IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20151214

Docket: S093584

Registry:
Vancouver

Between:

Stirling Grassick,
by his Litigation Guardian, Eric Grassick

Plaintiff

And

Ann Violet
Swansburg, an infant, and James Harvey Swansburg

Defendants

Before:
The Honourable Madam Justice Loo

Reasons for Judgment

Table of Contents

A. Introduction. 3

B. The accident. 3

c. The Plaintiff before the
accident. 4

D. The plaintiff after the
accident. 8

Initial Stages. 8

The End of Mountain Biking. 10

Personality Changes. 10

School and Work. 11

Social and Other Activities. 17

Athleticism.. 19

Sleep. 20

E. Lay Witnesses. 21

F. Medical Experts. 29

Dr. Harry Miller, neuropsychologist 29

Dr. Hugh Anton, physiatrist 31

Dr. Jeanette Smith, forensic
psychiatrist 33

Dr. Carole Bishop, neuropsychologist 35

Mary Lou Iceton, speech language
pathologist 38

Mary Carman, occupational therapist 41

Derek Nordin, vocational
rehabilitation consultant 44

Dr. Roy O’Shaughnessy, psychiatrist 45

Dr. Peter Rees, neurologist 47

Dr. Gary Nix,
educational consultant 49

Dr. H.E. Hawk, orthopaedic surgeon. 50

g. Damages. 50

1. General Damages. 50

2. Future Care Costs. 52

3. Special Damages. 52

4. In-Trust Claim.. 52

5. Loss of Future Earning
Capacity. 53

H. Conclusion. 59

A. Introduction

[1]            
On October 31, 2008 Stirling Grassick was 16 years old. He and a friend
were walking along KLO Road in Kelowna, when they were struck from the rear by
a vehicle driven by the defendant Ann Swansburg. Stirling suffered a traumatic brain
injury (TBI) described as moderate at best, and on the borderline of
moderate/severe at worst. He has difficulties with memory, processing speed,
focus, cognitive inefficiency, fatigue, anxiety, and depression.

[2]            
Despite his brain injury, with sheer determination and a huge drive to
succeed, Stirling graduated from high school, with better marks than he had
before the accident. He is attending University of British Columbia Okanagan
(UBCO), and intends to graduate with a degree in applied science and work as a
civil engineer. He has achieved what he has at a tremendous price – by devoting
all of his times to his studies, and giving up most everything else in his
life.

[3]            
The main issue is the extent to which Stirling’s post-accident
difficulties will impact on his future, and on his career. Medical experts
opine that he will not be able to work in his chosen field as an engineer, and
is non-competitively employable. The defendant contends that Stirling has done
better than he did before the accident, has no limitations, but only
unrealistic notions of where he would be absent the accident, and has failed to
prove any lost earning capacity.

[4]            
Both liability and damages are in issue. For reasons which follow, I
find that the defendant is liable for the accident and that Stirling is not
capable of working or succeeding as he hopes.

[5]            
I will refer to the plaintiff by his given name Stirling, not out of
disrespect, for he is now an adult, but because he was referred to as Stirling
during the trial, and to distinguish him from his father.

B. The accident

[6]            
Stirling and his friends attended a Halloween party at a flower farm in
east Kelowna. Police arrived and broke up the party. Stirling and a few of his
friends went to a nearby gas station at KLO and Benvoulin Roads. While they
were at the gas station, they received a message that the police had left and
some were returning to the party. Stirling and his friend Daniel Paul decided
to return to the party. They were walking east bound along the shoulder of KLO
Road – because there is no sidewalk – facing west bound traffic.

[7]            
Ann Swansburg turned 17 years old just a few weeks before the accident. She
was returning from a Halloween party close to midnight and driving her father’s
2004 Chevy Impala eastbound along KLO Road near Leader Road. Her younger
brother was in the back seat, and a male friend was in the front seat. Ms.
Swansburg testified that she does not remember anything about the accident. The
only thing she remembers is someone screaming and hearing a thump. The
screaming came from Ms. Swansburg. The thump came from her vehicle striking
Stirling and his friend.

[8]            
Police attended the scene of the accident. Based on the scuff marks and
resting location of the vehicle, it was determined that Ms. Swansburg was
driving eastbound along KLO Road where it curves from left to right in a
clockwise direction, and crossed the centre line and oncoming westbound lane of
traffic. In other words, the road curved, but Ms. Swansburg did not. She drove
straight ahead and in doing so, drove straight into Stirling. The evidence
suggests that Ms. Swansburg’s vehicle was travelling around 60 kilometres an
hour at the time of impact.

[9]            
There is no suggestion that Stirling could have done anything to avoid being
struck. I find Ms. Swansburg wholly liable for the accident.

c. The Plaintiff before the accident

[10]        
Stirling was born March 16, 1992. He has a sister who is two years older
and has a college diploma from a performing arts school.

[11]        
Stirling has very supportive parents. His father Eric Grassick is a fuel
truck driver. His mother Heather Grassick is an executive assistant. Mr. and
Mrs. Grassick arranged their lives so that someone would be home with the
children when they were growing up. Stirling lives with his parents in the home
they built on the side of Dilworth Mountain in Kelowna. Stirling has lived
there all of his life. There is natural terrain behind their home. Stirling’s
earliest childhood memories are of being outside climbing trees.

[12]        
Mr. Grassick spent all of his spare time after work playing with his
children. He took them to the playgrounds, hiking in the hills around where
they lived, and on bicycle rides. Stirling loved being outdoors. It was hard to
convince him to go home, when it was time to go home. He watched little
television and played no video games because he preferred playing outside and
building things.

[13]        
Stirling was the kind of kid that everyone liked. He was a natural
athlete. He was always happy. He was always energetic. He was always eager to
try anything, whether it was arts, music, or sports. He was good if not great
at everything he tried. School was easy for Stirling. He never stressed over
school because he got excellent grades with minimal or little effort. He had
many interests, lots of friends, and he never caused his parents any problems.

[14]        
As a young child, Stirling participated in gymnastics, soccer, and
T-ball. His parents noticed that he had a good throwing arm and ran really fast.
When he was eight years old, he started playing baseball and excelled. A couple
of times every baseball season, he had training sessions with Morgan Reiter, a
well-known professional pitching coach.

[15]        
Around the time he started playing baseball, Stirling started skiing,
and later snowboarding. He became a top notch skate boarder and performed
amazing tricks. He quickly learned how to ride a unicycle. Around the age of 13
Stirling started mountain biking. He also played tennis, and at times, played
golf.

[16]        
About three years before the accident, Stirling was seriously pursuing
both baseball and biking. It was not easy because both sports take a lot of time,
if you want to excel; and Stirling wanted to excel. He decided to take a break
from baseball, and spend more time on biking. His biking skill level improved
considerably. He and Casey Groves were considered two of the best riders in the
Kelowna area. Most of Stirling’s close friends were fellow riders. They
travelled together to different jumping spots and to various competitions.
Mountain biking was what Stirling “absolutely loved” with his “favourite
people”.

[17]        
Benton Leong has been Stirling’s close friend for nearly 10 years. They were
both free style mountain bike riders. Mr. Leong knew of Stirling before they met
because he had seen his biking videos on a website, and he looked up to him.
Sometimes just the two of them rode all day. Sometimes there would be up to 15
of them having one big biking session. Mr. Leong testified that Stirling was a
“phenomenal rider”, one of the most skilled riders in Kelowna because he had
“natural athleticism”, picked up things very quickly, is a “natural
over-achiever”, has an “excessive level of determination”, is “very motivated”
and “driven to be the best.” He was always the first to learn a new trick and
he caught on fast.

[18]        
Stirling was always the first one of his biking friends outside working
on the jumps. He often got up at 7:30 in the morning – as much as three hours
before his friends who slept in until 10 a.m. or noon – and headed out with his
shovels and bike, to water, fix and ride the jumps all day long. He often only
returned home because it was dark outside. He had no shortage of energy.

[19]        
Stirling was sponsored by Devinci, the bike manufacturer, and Cyclepath,
a Kelowna bike store. Cyclepath gave him a discount on bike parts and free bike
service. Every season Devinci gave him two bikes to ride for videos and
competitions. At the end of each season he returned the bikes to Devinci, and
the next season Devinci gives him two more bikes. Stirling had an agreement
with both Devinci and Cyclepath to produce videos and upload them onto various
websites. He had his friends or his father video him biking and he edited the
videos and added music.

[20]        
At trial, there were photographs and a video of Stirling performing
breathtaking bike tricks: flying through the air, and spinning his body and
bike around 360 degree, with his legs extended straight back like Superman and
only his hands on the handlebars.

[21]        
Besides riding, Stirling had an active social life. He went out with his
friends on weekends, and they often went to house parties.

[22]        
Stirling was in very good health before the accident, but had four concussions
by 2007. He had his first concussion on the first day of grade 5. He was
playing a ball game, and standing close to a wall, when the ball hit his head,
and his head hit the wall. He recovered quickly. His second concussion occurred
shortly afterwards. He was sledding near his house when his sled ran into a
light post. He felt tired and dizzy afterwards, but recovered quickly. His
third concussion occurred during baseball practice when a ball hit his nose. He
experienced dizziness and fatigue but the symptoms lasted less than a week.
Stirling had his fourth concussion during a free style competition in Whistler
in August 2007. He was riding over a wooden jump when his handlebars caught in
a hole in his shorts. He fell, struck his head, and for the next day or two,
was dizzy and dazed.

[23]        
Mrs. Grassick works with a woman whose two sons play high level hockey. After
Stirling’s concussion in Whistler, the woman insisted that Stirling needed to
have baseline testing. Mrs. Grassick did nothing but the woman persisted, and
finally Mrs. Grassick arranged for Stirling to be assessed by Dr. Harry B.
Miller, a clinical neuropsychologist.

[24]        
Dr. Miller conducted his neuropsychological evaluation of Stirling on
December 18, 2007 and prepared a report dated January 20, 2008 to Dr. A.
Broome, Stirling’s general practitioner. Dr. Miller notes in his report that a
CT scan taken after Stirling was struck in the head by a baseball, reported to
show “tiny hyperdensity in the left frontal white matter may represent a very
small parenchymal contusion. There are no other significant findings.” He also
noted that both Stirling and his mother were of the impression that Stirling
was doing well, and had no difficulty with paying attention, concentrating,
figuring things out, or problem solving. Stirling was in the above-average
range for single word reading, spelling, and arithmetic. His complex attention,
speed of information processing, language, learning and memory, and problem
solving reasoning were in the average to above average range. Dr. Miller’s
impressions state:

There was an isolated area of
relative deficit for verbal learning for specific and unrelated information,
nevertheless, performance was still within the normal range, and it is
uncertain as to whether or not this was diminished, from a relative
perspective, as a result of concussions, or if the score simply reflected
normal performance for the patient. Nevertheless, over all, the patient is managing
very well from a neuropsychological perspective, and if there were any deficits
immediately following by concussions suffered by the patient, he appears to
have made an excellent recovery. This is supported by the patient’s apparent
very good performance in school and at home.

[25]        
By grades 9 and 10, Stirling’s A’s in school dropped to A’s and B’s
because of all the time he devoted to mountain biking. In grade 10, he obtained
a C+ in science. It was a wake-up call for him to pull up his socks to maintain
the kinds of grades that met his high expectations of himself. By grade 10,
Stirling enjoyed math, science, and woodwork. He enjoyed “figuring things out”,
and was interested in pursuing engineering at university.

[26]        
Mr. Grassick testified that before the accident Stirling mentioned to
him on a couple of occasions about becoming an engineer. Mr. Grassick was not
challenged on this point.

D. The plaintiff after the accident

Initial Stages

[27]        
Stirling entered grade 11 in September 2008. The accident occurred on
October 31, 2008. Stirling’s last recollections before the accident are leaving
the gas station and walking east on KLO Road towards the party. His first
recollections after the accident are patchy memories of being in a hospital
ward, friends coming to visit and his parents being there.

[28]        
The BC Ambulance Service Report dated November 1, 2008 discloses that
the ambulance was on route to the accident at 0013, and at Stirling’s side at
0022. He had a Glascow Coma score of 8 out of 15. At the hospital, he was
intubated, and a CT scan revealed a band of hemorrhage in the corpus callosum,
and shear type hemorrhages in the front lobes bilaterally and in the left
parietal lobe. He was transferred to ICU and placed in an induced coma, remained
in a coma for four to five days, and then slowly brought out of it. Stirling
also sustained a complete transverse fracture of his left femur. On November 1,
2008 he underwent a closed reduction with flexible intramedullary nailing.

[29]        
Mr. and Mrs. Grassick were home near midnight when Mrs. Grassick
received a cell phone call from her sister in Kamloops who told her that
Stirling had been in an accident. Someone must have called her using Stirling’s
cell phone from the scene of the accident. They left for Kelowna General
Hospital less than 10 minutes away, and arrived at the same time as the
ambulance. They slept in the waiting room of the hospital’s ICU for three or four
nights while Stirling remained unconscious. He was subsequently moved to the
children’s ward. Mr. Grassick stayed with Stirling and slept in his room,
watched over him, and helped him when he needed to go to the bathroom.

[30]        
On November 15, 2008 Stirling was discharged from hospital and went home.
He was on crutches. His father put a queen sized bed in the living room so that
Stirling would not have to navigate the stairs to and from his bedroom.
Stirling required 24-hour care. Government funded home support provided only
four hours a day. For the rest of the time, when his parents were working, Mrs.
Grassick’s niece stayed with Stirling, and she was paid $500.

[31]        
Stirling also had a care aid when his parents were at work. When he was
still bedridden a woman came and helped him with upper body exercises. She
helped him with “crutching around outside” and “winter crutching around the
mall”. Later she took him to the gym for his exercises and other appointments.

[32]        
Stirling saw a chiropractor because there was concern that his spine
might need adjustment, and he understood that it might help him with his sleep
problems. He had a few appointments with a physiotherapist for his leg. He also
had massage therapy. He experienced aches from his leg, but “not anything
overly severe”. He used crutches for about three months, and then progressed to
using a cane. He had headaches when he sat up for more than 30 minutes, or
doing things such as having a conversation.

The End of Mountain Biking

[33]        
When Stirling returned to school on January 19, 2009 he had a goal. He
would be back mountain biking and doing what he used to do by his birthday in
March 2009. He met with Devinci representatives and assured them that he would
be back riding by his birthday.

[34]        
Stirling told Dr. Miller on several occasions how motivated he was to
return to biking. Dr. Miller told him he should not think about returning to
biking for another couple of years. Finally, Dr. Miller told him directly that he
should no longer mountain bike because of the risks of another head injury with
serious consequences.

[35]        
Stirling was devastated. It was biking that motivated him to get better.
When he was testifying about not being able to bike again, Stirling become
quite distraught. He otherwise generally gave his evidence in a straight forward
manner. It is obvious that the accident has caused Stirling to lose a very significant
part of his life, and he has not found anything to replace the exhilaration,
joy, friendships, and confidence that he had with biking. Sadly, Stirling is also
no longer athletic like he was before the accident.

Personality Changes

[36]        
Following the accident, Stirling went through different stages.
Initially he reverted to acting like a little boy. He watched cartoons, played
Lego, and laughed at childish things. He then became very talkative, and spoke
inappropriately about things like bowel movements, and sex – something he never
did before. He also acted inappropriately. He walked around the house and answered
the door in his underwear, and scratched his crotch in front of everyone – something
he never did before. When he returned to school in late January 2009, he wore
bright vibrantly coloured clothes – something he never did before. In February
2009, he wrote and gave Valentine’s Day cards to all of his male friends.

[37]        
Stirling recalls at some later date, being with a friend in his car, and
encouraging him to follow a young woman with the vehicle’s lights off, and
revving the car engine. At the time, he thought that was funny. In hindsight,
he recognizes that his behaviour was totally inappropriate and out of
character. On another occasion, about a year after the accident, Stirling
stayed at a friend’s house. They decided the next morning not to wear their
pants. Stirling drove home and arrived at his parents’ house wearing only his
underwear. He thought that was funny.

School and Work

[38]        
Around Christmas 2008, a woman was hired to bring school work home to
Stirling, he had a math tutor, and later, a physics tutor help him catch up on
what he missed at school. However, Stirling found reading incredibly difficult
and taxing, and he had headaches. According to Dr. Peter Rees, neurologist, the
post-traumatic headaches were caused by conjunctivitis in Stirling’s left eye
from a foreign body that probably entered his eye when he was thrown to the
ground by the accident. His headaches subsided after the foreign body was
removed by an ophthalmologist in May 2009.

[39]        
When Stirling returned to school in January 2009, he, his parents, and
the school were assisted by Robyn Littleford, an educational consultant who
assists children with TBIs return to school. Before the accident Stirling took
a full grade 11 course load: French, physics, math, English, social studies,
video production, foods, and construction joinery. After the accident, he
dropped French and video production, and had other accommodations.

[40]        
However, “right off the bat”, Stirling recognized things were not quite
right and school was totally different for him than before the accident. It was
a whole lot tougher. He no longer had the ability to learn and absorb information.
Just listening to the teacher was different and very difficult. It felt like
there was “some connection missing”. Before the accident, when he listened to
someone speak, he would automatically absorb the information. Now, he had to
make a wholly concentrated effort to “tune in” for the information. It was the
same with reading. He had to re-read each page over and over again and each
time he had to make a concentrated effort to absorb each word he read. Without
a concentrated effort, he “zoned out” and had no idea what he read on an entire
page.

[41]        
To cope, Stirling changed the way he organized himself. He started using
an agenda to stay organized. Before the accident, he never used an agenda but
remembered every assignment. He organized his locker and “perfectly labelled”
his binders, so that he could focus and concentrate on what he needed to absorb
in order to do well in school. With a tremendous amount of effort he did very
well. In grade 11 he obtained an A in every subject with the exception of a B
in social studies. In grade 12 he obtained an A in every subject, except B in
English. His English 12 mark of 90 percent was lowered as a result of his
provincial exam score of 74 percent. He was not happy with 74 percent after all
of the effort he had put into it. He graduated from high school, on time, in
June 2010.

[42]        
In the fall of 2010 Stirling enrolled in applied sciences at Okanagan
College. The first semester he took three out of five classes that make up a
full course load, and in the second semester he took four out of five classes.
He took two courses to upgrade for engineering: a high school chemistry course
(chemistry 11 and 12) which was a prerequisite for applied sciences in
university. He also took Calculus I in the first semester, and Calculus 2 in
the second semester. He was given accommodation, including additional time for
writing tests and examinations.

[43]        
Stirling worked part time on the weekends as a server in the dining room
of Sandalwood Retirement Home. He generally worked a three hour shift which
covers one meal, but on occasion he worked an eight hour shift. His starting
wage of $10.50 an hour, increased to just over $11 an hour. He earned over
$2,100 in 2010, over $7,200 in 2011, and nearly $4,000 in 2012.

[44]        
Stirling did well in first year college, but he found the courses
extremely basic, and chemistry was a high school course. However, he put a lot
of time and effort into getting the marks he did. He went to the gym daily, but
only for a couple of weeks or so, because he decided he needed to devote that
time to studying. He went out once or twice on the weekends with friends, but
gave that up as exam time approached.

[45]        
From September 2011 to April 2012 Stirling was enrolled in first year of
applied science at UBCO. He was acutely aware of his cognitive difficulties: poor
short term memory, slower mental processing speed, poor mental clarity, and
difficulty performing critical thinking. He had improved since the accident,
but “reached some sort of plateau” and realized he was not likely to get any
better. He was accommodated with time and a half for tests, and did his tests
in a separate quiet room. He could use a note taker, but decided to take his
own notes to help him focus.

[46]        
Stirling finds sitting in large university lecture halls and listening
to a professor very difficult. His mind constantly wanders. He must intently
focus on what a professor is saying in order to comprehend what is being said.
He uses all of his mental and cognitive resources to focus. Doing that leaves
him tired and drained of all of his energy. He is already tired from poor sleep
since the accident.

[47]        
Stirling attended his second year at UBCO from September 2012 to April
2013. He took a full course load because he did not want to get behind, he
wanted to enroll in the co-op program which combines work and school, and he
believes that in the real world he will not be accommodated.

[48]        
Stirling obtained an eight-month co-op placement with Arthon
Construction Limited (“Arthon”), a company owned by Benton Leong’s father. Stirling
worked at a mine site just outside of Princeton, B.C. and stayed in a room at
an inn in Princeton. He worked 12 hours shifts from 6:45 a.m. to 6:45 p.m., for
five days a week until his work was reduced at some point to four days a week. He
went home on the weekends. The work involved surveying and using software to
process the survey data. There was little supervision of his work, and as he
said, he had a long leash. The co-op job was scheduled for eight months but
lasted only six months to October 2013 because the mine shut down. Stirling had
never lived on his own before. He ate a can of chili for dinner every night
over the course of the six months he stayed at the inn.

[49]        
Stirling returned to UBCO for his third year from January 2014 to April
2014, and took a full course load. He obtained a co-op work placement with True
Consulting, an engineering consulting firm, and worked for them from May to
August 2014. The first two months he worked in Clearwater, B.C. monitoring the
construction of a shopping centre, taking photographs, and writing weekly
progress reports. He was not challenged by the work which he found quite
boring.

[50]        
Stirling then worked in Kelowna surveying Okanagan College for as-built
drawings. The work expectations were quite different from Arthon because they
were quite high. At True Consulting he was expected to perform a given task
quickly, and there were no excuses. His manager was also not at all happy – or
understanding – when Stirling had to take about a week and a half off work to
go to Vancouver for medical assessments relating to the accident. His manager
began expressing an obvious dislike for him less than half way through his
co-op program, so the remainder of his time with True Consulting was not
enjoyable. Until then Stirling had pictured himself doing well and succeeding
in his chosen career. Working at True Consulting gave him significant anxiety
about how he would perform in any future job with more challenging work and
expectations.

[51]        
Stirling completed his third year at UBCO from September 2014 to
December 2012. From January 2015 to August 2015 he worked at a co-op placement
at Maple Reinders, a general contractor primarily involved with the
construction of commercial buildings and waste water and water treatment
facilities. His experience at Maple Reinders forecasts what the future holds
for him in terms of his ability to work as an engineer, or in any other
responsible position.

[52]        
Stirling worked in the estimating department which is responsible for
preparing bids. His tasks varied from simple administrative tasks, such as
printing or copying project drawings and specifications, maintaining an online
file sharing program, and communicating with sub-trades. More intermediate
tasks included preparing quantity take-offs.

[53]        
Stirling found that each task on its own was not overly demanding of
him. What was difficult was being verbally asked by his managers and co-workers
to perform a number of fairly basic or simple tasks, such asking him to copy a
document, or phone a sub-trade for a quote. He had to write down each task as
he was told because he could not keep even one simple task in his mind. It was very
challenging to keep track of what tasks he had to do, remain organized, and
complete all of the tasks.

[54]        
An example: early one afternoon he was asked to photocopy some job
specifications consisting of approximately 850 pages, but to do it later in the
day so that the volume of the print job did not interfere with others using the
printer. Stirling wrote a note to himself to complete the task later. He then
forgot to read the note, and forgot to print the specifications. The failure to
remember reinforced with him how easily he forgets something, even if he writes
it down. He is concerned that in the future, if he is given more
responsibilities, his poor memory could result in significant consequences.

[55]        
Stirling carries a journal with him, and writes down what he needs to do
so that he hopefully will not forget. He self-imposes structure in his life in
order to manage his deficits.

[56]        
Stirling found working at Maple Reinders quite different from attending
university. Life at university provides him with structure:  assignments are
due on a certain day, quizzes are on a certain date, assignments are posted on
a website and on his cell phone, and the computer and electronic devices remind
him what he has to do. He sits in class with a few friends who he studies with,
and being in constant communication with them also reminds him of what and when
he needs to do tasks.

[57]        
At Maple Reinders, he receives various random tasks verbally. There was
no website or person reminding him what to do, or to help him retain information.
An example: Stirling’s manager had a brief two to three minute discussion with
him and asked him to do a quantity take-off for the volume of concrete required
for various concrete pours. Stirling felt like he was completely engaged in the
discussion and fully understood what he was to do. As soon as the conversation
ended, he went to plug in the values that his manager had just explained to
him. He totally forgot what they were.

[58]        
A very stressful time for Stirling is when he is assigned tasks that are
dependent on a deadline. He is frequently asked to obtain – close to the bid
deadline – prices from sub-trades, or to call trades to ask whether an item is included
or excluded in their bids, and then relaying that information accurately to his
manager and other estimators. He experiences stress and a feeling of panic,
which in turn inhibits his ability to think clearly. Simply communicating the
information is stressful for him.

[59]        
An example: Stirling was asked to prepare a transmittal memo to
accompany construction drawings that were to be delivered by courier in a
couple of hours, or no later than the courier’s last run at 3:30 p.m. Drafting
a transmittal memo is a fairly simple task. However, Stirling was not on the
best of terms with his manager. Coupled with the two hour deadline and having
to look for a precedent for a transmittal memo totally stressed him out. He got
so stressed out that he missed the 3:30 p.m. deadline and was forced to deliver
the transmittal and drawings himself.

[60]        
An example: Stirling was asked to deliver a bid. A fairly simple task.
There were still some numbers that had to be completed on the bid form for the
final total price. His manager gave him the numbers over the phone and Stirling
had to write the numbers onto the bid form. His manager had to repeat the
numbers to him over and over again, and Stirling in turn, repeated the numbers
back to his manager, over and over again. Even after he submitted the bid,
Stirling worried that he might have made a mistake, and he was anxious for days
afterwards.

[61]        
When Stirling was testifying, it was apparent that he was listening
intently to each question he was asked, and at times repeated the question to
make certain that he understood it, before he answered the question.

[62]        
Stirling testified that the phenomena he experienced working at Maple
Reinders is the same phenomena he experienced when he was working at True
Construction. If he is given a task with time constraints, he has to think
critically about how to complete the task or solve the problem, but he panics
and cannot think properly. It takes him too long to think, and it takes him too
long to process information. He is totally inefficient.

[63]        
Stirling now uses his phone for reminders. At any one time he has up to
10 reminders on his phone for even very basic things. He will tell his
girlfriend that he will call her after he has showered. By the time he has
showered, he no longer remembers to call her.

[64]        
Stirling is planning to graduate from fourth year at UBCO in the spring
of 2016. But he has concerns, not just about graduation, but about his ability
to work as an engineer – and not just work as an engineer. His goal is to eventually
work in upper management in the engineering field. He worked extremely hard in
third year to get the marks he did. He sacrificed his social life. He did not
live a normal life for a university student. He felt being pushed to the brink
of being completely overwhelmed by the time he completed the year.

Social and Other Activities

[65]        
Stirling often questions himself on whether an act or statement is
appropriate before he acts or speaks. Doing this slows down his actions and his
pace of conversation.

[66]        
Stirling has had two serious relationships since the accident. He
started seeing Brittany around November 2012. Their relationship lasted about
eight months. In the fall of 2013 he began seeing Kim Barlow, a registered
nurse. Their relationship has been challenging. When he is in school or working
in a co-op their relationship is strained because he dedicates nearly all of his
time to school and work, leaving little or no time for their relationship.
Stirling finds that just making lunch for the next day, or preparing for school
or work the next day, takes up all of his energy.

[67]        
Stirling keeps his life very structured so that he can remember and keep
track of things. Anything that interrupts his structure causes him stress and
anxiety even if it something that is simple and should be pleasurable, such as
a friend coming into town and wanting to have dinner with him. However, he has
insight. He recognizes that he should be able to enjoy having dinner with a
friend – but he cannot. He recognizes that with his drive to get good marks and
succeed in the real world when he graduates, he has no balance in his life.

[68]        
Part way through grade 12, when Stirling realized that he could no
longer go mountain biking, riding, snowboarding, play baseball, or any other
sport that might cause a head injury, he took up skimboarding. He craves an
activity that can provide him with the feelings he experienced when he was
riding.

[69]        
The skimboard is like a mini-surfboard: a piece of plywood with a smooth
bottom. A skimboarder runs along, throws the board in a shallow pool of water,
hops on the board, and skims across the water. Stirling tried riding around on
a razor scooter and doing a few manoeuvers like he used to do on his mountain
bike. He only left the ground a couple of inches. He found the scooter was like
a kid’s toy. He tried wakeboarding with Benton Leong in the summer of 2013. He
found it challenging just trying to get out of the water and ride the board. He
took a hip hop dance class for a few months but gave it up. In November 2014 he
started bouldering or indoor rock climbing. Nothing he has tried comes anywhere
close to the exhilaration of riding. He now sedately bicycles around the
neighbourhood, or along separated bike lanes.

[70]        
Around January 2015, Stirling began attending Toastmasters because he
was no longer able to converse “automatically”, but has to stop and think
before he speaks. Toastmasters helps people with public speaking and
presentations skills by providing feedback and evaluation. Stirling has not yet
been required to deliver a formal speech, but he finds Toastmasters helpful. He
is trying to improve the number of filler words, or the number of “ahs” and
“ums” that he uses when speaking.

Athleticism

[71]        
Before the accident Stirling was light on his feet. He was agile. He
moved with grace. Mrs. Grassick testified that since the accident, Stirling
moves slower. His gait is slower. He is “almost lumbering”. He no longer looks
agile or limber. He is no longer the energizer bunny.

[72]        
Mr. Grassick testified that before the accident he and Stirling
occasionally played golf. Stirling could pick up a golf club and hit a long
drive. It was easy and natural for him. Stirling is no longer physically as
smooth as he was before the accident. The way he walks and does things with his
hands is different. It is “now almost an effort to remember the way he was”. He
has played tennis with Stirling since the accident. His ability – or inability
– totally surprised him. He played tennis like a non-athletic total beginner.
He could not anticipate the ball, and he was awkward.

[73]        
Benton Leong testified that he has observed a huge change in Stirling’s
athletic abilities. He is no longer athletic. Mr. Leong has a wakeboarding
boat. Unlike water skiing where there are two boards, a person is strapped onto
one board behind a boat. Stirling had never waked boarded before, but Mr. Leong
thought it should be easy for him because he was a reasonable snowboarder, he
was a natural athlete, and he always caught onto things fast. He was wrong. It
took him about an hour just to pull Stirling out of the water, and about 15
tries before he could even get him up on the board. It was like taking out a
10-year old who had never done extreme sports before or never snowboarded
before. Stirling was very slow to catch onto wakeboarding.

[74]        
Stirling’s natural athleticism has left him. He is now a young man, with
low energy, who needs to take naps, and looks tired most of the time.

Sleep

[75]        
Mr. Grassick testified that Stirling’s initial problems following the
accident included sleep problems, which continue to this day.

[76]        
Stirling testified that one of the most significant things he has had to
deal with since the accident is not being able to get a good night’s sleep. He
has not had a good night’s sleep since the accident. He is fatigued throughout
the day. He goes through periods when he cannot fall asleep, or is able to fall
asleep but wakes up at 2:00 a.m. or 3:00 a.m. and cannot go back to sleep. At
times, he may have slept through the night but still wakes up not feeling
rested. At times he manages three hours of sleep a night and fights to stay
awake during the day.

[77]        
To manage his difficulty sleeping, he practises good sleep hygiene. He exercises
earlier in the day, eats earlier and not before he is going to sleep, uses no
electronics before going to sleep, and sets his alarm on the weekends at the
same time he sets it during the week. He has tried melatonin and hypnotherapy.
Nothing helps.

[78]        
Stirling has seen a sleep specialist on two occasions and had two
overnight studies. Dr. Broome referred him to Kelowna Sleep Clinic in 2010 and
to Kelowna General Hospital in 2014. The tests appear to be inconclusive, and
they have been unable to determine the cause of his sleep difficulties and
recommended that he practice “basic sleep hygiene”. I note in a reporting letter
dated April 21, 2010 to Dr. Broome from Dr. Abelsmith, psychiatrist at the
Kelowna Sleep Clinic, the following comment:

“Impression:  psychophysiological
Insomnia – consequences of MVA”.

[79]        
Stirling’s constant fatigue affects his already compromised cognitive
abilities.

[80]        
The only thing that seems to help is exercise. At Maple Reinders,
Stirling worked out for 45 minutes during every lunch break. After work, he
either went to the gym, yoga, or rock climbing. Stirling is quite blunt when he
says that it is not as if he is enthusiastic about working out, yoga, or rock
climbing. He is only trying to tire himself out so that he can maybe find some
restorative sleep.

[81]        
The defendant argues that Stirling’s problems with sleep started around
May 2009 when he became stressed over his mother’s diagnosis of a rare form of
aggressive cancer in both of her kidneys. The defendant points to entries in
Dr. Miller’s notes to contend that it was only around that time Stirling
complained to him of difficulty sleeping.

[82]        
However, I do not accept that argument. Mrs. Grassick learned in the
summer of 2009 that her tumours were benign, but Stirling continues to have
sleep difficulties. Ms. Littleford testified that when she met Stirling in
early January 2009, he was exhausted and not sleeping well. She was not
challenged on that point.

[83]        
The defendant argues that even if some of Stirling’s stress, anxiety,
and sleep issues relate to the accident, he has failed to pursue the treatment
recommended, in particular, anti-depressants. However, Dr. Smith in
cross-examination disagreed with the defendant’s suggestion that Stirling’s
problems with sleep and depression could be dealt with or alleviated if he took
prescription medication, such as trazadone. There is only a limited number of
appropriate medications, they are not benign, and they have many side effects,
including the feeling of being sedated or grogginess, and they are not always
effective. Dr. Smith testified that it was understandable why Stirling or
his mother do not believe in anti-depressants.

[84]        
Even Dr. O’Shaughnessy opined that for patients with depression and
anxiety in the mild to moderate range, “non-medication treatments are
preferable” to anti-depressant medications. Non-medication treatments include
CBT, mindfulness therapy, and other “specific psychological treatments or
psychotherapies”.

E. Lay Witnesses

[85]        
I have already canvassed some of the evidence of the lay witnesses.

Benton Leong

[86]        
Mr. Leong first saw Stirling two or three weeks after he was discharged
from the hospital. He was very confused, dazed, not very communicative, and when
he was, he was goofy. He saw him frequently and observed seven to nine months
after the accident that Stirling was more serious and anxious than before. As
time has progressed, Stirling’s pace of life has slowed down. Before the
accident, he spoke very quickly. Now, he talks slower. He is constantly trying
to find the words before he speaks, and he has to think and figure out what it
is he is going to say before he says it. He often pauses or uses filler words
while he is thinking of what to say next. He is a lot slower to catch onto
things. He is no longer athletic. He is constantly “agenda-ing” and trying to
keep track of his schedule. When he has to make even a simple decision, his
speech slows down even more.

[87]        
Mr. Leong spent a weekend with Stirling at the Crankworx free style
mountain biking festival at Whistler in August 2013. Stirling was “constantly
on his iPhone agenda planning his whole day step by step”. He was “agenda-ing”
how he was going to get from point A to point B. When he threw a “variable” at
Stirling, such as “where should we go for dinner tonight?”, “what movie should
we see?”, “what time should we go” to this thing or that thing, there was a
“huge slowing down” as he tried to decide.

[88]        
Mr. Leong now attends Simon Fraser University and lives in Vancouver,
but stays in touch with Stirling by text, phone, and Facebook. He returns to
Kelowna most long weekends and reading breaks. Mr. Leong said that compared to
him, Stirling lives in “a fixed environment” and has “a pretty luxurious life” living
at his parents’ house. Even his dinner is cooked for him. All he has to do is
wake up, show up for class, do his homework, and write his tests. Living in Vancouver
– he has to do everything himself.

[89]        
Mr. Leong testified that Stirling lives “a fixed schedule”. When he
returns to Kelowna, most of his friends attend UBCO but always find time to fit
him into their schedule. Not so Stirling. When he first returned to Kelowna
during a break from SFU, Stirling was working for his parents’ company Arthon
in their Kelowna office. There was “no chance he [Stirling] was going to hang
out with me on a weekday”. Maybe he would make time for him on the weekend, but
after work during the week, Stirling had to go home to get organized and go to
bed “sharply at 9”.

[90]        
Despite all of the ways in which he has changed since the accident, Mr. Leong
finds that Stirling is still highly motivated.

Robyn Littleford

[91]        
Ms. Littleford met with Stirling and his family before he returned to
school after the accident. She also liaised with the school and the
rehabilitation coordinator of the Insurance Corporation of British Columbia (“ICBC”)
about his return to school.

[92]        
With Ms. Littleford’s assistance, Stirling dropped video production and
French, was exempted from writing the social studies 11 provincial exam, and
received two credits for his food class although he completed only one term.
For his grade 12 year, Ms. Littleford assisted with developing Stirling’s
individualized education plan.

[93]        
Ms. Littleford explained that the accommodations were crafted and
provided to reflect not only Stirling’s need for more time to think and process
information, but to even the playing field between him and his peers, and to
allow him to participate in school in a meaningful way and not be overwhelmed.

[94]        
After Stirling graduated from high school, Ms. Littleford’s took more of
a monitoring role rather than an advising role as Stirling decided that he no
longer wanted any accommodation. In his e-mail to her on January 2, 2013, he
wrote “I wanted to get a realistic idea of how heavy of a workload I can handle
since there are no accommodations in a real work environment”. However, Ms. Littleford
has continued to stay in touch with Stirling and Mrs. Grassick and monitor
how he is doing academically.

[95]        
Ms. Littleford’s written reports note that Stirling is extremely
committed to getting good marks, works extremely hard, gives up his social
life, does not get enough sleep, is tired all of the time, easily distracted,
has memory problems, and needs to spend a lot of time learning. It is hard for
him to read and digest information. New learning is hard for him.

Dr. Bill Maniago

[96]        
Dr. Bill Maniago is a registered psychologist practising in Kelowna. He
was retained by the ICBC’s rehabilitation department to assist in Stirling’s
recovery. Dr. Maniago had a total of 23 sessions with Stirling between
February 20, 2009 and August 2011 just before he started Okanagan College: five
sessions between February 2009 and July 24, 2009, five sessions between
February and April 2010, six sessions between August and January 2011, and
seven sessions between March 2011 and August 2011.

[97]        
Dr. Maniago explained that the hiatus between the sessions was caused by
a combination of a couple of factors: the time it took for ICBC’s
rehabilitation department to approve further sessions, and Stirling’s busy
school schedule.

[98]        
With Stirling, Dr. Maniago practised a combination of cognitive behavioural
therapy (CBT) and mindfulness guided mediation. With CBT, Stirling learned to
“unpack” and manage his thoughts and change them, and with meditation he
learned to be aware of his feelings and thoughts, and relaxation techniques.

[99]        
Dr. Maniago found Stirling “quite motivated” and “pretty actively
involved” in his treatment. His psychological state was up and down, and at
times he slipped into a more depressive mood. Stirling’s parents were always
positive even when things were difficult, and Stirling likewise, always tried
to put a positive spin on things and say everything was wonderful – even if
they were not. His self-confidence was “fragile” and “shaky”. His mood waxed
and waned depending on how well he was doing at school. He got quite down about
not being able to participate in high level mountain biking, but he tried to
push those thoughts aside, and think positively about something else.

[100]     Stirling
willingly opened up about the issues he faced. He reported various challenges,
including difficulty sleeping. He worried a lot about his poor productivity at
school, and how much energy and time it took him to do something when before
the accident, the same thing took just a second or so. His most significant
source of stress was the loss of biking, and the amount of time and energy it
took him to do school work. However, he pushed himself to remain active by
going to the gym.

Brenda Forster

[101]     Brenda
Forster is a registered clinical counsellor who saw Stirling for a total of 34
sessions: 27 sessions between November 2, 2011 and August 30, 2012, and seven
sessions between October 1 and November 21, 2014. When she first saw Stirling
in November 2011 he had just started UBCO. She initially engaged him with a
neurobiological approach to therapy, which attempts to rebalance the autonomic
nervous system by connecting with feelings and sensations in the body. It
requires an ability to work with imagination – which was difficult for
Stirling. From there, she encouraged him to meditate. She then used CBT and
worked with helping him make connections between his thinking processes and his
behaviours, and reframing how he conceptualizes things so that his emotions and
behaviours could also shift. However, that also proved challenging and
eventually her role became primarily “supportive and validating”. She provided
Stirling with a place where he could vent or process whatever was going on in
his life.

[102]     When she
first met with Stirling in the fall of 2011, he identified three symptoms that
were of concern to him: depression, social anxiety, and low self-esteem. He was
depressed since starting UBCO. He struggled with social anxiety which he
related to “the loss of his ability to participate in extreme sports and a
resulting loss of his social life and sense of belonging”. He suffered from low
self-esteem because of his cognitive challenges and physical limitations.

[103]     On July
12, 2012 she explored Stirling’s emotional coping around the sequelae of the
accident. He told her that he was long over his anger and grief, and believes
that the only thing he can do is cope with the present and the future.

[104]     The fact
that Stirling spent most of his time studying was an ongoing theme. He told her
that he was willing to sacrifice friends and fun for his academic studies.

[105]     On August
30, 2012, Ms. Forster noted that Stirling was very animated. He shared with her
stories about two trips he had with two different friends. She testified that
she recalls the session because it was very out of the ordinary for Stirling to
be animated, excited, full of life, and feeling some joy. She said that it was
really quite noteworthy that he laughed and smiled. It was not something that
she typically saw in him.

[106]     In August
2012, Stirling discontinued his therapy sessions because he wanted to
concentrate all of his time and energy on doing well academically.

[107]     Stirling
returned to see Ms. Forster in the fall of 2014. He needed someone to talk to after
the difficulties he encountered during his co-op work term with True Consulting.
He realized that he faced difficulties and major challenges in his future
career, and that realization translated into fear. He was no longer optimistic
that he could just work hard and be successful.

[108]    
In her progress report dated November 21, 2014, Ms. Forster wrote:

Over the course of seven sessions that Stirling has attended
since October 1, the following symptoms have emerged:

1. Difficulty
coping with stressors: Stirling describes feeling easily overwhelmed with
everyday events…. He describes a sense of irritability and “wanting to explode”
when the demands on his time and energy reach a certain threshold. Compared
with his peers in the Engineering program, Stirling believes that his capacity
for coping with the demands of his program is much lower.

2. Concerns
regarding his career choice: Stirling describes that he finds it very
challenging to keep up with his studies. He states that he has found ways to
manage during the school term, but that the end of the term is extremely
stressful and challenging as he struggles to learn all of the neglected
material from the entire term at exam time. He is wary as to whether he could
trust himself with the responsibilities inherent in a career in Engineering. He
is concerned about his ability to meet deadlines while performing his work to
meet high standards. Stirling worries that he has made an inappropriate career
choice.

3. Cognitive
challenges: Stirling describes several challenges with his cognitive
functioning, including:

a.     Poor memory for events and
commitments (e.g., he has to put a reminder in his phone to alert him of
upcoming appointments with me, even though we meet at the same time each week).
He recently missed a scheduled appointment because his phone did not remind him
of the appointment.

b.     Recall of information when
writing exams has become more challenging in the past semester.

c.     Hypersensitivity to noise.

d.     Tendency to freeze when faced
with a new task; also notes the freeze response at times when he attempts to
study and that it has also occurred in the midst of writing an exam.

e.     Constant brain chatter.

f.      Difficulty concentrating during
lectures.

4. Difficulty balancing the dynamics of his life:
Stirling struggles to find balance with school and his relationship with his
girlfriend. He frequently breaks his commitments to his girlfriend because he
requires more time than he anticipated to complete his studies, an issue that
is has caused some discord in the relationship. Stirling’s social life is very
limited due to his study schedule. Stirling describes that he engages only
minimally with his family.

5. Depression symptoms: Stirling acknowledges that
he frequently has difficulty motivating himself to study. He describes feeling
a sense of hopelessness. Stirling questions the meaning and purpose of his
life.

6. Financial worries:
On the surface, Stirling appears to be functioning well and succeeding in life
(ie., he is intelligent, he is getting passing grades in his program, he is
well groomed and dresses well). However, he believes that he does not perform
as well as his peers of equivalent intelligence. He worries that he may be
unable to perform adequately in the field of Engineering; hence he is very
concerned about his long term financial wellbeing.

Kim Barlow

[109]     Kim Barlow
is 24 years old. She works as a registered nurse in the cardiac ward at Kelowna
General Hospital. She and Stirling went out on their first date in November
2013. Stirling had just completed his co-op with Arthon. They went out for
dinner, went for drinks, went to her house, watched movies, and he took her for
“dates in town”. They had dated for about a month when his accident came up
during the course of a conversation, but she saw nothing that forecast the
problems she faced in their relationship.

[110]     Once
Stirling returned to school in January 2014 they hardly saw each other anymore.
Maybe once a week, if that. When exam time came, she saw him maybe once every
couple of weeks, and then, just for a few minutes.

[111]     Ms. Barlow
testified that Stirling goes to classes, which by itself is exhausting for him,
he studies after classes, he goes to the gym to help with his stress and to get
fatigued enough so he can sleep, and he goes to bed at the same time every
night. He follows a very strict schedule. His stress level increases with the
semester, so that by mid-terms he is very stressed until final exams. His
stress level also increases significantly if he has a project to complete.

[112]     If Ms.
Barlow has not seen Stirling for a week, she will drive to the university and
bring him a cup of coffee and some food – just to see him. It is hard to
convince him to stop studying and step outside for just 10 minutes to talk to
her. When he does, he is completely distracted, and tells her that he does not
have time, apologizes, and return to his studies. She tries to convince him to
stop by her place for 10 minutes after he goes to the gym and before he goes
home. But he hems and haws, and tells her that he does not have time. They text
each other, but not often. Sometimes when he is having lunch he will send her a
snap chat. They talk on the phone just one or twice a week after he has
finished dinner and before he goes to bed.

[113]     Ms. Barlow
has taken up yoga and bouldering just so that she can be with him when he
participates in those activities.

[114]     Ms. Barlow
and Stirling spend the night together once every week and a half to two weeks. He
does not use electronics an hour before bed. He tries to read or meditate
before going to sleep. Despite his good sleep hygiene, she sometimes wakes up
in the middle of the night to find him staring at the ceiling. He tells her
that he either has not slept, or has woken up, and cannot get back to sleep.

[115]     Ms. Barlow
has rarely seen Stirling with the energy of a healthy young man. Their
relationship nearly ended in the fall of 2014 between his midterm and final
exams, when Stirling is most stressed. She found it difficult to ask Stirling
day after day whether he had time for her, and “day after day I was shut down”.
She could see that it was stressful for him, but she does not want to be in a
relationship where she does not see her boyfriend. But Ms. Barlow wants to be
in a relationship with Stirling. She finds him “a good guy”. He is kind, very
caring, funny, and they enjoy each other’s company.

[116]     At times,
Ms. Barlow will ask Stirling about his problems and fears. He will tell her,
but he breaks down, and at time, he cries. She understands that he sets high
expectations for himself and he is trying to follow his peers.

[117]     Ms. Barlow
understandably wants to know whether she is in a committed long term
relationship with Stirling. Eventually, she would like to get married and have
children. Those are part of her long term plans. If she asks Stirling, his
plans do not go past a month.

F. Medical Experts

Dr. Harry Miller, neuropsychologist

[118]     When
Stirling was still in ICU, Dr. Miller was asked to provide an assessment and
ongoing care for Stirling as an inpatient. On his discharge home, Dr. Miller
recommended that Stirling have 24 hour supervision. Dr. Miller was then
retained by ICBC’s rehabilitation coordinator to conduct an extensive
neuropsychological evaluation. Dr. Miller saw Stirling on May 7and 8, and
June 4, 2009. His report to ICBC’s rehabilitation coordinator is dated July 23,
2009.

[119]    
In his summary and recommendations Dr. Miller reports that testing
showed that Stirling’s “verbal intellectual ability was average to low
average…seemingly reflecting a reduction from prior levels of ability.” His
speed of information processing was mildly slowed and there was evidence of cognitive
inefficiency. He diagnosed Stirling as suffering from a “cognitive disorder not
otherwise specified,” and an adjustment disorder with mixed features of
depressed mood and anxiety. He states:

While the patient has done well in most areas assessed on the
neuropsychological evaluation, it is important to recognize that although test
scores were generally average to above average, the more critical factor for
the patient is related to cognitive inefficiency and the degree of effort that
it takes for the patient to engage cognitive abilities. Whereas the patient
was able to marshal cognitive abilities in an automatic fashion prior to the
traumatic brain injury suffered on 01 November 2009 [sic], now, it is a
much more effortful process, requiring a considerably greater degree of energy
from the patient to use his abilities in both his personal and academic
activities. In this regard, while it is quite clear that the patient has
reasonably strong cognitive skills, unless he makes a concerted effort to
maintain focus, to keep pace with activities and information flow, and to be
active in problem solving and reasoning, he is likely to experience
difficulties in managing what otherwise would have been relatively
straightforward challenges for him. In essence, the patient, at this point
in time, has somewhat diminished capacity to fully utilize his cognitive
abilities, and at least for the near future, he will be required to work
harder to ensure that he is able to take advantage of his cognitive resources.

The patient will benefit from using strategies to manage
problems with learning/memory that may develop as a result of reduced attention
and concentration, and distractibility, in addition to problems with engaging
the abilities of learning/memory. Strategies to consider include:

1.     for more complex tasks, have the
patient minimize circumstances that require division of attention among
multiple inputs or outputs;

2.     encourage the patient to
structure activities such that he is able to engage in one activity at a time
to completion and where there is minimal requirement to switch or to make
abrupt changes;

3.     have the patient make lists of
activities and tasks to be completed one at a time, such that he can use a
checklist to document when each task has been completed before moving onto the
next task;

4.     allow sufficient time for the
patient to respond and to self-pace;

5.     have the patient develop
organizational strategies such as lists and written instructions which reduce
the need to divide attention among competing tasks;

6.     minimize distractions in the
environment;

7.     encourage the use of a daytimer
and/or memory notebook;

8.     have the patient learn tasks and
information in multiple sensory modalities where he can simultaneously see
material, hear instructions, and perform at task; and

9.    provide information to the
patient in both verbal and visual modalities.

[Underline emphasis added.]

[120]    
Dr. Miller noted that it was important to repeat the testing to
determine the permanency of the deficits. That testing took place over a total
of four days in July and August 2010. Dr. Miller’s report of September 4, 2010
states in part:

[R]ealistically, the majority of improvement is expected to
have occurred by now.

While I am of the impression that the patient is doing well
in his recovery from a neuropsychological perspective, it is important to
appreciate that he continues to experience some deficits relative to before the
accident. Deficits are primarily in the areas of reduced processing speed for
information, cognitive inefficiency, and some elements of reasoning, Of
interest, the challenges for the patient, from a cognitive perspective, are
more likely to be evident if the patient is required to respond or act in a
more spontaneous manner, rather than if he has time to think and process
information, or issues in a situation. In this regard, challenges for
the patient are not likely to be obvious unless the patient is observed in
situations or under circumstances where the need to marshal cognitive resources
and ability is more immediate. Perhaps this is most evident when his
academic record is reviewed where his transcript reveals strikingly good
performance, but at the same time, the patient was provided time and
opportunity to work through academic materials both in terms of assignments and
examinations where the likelihood of the patient’s neuropsychological deficits
and potential impact on function may not be readily exposed, This is not to
argue that the patient is not doing well, but rather, to point out that despite
very good performance, the patient is most probably not functioning at the
level he was capable of prior to the accident, but through the use of
compensatory strategies and modifications to his day-to-day life including the
academic environment, he has, for the most part, been able to circumvent
deficits. In this regard, it will be immensely important that the patient be
able to constructively manage academic and work environments in the future such
that his level of function is maintained at the highest level possible.

[Underline emphasis added.]

[121]     Dr. Miller
was cross-examined extensively, but he did not change his opinion.

Dr. Hugh Anton, physiatrist

[122]    
Dr. Anton assessed Stirling on November 3, 2014, and his report is of
the same date. With respect to Stirling’s TBI, which he describes as “of
moderate severity”, Dr. Anton states:

[T]he most important patient factor was his past history of
several concussions (in different terminology, mild traumatic brain injuries).
Though he appears to have made a good recovery from those, the residual effects
of his concussions could predispose him to prolonged recovery from a subsequent
TBI.

….

Mr. Grassick’s CT scans showed diffuse axonal injury (DAI).
That term describes widespread brain injury resulting from rotational and
acceleration-deceleration forces tearing axons in the brain. Because most of
the injury in DAI occurs at the cellular level, imaging such as CT typically
underestimates the extent of brain involvement. Because DAI involves multiple
areas of the brain, it is potentially associated with a wide variety of
neurologic and cognitive manifestations.

Given both the severity of Mr. Grassick’s TBI and the
presence of DAI on imaging, he is at high risk for permanent impairments from
his TBI.

Neuropsychological testing done on two occasions showed
generally intact cognitive function but also areas of relative weakness
suggestive of persisting cognitive impairments. In particular, it appears that
those weaknesses would contribute to cognitive inefficiency, making cognitive
tasks more challenging and fatiguing for Mr. Grassick. That is consistent with
his self-report regarding his cognitive difficulties and the challenges he has
faced in his studies since the accident.

Mr. Grassick may also be experiencing problems with executive
function, which are common after DAI. Executive function describes the high
level integration of more basic cognitive processes required for the planning,
initiation and regulation of complex behaviour.

It is my opinion that Mr. Grassick’s situation was probably
complicated by the development of depressed mood and anxiety after the
accident. He described difficulty managing stress and exacerbation of his
cognitive symptoms by stress. That is a common phenomenon in persons who have
cognitive impairments after TBI. I would defer to a psychiatrist regarding
specific psychiatric diagnoses in Mr. Grassick at this time.

Mr. Grassick’s complaints included fatigue. Fatigue is common
after TBI and can have many causes. Those include medical conditions such as an
endocrine disorder, disordered sleep, depression and/or the direct effects of a
TBI. It is my opinion that the cognitive inefficiency referred to earlier is
probably contributing to Mr. Grassick’s fatigue related to sustained mental
effort.

Neurological recovery after TBI is generally thought to be
maximal in the first two years post-injury. Mr. Grassick is therefore not
likely to have further improvement in his residual impairments from his TBI.

….

The most common psychiatric
complication of TBI is depression. Mr. Grassick should be monitored for
the development of depression in future, especially as he deals with life
stressors.

[123]    
In answer to the question of whether Stirling
will be permanently disabled, Dr. Anton states:

Mr. Grassick continues to have cognitive
impairments, possible impairments of executive function, and fatigue arising
from the direct and indirect effects of injuries sustained in the accident.
Those impairments affect his participation in activities and cause a continuing
partial disability.

It is difficult to quantify the severity
of Mr. Grassick’s disability at this time. He appears to be performing
adequately at school but is doing so by focussing almost exclusively on his
studies. He at present has little participation in
social or recreational activities. He has also had little opportunity to
test himself in the working world. It is my opinion he will have a permanent
disability but the extent of that will only become apparent as he progresses in
his studies and eventually attempts to work.

[Underline
emphasis added.]

[124]     Given the
nature of Stirling’s cognitive symptoms, his fatigue, and the difficulties he
has encountered in his academic program, Stirling will find work a challenge in
future:

He is probably capable of some
type of employment. It is at this point unclear that he will be able to sustain
full time employment. If he does successfully work full time, he may have to do
so by giving up avocational activities such as leisure pursuits or household
chores.

[125]     Dr. Anton
testified that neuropsychological testing attempts to assess a patient’s
executive functioning, but tests can be relatively insensitive. Performance in
the real word is probably the best barometer of executive functioning – and why
Stirling may be experiencing difficulty in the real world.

Dr. Jeanette Smith, forensic psychiatrist

[126]     Dr.
Jeanette Smith assessed Stirling on August 11, 2014. In her report dated August
16, 2014, she states:

Diagnosis

43.  [I]t would appear that since the accident he
has experienced a modest decline in cognitive function, in particular speed of
information processing, cognitive efficiency and reasoning. While these
deficits do not interfere with his ability to live independently and to engage
in everyday activities, greater effort, accommodation and compensatory
strategies are required for him to complete everyday activities, in particular
when studying or working. It is therefore my opinion that Mr. Grassick suffers
from mild neuro-cognitive disorder due to a traumatic brain injury.

44.  Mr. Grassick has experienced varying degrees
of anxiety and depression (e.g. low mood, anxious mood, insomnia, fatigue,
excessive worry, physical tension, poor concentration, low self-esteem and social
anxiety) since the accident … his depressive symptoms have at times been
clinically significant and these together with the significant anxiety that he
has reported would suggest the presence of an adjustment disorder with mixed
anxiety and depressed mood. It is also very likely that factors such as
anxiety, depression, fatigue and insomnia have contributed to his perceived
cognitive difficulties and the mild neurocognitive disorder.

….

Causation

46.  Mr. Grassick’s depressive symptoms appear to
have developed largely in direct response to his inability to continue
participating in extreme sports, in particular mountain biking due to the
potential risk of a further brain injury. This was clearly devastating for Mr.
Grassick as mountain biking was central to his life providing him with a great
deal of satisfaction as well as self-confidence and a sense of accomplishment.
The depression as well as anxiety has been further fueled by the knowledge that
he is not able to function cognitively at his former level, which has also
affected his self-esteem and self-confidence. It is therefore my opinion
unlikely that Mr. Grassick would have developed the adjustment disorder
with mixed anxiety and depressed mood absent the motor vehicle accident of
October 31, 2008 and the associated traumatic brain injury.

47.  Mr. Grassick’s
anxiety symptoms center largely around his cognitive difficulties and his fear
that he will not be able to cope in the future with the increasing demands of
full time work, living independently and supporting a family. He perceives that
he is currently barely coping and does so only because of significant and
concerted effort which is exhausting and consequently leaves him little energy
or time for leisure pursuits. His anxiety likely affects the quality of his
sleep which in turn compounds his cognitive difficulties and fatigue. … [I]n my
opinion, absent the accident and the serious impact that this had on Mr.
Grassick’s life, it is unlikely that he would have developed such significant
anxiety symptoms particularly at this time in his life.

[127]    
In terms of Stirling’s ability to maintain long-term employment, Dr.
Smith has considerable concern and writes:

Disability

48.  When Mr. Grassick is given sufficient time and
a quiet environment, he can function well and is able to complete challenging
cognitive tasks, as evidenced by his examination results (when given additional
time and a quiet environment) and even the results of neurocognitive testing.
However when attempting to accomplish tasks in real life situations, with
time constraints, distractions and a list of other things to do, Mr. Grassick’s
cognitive difficulties become more apparent, his anxiety escalates and his
ability to function declines. With increasing anxiety, his sleep
deteriorates and his cognitive efficiency further declines. Currently he is
coping with studying and with the work component of his co-op program. However,
this is exhausting and allows him little time for leisure pursuits or anything
beyond a very basic social life. He appears to have lost his former resilience.
Mr. Grassick has yet to be placed in a situation where he is living
independently away from his parents’ home, working in a responsible demanding
full time job and supporting himself and possibly a family but there must be
serious concerns about his ability to do so without becoming overwhelmed with
stress, exhaustion and anxiety, and making significant mistakes in his work.
Consequently it is quite possible that part time employment or work at a level
of responsibility significantly below his academic level may need to be
considered.

….

Prognosis

52.  [T]he prognosis is uncertain. It is now almost
six years since the accident and Mr. Grassick’s recovery from the brain injury
and the associated improvement in the neurocognitive symptoms has clearly
plateaued. It is unlikely that there will be further significant improvement in
the neurocognitive symptoms more than six years after the accident. It is
possible that if his anxiety can be reduced and his sleep quality improved this
will lead to a modest improvement in his functioning. Clearly Mr. Grassick is
highly motivated to develop strategies to improve his functioning and to
overcome his anxiety. However psychological interventions have produced only
modest results, at best and it is not known how effective antidepressants would
be or if he would be able to tolerate these. It is therefore more likely than
not that he will continue to struggle with his current symptoms for the
foreseeable future. Anxiety and depression are often long lasting conditions
and it is likely that they will continue to wax and wane in severity depending
on the degree of stress to which Mr. Grassick is exposed.

[Underline emphasis added.]

Dr. Carole Bishop, neuropsychologist

[128]    
Dr. Bishop conducted a semi-structured psychological and neuropsychological
interview, and psychometric testing of Stirling for a half day on November 5,
2014 and a full day on December 16, 2014. Her neuropsychological report is
dated December 30, 2014. Dr. Bishop found that Stirling’s performance suggests
that he has mild working memory problems and related attentional challenges.
She states:

Regardless of the mild nature of the above-described
relative cognitive weaknesses, they are highly potent to Mr. Grassick in his
attempts to maintain a very high level of academic achievement. His
exceptional efforts to maintain that status have resulted in very strong grades
since the MVA, but at a high cost for energy output, fatigue and
stress/distress.

[Underline emphasis added.]

[129]    
Dr. Bishop found that Stirling is suffering from significant clinical
depression and marked anxiety. He worries that he will be unable to complete
his degree. He worries that even if he does, he will be unable to work as an
engineer because of his cognitive limitations. Dr. Bishop opines:

[T]his young man probably had some form of mild anxiety
symptomatology before the MVA, most probably related to a high need for order
in the context of perfectionist traits, and in light of a familial paternal
history associated with obsessive-compulsive features. There was no indication
of frank pre-MVA psychopathology. Before the MVA/TBI, he had immersed himself,
and excelled, in a relatively high-risk sport, however, and appears to have
thrived skill-wise without any notable emotional difficulties.

[T]his young man now has a frank anxiety disorder associated
with obsessive-compulsive features as well as with generalized anxiety. That
increased anxiety has recently generalized to driving fears and panic episodes.

Mr. Grassick’s anxiety and
depression have not been adequately treated. …. There is no reason to believe
that he would have developed a frank, functionally-limiting anxiety disorder
during his teenage years but for the MVA and TBI.

[130]    
Stirling was more vulnerable to “significantly increased cognitive
compromise” as a result of his earlier concussions:

The MVA and TBI occurred during a critical developmental
period in Mr. Grassick’s teenage years. The relevant literature describes
first onset depression and anxiety following brain injury. Mr. Grassick’s
neurological insult occurred during a developmentally sensitive time when he
was a teenager. His TBI was at least moderate in nature by accepted parameters
and was superimposed on pre-existing brain trauma. Neuropsychiatric symptoms
have gradually increased for this young man such that he is now in chronic
distress. Interpersonal rigidity and perfectionism appear to have increased
over time, and further complicate his presentation.

Restrictions to Mr. Grassick’s academic, work,
employability or leisure activities

This young man has now been
suffering from both of these conditions were considerable amount of time. With
regard to anxiety, both formal, cognitive-behavioral intervention and
pharmacological treatment are very probably now required. His anxiety is at the
point where he is in extreme distress: rumination is chronic and limiting such
that he has trouble focusing on his studies. His depressive experience is also
of concern: despite a euthymic presentation, by all accounts depressive
symptoms have increased over the last year or so and also significantly affect
functioning. Anxiety interferes with his quality of life and is reasonably
implicated in his experience of poor memory and attention, but I do not think
that those psychological factors fully account for those cognitive limitations:
again, the TBI is reasonably implicated as well but it is not possible to
partition the effects of those overlapping factors.

[131]    
She concludes:

Regardless of his final career path, Mr. Grassick will
probably have difficulty with successful management of fulltime employment:
part-time status may be more reasonable. Energy conservation to protect his
quality of life for activities outside of work will need to be considered.

Prognosis

Mr. Grassick is now six years post-MVA and TBI. No further
recovery of neurocognitive functions can be expected. He will continue to
require additional time and a quiet environment for learning and task
completion whether for academic or work tasks. Without at least those
provisions, he is unlikely to be able to satisfactorily manage such demands
without significant stress, distress and fatigue and probable termination of
those activities.

Although there is considerable
individual variability, the bulk of the literature suggests an increasing trend
to support the hypothesis that TBI is a potential risk factor for greater than
age-related cognitive decline, and that brain trauma may lower the threshold
for the clinical expression of dementia among predisposed individuals [footnote
omitted]. Mr. Grassick must be considered vulnerable to greater-than-age
expected cognitive decline to at least some extent given his moderate TBI,
superimposed on multiple concussions of which one resulted in organic brain
changes.

[132]     Dr. Bishop
makes several recommendations:

1. Occupation
therapy case management and intervention: Stirling uses his iPhone and other
information technology. He should be referred to an IT specialist who deals in adaptive
techniques for a limited number of sessions so he can fully utilize his
computer and iPhone support skills and techniques;

2.    Psychiatric
follow-up: Stirling should be referred to a psychiatrist to help him deal with
his persistent depression and anxiety;

3.    Psychological
intervention: Stirling should be referred to a psychologist for formal
cognitive-behavioural intervention to deal with his anxiety and depression and
“for adjustment issues related to persisting cognitive difficulties;

4.    Self-management:
to help deal with his anxiety issues, Stirling may benefit from mindfulness
practice or meditation;

5.   Academic issues: Stirling
should obtain academic accommodation at UBCO, such as additional time and a
quite environment for exams or work, or additional time to complete the course
requirements.

[133]     The
defendant argues that Dr. Bishop did not have Dr. Miller’s raw tests data from
his 2009 and 2010 assessments, and her inability to compare her testing of
Stirling with Dr. Miller’s testing of Stirling before and after the accident is
fatal in terms of assigning any weight to her opinion. However, I agree with
the plaintiff’s argument that this is a remarkable suggestion. Most
neuropsychological reports are prepared without the benefit of
neuropsychological testing prior to an accident. Dr. Bishop reached an
opinion which essentially agrees with Dr. Miller’s testing of Stirling after
the accident. The defendant could have called a neuropsychologist to challenge
the findings of Drs. Miller and Bishop, but did not.

Mary Lou Iceton, speech language pathologist

[134]     Mary Lou
Iceton is a speech language pathologist with 39 years of experience in clinical
practice. Most of her work is focused on adult neurogenic communication
disorders. She works with patients who have brain injuries from various causes,
including strokes, tumors, and TBIs.

[135]     Ms. Iceton
assessed Stirling on March 1, 2015 and prepared a report dated March 3, 2015.
She conducted various tests including the MacDonald’s Cognitive Communications
Checklist After Brain Injury (CCCABI) by Sheila MacDonald SLP (C). This
involved engaging Stirling in a discussion about his experience in different
areas of functioning. She concluded that Stirling has cognitive communication
deficits in all four main areas:

1. word retrieval:
in the test environment, Stirling’s word retrieval was accurate, but word retrieval
“would be expected to surface in a dynamic environment with multiple speakers,
rapid topic change, and background noise;

2.    discourse
difficulties: Stirling’s “speaking was controlled, without spontaneity and his
vocabulary was subdued without colour or description”;

3.    comprehension
difficulties: in a real life environment where there is “longer more complex
interaction…background noise, multiple speakers, multi-tasking, rapid presentation
and rapid shifts in topic”, Stirling will have comprehension difficulties. Even
in the test environment his responses were slower than expected, and he often
asked for information to be repeated; and

4.   conversational
interaction difficulties: Stirling can speak quickly, but he does not think
quickly.

[136]     During
cross-examination, Ms. Iceton voiced other concerns:

·       she
expressly wrote down that Stirling was “hypervigilant ” because “it was
something that struck me quite strongly as to what he was doing”:  paying
really close attention to what she was saying so that he did not miss anything
or reply inappropriately or inaccurately;

·       he
was always asking her for repetition, if she switched topics too quickly –
“certainly not quickly by normal standards” for his ability to comprehend’’;

·       there
was evidence of delayed processing in open-ended questions; and

·       Stirling
demonstrates ‘hyperawareness of his problems”.

[137]    
Ms. Iceton testified:

And as you add layers of difficulty
you really need to see him in a dynamic functional environment.

This is the tip of the iceberg.
This is what he does in a structured setting, not in the more difficult dynamic
outside world with all kinds of acoustics and different speakers and
changes of topics and trying to understand whether someone is being sarcastic
or being humorous, and those are very — I would suggest that those will be
areas that would be very difficult for him to comprehend and deal with, seeing
what I saw in the core.

….

Q     And
then when you were doing the auditory comprehension he — you switched thoughts
and he took a little bit to get onto that thought; is that essentially what
you’re saying?

A     When
I switched topics too quickly for his ability he asked immediately for
repetition.

….

It was a
question to myself. I don’t diagnose anxiety but he seemed, to me, to be to —
to exhibit signs of what I would consider anxiety to be, which is the — not
only the hypervigilance but that, you know, he’s very — overly concerned about
whether he was being accurate in what he said; not that he was reporting
inaccurately, but what he said was representing what he wanted to say.

Q     And
then back in your report, he queries the appropriateness of his expression, he
will scan for error; he’s telling you that?

A     Yes,
but you — I can see it in what he’s doing, he — he’s talking to you and he’s
thinking about what he’s saying and wondering whether it’s appropriate and he
scans ahead for errors and he doesn’t know if — if he’s correct in assuming
that you meant this particular —

[Underline emphasis added.]

[138]    
Ms. Iceton also commented on Stirling’s use of technology to help his
memory problems:

— most of the clients that I deal with
have alarms and reminders for everything they need to do, from taking
medication to remembering to call someone or make an appointment or to finish
an assignment.

And he has at least the core of that
together. I’m not sure that he does it as perfectly as everyone would like, but
he does — he does have strategies in place.

My concern is when his environment
changes are those strategies still — are they still — do they still work? He
has been in a very what I will call a sheltered environment in the sense that
although he’s going to school that’s a very rigid schedule. Changes at
semester time, definitely he reports they — they throw him off. And he doesn’t
cook — or he lives at home, he doesn’t cook or shop necessarily, he doesn’t
have to do all those daily activities in addition to going to school at this
point in time. And I see — what’s been my experience that transitions into
those different areas are very often difficult, given the kinds of things that
I’m seeing.

The hypervigilant adject means that he
invests a lot of energy every day, 24/7 in getting information out, in —
getting information in, sorry, and putting information out, and right now he
has a very limited structured environment which, given his age, is due to
expand in the next amount of time.

[Underline emphasis added.]

Mary Carman, occupational therapist

[139]     Mary
Carman conducted an acquired brain injury functional capacity evaluation of
Stirling over the course of three days from August 12 to14, 2014. She assessed
his physical function, cognitive function, behavioural function, and activity
tolerance/productivity. Stirling demonstrated no limitations in his physical
functioning, but demonstrated limitations in all other areas of functioning.

[140]    
Ms. Carman’s detailed 63-page report dated January 16, 2015 highlights
Stirling’s problems with memory, multi-tasking, following verbal directions,
and mental fatigue when performing sustained sedentary cognitive tasks.

Cognitive Function

In summary, Mr. Grassick demonstrated many cognitive
strengths, including insight into his abilities, organizational skills, an
ability to follow visual directions, good constructional abilities, good
productivity, a fairly high level of accuracy, and appropriate use of
strategies to enhance his accuracy, such as checking his work or referring back
to written directions. However, he also demonstrated some indicators of
workplace difficulty related to cognitive factors.

For example, he demonstrated
difficulty with remembering and manipulating multiple pieces of information in
his mind, following complex or multi-step verbal directions, and multi-tasking
where he was required to remember to perform certain tasks intermittently while
completing a variety of other tasks or where he had to remember multiple rules
about how to complete a task. Mr. Grassick also demonstrated signs of fatigue
when involved in sedentary cognitive tasks. He was able to maintain his work
pace in this supported setting with the use of mini-breaks to stretch and move
around, but he did demonstrate some decline in his accuracy by the end of the
day.

[141]     Ms. Carman
notes that Stirling asks a great deal of questions to confirm and clarify what
he is supposed to be doing. This is likely something he has learned as a coping
mechanism to deal with his deficits, but it does not bode well for the real
world where professionals are expected to catch on quickly. Ms. Carman states:

Behavioural Function

In summary, Mr. Grassick
demonstrated multiple strengths in terms of his work behavior, including a good
work ethic and a desire to try hard and perform to the best of his abilities.
The one area of concern may be with regard to the fact that he tends to ask a
great many questions to confirm and clarify directions when performing tasks
and to ensure that he is on the right tract with what he is doing. This is an
appropriate and useful strategy to ensure that he understands what to do, and
it compensates for his reduced memory and reduces his anxiety with regard to
completing tasks successfully. However, in some settings, his
employer/supervisor may expect him to work more independently and may not be
willing to provide this support or feedback.

[142]    
During the three-day assessment, Stirling attended approximately 7.3 to
7. 8 hours each day with a 30 minute lunch break, and an additional 10 to 15
minute break in the morning and afternoon. He demonstrated “obvious signs of
fatigue when involved in sedentary cognitive tasks.” Ms. Carman concludes:

Activity Tolerance/Productivity

[I]f faced with more challenging
cognitive tasks or longer periods of sustained sedentary cognitive activity, or
if unable to take breaks to try to address his symptoms, he may have more
difficulty maintaining his accuracy or level of productivity. This may limit
his ability to tolerate full-time work and result in a need for accommodation,
such as working part-time hours or modifying his work tasks to reduce demands
for sedentary cognitive tasks at the end of the day.

[143]    
Ms. Carman considered the feasibility of employment for Stirling:

FEASIBILITY FOR EMPLOYMENT:

Mr. Grassick demonstrated signs of fatigue when involved in
sedentary cognitive tasks. … [H]e would have difficulty tolerating work that
was primarily sedentary in nature, especially if combined with significant
cognitive demands.

[I]t is my opinion that he demonstrates limitations in his
ability to meet the cognitive demands associated with the aptitudes as
identified by the NOC [National Occupational Classification] or skills
demonstrated by productive workers. Mr. Grassick demonstrated problems
with remembering and manipulating multiple pieces of information in his memory,
especially when presented with this information verbally. His memory and
attention difficulties impact his ability to multi-task when required to
alternate between complex tasks, remember multi-step directions, or perform
tasks intermittently. Mr. Grassick also demonstrated evidence of fatigue when
involved in sedentary cognitive tasks.

Although he made use of mini-breaks to stretch and move
around, his accuracy declined slightly by the end of the day when involved in
primarily sedentary tasks. Mr. Grassick’s cognitive limitations, his fatigue,
and his use of mini-breaks to manage his symptoms impact his productivity, his
accuracy, and his ability to work independently in the work place.

[H]is anxiety and his need to ask questions may limit his
ability to work independently and result in extra demands for supervision in
the work place.

Therefore, with regard to employability, Mr. Grassick
is considered to be non- competitively employable. That is, he
demonstrates physical, emotional, and cognitive limitations for work that
restrict his ability to access the full range of occupations for which he may
have otherwise qualified within his strength category. In order to work, he
would require an exact match between the job demands and his demonstrated
abilities or else accommodation with regard to his job tasks, work hours, or
work environment.

….

Mr. Grassick’s difficulties with memory, multi-tasking, and
following verbal directions, his mental fatigue with sustained effort, and his
anxiety related to performing well also impact his performance in a variety of
areas and his ability to meet cognitive and emotional job demands. In order to
compensate for his limitations, he may require greater levels of supervision,
more specific directions, a shorter work day, less responsibility, or simpler
work tasks. Mr. Grassick’s limitations may restrict the range of
engineering jobs available to him or the level of advancement that he is able
to achieve in this occupation. His limitations may also reduce his ability to
work full-time.

Mr. Grassick has not yet completed his education or finalized
his vocational plans, and thus it is difficult to comment on the specific job
demands he will encounter when he enters the work force, or on whether an
employer would be willing to accommodate his needs. He would benefit from
working with a vocational counsellor for guidance and advice with regard to
identifying appropriate jobs that match his physical, cognitive and emotional
capacity, or to liaise with employers in order to negotiate accommodation as
needed. Alternatively, if Mr. Grassick chooses to modify his occupational
choice, referral for vocational counselling would be recommended to assist in
this process.

[Italics emphasize from Ms.
Carman’s report.]

[144]     Ms. Carman
makes various recommendations, including an occupational therapist to assist
him in managing his daily life, vocational rehabilitation counselling, and a
kinesiologist for advice on scaling down the lengths of his workouts, but
maximizing the benefits of an exercise program to help with his mood, cognitive
function, and fatigue. Ms. Carman did not change her opinion on
cross-examination.

Derek Nordin, vocational rehabilitation consultant

[145]     Derek
Nordin interviewed Stirling on August 19, 2014, reviewed various medical
reports, clinical records, educational records, and had Stirling complete a
vocational test battery. In his report dated January 26, 2015, Mr. Nordin makes
the following points:

·       even
if Stirling completes university, that is not necessarily a good prognostic
indicator that he has the ability to cope with the ongoing demands of
competitive employment as an engineer, or in another high cognitive demand
profession or career;

·       given
the severity of Stirling’s TBI, and the fact that he was 16 years old when the
accident occurred, he has no pre-injury work experience. If a person does not
have some work skills to fall back on, there are no other skill sets to rely
on;

·       many
individuals who have suffered TBIs successfully complete post-secondary
education in often demanding programs, but have substantial challenges in the
workplace. The real work environment has significantly more challenges than the
school environment, and does not allow for the kinds of accommodations that
schools allow;

·       there
are individuals with only mild TBIs who cannot cope with competitive
employment;

·       Stirling
will have difficulty maintaining employment as an engineer, or in any other
high cognitive demand occupation, without substantial accommodation, which is
unlikely;

·       according
to the 2011 National Household Survey Estimates of Employment and Employment
Incomes, the average annual earnings for males who work full time full year as
civil engineers in British Columbia is $107,860 (2015 dollars).

Dr. Roy O’Shaughnessy, psychiatrist

[146]    
Dr. Roy O’Shaughnessy was asked by the defendant to provide an
independent psychiatric examination to determine whether Stirling has suffered
any mental disorder as a result of the accident. Dr. O’Shaughnessy met with
Stirling on February 2, 2010 when Stirling was in grade 12. He has not seen him
since. In his report dated March 16, 2010 Dr. O’Shaughnessy states that
Stirling showed no signs or symptoms of any psychiatric illness such as mood
disorder, or anxiety disorder and diagnosed him as having a cognitive disorder
not otherwise specified secondary to head injury. He stated:

The head injury was significant. … Overall, I was impressed
that he has had a very good recovery cognitively although he still is clearly
left with some degree of cognitive impairment.

Psychiatrically, there do not appear to be any signs or
symptoms of any significant or major psychiatric illness.

At this point, I do not think he requires any psychiatric
intervention or treatment per se. …. I am impressed that this is a
very motivated and directed young man who has clear goals and is able to set
his priorities accordingly. He is doing well academically despite the cognitive
impairment and simply puts in greater effort to achieve his results. I have no
doubt that he does indeed experience some cognitive impairment causing him to
work harder to attain the same grades he enjoyed before the accident.

There will always be some increased risk of development of
mental disorders in a young man who has experienced a head injury of this
magnitude.

[Underline emphasis added.]

[147]    
Dr. O’Shaughnessy was subsequently requested to review the reports of the
experts relied on by the plaintiff as well as other clinical records and
Stirling’s UBCO academic transcript. In his response report dated March 12,
2015 Dr. O’Shaughnessy states:

I understand from the other
reports that there is concern that he may not be able to work as an engineer.
The basis for this is not clear to me, bearing in mind that he is doing
actually quite well in university with grades that are above class average. I
could not understand the occupational therapy opinion that he would not be able
to meet the working competency or criteria for a working engineer, but I would
defer to others more skilled and knowledgeable in the area of engineering.

[148]    
At trial, he was questioned on that statement and testified:

Q What are — who are those others
to which you’re referring?

A       Engineers
obviously would be better. Maybe I’ll clarify. When you look at his performance,
he has done, actually, very well, and I recognize that he has to work harder to
do well. I noted that when I first saw him in 2010. But if you look at his
grades he’s actually doing very well. In fact every single grade he’s above the
class average in marks. His cognitive testing is really showing only very mild
difficulties. I just couldn’t understand how an occupational therapist could
take that information and conclude he was not able to work in the chosen field.
It just didn’t make any sense scientifically.

[149]     In
cross-examination Dr. O’Shaughnessy agreed with the following statements:

·      
he described Stirling as being “highly motivated” because he
thought that was “significant”;

·      
Stirling has the kind of personality that strives to excel and is
prepared to put in the necessary time and effort to achieve success;

·      
Stirling is “certainly more successful than people without that
degree of drive and motivation”;

·      
Stirling “will certainly do better than other kids with similar
IQs with less motivation”;

·      
he is not so certain that Stirling is perfectionistic, but he is
the “typical A-type personality that strives for and drives to success”; being
the typical A-type personality was “an asset both before and after” the
accident;

·      
a lot of Stirling’s self-esteem is wrapped up in success – he
measures his worth based on his achievements.

[150]     Dr.
O’Shaughnessy then testified:

Q      Doctor,
if the cognitive problems as a result of the brain injury limit or hinder
Stirling Grassick and what he is able to achieve in his life, does that value system
and personality not become a liability for him?

A       Generally
not. What you want to see is — I mean, if there are things you can’t do, then
you need to help them find things they can. So you still do the same drive,
motivation, find something that’s giving them a sense of meaning in their life.
If you’re continuing to be frustrated at desiring something yet not have the
ability to achieve it, yes, that’s going to be an ongoing stressor that would
induce depression. But otherwise no.

Q      Would
it be fair to say that the key to maintaining his long-term psychiatric health
is ensuring that goals he sets are realistically achievable by him?

A  Oh,
sure.

Q      Doctor,
in terms of your opinion about the way in which to maximize this young man’s
mental health over the balance of his life, would you agree that the first
thing that has to be done is he has to be given the opportunity to have a
balanced life with time for marriage and children, which he said he is
interested in, and with time for social and recreational activities as part of
his life?

A       Yes.

Q      Would
you agree that in addition to setting aside the time and energy for the family
and social and ability to deal with crises in his life? And to give you an
example, illness to his parents, death of his parents, marriage problems,
health problems within his family, to his wife and children. Does he need to
have that reserve to deal with those on an emotional basis?

A       Yes.

Q      And
lastly, and I think you’ve already agreed to this, he needs to set his goals,
his work goals and his work demands, at a level that’s going to assure him
success as opposed to failure and frustration?

A       Yes.

Dr. Peter Rees, neurologist

[151]     Dr. Rees
saw Stirling on January 17, 2011. In his report dated March 17, 2011, Dr. Rees
makes the following statements:

·       Stirling’s
GCS score of 9 “obtained after 30 minutes, qualifies his brain injury as being
‘moderate’ at best and on the borderline of moderate/severe at worst”;

·       a
series of even mild brain injuries can have cumulative, permanent cognitive and
behavioral sequelae;

·       there
is no doubt that the low neurocognitive scores for processing speed and common
sense judgment were new since the accident.

[152]     The
defendant emphasizes that Dr. Rees in his report states that Stirling told him
that before the accident he was thinking of a career in mountain biking or
baseball.

[153]     Dr. Rees
was also asked to review the plaintiff’s expert reports, and in his response
report dated February 17, 2015, Dr. Rees reiterates Dr. Bishop’s findings
that following the accident, Stirling developed an “inadequately treated
anxiety disorder as well as depression”.

[154]    
On cross-examination, Dr. Rees said that he agrees with the following
passage from Brain Injury Medicine: Principles and Practice: Lora L.
Thaxton and Amish R. Patel, “Sleep Disturbances: Epidemiology, Assessment, and
Treatment” in Nathan D. Zasler, Douglas I. Katz & Ross D. Zafonte, eds, Brain
Injury Medicine: Principles and Practice (New York: Demos, 2007) 557 at
557:

Patients [who] have suffered a
brain injury usually will experience difficulties in many realms of their lives
including personal, professional, social, and avocational. Insomnia and sleep
disturbances may compound these difficulties due to the fact that disordered
sleep can have adverse behavioral and cognitive consequences.

[155]     Dr. Rees
also agrees with the following:

·       a
brain injury is believed to cause or contribute to the disappearance of deep
sleep and a shortening of the total sleep time;

·       depression
and anxiety is fairly common in those who have suffered a TBI; and

·       a
neuropsychological assessment can pick up subtle cognitive difficulties that
cannot be picked up on a clinical assessment.

Dr. Gary Nix, educational consultant

[156]     Dr. Nix
obtained a Ph.D. in special education from the University in Oregon in 1971, and
for the next 10 years taught special education with an emphasis on the hearing
impaired. Since 1979 he has been the president of Gary W. Nix & Associates
Ltd. which provides educational consultation services for various ministries
and school districts, primarily for those who are learning disabled, and those
in the native population who are having difficulties in school, and helps to
identify appropriate educational programs. Dr. Nix is also director of three
private educational clinics in the Lower Mainland that provide tutoring to
special needs students, or those who are primarily learning disabled.

[157]    
Dr. Nix provided a report dated January 23, 2015 and a response report
dated March 9, 2015. In his report dated January 23, 2015, Dr. Nix opines:

It is my opinion that the Plaintiff’s current capacity is
at a level which would be expected given his pre-injury functioning and his
continued completion of course overloads at the A/B level at UBCO. He has
demonstrated academic success in a demanding program (Engineering). The
Plaintiff has fully recovered from or accommodated to any residual impairment,
if any.

[Italics emphasis by Dr. Nix.]

[158]     Dr. Nix
also opines that Stirling will successfully complete his degree program in
engineering, his academic achievement is at a level that qualifies him for
entry into a Master’s degree program, if he wants to do so, his occupational
interest and abilities are well aligned, he is well suited for training and
employment and engineering, but his one concern was Stirling’s high level of
anxiety.

[159]     I give Dr.
Nix’s opinion little weight. He is not a medical expert, he has no expertise in
the needs or difficulties of those who have suffered a moderately severe TBI.
His opinion amounts to little more than stating that based on Stirling’s past
educational performance at university, he has done well, and he should continue
to do well.

Dr. H.E. Hawk, orthopaedic surgeon

[160]     Dr. Hawk
concludes in his report of November 18, 2010 that as a result of the accident,
Stirling sustained a cerebral concussion, soft tissue injuries to his head,
lower back and left buttock and thigh. He sustained a mid-shaft fracture of his
left femur which was displaced. Since the two intramedullary rods were removed
in May 2001, “his fracture has continued to fully mature.” Stirling reported
that when he first began jogging, he developed left shin splints after running
for approximately 15 minutes. However, the shin splints healed in the summer of
2010.

g. Damages

1. General Damages

[161]     The
plaintiff seeks an award of non-pecuniary damages or general damages of
$250,000. The defendant contends that an appropriate award of general damages
is in the range of between $100,000 to $150,000.

[162]    
An award for general damages should not be measured by the seriousness
of the injury but rather on its ability to ameliorate the individual’s loss: Lindal
v Lindal, [1981] 2 S.C.R. 629 at p. 637. The factors to consider when
assessing general damages are set out in the oft-cited comments of Madam
Justice Kirkpatrick in Stapley v. Hejslet, 2006 BCCA 34, at para. 46.

[163]     Stirling
was only 16 years old at the time of the accident. He had just started grade
11. He was driven and excelled academically, recreationally and socially. He
had an exceptionally bright future ahead of him. As a result of the accident, Stirling
suffered contusions and abrasions of his left hip and leg and a broken femur,
which healed uneventfully. More significantly are his ongoing symptoms, a
result of the moderately severe TBI, that continue and will continue to
negatively affect every aspect of his life.

[164]     Because of
Stirling’s brain injury he is no longer the same person; he is a changed
person. He knows that he is a changed person, and not for the better. That is a
terrible thing for a young man to endure.

[165]     Dr.
O’Shaughnessy stated succinctly: “…every time you’ve got a blow to the head it
exposes the entire brain”, and   “…if you’ve got brain damage it’s obviously
lifelong. It’s not like a broken bone that heals and is stronger than it was
prior to the facture”. Quite the opposite. Symptoms from a TBI may worsen over time.
Stirling’s symptoms from his TBI, including anxiety and depression have
worsened over time as his academic program and work co-ops become more
demanding. Stirling still lives at home with his parents. Life will become even
more demanding for him when he leaves home, and must look after himself, work,
and hopefully, a family. He can barely cope now.

[166]     The
defendant argues that Stirling has made a good recovery, and if there are
remaining deficits, they are very minor and likely relate to a pre-existing
cognitive deficit for verbal/auditory learning. Stirling’s perception of his
cognitive weaknesses is an exaggeration of reality. His ongoing issue is
anxiety which causes him to impose a very high expectation of himself, and his
perfectionist nature, both which pre-date the accident.

[167]     In my view,
the defendant’s argument on this point completely ignores the preponderance of
the evidence and minimizes or ignores Stirling’s residual deficits. None of the
experts suggest that Stirling’s symptoms of depression and anxiety, or his cognitive
impairment relate to a pre-existing cognitive deficit for verbal/auditory
learning. In addition to cognitive impairments, stress, and an anxiety
disorder, Stirling suffers from depression, sleep difficulties, fatigue, an
adjustment disorder, memory issues, and difficulty multi-tasking.

[168]    
Stirling’s emotional suffering resulting from his brain injury is
pronounced. He suffers from a sense of loss of his former self. He no longer
leads a life that resembles his former life. Stirling was asked how it affects
him when he thinks back to how he was before the accident. He painfully and
slowly said:

Everyday I’m reminded of how
significant of an effect my cognitive issue have on my life and because of
that, I’m constantly haunted by the realization of just how great I could have
been if what happened had not happened.  A lot about me changed because of the
accident, but one thing that hasn’t changed is the high expectations that I
have for myself.  The difference is that no matter how hard I work, how much I
give up, I’m just not meeting them anymore.  It’s just torture.  I wanted to be
great.  I used to be great.  I could have been great.  Now I have to give up so
much; I feel like I have to give up everything to be at best average.  I don’t
want to be average.  It just makes me sick.  I don’t know if that’s something
I’ll ever been able to accept.

[169]    
The parties rely on extensive case authorities, but each case is
of course dependant on its facts. In this case, I consider an
award of general damages in the amount of $220,000 to be appropriate.

2. Future Care Costs

[170]    
Stirling seeks future care costs totaling $65,532. With the exception of
counselling, the defendant disagrees with all of the costs claimed. However, I
find all of the future care costs claimed find are recommended and supported by
the evidence of the experts. I award $65,532 for future care
costs.

3. Special Damages

[171]     The
plaintiff claims special damages totaling $11,378.94. The defendant only
disputes the February 27, 2015 account of Ms. Littleford for $1,128 on the
basis that she provided services for Stirling early on, and was “called back in
for litigation purposes”. However, I find that Ms. Littleford has continued to
monitor Stirling’s academic progress, and the claim for account is reasonable.
I award special damages in the amount of $11,378.94.

4. In-Trust Claim

[172]     Stirling
seeks $10,000 for an in-trust claim on behalf of his parents Eric and Heather
Grassick.

[173]    
The Court of Appeal in Bradley v. Bath, 2010 BCCA 10, stated at
para. 43:

[43]  An in-trust award
is one made to a plaintiff in trust for one or more of his or her family
members, who are not named as parties to the action, as compensation to the
family members for additional work done by them as a result of the impaired
capacity of the plaintiff to perform housekeeping chores or to care for
themselves. It was affirmed as a recoverable award by this Court in Kroeker
v. Jansen (1995), 123 D.L.R. (4th) 652, 4 B.C.L.R. (3d) 178 (B.C. C.A.).

[174]     One of the
factors to be considered in determining whether an in-trust award should be
made, is whether the services rendered by a family member is over and above
what would be expected from the family relationship: Bystedt v. Hay,
2001 BCSC 1735, at para. 180.

[175]     Following
the accident, Mr. and Mrs. Grassick stayed in the hospital while Stirling was
in ICU, and Mr. Grassick remained with him after he was transferred to the
children’s ward. When he returned home, Mr. Grassick set up a queen sized bed
in the living room so that Stirling would not have to go up and down the
stairs.

[176]     Since the
accident and up to the present, Mr. and Mrs. Grassick do not give Stirling “a
lot of extra things to do” around the house.  He makes his lunch, but does not
have to “worry about meals” or “every day living activities” – which I assumed
meant grocery shopping, laundry, or housekeeping and yardwork – because they
want him to be able “to concentrate on school”.

[177]     There is
no doubt that Mr. and Mrs. Grassick are extremely concerned for their son, want
only the best for him, and do whatever they can to help him. I could not help
but gain the impression that they suffer watching Stirling suffer.

[178]     However, the
evidence does not satisfy what is required to support an in-trust award. I
accept the defendant’s argument that the time spent by Mr. and Mrs. Grassick in
caring for Stirling did not exceed what one would normally expect in a family
relationship. I make no award for an in-trust claim.

5. Loss of Future Earning Capacity

[179]     The most
contentious issue in this case, is loss of future earning capacity. The
defendant argues that the claim for loss of earning capacity has not been made
out as the plaintiff has failed to establish a “substantial likelihood that his
future earnings will be reduced as opposed to may be reduced.

[180]    
The principles governing an award of for loss of earning capacity are
set out in Rosvold v. Dunlop, 2001 BCCA 1, at paras. 8-11. A plaintiff
must prove there is a real and substantial possibility of a future event
leading to a loss of income. The plaintiff may quantify the loss of earnings on
an earnings approach or a capital asset approach: Perren v. Lalari, 2010
BCCA 140 at para. 32.

[181]     Stirling
was injured when he was just 16 years old. He was very smart, athletic,
energetic, driven, highly competitive and highly motivated. He excelled
academically. He obtained excellent marks with little effort. Being average was
not good enough for Stirling before the accident; it is not good enough for him
after the accident. He is driven to excel. He is a perfectionist by nature.

[182]     Although
Stirling was only a teenager at the time of the accident, he was mature for his
age, and had a reasonably clear idea of what he wanted to do after high school.
He wanted to be a civil engineer. As he has progressed through university, and
worked during his co-op terms, he decided he wants to work as a civil engineer
in “upper management. That is consistent with Stirling’s competitive attitude
and drive to excel.

[183]     I do not
accept the defendant’s argument that but for the accident, Stirling would have
pursued a career in mountain biking like his friend Casey Groves who continued
with biking and professional competitions. Stirling has not remained in touch
with Casey for the last few years. He does not know whether he attended
university, or is riding full time or part time. What Stirling knows about
Casey, he has learned from his Facebook page: Casey worked “at some sort of car
garage or oil change place.” Stirling’s ambitions go far beyond that.

[184]     I also do
not agree with the defendant’s suggestion that Stirling’s ambition to become an
engineer only occurred after this litigation was commenced and after he was
seen by a number of experts. Mr. Grassick’s unchallenged evidence that before
the accident, Stirling mentioned to him on a couple of occasions that he wanted
to be an engineer. This is also consistent with Ms. Littleford’s notes
made during a phone conversation she had with Mrs. Grassick at the end of
December 2008 that Stirling has “talked about being an Engineer”. This
proceeding was not commenced until May 15, 2014.

[185]     I find
based on all of the evidence that before the accident, Stirling was doing what
he loved to do: riding. If he became good enough to compete, he might have
competed for a time, but he also wanted to become an engineer. Being the completive
and driven person he is, I conclude that there is a real and substantial
possibility that he would not have taken any time off between high school and
university, and he would have taken the steps to becoming a professional
engineer, or similar professional career.

[186]     I further
find that Stirling would not have been content to be an “average” civil
engineer. Stirling’s sense of self and confidence comes from being successful
at what he does. He would have continued as he had before the accident, to excel
in his endeavours, and to be above average. He would have done what it takes to
obtain a position as an upper management engineer, or a position that would
have earned him a salary greater than what the average engineer earns.

[187]     As a
result of the accident, Stirling suffers from a lifelong traumatic brain injury
that is moderate at best, and on the borderline of moderate/severe at worst. He
struggles with cognitive deficits to his memory, processing speed, cognitive
inefficiencies, and fatigue. He makes mistakes towards the end of the day, as
he fatigues with sedentary cognitive tasks. He has now developed an anxiety
disorder, and suffers anxiety to vary degrees as well as depression.

[188]     I find on
all of the evidence that Stirling will find it difficult to work as a
professional engineer, and he will find it difficult to maintain full time
employment. Over time, it will become more difficult for him to obtain and
maintain full time employment.

[189]     The
defendant in argument, detailed each and every mark or grade that Stirling has
achieved since the accident to argue that he has excelled academically and
succeeded in his co-ops. The defendant argues that Stirling has no limitation
on his ability to work as an engineer other than his own perceived limitations
and unrealistic notion of how successful he would be, absent the accident. 
Absent the accident, he would still have put in the same time and effort to
succeed as he has. The defendant relies on Dr. O’Shaughnessy’s evidence that
Stirling is doing quite well in university with above average grades, and he
does not understand the opinion of the occupational therapist, Ms. Carman, that
he would be unable to meet the competency criteria for a working engineer.

[190]     Dr.
O’Shaughnessy’s doubt – if I can call it that – can be explained. While he had
the results of Ms. Carman’s tests, and her opinion, he did not have her
evidence relating to the tests themselves.

[191]     Dr. Miller
opined that the impact of Stirling’s neuropsychological deficits on his ability
to function may not be readily apparent. That is because at university he has
time to think and process information, he uses various compensatory strategies,
and he does well academically. His cognitive deficits, including his reduced
processing speed, cognitive inefficiency, and some elements of reasoning are
not likely to be obvious unless he is observed in situations where “the need to
marshal cognitive resources and ability is more immediate”.

[192]     Ms. Carman
did just that. During the third day of testing, Ms. Carman observed Stirling in
a shopping mall, performing what I would describe as real work in real time.
Ms. Carman administered the standardized multiple errands test which is a test
of executive function. She provided Stirling with an instruction sheet setting
out a range of tasks that he had to organize. The tasks included purchasing a
certain number of items from a store, finding a headline in a newspaper,
picking up a certain brochure, going into another store and asking questions to
obtain certain information – all within time constraints. There were other
rules or constraints, such as staying on the top level of the mall, not
purchasing more than two items from one store, and meeting at a specific
location at a specific time. Throughout the testing, Ms. Carman followed
Stirling, and noted how he approached and completed the tasks, as well as the
number and type of errors he made.

[193]     After the
test, Stirling was quite emotional and said to Ms. Carman, “I really sucked at
this.” He was upset at the number of errors he made, he did not plan his tasks
well, and he was unable to complete the tasks successfully. He told Ms. Carman
that is often how he feels at work when there are deadlines and pressures on
him to perform well.

[194]     Ms. Carman
opines that Stirling has a lot of skills and thinks that he can work, but he
has memory difficulties, he fatigues when faced with cognitive tasks, and his
accuracy declines towards the end of the day when he is fatigued. Even though
his cognitive changes may be relatively small, they impact on his ability to
meet the demands of an employer.

[195]     The
concerns that Stirling’s academic success do not directly translate to success
in the real working environment, was echoed by others. Dr. Anton stated
that Stirling is performing well academically, but only by focusing almost
exclusively on his studies to the near exclusion of social and recreational
activities, and he has had little opportunity to test himself in the working
world. Dr. Smith states that Stirling may be doing well academically, but
he is exhausted, has yet to try living independently from his parents, work in
a responsible demanding full time job – at the same time make significant
mistakes at work – and support himself and his family. In not so many words,
Dr. Smith is saying that there is a real possibility that Stirling cannot
do that and he may have to find part time employment, or significantly lower
his job expectations.

[196]     Dr.
Bishop’s opinion, Mr. Nordin’s opinion and Ms. Iceton’s are similar. Ms. Iceton
testified that “this is the tip of the iceberg”, this is what he does in a
“structure setting, not in the more difficult dynamic outside world”. Mr. Nordin
stated that the pressure of the work world are significantly higher than an academic
environment, and that Stirling’s academic accomplishments are not necessarily a
good prognostic indicator of his ability to meet the ongoing demands of a
competitively employed engineer, or other related high cognitive demand
employment.

[197]     I do not
accept the defendant’s argument that Stirling’s part-time employment as a
server in a retirement home and his work during his co-op placements
demonstrate that he has an ability to do well in the workplace. Quite the
opposite. His work at Maple Reinders is a forecast of the difficulties he will
have with maintaining employment.

[198]     While
Stirling suffers only mild cognitive impairments, they are potent for him. His
cognitive impairments directly impact his drive to excel. Perhaps if he was
content to be less than average at everything he does, it would not matter so
much. But he was not, and is not content to be being average.

[199]     Predicting
what his future earning capacity would have been, but for the accident, is a
complex task and the potential range of his earnings is broad. The plaintiff
relies on the expert report of Darren W. Benning, economist, for the estimated
lump sum present value of lifetime earnings of a British Columbia male civil
engineer. The defendant did not require Mr. Benning to attend for
cross-examination.

[200]     There is a
range of possibilities for Stirling; from being, for lack of a better term, an
average or 50th percentile engineer earning from May 1, 2016 when he is
expected to graduate, through to age 65. Based on the present value of life-time
earnings, $2,399,956. However, that figure – as do all of the figures provided
by Mr. Benning – includes 24.2 percent reduction for the average labour
market contingencies: unemployment, part-time work and part-year work. Without
those contingencies, the figure for the 50th percentile engineer is $3,166,172.

[201]     Mr.
Benning has also provided figures for engineering managers. With the labour
market contingencies, the figures are $3,149,822 for the average engineering
manager, and $3,868,882, and $4,880,954 for the 80th and 90th percentiles, respectively.
Without the labour contingencies, the figures are $4,155,437, $5,104,065 and
$6,439,253.

[202]     I conclude
that there is a real and substantial possibility that Stirling would have
worked for a number of years as an “average” engineer, before moving up the
ranks of engineers. He would have worked full time, and his professional career
would be an important part of his life.  He would have succeeded in becoming
one of the higher paid engineers, a well above average engineer, or an upper
management engineer.

[203]     Stirling may,
like many professionals, work past the age of 65. On the other hand, he may,
like other professionals, decide to retire early and do other things. However,
given Stirling before the accident, and now, I do not think he is the kind of
person who would choose to work part year or part time.

[204]     The
plaintiff seeks damages for loss earning capacity in the sum of $3 million. I
find this sum to be both reasonable to him and to the defendant. I award $3
million for loss of future earning capacity.

H. Conclusion

[205]     The
plaintiff is entitled to damages as follows:

[206]    
The parties may make submissions with respect to costs, management fees
and taxes.

“Loo J.”

_______________________________

The Honourable Madam Justice Loo