IN THE SUPREME COURT OF BRITISH COLUMBIA - Nixon Wenger

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation: McCluskey v. Desilets, 2013 BCSC 1147

Date: 20130626 Docket: VER-S-M-47019

Registry: Vernon

Between:

Leighton McCluskey Plaintiff

And:

Brendan Charles Desilets Defendants

Before: The Honourable Mr. Justice Steeves

Reasons for Judgment

Counsel for the Plaintiff: M. Yawney B. Dick

Counsel for the Defendant: T.L. Rempel

Place and Date of Trial: Vernon, B.C. March 11-15, 18-22, 2013

Place and Date of Judgment: Vernon, B.C. June 26, 2013

McCluskey v. Desilets Page 2

Introduction

[1] The plaintiff seeks damages for a number of injuries, including brain injury, as

a result of a serious motor vehicle accident on October 10, 2008. He was a

passenger in a vehicle driven by the defendant. Another passenger died in the

accident.

[2] The plaintiff has only a few vivid memories of the accident and what occurred

afterwards. He does not remember a number of things from the time of the accident

including whether he was wearing a seat belt. He testified that his usual practice was

to wear one. He suffered a number of injuries that are not in dispute, including a

broken neck.

[3] The plaintiff submits that the injuries from the accident have caused him to

give up the sports he played before the accident and an apprenticeship he was

about to start in cabinet making. He also describes a “flat” emotional state most of

the time since the accident that has affected his personal life. His family and friends

also describe this blunted effect and other changes such as forgetfulness and

frustration with tasks he enjoyed doing before the 2008 accident. The plaintiff also

submits that, although he attempted a return to work, he is now unable to be

gainfully employed. Among other problems, he is unable to focus on tasks of even

medium complexity.

[4] The plaintiff seeks significant non-pecuniary and special damages. The

plaintiff also seeks significant damages for future care and future income loss. A

claim is also made for in-trust family damages to compensate the plaintiff’s family for

looking after him after the accident. Special damages are agreed.

[5] The defendant raises issues of liability. He says that any issue of negligence

was decided in his favour when he was acquitted of criminal charges. An expert

engineering report relied on by the plaintiff is also challenged because information in

the report was not adduced at trial as evidence. As well, taken as a whole, the

defendant submits that the evidence does not support a finding of negligence


against him. And, if there is a finding of liability against the defendant, he submits

that the plaintiff was contributorily negligent because he failed to wear his seat belt.

[6] In the event the defendant is found liable, he accepts that some of the injuries

to the plaintiff were caused by the October 2008 accident. However, causation is

disputed with respect to mild traumatic brain injury (“MTBI”), post-traumatic stress

disorder (“PTSD”), injuries to the right ear and a compression fracture at T8.

Entitlement to some non-pecuniary damages is acknowledged. Past income loss is

also accepted but, according to the defendant, the plaintiff failed to mitigate some of

that loss. Future care and in-trust home care are disputed by the defendant. Future

income loss may be appropriate but with some limitations.

[7] In summary, liability and quantum are in dispute.

Background

[8] An agreed facts document was submitted. The following includes those facts

and the evidence given at trial.

[9] The plaintiff was 19 years old at the time of the 2008 accident. As of the date

of trial, he was 23 years old.

[10] The plaintiff grew up in Lumby, a rural community east of Vernon, British

Columbia. His parents separated when he was six years old and his mother

remarried. He and his natural father continued a strong relationship and they shared

activities such as hunting and fishing. The plaintiff’s mother remarried and she and

the plaintiff’s stepfather live on a farm. The plaintiff lived there before the accident

and he lives there now. On both sides of this farm are other farms owned by the

brothers of the plaintiff’s mother.

[11] The plaintiff completed high school in Lumby. He was an average student

with respect to academic subjects, but, while in high school, he developed an

aptitude for working with wood and working outdoors. In his last year of high school

he did very well in a forestry elective including achieving high marks and an award.


He had some talent as a baseball player but stopped playing competitively at age 17

because he wanted to focus on working. He played slow-pitch baseball after that. He

also played hockey as a goalie with some success. He was an active outdoorsman

including hiking, hunting and fishing. One week before the October 2008 accident he

shot his first moose on a hunting trip in northeast B.C. with his father. Hunting trips

were an annual event with the plaintiff, his father and his grandfather.

[12] After high school, the plaintiff started to work in a sheet metal shop, building

log homes and working on a farm. At the time of the accident he was employed in a

cabinet-making shop, Harris Cabinets, as a helper. He was paid $13.50 per hour. On

his own and prior to this work, he had built some wooden furniture and had a

portfolio of his work. This and the impression he made in an interview got him the

work in the cabinet shop. The owner of the shop, Terry Harris, testified that one of

the reasons the plaintiff was hired was because of his outgoing and positive

personality.

[13] Mr. Harris described the plaintiff at work as mild-mannered, respectful, and

having a good sense of humour. Mr. Harris also testified that the plaintiff did his work

well and he was well liked. He learned things quickly, he retained information very

well and he “handed you the tool before you asked for it.” According to Mr. Harris,

this was rare. Mr. Harris also testified that the plaintiff was athletic and strong and

more than able to handle the physical aspects of the work. Apart from constructing

cabinets themselves, the work involved loading/unloading materials at the shop as

well as transporting and installing cabinets at various locations.

[14] The plaintiff testified that, before the accident, he intended to ask Mr. Harris if

he could become an apprentice. He did not discuss this with Mr. Harris. Mr. Harris

testified that, if he had been asked, he would have been “all over that.” According to

Mr. Harris, the plaintiff was a valuable employee as a helper and he would have

been successful as a journeyman cabinet maker. A journeyman carpenter in his

shop is currently paid in the $23-25 per hour range.


[15] The evidence of the plaintiff’s employment earnings from 2006 to 2011, is as

follows:

2006 $3,032

2007 (graduation from high school in June)

$4,360

2008 (accident on October 10, 2008)

$19,223

2009 (unsuccessful return to work)

$1,946

2010 $1

2011 $0

The accident

[16] There is more than one source in evidence for information about the tragedy

that happened on October 10, 2008. There is a statement the plaintiff gave to his

counsel and this is dated October 22, 2008. There is also a statement given by the

plaintiff to the police on October 24, 2008. There are reports and photographs from

the police and the insurance carrier for the defendant’s vehicle.

[17] The defendant was charged under the Criminal Code, R.S.C. 1985, c. C-46

with dangerous operation of a motor vehicle causing bodily harm and dangerous

driving causing death (one of the passengers died from the accident) and there is

evidence from the trial of the defendant. The defendant was acquitted. Finally, there

is the evidence of the plaintiff in this action, the defendant, a passenger and the

attending police officer as to what happened and there are the above agreed facts.

[18] I summarize all of the evidence about the accident as follows.

[19] Sometime in the evening of Friday, October 10, 2008, the plaintiff picked up

his girlfriend, Haley Bosk, in his pickup truck. They stopped at the home of a friend


of the plaintiff and then they went to the Lumby hockey arena to see the defendant,

who was playing hockey with family and friends. The plaintiff, Ms. Bosk and the

defendant arranged to meet at a party at a place called Harris Creek. This is near

Lumby, and it is a place where young people in the town regularly gather for social

events. The defendant’s girlfriend may have been part of this discussion.

[20] The plaintiff and his girlfriend proceeded to the party in the plaintiff’s pickup,

and they arrived at Harris Creek about 8:30 or 9:00 PM. Some people had already

arrived at the party; in her evidence Ms. Bosk estimated there were about five

people there when they arrived. At one point the plaintiff took his truck with a friend

to pick up firewood and he was gone for about half an hour. By the time he returned

there were 20-30 people at the party. Alcohol was consumed and the plaintiff

estimates that he drank two to three beers. It is submitted, on behalf of the

defendant, that the plaintiff consumed more than this. The defendant testified that he

did not drink any alcohol that night.

[21] The defendant also arrived at the party driving his own pickup truck. This was

a 1998 Dodge RAM extended cab that the defendant had purchased ten days

before. Prior to the accident the defendant knew that the speedometer did not work

and that the tires were in poor condition and needed replacing. The defendant

testified that he used the tachometer to regulate his speed. The truck had the usual

seating arrangements in the front, while the seats in the rear were so-called “jump

seats.” The vehicle had after-market modifications that increased the power of the

engine.

[22] The defendant had an “N” driver’s license that, among other restrictions,

limited him to one non-family passenger. He testified that the period of time that he

was restricted to an N license had passed and he could have applied for a regular

license. He did not make that application because he did not need a regular license

for going to work and his other uses of the vehicle. The plaintiff testified that he was

not sure what kind of license the defendant had.


[23] The plaintiff does not remember when the defendant arrived at the party and

he does not remember observing the defendant drinking alcohol. Ms. Bosk also

testified that she did not see the defendant drinking alcohol. At approximately 11:00

PM, according to the plaintiff, the defendant called over and asked him if he and

Ms. Bosk wanted to go for a ride into town. The plaintiff and Ms. Bosk agreed and

went to the defendant’s vehicle. When they arrived four other people were already in

the vehicle. The defendant was driving, his girlfriend was beside him and there were

two other passengers in the rear seats. The plaintiff sat in the right rear seat, beside

the door, and Ms. Bosk sat in the right front passenger seat. The plaintiff is about six

feet in height. They left Harris Creek heading for Lumby.

[24] The road was dry although, in discovery, the defendant testified that the air

was damp. There was some disagreement about the temperature. The defendant

thought it was below zero but an RCMP constable testified that the temperature was

10 degrees centigrade when he started his shift at 6:00 PM the same date.

[25] The plaintiff, in his evidence in this trial and in his other statements, could not

recall whether he wore a seatbelt or not. He testified that it was his usual practice to

wear a seatbelt. The seatbelt in the defendant’s vehicle, at the right rear seat, is a

three point safety belt with the shoulder part of the belt coming across the right

shoulder of the passenger. The defendant testified that he wore his seat belt; Ms.

Bosk testified that she did not wear a belt.

[26] The road the vehicle travelled on is generally straight in a rural area with

farms and fields intersected by roads and streams. There was music playing in the

truck and conversation among the people in the vehicle. The plaintiff testified that he

had driven with the defendant in the latter’s vehicle before and he was confident

about the defendant’s driving. He was in the back seat and he did not remember

feeling unsafe with the defendant’s driving. The plaintiff also testified that he was not

good at estimating speed and he does not recall the defendant’s vehicle speeding

prior to the accident. Ms. Bosk, the plaintiff’s girlfriend at the time, was sitting in the

front seat. She testified that she believed that the defendant was speeding and she


said so at the time. She did not tell or ask the defendant to slow down. She noticed

that the speedometer was not working.

[27] The standard speed limit for the road is 80 kilometers per hour. About 15

minutes into the trip the vehicle approached a curve and narrowing of the road

before a bridge. A sign at the curve indicated that the speed limit was 60 kilometers

per hour. The bridge deck was wooden and, in discovery, the defendant agreed it

had less traction than pavement. He also agreed that there was a chance that the

wooden deck of the bridge would have been icy. However, the evidence of an

RCMP constable who attended the scene was that, as above, the temperature was

above zero. As well, the constable went onto the bridge deck as part of his

investigation of the accident the same night and he did not find it was icy when he

dragged the rubber sole of his shoe on it. A subsequent engineering report

estimated that the vehicle was traveling in excess of 120 kilometers per hour. In

discovery, the defendant estimated the speed as between 85 and 95 kilometers per

hour.

[28] The plaintiff testified that he could not recall very much about what happened

during the accident. The evidence of the defendant and Ms. Bosk is that the vehicle

slid to the left, the defendant corrected by steering right, it veered to the left again,

the defendant lost control and the vehicle left the road on the right side. Expert and

police reports describe the vehicle tumbling more than once and the expert engineer

thought it also rolled. Ms. Bosk thought it might have tumbled end to end. It landed

on its wheels, facing the opposite direction it was heading before the accident. It was

severely damaged and ultimately written off.

[29] The plaintiff’s recollection in his evidence of the accident was limited to the

following brief but apparently vivid memories:

a) The plaintiff remembered seeing the bridge ahead of the vehicle and

the vehicle losing control and starting to slide, first counter-clockwise then

clockwise. He saw the grass of a large ditch in the headlights, and the vehicle

then hit the side of the ditch.


b) The plaintiff next remembers his hands in front of him when he crawled

out of the vehicle and then he “blacked out.”

c) The plaintiff remembers standing around the vehicle and Ms. Bosk

asking him if he was okay. He realized that his bottom front teeth were all

folded in. He collapsed in the grass and passed out again.

d) He next remembers a firefighter standing over him and he lost

consciousness again. He could not say how long he was unconscious.

e) The plaintiff remembers hearing sirens.

f) He next remembers lying on a stretcher and someone telling him to

breathe slowly because “this will hurt.” Something was pushed hard in his

ribs and he blacked out.

g) He was lying in a bright room, apparently in the Vernon Hospital, and

shaking because it was very cold. He remembers having a CT scan and

wearing oxygen mask. He blacked out again.

h) He could see his mother out the corner of his eye. He was choking on

vomit. A nurse tore off the oxygen mask and he vomited. He blacked out

again.

[30] Ms. Bosk testified that she also blacked out and she came to in the ditch, in

front of the vehicle. All of the people in the vehicle were thrown clear during the

accident; two were on the road and the rest were in the ditch near the vehicle. The

defendant was on the ground outside the driver’s door. He testified that he blacked

out. When he came to some people were there and he told them he was alright and

they should look after the other people. Ms. Bosk testified that the plaintiff was on

the ground at the right rear of the vehicle, between the vehicle and the road.

[31] Ms. Bosk was able to move about in the semi-dark (some other vehicles had

stopped on the road and their lights were on) and one of the other people in the

vehicle, who was on the road, was making a cell phone call for help. The RCMP


constable who attended the scene testified that police records indicate that the call

was received at 10:52 PM, he was dispatched at 10:55 PM and he arrived at the

scene at 10:58 PM. His description of the scene, in terms of the location of the

vehicle and the location of the people who had been in the car, was the same as that

of Ms. Bosk.

[32] Immediately after the accident the vehicle’s engine was still running, and the

person on the road who had made the cell phone call for help asked Ms. Bosk to go

and turn it off. She moved off the road toward the truck, into the ditch, but the truck

engine stalled on its own. She noticed two other passengers; one said she was

alright and the other did not respond to Ms. Bosk. She then wondered where the

plaintiff was and she found him in the ditch, at the right rear of the vehicle. He made

no response to his name being called or being touched by Ms. Bosk. She went back

onto the road and she could not recall what she did next. As will be seen, whether

the plaintiff was unconscious immediately after the accident is significant for the

diagnosis of MTBI.

[33] The next thing Ms. Bosk remembered in her evidence was seeing the plaintiff

standing. She recalled he took three to five steps but he was stumbling. She went to

him, told him to lie down and stayed with him until the paramedics arrived. She

described the plaintiff as very confused and not knowing what was going on. She

testified that he asked her if she had been driving and whether she was in the

vehicle.

[34] The police and ambulance attended the scene. The ambulance crew

recorded the plaintiff has having a Glasgow Coma Score (“GCS”) of 14, normal

being 15. This is a routine test administered by ambulance attendants at the scenes

of accidents and is discussed in more detail below in the context of the diagnosis of

MTBI.

[35] The plaintiff was taken by ambulance to the hospital in Vernon, British

Columbia. Another passenger was brought to the hospital in Vernon and was treated

in the bed beside the plaintiff, separated by a cloth screen. That person was


pronounced dead at the hospital. The defendant driver also had injuries including a

broken right arm, jaw and collar bone and a ruptured spleen. A CT scan revealed

that he had a broken cervical spine and he was immediately transported to the

hospital in Kelowna.

After the accident

[36] A summary of the injuries claimed by the plaintiff as a result of the October

2008 accident is follows,

a) MTBI;

b) fracture of C-2 vertebrae in three places (“hangman’s fracture”);

c) fractured right front lower jaw/lower anterior dental alveolar bone;

d) complete disruption of the right temporomandular joint (“TMJ”);

e) pain and injury to both TMJs;

f) fractured right upper jaw near the ear

g) blood in both nostrils, lips and right ear;

h) right auditory canal with blood clotting and conductive hearing loss;

i) chipped and cracked teeth;

j) bottom teeth, left and right, pushed back into oral cavity;

k) T8 compression fracture;

l) injury to the left shoulder;

m) back pain and limitations in the back;

n) L1 transverse process fracture;

o) right lung contusion;


p) left lung contusion with hemorrhaging;

q) collapsed left lung:

r) broken left rib;

s) isolated spleen;

t) renal contusion;

u) PTSD;

v) esophageal reflux disorder;

w) sleep disturbances;

x) headaches;

y) depression;

z) fatigue and weakness;

aa) chronic neck and limitations; and

bb) chronic pain limitations.

[37] The defendant accepts that all of the injuries, except the ongoing MTBI,

PTSD, injuries to the right ear and a compression fracture at T8 were the result of

the accident. There are also differences about the extent of the injuries to the plaintiff

and the damages he is entitled to.

[38] There are photographs of the plaintiff in a hospital bed immediately after the

accident. These show the plaintiff wearing a neck brace and then in a “halo brace”.

In the first of the pictures there is a contusion on his right shoulder that he attributes

to the seat belt he was wearing during the accident.


[39] The plaintiff was in Kelowna hospital for about two weeks (after being

immediately transferred from the Vernon hospital). He was fitted with the halo brace

in order to keep his neck rigid, and this remained in place for three months. The

installation of the halo brace required screws into the skull and there was infection at

the sites of the screws at one point. Because of the broken jaw, it was wired shut

and the jaw wires were very painful.

[40] About three days after the accident the plaintiff’s mother, Sheila McCluskey,

and a counsellor, told the plaintiff about the death of one of the other passengers in

the vehicle. This person was a childhood friend of the plaintiff and they had played

on the same hockey team. Ms. McCluskey testified that the plaintiff was sad and

shocked when he was told of the death. The plaintiff could not attend the funeral

because he was in hospital.

[41] After the halo brace was removed, there was a period of time when the

plaintiff’s neck muscles were de-conditioned and he had difficulty supporting his

head. The wires in the jaw were removed after about nine weeks but the jaw

remained difficult to open for some time. He continues to have problems with jaw

mobility. Upon release from the hospital the plaintiff returned to live with his mother

and step-father on their farm.

[42] The mother, Ms. McCluskey, testified about how she looked after the plaintiff.

His bedroom was changed so that he could move around with his halo brace and a

television was put in the room. Because his jaw was wired shut, food had to be

pureed, as did medication. He had stomach reflux problems that caused him pain

and made eating and sleeping difficult. He had to be bathed but he was always

sweaty and itchy, especially from the halo brace. Clothes had to be modified to

accommodate the brace. Ms. McCluskey described trying to keep the plaintiff

“mentally okay” and she observed that he would “just sit.” She had never seen him

do that before; she was used to him always being active with sports, work and with

friends. She also described him as easily frustrated after the accident and doing

things he had not done before such as swearing at his sister.


[43] About one month after the accident the plaintiff’s elderly grandfather died. The

two had been close and they had gone hunting together. The grandfather had been

ill before he passed away, and the plaintiff testified that the death was not welcome

news but he was not surprised. Ms. McCluskey described the plaintiff as being sad

upon hearing the news of the death. The defendant submits this event was traumatic

and contributed to the subsequent psychological problems of the plaintiff.

[44] Ms. McCluskey described the plaintiff as more mobile when the halo brace

was removed so that, for example, he could go for walks. However, she also testified

that his mood did not greatly improve. He did not socialize like he did before the

accident and generally did not do the things that a young adult would do. When he

did do things, he was very guarded as if he did not know what he was supposed to

do.

[45] About three months after the accident the plaintiff’s girlfriend broke up with

him. They had been going out for three years. Ms. McCluskey testified that she was

struck by the plaintiff’s reaction. Instead of being heartbroken, all he said was “yeah,

yeah.” He was sad but there was no other reaction.

[46] The plaintiff improved and was able to do more things during the year after

the accident but Ms. McCluskey continued to care for him. She testified that, early in

the year, his mood did not greatly improve and she had to be there emotionally for

him. She managed his many medical and rehabilitation appointments at first and

then she expected him eventually to take them on himself. However, he was

forgetful to the point that the family bought him a cell phone and entered his

appointments in the phone so there would be a reminder when the phone gave a

noise prompt. Ms. McCluskey described this in her evidence as a drastic change

because, before the accident, the plaintiff managed work, sports and a busy social

life on his own. As an example of the change, Ms. McCluskey, testified that after the

accident she told a gathering of friends an amusing family story involving the plaintiff

at a hockey game when he was younger. It was a story the family had laughed about

many times before but the plaintiff did not remember it. At that point Ms. McCluskey


realized that there were going to be more problems with the plaintiff’s recovery than

she thought.

[47] Other evidence about the plaintiff after the accident is discussed below

including observations by his family and friends of his current limitations, his attempt

at a return to work and his return to school.

[48] When he was able, the plaintiff commenced a rehabilitation program. This

included regular visits and treatment with occupational therapists and

physiotherapists. It also included activities such as work simulations. He attempted a

mathematics course in May 2012 at Okanagan College, but he withdrew because he

became frustrated with the level of the work. He is currently taking another

mathematics course at Open Door school where he gets more individualized

attention, and he is doing well. There was also an unsuccessful attempt to return to

work at Harris Cabinets. These events are discussed in more detail below.

Expert reports

[49] The evidence includes expert evidence in three areas: engineering evidence

about the accident and whether the plaintiff was wearing a seatbelt; medical and

psychological expert evidence as to whether he had MTBI at the time of the October

2008 injury and, if so, whether he still suffers from that condition; and medical and

occupational therapy evidence about the amount of future care and future wage

loss. The plaintiff had nine experts and the defendant four experts.

Engineering: Plaintiff

[50] The plaintiffs retained an automotive engineer, Andrew Craig. His report is

dated September 10, 2009, and the defendant did not request Mr. Craig to be

available for cross-examination.

[51] Mr. Craig is a certified automotive engineer, and he works in the fields of

accident investigation, reconstruction and technical examination. He was a senior

investigator with the police service in the United Kingdom and has been working in

the private area of accident investigation since 1990.


[52] The defendant takes issue with some aspects of Mr. Craig’s report. The

following are challenged: his use of photographs taken by the RCMP, his

observations of tire marks on the roadway, his measurement of the speed of other

vehicles after the accident and his use of a RCMP investigation report by Corporal

B. Nightingale and dated March 4, 2009. These are discussed below.

[53] Mr. Craig examined the defendant’s vehicle after the accident and the

accident site. He concluded that the defendant’s vehicle rolled as well as tumbled,

by which he meant that the vehicle rolled both laterally and longitudinally. The

vehicle’s engine was damaged and pushed rearward by impact, and there were

other mechanical consequences of the accident. Neither the driver’s nor the front

seat passenger’s airbags had deployed, and the airbag control module was missing

from the vehicle. Mr. Craig opined that it was possible that the module had been

removed by an RCMP examiner after the accident.

[54] Mr. Craig visited the accident site, he took photographs and he used

photographs from Google Earth. He identified a “series of faint tire scuff marks and

red/orange paint marks present on the road surface to the west side of the bridge,

commencing approximately in the center of the roadway.” He investigated the road

on either side of the bridge. He tracked a “series of furrows” on the north side of the

road and identified them as being in a straight line from the marks on the road.

Mr. Craig also drove the subject road and he was able to comfortably negotiate the

curve before the bridge at approximately 70 km/h. Using his own calculations he

calculated the defendant’s vehicle traveling at a speed of approximately 120 km/h

immediately before the bridge.

[55] By way of a summary of his opinion Mr. Craig wrote the following:

1. The loss of control experienced by Mr. Desilets [the defendant] as he drove his Dodge pick-up truck westbound on Creighton Valley Road at approximately 22:52 hours on October 10, 2008 did not result from a mechanical failure or from a tire failure.

2. The cause of the loss of control was Mr. Desilets attempting to negotiate a section of road with alternating left and right curves and an undulating section of pavement and bridge deck at excessive speed.


3. RCMP reconstruction performed by Cpl. Nightingale and my own investigation indicate that the speed of the Dodge pick-up truck when it commenced to leave evidential tire marks on the pavement was in excess of between approximately 125km/h and approximately 128 Km/h.

4. The speed limit on that section of Creighton Valley Road is 80 Km/h and the advisory speed limit for the left (counter-clockwise) curve on immediate approach to the crash site is 60 Km/h. That bend can be comfortably negotiated at speeds of at least 80 Km/h by light vehicles such as a Dodge pick-up truck without incident.

[56] The plaintiffs also submitted a second engineering report from Amrit Toor,

dated January 28, 2013. Dr. Toor is a mechanical engineer with a PhD in that

subject. He has provided expert evidence in accident reconstruction in a number of

jurisdictions including British Columbia.

[57] Dr. Toor’s report was in response to an expert report delivered by the

defendant to plaintiff. However, during the trial, the defendant withdrew its expert

report. The subject matter of both reports was whether the plaintiff was wearing a

seatbelt at the time of the accident. Dr. Toor’s response report was not withdrawn by

the plaintiff, and he was not cross-examined by the defendant.

[58] Dr. Toor’s opinion was that the use of seatbelts in this accident would likely

not have severely affected the motion of the plaintiff. This is because of the complex

and changing forces applied to the passengers during the lateral as well as

longitudinal rollover of the vehicle during the accident. The damage to the rear of the

vehicle was of reasonable severity, and it was likely that it landed on the rear while it

was inverted. This meant that the occupants were displaced towards the rear and

they were moved upwards by the impact, away from the seat belts. The rear window

was missing from the damaged vehicle. Further:

. . . when the uniqueness of this rollover event and the associated contacts are considered, then the rearwards ejection of the rear seat occupants, with or without the use of seatbelts, cannot be ruled out,… [F]ront seat occupant’s [sic] path towards the rear would be obstructed by the front seat backs.

[59] Dr. Toor cited and discussed two previous studies of seatbelts and rollover

collisions (Hight P.V. et al, “Injury Mechanisms in Rollover Concessions”, SAE

#720966, Society of Automotive Engineers, Warrendale, PA, 1972; Parenteau et al,


“Driver Injuries in U.S. Single Event Rollovers”, SAE 2000-01-0633, Society of

Automotive Engineers, Warrendale, PA) as follows:

A study by Hight, et al., considered 139 rolled vehicles containing 225 occupants. The study addressed contained, ejected, and partially ejected occupants. The Hight study found that in rollover collisions that did not involve an additional impact, one the [sic] 44 occupants was partly ejected. Another study by Parenteau, et al., presented similar conclusions. The Parenteau publication considered drivers of single event rollover collisions with a total of over 233,000 sample occupants. The Parenteau study found that in rollover collisions that did not involve an additional impact, the rate of ejection was less than 1% for belted occupants. Bearing in mind that both the Hight and Parenteau studies differ from the subject incident; the subject rollover involved a number of severe ground impacts. Although the rate of restrained occupant ejection in rollover collisions is low, the subject rollover event would likely be an exception from typical rollover statistics, due to multiple severe impacts in the subject rollover collision.

Dr. Toor’s opinion was:

There is no technical assessment or analysis to determine how the applied forces to Mr. McCluskey (rear right passenger) would have differed for the properly restrained or unrestrained scenarios. Without this type of technical analysis, it cannot be technically determined if Mr. McCluskey was properly restrained or not. Furthermore, it cannot be determined if there was any benefit if properly restrained or unrestrained.

Dr. H. Anton (rehabilitation and physical medicine)

[60] Dr. H.A. Anton is an expert in physical medicine and rehabilitation for the

plaintiff. Among other things, his clinical practice includes medical and rehabilitation

management and the diagnosis of patients with neurological disorders including

stroke, spinal cord injury and brain injury. He is a member of the faculty of medicine

at the University of British Columbia.

[61] Dr. Anton provided three reports dated September 9, 2010 (the plaintiff was

examined the same day), December 7, 2012 (assessment on July 23, 2012) and

February 1, 2012. The latter report was an addendum to the previous reports that

discussed witness statements. He was cross-examined by the defendant.


[62] In his September 9, 2010, report Dr. Anton included a lengthy opinion about

the plaintiff’s multiple injuries. A MRI scan showed degenerative changes at T9-10

and a slight compression at T8. Dr. Anton opined that, “Those changes are in

keeping with prior trauma, but it is not clear if that occurred at the time of the

accident.” He also made the following comments:

Based on the documentation of an apparent period of loss of consciousness and amnesia for events after the accident (post-traumatic amnesia), it is probable Mr. McCluskey suffered a mild traumatic brain injury (TBI). Subsequent neuropsychological testing showed some findings that were not specific but consistent with residual effects of a TBI as well as other problems.

Mr. McCluskey described some persisting cognitive symptoms when I saw him. It may be that those reflect residual effects of a TBI. Alternatively, those could reflect psychological factors and/or chronic pain.

Mr. McCluskey's father described changes in his personality after the accident, including a reduced level of emotion, decreased motivation and possibly increased use of alcohol. As with his cognitive symptoms, those could reflect residual effects of a TBI, pain or a psychological disorder like depression.

It is my opinion that Mr. McCluskey's situation has been complicated by his psychological reaction to the accident. Though he may not satisfy diagnostic criteria for either a depressive disorder or post-traumatic stress disorder, his presentation suggests features of both.

Mr. McCluskey also reported snoring and apparent problems with sleep. Sleep apnea could affect his cognitive function and level of alertness during the day. I recommend that he have further investigations for sleep apnea.

Anterior pituitary injuries may occur in association with TBI and contribute to fatigue and cognitive complaints. I recommend Mr. McCluskey have screening blood work for that. That should include a serum testosterone, IGF-I, TSH, T4, LH, FSH, prolactin, and early morning Cortisol.

Recovery after TBI is generally felt to occur for up to two years. I recommend repeat neuropsychological evaluation at two years post accident. The goals would be to determine if there have been any improvements and to provide more information about the possible cause of Mr. McCluskey's cognitive symptoms and other complaints.

I am concerned about Mr. McCluskey's psychological condition. I recommend assessment by a psychiatrist for advice about diagnosis and pharmacological treatment. I also recommend further counselling by a registered psychologist be made available to him.

Mr. McCluskey has probably not yet reached the point of maximum medical improvement. However, given the duration of his pain and his unsuccessful return to work trial, it is my opinion Mr. McCluskey will not be able to return to


his former work as a cabinetmaker or any similar words. That means he will need to pursue other work of a physically less demanding nature.

[63] In his report of December 7, 2012, Dr. Anton provided a further opinion

following his second examination of the plaintiff on July 23, 2012. He also had

reports from Dr. Ann Pirolli, a neuropsychologist. Dr. Anton stated that his previous

opinion of September 9, 2010, was unchanged. He made the following comments

about MTBI and PTSD:

It remains my opinion that Mr. McCluskey probably suffered a mild traumatic brain injury (MTBI) in the accident.

When I first saw Mr. McCluskey, it was my impression his situation had been complicated by his psychological reaction to the accident. He reported his depressed mood was better but acknowledged anxiety and flashbacks. It is probable psychological factors continue to contribute to his current problems.

Most persons who suffer MTBIs make a good recovery with no residual problems. Mr. McCluskey had further neuropsychological evaluation by Dr. Pirolli, who described persistent cognitive sequelae. She also expressed the opinion Mr. McCluskey had symptoms from Post Traumatic Stress Disorder (PTSD) in the severe range and had executive dysfunction.

Mr. McCluskey's present cognitive complaints are not specific. It is difficult to neatly separate the relative contribution of all potential factors to his cognitive complaints, but it is my opinion those arise from the interactive effects of residual problems from a MTBI, psychological factors, and pain.

There is definitely a relationship between PTSD and MTBI. PTSD appears to be more common in persons with MTBI but PTSD can also contribute to and overlap with cognitive problems in persons with MTBI.

[64] Dr. Anton also opined about the plaintiff’s vocational ability and future training

as follows:

In my earlier report I expressed the opinion Mr. McCluskey at that time had probably not yet reached the point of maximum medical improvement. He is closer to that point now but it is still difficult to predict his ultimate level of function. That mainly reflects the fact he has not yet had an opportunity to attempt living on his own nor has he done much in the way of academic upgrading or work trials.

It is still my opinion Mr. McCluskey will not be able to return to his former work as a cabinetmaker or any physically demanding work. The dilemma is that any residual cognitive problems (whatever their cause) and persisting psychological dysfunction would make it more difficult for him to participate in light or sedentary work. His employability has been significantly reduced.


Even if he is able to return to work, he will be at greater risk for periods of unemployment.

Mr. McCluskey is motivated to work but, following his recent negative experience when he attempted to upgrade his math, wants to work without doing any further upgrading in his education. If he is going to pursue retraining or further education, it will need to be something practical and consistent with his interests.

[65] In his report of February 1, 2013, Dr. Anton considered a written statement

from Ms. Bosk, the plaintiff’s girlfriend at the time of the accident and a passenger in

the defendant’s vehicle. He stated that his opinion was unchanged that the plaintiff’s

cognitive complaints arose from the effects of multiple problems, including residual

problems from MTBI.

[66] In cross-examination Dr. Anton denied that he relied on Dr. Pirolli’s opinion

that the plaintiff had suffered a MTBI. He relied on his examination, the history taken,

the statements of others about the plaintiff and other information (trauma to the

head, the low GCS) to form his own opinion. He stated that he did not need to rely

on Dr. Pirolli’s opinion.

[67] Dr. Anton emphasized the need to consider all of the information in

combination. With regards to GCS (Glasgow Coma Score) he acknowledged it was

widely used to diagnose MTBI but it had its limitations. For example, it lacks

sensitivity because a score of 13 - 15 can be used for a finding of MTBI but 15 is

normal. A more useful indicator would be amnesia following the accident, although

this is often reported long after its occurrence. And, a CT scan is almost always

normal for MTBI; a finding in a scan would be more supportive of a severe traumatic

brain injury.

[68] The approach used by Dr. Anton was to consider: the GSC taken within thirty

minutes of the injury; any periods of amnesia; loss or altered consciousness or

confusion; and neurological deficits (but these can be transient). He testified that it is

also important to rule out any other explanations such as drugs, alcohol or the

effects of pain. Recovery from MTBI varies greatly among people, but Dr. Anton


opined that most patients will recover within two weeks to two years from the date of

injury.

[69] Dr. Anton was questioned about Dr. Pirolli’s comments about the plaintiff’s

reduced executive function. He defined executive function as the high level of

cognitive processes that interprets basic functions for complex behaviour. An

example of this is a judgment to do or not do something where more than one factor

has to be considered. He acknowledged the value of psychological testing, but he

also pointed out that, by themselves, they can produce deficits. And a patient can be

over-tested with negative results that are unreliable for a valid diagnosis. Dr. Anton

emphasized the need to go beyond testing and, for example, interview a patient’s

family, friends and co-workers to assess whether there had been any changes in a

patient.

[70] He said that the literature demonstrated that about 12-15% of patients with

MTBI will not recover and his opinion was that the plaintiff was in that group. With

regards to employability, Dr. Anton was of the view that the plaintiff could do some

work but, as set out in his report, the opportunities were significantly reduced.

Further, because of his limited marketable skills the plaintiff will be at more risk of

unemployment.

Dr. Ann Pirolli (neuropsychology)

[71] Dr. Pirolli is an expert in neuropsychology on behalf of the plaintiff. She has a

PhD in clinical neuropsychology and she has a clinical practice in this field. She has

worked for many years with the G.F. Strong Rehabilitation Centre in Vancouver, with

the Kelowna General Hospital and in private practice.

[72] Dr. Pirolli provided three reports, dated July 28, 2009, November 30, 2010

and November 29, 2010. She also provided a response report dated December 11,

2012, to respond to a report of an expert of the defendant’s, Dr. Derryck Smith.

Dr. Smith’s report and evidence is discussed below. Dr. Pirolli was cross-examined.


[73] In her report of July 28, 2010, Dr. Pirolli recorded her assessment and

opinions from consultations on June 19, July 20 and 27, 2009. As part of her

assumptions she noted the GCS of 14 by the ambulance attendants. As well, the

attendants described the plaintiff as confused, and they said it was not known if he

had been unconscious. There were no abnormalities from a brain scan.

[74] The plaintiff’s complaints in June and July 2009 were difficulty with memory,

difficulty showing emotion (but brought to tears by sad movies) and reminders of the

October 2008 accident from certain activities such as being a passenger in a car. He

did not think he had difficulty reading. The plaintiff’s parents were interviewed and

they reported the plaintiff as being lethargic, being unaware of his surroundings, not

showing emotion, and getting frustrated more easily and then swearing. The history

taken included a possible concussion at age 11 when the plaintiff was hit on the

head with a baseball. He had a headache for a few days then, and there were no

lasting symptoms.

[75] A number of tests were administered and these included ones that indicated

the plaintiff was giving an adequate or better effort. Overall working memory index

was in the low average range. As well:

Mr. McCluskey was asked to learn and recall two short stories. His ability to recall the details from these stories was in the mildly impaired and low average ranges for short and long delays, respectively. He benefitted from repetition of one of the stories. Mr. McCluskey was also asked to learn and recall a long list of words. His ability to recall the list after hearing it just once was in the average range. His recall over 5 learning trials was in the superior range. He demonstrated a good strategy for learning and a good learning slope. He demonstrated good across trial recall consistency. His ability to recall the list following short and long delays was in the average and high average ranges, respectively. He did not benefit from cuing at these recall periods. He made several intrusion errors (saying a word was on the list when it was not). These words were often from a distracter list that was administered mid-task. He often repeated words he had already recalled. Mr. McCluskey's ability to recognize the list words amongst distracters was in the average range.

Mr. McCluskey was asked to recall a line drawing he had copied, 3 and 30 minutes later. His results were in the low average range. There were some perseverations of details in his recall trials. He was also asked to learn and recall several pictures. His ability to recall the details of the pictures


immediately after they had been presented and following a long delay were in the average and low average ranges, respectively.

On a task requiring Mr. McCluskey to place blocks into patterns in accordance to a model, he performed in the average range. His approach to this task was organized. When asked to copy a design, he performed in the low average range. There were some inaccuracies and he did not use the most efficient approach to planning the drawing. An overall index score of perceptual organization skills was in the average range.

Mr. McCluskey was administered several tasks involving executive skills. On a series of questions of verbal abstract reasoning, Mr. McCluskey was in the average range. On a series of questions of common sense judgement and reasoning, he was in the average range. His ability to sequence a series pictures into stories with an understanding of humour and social norms was in the average range. On a problem-solving task in which he had to choose the correct response from several provided, he was in the average range. On another problem-solving task in which he had to generate his own solutions and respond to feedback, he was in the average range. His ability to generate words to phonetic or categorical cues was in the average and very superior ranges, respectively. There were some rule-breaking errors noted on the latter task.

Mr. McCluskey was asked to complete a questionnaire regarding executive functioning as he perceived it to be prior to and following the accident. Prior to the accident he felt there were no executive problems. Following the accident, he noted clinically significant levels of Apathy (e.g., problems with initiation, drive, persistence, energy, interest; blunted affect). There was also a relative increase (but not into clinically significant ranges) with respect to Executive thinking (e.g., attention, working memory, planning, problem-solving). Mr. McCluskey's mother was also asked to complete this questionnaire as she viewed her son to be prior to and following the accident. She noted no problems with executive functioning prior to the accident. Following the accident, there were no clinically significant problems evident although there were relative elevations with respect to Apathy and Executive thinking.

Mr. McCluskey was administered a battery of tests assessing general intellectual functioning. His overall score was in the average range. His more verbal and more visual/visual-motor scales were also in the average range. These scores were in keeping with what would be predicted for Mr. McCluskey based on his age, education, and an estimation task. Mr. McCluskey's vocabulary knowledge and estimated reading level were also in the average range.

Mr. McCluskey was asked to complete a questionnaire tapping symptoms associated with trauma. Validity indicators suggested there was a strong tendency for him to represent a positive picture of himself and deny problems. This could be a result of defensiveness or avoidance or psychological issues. The results are considered invalid due to this positive bias.

Mr. McCluskey was asked to complete a lengthy questionnaire assessing mood, personality traits, and coping. His results were considered valid


although he was again found to be defensive or unwilling to admit to psychological distress. His results suggested he is likely experiencing some tension and low mood, which are not overtly expressed. He may be more depressed than is evident. He likely feels fired, inefficient, and lethargic. He may feel he is being treated unfairly in life. He may tend to think in concrete terms and focus on physical symptoms rather than psychological problems. He may lack insight. He worries about his health. He is likely self-confident and extraverted.

[reproduced as written]

[76] Dr. Pirolli’s conclusions and recommendations were as follows:

Conclusions/Recommendations: From the information available to me at the time of this assessment, including background clinical records, interviews, and test results, it is my opinion that Mr. McCluskey may have suffered a Mild Traumatic Brain Injury (MTBI) at the time of the accident. Factors contributing to this diagnosis include the fact that he may have lost consciousness at the time of the accident; his initial GCS was between 13-15; he appeared confused in the time immediately after the accident; he has no memory for the accident and only patchy recall of the events shortly after the accident; and he and his family have noticed some cognitive and behavioural changes since that time. What is not clear from the information I have, is to what degree Mr. McCluskey's alcohol consumption on the evening of the accident contributed to his initial GCS and to what degree Mr. McCluskey's medication following the accident (while in hospital) impacted his ability to recall information. It is also possible that emotional shock and physical pain interfered with his ability to take in information at the time of the accident. With all this in mind, however, I do not feel a MTBI can be ruled out in Mr. McCluskey's case.

It is also my opinion that Mr. McCluskey has been significantly affected from a psychologically [sic] perspective by the accident. Unfortunately, he has a tendency to avoid, deny, down-play, or lack insight into the degree of his psychological problems. There is certainly an element of Post Traumatic Stress Disorder (PTSD), although it is not clear whether he meets full criteria for the diagnosis because of his lack of insight/denial about his emotional state. He admits to fear of being paralyzed shortly after the accident. He also indicated an awareness that he could have died. Of course, there was the death of his friend in the accident. Each of these events could have led to the development of PTSD. He presents with symptoms of avoidance (of feelings, thoughts, reminders of the accident); detachment or numbing of emotions; changes in socializing; diminished interest/initiative/motivation and energy; anxiety and fear (e.g., of re-injury to his neck; being a passenger in a vehicle); irritability; hypervigilence [sic]; and possibly some re-living of aspects of the accident. I do not feel he has had the opportunity to adequately grieve the impact this accident and the loss of his friend. It is my opinion he is more depressed than he realizes.

Current cognitive test results showed a pattern of fluctuating attention and speed of processing, as well as lower than expected working memory


abilities. These problems would impact his ability to remember and do other cognitive tasks in his day-to-day life. These results are consistent with a MTBI. For most individuals, the MTBI symptoms resolve in a matter of days to months. Some people, however, have lingering problem [sic] for years. Given it has only been 8 months since Mr. McCluskey's accident, his difficulties with attention, speed of processing, and working memory may be directly related to the MTBI. It is also possible, however, that Mr. McCluskey's depression and anxiety are significantly interfering with his ability to attend and think quickly. Pain could also interfere with his attention and concentration. At this time, it is likely that a combination of all these factors (recovering MTBI symptoms, depression/anxiety, and pain) are contributing to Mr. McCluskey's cognitive problems.

Since Mr. McCluskey did not present with any psychological or cognitive concerns prior to his accident, it is my opinion that his current problems as outlined above are the direct result of the accident and its sequelae. The deaths of his friends and grandfather following the accident likely exacerbated his psychological problems but I do not think these losses were the cause of his problems initially.

[77] I also reproduce Dr. Pirolli’s definition of a MTBI as follows,

A Mild Traumatic Brain Injury (MTBI) is defined as "an acute brain injury resulting from mechanical energy to the head from external forces. Operational criteria for clinical identification include: (i) 1 or more of the following; confusion or disorientation, loss of consciousness of 30 minutes or less, post traumatic amnesia for less than 24 hours, and/or other transient neurological abnormalities such as focal signs, seizures, and intracranial lesions not requiring surgery; (ii) Glasgow Coma Scale score of 13 to 15 after 30 minutes post-injury or later upon presentation for healthcare." Carrol et al (2004) Journal of Rehabilitation Medicine, 43_(Suppl), 113-125 (for the World Health Organization Collaborating Centre for Neurotrauma Task Force on Mild Traumatic brain Injury).

[78] As will be seen, there is more than one definition of MTBI, and there is

disagreement among some experts about which to use. This is discussed below.

[79] After further consultations on October 29, November 26, 30, 2010, Dr. Pirolli

produced her second report dated November 30, 2010. The purpose was to

comment on the plaintiff’s progress, diagnosis and prognosis. She also had reports

from Dr. Patricia Neilsen, a psychologist, Dr. R. Sahjpaul, a neurosurgeon, and a

functional evaluation report that was part of a rehabilitation program. Some different

tests were administered compared with the first consultations and, as will be seen,


the defendant challenges Dr. Pirolli‘s report on that basis. The conclusions and

recommendations in her report of November 30, 2010 were as follows:

Conclusions/Recommendations: Based on my detailed examination of Mr. McCluskey, including interviews, test results, and relevant documentation review, I offer the following:

1. It is my opinion that, based on the balance of probabilities, Mr. McCluskey likely suffered a mild traumatic brain injury at the time of his accident. It is also my opinion that Mr. McCluskey developed psychological difficulties in terms of PTSD symptoms and depression from his accident;

2. The current assessment results show Mr. McCluskey has made significant improvements in all areas of cognitive functioning since the last assessment and that his cognitive skills now appear to be in the ranges expected for him. This improvement most likely represents the normal temporal recovery process of the mild traumatic brain injury;

3. The current assessment results indicate Mr. McCluskey continues to have significant difficulties with PTSD symptoms and depression and that he likely does not have full insight into the degree of these problems and the impact they have on his life. Since the last assessment, however, he appears to have gained some insight;

4. Mr. McCluskey reports he continues to have day-to-day difficulties with forgetfulness, follow through, word finding, lethargy, fluctuating motivation, anxiety when in a vehicle, and neck and back discomfort. While he noted that many of these issues are improving with time, his anxiety in vehicles appears to be worsening. His father continues to note problems with forgetfulness, follow through, physical limitations and discomfort, periods of depression, and anxiety in vehicles. Mr. T. McCluskey also expressed concern that his son had been drinking too much and appeared uninterested in dating or relationships. Ms. McCluskey also noted continuing problems with memory, multitasking, self-esteem, frustration, pain, and sleep. She expressed concern about increased alcohol use and decreased attachment in dating relationships;

5. It is my opinion that, although there may have been some recovery from the mild traumatic brain injury since my last assessment, Mr. McCluskey's mood and physical problems continue to significantly impact his functional cognitive abilities, as well as his ability to be emotionally engaged in relationships;

6. Mr. McCluskey indicated he benefited from psychotherapy. While he did gain more insight, he continues to have problems acknowledging the degree of his psychological issues and how they are impacting him on a day-to-day basis. The PTSD symptoms are directly attributable to the accident. His ongoing depression is likely a reflection of the fact that he does not feel productive and engaged in a career. His depression may also be related to his pain and the impact it has on his physical functioning;


7. I would highly recommend that Mr. McCluskey receive further psychotherapy directed at his continuing PTSD symptoms and depression, as well as for pain and sleep management strategies. I would recommend an initial 15 to 20 therapy sessions. For his car related anxiety, he may also benefit from some on-road lessons to assist in desensitization. He may require more therapy sessions at different points in his lifetime. For example, if there is any further deterioration in his physical capabilities or an increase in his pain, this is likely to result in an increase in his depression. If there are any future car accidents or other traumatic experiences, Mr. McCluskey's posttraumatic stress disorder symptoms are likely to re-emerge;

8. I recommend Mr. McCluskey receive vocational counseling to help provide him some direction for a future career;

9. Whether Mr. McCluskey returns to school or a new line of work, he will require the assistance of an occupational therapist to develop appropriate strategies for ongoing functional cognitive and physical problems;

10. Mr. McCluskey remains at risk for increasing depression and anxiety. There is the possibility that he was using alcohol as a coping technique for his mood and pain. His ongoing pain, depression, and anxiety puts him at risk for misuse of substances;

11. Because Mr. McCluskey has had a mild traumatic brain injury, he is at risk for more significant cognitive problems following any subsequent concussions in the future; and

12. With the above recommendations in place, I feel Mr. McCluskey's prognosis is guarded to fair. Without the above therapeutic assistance, his prognosis is poor.

I hope this information is of assistance. If you have any further information that may alter my conclusions or recommendations, please feel free to forward it to me for my review. If you have any further questions, please feel free to contact me.

[80] Dr. Pirolli‘s third report of November 29, 2012 was based on consultations on

November 9, 21, 23 and 28, 2012. Some different tests were administered

compared with the previous consultations, and, as will be seen, the defendant

challenges Dr. Pirolli‘s report on that basis. Her conclusions and recommendations

in the third report are as follows:

1. It is my opinion Mr. McCluskey has persistent sequelae from the MTBI which occurred at the time of his accident in October 2008. Over time, with information from various sources along with the consistency of problems demonstrated on my three assessments, it has become apparent Mr. McCluskey has ongoing executive dysfunction. His problems, as demonstrated in real life and on testing, include: forgetfulness; word finding problems; blunted emotional experience; difficulty staying on task;


distractibility; difficulty providing details in communication; difficulty working without structure or guidance; impulsiveness; difficulty learning from mistakes; problems with planning and organizing; reduced insight; and difficulty following detailed instruction. Furthermore, it would appear that his executive dysfunction is impacting areas that normally would be a strength for him, namely, visual constructive skills and visual problem solving. He also describes some coordination problems and clumsiness;

2. It is my opinion Mr. McCluskey's motivation and enjoyment in life has improved since my previous assessments. He does, however, demonstrate no change with respect to the severity of symptoms related to PTSD. His symptoms in this regard remain in the severe range;

3. It is likely that Mr. McCluskey's ongoing PTSD and pain symptoms are exacerbating some of his cognitive problems. It is my opinion, however, that the type and consistency of cognitive problems demonstrated could not be fully accounted for by the PTSD and pain alone;

4. I highly recommend the involvement of an occupational therapist to continue to assist Mr. McCluskey with cognitive strategies for both day-to-day life and any academic or vocational pursuits. He will need guidance and structure for any academic upgrading. He will require the support of the Disability Office at whatever school he attends. As noted by Dr. Wallace, it will be very important for Mr. McCluskey to experience success in his academic and vocational pursuits so as to prevent a further deterioration in his mood and self-esteem;

5. I recommend Mr. McCluskey receive ongoing psychotherapy from my psychologist knowledgeable in MTBI and the treatment of PTSD. He will need education about his MTBI in an attempt to help him gain insight. His executive dysfunction may make the treatment of his PTSD more difficult. The treatment of PTSD, in general, is difficult and many individuals drop out. I recommend he have a further 20 to 30 therapy sessions at the current cost of $175/session. PTSD is often viewed as a waxing and waning disorder in that it can be less problematic at some times and worse at others. Because of this. Mr. McCluskey is likely to benefit from further therapy sessions at various points throughout his life. At such times, he is likely to require 5 to 10 sessions;

6. Because of Mr. McCluskey’s ongoing cognitive difficulties, he is at risk for developing depression if he struggles to find a suitable career. Also, because of his emotional blunting (due to executive dysfunction), he may struggle in relationships which could lead to increasing depression in the future. If his pain or physical limitations increase as he ages, he is at further risk for developing depression. Psychological treatment will be necessary to assist him if this is the case;

7. Mr. McCluskey would benefit from a review by his family physician with respect to the appropriateness of medication for his ongoing mood difficulties;

8. Mr. McCluskey will need to be cautions with respect to activities which could result in head injury. Subsequent brain injuries could result in more significant impairment compared to if he had not had the MTBI in the 2008


accident. Because Mr. McCluskey does have cognitive difficulties related to this MTBI, he may experience more significant cognitive changes than normal as he ages; and

9. It is my opinion, given the length of time since the accident and the persistence of executive dysfunction noted in his real life and on testing, that Mr. McCluskey’s prognosis with respect to further improvement in cognition is guarded. Without ongoing treatment as recommended above. Mr. McCluskey's prognosis with respect to improvement in mood and adaption to cognitive problems is poor. With the above noted treatment recommendations, his prognosis with respect to his mood and adaption to cognitive problems is guarded to fair.

[81] In her fourth report Dr. Pirolli was responding to the reports of Dr. Smith. She

reviewed the definition of neuropsychology, the qualifications of a neuropsychologist

and the interview process, including the use of collateral informants. A document

from the National Academy of Neuropsychologists (“NAN”) was included that

described different roles of neuropsychology, including diagnosis. She reviewed

MTBI generally, and she explained her use of different tests. She also reviewed

PTSD generally and in the case of the plaintiff as well as his other psychological

issues.

[82] In cross-examination Dr. Pirolli was questioned on a number of issues. She

testified that, according to the literature, generally, GCS would not be affected by

alcohol consumption. At first she thought alcohol might be a confounding factor for

the plaintiff in this case but she learned later that he was not impaired at the time of

the accident. Pain might affect the score but that would be taken into account by the

ambulance crew. She acknowledged that there was a negative CT scan of the brain

but that is not a good indicator of MTBI. There is some recent research that a mild

brain injury could be detectable at a bioscopic level but that would not be seen on a

scan.

[83] Dr. Pirolli was questioned about her use of psychological tests, the average

results on a number of them and whether they were consistent with a MTBI. She

answered that she considers a number of sources for her opinion including self-

reporting and information from others who know the patient. As above she used

different tests in some areas for the three reports. This was done to avoid a practice-


effect but also to focus on certain areas. Dr. Pirolli testified that by the time of the

third report the clear pattern described in her report was apparent.

[84] As above, Dr. Pirolli opined that the plaintiff’s executive functions were

impaired as a result of the October 2008 accident. She described executive function

as including volition, initiative, perseverance, self-awareness, ethics; it is generally

the “CEO of the mind.” It is unrelated to IQ and it includes deciding what it is

necessary to remember and whether something can be forgotten. A significant issue

for the plaintiff is not his inability to generate initiative and start projects but a

problem of reduced motivation after starting them. He has difficulty finishing projects.

[85] The problem areas for the plaintiff, according to Dr. Pirolli, were a blunted

emotional affect, problems with organizing and planning without directions and

structure and the inability to persist to complete a task. As well, he sees things but

does not understand their relevance, he does not always learn from his mistakes, he

is somewhat impulsive and he can be vague because he has problems finding the

appropriate vocabulary. Dr. Pirolli acknowledged that the plaintiff was achieving a

75% average in his math course and that he did not do well on a math test

administered by her. She explained this by saying that the test she administered

used numbers but it was not really a math test. The main purpose was to test

working memory.

[86] Dr. Pirolli was questioned about the finding of a blunted emotional affect and

whether this could be attributed to the death of his grandfather, graduation from high

school and losing his girlfriend. She answered by saying the normal response to

those situations would be grief rather than blunting of emotions.

[87] Dr. Pirolli also identified some specific tasks that the plaintiff had difficulty

with. He had problems planning without direction when he was asked to assemble a

chair from parts. He could do it when he was given a structure and directions, but he

could not do it on his own. Further, he knew he was doing it incorrectly, but he could

not correct it. This was surprising from someone who had made furniture before the

accident. Another example was the plaintiff knowing that his car battery needed to


be replaced but not being able to do anything about it until it failed. As well, he was

an experienced outdoorsman but, after the accident, he struggled to keep track of

markers when he was travelling outdoors that would help him return. Dr. Pirolli

expressed concern that the plaintiff might get lost.

[88] The opinions of Dr. Pirolli included a diagnosis of PTSD as well as MTBI. In

the plaintiff’s case, according to Dr. Pirolli, the causes of his PTSD include the

accident itself, the death of his friend and the fear of being paralyzed when he was

fitted with the halo brace. She said there can be an overlap between PTSD and

MTBI with symptoms such as sleeplessness. She was not sure if headaches were

features of both. Disturbance of executive functions was not a feature of PTSD. It

can include symptoms of reliving the traumatic event (through nightmares, for

example) and avoidance of reminders. There can be hyper-arousal. There is

generally not a good recovery rate as the condition waxes and wanes and there is

risk of recurrence. In contrast, Dr. Pirolli stated that over eighty percent of patients

with MTBI recover after several months. However, about 15% do not recover and

she opined that the plaintiff was in this category.

[89] As below, experts on behalf of the defendant challenge the expertise of a

neuropsychologist to diagnose MTBI. Dr. Pirolli responded to this in her report of

December 11, 2012, by relying on the following 2001 statement from the NAN

(National Academy of Neuropsychology) definition of clinical psychologist”:

A clinical neuropsychologist is a professional within the field of psychology with special expertise in the applied science of brain-behavior relationships. Clinical neuropsychologists use this knowledge in the assessment, diagnosis, treatment, and/or rehabilitation of patients across the lifespan with neurological, medical, neurodevelopmental and psychiatric conditions, as well as other cognitive and learning disorders. The clinical neuropsychologist uses psychological, neurological, cognitive, behavioral, and physiological principles, techniques and tests to evaluate patients' neurocognitive, behavioral, and emotional strengths and weaknesses and their relationship to normal and abnormal central nervous system functioning. The clinical neuropsychologist uses this information and information provided by other medical/healthcare providers to identify and diagnose neurobehavioral disorders, and plan and implement intervention strategies. The specialty of clinical neuropsychology is recognized by the American Psychological Association and the Canadian Psychological Association, Clinical


neuropsychologists are independent practitioners (healthcare providers) of clinical neuropsychology and psychology.

Ms. Dawn Chisholm (occupational therapy)

[90] Ms. Chisholm is an expert for the plaintiff in occupational therapy including

functional capacity as it relates to occupation, daily living and cost of care. She

prepared reports dated May 9, 2012, December 13, 2012, and February 8, 2013. A

functional capacity evaluation of the plaintiff took place on January 26 and 27, 2012.

Ms. Chisolm also reviewed reports from Dr. Anton, Dr. Pirolli, Dr. Neilsen, Dr.

Blasberg (oral medicine), Dr. Wallace and Ms. Splett (a counsellor). Ms. Chisholm

was cross-examined. She prepared her reports based on the medical reports that

described PTSD and ongoing MTBI.

[91] In her report of May 9, 2012, Ms. Chisolm assessed the functional tolerances

of the plaintiff. He could occasionally lift and carry weights in the heavy category to

shoulder height. Lifting overhead was in the light category due to concerns for

shoulder separation. The plaintiff was willing to lift heavier weights despite a

sensation of separation with the shoulder. Below the waist height was assessed to

be in the light category. Frequent lifting above the waist was not assessed due to the

concerns for shoulder separation. The plaintiff had functional balance abilities and

functional crouching and kneeling for short durations. Knee pain reduced tolerance

for low level work. There was a low tolerance to forward trunk bending.

[92] The plaintiff reported he could typically sit for one hour before a position

change was required. However sitting was accompanied with active spine motion

and weight shifting unless he was distracted. Standing abilities were unremarkable

when neutral spine postures were maintained. There was functional walking within

the clinic and home and there was functional stair climbing. Dominant and non-

dominant hand grip strength was average. There was functional manual handling

and dexterity handling and dexterity abilities and manipulation of small, medium and

large parts was often above average. Handling tasks above shoulder height or

requiring prolonged shoulder flexion caused shoulder fatigue and neck flexion

required for handling tasks often increased neck pain.


[93] Ms. Chisolm assessed the plaintiff’s previous functional abilities and

limitations, and she concluded that the acquired brain injury is more limiting of his

participation in daily living activities than his physical concerns. There was

decreased efficiency performing daily living tasks, and this was a strong predictor of

general function within the community. The plaintiff demonstrated difficulty

understanding instructions, applying the instructions correctly and with tasks

requiring organization. His difficulties caused him to become frustrated and then

stuck on how to complete assembly tasks.

[94] Ms. Chisholm thought that problem-solving in daily life activities whether at

home, work or recreationally will be challenging for the plaintiff. In some situations

the plaintiff was given the option of using a posture that would be better for his spine

but he chose to continue using an aggravating forward stoop despite his spinal

symptoms becoming worse. This indicated a decreased insight in how to manage

his injuries. The job demands of the plaintiff’s pre-accident work as a cabinetmaker

were reviewed and the conclusion was that he did not meet the physical job

demands for that position.

[95] Ms. Chisolm’s opinion is that the plaintiff would benefit from further

rehabilitation in several areas including cognitive rehabilitation and management of

day-to-day difficulties. He requires assistance to develop and maintain a home

exercise program, something that is an important part of chronic pain management.

Physiotherapy and vocational counseling are also appropriate.

[96] The functional prognosis, according to Ms. Chisholm, was residual stiffness,

discomfort and neck pain alongside back pain exasperated by activity. The

prognosis for improvement of cognitive and emotional difficulties was there if

recommendations were followed, but it was poor without further therapeutic

assistance. As a result of the brain injury the plaintiff will likely require academic

accommodations, tutoring and planning assistance. The plaintiff will likely require

assistance with living in the community in the moderate to maximal support range.


[97] Ms. Chisholm’s reports set out a detailed analysis for the future care cost of

the plaintiff. These are areas such as medical, aids to daily living,

education/vocational/professional services, household management and

transportation. The defendant challenges the plaintiff’s claim for injuries such as the

MTBI and fracture at T8. The impact of those challenges on future care costs is

discussed below.

Dr. Gordon Wallace (psychology)

[98] Dr. Wallace is an expert for the plaintiff in psychology, and he also has

expertise in vocational rehabilitation. He has a PhD in clinical psychology and he is a

registered rehabilitation professional. He currently operates a private company

providing vocational consulting, and he previously worked at the Workers’

Compensation Board of B.C. as a rehabilitation consultant.

[99] Dr. Wallace was retained to provide an opinion on the plaintiff’s residual

employability potential. He prepared three reports dated February 23, 2011, August

27, 2012, and December 12, 2012. He reviewed reports from Dr. Anton, Dr. Pirolli,

Dr. Neilsen (a psychotherapist) and Dr. Sahjpaul (neurosurgery). He also reviewed

the plaintiff’s public school record. He was cross-examined. His reports included

reference to medical and psychological reports diagnosing MTBI and PTSD.

[100] In his report of February 23, 2011, (based on an assessment on July 5, 2010)

Dr. Wallace concluded that the plaintiff’s reduced physical capabilities indicated that

his pre-accident work as a cabinet maker was no longer a realistic option. Nor was

he competitively employable in other work he had done, working in a sheet metal

shop, building log homes or working on a farm. Because of his limitations, alternative

work outside his previous work experience was considered. A machine operator

position was considered but the work was physically demanding work at first.

Seniority was required to bid on the less physically demanding work of operator. A

truck driver position could be suitable but with significantly reduced physical

demands.


[101] Positions in the low-skilled sales and retail industries were considered by Dr.

Wallace to be within the plaintiff’s capacity with specific positions being self-serve

gas bar attendant, retail sales clerk, rental car clerk and recreational facilities

attendant. However:

. . . many of these low skilled sales and service oriented occupations only offer part-time hours which reduces an individual’s residual earning capacity. Since they do not usually provide strong remuneration and are not considered attractive occupations, they often have a high employee turnover rate.

[102] Dr. Wallace considered alternative occupational options that might be of help

to the plaintiff but requiring additional education and training. His testing was

consistent with that of Dr. Pirolli that the plaintiff’s intellectual abilities were within the

average to low average range. Mathematical skills were particularly poor and he was

a slow but accurate reader. In light of the medium to heavy strength demands of

apprenticeship programs they were not considered viable options.

[103] Formal educational programs were also considered. However, with the

plaintiff’s weaker academic skills, he would need to complete an academic

upgrading program that would allow further assessment of his cognitive capacity to

complete formal educational training. A period of two to three academic semesters

was recommended. At the same time Dr. Wallace thought that a short course of

vocational counseling would be useful. On the assumption that the plaintiff would be

able to improve his academic skills and succeed in formal educational training, Dr.

Wallace concluded that examples of positions open to the plaintiff included

draftsperson; wireless technician; fish, wildlife and recreation technologist; and

operations manager.

[104] Dr. Wallace opinion was that the plaintiff’s medical history could result in

fewer employment opportunities for him.

. . . concerns regarding his ability to maintain competitive employment include not only his ongoing physical concerns but also his cognitive and psychological functioning. The identification of cognitive concerns by Dr. Pirolli (specifically including fluctuating attention and processing speed as well as lower than expected working memory abilities) makes his ability to


complete required job tasks in an efficient and effective manner questionable. Even if he is able to complete a formal education training program, his ability to meet competitive employment requirements has not yet been tested and therefore remains a concern. In addition, issues regarding [the plaintiff’s] apathy and executive functioning (as identified by Dr. Pirolli) raises concerns regarding how they could negatively impact his ability to maintain ongoing competitive employment. In addition, his psychological functioning could also prove detrimental to his ability to meet these basic foundational skills.

[105] Dr. Wallace concluded that it was unlikely that the plaintiff would be

considered competitively unemployable because he does not possess vocational

attributes and abilities that can be utilized in the competitive labour force. It is

“unknown” in what levels of occupational endeavors he will be able to succeed. As

well, his capacity for maintaining ongoing competitive employment is unknown. In

the event that the plaintiff is not able to engage in the competitive labour force,

Dr. Wallace recommended that he become involved in avocational activities which

could satisfy some of his social and psychological needs. This would be volunteer

work.

[106] In his report of August 27, 2012, Dr. Wallace reviewed some new documents

and reports, and he met with the plaintiff again on August 21, 2012. One of these

documents was Dr. Pirolli’s supplemental report of November 20, 2010.

[107] Dr. Wallace noted that the plaintiff had been unsuccessful in an academic

mathematics upgrading course at Okanagan College in May 2012. He described this

as unfortunate, but he did not believe that it necessarily presented an accurate

assessment of the plaintiff’s capacity to complete further training education. Further

academic upgrading was recommended but with additional supports in place. These

included monitoring attendance and progress and a different venue such as the

Open Door Learning Centre. The purpose of these additional supports was to

ensure that the plaintiff had every opportunity to succeed in an upgrading program

and provide a clearer understanding of his capacity to benefit from further formal

education. Diminished self-esteem and self-confidence as a result not feeling

successful in the normal developmental stages of young adulthood was noted.


Further psychotherapy was recommended to address psychological concerns

including PTSD symptoms.

[108] In his report of December 12, 2012, Dr. Wallace had further medical reports

and had met with the plaintiff on November 27, 2012. He was succeeding in a pre-

calculus mathematics course at the Open Door Learning Centre. However he

required considerable assistance from the instructor to learn new material, and there

were cognitive inefficiencies with regards to memory and concentration. Nonetheless

Dr. Wallace concluded that, in order to provide a more financially viable career

future, the plaintiff was best advised to continue his academic upgrading, although

he would require considerable assistance in order to succeed in his studies. In Dr.

Wallace’s opinion the ongoing cognitive inefficiencies and executive function

concerns meant that the plaintiff should not pursue any training programs at the

university level. As well, Dr. Wallace advised against any college level diploma

program directed at managerial positions because he was not confident that the

plaintiff possessed the necessary executive functioning skills. Therefore, more

technical oriented training as recommended in the previous report, for example as a

draftsman, were appropriate.

[109] In cross-examination Dr. Wallace acknowledged that his staff conducted the

psychological tests of the plaintiff. However, his staff are trained to conduct tests and

it was Dr. Wallace who interpreted the test results. Dr. Wallace’s opinion that the

plaintiff had low self-esteem was as a result of interviewing him. The plaintiff could

see his friends moving forward in their work and lives but he was not. This made the

plaintiff feel like a failure, like he had been beaten up. The plaintiff has lost a prime

market asset, his self-esteem, and this affects his ability to obtain employment. Dr.

Wallace saw a need to upgrade the plaintiff in order to open up employment options

for him.

[110] Dr. Wallace was also of the opinion that it was better to upgrade the plaintiff’s

skills than require him to work at a service industry job that paid minimum wage. He

acknowledged that entry level positions in the service industry might test the


plaintiff’s ability but a “dead end job” could also affect his self-esteem. According to

Dr. Wallace, it was “too early to write off” the plaintiff.

Dr. R. Sahjpaul (neurosurgery)

[111] Dr. Sahjpaul is an expert in neurosurgery for the plaintiff. He was not cross-

examined.

[112] Dr. Sahjpaul practises in neurosurgery in British Columbia and he is a

member of the Combined Neurosurgical and Orthopaedic Spine Program at

Vancouver General Hospital. Part of his practice, from 2001 to 2002, was dedicated

to the neurosurgical treatment of spinal disorders. He is currently clinical associate

professor in the Division of Neurosurgery at the University of British Columbia. Since

September 2007 he has been Chief of Surgery at Lions Gate Hospital as well as co-

medical director of the surgery program.

[113] Dr. Sahjpaul examined the plaintiff on May 8, 2010, and he also reviewed

documentation provided by counsel for the plaintiff. He had the benefit of various

MRI, scan and x-ray reports. His diagnoses and opinion on causation are as follows:

Summary:

Diagnoses:

1. Traumatic C2 fractures.

2. Maxillofacial injuries - I will not comment on this any further.

3. Splenic injury, pneumothorax, left shoulder injury, pulmonary contusion, mild traumatic brain injury, post traumatic stress disorder.

Causation: The injuries are related to the motor vehicle accident in question. In answer to your specific questions:

1. Your assessment of Leighton’s neck injuries suffered in the motor vehicle accident. The motor vehicle accident caused a bony fracture of the C2 vertebral body. The fracture has healed completely with external immobilization and there is no evidence of instability. There is a slight degree of angulation but this is not of clinical relevance. The injury has also caused myofascial pain in the suboccipital area and this is manifested by neck stiffness, discomfort, intermittent sharp stabbing pains. This is not on the basis of neurological compromise, i.e. spinal cord or nerve root. It is most likely myofascial in nature. Occasionally patients with upper cervical fractures will experience occipital neuralgia pain because of involvement of the C2 ganglion, but Leighton does not appear to have this presentation.


2. Your assessment of his current neck symptoms and any resulting functional disabilities attributable to the accident, in whole or in part. Leighton’s current neck symptoms are residual from the injury. His neck stiffness and pain and intermittent shooting stabbing discomfort poses a problem for him because of his work, which requires neck flexion, neck turning. It is thus a functional limitation for him.

3. Whether Leighton has recovered from his injuries and if not. your assessment of the extent or duration of his injury and any related problems, if any. Leighton has made a significant but incomplete recovery from his injury. His bony injuries have healed. His myofascial injuries have improved, but have not completely recovered. More likely than not, Leighton will probably continue to notice some further improvement in his neck symptoms, although complete resolution is not anticipated. He will probably be left with some residual neck stiffness, discomfort, occasional shooting discomfort, and may experience flare-ups of neck pain from time to time, especially associated with activities that require repetitive cervical range of motion or maintaining his neck in a sustained position of flexion/rotation/extension for periods of time,

4. Your opinion as to what is necessary for Leighton’s treatment and rehabilitation. At this point, I don’t believe regular physiotherapy is necessary. Leighton probably will require physiotherapy on an intermittent basis, however, at this point, it would be my recommendation for him to try to maintain cervical spine range of motion on his own, seeking supplemental physiotherapy/massage/anti-inflammatories on a pm basis.

5. Your opinion on whether Leighton will have any future problems or disabilities as a result of his neck injury, in particular, in relation to his employability and day to day functioning. In my opinion, Leighton is at risk of re aggravating his neck pain with jobs that require manual labor such as lifting heavy objects, repetitive cervical flexion, lifting objects from the ground, placing object high on a shelf etc. As indicated above, I do anticipate some further improvement but I do not anticipate complete resolution. Leighton is probably better off retraining in something that does not require manual labor activities.

Dr. Bruce Blasberg (oral medicine)

[114] Dr. Blasberg is an expert in dental and oral medicine in B.C. for the plaintiff.

He is a diplomate of the American Board of Oral Medicine and currently associate

professor emeritus in the faculty of dentistry at the University of B.C. He examined

the plaintiff and produced a report dated January 10, 2011. He was not cross-

examined.

[115] Dr. Blasberg’s assessment included findings of fracture of the right

mandibular condyle and lower anterior dentoalveolar; altered dental occlusion;


limited mouth opening with pain in the right temporomandibular joint (“TMJ”); joint

pain; myofascial pain; and dental injuries. He noted that the fractures had healed but

the right TMJ was not normal. As well, there were limitations in jaw movement and

the left TMJ was also painful as were the jaw muscles. Daily activities such as

chewing tough food and limitations in jaw opening to bite, for example, an apple

were compromised. And there was pain with yawning and, because of the pressure

on the jaw, with kissing.

Medical/psychological: defendant

Dr. Derryck Smith (psychiatry)

[116] Dr. Smith is a psychiatrist practising in British Columbia and was an expert for

the defendant. He is a clinical professor at the Department of Psychiatry, University

of British Columbia. He is a member of the editorial board of the Canadian

Psychiatric Journal and he reviews scientific articles for the journal Brain Injury. In

2006 he was the guest editor and author for a two volume series on mild traumatic

brain injury for the British Columbia Medical Association Journal. He was cross-

examined.

[117] Dr. Smith produced three reports, November 16, 2012, December 5, 2012,

and January 20, 2013. He examined the plaintiff on October 2, 2012. In his report of

November 16, 2012, Dr. Smith noted that the plaintiff was an average student when

he graduated from high school. Dr. Smith requested the plaintiff’s high school

records because he believed they were the best proxy for comparing the plaintiff’s

neuropsychological testing prior to the motor vehicle accident.

[118] In his report of November 16, 2012, Dr. Smith also reviewed the October

2008 accident and he thought it was “far from certain” whether the plaintiff

experienced any loss of consciousness. He noted a reference to the plaintiff’s

girlfriend observing him to be unconscious, and Dr. Smith asked that this be

confirmed. The reason for this is that, if the plaintiff had been observed to be

unconscious, “then there is no question that he suffered a mild traumatic brain

injury.” Dr. Smith recorded that the plaintiff consumed five to six beers before the


accident. He also stated that his understanding was that a previous court case

concluded that a neuropsychologist cannot make a diagnosis of MTBI. He agreed in

cross-examination that he did not have the specific reference.

[119] Dr. Smith opined that, based on his assessment; the plaintiff did not qualify

for a current psychiatric diagnosis. The most accurate diagnosis would be an

Adjustment Disorder with mixed anxiety and depression. With regards to MTBI, Dr.

Smith noted that the GCS is a scale between 15 and 3 and it is based on scores for

eye-opening, best motor response and best verbal response taken at the time of the

accident, usually by ambulance attendants. Scores of 13 to 15 indicate mild

traumatic brain injury, scores of 9 to 12 indicate moderate traumatic brain injury and

scores of 3 to 8 indicates severe traumatic brain injury. However, Dr. Smith

emphasized that a score of 15 is normal and people who have never suffered a

traumatic brain injury of any type can have a score of 15.

[120] Dr. Smith also identified traumatic amnesia as an indicator of MTBI.

Traumatic amnesia is a memory deficit between the time of trauma and resumption

of normal continuous memories. Post traumatic amnesia of up to 24 hours defines a

mild brain injury, moderate brain injuries are from 24 hours to one week and greater

than one week indicates a severe brain injury. It is generally accepted that with

cognitive deficits there will be improvement up to and including two years, although

most cognitive improvement takes place within the first few months. After two years

there will be no further spontaneous improvement in cognitive deficits from brain

injury. It is also recognized that the outcome from brain injury is highly variable;

some individuals with mild to medical brain injury can be severely impaired whereas

others who have been classified with a severe brain injury can make a total and

complete recovery.

[121] Dr. Smith’s overall opinion was that it was possible that the plaintiff sustained

a concussion or MTBI (the experts sometimes use MTBI and concussion

interchangeably). However, even if he did sustain a brain injury, the plaintiff has

totally and completely recovered from this and he has no sequelae of brain injury


that is evident in the records or examination. With respect to prognosis, Dr. Smith

opined the plaintiff has a good prognosis, he is not actively suffering from psychiatric

illness and he does not need psychiatric treatment.

[122] In his report of December 5, 2012, Dr. Smith reviewed additional documents

provided by counsel. This included the plaintiff’s school records, a witness statement

by Ms. Bosk and two statements from the plaintiff. Dr. Smith also had reports from

Dr. Pirolli. Dr. Smith opined that the plaintiff did not suffer any diminishment of his

intellectual capacity as a result of the October 2008 accident. Further the findings on

the tests performed by Dr. Pirolli were likely pre-existing weaknesses that explain

why the plaintiff was a below average student throughout his schooling.

[123] With regards to traumatic brain injury the correspondence provided to

Dr. Smith caused him to alter his opinion “somewhat.” Specifically, the statement by

Ms. Bosk that the plaintiff was unconscious and confused at the scene of the

accident was noted. Dr. Smith concluded that this information, coupled with the GCS

score of 14, was compatible with a concussion or MTBI. The plaintiff’s consumption

of alcohol was also noted.

[124] In his third report of January 20, 2013, Dr. Smith provided further comments

on the reports of the plaintiff’s doctors, in particular Dr. Pirolli and Dr. Wallace.

[125] With regards to Dr. Pirolli’s reports, Dr. Smith stated that the parameters from

the scene of the accident may or may not be compatible with a diagnosis of MTBI.

Dr. Smith was of the view that neuropsychological testing cannot diagnose MTBI.

With regards to Dr. Wallace’s report of December 12, 2012, Dr. Smith thought it was

an unusual progression for the plaintiff’s symptoms to worsen. Dr. Smith’s previous

opinions remained unchanged. The plaintiff may have suffered a MTBI as a result of

the October 2008 accident. However, if he did sustain a brain injury, he has made a

total and complete recovery. Dr. Smith diagnosed an emotional Adjustment Disorder

from the accident, particularly given the death of a friend in the accident and also his

grandfather soon after the accident.


[126] The opinion and summary of Dr. Smith from his report of January 20, 2013 is

as follows:

OPINION

These new reports do not cause me to alter my previously expressed opinion to you.

It is evident that although Leighton McCluskey had completed grade 12, his reported marks in academic areas were below average. Based on the testing of Dr. Wallace it is Clear that there were very significant weaknesses in math computation, which was at grade 8.8, and in reading comprehension, which was at grade 7.6.

It remains my opinion that the various weaknesses as identified by the testing of Dr. Pirolli were pre-existing weaknesses and not weaknesses acquired as a result of the motor vehicle accident either through psychological disturbance or through brain injury. I remain of the view that brain injury cannot be diagnosed by neuropsychological testing, and in this particular case it is my opinion that the neuropsychological testing is not even compatible with traumatic brain injury. It is well acknowledged, for example, that the most impacted of the cognitive processes following traumatic brain injury is processing speed, and in this case Mr. McCluskey's score is a relative weakness at an average level.

It is not clear to me whether Dr. Pirolli has opined that this man is suffering from Post-Traumatic Stress Disorder. On a number of occasions she references that this man has "symptoms’' some of which are even "severe,” but she appears to be hesitant to make a full diagnosis. It is most unusual for symptoms of Post-Traumatic Stress Disorder to get worse rather than better over time, even in the absence of treatment. This is a counterintuitive finding in my opinion.

In my initial correspondence to you I had asked for a full set of raw test data from Dr. Pirolli, and I repeat this request. I would be able to provide a more in-depth analysis of her opinion after reviewing the raw test data.

I am in agreement with the opinion of Dr. Wallace that Mr. McCluskey is best suited to pursuing some training in the trades and not university. However, it is my opinion that he would have pursued this type of training even in the absence of the motor vehicle accident based on his performance in high school and his measured IQ.

SUMMARY

It remains my opinion that Leighton McCluskey may have suffered a mild traumatic brain injury as a result of the motor vehicle accident of October 10th, 2008. If he did sustain a brain injury, he has made a total and complete recovery from this from a cognitive point of view. The current testing of Dr. Pirolli is entirely compatible with his pre-existing functioning based on high school marks and the achievement levels as noted in the report of Dr. Wallace.

In the absence of any hard data from the reports of Dr. Pirolli, I remain of the view that Mr. McCluskey suffered some type of an emotional Adjustment


Disorder from the motor vehicle accident, particularly given the death of a friend, but I should also "note that two other important people in his life died at the same time. It is not clear to me that he is receiving any type of evidence-based psychotherapy for any of the emotional difficulties that he is facing.

These new reports have not caused me to substantially alter my previously expressed opinion to you.

[127] In cross-examination Dr. Smith acknowledged that there are different

definitions of MTBI and he acknowledged that the definition used by the American

Congress of Rehabilitation Medicine is widely used. However, Dr. Smith took “great

issue” with that definition because it needs to be “reworked at the low end.” He was

specifically referring to reliance on a GCS score of 15 to diagnose MTBI when

people without any MTBI at all can have the same score. Dr. Smith thought that a

combination of factors was useful in assessing whether there was MTBI so that, for

example, GCS would be considered with post-incident amnesia. He agreed that

talking to witnesses of the traumatic event was important.

[128] Dr. Smith agreed that there were a small group of people, in the range of 5 to

10%, who did not recover from MTBI. Some people with mild brain injury go on to

have continuing problems well after others with severe brain injury have a full

recovery. The expectation for 90% of people with MTBI is a full recovery within six

months, some take up to two years and after two years no further recovery would be

expected.

[129] Dr. Smith accepted there was some value in psychological testing although

he was concerned that Dr. Pirolli’s testing was not consistent and, therefore, her test

results could not be compared. It was suggested to him that she was administering

different tests for different purposes and to take into account a practice effect (as Dr.

Pirolli explained in her evidence), but Dr. Smith could not see that in her reports. Dr.

Smith also agreed that when assessing change of function in a patient with MTBI it

is useful to interview friends and family of the patient. He did not do that; he said that

he would have done it if the opportunity was offered to him. For example he would

have considered the reports of family members and friends about changes in the

plaintiff’s emotions, mood and energy levels and other matters. His report was based


on interviewing the plaintiff as well as reviewing other documents. The interview was

about two hours in length and he did not do any specific testing.

[130] Dr. Smith was challenged about his statement that the plaintiff consumed 5 to

6 beers before the accident when the plaintiff told him that he consumed 2 to 3

beers. Dr. Smith relied on a previous statement from Ms. Bosk as to the

consumption of 5 to 6 beers (she did not testify to this in her evidence). The

measured blood alcohol level of the plaintiff was recorded in Dr. Smith’s report as 9

millimoles per litre. He agreed that this was not a significant level but he did not

know whether it was more likely in the range of 2 to 3 beers rather than 5 to 6.

[131] Dr. Smith agreed that it was a critical issue whether the plaintiff lost

consciousness at the time of the accident. He agreed that it was an important finding

that the ambulance attendants recorded the plaintiff as being confused. This,

however, was explained by his GCS score. Dr. Smith testified that he did not see the

report from Ms. Bosk that the plaintiff was confused in the ambulance on the way to

the hospital. There is a reference in the hospital chart at the Kelowna Hospital to the

plaintiff being “amnesiac to events.” Dr. Smith presumed that he read that report and

he agreed it was significant and noteworthy. He said he “leaned towards” the plaintiff

losing consciousness at the time of the accident. He confirmed that it was likely that

the plaintiff had suffered MTBI and, at one point, stated there was no other

explanation. However, again, Dr. Smith also stated that the plaintiff was completely

recovered.

[132] Dr. Smith stated in his report that the plaintiffs high school performance was

below average. When it was pointed out that he had achieved a grade 6

performance of C or C+, Dr. Smith stated that a grade of B was average. He

disagreed that a C mark was average and could not provide data or other support for

his conclusion. Dr. Smith was also asked about the plaintiff working on a grade 11

math course with a C average. Dr. Smith was skeptical of this because marks are

“regularly given out for chunking people along.” These are obviously personal

opinions outside the field of psychiatry and I give them no weight.


Dr. Peter Wong (neurology)

[133] Dr. Wong is an expert in neurology with experience in adult and child

neurology, clinical neural physiology and electroencephalography for the defendant.

He is also head of the department of diagnostic neurophysiology at BC Children’s

Hospital. He has particular expertise in epilepsy. He prepared a report dated July 30,

2012, on the basis of a review of a number of documents and an examination of the

plaintiff. This followed a previous report of July 16, 2012. He was cross-examined.

[134] In his report of July 30, 2012, Dr. Wong stated that the diagnosis of MTBI

relies heavily on an accurate history. MTBI is a relatively simple, one time

neurological condition involving injury to brain cells from mechanical onset, often in

one instance. Its diagnosis is based on the presence of a significant disturbance of

neurological function starting from the moment after impact, with the proviso that the

disturbance should not be delayed:

Therefore a concussion should be accompanied by immediate symptoms of neurological disturbance such as loss of consciousness (LOC), confusion, disturbed memory (amnesia), disturbed neurological function (like inability to walk, inability to move a limb, loss of speech etc.).

[135] Dr. Wong concluded that the plaintiff had a reasonable recall of the pre-

accident events up to the vehicle crossing the bridge, going sideways and then

hitting a bank. He also noted the ambulance report which recorded the plaintiff’s

girlfriend describing a decreased level of consciousness and moaning on the part of

the plaintiff. The ambulance crew wrote “unknown LOC [loss of consciousness]” and,

according to Dr. Wong, this was “far from definite, such wording is often used if

unsure or out of an abundance of caution.” He concluded that the girlfriend’s

observations suggested that the plaintiff was “awake but discombobulated” and it

was noteworthy that he got up and walked by himself. On this basis, Dr. Wong

opined that “possibly but not definitely there may have been a very brief loss or

altered consciousness lasting some seconds.”

[136] Dr. Wong concluded that the evidence was against a significant disturbance

of brain function like concussion or worse (again, some experts use concussion and

MTBI interchangeably). There had been no concern of a neurological or cognitive


nature when he was in Kelowna Hospital. He questioned Dr. Pirolli’s finding of MTBI

on the basis of a loss of consciousness because that loss was in doubt. Further, the

GCS of 14 does not support a diagnosis of anything because some degree of

disorientation would be expected and alcohol would have contributed to this score

as well. Finally the conclusion by Dr. Pirolli of prolonged MTBI is not supported by

the documentation.

[137] Dr. Wong concluded his report with the following:

To be fair, there was room for some doubt on all of the above discussion, due to the confusing MVA events in the long passage of time since the MVA. This writer accepts that a margin of uncertain [sic] exists and should be allowed for, and the first conclusion is that [MTBI] cannot be definitely ruled out. Not the least, consideration need [sic] be given to the forces which impacted on this patient’s upper neck/head causing the C2 fracture. Thus there existed the circumstance and potential for [MTBI] to occur. . . . Such conclusions are of course never 100% accurate, as is common in clinical practice.

[138] In cross-examination, Dr. Wong agreed that his reports did not provide an

alternate diagnosis. He agreed that a physiatrist can diagnose MTBI. He agreed that

his assessment of the plaintiff was by means of an interview and he did not conduct

any neurological testing. He also agreed that his publications were primarily on the

subject of epilepsy and there were no publications on the issue of MTBI. He agreed

with a definition of MTBI from the American Congress of Rehabilitation Medicine.

Among other things, this definition describes MTBI as being a traumatically induced

physiological disruption of brain function where one of the losses is “any period” of

loss of consciousness. Dr. Wong was also critical of this definition because he

interpreted “any” to mean zero. That is, a patient with no loss of consciousness

could have a MTBI.

[139] Dr. Wong agreed that 80% of patients with MTBI will experience some

physical, cognitive and behavioral symptoms within three months of the injury. It was

put to him that about 15% of patients did not recover. He answered that it was not

his area of research but that figure was “in the ballpark.”


[140] With regards to the plaintiff in this case, Dr. Wong agreed that the description

by the plaintiff’s girlfriend of his condition immediately after the accident “could be”

symptoms of MTBI. Further, her evidence was supportive of a loss of consciousness

on the part of the plaintiff. The record from the Kelowna hospital that the plaintiff was

“amnesiac to events” was put to Dr. Wong. His response was, “that is what it says.”

He agreed that information from co-workers and family members would assist in the

diagnosis of MTBI but he did not use that information.

Dr. Arthur Williams (neuropsychology)

[141] Dr. Williams is an expert in psychology on behalf of the defendant. He is a

qualified and registered psychologist in British Columbia as well as in some

American states. He is a diplomate of the American Board of Professional

Neuropsychology, a fellow of the National Academy of Neuropsychology, a fellow of

the American College of Professional Neuropsychology, a former clinical assistant

professor and researcher at the University of Washington and a former associate

professor at Pepperdine University. He is a reviewer and an editorial board member

for Applied Neuropsychology.

[142] Dr. Williams prepared a report dated January 28, 2013. The purpose of the

report was in response to the reports of Dr. Pirolli and Dr. Wallace. He did not

examine the plaintiff. He was cross-examined.

[143] Dr. Williams opinion was as follows:

Dr. Pirolli's choice of tests was questionable. The AMA Guides to the Evaluation of Permanent Impairment (6th Edition) states, “The Halstead Reitan Test Battery...is the best standardized neuropsychological test battery.” Dr. Pirolli did not use it in a forensic context when the best instruments are expected to be used.]

Some of the tests she did use were not administered according to the manuals, which was inconsistent with the APA Standards. For example, she omitted subtests of the Wechsler Adult Intelligence Scale-Ill, including s subtest necessary to score the Processing Speed Index, the most sensitive index to brain injury, and she omitted subtests of the Wechsler Memory Scale-Ill. She administered screening tests, such as the Symbol Digit Modalities Test, which should not be used to make diagnoses. She gave an abbreviated form of the Wechsler Memory Scale-Ill. She characterized


several scores as impaired, when, using traditional score ranges, the scores were borderline, low average or average. The Trail Making Test-Part B was normal, using the norms from the manual, but in 2009 she said it was mildly impaired.

She said he had flat affect in the first two evaluations and blunted affect in the last one. These terms are defined below. The descriptions of his behaviour as pleasant and cooperative were inconsistent with this.

She said in the first evaluation he may have suffered a mild traumatic brain injury. In the second and third reports she said he likely suffered a traumatic brain injury. There was no clear evidence to explain how her conclusion progressed from a possibility to a probability.

She referred to the Carroll et al. article by the World Health Organization as authoritative; however, many of the conclusions in an article by the same author in the same journal are inconsistent with Dr. Pirolli's conclusions, as can be seen in Appendix B.

She said he had symptoms of posttraumatic stress disorder. She did not administer the Structured Clinical Interview for DSM-IV or the Clinician- Administered PTSD Scale to determine which criteria from the DSM-IV-TR were met. She relied on the Detailed Assessment of Posttraumatic Stress, which requires that an interview be conducted.

She repeatedly said he had a pattern of fluctuating attention and speed of processing and lower than expected working memory abilities. This was not consistent with her own testing over three evaluations, as can be seen in the test results described in Appendix A. She also noted executive dysfunction, which was not evident in her test results. The Wisconsin Card Sorting Test Perseverative Response score was average. The Trail Making Test-Part B scores were normal, using norms from the Halstead-Reitan Battery manual. The Frontal Systems Behavior Scale results were not clinically elevated. Her conclusions did not follow from the data.

Dr. Wallace relied on Dr. Pirolli's conclusions to come to his conclusions. His own testing (excluding the vocational testing which I will not comment on) did not support the conclusions that the claimant had any impairments, especially in the 2012 testing. His conclusions did not follow from the data.

Many non-brain-injured people have some impaired scores.

[144] The cross-examination of Dr. Williams was taken up primarily with a

discussion about methodologies used by neuropsychologists and others for the

diagnosis of MTBI. Dr. Pirolli and Dr. Anton used the definition of MTBI from

rehabilitation medicine and the World Health Organization. Dr. Williams was asked

whether this definition was widely accepted and he replied by saying it was

frequently cited. He agreed generally with the proposition that neuropsychological

testing is insensitive to executive function so it is necessary to look at collateral


information about a patient before and after the specific traumatic event. He also

generally agreed that executive function includes self-monitoring and direction,

planning, impulse control, working memory, working with distractions, and other

matters.

[145] As set out in his report of January 28, 2013, Dr. Williams accepted the

Halstead test as the best standardized narrow psychological test battery. This is a

so-called fixed test that is, in Dr. Williams’ opinion, validated by significant research.

He disagreed that it was not the test used by most neuropsychologists in North

America by answering that it was the sixth most used. He agreed that there was a

debate in the United States as to the relative merits of a fixed versus variable

approach to neuropsychological testing. Dr. Pirolli used a flexible model and, again,

Dr. Williams uses a fixed approach. When Dr. Williams was asked whether the

flexible approach is used by a majority of neuropsychologists, he answered that was

a different point because the American Medical Association says that the Halstead

approach is the best.

[146] Dr. Williams was questioned about his opinion that a neuropsychologist

cannot diagnose MTBI. He agreed that this would apply to him and, instead, he

would give an opinion as to whether a patient had symptoms “consistent with the

effects of [MTBI].” He believed that there had been a specific court case that had

found that a neuropsychologist could not diagnose MTBI, but he could not recall the

name of the case are any other details. He agreed that neuropsychologists in the

United States make this diagnosis.

Economic: plaintiff and defendant

[147] The plaintiff submitted two expert reports both dated December 18, 2012,

from Robert Carson. Mr. Carson is an economist with a specialty in labour

economics. His report provides an opinion of the present value costs of various

amounts under different heads of damages and multipliers. Mr. Carson was not

cross-examined.


[148] According to Mr. Carson the present day multipliers to ages 65 and 70 for the

plaintiff are $25,141 and $26,551, respectively.

[149] The defendant has submitted an expert report from an economist, Mark

Szekely, dated January 21, 2013. It is in response to Mr. Carson’s report and it

provides a different opinion of present values and multipliers. He challenges

Mr. Carson’s analysis of differential earnings, the average earnings for journeyman

cabinet maker, the assumption by Mr. Carson that the plaintiff not have continued as

a labourer (his pre-injury position) and other issues. Mr. Szekely was not cross-

examined.

[150] According to Mr. Szekely the present day multipliers to ages 65 and 70 for the

plaintiff are “$20,260 and $20,502, respectively.”

Analysis

[151] As above, both liability and quantum are at issue.

Liability

[152] A threshold issue before the determination of any damages is whether the

defendant is liable for the accident in October 2008. It is submitted on behalf of the

defendant that he was not liable. Specifically, he submits that the issue of liability

was determined when he was acquitted of criminal charges in December 2010. The

defendant also submits that an expert engineering report relied on by the plaintiff is

flawed and should not be given any weight. Finally, in the alternative, it is submitted

on behalf of the defendant that the plaintiff was contributorily negligent because he

was not wearing his seatbelt.

Criminal proceedings

[153] With regards to the criminal charges against the defendant, he was charged

with dangerous driving causing death and dangerous driving causing bodily harm. A

trial was held in November 2010 and, on December 3, 2010, Mr. Justice Dley

acquitted the defendant on all charges. Among other findings he concluded that

there were insufficient factors on speed that would elevate the facts of the case to


the level of a criminal offense. As a result it was not possible to conclude beyond a

reasonable doubt that the defendant’s driving was objectively dangerous. Further, in

reviewing all the evidence, the trial judge concluded that the defendant’s driving was

not a marked departure from the standard of care that a reasonable person would

observe in his circumstance (paras. 59, 61).

[154] It is now submitted on behalf of the defendant in this civil action that the issue

of liability has been decided in his favour by the previous criminal proceedings. That

is, he is not liable for the accident and the injuries to the plaintiff.

[155] The approach of previous decisions on this issue have focused on issue

estoppel (Petrelli v. Lindell Beach Holiday Resort Ltd. 2011 BCCA 367 at para. 63;

citing Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 at para. 25). With

regards to issue estoppel there are three preconditions: the same question has been

decided in the previous proceeding, the previous decision was final and the parties

in both proceedings are the same. In the subject case, the parties are not the same

as the criminal proceeding and the issues of criminal negligence causing death and

dangerous driving causing bodily harm are not the same issues as the civil liability of

the defendant here. On this basis issue estoppel has no application.

[156] With regards to abuse of process, such an abuse has been found where an

arbitrator was asked to re-litigate whether an employee was guilty of a criminal

sexual assault. A previous criminal court had convicted the employee. The arbitrator

found that that the employee had not committed the sexual assault and the courts

set this decision aside (Toronto (City) v. CUPE (2001), 55 O.R. (3d) 541,149 O.A.C.

213).

[157] In the subject case, again, the defendant was acquitted of criminal charges

with regards to the same incident that gave rise to this civil action. However, the

cause of action in the latter is based in negligence not in the Criminal Code. I am not

re-litigating whether the defendant committed a criminal offence, as was apparently

the case in Toronto (City).


[158] I find that it is not an abuse of process for the plaintiff to seek civil damages

against the defendant when the defendant had previously been acquitted of criminal

charges.

Plaintiff’s expert engineering report

[159] As above the plaintiff has submitted an engineering report from Mr. Craig, an

automotive engineer, on various issues relating to the accident. His opinion is that,

among other things, the accident did not result from a mechanical failure and the

cause was the defendant losing control of his vehicle at excessive speed. The

defendant did not cross-examine Mr. Craig.

[160] The defendant takes issue with some aspects of Mr. Craig’s report. The

following are challenged: his use of photographs taken by the RCMP, his

observations of tire marks on the roadway, his measurement of the speed of other

vehicles after the accident and his use of a RCMP investigation report by Corporal

B. Nightingale, dated March 4, 2009.

[161] The judgment in Garneau v. Izatt-Sill, 2013 BCSC 46 is relied on by the

defendant (especially paras. 95-98). In that case Mr. Justice Weatherill concluded

that he could give no weight to a medical expert report because the expert relied on

a number of other reports and records that were not independently entered into

evidence. The principle relied on is that, if a fact fundamental to an expert’s opinion

is not proven, the opinion itself cannot be relied on (R. v. Abbey, [1982] 2 S.C.R. 24

at 46; R. v. Lavallée, [1990] 1 S.C.R. 852 at 896 commenting on Abbey; R. v.

Warsing, 2002 BCCA 131 at paras. 47 - 53).

[162] In this case Mr. Craig used photographs taken by the RCMP as part of his

report. These were not independently proven and, therefore, I sever the part of

Mr. Craig’s report that refers to and relies on those photographs.

[163] I reject the defendant’s other objections. Mr. Craig was entitled to take his

own photographs and make his own measurements as part of his expert

assessment of the accident site. To disallow these matters would be analogous to


rejecting a medical expert’s report because the expert obtained his or her own x-

rays.

Contributory negligence: seat belt

[164] The defendant alleges that the plaintiff was not wearing his seat belt at the

time of the October 2008 accident and, therefore, the plaintiff was contributorily

negligent. The onus is on the defendant to establish contributory negligence (Gilbert

v. Bottle, 2011 BCSC 1389 at para. 22).

[165] The evidence of the plaintiff is that he cannot remember a number of things

that happened that night and, for example, does not recall whether he was wearing

his seat belt. He says that he usually wears a seat belt. He also had a contusion on

this right shoulder he attributes to the force of the seat belt during the accident. The

seat belt attached to the seat where the plaintiff sat in the vehicle was a three point

belt and the contusion is where the shoulder belt would have been. He was ejected

from the vehicle by the force of the accident, as were all of the people in the vehicle.

The defendant was ejected from the vehicle and he testified that he was wearing his

seat belt. Ms. Bosk was ejected from the vehicle and she was not wearing a belt.

[166] There is an expert report on this issue from Dr. Toor. This is a response

report to an expert report prepared by an expert retained by the defendant.

However, during the trial of this action, the defendant withdrew its expert report on

the use of a seat belt. Dr. Toor’s report was not withdrawn by the plaintiff. The result

is an unusual one: only the response report from Dr. Toor is in evidence. Dr. Toor

was not cross-examined and no objections were taken to his report although its

conclusions were challenged in argument.

[167] According to Dr. Toor, as set out in detail above, it is likely that proper usage

of the seat belts would not have severely limited the motion of the plaintiff in the right

rear seat. This is because of the complex and changing forces that were applied to

the defendant’s vehicle during the accident. As well there was a clear ejection path

for the rear seat occupants so ejection of a properly restrained rear seat occupant

cannot be ruled out. “With reference to the uniqueness of this rollover event, ejection


of the occupants is NOT synonymous with no seatbelt use” (emphasis in original).

Dr. Toor also cited two studies of seat belt use. In one (Parenteau et al) the ejection

rate was less than 1% for belted occupants. Dr. Toor’s overall conclusion is that “. . .

it cannot be technically determined if [the plaintiff] was properly restrained or not”

and it cannot be determined if there was any benefit if he was properly restrained.

[168] The resolution of this issue comes down to an issue of proof. The evidence of

the defendant, who has the onus, relies on the fact that the plaintiff was outside the

vehicle after the accident. However, all occupants were outside the vehicle including

one, the defendant himself, who says he wore a seatbelt. As well, the plaintiff has a

contusion on his right shoulder that is broadly consistent with wearing a seatbelt.

Finally, the expert evidence is that it cannot be determined if he had a seat belt on or

not and nor is it clear that there would have been any benefit of wearing a seat belt

in the context of the considerable violence of the October 2008 accident.

[169] Overall, I conclude that the defendant has not met the burden of proving that

the plaintiff was not wearing his seat belt and, therefore, there is no issue of

contributory negligence.

Liability: summary

[170] There remains the question whether the plaintiff has proven that the

defendant was negligent when he was driving his vehicle at the time of the October

2008 accident. It is not disputed that the defendant owed the plaintiff a duty of care,

and the primary issue is whether that duty was breached by the defendant.

[171] The defendant was driving what was for him a new vehicle. He knew the tires

needed replacing and he knew the speedometer did not work. He invited the plaintiff

to go with him from the party at Harris Creek into town. He had not been drinking

alcohol. It was about 11:00 PM in October, it was a dark rural road without lighting

and it was not raining. It was cool but I accept the evidence of Constable Yakonosky

that the bridge was not icy. The mood of the young people in the vehicle was jovial,

they had just left a party, there was conversation among them and the stereo was

playing music.


[172] There is no dispute that the defendant was speeding. On his own evidence he

was travelling at 95 km/h. Mr. Craig, the plaintiff’s expert engineer, estimated the

speed to be in excess of 120 km/h. The posted speed limit at the bridge was 60

km/h. As the vehicle approached the bridge, the road curved and narrowed;

according to Mr. Craig, the road, curve and bridge were navigable at 70 km/h. The

defendant lost control of the vehicle and it left the road. The speed of the vehicle

was such as to cause the vehicle, upon impact, to both tumble longitudinally and roll

laterally. Ultimately it landed upright. All occupants were ejected from the vehicle

during the impact. One person died and others had significant injuries.

[173] Unfortunately, I am unable to find that the defendant took reasonable steps to

avoid the accident. He was speeding in a vehicle with poor tires and no

speedometer. The very high speed, in relation to the posted limit, is especially

critical. It is not possible to reconstruct the events of that night but it is reasonable to

conclude that a vehicle travelling at the posted speed would have been able to

safety navigate the curve, narrowing of the road and the bridge. The fact that the

vehicle left the road and the impact was of such force supports a conclusion that the

defendant was speeding and lost control. In fact, he agreed in cross-examination

that he made a mistake and lost control. His counsel submits it is not clear what that

mistake was, but I conclude otherwise.

[174] In these circumstances I find that the plaintiff has proven that the defendant

breached the duty of care he owed the plaintiff, and he was negligent when he was

driving his vehicle on the night of October 10, 2008. It follows that the plaintiff is

entitled to damages and I next proceed to consider that issue.

Special damages

[175] The parties are agreed on special damages in the amount of $10,518.37. I fix

special damages at that amount.


Past income loss

[176] The accident happened in October 2008 and there is an issue as to the

plaintiff’s entitlement to income loss from then to now, more than four years later.

[177] At the time of the accident the plaintiff was 19 years old and just out of high

school. He had some minimal work experience before he worked as a labourer at

Harris Cabinets earning $13.50 per hour. This was his first real, full-time adult

employment. While he had not made the request, it is also clear that he had a good

prospect of starting an apprenticeship in cabinet making. Assuming regular and

continuous working hours, that would have taken about four years with increases in

wages each year. The current wage for a journeyman cabinet maker at Harris

Cabinets is about $25 per hour.

[178] That is one way of assessing the plaintiff’s past income loss and it is the basis

of the defendant’s submission that $145,050.00 is an appropriate amount for past

income loss (temporary total disability payments made to the plaintiff to be

deducted). This is based on expert economic evidence as to what the plaintiff would

have earned as a cabinet installer. The defendant also questions whether the

plaintiff had a firm career path into a trade and it is submitted that he would likely

have earned some money from raising cattle.

[179] The plaintiff seeks damages for past income loss for a higher figure, an

amount of $165,000.00. The reasoning for this amount is that I should use as

comparables the earnings of the plaintiff’s peers, in particular the defendant and

Mr. Makasoff. Both of them have obtained trades’ qualifications and are working in

Alberta earning annual gross income of about $100,000. The plaintiff’s submission is

that, but for the October 2008 accident, he would have his trade qualification and he

would have had equivalent earnings.

[180] There are obvious difficulties assessing the income of a young adult who was

just starting his working life. He may have stayed working with Harris Cabinets or he

may have done what his friends did and worked in Alberta for significantly higher


earnings. And he may have done something else entirely. The result is that there is

no reliable way to assess loss of past income in this case.

[181] Considering the work available to the plaintiff in the Vernon area and also

allowing for the possibility he may have worked in Alberta with higher earnings, I

assess past income loss at $150,000. This is a gross amount.

Non-pecuniary damages

[182] A previous judgment has set out the legal approach to non-pecuniary

damages (Rhodes v. Biggar, 2010 BCSC 762):

The purpose of non-pecuniary damage awards is to compensate the plaintiff for “pain, suffering, loss of enjoyment of life and loss of amenities”: Jackson v. Lai, 2007 BCSC 1023 at para. 134; see also Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, 83 D.L.R. (3d) 452; and Kuskis v. Hon Tin, 2008 BCSC 862 [“Kuskis”]. While each award must be made with reference to the particular circumstances and facts of the case, other cases may serve as a guide to assist the Court in arriving at an award that is just and fair to both parties: Kuskis, at para. 136.

. . .

There are a number of factors that courts must take into account when assessing this type of claim. Madam Justice Kirkpatrick, writing for the majority, in Stapley v. Hejslet, 2006 BCCA 34, 263 D.L.R. (4th) 19, outlines the factors to consider, at para. 46:

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

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of pain;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of life;

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

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

(h) impairment of physical and mental abilities;

(i) loss of lifestyle; and


(j) the plaintiff's stoicism (as a factor that should not, generally speaking, penalize the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163 (Q.L.), 2005 BCCA 54).

...

[146] The role that damages plays is to place the plaintiff, as much as possible, in her original position. It is not the obligation of the defendant to put the plaintiff in a better condition than she was in.

The injuries

[183] The defendant accepts that a number of the plaintiff’s injuries are related to

the October 2008 accident. The injuries that are not accepted are MTBI, PTSD,

injuries to the right ear and a compression fracture at T8.

[184] With regards to the injuries to the right ear there was coagulated blood in the

ear, and the blood was removed on October 11, 2008. There is the event of the

severe trauma to the head and no other events to explain this injury. I conclude that

the right ear problems were and are related to the accident.

[185] The submission that the compression fracture at T8 was not related to the

accident is based on a medical report in September 2010 by Dr. Anton. He noted

degeneration at T9-10 and slight compression at T8. These changes were “in

keeping with prior trauma.” In his oral evidence Dr. Anton stated that the

degeneration would have taken more than two years to develop and it was

asymptomatic. The fact of degeneration in 2010, or even at the time of the 2008

accident, is not proof that the T8 fracture is somehow unrelated to the accident. I

conclude that the fracture is related.

MTBI: the debates

[186] With regards to MTBI there are some interesting threshold questions among

the experts. One is what definition should be used for MTBI and another is who can

make a diagnosis of MTBI.

[187] Looking at the definition question, there is more than one definition of MTBI.

Dr. Pirolli, the neuropsychologist and expert for the plaintiff, used a definition from


the World Health Organization and taken from the Journal of Rehabilitation

Medicine. A MTBI is defined there as:

. . . an acute brain injury resulting from mechanical energy to the head from external forces. Operational criteria for clinical identification include:

(i) 1 or more of me following: confusion or disorientation, loss of consciousness of 30 minutes or less, post traumatic amnesia for less than 24 hours, and/or other transient neurological abnormalities such as focal signs, seizures, and intracranial lesions not requiring surgery;

(ii) Glasgow Coma Scale score of 13 to 15 after 30 minutes post-injury or later upon presentation for healthcare.

Carrol et al (2004) Journal of Rehabilitation Medicine. 43 (Suppl). 113- 125 (for the World Health Organization Collaborating Centre for Neurotrauma Task Force on Mild Traumatic brain Injury).

[188] Dr. Pirolli provided other definitions in an attachment to her report of

November 29, 2012 as follows:

A traumatic brain injury (IBI) is a non-degenerative, non-congenital insult to the brain from an [sic] mechanical force, possibly leading to permanent or temporary impairment of cognitive, physical, and psychosocial functions, with an associated diminished or altered state of consciousness.

The Head Injury Interdisciplinary Special Interest Group of the American Congress of Rehabilitation Medicine defines mild head injury as “a traumatically induced physiologic disruption of brain function, as manifested by one of the following:

Any period of loss of consciousness.

any loss of memory for events immediately before or after the accident.

any alteration in mental state at the time of the accident.

focal neurologic deficits, which may or may not be transient.

The other criteria for defining mild traumatic brain injury include the following [Segun Dawodu et al, Traumatic Brain Injury (TBI) - Definition, Epidemiology, Pathophsyiology, (June 13, 2011)]

Glasgow Coma Scale (GCS) score greater than 12

no abnormalities on CT scan.

no operative lesions, and

length of hospital stay less than 48 hours.

[189] In his report of January 28, 2013 Dr. Williams, a neuropsychologist for the

defendant, stated there are “many definitions” of MTBI and concussion (again, the


experts often use these terms interchangeably). He cites the AMA Guides to the

Evaluation of Permanent Impairment (6th Edition) as saying that “The Halstead

Reitan Test Battery . . . is the best standardized neuropsychological test battery.”

He is critical of Dr. Pirolli for not using this test. Dr. Williams also cites the following

definitions, among others:

The American Medical Association (2006) definition of concussion indicates there must be "a brief loss of consciousness following head injury. As a general rule,...[it is] a minor, temporary injury that does not cause permanent damage to the brain...."

On pages 179-180 of the Diagnostic and Statistical Manual of Mental Disorders (Fourth Edition) -Text Revision (DSM-IV-TR) by the American Psychiatric Association under the diagnostic category, Cognitive Disorder Not Otherwise Specified, the authors state, "This category is for disorders that are characterized by cognitive dysfunction presumed to be due to the direct physiological effect of a general medical condition that do not meet criteria for any specific deliriums, dementias, or amnestic disorders listed in this section and that are not better classified as Delirium Not Otherwise Specified, Dementia Not Otherwise Specified, or Amnestic Disorder Not Otherwise Specified....Examples include ... Postconcussional disorder: following a head trauma, impairment in memory or attention with associated symptoms (see page 760 for suggested research criteria)."

The research criteria for Postconcussional Disorder in the DSM-IV-TR indicate that there must be "a history of head trauma ...The manifestations of concussion include loss of consciousness, posttraumatic amnesia, and, less commonly, posttraumatic onset of seizures.” According to the proposed criteria in DSM-IV- TR on page 760, "The essential feature is an acquired impairment in cognitive functioning, accompanied by specific neurobehavioral symptoms, that occurs as a consequence of closed head injury of sufficient severity to produce a significant cerebral concussion. The manifestations of concussion include loss of consciousness, posttraumatic amnesia, and less commonly, posttraumatic onset of seizures. Although there is insufficient evidence to establish a definite threshold for the severity of closed head injury, specific criteria have been suggested, for example, two of the following: 1) a period of unconsciousness lasting more than 5 minutes, 2) a period of posttraumatic amnesia that lasts more than 12 hours after the closed head injury, or 3) a new onset of seizures...that occurs within the first 6 months after the closed head injury.”

[190] Dr. Wong was critical of the first approach used by Dr. Pirolli because of the

use of “any.” According to Dr. Wong “any” includes zero and, therefore, it Dr. Pirolli’s

approach is not useful. I do not agree that “any” includes zero and nor is that

proposition supported by materials submitted in argument by the defendant.


[191] I might add that I see nothing objectionable in Dr. Pirolli describing more than

one approach to the diagnosis of MTBI. Indeed, in light of the different approaches, it

is quite appropriate to do so.

[192] In addition, the defendant’s experts were critical of Dr. Pirolli for saying the

plaintiff “may” have MTBI in one report and then saying in a subsequent report that it

was “likely” he had MTBI. Dr. Pirolli stated in her evidence that she could have used

more precision in her reports. I accept that explanation and I also note that she was

considering in the first report whether the plaintiff’s symptoms after the accident

were related to his alcohol use, rather than MTBI. She ultimately ruled out alcohol as

a confounder. I can find no fault in an expert opinion that leaves open different

explanations in one opinion, considers those explanations and then arrives at a

second opinion that eliminates (with reasons) one or more of the previous

explanations.

[193] With regards to the plaintiff’s use of alcohol the night of the accident there is a

dispute about how much he consumed. He says he drank 2 or 3 beers. There is a

reference in the evidence to Ms. Bosk saying that he consumed 5 to 6 beers. As

recorded in Dr. Smith’s report the plaintiff’s blood alcohol measurement was 9

millimoles per litre. He agreed that this was not a significant level but he did not

know whether it was more likely in the range of 2 to 3 beers rather than 5 to 6.

Drs. Pirolli and Anton considered whether alcohol use was a factor in the diagnosis

of MTBI at the time of the accident and ultimately concluded it was not. Other

experts mention alcohol use but no one has conclusively or persuasively stated that

it was more significant than the force of the accident in producing the MTBI.

[194] Finally, there was something of a debate among the experts about which

speciality is qualified to diagnose MTBI. Dr. Pirolli was confident that this was an

area within the competence of neuropsychology and she relied on a 2001 document

from the American professional association of neuropsychologists (NAN) that sets

out the “official position” of that organization. It states that a clinical

neuropsychologist have “special expertise in the applied science of brain-behavior


relationships.” This knowledge is used in the “diagnosis” of patients with

neurological, medical, neurodevelopmental and psychiatric conditions. Dr. Williams,

also a neuropsychologist, stated that members of his profession could not make

diagnoses. He said his approach is to explain whether a patient’s symptoms are

consistent with an accepted standard.

[195] Dr. Anton testified that physiatry, his field, is best able to make a diagnosis of

MTBI. And there seemed to be broad acceptance that a psychiatrist was competent

in this area. Both Dr. Williams and Dr. Wong thought that a previous court decision

had specifically said that a neuropsychologist cannot diagnose MTBI. But neither

could provide a specific reference to that case and none was provided in argument.

[196] Diagnosis is the use of scientific and skillful methods to establish the cause

and nature of a person’s illness. It is done by evaluating the history of the disease

process, the signs and symptoms, and the laboratory data, and by special tests such

as radiography and electrocardiography. “The value of establishing a diagnosis is to

provide a logical basis for treatment and prognosis” (C. L. Thomas, ed,Taber’s

Cyclopedic Medical Dictionary, 18th ed., (F.A. Davis Company, 1997).

[197] I do not doubt the considerable skill required in the exercise of diagnosis, but I

have been presented with no convincing reasons or any authorities that support a

conclusion that, for example, only medical doctors (such as psychiatrists) are

competent to diagnosis diseases such as MTBI. To the degree this debate is a

reflection of psychologists versus medical doctors, it does not reflect well on either

profession.

[198] Whether neuropsychologists make diagnoses, as Dr. Pirolli did in this case, or

determine whether a profile of symptoms is consistent with some standard, as

explained by Dr. Williams, is a fine point. NAN obviously has put its mind to

diagnosis and the competence to make diagnoses is part of the credentials of its

members. Bearing in mind that any diagnosis in the legal-medical context is subject

to critical examination, as in this case, I conclude that it is open to a

neuropsychologist to form an opinion about the diagnosis of MTBI.


[199] Returning to the assessment of MTBI, I do not read the above definitions of

MTBI as particularly in conflict. In my view, there are common features to all of these

definitions and I conclude from the various expert reports and evidence that MTBI, at

the initial stage, can be characterized by the following features:

some trauma to the brain,

confusion, disorientation at the time of the trauma,

loss of consciousness of 30 minutes or less at the time of trauma,

episodes of post traumatic amnesia for less than 24 hours,

perhaps less commonly, focal defects such as seizures or cortical blindness,

no abnormalities on CT scan (abnormalities on a scan my suggest severe

traumatic brain injury), and

GCS of 13 to 15 within 30 minutes of trauma or later while in healthcare,

bearing in mind that 15 is a normal score.

MTBI in this case

[200] Looking at the plaintiff in this case there is little doubt he had trauma to the

brain, as evidenced by the neck fracture and blood in his right ear. The ambulance

attendants recorded that loss of consciousness was unknown but it is clear from the

evidence of Ms. Bosk that the plaintiff lost consciousness. That is consistent with his

own evidence about remembering only some parts of the event. Ms. Bosk also

testified that she observed the plaintiff being disoriented and confused including

asking her if she had been driving the vehicle. As well, there is the report from

Kelowna Hospital about amnesiac events the same night. With regards to the GCS it

was 14 as measured by the ambulance attendants at the scene of the accident.

[201] There was some disagreement among the experts about whether the plaintiff

lost consciousness at the time of the accident. In the end, however, virtually all of the


experts concluded that the criteria for MTBI had been met for an initial diagnosis.

Dr. Smith, an expert for the defendant, is a useful representative. His initial view was

that MTBI was not made out but he changed his view when he was shown the

evidence of Ms. Bosk. Dr. Wong remained sceptical to the end about the existence

of MTBI but he allowed that there was some room for doubt in his opinion.

[202] On this basis I conclude that the plaintiff suffered MTBI as a result of the

October 2008 accident.

Medical evidence about ongoing MTBI

[203] The next and more controversial question is whether the plaintiff still suffers

from MTBI. The plaintiff submits that he continues today to have MTBI. In contrast,

the defendant submits that the plaintiff recovered within six to ten months after the

accident.

[204] In general the literature is encouraging about the prognosis for MTBI although

here too there are differences. Dr. Williams emphasizes a statement from the

American Medical Association that, as a general rule, concussions (or MTBI) are a

minor, temporary injury that does not cause permanent damage to the brain. He

similarly points to a statement by the Canadian Medical Association that “”Most

people with a minor head injury recover completely within a few days.” And he relied

on a review in 2011 by Rohling et al, “Meta-analysis of Neuropsychological Outcome

after Mild Traumatic Brain Injury” [full cite not provided], that stated “clinicians who

diagnose brain injury 3 months or more after (an uncomplicated mild traumatic brain

injury) will likely be wrong” (words in parentheses added by Dr. Williams). Dr.

Williams also emphasized studies that describe patients with MTBI becoming

hypochondrial and taking on a permanent sick role.

[205] As can be seen these statements are made in general terms and are

intended to apply to “most” situations where there are no complications. There are

other studies, including one cited by Dr. Williams, that concluded the degree of

impairment is greatest after injury, the degree of improvement (and degree of

residuals) relates to the degree of original loss and recovery can take place “over


days, weeks, months and maybe years” (Dikmen et al, 2009) [full cite not provided].

With regards to the Rohling study relied on by Dr. Williams, he agreed in cross-

examination that there was a debate about that study. This debate, including papers

from 2013, was not included in Dr. Williams’ report. He did agree that MTBI

symptoms can linger for years and he cited a figure he attributed to the AMA that 1

to 5% of patients have lingering symptoms. He was also questioned in cross-

examination about the weaknesses of meta-analysis studies. (Articles were put to

Dr. Williams in cross-examination that were exhibits for identification and not entered

as exhibits in evidence).

[206] Drs. Pirolli and Anton opine that the plaintiff continues to have, some four and

a half years after the October 2008 accident, symptoms of MTBI. Dr. Anton thought

that 12-15% of patients with MTBI did not completely recover. Dr. Wong said this

was not his area of expertise but he thought that 15% was “in the ballpark.”

[207] Dr. Anton, in his report of December 7, 2012 (set out in detail above),

acknowledged that most persons who suffer from MTBI make a good recovery with

no residual problems. He noted the testing done by Dr. Pirolli showed persistent

cognitive problems but he emphasized that psychological testing by itself can

produce deficits and there can be negative results from over testing. Collateral

information from friends and relatives about the plaintiff before and after the accident

were important to consider along with any testing. Dr. Anton interviewed the

plaintiff’s father (report of September 9, 2010) who described changes in the

plaintiff’s personality. Dr. Anton also noted the difficulty separating the relative

contribution of MTBI and PTSD.

[208] With these considerations in mind, Dr. Anton’s opinion was that the plaintiff’s

cognitive complaints were the result of the interactive effects of residual problems

from MTBI, psychological factors and pain. He opined that the plaintiff was in the

group of 12-15% of person’s who do not recover from MTBI. In cross-examination it

was put to Dr. Anton that he was relying on the work and opinion of Dr. Pirolli. He

replied that he relied on his examination, the history he took, the statements of


others and other information to form his own opinion. He said he did not need to rely

on Dr. Pirolli‘s opinion.

[209] Turning to the opinions of Dr. Pirolli, she discussed more than one definition

of MTBI and I have found above that would seem to be appropriate in light of the

different definitions. She had the benefit of interviewing the plaintiff more than once.

The first interview was in June 2009, and the last one was in November 2012. She

also interviewed the family of the plaintiff. All experts agree information obtained

from family, friends and co-workers is important to the assessment of MTBI.

[210] Dr. Pirolli conducted a number of tests of the plaintiff and the defendant

challenges these tests. The primary challenge is that Dr. Pirolli conducted different

tests at different times and therefore it is not possible to track the progress, or lack of

progress, of the plaintiff. Dr. Pirolli agrees that she did not administer the same tests

each time. In her report of December 11, 2012, she explained her reasons. She

wanted to avoid a practice effect whereby a person can remember a first test and

that can affect the results of a second test. In addition some tests were not re-

administered because it was decided they were not necessary. For example, areas

where the plaintiff had not demonstrated any impairment were not repeated. As well,

by the third assessment in 2012 a distinctive pattern was emerging that suggested

mood and pain were not the only variables disturbing the plaintiff’s functioning.

[211] To some extent the issue of testing in this case can be explained by the

differences between closed and flexible testing. The latter is the approach of Dr.

Pirolli and the former is the approach of Dr. Williams. The difference between the

two approaches was examined in the evidence of Dr. Williams. Each has strengths

and weaknesses. My conclusion from that evidence is that there is value in having

consistent closed testing to compare results but there is also value in having flexible

testing to respond to the individual patient’s circumstances. I conclude that Dr.

Pirolli’s approach is an entirely valid one, if not the only one.

[212] Overall, from a medical - psychological view, there are two expert opinions

that the plaintiff has improved since the October 2008 accident but he continues to


have symptoms of MTBI. Dr. Anton, a medical doctor and specialist in physiatry and

brain injuries, reached this conclusion as did Dr. Pirolli, a neuropsychologist. Both

have examined the plaintiff and obtained collateral information. The primary

challenge to these opinions is Dr. Williams, an expert for the defendant. He has not

examined the plaintiff. He raises questions about, primarily, the approach taken by

Dr. Pirolli. These are noted but I am unable to find that the suggestion of different

methodologies and definitions substantially weaken other established

methodologies.

The plaintiff after the accident

[213] I next turn to the evidence that was presented at trial about the plaintiff’s

functioning since the October 2008 accident. To some extent this evidence was

recorded by the experts. Some of it was not. The significance of this evidence is that

it is, as described by the experts, collateral information that can be compared to the

information about the plaintiff before the accident in order to decide if the plaintiff

continues to suffer from MTBI.

[214] Ms. McCluskey, the plaintiff’s mother, testified that she has observed a

number of changes in the plaintiff. The changes immediately after the accident and

for about one year afterwards are described above. A number of things are still of

concern. When she asks the plaintiff to do three things she is “not sure he is getting

it” and he will only remember two of them. He forgets to pay bills. He is back seeing

his friends, but they are working and are active while the plaintiff is unable to join

them. The result is that he is isolated. Schooling causes him anxiety, and one time

he had to come home because he could not find the office he was supposed to go

to. He is obviously in pain and constantly stretching his neck and shoulders.

[215] Ms. McCluskey considers these to be significant changes. She compares the

current situation to before the October 2008 accident when the plaintiff was active

socially, he was working, he was playing sports and he was able to manage his life

by himself. Now her son is 23 years old and he needs to live with his mother

because he is not able to look after himself.


[216] Terry McCluskey, the plaintiff’s father, also testified. He and the plaintiff’s

mother, Ms. McCluskey, separated when the plaintiff was six years old but the father

has continued to be very involved with his son. Mr. McCluskey described a change

in the plaintiff’s face after the accident, not just from the broken jaw but a different

look to his son. He improved over the first year including the removal of the halo

brace. The plaintiff’s separation from his girlfriend after the accident was “a little bit

odd”, according to Mr. McCluskey, because they had been together a long time but

the plaintiff did not seem involved when they broke up. About one year after the

accident the plaintiff was in the workshop at home building a log bed. Something did

not fit and the plaintiff became furious with the project. According to Mr. McCluskey

the plaintiff had never acted that way before.

[217] Mr. McCluskey sees the plaintiff on a regular basis, sometimes once a day,

and they still go hunting. The plaintiff still hikes in the woods. But Mr. McCluskey

notices that when he comes back from a hike he tries to explain where he has been

and he falters in his explanation. Mr. McCluskey has to lead him through the

explanation by describing landmarks that the plaintiff might have seen. This is an

example where Mr. McCluskey “fills in the gaps” of things that the plaintiff speaks

about. Dr. Pirolli reviewed the plaintiff’s outdoors activities and she is concerned he

may get lost one day. Mr. McCluskey also observes the plaintiff struggling with his

pain and his frustrations in his limited physical ability.

[218] Mr. Murray Andrews is the plaintiff’s uncle and he owns a farm beside the

family home of the plaintiff. Mr. Andrews described the plaintiff before his accident

as athletic and outgoing, always doing something and always happy. Since the

accident and recently the plaintiff “gaps out” and forgets things. He looks depressed

and is often in pain. Sometimes Mr. Andrews looks at the plaintiff and wonders “if he

is home.” The plaintiff works on Mr. Andrews’ farm “to keep him [the plaintiff] busy”,

essentially just to give him something to do, but he often forgets things like closing

gates. Sometimes the plaintiff will drive a tractor, but it is not physical work, and all

he has to do is steer it around the field. Virtually all the work on the farm is

mechanized and there is very little heavy lifting for the plaintiff to do. Occasionally he


will lift one or two bales of hay. He helps with the tagging of animals but his role is to

just hand the tags to someone else. He goes with Mr. Andrews to fix fences but

fence posts are put in by mechanical “post pounders.”

[219] Stuart Guttormson is the stepfather of the plaintiff and the husband of Ms.

McCluskey. Mr. Guttormson recalls the plaintiff as being “sports crazy” before his

accident. There were no issues with the family being a blended one. When the halo

brace was removed from the plaintiff he had a very guarded posture for some time.

He still “cracks in his back” to get into a comfortable position. He sleeps a lot at

night, from 10 to 12 hours. Now he is quick-tempered and easily frustrated because

his friends have moved on with their lives and he has not. Mr. Guttormson also

testified that he works in Alberta and he hires people in the oil industry there. They

earn in excess of $100,000 per year, with overtime.

[220] Jessica Staal is the plaintiff’s girlfriend. They grew up together in Lumby and

started going out in the summer or fall of 2009. They now live together in the same

house as Ms. McCluskey and Mr. Guttormson. Ms. Staal describes her relationship

with the plaintiff as mostly good but very challenging. He has difficulty expressing

emotions, and she has to fight to get him to talk to her. They have fun when they go

out, but it takes a lot to get the plaintiff to go out because he says he is too tired.

When they are out with other people the plaintiff does not interact very much and

they generally go home early. The plaintiff slouches into a couch and it is “tough to

get him off.”

[221] When the plaintiff does talk it is about hunting and never about anything

personal or emotional. Ms. Staal testified that she can tell when the plaintiff is

excited but he does not show it. He feels better about himself taking the courses at

Open Door School but he sometimes gets frustrated with the work. He will forget

things frequently such as his wallet, and his reaction is to swear at himself. When

they first started living together their physical relationship was normal according to

Ms. Staal. Now it is infrequent, and she has told the plaintiff that she feels awful

about it. She is worried because it is tough to carry on, feel attractive and feel good


in the relationship. Sometimes they make plans together but the plaintiff doesn’t

realize he is stuck and he doesn’t think anything is wrong.

[222] Jordan Makasoff is the same age as the plaintiff and the two men grew up in

the Vernon area together. After high school Mr. Makasoff completed an

apprenticeship in carpentry. He is currently working in Fort McMurray, Alberta. In

2012 his gross income was $72,000 and he anticipates making in excess of

$100,000 in 2013. The defendant gave similar evidence. He is currently a

journeyman pipefitter working in Alberta and his earnings in 2012 were “just shy” of

$100,000. The defendant visits the plaintiff when he is back in Lumby from working.

He testified that “here and there” the plaintiff sometimes has difficulty finding words.

This is different than before the accident. The plaintiff is also forgetful sometimes

but, according to the defendant, everyone forgets things.

[223] The plaintiff attempted a return to work at Harris Cabinets in December 2009.

As explained above, he had worked there as a labourer before the October 2008

accident, and his plan was to start an apprenticeship in cabinet making there.

[224] The work in December 2009 was a graduated return to work, beginning with a

few hours each day. At first the plaintiff was given tasks such as cleaning up, and he

gradually did other duties such as sanding and using the planer. He testified that at

first it felt good to get back to work but there were “definitely issues” including a stiff

neck and back. Moving heavy loads was particularly a problem. Another example is

that when he was loading blank doors into a van, his left shoulder partially separated

and it was swollen by the end of the day.

[225] He was asked to build a small table and he measured everything up.

However he cut the corners of the molding for the table incorrectly two times. This

wasted an expensive piece of wood. He would also “waste time” trying to remember

the simplest things such as whether a measurement was 3/8 or 5/8 of an inch. He

was unable to get the most efficient use of a full sheet of plywood because he could

not plan the cutting of the sheet. This also wasted materials. Another time he was


using the table saw to perform the simple task of making shims and a piece kicked

back and hit him in the stomach.

[226] Mr. Harris testified that he made a point of observing the plaintiff when he

returned to work, and he described changes in how the plaintiff did his work.

Physically he was not able to do the same tasks as he could before the October

2008 accident. He could not turn his body as well, and Mr. Harris could see that the

plaintiff was in pain much of the time and was also frustrated. The working level of

the bench was changed in order to accommodate the plaintiff but this did not result

in much improvement. Mr. Harris described the plaintiff as “almost angry” that he

could not perform his duties. Mr. Harris also described the plaintiff as having

difficulty taking instructions and he had to be told more than once what to do. For

example he could not remember the measurements he took. With regards to the

plaintiff’s mood, Mr. Harris described the plaintiff as not being the “happy guy” he

was.

[227] Overall, Mr. Harris testified that before the accident he would have done

everything to hang on to the plaintiff as an employee in the shop. However, his work

after the accident demonstrated to Mr. Harris that he could no longer do the level of

work he did before the accident or do it safely. After about seven weeks of work, the

plaintiff discussed his difficulties with his family physician who advised him to stop

working at the cabinet shop. He did so.

[228] The plaintiff has also attempted a return to playing sports.

[229] In 2009 he played six to eight games in a recreational hockey league as a

goalie. He testified that his reflexes were not the same, his focus was not there and

he could not follow plays on the ice. He had trouble doing two things at once such as

watching a player with the puck and watching another player off to the side of the

goal who was open to receive a pass. This resulted in some “terrible goals.” He also

experienced increased pain in his neck and back. In 2012 the plaintiff played in

another recreational league where the season was about 20 to 30 games. He had to

stop playing after nine or ten games.


[230] In the spring of 2010 the plaintiff played in a “very relaxed” slow-pitch baseball

league. He also played slow-pitch with some friends in the fall of 2011. He thought it

would be “mentally good” to get out but it was “physically different.” He played

shortstop and made a number of mental mistakes. For example, he would tag a

player on the other team when that player was safely on base. This caused

questions from his teammates. Hand and eye coordination was a problem. He

denied that the problem was that he was out of shape and he had not played for a

period of time.

[231] In spring 2012 the plaintiff went to a local college and took a mathematics

upgrade course. This was part of a rehabilitation program. He withdrew from the

course because it was too difficult. In the fall of 2012 he enrolled in another

mathematics course at the Open Door School. This was more successful because

there was considerably more one on one attention. Although the course is done by

modules on computers, the plaintiff comes into the school at times when there are

few students there so he can get this one on one instruction.

[232] James Vest is the mathematics instructor at Open Door. He testified that the

plaintiff is taking a grade 10 pre-algebra course as a foundation for other courses.

The plaintiff sees Mr. Vest about three to four times a week when he comes to class.

He works in the class about two to three hours at a time, and not all of that time is

with Mr. Vest. The plaintiff was described by Mr. Vest as pleasant, diligent and

conscientious but he has some learning issues. He has difficulty concentrating and

retaining concepts so that, for example, he appears to have learned a concept but

by the next day he will have forgotten it.

[233] Mr. Vest described the plaintiff as being obviously frustrated and expressing

this by swearing to express this mood. Many of the students at open door have

attention deficits but with some work they can usually master the concepts in the

course. In contrast, the plaintiff has difficulty progressing because he is not always

able to recall what he learned previously. The plaintiff has completed two thirds of

the mathematics course, and, despite his difficulties, he has a 75% average.


Recently it was decided to put more pressure on the plaintiff and he enrolled in a

second course, this one in English. Mr. Vest does not teach this second course but

he testified that the plaintiff appears to have less time to apply to the mathematics

course.

MTBI: summary and conclusions

[234] I have found above that the plaintiff suffered MTBI at the time of the October

2008 accident. While most persons recover within weeks or months the medical

evidence is that some do not recover. As above, the literature is clear that a small

group of people with MTBI do not recover.

[235] The medical evidence of the plaintiff’s continuing symptoms is corroborated

by the evidence of the plaintiff and others. All of the experts accepted this was an

important part of the assessment of MTBI, at least as significant as psychological

testing. The plaintiff presents to the world with an overall blunted effect, and he has

problems focusing and concentrating. This was evident in his evidence. It was

forthright and sincere, but he had poor memory for recent events, including evidence

from the previous day. He forgot an appointment with his physiotherapist the day

before he commenced his evidence. He is uncomfortable in social situations and he

is unable to participate in sports.

[236] The observations by family, friends, an employer and doctors are in stark

contrast to the person the plaintiff was before the October 2008 accident. Prior to the

accident the plaintiff had some talent working with wood and his hands and he had a

good or better prospect of an apprenticeship in that field. That apprenticeship is now

out of the question and he is unsafe to himself and others in a shop environment.

Before the accident he planned and constructed his own wood furniture. Now, as

part of a rehabilitation program, he is unable to assemble a simple chair without

supervision and direction.

[237] Considering the medical evidence with the evidence of the various witnesses

and observing the plaintiff in the course of his evidence, I conclude that he continues


to have symptoms of MTBI. He is, unfortunately, part of a small group of people

who, despite some improvement, have continuing symptoms of MTBI.

PTSD

[238] The DSM-IV criteria for PTSD are based on six broad issues, each with sub-

issues (Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition). The

six broad issues are as follows:

A. The person has been exposed to a traumatic event;

B. The traumatic event is persistently re-experienced;

C. Persistent avoidance of stimuli associated with the trauma and numbing of

general responsiveness;

D. Persistent symptoms of increased arousal;

E. Duration of disturbance symptoms is more than one month; and

F. The disturbance causes clinically significant distress or impairment in social,

occupational, or other important areas of functioning.

[239] Dr. Pirolli’s preliminary comment about PTSD was in her first report of July 28,

2009. She thought the plaintiff had “an element” of PTSD, but she was not clear

whether he met all criteria because of his lack of insight and his denial about his

emotional state. She noted the plaintiff’s awareness that he could have died in the

accident and the fact that his friend had actually died. There was avoidance of

feelings, thoughts and reminders of the accident as well as detachment or numbing

of emotions. There was irritability, hypervigilance and “possibly some re-living of

aspects of the accident.” Dr. Pirolli was concerned that the plaintiff had not had the

opportunity to grieve the loss of a friend and she thought he may have been more

depressed than he realized.

[240] In her report of November 30, 2010, Dr. Pirolli again noted the symptoms of

PTSD and that the plaintiff was having significant difficulties with them and with


some depression. She thought he had gained some insight into these problems. She

recorded her test results and concluded that the plaintiff’s profile met the criteria for

PTSD, and his symptoms were at the borderline of the severe range. Her report was

to this effect, and she identified the DSM-IV criteria as the basis for her conclusion

and attached them to her report.

[241] In her oral evidence, Dr. Pirolli explained that there can be an overlap

between the symptoms of PTSD and MTBI, particularly emotional numbing. There

can also be sleep disturbance with both. However, problems with executive function

are not usually associated with PTSD. As well, MTBI results from a trauma to the

brain while current studies suggest that, in specific circumstances, PTSD can occur

even when a person is told about a traumatic event. The prognosis with MTBI is

generally good with 80 to 85% of persons making a full recovery (the plaintiff was in

the category of people who have not made a complete recovery). On the other hand

PTSD waxes and wanes, the prognosis is generally not encouraging and there can

be recurrences.

[242] Dr. Anton in his report of December 7, 2012, noted Dr. Pirolli’s reports and he

said there was an overlap between MTBI and PTSD and the latter is more common

in people with the former. In his interview the plaintiff said he had dreams about the

accident in the first one to two years afterwards but he had not had any recently. He

described “a little bit” [in his words as recorded by Dr. Anton] of flashbacks. It was

like a dream, he imagined seeing hospital lights and hearing sirens before he went

to bed gave him a strange feeling.

[243] Turning to the defendant’s experts on the issue of PTSD, Dr. Smith stated in

his report of November 16, 2012, that he reviewed the criteria for PTSD in his

interview of the plaintiff. He could not recall his emotional state just after the accident

and he was worried about where the other passengers were. He rarely thought

about the accident. At first he had nightmares but not at the time of the interview. He

reported feeling anxious when travelling with other people but not when he is driving.


[244] With regards to avoidance (the C criteria of the DSM-IV criteria) the plaintiff

was not certain whether he avoided thinking or talking about the accident. Dr. Smith

did not observe any distress. The plaintiff drives past the location of the accident and

does not avoid it. He did say he had a restricted affect, and Dr. Smith attributed this

to the death of the plaintiff’s grandfather two months after the accident. Under the D

criteria, Dr. Smith recorded irritability and outbursts of anger as well as problems

with concentration. There were no paranoid symptoms although the plaintiff was

concerned he was under surveillance.

[245] In his report of January 20, 2013, Dr. Smith reviewed Dr. Pirolli’s reports and,

with respect to PTSD, he stated that “it does not appear that she actually makes this

[PTSD] diagnosis.” Similarly, in his report of January 28, 2013, Dr. Williams was

critical of Dr. Pirolli because she did not administer the structured DSM-IV interview

for PTSD.

[246] In summary, there is Dr. Pirolli’s opinion that the plaintiff has met the DSM-IV

criteria, and his symptoms are in the borderline severe range. This is, in my view, a

diagnosis, and I disagree with Dr. Smith (and possibly Dr. Williams) that she has not

made a diagnosis. Dr. Smith considered PTSD when he interviewed the plaintiff, and

his findings were of some symptoms, rather than no symptoms.

[247] The plaintiff’s grandfather did die shortly after the October 2008 accident and

the two men were close. However, the evidence from Ms. McCluskey and others is

that the death was not unexpected because the grandfather had been sick for some

time and he was elderly. In addition, as Dr. Pirolli put it in her evidence, one would

expect grief from the death of a close relative but the plaintiff presented with a

blunted effect. When the plaintiff broke up with his previous girlfriend, Ms. Bosk, his

reaction, according to his mother and father, was also blunted rather than emotional.

Nor do I accept that the fact that he shot his first moose the week before the

accident is of great significance in explaining the plaintiff’s psychological problems.

And it cannot be seriously contended that the separation of the plaintiff’s parents


when he was six years old, after years of positive interactions, is an event that has

any current significance.

[248] I find that the accident itself, the understandable concern that he might have

died, the extensive injuries to the plaintiff, the fear associated with the neck brace

that he might be paralyzed and the actual death of a friend in the same accident of

the plaintiff (and in the next hospital bed) were and are very significant and traumatic

events.

[249] As Dr. Pirolli explained the symptoms of PTSD undoubtedly overlap with

those from the MTBI. Dr. Anton, as well as Dr. Pirolli, pointed out other

complications such as depression and pain. I read the reference to the plaintiff

worsening at some point to be a reflection of these conditions (including anxiety

while riding in a vehicle with someone else driving) rather than a worsening of the

MTBI. It is undoubtedly difficult to isolate one condition from another in this

psychological matrix but I find that there is a valid diagnosis of PTSD among other

conditions.

Summary of Injuries as a result of the October 2008 accident

[250] On the basis of the above analysis the October 2008 accident caused the

following injuries:

a) MTBI, from October 10, 2008 to the present;

b) fracture of C-2 vertebrae in three places (“hangman’s fracture”);

c) fractured right front lower jaw/lower anterior dental alveolar bone;

d) complete disruption of the right temporomandular joint (“TMJ”);

e) pain and injury to both TMJs;

f) fractured right upper jaw near the ear;

g) blood in both nostrils, lips and right ear;


h) right auditory canal with blood clotting and conductive hearing loss;

i) chipped and cracked teeth;

j) bottom teeth, left and right, pushed back into oral cavity;

k) T8 compression fracture;

l) injury to the left shoulder, including partial separations ;

m) back pain and limitations in the back;

n) L1 transverse process fracture;

o) right lung contusion;

p) left lung contusion with haemorrhaging;

q) collapsed left lung:

r) broken left rib;

s) isolated spleen;

t) renal contusion;

u) PTSD;

v) esophageal reflux disorder;

w) sleep disturbances;

x) headaches;

y) depression;

z) fatigue and weakness;

aa) chronic neck and limitations; and


bb) chronic pain limitations.

[251] I take this opportunity to point out that the above analysis has focused on

MTBI and PTSD because those injuries/diseases are much in dispute. However, the

evidence is also clear that the plaintiff has continuing and significant pain and

limitations with regards to his other physical injuries. The vast majority of these

injuries are not in dispute and nor are the limitations that result from them. They

affect his daily activities as well as his ability to work and his ability to return to any

sports. To take two examples, the plaintiff experienced a partial separation of his

shoulder when he attempted a return to work at Harris Cabinets. And the esophagus

reflux from his original treatments in 2008 continues and requires medication.

[252] He is clearly entitled to damages for all of these symptoms and resulting

limitations and I next proceed to assess those damages.

Non-pecuniary damages

[253] The plaintiff seeks non-pecuniary damages in the range of $200,000.00. The

defendant submits an appropriate range of damages under this head is $125,000.00

to $180,000.00.

[254] In one case relied on by the defendant (Asham v. Forsythe, 1997 CanLII 3192

(B.C.S.C.)) the plaintiff was 18 years old and was involved in a head-on car

accident. He suffered multiple injuries including compression fractures at L1-2;

fractures of the chin, right ankle, both feet and left elbow. There was also Grade 1

spondylosis. There was a suggestion of a cerebral injury but the medical evidence

was that it had only a mild and transitory effect. The injuries were not devastating but

they continued to cause the plaintiff a lot of pain and discomfort. Her previously

active life had been degraded and there was a likelihood of early onset arthritis in

the future. Non-pecuniary damages were assessed at $100,000.

[255] Comparing this judgment with the case at hand, I note that in Asham there

was virtually no issue of MTBI. As well, while the injuries in that case were

extensive, the ones in the subject case are more extensive. The award in Asham


was also made more than 15 years ago. Finally, defendant’s counsel has used an

on-line inflation calculator and submits that the current value of the Asham award is

$134,927.70. That may be so, but that calculation is not evidence.

[256] In another case relied on by the defendant (Holmes v. Hanna and Jubenville,

2001 BCSC 759) the plaintiff was 20 years old when the defendant dropped a large

rock from above the vehicle carrying the plaintiff, a passenger. He was hit and

suffered serious injuries. These included multiple fractures, significant damage to the

teeth and a moderate to significant injury to the brain. The latter caused disorders

relating to memory, concentration and speech. There was a 10 to 15% chance of a

seizure disorder in the future. There was PTSD. The plaintiff could no longer do the

heavy work he did before the accident or play hockey to the high level he did before

the accident. Non-pecuniary damages were set at $140,000.

[257] The Holmes award is a better comparable to the case at hand. It was,

however, made 12 years ago.

[258] I next turn to two cases relied on by the plaintiff.

[259] In one case (Adamson v. Charity, 2007 BCSC 671) a 42 year old plaintiff was

injured in a vehicle accident. He suffered a MTBI, chronic pain syndrome, severe

headaches, a major depressive disorder of moderate severity and aggravated

hearing loss. It’s primarily an issue of future income loss but he was expected to be

unemployable for the rest of his life. Non-pecuniary damages of $200,000 were

awarded.

[260] In another case relied on by the plaintiff (Lines v. Gordon, 2006 BCSC 1929)

the plaintiff was 28 years old when he was injured in a vehicle accident. He suffered

MTBI, severe and constant headaches and depression. He also lost his standing in

the community as a skilled mechanic, his relationships with others had changed, he

appears to others to be lonely, and his limited endeavours are tiring to him. Non-

pecuniary damages were assessed at $200,000.


[261] The plaintiff in the instant case has many if not all of the limitations in Lines,

Adamson and Holmes. These are set out in detail above. He is younger than the

plaintiffs in Lines and Adamson. As well, again, the award in Lines was made some

time ago.

[262] I conclude that non-pecuniary damages in the amount of $200,000.00 are

appropriate in this case.

Future care

[263] The following is a useful summary of the approach to be taken when

considering the cost of future care. McLachlin, J. (as she then was) said as follows

(Milina v. Bartsch, 49 B.C.L.R. (2d) 33 at 83):

. . . In Andrews [Andrews v. Grand & Toy (Alta) Ltd., [1978] 2 S.C.R. 229], supra, Dickson J. (as he then was) distinguished damages for cost of future care from damages for non-pecuniary loss in the following terms at p. 603:

The money for future care is to provide physical arrangements for assistance, equipment and facilities directly related to the [plaintiff's] injuries. Additional money to make life more endurable should then be seen as providing more general physical arrangements above and beyond those relating directly to the injuries.

The physical arrangements to be used in assessing cost of future care are based on what is required to preserve and promote the plaintiff's health. In Andrews, supra, Dickson J. said at p. 586:

. . . to the extent, within reason, that money can be used to sustain or improve the mental or physical health of the injured person it may properly form part of a claim. [emphasis added]

In Thornton [Thornton v. Sch Dist. No. 57 (Prince George), [1978] 2 S.C.R. 267], supra, the court, in defining "optimal care" stated at p. 609:

. . . it is clear from the medical evidence that the term merely connotes an ongoing practical level of orderly care in a home environment. [emphasis added]

If there was any doubt as to whether the award for cost of future care must be justified on a medical basis, it was dispelled by MacDonald v. Alderson, [1982] 3 W.W.R. 385…leave to appeal to the Supreme Court of Canada refused. In that case it was suggested [p. 418] that the plaintiff, a quadriplegic, should be awarded sufficient funds to purchase and maintain his own house on the non-medical grounds that this would give him a greater sense of " 'autonomy, privacy, financial stability and pride of ownership . . . and greater opportunities for gardening, owning a pet, and more space for hobbies' ". The Manitoba Court of Appeal rejected this evidence as "subjective theorizing" and reduced the award made at trial. The test for


determining the appropriate award under the heading of cost of future care, it may be inferred, is an objective one based on medical evidence.

These authorities establish (1) that there must be a medical justification for claims for cost of future care; and (2) that the claims must be reasonable. On the latter point, Dickson J. stated in Andrews at p. 586:

An award must be moderate, and fair to both parties . . . But, in a case like the present, where both courts have favoured a home environment, "reasonable" means reasonableness in what is to be provided in that home environment.

This then must be the basis upon which damages for costs of future care are assessed.

It follows that I must reject the plaintiff's submission that damages for cost of future care should take into account the cost of amenities which serve the sole function of making the plaintiff's life more bearable or enjoyable. The award for cost of care should reflect what the evidence establishes is reasonably necessary to preserve the plaintiff's health. At the same time, it must be recognized that happiness and health are often intertwined.

[264] In the subject case the plaintiff seeks damages for future care in the present

value amount of $310,000.00. Payment for the following are sought: physiotherapy,

psychotherapy, family counselling, pharmacological therapy, driving lessons,

dietician, speech therapy, dental costs, massage therapy, gym membership,

personal trainer, recreation therapy, Obusforme back support, mattress upgrade,

brain injury rehabilitation, case/life management, academic upgrading, vocational

counselling, training programs, tutoring, ergonomic assessments/equipment, job

coaching, housekeeping and transportation mileage. Ms. Chisolm, an occupational

therapist, grouped these costs under four headings: psychological therapy,

recreation therapy, aids to daily living and case management assistance.

[265] The defendant acknowledges that the plaintiff is entitled to expenses that are

reasonably related to future care but only ones that are medically justified and fair to

both parties. No specific amounts are identified by the defendant.

[266] The cost of future care for the next two to four years is a relatively

straightforward matter. However, this is a case of a now 23 year old man and there

are some difficulties with the calculation of the costs for future care. Some costs are

taxable and some are not. As well, the plaintiff’s evidence on this issue is not

transposable to my assessment of different amounts than those claimed. Finally, the


plaintiff’s specific submission on future care extends to six pages (excluding the

expert reports supporting it), it is overly detailed and it does not track the expert

reports. More specific assessments are required.

[267] For these reasons further submissions will be made on the cost of future care.

Retirement age will be 65 years old. Transportation costs will assume more than one

reason for travel (for example, appointments for both physiotherapy and psychology

on the same trip) and normal commutes will not be claimable. Costs can be initial

and/or ongoing. With regards to an escalator, I conclude that Mr. Carson’s opinion is

to be preferred over that of Mr. Szekely. No further expert reports are required on

future care.

[268] As well, the submissions will be made only under the following headings:

a) Physiotherapy (including dental);

b) Psychology (including family counselling, pharmacological counselling);

c) Driving lessons;

d) Dietician;

e) Speech therapy;

f) Dental (including oral splint, needling, acupuncture, prosbodontics);

g) Massage therapy;

h) Gym membership (including personal trainer, recreational therapy);

i) Obus form back support;

j) Mattress;

k) Housekeeping/yardwork/home maintenance;

l) Snow blower;

m) Brain injury rehabilitation;

n) Case management (including life management);

o) Academic/vocational counselling/job coaching/work site assessment;


p) Tutoring;

q) Ergonomic assistance including work station;

r) Transportation.

[269] To be clear, I have not as yet made any decision about the cost of any future

care, including the subject areas above. And, as above, future care is based on what

is medically justified in order to provide assistance, equipment and facilities directly

related to the plaintiff's injuries.

Future earning capacity

[270] The plaintiff seeks damages for loss of future earning capacity, with the

application of a multiplier, at $1,750,000.00. The defendant submits that the plaintiff

would have become a farmer but for the accident and that is an appropriate

comparable. The defendant also questions the total amount sought by the plaintiff

and the calculation of that amount but does not rely on a specific alternate amount.

[271] I adopt the following description from a previous judgment about one

approach to future earning capacity (Tsalamandris v. McLeod, 2012 BCCA 239 at

para. 31):

The appellants do contest how the trial judge then went about assessing that loss [of future earning capacity]. The trial judge set out to apply the principles canvassed in Rosvold v. Dunlop, 2001 BCCA 1, saying at para. 259:

The principles that govern the measurement of damages for loss of earning capacity were thoroughly discussed in Rosvold v. Dunlop, 2001 BCCA 1, 84 B.C.L.R. (3d) 158. The principles set out in that case can be summarized as follows:

1. the assessment of damages is not a precise mathematical calculation but a matter of judgment;

2. a plaintiff is entitled to be put in the position she would have been but for the accident;

3. an award for loss of earning capacity recognizes that the ability to earn income is an asset and the plaintiff deserves compensation if this asset has been taken away or impaired;

4. since these damages must often be based on a hypothetical, the standard of proof of a hypothetical is “real and substantial possibility” and not mere speculation;


5. the court must consider the real and substantial possibilities, and give weight to them according to the percentage chance they would have happened or will happen;

6. one starting approach to valuation may be to compare the likely future of the plaintiff had the accident not happened, and the likely future of the plaintiff after the accident has happened, and to consider the present value of the difference between the amounts earned under these two scenarios. (I note that in using the word “likely”, the Court on this point was meaning what hypothetical was a real and substantial possibility);

7. however, the overall fairness and reasonableness of the award must be considered, taking into account all of the evidence.

[272] The cases also suggest an alternate approach, the loss of earnings method,

for the assessment of future earning capacity. These involve the so-called “Brown

factors” as follows (Perren v. Lalari, 2010 BCCA 140 at para. 11):

... In Kwei [Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 393, 6 B.C.A.C. 314], where it was not possible to assess damages in a pecuniary way as was done in Steenblok [(1990), 46 B.C.L.R. (2d) 133 (B.C.C.A.)], Taggart J.A., speaking for the Court, held that the correct approach was to consider the factors described by Finch J., as he then was, in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353. Mr. Kwei had suffered a significant head injury with significant permanent sequelae that impaired his intellectual functioning. However, both before and after the accident, he worked at a variety of low paying jobs, thus making it difficult for him to demonstrate a pecuniary loss. Mr. Justice Taggart cited the Brown factors with approval:

The trial judge, as I have said, referred to the judgment of Mr. Justice Finch in Brown v. Golaiy. Future loss of earning capacity was at issue in that case. It stemmed from quite a different type of injury than the injury sustained by the plaintiff in the case at bar. But I think the considerations referred to by Mr. Justice Finch at p. 4 of his reasons have application in cases where loss of future earning capacity is in issue. I refer to this language at p. 4 of Mr. Justice Finch’s judgment:

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

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

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

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

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


[273] I read the above and other cases to indicate that the former approach

(Tsalamandris v. McLeod) is accurately called a loss of earnings approach because

the assessment is aimed at an estimation of the actual loss. Implicit in this approach

is the availability of information, prior to the injury that is a reliable indication of a

person’s earnings at the time of injury. The latter approach (Brown v. Golaiy) is

accurately described as a loss of capital asset approach. It is applicable to situations

where it is not possible or practical to assess actual loss because, for example,

relevant and appropriate information about a person’s pre-injury earnings is not

available.

[274] At the time of the October 2008 accident the plaintiff was 19 years old and

barely out of high school. He worked in high school but his earnings were minimal

($3,032 in 2006 and $4,360 in 2007). He began to work at Harris Cabinets after high

school and his earnings for 2008 up to the accident date of October 10, 2008, were

$19,223 (he earned $13.50 per hour). The result is that there is some information

about pre-injury earnings but it is minimal and, given the plaintiff’s age at the time, it

is not a reliable or appropriate indication of his future earning capacity.

[275] There is some earnings’ information about the plaintiff that is relevant to the

assessment of his future earning capacity on a loss of capital asset basis. He

testified that, but for the October 2008 accident, he would have approached the

owner of Harris Cabinets, Mr. Harris, and requested that he start an apprenticeship.

In his evidence, Mr. Harris said he would have readily agreed with that proposal.

Assuming completion of such an apprenticeship over about four years the plaintiff

could have been expected to be earning approximately $25 per hour now. That is

what Mr. Harris is paying his journeymen and my calculation is that annual earnings

would be something in excess of $50,000. It may be recalled that the plaintiff

attempted a return to work at Harris Cabinets as part of his rehabilitation. However,

he resigned after a short period because he was not physically able to do the work,

he no longer had the planning skills to work efficiently and he was a safety risk to co-

workers and himself. There is no question that the plaintiff can no longer do that kind

of work.


[276] In any event it is reasonable to conclude that the plaintiff would have been

working towards a trade, probably in something like cabinet-making, but for the

October 2008 accident. He had some talent for wood working, was working in a

cabinet-making shop, he was doing very well there and his request for an

apprenticeship would have been well received by the owner, Mr. Harris.

[277] Another comparable available to assess the future loss of earnings of the

plaintiff is the evidence of others who were similarly situated to the plaintiff prior to

the October 2008 accident. The plaintiff’s friend, Mr. Makasoff testified that he works

as a journeyman carpenter in Alberta and he expects gross earnings of about

$100,000 in 2013. The defendant, working as a pipefitter also in Alberta, is earning

about the same amount.

[278] Mr. Guttormson, the plaintiff’s stepfather, testified that he hires people to work

in Alberta with earnings in the same range as the defendant and Mr. Makasoff and

with the same skills. This is of some significance because presumably this would

have increased the chances of the plaintiff working in Alberta with high earnings, if

that is what he wanted to do.

[279] Of course it is not possible to know what the plaintiff would have done for

employment but for the 2008 accident. He may have done what his peers did, obtain

a trade and then work in Alberta with significant earnings. That career path would

have generated current earnings of about $100,000 per year. Or he may have been

content to work at Harris Cabinets because he liked the work, he preferred to stay

near home in the Vernon area and he was willing to forgo some employment income

for those benefits. This would have placed his current earnings in the range of

$50,000 per year. Or he may have developed an interest and/or had the opportunity

to do something quite different than either of these careers and with quite different

earnings. The nature of assessing future earning capacity is to consider these

contingencies and assess an appropriate amount.

[280] Bearing the above evidence in mind, as well as the difficulties in assessing

what would have happened (and what would not have happened), I conclude that a


reasonable assessment of employment income but for the October 2008 accident is

$90,000. That amount balances the career path the plaintiff could have had in high

earning work like his peers with the other career path of staying in the Vernon area

and working as a cabinet-maker.

[281] It is next important to assess the employment the plaintiff is capable of

working at now with his physical and cognitive limitations. If he is capable of some

work then it is appropriate to consider income from that work as part of the

assessment of future earning capacity.

[282] Ms. Chisholm, an occupational therapist for the plaintiff, assessed the

physical limitations of the plaintiff. He is capable of vocational lifting and carrying of

weights in the heavy category at shoulder height but there were concerns for a

shoulder separation. The plaintiff testified that he had a partial shoulder separation

when loading and unloading blank doors as part of his unsuccessful return to work at

Harris Cabinets. Lifting below the waist was appropriate for light weights. For short

durations he could balance, crouch and kneel but the knee pain reduced his

tolerance for low-level work. The plaintiff’s standing abilities were unremarkable but

sitting was difficult to read, while functional manual handling and dexterity handling

was above average. However handling tasks above shoulder height or requiring

prolonged shoulder flexion caused increased neck pain.

[283] Dr. Pirolli has explained in her reports and evidence the plaintiff’s ongoing

cognitive limitations. These relate to his executive functioning including making

judgments involving more than one factor, planning everyday tasks, deciding what to

do and deciding what not to do. Others have testified that the plaintiff is forgetful, he

is easily frustrated, he presents with a blunt effect and he is socially isolated. He can

no longer keep track of measurements or plan the efficient use of his time and work

materials. I hasten to add that there is no question that the plaintiff is highly

motivated (as evidenced by his work at Open Door), he is generally pleasant and he

genuinely wants to make some kind of contribution.


[284] Dr. Wallace, a psychologist with expertise in vocational rehabilitation for the

plaintiff, examined the plaintiff, provided three reports and he was cross-examined. I

have provided a detailed summary above. Dr. Wallace pointed out the plaintiff’s

significant physical limitations, the most important one being the residual effects of

the neck fracture and shoulder pain with any lifting. His cognitive deficiencies were

also noted and mathematical skills were particularly weak. Dr. Wallace confirmed

that work in cabinet making was no longer realistic and nor was work with similar

physical requirements. Some trades are relatively light work but to get to that level a

person needs to obtain seniority and start with work that requires physical strength.

[285] Dr. Wallace recommended academic upgrading, and the plaintiff is currently

taking two courses at Open Door School, mathematics and English. He is doing well

with the former course, but it must be said that he struggles with the material and, in

particular, he has difficulty remembering concepts that he learned previously. He

also has the benefit of one-on-one teaching at Open Door School with a teacher that

he likes and trusts. Dr. Wallace’s opinion that it is too early to “write off” the plaintiff,

and the fact he should be encouraged to build up his skills base is noted and is

appropriate. However, the current evidence is that the plaintiff would have difficulty

in an academic environment that would be part of a vocational program to prepare

students for the labour market. Education and training for positions such as

draftsperson and operations manager would, in my view, be difficult for the plaintiff

and fall into that category.

[286] In sum. Dr. Wallace believes that, ultimately, low-skilled sales and retail

positions would be suitable for the plaintiff’s limitations. These include gas bar

attendant, retail sales clerk and similar positions. He also noted that these positions

are not paid well and there is considerable turnover. Further, the plaintiff has much

reduced employment security because of his limitations and he can expect periods

of unemployment. As an end point of his assessment of the plaintiff, Dr. Wallace

proposed volunteer work.

[287] I also note a useful comment by Dr. Anton in his report of December 7, 2012:


It is still my opinion Mr. McCluskey [the plaintiff] will not be able to return to his former work as a cabinet maker or any physically demanding work. The dilemma is that any residual cognitive problems (whatever their cause) and persisting psychological dysfunction would make it more difficult for him to participate in light or sedentary work. His employability has been significantly reduced. Even if he is able to return to work, he will be at greater risk for periods of employment.

Mr. McCluskey is motivated to work but, following his recent negative experience when he attempted to upgrade his math, wants to work without doing any further upgrading in his education. If he is going to pursue retraining or further education, it will need to be something practical and consistent with his interests.

Mr. McCluskey will require close monitoring and academic support including a modified program and tutoring if he attempts further schooling or job training.

[288] In his oral evidence Dr. Anton confirmed his opinion that the plaintiff had

significant limitations but he was not unemployable for all work. As well, since the

above statement, the plaintiff has been working through his mathematics’ course

with some success and he is starting an English course.

[289] The defendant submits that the plaintiff would have worked as a farmer but

for the accident. It is true that he lives on a farm, his uncles on either side have

farms and he does some farm work now. It is also true that much of the physical

work of farming is now mechanized, as explained in the evidence of Mr. Andrews.

However, his evidence is also that the plaintiff works on Mr. Andrews’ farm in order

to “keep busy.” He does not do anything physical or anything requiring planning and

responsibility. In fact he has made basic mistakes such as forgetting to close a gate.

I conclude that farming is not a suitable occupation for the plaintiff’s physical and

cognitive limitations and he would be at risk of creating unsafe conditions for himself

and/or others in that work.

[290] From all of this it is clear that the plaintiff has significant physical and

cognitive limitations on his ability to be employed. He is not unemployable for all

work but the positions that are suitable for him are service industry positions. These

are low paid positions and work in this area includes periods of unemployment

because of the poor job security.


[291] I agree with the submission of the plaintiff that a reasonable annual earnings

figure for entry level positions in the service industry is $30,000.00. As above, I have

assessed the plaintiff’s employment income but for the October 2008 accident at

$90,000.00. The difference between these two figures is $60,000.00. Applying a

multiplier of $25,441.00, I assess damages for loss of future earning capacity at

$1,526,460.00.

In trust family care

[292] The plaintiff seeks damages for in trust family care in the amount of

$30,000.00 in order to compensate his mother for the extraordinary care she

provided him, particularly during the first year of his recovery from the October 2008

accident. The defendant submits that there is no basis for this head of damages.

[293] There is authority for an in-trust claim in Brennan v. Singh, [1999] B.C.J.

No. 520; cited in Chowdry v. Burnaby (City), 2008 BCSC 1337 at para. 61).

Mr. Justice Harvey said (at para. 95):

In my view, it is useful to review briefly the factors which are considered in the assessment of such claims. They are:

(a) where the services replace services necessary for the care of the plaintiff;

(b) if the services are rendered by a family member, here the spouse, are they over and above what would be expected from the marital relationship?

(c) quantification should reflect the true and reasonable value of the services performed taking into account the time, quality and nature of those services. In this regard, the damages should reflect the wage of a substitute caregiver. There should not be a discounting or undervaluation of such services because of the nature of the relationship;

(d) it is no longer necessary that the person providing the services has foregone other income and there need not be payment for such services.

[294] In another decision (Aberdeen v. Township of Langley, 2007 BCSC 993)

Mr. Justice Groves described the approach as being to provide full compensation for

the value of the contributions of family members based on the market value of

services provided (at para. 236).


[295] In the subject case Ms. McCluskey, the plaintiff’s mother, has supported her

son from the time she arrived at the hospital, the night of the October 2008 accident.

While in the hospital this was primarily emotional support including being part of the

discussion when the plaintiff was told that his friend had died in the same accident.

When the plaintiff returned home Ms. McCluskey adapted the family home to

accommodate him. This included, with the help of other family members, making

changes to the plaintiff’s bedroom in anticipation of the long hours he was going to

have to be there. She adapted his clothes so they could be worn with the halo brace

and she pureed food and medicine because his jaw was wired shut. She bathed him

and managed his reflux condition. She took him to his numerous appointments and

she remains vigilant to ensure he does not forget appointments.

[296] Clearly the contribution of Ms. McCluskey has been a valuable one and one

that is well beyond what should be expected of a mother in normal circumstances.

Ms. Chisholm in her expert report provided some information about the cost of

replacing this care with private help.

[297] In the circumstances the plaintiff’s claim for $30,000 as an in-trust claim is

reasonable and I make that award.

Summary of damages

[298] By way of a summary, the plaintiff is entitled to the following damages,

Past income loss $ 150,000.00

Special damages $ 10,517.00

Non-pecuniary damages $ 200,000.00

Cost of future care To be determined

Loss of future earning capacity $1,526,460.00

In trust family care $ 30,000.00


[299] Submissions on future care are outstanding. The parties may also make

submissions on the implementation of this judgment.

“Steeves, J.”

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IN THE SUPREME COURT OF BRITISH COLUMBIA - Nixon Wenger