Roeske v. Brickwood Holdings Ltd.,


2008 BCCA 88

Date: 20080220

No.: CA034770; CA034771

Docket:  CA034770


Fiona Roeske




Brickwood Holdings Ltd., Keith Routledge and

The Insurance Corporation of British Columbia



Docket:  CA034771


Fiona Roeske




Ingo Urban Grady, Sara Lynn Grady, General Electric Capital Canada Inc./Capital Generale Electrique Du Canada Inc., previously known as General Electric Capital Canada Leasing Inc. – Location Capitale Generale Electrique Canada Inc.




The Honourable Madam Justice Prowse

The Honourable Mr. Justice Hall

The Honourable Mr. Justice Chiasson

Oral Reasons for Judgment

G. Hilliker, Q.C.

Counsel for the Appellant

R.B. Lindsay, Q.C.

W. Serné

Counsel for the Respondents, Brickwood Holdings Ltd. & ICBC

D.C. Quinlan

S.. Katalanic

Counsel for the Respondents Ingo Urban Grady & S.L. Grady

Place and Date of Hearing:

Vancouver, British Columbia


18 February 2008

Place and Date of Judgment:

Vancouver, British Columbia


20 February 2008

[1]                CHIASSON, J.A.: Ms. Roeske was injured in motor vehicle accidents on April 16 and May 11, 1999.  She brought two proceedings seeking damages for injuries sustained in the accidents including damages for alleged brain injuries.  Mr. Justice Slade concluded Ms. Roeske did not sustain brain injuries in the accidents and awarded her general damages of $7,500 for the first accident and $15,000 for the second.  The judge also provided an assessment of damages in the event he had found Ms. Roeske sustained a brain injury in one or both accidents.

[2]                Ms. Roeske appealed, claiming the judge erred in failing to find she had suffered a traumatic brain injury in one or both of the accidents.

[3]                In paras. 11 – 14 of his reasons, indexed as 2007 BCSC 15, [2007] B.C.J. No. 20 (QL), the judge summarized the issues and stated his conclusion as follows:

[11]      These are the issues:

1.         Did Ms Roeske sustain a brain injury in the first accident?

2.         Was the second accident caused by the negligence of the defendant Keith Routledge?

3.         Did Ms Roeske sustain a brain injury in the second accident?

[12]      The defendants say that any deficits and other symptoms that may be attributable to brain damage are fully explained by multiple sclerosis and other factors.  The latter include personal setbacks that would explain any depression that Ms Roeske may exhibit.  The following issues arise:

1.         Did Ms Roeske have multiple sclerosis at the time of the accidents?

2.         To the extent that Ms Roeske exhibits cognitive deficits, are those deficits a manifestation of brain damage due to traumatic brain injury or multiple sclerosis?

3.         If Ms Roeske’s losses, and in particular her economic loss, resulted from injuries sustained in either or both accidents (“the accidents”), to what extent are those losses to be measured by reference to her employment and career opportunities as a stunt performer and stunt coordinator?

[4]                For the reasons that follow, I would dismiss this appeal.

[5]                Ms. Roeske was a successful movie stunt performer.  During the course of her career she sustained a number of work-related injuries.  She also was diagnosed as having multiple sclerosis.  In addition, Ms. Roeske had some difficulties in her personal life that resulted in the need for psychological medical attention.

[6]                It was Ms. Roeske’s contention that the injuries sustained in the accidents altered her personality and caused depression.  She led a considerable amount of medical evidence, coupled with evidence of lay witnesses who testified to negative changes in her behaviour. 

[7]                Ms. Roeske asserts the judge made three errors:

·                     drew an erroneous conclusion from the lay evidence concerning the time of the onset of the plaintiff’s cognitive difficulties;

·                     misapplied the medical evidence concerning the indicia required to give rise to the potential for a brain injury;

·                     erred in giving an interpretation to the neuropsychological test results which is not supported by the expert evidence.

[8]                I shall deal with each issue in order, but begin by noting the guidance provided by the Supreme Court of Canada in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 for this Court’s review:

21        [….] the standard of review is not to verify that the inference can be reasonably supported by the findings of fact of the trial judge, but whether the trial judge made a palpable and overriding error in coming to a factual conclusion based on accepted facts, which implies a stricter standard.

22        [….] Although we agree that it is open to an appellate court to find that an inference of fact made by the trial judge is clearly wrong, we would add the caution that where evidence exists to support this inference, an appellate court will be hard pressed to find a palpable and overriding error. As stated above, trial courts are in an advantageous position when it comes to assessing and weighing vast quantities of evidence.  In making a factual inference, the trial judge must sift through the relevant facts, decide on their weight, and draw a factual conclusion.  Thus, where evidence exists which supports this conclusion, interference with this conclusion entails interference with the weight assigned by the trial judge to the pieces of evidence.

[Emphasis in original.]

[9]                In H.L. v. Canada (Attorney General), 2005 SCC 25, [2005] 1 S.C.R. 401 Fish J., for the majority, emphasized at para. 73 that “the majority reasons in Housen should not be taken to have decided that inferences of fact drawn by a trial judge are impervious to review though unsupported by the evidence”.  He said further at para. 74:

74           I would explain the matter this way.  Not infrequently, different inferences may reasonably be drawn from facts found by the trial judge to have been directly proven.  Appellate scrutiny determines whether inferences drawn by the judge are “reasonably supported by the evidence”.  If they are, the reviewing court cannot reweigh the evidence by substituting, for the reasonable inference preferred by the trial judge, an equally – or even more – persuasive inference of its own.  This fundamental rule is, once again, entirely consistent with both the majority and the minority reasons in Housen.

[Emphasis in original.]

Lay Evidence

[10]            A number of witnesses testified they observed negative changes to Ms. Roeske’s behaviour subsequent to the accidents.  The judge stated in para. 157:

[157]    I accept the evidence of Ms. Roeske’s colleagues and friends that they noticed personality changes which seemed to them to coincide in time with the period following the accidents.  However, their evidence as to time was inherently unreliable.

[11]            One of the witnesses, Mr. Rustin, dated Ms. Roeske for a time.  He took her to the hospital after the second accident.  The judge summarized his evidence in para. 123:

[123]    After the May 1999 accident, and up to the time he left Vancouver in September 1999, they saw each other “pretty frequently”.  He noticed her become withdrawn, forgetful, moody, and more depressed than he had seen her previously.  They saw each other approximately once per week, and spoke frequently.  They spent a few days together, in New York, in December 1999.  He saw her a few times in 2000, once or twice in 2001, and, since then, around once a year. 

and concluded in para. 126:

[126]    I do not accept Mr. Rustin’s evidence on the frequency of contact with Ms. Roeske in the spring and summer of 1999.  She was in a relationship with Mr. Epstein, working on Hollywood Cooks, redecorating her apartment, and working as a stunt performer.  With infrequent contact, his evidence, six years later, that narrows the time he noticed changes in Ms. Roeske to the period immediately following the accidents, is quite implausible.

[12]            In her factum, Ms. Roeske states, “…there is no support in the evidence for the conclusion that the plaintiff was too busy to see Mr. Rustin once per week during the summer of 1999”.  In addition to the factors noted by the judge, the respondents point to the fact Mr. Rustin appeared to be unaware of many significant events in Ms. Roeske’s life at that period of time. 

[13]            Consideration of the evidence as a whole shows there was evidence to support the judge’s conclusion.  He accepted part of Mr. Rustin’s evidence, that is, Ms. Roeske’s behaviour changed, but rejected his evidence linking the change to the time of the accidents.  The judge was entitled to do so.

[14]            Mr. Epstein was Ms. Roeske’s boyfriend at the time of the accidents and appeared to be the witness with whom she had the most contact in the time surrounding the accidents (para. 113.).  The judge reviewed Mr. Epstein’s evidence in paras. 114 – 119 and concluded in para. 120:

[120]    Given the backdrop of the pre-accident pregnancy, Mr. Epstein’s lack of commitment to their relationship, and Ms. Roeske’s March 24, 1999 report that she was “just enduring”, I do not accept Mr. Epstein’s evidence that their relationship changed solely because of personality changes in Ms. Roeske commencing in May 1999.  I cannot give much weight to Mr. Epstein’s evidence of Ms. Roeske’s behaviours which, arguably, were attributable to brain injury.  His effort on Ms. Roeske’s behalf in the preparation of her May 20 report to ICBC was in aid of her claim advancing despite ICBC’s “no crash, no cash” policy.  His recollection of events following the May accident may be tainted by his inclination to advocate for Ms. Roeske.

[15]            Ms. Roeske states the judge erred by rejecting Mr. Epstein’s evidence because he accepted the evidence of another witness, which the appellant says was the same as the evidence of Mr. Epstein.  In her factum, Ms. Roeske purports to quote from the judge’s reasons stating he could not give “’much weight to Mr. Epstein’s evidence of the plaintiff’s behaviour post-accident’” and states “Mr. Epstein’s evidence in this regard is the same as the evidence of Ms. Stubbs, whose evidence the learned trial judge accepted”.  The same point is made concerning the judge’s partial rejection of the evidence of Mr. Rustin.

[16]            Ms. Stubbs worked with Ms. Roeske from July to December 1999.  In para. 135 the judge had this to say about her evidence:

[135]    While I accept Ms Stubbs’ evidence of Ms Roeske’s out of character behaviour while filming Mission to Mars, I do not consider her evidence to establish the time of the onset of these behaviours.  Mission to Mars was an opportunity to observe Ms. Roeske in a non-social situation.  For reasons mentioned above, it is apparent that there would not have been much contact between them up to and immediately following the accidents.

[17]            The issue with which the judge was concerned was not whether there had been a change in Ms. Roeske’s behaviour, but when it began.  This was because there was clear evidence that the change could have been caused either by the accident, by multiple sclerosis or by an accumulation of medical, professional and emotional problems faced by Ms. Roeske.  These included serious injury to her hands which limited her ability to perform stunts, a deteriorating relationship with Mr. Epstein, an abortion, issues with the Workers’ Compensation Board and the development of a new business venture.

[18]            It was on the key issue of the timing of the onset of Ms. Roeske’s behavioral change the judge found the evidence of the lay witnesses unhelpful.  The evidence of Messrs. Rustin and Epstein, which the judge rejected, was not the same as the evidence of Ms. Stubbs, which he accepted.  The judge found in para. 130 “Ms. Stubbs noticed a difference in Ms. Roeske when, in July 1999, she hired her to perform a stunt on the movie Mission to Mars” [Emphasis added]. 

[19]            Concerning Mr. Epstein, the words of the judge after the purported quotation in Ms. Roeske’s factum were “which, arguably, were attributable to brain injury”.  The judge clearly was focused on the timing of the onset of the behaviour change.  That is the evidence he rejected in the testimony of Messrs. Rustin and Epstein.  In my view, he made no palpable and overriding error doing so.

[20]            The evidence of the lay witnesses was relevant to causation.  The judge accepted the evidence her behaviour changed, but upon review of the evidence as a whole, he found it not reliable on the issue of causation.  I am not satisfied he erred and would reject this ground of appeal.

The indicia of a potential traumatic brain injury

[21]            Ms. Roeske states in her factum:

The potential for a traumatic brain injury exists when there is one of (a) a loss of consciousness; (b) post-traumatic amnesia; (c) feeling disoriented or dazed, or (d) a significant neurological sign (including headaches).

[Emphasis in original.]

[22]            She concedes there was no loss of consciousness and that the significance of her headaches was equivocal, but argues the judge conflated diagnostic criteria (b) and (c) by concentrating on her apparent lack of post-traumatic amnesia.  Ms. Roeske contends this may support a conclusion she did not lose consciousness, but not that she did not suffer “an altered state of consciousness”, that is, disorientation.  In her factum, she asserts the judge ignored the indication she suffered an alteration of consciousness.  In my view, the judge did not do so.

[23]            In para. 43 the judge stated, “I accept the medical evidence that the absence of a loss of consciousness does not preclude a diagnosis of brain injury.   I also accept the medical evidence that an altered state of consciousness… suggests concussion and the potential for brain injury”.  With respect to both accidents, the judge found Ms. Roeske may have sustained some alteration of consciousness: her lack of recall of events immediately following the first accident “[suggests] a brief alteration in consciousness” (para. 48); evidence of symptoms following the second accident “may suggest an altered state of consciousness” (para. 58).

[24]            In para. 181, the judge stated, “Ms. Roeske’s recall of her thoughts immediately after both impacts suggests no immediate alteration of consciousness”.  Ms. Roeske asserts this shows the judge conflated criteria (b) and (c).  In my view, it does not.

[25]            Ms. Roeske’s position takes too narrow a perspective on the evidence.  The content of her recollections shows she functioned reasonably normally immediately after the accidents.  In addition, there is no reason why her ability to recall is not relevant to whether or the extent to which she suffered an alteration in consciousness as well as to whether she lost consciousness. 

[26]            It is clear the judge was well aware an alteration in consciousness or disorientation may indicate a potential for brain injury.  He referred to this repeatedly in his reasons.  As noted, the judge stated there was a possibility Ms. Roeske sustained an alteration in consciousness, but, in his view it was not significant (para. 176) and he concluded on the balance of probabilities that she did not suffer a brain injury in the accidents.  This is apparent from his comments in para. 209 in which he dealt with a number of factors, including disorientation.  The paragraph begins with the words: “[w]hile Ms. Roeske may have experienced some disorientation following both accidents”.  [Emphasis added.]

[27]            Ms. Roeske contends that the evidence of disorientation requires a consideration of radiological evidence, neuropsychological test results and evidence of her functioning in the community.

[28]            The judge discussed the medical evidence in paras. 163 – 180.  This included the evidence of Dr. Crossen, Ms. Roeske’s treating physician and a number of specialists:  Drs. Keyes, Devonshire, Stimac, Goodin, Hunt, Wong, O’Shaughnessy and le Nobel. 

[29]            The judge dealt with neurological testing in paras. 183 – 194 and he addressed Ms. Roeske’s functioning in the community by considering in detail the evidence of the lay witnesses and the evidence concerning her alleged depression in paras. 195 – 206.

[30]            In my view, the judge did not misapprehend the evidence of Ms. Roeske’s condition immediately after each accident and he did consider the radiological evidence, neuropsychological test results and evidence of her functioning in the community. 

[31]            I am satisfied the judge proceeded correctly in his assessment of the medical evidence concerning the indicia required to establish a potential for a traumatic brain injury and would reject this ground of appeal.

Substitution of interpretation of neuropsychological test results

[32]            This ground of appeal raises a very technical issue concerning the interpretation of expert medical reports.  Considering and interpreting such reports clearly is within the mandate and responsibility of trial judges.  Absent very clear error, this Court should not interfere with a trial judge’s interpretation.  In this case, I would not do so for a number of reasons.

[33]            The purpose of the neuropsychological testing “was to determine whether Ms. Roeske had sustained any cognitive defects and, if so, their extent” (para. 184.). There was no attempt “to make any diagnosis of conditions that may affect Ms. Roeske’s cognitive functioning” (para. 186.).  In her report, the doctor who administered the first tests noted one of the results is typical of “acceleration/deceleration injuries”.  The judge stated in para. 189:

[189]    This is the only evidence that relates Ms. Roeske’s self-described problems following the motor vehicle accidents specifically to traumatic brain injury, as distinct from cognitive problems associated with multiple sclerosis.

[34]            Of significance is the judge’s phrase “self-described problems”.  The judge questioned the credibility of Ms. Roeske in para. 64 and concluded “[t]he tendencies revealed by the foregoing passages, and the dissonance between Ms. Roeske’s evidence of her difficulties and her activities in the post-accident period, raise some doubt over the reliability of her evidence”.

[35]            After referring to tests subsequently administered by Dr. Ruff and concluding the results differed in some respect from those of the first tests, in para. 194 the judge observed:

[194]    …if the tests administered by Dr. Amell and Dr. Ruff may be considered valid, Ms. Roeske’s performance in the very areas that suggested traumatic brain injury to Dr. Amell had improved on tests administered by Dr. Ruff over two and one-half years later.

[36]            The judge’s comments concerning the validity of the tests may reflect facts noted by the respondents:  Ms. Roeske’s education was overstated which overemphasized the measured deficiencies; she was drinking heavily.  If known, the latter fact would have caused Dr. Amell to discontinue the tests.

[37]            As noted, the judge was entitled to interpret the test results, but even if he were to have done so incorrectly, his error would not have been overriding.  He did not base his conclusion there was no brain injury caused by the accidents on the test results.  Causation was not their objective and the judge expressed a reservation about their validity. 

[38]            Ms. Roeske contends the judge relied on the test results and refers to para. 212:

[212]    Ms Roeske has received a diagnosis of probable multiple sclerosis.  She has multiple sclerosis of a remitting/relapsing type.  All of her neurological signs, including her cognitive deficits, can be explained by multiple sclerosis.  The later improvements in her test results in the areas that Dr. Amell found deficient due to brain injury suggest that her remitting/relapsing multiple sclerosis caused those deficits.  There is no evidence that traumatic brain injuries can be relapsing/remitting in nature.

[39]            The judge merely was relating the test result evidence to the diagnosis of probable multiple sclerosis.  He concluded in that context the test results did not support a traumatic brain injury.  The judge did not conclude Ms. Roeske’s condition was attributable to multiple sclerosis.  He concluded she did not establish on the balance of probabilities that her condition was caused by the accidents (paras. 14 and 214).

[40]            I would reject this ground of appeal.

[41]            I would dismiss this appeal.

[42]            PROWSE, J.A.: I agree.

[43]            HALL, J.A.: I agree.

[44]            PROWSE, J.A.: The appeal is dismissed.

“The Honourable Mr. Justice Chiasson”