]        
Since the accident he uncharacteristically raises his voice in
conversation and has become defensive.

[74]        
She has observed difficulties with his memory. He now forgets
conversations and appears to struggle with quotations and calculations. She
said he leaves the fridge door open, his keys in the front door and leaves taps
running and pots on the stove. She said that they talk about their plans on one
night and he will have forgotten their discussions the next night.

[75]        
He confirmed that does not experience anxiety during the day; it is
confined to early mornings. He is able to enjoy holidays without interference
with memory difficulties.

[76]        
He plans to continue taking two holidays each year and to scale back his
work until retirement.

[77]        
He said that his injuries have resulted in lower business profits since
the accident. In his first full year after the accident (fiscal 2011) his
company net profit was $77,726, whereas the 2010 profit was $143,299. In 2012
he decided to put more effort into the projects and his business and the profit
increased to $166,921. In 2012 when he was not feeling well, was anxious and
was sleeping less; the income nonetheless rose by $90,000 for 2012.

[78]        
He took 20 days off in May 2012 and three weeks off in October 2012 for
vacation; these vacations occurred in fiscal 2013. When he returned from his
holidays he felt better and was less anxious.

[79]        
Since May 1, 2013 he has increased his workload and described his fiscal
2014 business as good. He said there is a lot of work and more pressure.

[80]        
He could only guess that work now takes double the time he thought was
required before the accident. He is no longer confident in giving the type of
“rough estimates” he provided before the accident.

[81]        
Mr. Gillespie acknowledged under cross-examination that the last
job he turned down due to his injuries and the type of work involved was in
August 2011. He testified that he is turning down larger jobs but produced no
records of job turn- down despite knowing that in this case he was making a
claim for past and future income loss based on those lost jobs.

[82]        
He testified that his wife will retire from her position in three years
and that they would like to return to the Okanagan to live. He said he wanted
to accumulate between $700,000 and $800,000 in retained earnings in his company
to be able to fund his retirement.

[83]        
In sum, Mr. Gillespie’s main complaint is that his memory and
cognitive function were seriously compromised by the injury to his head and
adversely affect his competitiveness in the flooring business.

Medical Evidence

[84]        
The plaintiff relied on the April 30, 2013 written opinion of his family
doctor, Dr. Nicole Levis. Dr. Levis appeared at trial and was cross-examined.

[85]        
The plaintiff also relied on the August 28, 2013 written opinion
evidence of Dr. E. David, a specialist in Otolaryngology who was initially
retained by the defendants. He was not cross-examined.

[86]        
The defendants relied on the September 12, 2013 written opinion of Dr. Andrew
Eisen, a neurologist, who appeared at trial and was cross-examined.

Dr. Levis

[87]        
Dr. Levis’s written opinions included the following:

(a)      Mr. Gillespie
was injured in the first accident and diagnosed with a mild traumatic head
injury concussion with ongoing post-concussion symptoms. He experiences chronic
headaches, sleep disturbances, anxiety, and persistent cognitive impairments;

(b)      The
collision caused Mr. Gillespie’s injuries. He did not have a pre-accident
condition that made him more susceptible to injury nor was she aware of
pre-existing injuries or conditions. Therefore, she attributed his symptoms to
the accident;

(c)      His
pre-accident diagnosis of hypertension proteinuria did not impact the accident
related injuries;

(d)      Mr. Gillespie
has a vocational disability. His injuries have rendered him able to take on 50%
of his previous projects or workload. He is not accepting the larger, complex
projects and only accepting the smaller ones. He experiences headaches
throughout his work day and makes errors resulting in him rechecking his work
more often than before. These impairments are likely to persist into the future;

(e)      Mr. Gillespie’s
injuries affect his recreational, social, household, and daily activities. He
has sleep difficulties and anxiety. He does not work out or use an elliptical
machine as he did before the collision. He is more irritable and anxious when
planning or decision-making;

(f)       Mr. Gillespie
is likely to require ongoing Tylenol and amitriptyline. Massage therapy may be
helpful. Neuropsychological testing might help regarding his cognitive
difficulties; and

(g)      Mr. Gillespie’s
symptoms have continued for three years and four months, and complete recovery
is unlikely; the symptoms will persist into the future.

[88]        
In cross-examination, Dr. Levis said she relied on Dr. Foti’s
opinion, i.e., that the plaintiff suffered a mild traumatic brain injury, when
preparing her opinion.

[89]        
When Dr. Levis first saw Mr. Gillespie on December 3, 2009, he
described to her the sequence of events leading to the collision, the collision
itself, the spinning of his car and striking another truck, the airbag
deployment, the impact of his head on the windshield and his upper lip on the steering
wheel. He said he did not lose consciousness. He was able to describe the
events at Burnaby General Hospital, including the repair to his forehead
laceration. He also described his headaches, body aches and poor sleep.

[90]        
Dr. Levis’s initial opinion was that Mr. Gillespie had a
whiplash injury and forehead cut. She did not note any altered state of
consciousness. But she opined that his concussion injury had lasted from then
to now without improvement, and that the pattern and duration of his head
injury is not in the usual course. She said an altered state of consciousness
may be indicated if a person is dazed, confused or has mental fog and was suffering
decreased memory.

[91]        
Dr. Levis reported that Mr. Gillespie “stated he awoke on
December 3, 2009 with a headache and body aches and poor sleep". Mr. Gillespie
also complained of bilateral neck pain and rotation with low back pain, but had
no blurry vision, tinnitus or dizziness. He did not report having a headache
between December 1 and 3, 2009.

[92]        
When Dr. Levis met Mr. Gillespie on December 21, 2009, he
described some poor short-term memory, reversing numbers, intermittent
headaches relieved by Tylenol, intermittent dizziness, and difficulty with word-finding.
Her impression at that visit was post-concussion syndrome, and she referred him
for a neurological consultation.

[93]        
Mr. Gillespie told Dr. Levis that his intermittent headaches
and sleep disturbances continued into June 2010. By August 30, 2010, he said he
was doing well; he was working more hours and experiencing fewer headaches. But
he told her that the insomnia was continuing, that he was using Zopiclone to
help, and that if he failed to take it, he would wake at 3:00 am.

[94]        
In her examinations of the plaintiff, Dr. Levis did not inquire
about any history he might have had with anxiety or sleep issues. She missed
reviewing his earlier records where those symptoms had been disclosed previously
to his doctor.

Dr. David

[95]        
Dr. David opined that it is likely Mr. Gillespie suffered a
post-traumatic left inner ear otolith dysfunction. The mechanism for this
injury was a direct impact, acoustic trauma from airbag deployment and explosive
forces associated with airbag deployment.

[96]        
Dr. David’s opinion was based on an objective balance test that
confirmed Mr. Gillespie had an inner ear dysfunction.

[97]        
Dr. David opined that Mr. Gillespie’s day-to-day activities
are not currently limited due to the deficit because he has a compensatory
mechanism that is activated.

[98]        
Dr. David opined that the there is a possibility that the compensatory
mechanism can be overridden, and his imbalance may become noticeable. This
deficit is also in his opinion a contraindication to Mr. Gillespie working
at elevations or around machinery or doing any commercial driving.

[99]        
However, Dr. David opined that Mr. Gillespie achieved complete
compensation (but not resolution) for this deficit.

Dr. Eisen

[100]     Dr. Eisen
opined that the plaintiff suffered a whiplash type injury with no neurological
deficits or radiological fractures. He reports that both motor vehicle accidents
were “of mild nature”. He did not believe the plaintiff suffered a mild
traumatic brain injury even though he had a forehead laceration.

[101]     Regarding
the second accident, he said this very mild collision aggravated the whiplash
symptoms of the neck and back from the first accident. Those symptoms rapidly
settled and were no longer a concern. He said that the plaintiff’s cognitive
symptoms did not commence until after the second accident. He learned from the
plaintiff that his cognitive symptoms persisted and possibly worsened. He noted
Dr. Foti’s comment confirming his mild cognitive dysfunction one year
after the accidents. Those deficits were not apparent to him at the time of his
examination. Dr. Eisen seems to have accepted that the deficits were
evident until January 22, 2011. He has not considered Dr. Levis’ comments
that cognitive deficits were apparent by December 21, 2009.

[102]     Dr. Eisen
observed that the plaintiff did not stop work; rather he curtailed his work intensity
due to memory impairment and lack of concentration. Dr. Eisen opined that Mr. Gillespie’s
headaches were not cervicogenic and related to the accident; he believed they
were related to small vessel disease of the brain called concomitant of
metabolic syndrome predating the accident.

[103]     A head MRI
would have been helpful in detecting indications of small vessel disease of the
brain, but I note that an MRI did was not done in this case.

[104]     Dr. Eisen
also observed that there was no evidence of Mr. Gillespie experiencing
amnesia as was noted by Dr. Foti.

[105]     Dr. Eisen
said that the plaintiff had all four components of metabolic syndrome: abdominal
obesity, hypertension, impaired glucose metabolism, and disordered lipid
profile. The presence of metabolic syndrome increases the risk of cognitive
impairment.

Parties’ Submissions

Plaintiff

[106]     Mr. Gillespie
contends that the first accident resulted in cuts to his head, neck, left
shoulder, low back, knee and ankle pain. He developed severe, ongoing headaches.

[107]     Mr. Gillespie
claims he suffered a mild traumatic brain injury on the basis of Dr. Levis’s
evidence. He claims that the injury resulted from his head hitting the car windshield,
and his ongoing symptoms resulted from that blow to his head.

[108]     Mr. Gillespie
felt dazed and woozy after the collision.

[109]     Mr. Gillespie
argues that this post-accident conduct demonstrates the injuries of which he
now complains result from damage to his brain. When his wife met him at the
hospital, Mr. Gillespie was unsteady on his feet and very agitated. She
could not have a coherent conversation with him because he did not make sense;
he was going off on tangents. He was anxious and wanting to go home. Once at
home he was disoriented, agitated and distressed. In short, his behavior was
erratic.

[110]     Dr. Levis
confirmed that mild traumatic brain injuries can be diagnosed when a loss of
consciousness or alteration of consciousness occurs. An alteration of
consciousness means a change in mental status; it could include being woozy,
dazed, in a mental fog, confused or experiencing memory loss (I will pause to
note that, curiously, this detail was not included in her written report and
was only elicited in cross-examination).

[111]     Mr. Gillespie
contends that the symptoms continuing from the date of the accident justify an
award for past loss of income and that the amount of those damages should be
estimated.

[112]     Mr. Gillespie
also contends that future income loss has been proven because he suffers from
cognitive difficulties that require him to triple check his work. He also takes
longer to do his estimates, and the stresses and risks associated with large
complex jobs have made it untenable for him to accept those types of projects.

[113]     Before the
accident, Mr. Gillespie targeted accumulating retained earnings in his
company between $700,000 and $800,000 as the amount needed to retire. Before
the accident, his company had $36,472 in retained earnings. In 2010, that
account rose to $106,827, and by 2013, it rose to $353,628.

[114]     Mr. Gillespie
claims that if retained earnings continue to increase at $143,000 per year (the
amount of increase in the fiscal year ending April 30, 2010) he would have reached
his goal by working full time until 2015. These projections translate into a
future income loss of $640,000. He calculates his actual post-accident loss for
the years ending April 30, 2011, 2012 or 2013 at $309,832 and $103,277 per
year. This amount is $59,131 less than his pre-accident capacity.

[115]     If Mr. Gillespie
had continued to work to age 70, his loss of capacity would be $285,997. The
plaintiff invited the Court to consider the capital asset approach outlined in Brown
v. Golaiy (1985), 26 BCLR (3d) 353.

[116]     Mr. Gillespie
contends that he is overall less capable of earning income from all types of
employment; less marketable or attractive to prospective employers, less able
to take advantage of all job opportunities, and less valuable to himself as a
person capable of earning income in a competitive market.

[117]     Mr. Gillespie’s
claims for special damages are limited to extra strength Tylenol and
over-the-counter medication. He takes six to eight tablets per night at a cost
of $15 for every 200 tablets. This claim is between $600 – $800.

[118]     Regarding
cost of future care, Mr. Gillespie claims that extra-strength Tylenol will
cost between $1,642 and $3,285 depending on his life expectancy.

[119]     Mr. Gillespie
argues that Dr. Eisen’s opinion should not be accepted because of his
errors in assessing the plaintiff’s pre-accident risk factors for metabolic
syndrome. He argues that Dr. Eisen erred in concluding that Mr. Gillespie
met the criteria for abdominal obesity, untreated hypertension or atherogenic
dyslipidemia.

Defendants

[120]     The
defendants argue that the plaintiff suffered mild soft tissue injuries in the
December 2009 accident and no injuries from the January 2010 collision.

[121]     They argue
that the plaintiff’s evidence was inconsistent between his examination in chief
and cross-examination and his discovery testimony. They argue that I should
attribute a dishonest motive to the plaintiff and reject his evidence as not credible
or reliable.

[122]     The
defendants argue that usual indicia of a traumatic brain injury include
evidence of an altered state of consciousness or unconsciousness shortly after
injury. The defendants argue that no evidence demonstrates that Mr. Gillespie
was experiencing either unconsciousness or altered consciousness in the moments
after the collision. Therefore, Dr. Levis erred when she concluded that Mr. Gillespie
suffered a brain injury. Indeed, Dr. Levis confirmed that headaches and
dizziness are nonspecific symptoms that do not necessarily lead to the
conclusion of traumatic brain injury.

[123]     The
defendants contended that Dr. Levis’s evidence should not be given great weight.
They argue that she is a part-time practitioner who sees an average of five
cases of concussion injury per year, and most of those concussions are sports
related injuries. She is not a trained neurologist; rather she functions as a
patient advocate accepting the complaints as stated without questioning the
veracity or reliability of those complaints.

[124]     The
defendants argue that the plaintiff exaggerated the impact of his cognitive
deficits on his daily living.

[125]     The
defendants argue that the plaintiff lacked credibility and reliability in his
testimony at trial. Although Dr. Levis reported that the plaintiff was a
good historian, his testimony at trial was quite inconsistent and suggests that
he did not have a good memory.

[126]     In direct
evidence, Mr. Gillespie gave a detailed account of the events leading up
to the collision and what transpired at the scene of the accident. He said he
got out of the vehicle, walked around, and noticed that the fire department and
ambulance arrived. Someone gave him a towel for his head. The ambulance
attendants wanted to take him to hospital; he declined in favor of going to
Burnaby Hospital with his passenger.

[127]    
At his September 21, 2011 examination for discovery he was asked about
the fire department and police attendance at the scene. He responded:

147Q   So I
understand that the fire department and the police attended the scene; is that
correct?

A          Yes. I
believe the first person there was a fire department person. Again, I am just
going on what I have been told about it. And then the police arrived and a fire
– – and ambulance. Where emergency response vehicle or

148Q   Do you not recall the fire department or ambulance
attending?

A          Not
really. I have very little memory of that at all. I remember the – – being in
the emergency response vehicle, but I believe that the first person there was a
fire person in his – – in a fire vehicle, not a big fire truck, but I guess
like a fire car. And again, I think I am taking most of this from related
stories.

[128]    
Under cross-examination he said that: he did not remember pain to his
head or forehead; did not remember being dizzy, nauseous, or suffering back
pain, neck pain or headache when he was at Burnaby Hospital.

[129]     Dr. Levis’
records indicate that on December 3, 2009 the plaintiff reported no dizziness
and headaches that began the morning of December 3. He did not deny saying this
to Dr. Levis but insisted that his headaches and dizziness had begun the
day of the accident. The defendants stressed that the discrepancy in the plaintiff’s
testimony in chief outlining his complaints when he arrived at Burnaby General
Hospital and his discovery evidence wherein he lacked a memory of these details
ought to erode my confidence in his reliability and credibility.

[130]     The
defendants also contend that the plaintiff’s report to Dr. Foti in August
2011 and October 2011 that, his day to day memory was reasonable, his
geographic sense and concentration were reasonable, and he occasionally lost
his train of thought, are against his complaint of more serious memory and
concentration problems. They argue that his report to the concussion clinic
that he was 90% recovered as of April 15, 2010 demonstrates the unreliability
of his trial testimony.

[131]     They
contend that, in the absence of corroborating evidence to support his claims
and given his self-confessed poor memory, Mr. Gillespie has not proven
that he suffered a concussion-type injury that impaired his ability to function
and altered his personality.

Applicable Law

Expert Evidence

[132]      
Analyzing conflicting medical opinions requires scrutinizing the
facts underlying those opinions.

[133]      
Mazur v. Lucas, 2010 BCCA 473 is apposite to the
issues in this case. It concerned hearsay evidence that experts relied on in
forming opinions. At paras. 38-40, the Court said:

[38]      In Cunningham
v. Slubowski, 2003 BCSC 1854 (CanLII), 2003 BCSC 1854, Madam Justice
MacKenzie (now A.C.J.), described the proper use of clinical records, not
otherwise in evidence, in the context of a ruling on the admissibility of those
records. Although her ruling pertained to the admissibility of clinical
records, part of her ruling is nevertheless apt to this case. She said at para. 13:

[13]      Even
had the plaintiff complied with s. 42 of the Evidence Act to make
the clinical records admissible as business records, the consulting letters to Dr. Abelman
of the three specialists to whom he referred the plaintiff amount to expert
opinions which are inadmissible because of failure to comply with Rule 40A:
F.(K.E.) v. Daoust 1995 CanLII 1201 (BC CA), (1995), 3 B.C.L.R. (3d) 128
(C.A.); McTavish v. MacGillivray. The proper use of the clinical records
is thus very limited in this case: they can be used by the defendants on
cross-examination of the plaintiff, by Dr. Abelman himself as notes to
refresh his memory while giving evidence at trial, or in cross-examination of Dr. Abelman
on his expert report with respect to the foundation for his opinion. The latter
use would include reference to the plaintiff’s statements and the opinion of
other specialists, but not for proof of the content of those statements and
opinions.

[39]      As Watt
J. observed after canvassing the jurisprudence on hearsay-based opinions in R.
v. Palma, 149 C.C.C. (3d) 150 (Ont. S.C.J.), there has not been “any
reasoned departure from the principles stated and reiterated by the Supreme
Court of Canada over the better part of three decades”. This treatment of
hearsay contained in an expert opinion as relevant to weight rather than
admissibility has also been commented upon favourably by leading Canadian
scholars in the field of evidence (see David Paciocco and L. Steusser, The
Law of Evidence, 5th ed. (Toronto: Irwin Law, 2008) at 211-213; Alan Bryant
et al., The Law of Evidence in Canada, 3rd ed. (Markham, Ont.:
LexisNexis, 2009) at 838-849). Likewise, the notion of a relaxed hearsay rule
in the context of expert evidence is reflected in the model civil jury
instructions: R. Dean Wilson et al. CIVJI: Civil Jury Instructions,
loose-leaf at § 4.20.8, which reads:

8.         Second,
where [the expert witness] gave (his/her) opinion, it was based (entirely/in
part) on statements made to (him/her) by others who were not called to give
evidence in this trial, such as [specify].

Because the person(s) who made
these statements did not give evidence before you, the opinion of [the expert
witness] is founded (entirely/in part) on hearsay evidence.

Normally, hearsay evidence is not
admissible for any purpose, but in the case of an expert, the rule is not quite
so strict. You may examine this hearsay evidence for the purpose of deciding
the weight you will give the opinion of [the expert witness]. You cannot regard
that hearsay evidence as evidence of the truth of what is alleged to have been
said. However you may use it for the purpose of assessing the weight of the
evidence of [the expert witness].

[40]      From
these authorities, I would summarize the law on this question as to the
admissibility of expert reports containing hearsay evidence as follows:

• An expert witness may rely on a
variety of sources and resources in opining on the question posed to him. These
may include his own intellectual resources, observations or tests, as well as
his review of other experts’ observations and opinions, research and treatises,
information from others – this list is not exhaustive. (See Bryant, The Law
of Evidence in Canada, at 834-835)

• An expert may rely on hearsay.
One common example in a personal injury context would be the observations of a
radiologist contained in an x-ray report. Another physician may consider it
unnecessary to view the actual x-ray himself, preferring to rely on the
radiologist’s report.

• The weight the trier of fact
ultimately places on the opinion of the expert may depend on the degree to
which the underlying assumptions have been proven by other admissible evidence.
The weight of the expert opinion may also depend on the reliability of the
hearsay, where that hearsay is not proven by other admissible evidence. Where
the hearsay evidence (such as the opinion of other physicians) is an accepted
means of decision making within that expert’s expertise, the hearsay may have
greater reliability.

• The correct judicial response to
the question of the admissibility of hearsay evidence in an expert opinion is
not to withdraw the evidence from the trier of fact unless, of course, there
are some other factors at play such that it will be prejudicial to one party,
but rather to address the weight of the opinion and the reliability of the
hearsay in an appropriate self-instruction or instruction to a jury.

[Emphasis added.]

[134]    
And at paras. 34-36, the Court addressed R. v. Lavallee, [1990] 1
S.C.R. 852 and R. v. Abbey, [1982] 2 S.C.R. 2, namely in examining the
issue of where an expert relies on information for which no admissible evidence
exists:

34        Madam
Justice Wilson extracted the following principles from Abbey (at 893):

1.         An
expert opinion is admissible if relevant, even if it is based on second-hand evidence.

2.         This
second-hand evidence (hearsay) is admissible to show the information on which
the expert opinion is based, not as evidence going to the existence of the
facts on which the opinion is based.

3.         Where
the psychiatric evidence is comprised of hearsay evidence, the problem is the
weight to be attributed to the opinion.

4.         Before
any weight can be given to an expert’s opinion, the facts upon which the
opinion is based must be found to exist.

And she concluded (at 896-897):

In my view, as long as there is
some admissible evidence to establish the foundation for the expert’s opinion,
the trial judge cannot subsequently instruct the jury to completely ignore the
testimony. The judge must, of course, warn the jury that the more the expert
relies on facts not proved in evidence the less weight the jury may attribute
to the opinion…

Where the factual basis of an
expert’s opinion is a melange of admissible and inadmissible evidence the duty
of the trial judge is to caution the jury that the weight attributable to the
expert testimony is directly related to the amount and quality of admissible
evidence on which it relies.

[35]      Mr. Justice
Sopinka concurred with Wilson J. in the result in Lavallee, but made some
clarifying remarks which are relevant to the present appeal. In his view, the
four propositions from Abbey concerning the admissibility and weight of expert
opinion evidence may yield a result which is self-contradictory (at 898-899):

The combined effect of numbers 1, 3
and 4 is that an expert opinion relevant in the abstract to a material issue in
a trial but based entirely on unproven hearsay (e.g., from the mouth of the
accused, as in Abbey) is admissible but entitled to no weight whatsoever. The
question that arises is how any evidence can be admissible and yet entitled to
no weight. As one commentator has pointed out, an expert opinion based entirely
on unproven hearsay must, if anything, be inadmissible by reason of
irrelevance, since the facts underlying the expert opinion are the only
connection between the opinion and the case: see Wardle,“R. v. Abbey and
Psychiatric Opinion Evidence: Requiring the Accused to Testify”(1984), 17
Ottawa L. Rev. 116, at pp. 122-23.

[36]      To
resolve the contradiction, he drew a practical distinction between evidence
that an expert obtains and acts upon within the scope of his or her expertise
and evidence that an expert obtains from a party to litigation touching a
matter directly in issue (at 899-900):

In the former instance, an expert
arrives at an opinion on the basis of forms of enquiry and practice that are
accepted means of decision within that expertise. A physician, for example,
daily determines questions of immense importance on the basis of the
observations of colleagues, often in the form of second- or third-hand hearsay.
For a court to accord no weight to, or to exclude, this sort of professional
judgment, arrived at in accordance with sound medical practices, would be to
ignore the strong circumstantial guarantees of trustworthiness that surround
it, and would be, in my view, contrary to the approach this Court has taken to
the analysis of hearsay evidence in general, exemplified in Ares v. Venner,
1970 CanLII 5 (SCC), 1970 CanLII 5 (SCC), [1970] S.C.R. 608. In R. v. Jordan
(1984), 39 C.R. (3d) 50 (B.C.C.A.), a case concerning an expert’s evaluation of
the chemical composition of an alleged heroin specimen, Anderson J.A. held, and
I respectfully agree, that Abbey does not apply in such circumstances. (See
also R. v. Zundel 1987 CanLII 121 (ON CA), 1987 CanLII 121 (ON CA), (1987), 56
C.R. (3d) 1 (Ont. C.A.), at p. 52, where the court recognized an expert
opinion based upon evidence “… of a general nature which is widely used and
acknowledged as reliable by experts in that field.”)

Where, however, the information
upon which an expert forms his or her opinion comes from the mouth of a party
to the litigation, or from any other source that is inherently suspect, a court
ought to require independent proof of that information. The lack of such proof
will, consistent with Abbey, has a direct effect on the weight to be given to
the opinion, perhaps to the vanishing point. But it must be recognized that it
will only be very rarely that an expert’s opinion is entirely based upon such
information, with no independent proof of any of it. Where an expert’s opinion
is based in part upon suspect information and in part upon either admitted
facts or facts sought to be proved, the matter is purely one of weight.

[Emphasis added.]

Credibility and Reliability of Evidence

[135]    
In Bradshaw v. Stenner, 2010 BCSC 1398 at para. 186, Dillon
J. analyzed the factors to be considered when assessing credibility:

[186]    Credibility
involves an assessment of the trustworthiness of a witness’ testimony based
upon the veracity or sincerity of a witness and the accuracy of the evidence
that the witness provides (Raymond v. Bosanquet (Township) (1919), 59
S.C.R. 452, 50 D.L.R. 560 (S.C.C.)). The art of assessment involves examination
of various factors such as the ability and opportunity to observe events, the
firmness of his memory, the ability to resist the influence of interest to
modify his recollection, whether the witness’ evidence harmonizes with
independent evidence that has been accepted, whether the witness changes his
testimony during direct and cross-examination, whether the witness’ testimony
seems unreasonable, impossible, or unlikely, whether a witness has a motive to
lie, and the demeanour of a witness generally (Wallace v. Davis, [1926]
31 O.W.N. 202 (Ont. H.C.); Faryna v. Chorny, [1952] 2 D.L.R. 152
(B.C.C.A.) [Faryna]; R. v. S.(R.D.), [1997] 3 S.C.R. 484 at para.128
(S.C.C.)). Ultimately, the validity of the evidence depends on whether the
evidence is consistent with the probabilities affecting the case as a whole and
shown to be in existence at the time (Faryna at para. 356).

[136]    
In Andrusko v. Alexander, 2013 BCSC 985, Fitzpatrick J. said at
para. 49:

If the plaintiff’s account of his or her change in physical,
mental, and or emotional state as a result of the accident is not convincing,
then the hypothesis upon which any expert opinions rest will be undermined: Samuel
v. Chrysler Credit Canada Ltd., 2007 BCCA 431, at paras. 15, 49-50.

Causation

[137]     A
plaintiff must establish on a balance of probabilities that the defendant’s
negligence caused or materially contributed to an injury. The defendant’s
negligence need not be the sole cause of the injury so long as it is part of
the cause beyond the de minimus range. Causation need not be determined
by scientific precision: Athey v. Leonati, [1996] 3 S.C.R. 458 at paras. 13-17
[Athey].

[138]     The
primary test for causation asks: but-for the defendant’s negligence, would the
plaintiff have suffered the injury? The “but-for” test recognizes that
compensation for negligent conduct should only be made where a substantial
connection between the injury and the defendant’s conduct is present: Resurfice
Corp. v. Hanke, 2007 SCC 7 at paras. 21-23.

[139]    
Causation must be established on a balance of probabilities before
damages are assessed. As McLachlin C.J.C. said in Blackwater v. Plint,
2005 SCC 58 at para. 78:

…Even though there may be
several tortious and non-tortious causes of injury, so long as the defendant’s
act is a cause of the plaintiff’s damage, the defendant is fully liable for
that damage. The rules of damages then consider what the original position of
the plaintiff would have been. The governing principle is that the defendant
need not put the plaintiff in a better position than his original position and
should not compensate the plaintiff for any damages he would have suffered
anyway: [Athey v. Leonati].

[140]     The basic goal
of tort law to restore an injured person to the position he or she would have
been if not for the defendant’s negligence, no better or worse. The tortfeasor
must take his victim as they are when the injury happens, even if the
plaintiff’s injuries are more severe than they would be for a normal person
(the thin skull rule). However, the defendant need not compensate the plaintiff
for any debilitating effects of a pre-existing condition which the plaintiff
would have experienced anyway (the crumbling skull rule): Athey at paras. 32-35.

Non-Pecuniary Damages

[141]     Non-pecuniary
damages are awarded to compensate injured people for pain, suffering, loss of
enjoyment of life and loss of amenities. Compensation must be fair and
reasonable to reflect the impact of injuries on the past and future lives of
victims of the negligence of others.

[142]     Fairness
is measured against awards made in comparable cases but although those cases
are helpful, they only represent a reference for the assessment of the facts
unique to each person.

[143]    
In Stapley v. Hejslet, 2006 BCCA 34, Kirkpatrick J.A. outlined some
of the important factors to be considered when assessing non-pecuniary damages
at para. 46:

The inexhaustive list of common factors cited in Boyd
[Boyd v. Harris, 2004 BCCA 146] that influence an award of non-pecuniary
damages includes:

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of
pain;

(d)        disability;

(e)        emotional suffering; and

(f)         loss or impairment of
life;

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

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

(h)        impairment of physical
and mental abilities;

(i)         loss of lifestyle; and

(j)         the plaintiff’s stoicism (as a
factor that should not, generally speaking, penalize the plaintiff: Giang v.
Clayton, 2005 BCCA 54).

[144]     The
measure of non-pecuniary damages must reflect the injured person’s personal
experiences in coping with injuries and their consequences, and the plaintiff’s
ability to articulate that experience: Dilello v. Montgomery, 2005 BCCA
56 at para. 25 [Dilello].

Past Income Loss

[145]    
Compensation for past loss of earning capacity is to be based on what the
plaintiff would have, not could have, earned but for the injury that was
sustained: Rowe v. Bobell Express Ltd., 2005 BCCA 141 at para. 30;
M.B. v. British Columbia, 2003 SCC 53.

[146]    
In Smith v. Knudsen, 2004 BCCA 613 the Court said at para. 29:

That instruction accurately reflects the distinction made in
the case authorities between proof of actual events and proof of future or
hypothetical events. What would have happened in the past but for the injury is
no more "knowable" than what will happen in the future and therefore
it is appropriate to assess the likelihood of hypothetical and future events
rather than applying the balance of probabilities test that is applied with
respect to past actual events.

[147]    
The burden of proof of actual past events is on a balance of probabilities.
An assessment of loss of both past and future earning capacity involves
consideration of hypothetical events. The plaintiff is not required to prove
these hypothetical events on a balance of probabilities. The future or
hypothetical possibility will be taken into consideration as long as it is a
real and substantial possibility and not mere speculation: Drodge v. Kozak,
2011 BCSC 1316 at para. 148 [Drodge].

[148]     This
analysis involves estimating and not calculating the loss: Steward v.
Berezen, 2007 BCCA 150 at para. 7.

Loss of Future Earning Capacity

[149]     A claim
for loss of future earning capacity raises two key questions: 1) has the
plaintiff’s earning capacity been impaired by his or her injuries; and, 2) if
the plaintiff is impaired, what compensation should be awarded for the
resulting financial harm that will accrue over time? The assessment of loss
must be based on the evidence, and not an application of a purely mathematical
calculation. The appropriate means of assessment will vary from case to case: Brown
v. Golaiy, [1985] B.C.J. No. 31 (S.C.) [Brown]; Pallos v.
Insurance Corp. of British Columbia, [1995] B.C.J. No. 2 (S.C.) [Pallos];
Pett v. Pett, 2009 BCCA 232.

[150]     The
assessment of damages is also a matter of judgment, not calculation: Rosvold
v. Dunlop, 2001 BCCA 1 at para. 18.

[151]     As much as
possible, the plaintiff should be put in the position he would have been in but
for the injuries caused by the defendant’s negligence: Lines v. W & D
Logging Co. Ltd., 2009 BCCA 106 at para. 185.

[152]     The
essential task of the Court is to compare the likely future of the plaintiff’s
working life if the accident had not happened with the plaintiff’s likely
future working life after the accident: Gregory v. Insurance Corp. of
British Columbia, 2011 BCCA 144 at para. 32.

[153]    
In Perren v. Lalari, 2010 BCCA 140 [Perren], the Court
described the plaintiff’s burden of proof to succeed in this claim at para. 32:

A plaintiff must always prove, as was noted by Donald
J.A. in Steward, by Bauman J. in Chang, and by Tysoe J.A.
in Romanchych, 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, as in Steenblok, or a capital asset approach, as in Brown.
The former approach will be more useful when the loss is more easily
measurable, as it was in Steenblok. The latter approach will be more
useful when the loss is not as easily measurable, as in Pallos and
Romanchych. 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. That was the case in both Pallos and Parypa.
But, as Donald J.A. said in Steward, an inability to perform an
occupation that is not a realistic alternative occupation is not proof of a
future loss.

[154]    
The two possible approaches to assessment of loss of future earning
capacity are the “earnings approach” and the “capital asset approach”: Brown.

[155]     The
capital asset approach involves considering factors such as:

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

2.       is less marketable or
attractive as a potential employee;

3.       has
lost the ability to take advantage of all job opportunities that might
otherwise have been open; and,

4.       is
less valuable to herself as a person capable of earning income in a competitive
labour market: Brown; Gilbert v. Bottle, 2011 BCSC 1389 at para. 233.

[156]     The
earnings approach involves a form of math-oriented methodology such as: (1)
postulating a minimum annual income loss for the plaintiff’s remaining years of
work, multiplying the annual projected loss by the number of remaining years
and calculating a present value; or (2) awarding the plaintiff’s entire annual
income for a year or two: Pallos.

[157]    
Both approaches are correct and will be more or less appropriate depending
on whether the loss in question can be quantified in a measureable way: Perren.

[158]     The
principles that apply in assessing loss of future earning capacity were
summarized in Reilly v. Lynn, 2003 BCCA 49 at para. 101:

The relevant principles may be briefly summarized. The
standard of proof in relation to future events is simple probability, not the
balance of probabilities, and hypothetical events are to be given weight
according to their relative likelihood: Athey v. Leonati, [1996] 3 S.C.R. 458
at para. 27. A plaintiff is entitled to compensation for real and
substantial possibilities of loss, which are to be quantified by estimating the
chance of the loss occurring: Athey v. Leonati, supra, at para. 27,
Steenblok v. Funk (1990), 46 B.C.L.R. (2d) 133 at 135 (C.A.). The valuation of
the loss of earning capacity may involve a comparison of what the plaintiff
would probably have earned but for the accident with what he will probably earn
in his injured condition: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 93
(S.C.). However, that is not the end of the inquiry; the overall fairness and
reasonableness of the award must be considered: Rosvold v. Dunlop (2001), 84
B.C.L.R. (3d) 158, 2001 BCCA 1 at para. 11; Ryder v. Paquette, [1995]
B.C.J. No. 644 (C.A.) . Moreover, the task of the Court is to assess the
losses, not to calculate them mathematically: Mulholland (Guardian ad litem of)
v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.). Finally, since the course
of future events is unknown, allowance must be made for the contingency that
the assumptions upon which the award is based may prove to be wrong: Milina v.
Bartsch, supra, at 79. In adjusting for contingencies, the remarks of Dickson
J. in Andrews v. Grand & Toy Alberta Ltd., supra, at 253, are a useful guide:

First, in many respects, these
contingencies implicitly are already contained in an assessment of the
projected average level of earnings of the injured person, for one must assume
that this figure is a projection with respect to the real world of work,
vicissitudes and all. Second, not all contingencies are adverse … Finally, in
modern society there are many public and private schemes which cushion the
individual against adverse contingencies. Clearly, the percentage deduction
which is proper will depend on the facts of the individual case, particularly
the nature of the plaintiff’s occupation, but generally it will be small
…

Cost of Future Care

[159]     A
plaintiff is entitled to compensation for the cost of future care based on what
is reasonably necessary to restore him to his pre-accident condition in so far
as that is possible.

[160]     The test
for determining the appropriate award under the heading of cost of future care
is an objective one based on medical evidence. For an award of future care: (1)
medical evidence must justify claims for cost of future care; and (2) the
claims must be reasonable: Milina v. Bartsch, [1985] B.C.J. No. 2762
(S.C.) at para. 199 [Milina].

[161]     Future
care costs must be justified both because they are medically necessary and they
are likely to be incurred by the plaintiff. The award of damages is thus a
matter of prediction as to what will happen in future. If a plaintiff has not
used a particular item or service in the past it may be inappropriate to
include its cost in a future care award: Izony v. Weidlich, 2006 BCSC
1315 at para. 74.

Special Damages

[162]     An injured
person is entitled to recover the reasonable out-of-pocket expenses they
incurred as a result of an accident. The fundamental governing principle is
that an injured person is to be restored to the position he or she would have
been in had the accident not occurred: X. v. Y., 2011 BCSC 944 at para. 281.

Discussion

1.       Should I draw an
adverse inference against the plaintiff for failing to call Dr. Foti?

[163]     I conclude
that the circumstances surrounding Dr. Foti’s involvement in the
plaintiff’s treatment and his failure to adduce evidence from Dr. Foti do
not warrant the drawing of an adverse inference.

[164]     The
defence contends that an adverse inference should be drawn by reason of the
plaintiff’s failure to adduce evidence from Dr. Foti.

[165]     The
plaintiff relies on MacKenzie J.’s comments in Lipinski v. Mein, 2004
BCSC 1389 [Lipinski]. In that case, the Court refused to draw an adverse
inference regarding orthopedic surgeons who were not called at trial but who
provided consultation reports to the family doctor. The Court said that it had no
reason to draw an adverse inference because the orthopedic surgeons had seen
the plaintiff only once. The Court concluded that the family doctor was able to
rely on the orthopedic surgeons’ opinions, but the absence of their opinions
was a matter of weight to be accorded to the family doctor’s opinion since she
relied on their opinions.

[166]    
The defendants submit that the current approach to adverse inferences in
injury cases was addressed in Buksh v. Miles, 2008 BCCA 318. Saunders J.A.
said at para. 33:

However, it bears reminding that the delivery of medical care
is not now as it was in 1964 when Mr. Justice Davey made his comments in Barker.
There is, today, a proliferation of “walk-in” medical clinics where the role of
the “walk-in” clinic physician may be more limited than was the role of a
family physician in 1964. Further, even people who have a family doctor may
attend one or more such clinics as a matter of convenience, but still rely upon
their family physician for core medical advice and treatment. The proposition
stated by Mr. Justice Davey does not anticipate this present model of
medicalcare. Likewise, the discovery process available to both sides of a
lawsuit is not now as it was in 1964 when, in explaining his view on the need
to call all treating physicians, Mr. Justice Davey referred to the
professional confidence between a doctor and the patient. Today, the free
exchange of information and provision of clinical records through document
discovery raises the possibility that an adverse inference may be sought in
circumstances where it is known to counsel asking for the inference that the
opinion of the doctor in question was not adverse to the opposite party.

[Emphasis added]

[167]    
Saunders J.A. described the type of detail that should be considered in determining
whether an adverse inference might be made:

[35]      In this
environment, and bearing in mind the position of a lawyer bound to be truthful
to the court, it seems to me there is a threshold question that must be
addressed before the instruction on adverse inferences is given to the jury:
whether, given the evidence before the court, given the explanations proffered
for not calling the witness, given the nature of the evidence that could be
provided by the witness, given the extent of disclosure of that physician’s
clinical notes, and given the circumstances of the trial (e.g., an initial
agreement to introduce clinical records that work contrary to the inference, or
incorporation of that witness’s views or observations in the report of a
witness called by the other side) a juror could reasonably draw the inference
that the witness not called would have given evidence detrimental to the
party’s case.

[Emphasis added]

[168]    
Lipinski is apposite to this case. Dr. Foti saw Mr. Gillespie
only twice and his records were available to the defence. His opinion was
contained in his consultation report to Dr. Levis and in the records
relied on by Dr. Levis; the extent to which Dr. Levis relied on that
opinion goes to the weight of Dr. Levis’s evidence. Dr. Eisen also
referred to the findings in Dr. Foti’s consultation report.

[169]    
I observe from the documents that Dr. Foti’s opinion was not adverse
to Mr. Gillespie’s claim.

[170]    
In my view the comments in Buksh regarding the revelation of a
favorable opinion to the plaintiff from documents produced in the litigation
are meant to inform the Court that, where a favorable opinion exists but is not
produced in the trial, it would be unreasonable to draw an adverse inference
due to the absence of such an opinion which is known to the parties to support
the plaintiff. The discovery process is in place to shield the defendant from
any prejudice that might result if a plaintiff obtains and withholds an adverse
opinion from a treating doctor.

[171]     The weight
of Dr. Levis’s opinion may be adversely affected by the fact that Dr. Foti’s
evidence was an important feature in forming her opinion but was not tested in
the trial. After considering these aspects to the defendants’ request, I conclude
that this is not an appropriate case to draw an adverse inference against the
plaintiff for not adducing Dr. Foti’s opinion and I will not draw such an
inference.

2.       How much weight should I give the expert medical evidence?

[172]     After
hearing submissions on this issue and carefully examining the expert medical
evidence, I give Dr. Levis’s opinion diminished weight, and Dr. Eisen’s
opinion very little weight on the issue of metabolic syndrome.

[173]     Dr. David’s
evidence was tendered by the plaintiff and not challenged in any way; I give
considerable weight to his opinions but I do not find them determinative of the
main issues regarding the head injury.

[174]     I will
examine each opinion in turn to explain why I prefer Dr. Levis’s opinion
notwithstanding its diminished weight.

Dr. Levis

[175]     Dr. Levis’s
letter raises significant issues regarding her opinion.

[176]     As an
example, she concluded that Mr. Gillespie suffered injuries because of the
accident, but she framed her opinion in an odd form; she said “he was diagnosed
with mild traumatic head injury (concussion)” suggesting that the diagnosis was
made by someone else. In cross-examination she clarified that it was her
personal opinion that Mr. Gillespie suffered a traumatic head injury.

[177]     Dr. Levis
referred the plaintiff to Dr. Foti, a neurologist, and appended a copy of
his consultation report to her report. She said she relied on that opinion but Dr. Foti
did not provide an opinion in the trial, and he was obviously not
cross-examined on his opinion.

[178]     Dr. Levis
has no special training in head injury medicine other than in her training as a
family practitioner. She described her training as a family doctor and said she
assesses head injury claims, on average, five times per year and usually in
regard to sports injuries.

[179]     It is troubling
that Dr. Levis relied on the Dr. Foti’s neurological opinion without
the plaintiff offering Dr. Foti for cross-examination. Indeed, his opinion
goes to the heart of the issue to be decided in this case. The most salient
factor described in both Dr. Eisen’s evidence and Dr. Levis’s
evidence is the importance of identifying the presence of an altered state of
consciousness shortly after the incident as a precondition diagnosing a brain
injury following an accident.

[180]     I have not
drawn an adverse inference from the fact that Dr. Foti did not testify,
but Dr. Levis’s opinion is, for that reason, less helpful. Because Dr. Levis
relied on the Dr. Foti’s opinion, I must assess the weight to be given to
her opinion insofar as she has relied on hearsay evidence: Mazur at para. 40.

[181]     For the
following reasons I accord diminished weight to her opinion based on several
issues with the material she relied on.

[182]     Dr. Foti
described Mr. Gillespie as being dazed at the scene with a brief amnesic
period and imprecision in his recollection of the sequence of events in the
following days. It does not appear to me that the evidence given by Mr. Gillespie
supports the assumptions cited by Dr. Foti.

[183]     Dr. Levis’s
account of what the plaintiff told her on December 3, 2009 at this point
differs from Dr. Foti.

[184]     Dr. Levis
testified that in her December 3, 2009 meeting with the plaintiff, he was a
good historian, and he had no troubling memory gaps in his account of the
accident. She did not record any evidence of an altered state of consciousness
after the accident.

[185]     Moreover, in
her initial consultation with Mr. Gillespie, she did not report any
concern about a concussion sustained by the plaintiff. She said he did not have
dizziness. On her December 21 consultation, he described poor short term
memory, reversing numbers and intermittent headaches. At “this visit” she concluded
his diagnosis was “most likely post-concussion syndrome”.

[186]     When
pressed on the issue, Dr. Levis agreed that the first indication in her
notes that Mr. Gillespie had suffered an alteration in consciousness was
on February 8, 2010. Clearly, that date is well after her initial consultation.

[187]     In her
February 8, 2011 consultation request to the concussion clinic, Dr. Levis said
that the plaintiff did not suffer post-traumatic amnesia or a loss of
consciousness within 30 minutes of the accident. This is directly contrary to Dr. Foti’s
assumption that Mr. Gillespie did suffer amnesia. Further in her note to
the clinic she said the plaintiff had been dazed or confused and had suffered a
concussion. It appears her comment could only have been based on Mr. Gillespie’s
self-report of things on December 21 and not December 3. She did not mention
when his confusion or dazed state began or ended. Dr. Levis’s first note
of the plaintiff’s memory problems was on December 21, 2009.

[188]     Dr. Levis
did not speak with the plaintiff’s wife about his symptoms until several years
later. I would have expected his wife to have been an important source of
information when Dr. Levis was considering the possibility of a head injury.

[189]     In other
words, Dr. Levis did not diagnose an altered state of consciousness or a
brain injury in 2009 or in early 2010; the first mention that he was “dazed or
confused” was in her report to the clinic was on February 8, 2011.

[190]     Her
opinion that the plaintiff had cognitive impairments due to a head injury is
based on Mr. Gillespie’s self-report and Dr. Foti’s opinion. She said
that Mr. Gillespie reported dizziness and headaches as “off and on”
symptoms. Dr. Levis agreed that headaches, dizziness and cognitive
difficulties are not specific indicators of brain injury, but in the current era
of the head injury, they are also not required to diagnosis a brain injury.
Nonetheless, she agreed that headaches, dizziness and cognitive difficulties can
be consistent with whiplash type injuries and soft tissue strains.

[191]     Dr. Levis
said that during her August 30, 2010 meeting with the plaintiff she assessed
that his injury was improving and that he was doing well. She concurred that
the usual course of recovery from a head injury is for the worst symptoms to
appear shortly after the incident with gradual recovery over the ensuing six
months. Dr. Levis confirmed that, with head injury victims, improvement occurs
over time, and concussion symptoms do not usually regress. If a relapse occurs,
physicians will usually look for an alternative explanation.

[192]     It is
significant that on August 8, 2011, Dr. Foti described the plaintiff’s
condition to include chronic headaches with migraine features along with
persistent cognitive symptoms and reduced concentration. He believed that Mr. Gillespie’s
headaches could improve with a migraine preventer and suggested
neuropsychological testing to look for subtle cognitive deficits.

[193]     Dr. Foti
saw the plaintiff in October 2011; he said "his severe headaches have
resolved but he still has a mild background headache. He is not experiencing
any dry mouth or lightheaded symptoms”. His sleep pattern had improved to six
hours before he would become restless. He was not tired in the morning and he
felt better cognitively. When she saw him on November 14, 2011 he was generally
feeling well with less headaches and better sleep. When she saw him on January
9, 2012 his medication was improving his sleep but he had "occasional
tweaking and headaches".

[194]     Dr. Levis
did not particularize which parts of Dr. Foti’s consultation opinion informed
her own opinion other than that her acceptance of his diagnosis that he likely
suffered a mild traumatic brain injury. It is unclear what part of the temporal
connection between the plaintiff’s symptoms in the accident played in the
formation of Dr. Levis’s opinion.

[195]     In January
2013 Mr. Gillespie had run out of amitriptyline medication and was
noticing poor sleep, headaches and increased anxiety.

[196]     Dr. Levis’s
opines that his prognosis for complete recovery of his cognitive impairment
persisting and ongoing headaches, irritability, interrupted sleep, is unlikely.
Although I have some concerns regarding the flaws in Dr. Levis’s opinions, hers
is the only evidence I have that addresses Mr. Gillespie’s symptoms as
resulting from the accident. On the balance of probabilities, her opinion is sufficient
to establish that he will endure the effects of his injuries indefinitely.

Dr. Eisen

[197]     For
reasons advanced by the plaintiff, I place little weight on Dr. Eisen’s
opinion that Mr. Gillespie’s symptoms are the result of metabolic
syndrome.

[198]     Dr. Eisen
was qualified to give opinion evidence in the field of neurological medicine,
including diagnosing and treating mild traumatic brain injuries and the cognitive
effects of metabolic syndrome. He was also qualified to give opinions regarding
whiplash injuries from a neurological viewpoint.

[199]     Dr. Eisen
had extensive qualifications in his field, beginning with graduation from
medical school in 1966 and completing his neurology residency in 1970. He
acquired traumatic brain injury experience and clinical practice at McGill
University and UBC. He was head of the neurology division at Vancouver General
Hospital and the acting head of the department of medicine, and he also engaged
in numerous professional societies, university committees, editorial boards,
research and supervision of postdoctoral fellows.

[200]     Dr. Eisen
was cross-examined on several articles addressing the diagnosis and features of
mild traumatic brain injuries and metabolic syndrome. As I will mention later,
I found that part of his evidence quite helpful.

[201]     Under his
summary and conclusions, Dr. Eisen addressed Mr. Gillespie’s
cognitive problems and said the following:

(a)      he
believed the plaintiff suffered a whiplash type injury in the December 2009
accident graded as a I-II (no neurological deficit or radiological fractures).
He did not believe that Mr. Gillespie suffered a head injury (mild) in the
accident even though he sustained a frontal scalp laceration;

(b)      the
second accident aggravated his whiplash symptoms, neck and back pain;

(c)      Mr. Gillespie
did not stop working; rather he curtailed his work intensity because of memory
impairment and lack of concentration that Mr. Gillespie said resulted from
the December 2009 accident. Dr. Eisen confirmed the plaintiff suffered
from mild cognitive dysfunction in September 2013. Dr. Foti more than a
year after the accident, described the plaintiff as suffering cognitive
deficits with accompanying chronic headaches;

(d)      the
plaintiff’s cognitive impairment is independent of either motor vehicle
accident; rather it is due to small vessel disease of the brain being impacted
by the metabolic syndrome. The plaintiff has all four components of the disorder,
namely obesity, hypertension, impaired glucose metabolism, and disordered lipid
profile; and,

(e)      the
plaintiff’s background indicates he is at risk for cardiovascular events,
transient ischemic attacks, strokes and progressive dementia.

[202]     Dr. Eisen’s
report described both accidents as being “of a mild nature”.

[203]     He did not
view photographs of the plaintiff’s car in the first accident until after he
presented his report. He was not aware his car was a total loss or that there
was $4,900 damage to the taxi and $6,900 damage to the cube van. Although the
doctor described the plaintiff’s windshield as “shattered” he did not know
where he obtained that information.

[204]     Although
the second accident was evidently quite minor, in my view, Dr. Eisen was
clearly in error in describing the December 2009 accident this way. Although no
questions were asked to clarify “mild” “moderate” or “severe” the evidence points
to the first accident being in the range of two moderate collisions involving
two impacts. Dr. Eisen did not view the photographs of the damage to the
three vehicles nor understand the force of impact that led to Mr. Gillespie
striking his head. The apparent damage to all three vehicles, the blow to his
head, and the description of the impacts during the accident are inconsistent
with Dr. Eisen’s conclusion that this was a mild impact collision.

[205]     In this
regard I conclude that Dr. Eisen’s opinion was based on a clear
misapprehension of the accident and the injury mechanism. This factor alone diminishes
the weight of his report.

[206]     The
evidence is uncontroversial that Mr. Gillespie’s head struck and shattered
the windshield in spite of the airbag deploying.

[207]     I observed
that Dr. David concluded that Mr. Gillespie’s inner ear dysfunction occurred
because of direct impact, acoustic trauma from airbag deployment, and the explosive
forces associated with airbag deployment.

[208]     Dr. Eisen
formed his opinion that Mr. Gillespie’s ongoing cognitive symptoms
following the accident are the product of metabolic syndrome based on his
assumptions that Gillespie’s past and ongoing health included evidence that he
was diabetic and had impaired glucose function, was obese, had untreated
hypertension, and had impaired lipid metabolism. He described his condition of
metabolic syndrome on the basis of those four factors.

[209]     In
cross-examination, Dr. Eisen acknowledged:

(a)      the
plaintiff did not meet the diagnostic criteria for diabetes because his Fasting
Blood Sugar reading was never greater than seven and his hemoglobin A1C was
never greater than 6.5 M. Therefore, he clarified by saying that the plaintiff
was pre-diabetic, and he acknowledged that he was wrong in stating that Mr. Gillespie
was diabetic;

(b)      that
he assumed that the plaintiff was abdominally obese for the purposes of
diagnosing metabolic syndrome. He acknowledged that he had not measured the
plaintiff’s abdominal obesity and that there was no evidence of Mr. Gillespie
being abdominally obese. When confronted with the fact that the accepted definition
of obesity requires a body mass index (“BMI”) of 30 he acknowledged that the
plaintiff’s BMI of 26.6 failed to meet the test and he was wrong in concluding
that Mr. Gillespie was obese;

(c)      that
he said Mr. Gillespie’s impaired glucose function was a further feature
supporting his metabolic syndrome diagnosis. Under cross-examination, however, counsel
took Dr. Eisen to that part of the authoritative study that established
that a linear association between fasting glucose and subclinical cerebrovascular
disease is established only when the patient’s education is less than Grade 12.
Indeed, when education levels exceed Grade 12, the literature does not support
the association between insulin resistance and the disease (in passing, I will
note, Mr. Gillespie graduated Grade 12 and attended Vancouver City
College);

(d)      that
untreated hypertension is a risk factor for metabolic syndrome. However the
plaintiff was being treated for hypertension; and,

(e)      that
the fourth component of metabolic syndrome is impaired lipid
metabolism/atherogenic dyslipidemia. On this point, the plaintiff began
treatment for hypertension on May 16, 2011, and treatment began two days after
his blood test showed a 4.1 reading. That reading was significantly below
the risk range.

[210]     He
described metabolic syndrome as a vascular condition affecting small blood
vessels in the brain. These vessels bleed and can lead to larger lesions that
may be visible on MRI scans.

[211]     Not only
was the expert’s opinion based on a clear misapprehension of the accident and
the initial injury mechanism but also, in the end, Dr. Eisen’s analysis of
the underlying data was so flawed that his opinion that the plaintiff suffered from
metabolic syndrome is markedly unreliable.

[212]     In his
testimony, Dr. Eisen agreed that mild traumatic brain injuries can be
diagnosed if the subject has demonstrated some confusion, disorientation and slow
thinking. Indeed, an accident victim who is agitated speaks without making
sense, is incoherent, fleets from subject to subject, and is disoriented may be
exhibiting the type of altered mental state that defines a brain injury.

[213]     Dr. Eisen
said that a mental state described as being a type of “brownout" might
indicate an altered state of consciousness that in turn confirms the presence
of a head injury.

[214]     Dr. Eisen
also agreed that certain symptoms – e.g., headaches, dizziness, irritability,
anxiety, personality change, fatigue, sleep disturbance, decreased libido,
memory dysfunction and impaired concentration and attention – might indicate a
head injury.

[215]     Dr. Eisen
said that he, before examining the plaintiff, prepared a draft report based on
documents that counsel provided to him. He did not produce a copy of that
document to the plaintiff before this trial nor did he produce a copy of it at
his cross-examination.

[216]     Dr. Eisen’s
opinion that the plaintiff did not suffer a brain injury or concussion was
based on his assumption that the plaintiff’s cognitive impairment lasted for
one to two weeks after the collision and then disappeared. He believed that it
was 11 or 12 months later that the plaintiff’s cognitive symptoms of short-term
memory loss, loss of concentration and sleep impairment returned.

[217]     However, Dr. Eisen
seems to have ignored that Dr. Levis, Fraser Health Concussion Clinic and Dr. Foti
recorded the plaintiff’s complaints of short-term memory loss, reversing
numbers, headaches, dizziness, and difficulty word-finding from December 21,
2009 until October 2011. Clearly, his cognitive problems persisted throughout
the months after the accident without abatement; they did not re-emerge 11 -12
months later as assumed by Dr. Eisen. This error by Dr. Eisen
relating to his ongoing cognitive impairment would likely have affected his
opinion if he had relied on more accurate information.

[218]     Dr. Eisen’s
misconstruction of the facts leading to his conclusion that the plaintiff did
not suffer a head injury in December 2009 is a significant flaw in his opinion.
Further, his opinion that Mr. Gillespie developed unrelated cognitive
problems in 2011 because he was experiencing metabolic syndrome is not
supported by the facts or his own opinion that some of the indications of Mr. Gillespie’s
altered state of mind in the interval after the accident were indications of an
accident related to mild traumatic brain injury.

[219]     While I
treat his report with little to no weight, Dr. Eisen helpfully
corroborated some things that Dr. Levis said, and I found that the
following comments assist the Court.

[220]     Dr. Eisen
confirmed as authoritative the conclusions in RW Evans, “Post-Traumatic
Headaches” (2004) 22:1 Neurologic Clinics 237, that headaches are common
occurrences following head trauma. He agreed that headaches, dizziness,
fatigue, irritability, anxiety, insomnia, loss of concentration/memory, and
noise sensitivity are the most common complaints of persons suffering post-concussion
syndrome. Although he believed that the estimate that 50% of patients with head
injuries display these symptoms was high, he accepted that these are the most
common complaints that can persist for more than six months. He accepted that
headaches can produce cognitive difficulties.

[221]     Dr. Eisen
was referred to Menon et al, “Position Statement: Definition of Traumatic Brain
Injury” (2010) 91 Arch Phys Med Rehabil 1637, and acknowledged it to be a
peer-reviewed authoritative publication. He acknowledged that altered brain
function is signaled by an altered mental state at the time of an injury (e.g.,
with confusion, disorientation, slowed thinking), and it is considered part of
the altered consciousness used to establish a diagnosis of mild traumatic brain
injury. That study concluded that a diagnosis of mild traumatic brain injury
should be considered when these symptoms are reported even if any more
objective criteria – e.g., LOC (loss of consciousness), PTA (posttraumatic
amnesia), or other neurologic deficits – are absent.

[222]     Dr. Eisen
also confirmed that disorientation is part of the altered state of
consciousness, and it is a positive indication of brain injury. He also
confirmed that persons with head injuries are not reliable reporters of
historical events.

[223]     Dr. Eisen
was referred to Sterr et al, “Are mild head injuries as mild as we
think? Neurobehavioral concomitants of chronic post-concussion syndrome” (2006)
6 BMC Neurology 7, and he confirmed to be a good authoritative journal. He
agreed that mild static brain injuries typically induce a range of symptoms
such as headaches, blurred vision, poor concentration, sleep disturbance,
depressed mood or ability. He also confirmed that post-concussion syndrome can
occur without a loss of consciousness; indeed, loss of contact or confusion is
sufficient.

[224]     Dr. Eisen
was also referred to P McCorory et al, “Consensus statement on concussion in
the sport: the 4^th International Conference on Concussion in Sport
held in Zurich, November 2012” (2013) 47 Br J Sport Med 250 with SCAT3, and he was
satisfied that the British Journal of Sports Medicine was an authoritative
publication. He accepts that loss of consciousness is not necessary to
constitute a brain injury, and in some cases, signs may evolve over a number of
minutes to hours. He accepts that although cognitive symptoms typically
improve, symptoms may be prolonged. He said that “brownout" may be sufficient
to indicate a brain injury – e.g., someone could speak to a person but not
understand what was happening about them – and being woozy or dazed can also be
a feature of a head injury.

[225]     Dr. Eisen
agreed that concussed individuals will normally recover within seven to 10
days, but symptoms can be prolonged. He believes that after two to three months,
patients begin to worry about their eventual recovery from the symptoms. He
recognizes that sleep and cognitive impairment are important symptoms of people
with head injuries. Difficulties with concentration and multitasking are
evidence of changes in cognitive function of head injured patients.

3.       After the accidents,
did the plaintiff suffer symptoms from metabolic syndrome unrelated to the
accidents or did he suffer a mild traumatic brain injury caused by the first
defendant?

[226]     I conclude
that Mr. Gillespie’s brain was injured due to his impact with the front windshield
during the first accident and that his symptoms are ongoing.

[227]     In making
this decision, I have relied on Dr. Levis’s opinion to a very limited extent
and more so on Dr. Eisen’s comments regarding the scholarly literature
relating to diagnosing concussion syndrome.

[228]     Clearly,
on the facts, Mr. Gillespie’s head forcefully hit against the windshield,
shattering the glass.

[229]     The
generally accepted medical opinion consistently confirms that a diagnosis of
mild traumatic brain injury requires evidence of an altered state of
consciousness soon after the event in which the injury is sustained. I am
mindful that the experts disagree on whether Mr. Gillespie suffered a mild
traumatic head injury with ongoing concussion symptoms. However, headaches,
dizziness, fatigue, irritability, anxiety, insomnia, loss of concentration and
memory, and noise sensitivity are all indicative of post-concussion syndrome. Confusion,
disorientation, and slowed thinking are considered part of the altered
consciousness used to establish a diagnosis of mild traumatic brain injury.

[230]     I am
mindful that a plaintiff’s ability to accurately recall and express
post-accident experiences can be hampered by the very injury that is to be
assessed. Even the defendants’ expert noted that individuals with head injuries
are not reliable reporters of historical events. He may have been somewhat
unreliable in his testimony; I ascribe that unreliability to the nature of his
injury and not to any willful attempt to mislead the Court. I have been able to
find the facts necessary to decide this issue in spite of the flaws in Mr. Gillespie’s
evidence.

[231]     There is
always a difficulty in rejecting the connection between an injury and
subsequent symptoms based solely on the temporal connection between them. In
this case, I am satisfied that the temporal connection is not the only evidence
connecting Mr. Gillespie’s blow to the head and ongoing cognitive
difficulties he described as affecting his work in day-to-day life.

[232]     I accept
that, in spite of his memory difficulties, Mr. Gillespie was accurate when
he said he" felt woozy" after the accident. He did not report pain at
that time and was a very poor historian about the events at the scene and
afterwards. However, I accept his wife’s evidence that when she saw him at the
hospital he was waiting to be treated, he had a bandage on the top of his head,
and he appeared disoriented. She said he seemed to be in shock and did not make
sense when speaking to her. He was normally an easy-going person but at the
hospital seemed agitated, incoherent and erratic. She said he was unsteady on
his feet.

[233]     She said Mr. Gillespie
would start talking about the accident but his sentences were disjointed. She
tried to get him back on track.

[234]     When they
returned to their home, he continued to demonstrate erratic behavior. He did
not seem to be able to follow through with any task he started, such as making
himself a sandwich.

[235]     Where Mr. Gillespie
was contradictory in his testimony regarding some of these events and symptoms,
I ascribe his lack of consistency to the effects of his injuries. He was not a
good historian and struggled to resolve inconsistencies with his previous
evidence. I accept that he may have exaggerated his inability to perform his
duties as effectively as before the accidents, but his evidence was generally
convincing on the important aspects of his current function.

[236]     On the
evidence I accept that Mr. Gillespie experienced and continues to
experience some of the accepted indicators of post-concussion syndrome and mild
traumatic brain injury. Indeed, the concussion clinic treated him as a person
who was experiencing those symptoms, and Mr. Gillespie is still following
their initial advice. This point would be more forceful if he had returned to
the clinic for the suggested second visit and someone from the clinic had
testified at the trial. But for the December 2009 collision, I find Mr. Gillespie
would not have experienced or continued to experience cognitive impairment,
continuing headaches, personality change, sleep disturbance, memory
dysfunction, impaired concentration and attention. These are the symptoms
associated with post-concussion syndrome and a mild traumatic brain injury.

[237]     Therefore,
I have concluded on the balance of probabilities that Mr. Gillespie
suffered a mild traumatic head injury with ongoing concussion symptoms. He also
suffered inner ear dysfunction that resulted in intermittent imbalance. Those
symptoms resolved through a compensation mechanism involving the ear, the brain
and his visual systems. He is at risk for further imbalance problems.

[238]     Mr. Gillespie
also developed neck and low back pain that worsened in the immediate aftermath
of the accident. The second accident exacerbated these symptoms although he
recovered within 7 to 10 days. He also had leg and right ankle pain that resolved
within a short time.

[239]     Mr. Gillespie
does not have any other soft tissue or orthopedic injuries.

4.       If the plaintiff
suffered a mild traumatic brain injury that the defendant caused, what are the
appropriate damages?

[240]     For the
reasons that follow, the plaintiff’s claims are allowed at the following:

1.       $85,000 for
non-pecuniary damages;

2.       $160,000 for past income
loss;

3.       $140,000 for loss of
future income capacity;

4.       $2,500 for cost of
future care; and,

5.       $918 for special
damages.

[241]     I will
address each category in turn.

Non-Pecuniary Damages

[242]     Mr. Gillespie
has experienced personality changes – including irritability, aggressiveness,
agitation, and a shortened temper – and all these changes impact his ongoing
business and social life. Mr. Gillespie also suffers from some sleep
interruption, headaches and some limited anxiety that usually occurs for a
short time in the early morning and does not appear to affect him during the
day.

[243]     Mr. Gillespie
injuries have also affected his personal and intimate relationship with his
wife.

[244]     Mr. Gillespie
worries about his work performance, but these worries do not appear to create
the type of anxiety that stresses him in the morning.

[245]     Mr. Gillespie
is slower at his work and believes he makes more mistakes due to his cognitive
changes. Both Dr. Eisen and Dr. Levis agreed that he has cognitive
impairment.

[246]     Regarding
recreation, Mr. Gillespie has not returned to golf, but he has a new dog
and walks regularly.

[247]     Mr. Gillespie’s
symptoms have persisted for more than four years, and I find that that he will
likely not return to his pre-accident state of health.

[248]     Mr. Gillespie
referred to various authorities that I have considered in this analysis: Drodge;
Joel v. Paivarinta et al., 2005 BCSC 73; Greaves v. Grace, 2008
BCSC 1529; Mackie v. Gruber, 2009 BCSC 1106 aff’d in 2010 BCCA 464; Phoutharath
v. Moscrop, 2002 BCSC 686.

[249]     The
defendants referred to Warren v. Morgan, 2013 BCSC 708 [Warren]
in suggesting the plaintiff’s claim for non-pecuniary damages should be
$50,000.

[250]     Of these cases,
the most helpful analysis is in Drodge.

[251]     In Drodge,
the claimant suffered chronic headaches with mild cognitive impairments
associated with memory and concentration problems. His intimate relationship
with his wife and recreational activities were significantly restricted. He
suffered chronic low back pain before the accident, but the accident increased
its frequency and intensity. The plaintiff had claimed to have suffered a mild
traumatic brain injury at the time of the collision; the Court rejected this
contention because there was insufficient evidence to confirm that he had a
reduced level of consciousness or mentation after the impact.

[252]     Although
rejecting the claim of post traumatic brain injury, the Court accepted that the
plaintiff had suffered chronic headaches and associated cognitive symptoms for four
and a half years following the accident. Dardi J. accepted that the plaintiff
suffered severe persistent headaches and mild impairment to his memory and
concentration associated with headaches. He was described as having a “crumbling
skull" and was awarded $85,000.

[253]     In Warren,
the claimant was involved in two motor vehicle accidents resulting in soft
tissue injuries to her back and a concussion. The first accident was a mere tap
and the second caused more substantial damage. She claimed to have severe
chronic pain, cognitive impairment and psychological issues. The Court found
the plaintiff untruthful and rejected her submissions regarding the trajectory
of recovery. The Court concluded that her reaction to the accident was
disproportionate and rejected the possibility of ongoing concussion symptoms. The
plaintiff was found to be completely recovered from her accident related
injuries and awarded $50,000.

[254]     In my
view, Mr. Gillespie’s circumstances were closely accord with those of the
plaintiff in Drodge. The details of the plaintiff’s post-accident
circumstances and ongoing symptoms are not similar to those referred to in Warren.
Although Mr. Gillespie’s evidence was punctuated with some inconsistencies,
I do not reject his evidence regarding ongoing symptoms and complaints as was
done in Warren.

[255]     Although
the authorities cited by the plaintiff are helpful, they are only a general
guideline. Each case requires an assessment of an individual’s circumstances.

[256]     I accept
that Mr. Gillespie has suffered from ongoing headaches since the accident
and that there has been a significant impairment in his concentration and
cognitive function caused by the injury to his head. He suffered soft tissue injuries
to his neck and low back which were exacerbated by the second accident.

[257]     His
headaches worsened within one week of the accident and shortly after he
developed cognitive difficulties that affected his memory and mathematical
functions associated with his work. His outward personality changed and he
encountered problems with sleeping. He also developed anxiety and a change in
mood which have affected his day-to-day life.

[258]     Mr. Gillespie
pursued treatment at the concussion clinic and with a neuropsychiatric;
regrettably he did not persist with treatment that might have been available
from these health professionals. There was no claim that Mr. Gillespie
failed to mitigate his damages and I have no evidence to suggest that his
current circumstances would have been improved if he had grasped those
opportunities.

[259]     Dr. Levis
opined that Mr. Gillespie will continue to experience these symptoms of
headache, irritability, anxiety, interrupted sleep and cognitive difficulties
into the future. The evidence of neither doctor indicated these features of Mr. Gillespie’s
current condition would be permanent continuing into the future.

[260]     I also
take into account that Mr. Gillespie has suffered in vestibular complaint
and otolith dysfunction which is not currently symptomatic. The condition may
become symptomatic in the future and if this should happen he will be
restricted from commercial driving or working around heavy machinery.

[261]     I conclude
that a fair and reasonable award reflecting the past and future reality of how Mr. Gillespie’s
life has been and will be affected due to the accident is $85,000.

Past Income Loss

[262]     I am
satisfied that the plaintiff’s capacity to earn income after the December 2009
accident was impaired because of the injuries he sustained in that collision.

[263]     I do not
accept that the plaintiff suffered any impairment to his income earning capacity
because of the January 2010 accident.

[264]     His past gross
and net incomes were:

[265]    
For the assessment of income Mr. Gillespie might expect from his
efforts, I have used the after tax profit of MG Flooring. This is the amount
that accumulates in the company’s retained earnings account. I expect it will
be paid out as dividend income in due course.

[266]    
The plaintiff testified to changes in his cognitive ability, his memory
and his personality. He suggests that the combined effect of these symptoms
limit his ability to earn the same level of income he would have earned but for
the accident and resulting injuries.

[267]     In
general, Mr. Gillespie said small jobs are taking him longer, in part,
because he needed to repeat his estimate work to be comfortable that he had not
made an error.

[268]     Mr. Gillespie
said he believes he is working at half of his pre-accident pace. He currently
works nine hour days, but I found it difficult to discern the full extent of
the work he was not bidding on or capable of performing.

[269]     It is
important to note that he “guessed” he was taking twice as long to perform his
work before submitting quotes. Before the accident he could do three
“takeoffs" (quotes) in a day but would do that work only once; now he
repeats his work before submitting his quote. He said that before the accident
he could quote a job within 2-3% of his projected profit level; now he is not
as accurate and relies on his bookkeeper to keep track of the profit.

[270]    
On the whole, Mr. Gillespie was unable to provide any details about
projects he quoted on but failed to win the contracts. He said he erases those
details from his computer when he fails to secure the work. Despite the fact
that he is making a substantial income loss claim in this proceeding, Mr. Gillespie
has unfortunately kept no records of the jobs he has turned down or avoided
since the accident.

[271]    
I will proceed through the various years from the date of the accident
to the trial to assess how the accident impacted Mr. Gillespie’s work.

[272]     Initially,
Mr. Gillespie testified that he did very little work after the accident
except for those projects that were already in the mix for the end of the year.
However he later testified he could not recall how much work he performed after
the accident.

[273]     In any
event, it appears he did very few jobs until summer 2010.

[274]     In 2010,
he took a two week holiday, and on returning, he was able to function well. He said
the work eventually became more computer driven, and he found the stress of
large jobs overwhelming. In cross-examination, however, he curiously could not
remember taking any holidays in 2010.

[275]     The 2010
profit was $162,000, but some of his 2010 income was earned before the December
2009 accident.

[276]     In 2011,
the first full year after the accident, Mr. Gillespie’s net profit was
$90,808.

[277]     The last
job he turned down before trial was a 22,000 square foot flooring replacement
job in August 2011. He said he found the job had too much detail, so it was too
confusing for him.

[278]     Mr. Gillespie
testified that the company’s 2012 gross income was $827,850. This amount was up
from $628,726 in 2011 and down from $854,173 in 2010. The 2013 gross income
fell to $420,926.

[279]     In 2012, he
was anxious and not feeling well, but in May 2012, he took 20 days off for
vacation during which time the company did no business (he took an additional
three weeks off in October 2012 and was generally cutting back his work).

[280]     After
returning from his vacation, he felt his health was improved. He was then able
to work full time and expend more effort at his work in 2012, but that effort
resulted in a decrease of net profit for fiscal 2013 to only $22,352. This was
down from fiscal 2012 income of $166,921. This decrease in profit by $100,000, is
hard to reconcile with his evidence of better functioning but likely reflects,
in part, the added holidays he took in fiscal 2013.

[281]     His 2013
gross revenue dropped to $420,926. Curiously, his gross profit for 2013
declined to $73,306 (17% of gross sales) from $246,869 (30% of gross sales) in
2012. His 2013 cost of goods sold was inordinately higher than 2012, and he did
not explain this difference.

[282]     Although
the 2013 sales were almost one half of 2012 sales, he testified that 2014 was a
good year but no sales numbers were put into evidence. Since May 2013 he has
increased his workload. His anxiety, headaches, and sleep disturbance remain at
the same level as he has experienced over the last three years.

[283]     In 2014, Mr. Gillespie
did one large job for the Salvation Army. He did not have to attend at this
jobsite because he was out of town.

[284]     Mr. Gillespie’s
wife will retire in three years, and he would like to move back to the Okanagan
with her. He believes that he needs between $700,000 and $800,000 to fund his
retirement. As of 2013, his company’s retained earnings were $329,000.

[285]     Mr. Gillespie
still enjoys his work in the flooring business, and his business activity is more
rewarding when his customers can accommodate his pace. In this case, the
plaintiff has kept no records of the work that he might have obtained if he had
been fit to investigate and prepare quotes. He did not tender any evidence from
prospective customers, other than Mr. Pingot, detailing the larger jobs
that could have been available to him but for his injuries.

[286]     The
evidence is, in essence, Mr. Gillespie’s personal assessment and an anecdotal
discussion about the type of work he would have done or would have qualified to
do if he had not been limited in his cognitive functioning and memory-loss
qualities that were compromised by his injuries.

[287]     Mr. Gillespie
bore the burden of proof in this claim. I am not satisfied that his evidence
permits me to make any mathematical calculation of the quantum of his loss.

[288]     Mr. Gillespie’s
company earned revenues of $958,000 and $854,000 in 2009 2010. The company lost
money in 2009 (during its first year of operations) because sales costs were
$942,677. Net income for 2011 (the first full year after the accident) was
almost one half of the income for 2010 and less than one half of the 2012 net
income.

[289]     I accept
that Mr. Gillespie’s capacity to work was reduced during much of 2011, but
his holidays that year were a factor in that reduction.

[290]     I am
equally satisfied that his injuries did not significantly impact his ability to
earn income in fiscal 2012.

[291]     I do not
accept Mr. Gillespie’s statement that he was working in the order of half-time
or at half capacity between the date of the accident and the trial.

[292]     Indeed, his
2011 sales were 74% of his 2010 sales and 65% of 2009 sales. His 2012 post-accident
income is substantially greater than his pre-accident income. After taking two
extended holidays totaling some 40 days during fiscal 2013, sales of the
business were almost one half of the sales for fiscal 2012. Nevertheless, I am
satisfied that he has sustained a loss of his capacity overall to earn income
from the date of this accident to the present.

[293]     I also
keep in mind that this is an assessment and not a calculation.

[294]     The data
regarding Mr. Gillespie’s historical capacity to earn income from this
business in his post-accident performance is uncertain. No evidence was given
to inform the Court on his level of sales for fiscal 2014. There was no
evidence of efforts by the plaintiff to make accommodations or changes that
might have ameliorated the consequences of his injuries.

[295]     Based on
all the evidence, I estimate that the impairment to Mr. Gillespie’s
ability to earn income before the trial is $160,000.

[296]    
I recognize this award must be adjusted to reflect the principles in Hudniuk
v. Warkentin, 2003 BCSC 62 [Hudniuk].

[297]    
Pursuant to s. 98 of the Insurance (Vehicle) Act, R.S.B.C.
1996, c. 231 (the “Act”), a plaintiff is entitled to recover damages for
only his or her past net income loss and the Court must deduct the amounts
prescribed by s. 98 of the Act from gross earnings lost: Hudniuk.

[298]    
Nevertheless, as the income is paid out to Mr. Gillespie, it will
likely be subject only to small business tax rates. He will personally pay the
difference between his marginal rate of tax and what the company pays. The
calculation of the tax impact on these earnings will be determined after the
award has been assessed and in accordance with the Hudniak principle.

[299]     The
parties have leave to address this issue once they have reviewed these reasons.

Loss of Future Earning Capacity

[300]     In this
case, I am not satisfied that the historical performance of the business
enables me to perform a mathematical calculation of future income stream with
any degree of confidence; indeed, such a calculation would not reasonably
measure what might have happened if the accident had not occurred. No evidence
helps identify the economic longevity of a person in Mr. Gillespie’s
circumstances.

[301]     Counsel
suggested I could consider negative and positive contingencies based on the
data presented. I am satisfied that there is a real and substantial possibility
that, but for the accident, Mr. Gillespie would have earned significantly
more income than he is now able to earn confined by the limitations of the
effects of his injuries.

[302]     I am
satisfied that he was pursuing two objectives: he wanted to accumulate
sufficient income to enjoy a comfortable retirement, and he wanted to embrace
the optimum vacation opportunities that coincided with his wife’s employment.

[303]     The
plaintiff invites the Court to assume that he would have continued to work and
earn income at the same levels that were open to him before the accident. The
vicissitudes in evidence do not warrant such an assumption.

[304]     Mr. Gillespie’s
income from 2008 – 2009 were well below those incomes he achieved in 2010 and
later. He offered no explanation for the differences and he did not address the
differences in his businesses performance over those years.

[305]     Income
projections depend on levels of commercial construction and renovation ongoing
at any given time. No evidence assisted the Court in estimating or anticipating
the future prospects in flooring from now until Mr. Gillespie’s suggested
retirement date.

[306]     In the
end, I accept that Mr. Gillespie is less capable overall from earning
income from other types of employment; that he would be less marketable or
attractive as an employee; that there has been some restriction in his income
earning opportunities and he overall is less valuable as a person capable of
earning income in a competitive marketplace. His physical and mental resources
have been compromised. Nonetheless, he retains the ability to earn income in
his flooring business and the task is to assess the impact these injuries will
have on his future performance. There will be some diminution in that
performance.

[307]     In the
end, I will assess his damages with the view to incorporating the principles in
Brown as the plaintiff argued. I will also consider that some empirical
evidence pointed to Mr. Gillespie’s economic success achieved in fiscal 2010
to 2012.

[308]     In an
effort to find a balance between these two principles, I have concluded that Mr. Gillespie’s
impaired earning capacity should be assessed at $140,000.

[309]     I observe
that the cumulative sums awarded for past and future income losses, when added
to his 2013 retained earnings will leave him with $653,000 toward his “nest
egg” for retirement.

[310]     He has
been busy through 2014, and I expect he will shortly achieve the $800,000 he
targeted as the amount he wanted for his retirement and relocation to the
Okanagan. I am not satisfied on the balance of probabilities that Mr. Gillespie
would have worked beyond 2016 if the accident had not happened.

[311]     I conclude
that he is likely to retire shortly after he achieves his financial goal, and he
would have retired at the same time if the accident had not happened.

Costs of Future Care

[312]     The only
amount Mr. Gillespie seeks to cover for future care costs is his
requirements for ongoing extra strength Tylenol.

[313]     I am
satisfied that he will likely require ongoing medication to deal with his
headaches and that the amount claimed to compensate for his future care costs
should be allowed at $2,500.

Special Damages

[314]     I am
equally satisfied that Mr. Gillespie has incurred modest expenses for extra
strength Tylenol consumed to date as necessary to ameliorate the headaches that
have plagued him since the accident.

[315]     I will
allow $918.

Summary

[316]     In
summary, damages are awarded as follows:

1.     $85,000
dollars for non-pecuniary damages;

2.     $160,000
for past income loss,

3.     $140,000
for loss of future income capacity,

4.     $2,500 for
cost of future care,

5.     $918 for
special damages.

Costs

[317]     If the
parties are unable to agree on costs, they may speak to the issue.

“The
Honourable Mr. Justice Armstrong”