Young v. Anderson,


2008 BCSC 1306

Date: 20080929
Docket: M042952
Registry: Vancouver


Keith Young



Deborah Anderson and
Ford Motor Company of Canada Limited


Before: The Honourable Madam Justice Boyd

Reasons for Judgment

Counsel for the Plaintiff:

J.M. Prodor

Counsel for the Defendants:

R.A. Deering
W.R. Chalcraft

Date and Place of Trial:

January 14-18, 21-25, 28-31,
February 1, 4-6, 11-15, 18-22, 25, 28, 2008



Vancouver, BC

Plaintiff’s Written Submissions:

March 4 and 25, 2008

Defendant’s Written Submissions:

March 14, 2008

1.0              Introduction:

[1]                The plaintiff claims damages for injuries suffered as a result of an accident which occurred on July 16, 2002 in Vancouver, B.C., when his vehicle was rear-ended by a truck owned by the defendant Ford and driven by the defendant Deborah Anderson (“Anderson”).  The plaintiff claims he has suffered a number of injuries, the most significant of which is a mild traumatic brain injury.  While the defence admits the plaintiff has suffered some injuries, it insists his complaints are exaggerated and that the evolution of his post-accident recovery is inconsistent with a mild traumatic brain injury. 

[2]                While liability was not admitted at trial, neither was it vigorously contested.  Nevertheless, a number of defence witnesses did provide testimony describing the circumstances surrounding the accident in an effort to demonstrate that the plaintiff’s immediate post-accident actions and symptoms were not those of an individual who had suffered a mild traumatic brain injury. 

[3]                The plaintiff (“Young”) is 56 years of age.  He was just short of 51 years of age on the date of the accident.  Prior to the accident, he had been employed for many years as a cameraman and director of photography in the film industry. 

2.0              The accident: 

[4]                The accident occurred on July 16, 2002 at approximately 4:30 p.m. during heavy rush hour traffic.  The plaintiff was driving home alone in his Audi TT sports car following his usual route eastbound on East Hastings Street.  He testified that his vehicle came to a full stop at a red light at the intersection of East Hastings and Kootenay Streets.  The next thing he recalls is a “bang” although he did not immediately realize it was his own vehicle which had been struck.  He does not know whether he was moved about in the vehicle nor whether he struck his head anywhere inside the vehicle on impact.

[5]                 While he does not recall exiting his vehicle, he does recall walking to the rear of his vehicle where he could see the damage to the rear bumper and body of his vehicle.  He noted that despite having had his foot on the brake, his vehicle was pushed forward some 8-10 feet.  He exchanged a few words with the defendant driver, Anderson.  He says she effectively apologized for the accident, explaining that she had either not noticed the red light or had not noticed his vehicle.  He recalls that they pulled their vehicles off East Hastings Street onto a side street, Boundary Road, to exchange information, although he does not specifically recall moving his car to that location. 

[6]                Anderson provided a different description of how the accident had occurred.  She said she had been driving eastbound on Hastings Street in bumper-to-bumper traffic, travelling no faster than 10 kilometres per hour.  She believes she was the third in a line of eastbound vehicles approaching a green light.  As the light turned from green to yellow, she says the first vehicle in the line, that is the vehicle ahead of the plaintiff’s vehicle, continued to travel through the intersection.  While she expected the plaintiff would follow that vehicle through the intersection, she says he suddenly appeared to change his mind and brought his vehicle to a stop.  She attempted to stop her truck but failed to do so in time, thus rear-ending the plaintiff’s vehicle.  She insisted she was travelling at a speed of less than 10 kph at the point of impact. 

[7]                Under cross-examination, Anderson initially adopted her earlier discovery evidence that both the plaintiff’s and her own vehicle were accelerating uphill just before the collision.  Pressed on the matter, she was unable to say with any certainty whether she was actually accelerating at the point of impact.  While she says she could feel the bump of the impact, she did not know whether her truck actually pushed the plaintiff’s vehicle forward.  While she insisted that they had both moved their vehicles onto Kootenay Street to exchange information, her evidence conflicted with that of her sister who conceded in cross-examination that they had turned their vehicles off onto Boundary Street, as the plaintiff had also testified. 

[8]                The defendant’s sister, Michele O’Keefe, admitted that at the time of the accident, she had been talking to her sister and either looking down or into the glove compartment when the collision occurred.  She believed that just before the collision the defendant’s truck had been “inching “ along in traffic and had been stopped, just shortly before moving forward and striking the rear of the plaintiff’s vehicle.  

[9]                When she was interviewed by a private investigator in January 2007, she described the plaintiff as a bald man--which he is not.  While she initially insisted that the private investigator did not identify himself when he called her, she corrected that evidence on her review of a transcript of the interview. 

[10]            Overall, I did not form the impression that either the defendant or her sister had any particularly strong or reliable recollection of the circumstances surrounding the accident.  I accept the plaintiff’s own description of the accident— that he was seated at a red light when his vehicle was suddenly, without notice, rear-ended by the defendant’s truck.  

[11]            The force of the impact was sufficiently strong to cause the plaintiff to suffer bruising across his chest where the seatbelt had restrained him.  Mr. Rishad Ali, a material damager estimator for ICBC, testified that the plaintiff’s Audi TT suffered approximately $2519 in damage to the rear bumper (including the metal reinforcement bar) and rear body panel, both of which required replacement.  

[12]             At trial, the plaintiff produced the damaged bumper which he retrieved from the body shop following the repairs.  Since there was no admissible engineering evidence on the matter, I am unable to make any findings concerning the extent of the damage nor what speed of impact would be consistent with such damage. 

[13]            That said, I believe I can take judicial notice of the fact that the defendant’s F150 pick up truck constitutes a much larger and heavier vehicle than the plaintiff’s Audi TT sports car.  I accept that a Ford F150 pickup truck travelling at 10-15 kph would strike a stationary Audi TT with sufficient force to cause something beyond minimal damage to the vehicle, as was in fact the case here.

[14]            In any case, I find the defendant Anderson was negligent in failing to keep a lookout and rear-ending the plaintiff’s vehicle and that she is thus entirely at fault for this collision.  

3.0              Immediate post-accident actions and injuries: 

[15]            After exchanging insurance information with the defendant, the plaintiff noticed that his cellphone battery was running low.  Although he has no recollection of the actual drive, he knows that he drove to the home of his friend, Mr. Jack Rowand (“Rowand”), who lived in North Burnaby within eight blocks of the accident scene. 

[16]            Rowand recalled that the plaintiff turned up at his home, advising that he had just been in an accident.  Rowand testified that Young appeared to be “in distress”, “uncomfortable” and “in pain”.  He looked “disoriented” and was “not himself”.  

[17]            The plaintiff asked to use Rowand’s telephone and then contacted his common-law wife, Sharan Wood (“Wood”), to advise that he had been involved in an accident and was suffering some discomfort.  While she recommended that he attend hospital, he decided instead to attend the clinic of his family doctor, Dr. Kevin Sclater, nearby their home in Port Coquitlam.  I accept Young’s evidence that he has no specific recollection of the drive to Sclater’s office. 

[18]            On arrival, he found the clinic closed and then drove to a nearby walk-in clinic.  Again, he does not specifically recall the drive to the walk-in clinic.  At the walk-in clinic he was examined by a Dr. Poon.  By this point in time, he was aware of pain in his neck and lower back.  He recalls that he was “quite confused” and that his vision was blurred.  He believes he also complained to the doctor that his balance was “a little off…as if things were sliding on me”.  The doctor examined him and provided him with a prescription for anti-inflammatories and pain medication and asked him to return in one week.  

4.0              Credibility:

[19]            Based on the plaintiff’s overall description of the immediate post-accident events, the defence has challenged his evidence on two grounds. 

[20]            First the defence says that the plaintiff has provided a detailed and uninterrupted memory of many of the events surrounding the accident—a recollection which it submits is inconsistent with Young’s alleged mild traumatic brain injury. 

[21]            Secondly, the defence says the plaintiff’s description of the accident and the surrounding circumstances has evolved over time and that his present claims of intermittent gaps in his memory are simply not credible. 

[22]            In this regard, the defence has compared the different descriptions of the accident which the plaintiff has provided to various parties, including the ICBC adjuster, the various doctors involved, as well as to the Court during this trial.  

[23]            For example, within days of the accident, when the plaintiff provided a statement to an ICBC adjuster stating that he had left the accident scene and had driven to his friend’s home, he did not point out that he did not actually recall the drive there.  The defence also notes that while, at trial, the plaintiff claimed he did not remember the name of the doctor who examined him at the walk-in clinic in Port Coquitlam (Dr. Poon), he was somehow able to include that doctor’s name in his written statement he provided to ICBC.  He explained that he must have written down the doctor’s name and thus referenced it for inclusion in the statement.  Further, in his statement to ICBC, he recalled that while he was at the walk-in clinic, the doctor remarked she could see a swelling of the lower part of his back.  At trial, and later, when interviewed by various doctors, he had no recollection of the events at the clinic.  There are other examples. 

[24]            While I acknowledge that there are some inconsistencies in the plaintiff’s various renditions of the accident and the surrounding circumstances, I am not persuaded that in the context of all of the evidence, these inconsistencies are particularly significant or that in themselves, they raise the spectre of concoction or confabulation on the plaintiff’s part. 

[25]            In this regard, I am mindful of the evidence of Dr. Ancill, the psychiatrist who examined the plaintiff in December 2006 and then assumed his care in early 2007.  He emphasized that a person’s memory is a complex amalgam of many things—personal efforts at reconstruction, the receipt of information from other sources, and finally one’s own actual memories.  He adopted the plaintiff’s own description of his post-accident memories as akin to a “slide show” of various slides which are not joined together.  Indeed, at trial the plaintiff described his memories as “still images…like flashes with lots of blanks”. 

[26]            While Dr. Ancill accepted that the plaintiff’s memory of the accident may have become contaminated over time, he underlined the importance of nonetheless identifying the genuine gaps in his memory.  As a psychiatrist, he emphasized that during the course of the clinical interview, he focuses on attempting to distinguish the patient’s actual memory from his reconstructed memory in an effort to establish whether there is continuity or discontinuity of memory.  This assessment is complicated by the fact that oftentimes the patient will have difficulty providing a history.  On any given day, the individual’s ability to engage in a sustained conversation and to recall events will depend heavily on his mental and physical state. 

[27]            In this case, the plaintiff’s overall physical and emotional state was relatively compromised from the outset—particularly by his tinnitus (more of which I will say later)—and then worsened over time, as he became more and more depressed.  Not surprisingly, he has been neither a stellar, nor on occasion even a reliable historian, or at least one who has been careful during each interview to distinguish between what he actually recalls and what he surmises occurred.  That said, I believe that as Dr. Ancill has testified, none of the physicians involved here appear to have strived to impress this distinction upon Young. 

[28]            In any case, I accept that in the plaintiff’s case, while his description of the events surrounding the accident has varied somewhat, he has suffered what Dr. Ancill describes as a “significant period of post-traumatic discontinuous memory” which extended until he arrived home, several hours after the accident.

[29]            On a more general note, I reject the defence theory that the plaintiff is a malingerer who has deliberately fabricated or exaggerated his symptomsHaving observed the plaintiff in the witness stand for a number of days, I detected no signs of obvious malingering or exaggeration.  I do acknowledge however that he is not a typical middle-aged male witness.  He is a self-described “artist” who has spent his life working in the dramatic visual arts, primarily in the television and motion picture industry.  He sometimes provided his evidence in an emotional, somewhat dramatic fashion, using colourful phrases to describe his symptoms or his feelings of loss.  At other times, showing obvious exhaustion, he responded in an almost defeated, impassive fashion to counsel’s questions.  

[30]            Despite the sometimes dramatic overlay, the plaintiff did not strike me as either hysterical or histrionic.  Rather I formed the impression he is a very sensitive man whose whole identity and sense of self have been deeply wounded by the constellation of symptoms he has suffered over the last several years.  He has lost his professional identity.  He has lost his ability to provide for his family.  He has become socially isolated.  Both he and his wife presented as very troubled, anxious individuals, clearly worn down by the seeming hopelessness of the situation at hand.  Overall, he impressed me as a forthright, credible witness. 

[31]            The defence was particularly focused on the results of the Lees Haley Fake Bad scale (FBS), one of a battery of neuropsychological tests administered by Dr. Desmond Coen.  He acknowledged that the plaintiff’s raw score of 27 was in excess of the cut-off for males (27) and was indeed “quite high”.  As he put it, Young was well above the average score of individuals involved in litigation and thus the result at least raised the possibility of symptom exaggeration.

[32]            I accept Dr. Coen’s warning that in spite of that result FBS scores may never be used in isolation and must always be considered in the context of other test scores.  Indeed, as he concluded at page 17 of his report, the FBS score here “has no meaning in view of the fact that all of the other 14 MMPI-2 validity scales checked were within average limits”.  At page 12 of the report he emphasized the great efforts he made to verify that Young was exerting optimal effort throughout:

Neuropsychological testing presumes the testee is making the best possible effort.  If a patient is not trying hard, and perhaps attempting to exaggerate their problems (or even entirely concoct their impairments), the neuropsychological test result have no validity.  For this not insignificant reason it is very important to verify the patient is exerting optimal effort.  Several specialized testes were given to evaluate the degree of effort made by Mr. Young during neuropsychological testing and he passed all of these (DCT, TOMM, GWMT).  For these and other reasons (primarily observation) I am of the opinion he tried very hard on testing and the obtained test scores likely represent his current cognitive ability, when tested under ideal conditions.  In a non-clinical environment he may not do as well due to the natural noise and other stressors that intrude. 

[33]            Quite contrary to the defence proposition, I accept Dr. Coen’s finding that the plaintiff was neither concocting nor exaggerating his cognitive disabilities during the course of that extensive testing.

[34]            The defence also stressed the findings of Dr. Sovio, the orthopaedic surgeon retained by the defence, who examined Young in January 2006.  He concluded the plaintiff had exhibited significant exaggeration of his symptomology during several tests- thus exhibiting a number of positive Waddell signs.  As he put it, the plaintiff’s perception of his symptoms did not match the findings on physical examination.  The defence relies heavily on this opinion to support a finding the plaintiff is guilty of malingering or symptom exaggeration.

[35]            I accept both Dr. Coen’s, and Dr. Rathbone’s evidence that the Waddell signs are notoriously unreliable for detecting malingering.  As Dr. Rathbone testified, the Waddell signs are “distinctly unreliable” in cases where the patient suffers depression.  Indeed the literature presented to Dr. Sovio at trial echoed that warning.  In cross-examination, Dr. Sovio adopted the extract from the SPINE journal (Exhibit 67, Tab 6, SPINE Volume 23, Number 21, pp. 2367-2371) to the effect that non organic signs cannot be interpreted in isolation.  He accepted the following summary at the outset of that article:   

Behavioural responses to examination provide useful clinical information, but need to be interpreted with care and understanding.  Isolated signs should not be overinterpreted.  Multiple signs suggest that the patient does not have a straightforward physical problem, but that psychological factors also need to be considered.  …Behavioural signs should be understood as responses affected by fear in the context of recovery from injury and the development of chronic incapacity.  They offer only a psychological ‘yellow-flag’ and not a complete psychological assessment.  Behavioural signs are not on their own a test of credibility or faking. 

Of course, as I will later note, in early 2006 the plaintiff was significantly depressed.  I have no doubt that any number of psychological factors were at play in the course of Dr. Sovio’s examination which may well have presented as the non-organic signs detected.  However, I do not conclude that the plaintiff was deliberately malingering or exaggerating his symptoms during that examination.

[36]            Finally, I must note the defence reliance on the very patchy history of complaints which Young brought to the attention of his family doctor, Dr. Sclater, over the five years or more following the commencement of his post accident treatment in November 2002.  The plaintiff explained that he usually only brought the most debilitating complaints to Dr. Sclater’s attention.  Dr. Sclater conceded the very limited time allowed each patient in his busy practice does not allow a patient to present all of his current symptoms.  For the most part a patient will only address what he believes to be most pressing issue and leave the other matters to be pursued at a later date.  Dr. Sclater confirmed that as a result he will not necessarily be aware of the entirety of the patient’s complaints, nor is there a guarantee that each complaint will necessarily be recorded in his clinical record.  He testified that the plaintiff always struck him as a “hard working, stoical guy”, unlikely to take off work to follow up each complaint with his doctor. 

[37]            Dr. Sclater was particularly focused on Young’s tinnitus, depression and soft tissue pain.  While Young did not complain to him of blurred vision, cognitive difficulties, or headaches, I accept Young’s testimony that he did indeed suffer those symptoms.

[38]            Likewise the defence has relied on the observations of Dr. Irvine, the ENT specialist who the plaintiff returned to following the accident, and then again in June 2005 and November 2006.  On this later occasion, Dr. Irvine noted Young’s difficulty moving about the office, stumbling on a footrest and demonstrating some difficulty finding words, thus speaking in a slow and hesitant fashion.  Dr. Irvine notes in his report of December 11, 2006 (Exhibit 9, Tab 2) that these were new physical findings, not noted in the earlier post-accident visits.  While the defence suggests these symptoms were fabricated and part of an ever-evolving dramatic presentation on the plaintiff’s part, I cannot agree.  Again, I note that by late 2006, the plaintiff was struggling on many fronts.  The tinnitus, depression and insomnia remained unresolved, while the neurological difficulties had only recently been diagnosed.  Quite apart from the ongoing symptomology, I expect that at least some of what Dr. Irvine witnessed, was the reflection of a heavy emotional overlay.

[39]             My overall sense of the history here is that neither the plaintiff nor his wife had any clear understanding of the nature nor the depth of his difficulties until his depression deepened, finally resulting in a psychiatric consultation in March 2006 and then a full investigation with a neuro-psychologist and neurologist in May and November of 2006, at which point the mild traumatic brain injury was finally diagnosed.  As Young testified in cross examination, for a good deal of the early years following the accident, he was very simply overwhelmed by the tinnitus and the back pain and paid little attention to his other symptoms.  His focus was attempting to resolve the tinnitus, which appeared to be logically linked to his depression, insomnia, as well as his inability to focus and concentrate.  Until late 2006 he continued to struggle as a cameraman, then as an animation lighter and finally as an instructor at the Vancouver Film School (“VFS”).  My impression is that the plaintiff was privately highly embarrassed by his cognitive deficits and thus slow to admit to himself, let alone to others, the extent of his problems.  Even his wife was unaware of his suicidal ideation.  Thus, in my view, while his history of complaints is indeed a patchy one, it does not negate the legitimacy of his injuries.

[40]            Finally, I must make some note of the video surveillance evidence adduced by the defence.  There were two private investigators who conducted surveillance of the plaintiff over several days in December 2007.  Little emerged from either investigator other than the fact the plaintiff rarely left his home except to attend various therapies; that he appeared well able to operate a vehicle and manoeuvre even in heavy traffic; and finally that he usually wore dark glasses and when walking,  was moving relatively deliberately on foot.  Consistent with the plaintiff’s own evidence of becoming lost, he overshot his usual highway exits while travelling by vehicle.  Other than that observation, since the medical evidence was that his ability to drive was not inconsistent with an MTBI injury, I saw nothing in the surveillance videos to either strongly support or challenge the plaintiff’s claims. 

5.0              Pre-accident medical history: 

[41]            Prior to the accident, the plaintiff had a history of chronic neck pain which dated back some 10-11 years. 

[42]            In the fall of 1998, he consulted with a Mr. Patrick Lo (“Lo”), a physiotherapist in Coquitlam and provided a history of chronic pain over the previous 6-7 years.  He complained he had recently suffered an increase in pain with “pins and needles” down the left fingers, particularly the 3rd and 5th.  The plaintiff attended seven physiotherapy sessions between October and November 1998, by which time the pain had subsided. 

[43]            In mid-February 2000, the plaintiff experienced what Lo described as a “second episode” of lower neck pain.  He attended nine further physiotherapy sessions between February 19th and March 25, 2000 before the neck pain and stiffness were once again resolved. 

[44]            In August 2000, he suffered a “third episode”—this time recurring pain on the left side of his neck, with some occasional parasthesia of his left fingers, as well as some mild left arm pain which the plaintiff suggested to Lo might be related to a fall onto his left side at work.  After only two physiotherapy sessions he felt much better and was discharged. 

[45]            A “fourth episode” followed in mid-December 2000 related to the onset of low back with no precipitating event which could be identified.  At that point he denied any history of back pain.  He noted periodic static pain, aggravated by forward bending and prolonged standing or walking.  He was discharged from further treatment after three physiotherapy sessions. 

[46]            The “fifth episode” occurred in early June 2002, when he attended the clinic again, this time complaining of pain in his right side, which he specifically related to his attempt to move a large planter during a session of home gardening.  By June 18, 2002, he was feeling much better and back to his usual activities. 

[47]            Apart from these episodes of neck and back pain, the only other significant history concerned his complaints of tinnitus which arose in early 1999.  His family physician referred him to Dr. Robert Irvine, an ENT specialist.  When he saw Dr. Irvine in March 1999 he informed him that he had suffered a two-month history of “a high frequency, steady tinnitus in both ears, louder in his right ear”.  The physical examination was normal.  Following a hearing test, Dr. Irvine diagnosed the condition as “a mild high tone sensorineural hearing loss with secondary tinnitus”.  No treatment was prescribed and he was advised to have his hearing retested in two years’ time. 

[48]            I accept the plaintiff’s testimony that this pre-accident tinnitus was more akin to a “whistle” which he experienced intermittently over a 1-2 month period.  I accept his evidence, corroborated by his wife, that after consulting with Dr. Irvine in early 1999, the tinnitus resolved and that by the date of the accident, some three years later, it was neither an active nor a disabling condition and did not interfere with either his ability to sleep nor his ability to perform at work. 

6.0              Post-accident history: 

[49]            As I noted earlier, immediately post accident, the plaintiff suffered neck and back pain, blurred vision and some balance problems.  Within a few days of the accident, he noted a “screeching” sound his ears.  He consulted the walk-in clinic physician who apparently prescribed physiotherapy.  He attended on Lo, his long-standing physiotherapist, on August 1, 2002 complaining of neck and low back pain, but no complaints of vertigo.  Lo diagnosed the condition as a Grade 1 plus cervical lumbar paraspinal strain. 

[50]            He continued with physiotherapy treatments while attending at the medical clinic on 2-3 occasions.  While he returned to see his family physician, Dr. Sclater, on September 10, 2002, it was in relation to a non- accident related matter which was not described at trial. 

[51]            While he completed a CL-19 report for ICBC in October 2002, Dr. Sclater did not actually see the plaintiff nor assume his primary care in relation to his post-accident complaints until November 1, 2002.  At that point he noted the plaintiff was suffering neck and back pain and tinnitus and arranged a referral back to Dr. Irvine, the ENT specialist.

[52]            The plaintiff saw Dr. Irvine on September 9, 2002 with a chief complaint of tinnitus.  He reported that approximately one week after the accident: 

(h)e became aware of a loud, steady bilateral tinnitus.  He described the frequency as high-pitched, higher than a ringing bell.  The intensity was described as very troublesome, and at times overpowering.  It was interfering with his hearing, and causing sleep disturbance, both initiating and maintaining sleep.  He stated that this tinnitus was much louder than he had experienced before the accident.  (Dr Irvine Report April 3, 2006, Exhibit 9, Tab 1) 

[53]            Dr. Irvine referred the plaintiff to St. Paul’s Hospital where an audiogram was performed.  This test established a slight high frequency hearing loss consistent with the previous testing.  The tinnitus was now matched to the 12,000 Hertz frequency, a very high frequency, although the intensity itself could not be measured.  

[54]            On Dr. Irvine’s referral he was sent to Ms. Carol Lau (“Lau”) of Sound idEARSinc., a Hearing and Speech Clinic and Vancouver Tinnitus Clinic, for tinnitus retraining therapy.  At this point, he described the impact of the tinnitus on his life as 9 out of 10.  Lau measured a moderate degree of hearing loss in both ears.  On a tinnitus matching test, she too confirmed a frequency of 12,000 Hertz.  Since he was found eligible, the plaintiff thereafter attended for tinnitus retraining therapy at the clinic approximately every 3 weeks.  As Lau explained, the tinnitus retraining is like cognitive retraining therapy, aimed at training the brain to stop any negative association with the tinnitus sounds and “let it go”.

[55]            At the outset of the tinnitus retraining therapy, Young was fitted with masking devices for both ears.  These appear much like hearing aids and generate white sound at a frequency very close to the tinnitus frequency, thus hopefully reducing the intrusiveness of the tinnitus and allowing the brain to block it out.  The maskers are not designed to actually block out the tinnitus, since in that case, the brain would not learn to block it out.  However even with the masking devices in place, the plaintiff reported little significant progress.  He complained he was having difficulty understanding conversations, that his wife mentioned he seemed “confused”, and that he was experiencing great difficulty reading technical manuals or following complex multi-step directions on the film set.  Reading comprehension was also compromised.  He reported an inability to sequence and organize his thoughts and to remember information, particularly where that information was relayed verbally. 

[56]            Eventually, by August 2005, Lau suspected an overlaying problem, that is a central auditory processing disorder.  She conducted an auditory processing assessment in November 2005 and on the basis of that battery of testing, she concluded the plaintiff was presenting with both an “integration deficit” as well as a “secondary auditory closure”.  

[57]            As she notes in her report (Exhibit 42, Tab 2), an integration deficit is characterized by difficulty in tasks which require the transfer of information between the left and right hemispheres of the brain.  The primary complaints of such individuals will include: 

(1) significant difficulty hearing in noise; (2) difficulty understanding prosodic content of speech, eg. A sarcastic tone and other abstract components of communication; (3) feeling as if the ‘right’ ear is better, (4) difficulty localization of sounds especially if they cross midline.  Individuals with auditory integration difficulties are typically slower to complete tasks and do not readily understand what is required of them when presented with verbal, complex directions.  There is also greater difficulty when multimodality cues are added or when required to multi-task, for example copying notes from a board and trying to listen to a speaker.  These individuals are easily overwhelmed when presented with too much information at one time.  (page 4) 

[58]            She describes the secondary auditory closure as a left (language) hemisphere based APD.  The primary complaints of such individuals include: 

(1) difficulty hearing in noise or with speakers who do not articulate clearly or with a foreign accent resulting in frequent need for repetition;  (2) frequent ‘mishearing’ and subsequent ‘misunderstandings’, (3) auditory fatigue or overload, and (4) faring better in quiet listening environments or when visual or multimodality cues are provided.  (page 4)

[59]            Ultimately, on the basis of the testing she conducted, Lau diagnosed Young as having sustained neurological damage to the Central Auditory Nervous Systems (CANS).  She noted that while “the associated symptoms of tinnitus and hyperacusis may not directly reflect damage to the CANS, ...they are considered to be a symptom of CANS dysfunction and are frequently associated with closed head injury and other form of head trauma”.  Lau recommended a Speech-language pathologist assessment, an optometrist assessment, an occupational therapy assessment and participation in learning and listening training.  

[60]            In the interim, frustrated with his unabated tinnitus and his lack of any significant progress in the Tinnitus Retraining Program, the plaintiff returned to Dr. Irvine in late June 2005 and to his own family physician, Dr. Sclater to request a referral to Dr. Neil Longridge, the admitted expert in the field of tinnitus, to determine whether any alternative tinnitus treatment or therapy might be available. 

[61]            By late 2005, Dr. Sclater found the plaintiff more significantly depressed, exhibiting increased symptoms of a mood disorder and increased the dosage of his anti-depressant medication.  

[62]            The plaintiff attended on Dr. Longridge in September 2005.  Dr. Longridge diagnosed the condition as “severe tinnitus”.  Since all other treatment options had been attempted (tinnitus retraining and the use of maskers), he recommended a trial of gingko and instructed him to return for a further consultation if the tinnitus worsened.  However he reassured the plaintiff that in most cases, the tinnitus slowly, gradually improves over time.  He endorsed the audiologist’s therapy program to address the central auditory processing problems and Young’s continued use of anti-depressant medication.  

[63]            Unfortunately the tinnitus did not abate.  When the plaintiff returned for a follow-up consultation with Dr. Longridge in February 2006,  the tinnitus was then diagnosed as “substantial incapacitating tinnitus” (see Exhibit 36, Tab 2) and referred him to the Vancouver General Hospital Neuro-Otology Unit to undergo Video Electro-oculography (EOG) to address his complaints of dizziness and loss of balance.

[64]            In accordance with Ms. Lau’s earlier recommendation, Young consulted with Dr. Sandy Johal, an optometrist specializing in developmental vision, in March 2006.  She noted his complaints of light sensitivity, visual imbalance (a shift from the original midline) and a tendency to experience vertigo.  Following tests she found a moderate amount of hyperopia (farsightedness), astigmatism and presbyopia—none of which are related to the injuries here.  Since Young was unable to tolerate progressive lenses, due to the resulting distortion, Johal fitted Young with three different pairs of single vision lens glasses (for near vision, middle vision, and distance vision) all with special tint and prismatic correction.  This allowed for 20/20 vision and relying on the tinting, reduced any perception of peripheral movement.

[65]            Most significantly visual testing revealed a convergence insufficiency (the ability of the eyes to team together) which in turn was causing some degree of diplopia (double vision) and poor depth perception.  His visual form perception (the speed at which he processes the visual information he receives) was poor.  A visigraph test revealed difficulty with automaticity and oculomotor control, in which he scored at the 7-8 year old level.  When reading, oculomotor dysfunction will result in loss of place, skipping and omitting words and increased difficulty when copying from a chalkboard.  (I should note here that vision therapy was commenced and continued over the next 18 months, ultimately resolving the diplopia and depth perception issues).  Dr. Johal agreed that by the time Young was assessed by Dr. Anderson in November 2006, he had excellent stereoscopic vision.

[66]            However by the time Young first consulted with Dr. Johal in early 2006, he had become suicidal.  On the referral of his legal counsel, he consulted Dr. Lawrence Mattrick, a psychiatrist, in mid-March 2006.  He informed Dr. Mattrick of his mounting constellation of complaints—physical pain, tinnitus, dizziness and loss of balance, emotional instability, suicidal ideation, anxiety, memory loss with difficulty concentrating or focusing and an inability to multi-task or assimilate what he read.  

[67]            Dr. Mattrick diagnosed him as suffering a major depressive disorder, overlaying a generalized anxiety disorder and a possible mild traumatic brain injury.  Significantly, he recommended multiple referrals:  an immediate referral to a treating psychiatrist; a referral to a psychologist for ongoing cognitive psychotherapy; a referral to a neuropsychologist to evaluate the cognitive dysfunction; a referral to a neurologist to assess the headaches and the head injury; and finally a re-referral to an orthopaedic specialist and ENT specialist to once again assess the back, neck and shoulder injury and the tinnitus. 

[68]            A number of referrals followed, the key referrals being those with Dr. Michael Rathbone, a neurologist, and Dr. Desmond Coen, a neuropsychologist.  Their reports are pivotal reports in terms of opining that the plaintiff has suffered a mild traumatic brain injury which I will address in greater detail below. 

[69]            At Dr. Mattrick’s recommendation, the plaintiff then consulted Dr. Ancill, a psychiatrist with a special interest in trauma, in December 2006.  He provided a consultation report and then, at the request of the family physician, became the treating psychiatrist.  He changed the plaintiff’s prescribed medications and within months, his mood as well as his sleeping pattern improved. 

7.0              Plaintiff’s present complaints:

[70]            While his depression has improved, the plaintiff continues to suffer a number of ongoing symptoms which have impacted significantly on his ability to enjoy a normal life.  The tinnitus continues to be severe and intrusive, requiring fulltime use of the masking devices during waking hours.  While the pain in his neck has improved, he continues to suffer pain in his back and left buttock, which radiates down his left leg.  He obtains some relief by regularly attending physiotherapy and acupuncture treatments with a Mr. Cam Yang. 

[71]            He complains of ongoing confusion, an inability to multi-task, a tendency to become lost and overwhelmed in crowds or malls; an inability to read quickly or assimilate new information; an inability to follow movie plots; and an inability to enjoy outings at restaurants or movie theatres due to the overload of sound and inability to follow conversations or plot lines.  He no longer enjoys any solid restful sleep without sleeping medications.  He is very sensitive to light and wears specially tinted lenses to reduce the glare of daylight or indoor lighting.  Visually, he now wears special prism glasses which have allowed him to resume reading without fatigue and at a greater speed, with greater comprehension. 

[72]            As a function of his balance problems and chronic pain he no longer enjoys skiing, windsurfing or trail bike riding.  Unable to cope with crowds, he mostly avoids attending museums, art galleries, movie theatres or malls—venues he once enjoyed.  He is no longer the same voracious reader since it takes much longer to read a page, digest the material and then remember it.  Since he never sight-read music but rather learned by ear, he no longer plays the base guitar or the harmonica.  As he puts it, he “can’t hear it”.  Once a passionate audiophile, he no longer listens to music throughout the day, but with his therapist’s encouragement, he has begun to listen once again to “gentle” instrumental or classical music, avoiding music with any competing vocalist sound tracks.  Once an avid movie watcher, he now avoids most home movies, finding the plots and characters confusing to hear and difficult to follow.  

[73]            He spends most of his days attending various therapies and then returning home to rest and meditate.  He is able to drive, but sometimes loses his way.  His wife’s recent purchase of a portable GPS has helped.  

[74]            His marital relationship has suffered, both sexually and in terms of his general ability to interact with his wife.  Without his ongoing income, they have suffered significant financial stress.  He has depleted all of his savings and is now drawing down on his RRSP’s to finance ongoing therapy.  She is supplementing the household income but faces an ever increasing debtload.  His depression, irritability and personality changes have combined to cause ongoing tensions between them.  At trial, while still living together, they were no longer sharing a bedroom.  

[75]            He battles ongoing depression, regularly attending psychotherapy sessions with Dr. Toth and taking the anti-depressant medication prescribed by Dr. Ancill.  He believes that his overall condition is slowly improving.  Still he remains acutely aware of the fact that, as he puts it:  “I lost me—I lost my life”—particularly his life as a man immersed in visual art and film production work.  

8.0              Mild Traumatic brain injury:

[76]            Certainly the central issue in this action is the plaintiff’s allegation he has suffered a mild traumatic brain injury.  Relying on the opinions of Dr. Rathbone, Dr. Desmond Coen and Dr. Ancill, as well as the supporting opinions of Dr. Mattrick, Dr. Longridge and Ms. Lau, the plaintiff says he has demonstrated on a balance of probabilities that he has suffered such an injury.  The defence says he has not.  Underlying the defence position is the suggestion that many of the plaintiff’s symptoms have been manufactured or at the least are very much exaggerated. 

[77]            As I noted earlier, at the suggestion of Dr. Mattrick, the plaintiff was referred to both a neuro-psychologist, Dr. Desmond Coen, in May 2006, and to a neurologist, Dr. Rathbone, in November 2006. 

[78]            On the basis of the neuro-psychological tests conducted in May 2006, Dr. Coen found that the plaintiff was likely displaying the effects of a mild traumatic brain injury/post concussion syndrome, mainly evident in reduced cognitive skills in the area of concentration and attention.  He found Young to be profoundly depressed and both frustrated and highly embarrassed with his cognitive impairments.  He concluded the neuro-psychological test scores were “abysmal” for someone of his age and experience and educational background and far lower than he would have expected even in the case of a mild brain injury.  

[79]            Dr. Coen testified that when he encounters such a pattern of test results it is almost always associated with underlying structural lesions of the brain.  Accordingly he contacted Young’s legal counsel and suggested steps be taken to arrange for an MRI of Young’s brain.  As he explained in evidence, he hoped the brain scan might provide him and others with some better understanding of Young’s underlying brain pathology. 

[80]            In June 2006, an MRI of the plaintiff’s brain was undertaken and the images interpreted by a radiologist.  That report was not admitted in evidence, it being agreed by all parties that the radiologist’s finding of a likely shearing injury from craniocerebral trauma was undoubtedly in error.  

[81]            The MRI was repeated on June 14, 2006 (Exhibit 4) and again on November 5, 2007 (Exhibit 8).  

[82]            The June 2006 MRI was interpreted by Dr. Gordon Andrews.  The relevant portion of the report provides as follows: 

There are numerous foci of abnormally increased signal on PD/T2 weighted imaging located diffusely throughout the cerebral white matter, predominantly in a superficial distribution with sparing of the subcortical U fibers.  These measure anywhere from 1-14 mm in diameter….

There is no evidence of previous contusion and no extra-axial hemorrhage is appreciated.  … 

[83]            The November 2007 MRI, interpreted by Dr. Boylan, reads as follows:

Extensive white matter changes in the right and left cerebral hemisphere with sparing of posterior fossa and corpus callosum.  These lesions are nonspecific.  The differential for these appearances includes small vessel ischemic change, vasculitis, demyelination and migraine related white matter changes.  No specific evidence of hemosiderin in the brain to suggest previous brain hemorrhage.  No specific evidence of previous trauma but this is not excluded.  The appearance is not significant change from June 2006. 

[84]            Dr. Rathbone’s initial consultation, which relied at least partially on the first (erroneous) MRI report, led to a multiple diagnosis, including a “mild traumatic brain injury, supported by MRI” (Exhibit 6, Tab 1).  His subsequent consultation with Young in early November 2007 considered the second MRI report (Exhibit 8), which demonstrated multiple white matter changes in the right and left cerebral hemispheres, sub-cortically and in the deep white mater.  At that time a lumbar puncture test was also conducted so as to rule out a diagnosis of multiple sclerosis (see Addendum to Rathbone Report, Exhibit 2, Tab 3). 

[85]            In his report of November 14, 2007 (Exhibit 6, Tab 2), Dr. Rathbone opines: 

…What has become apparent on review of Mr. Young’s medical history in light of the new findings on MRI and lumbar puncture is that at the time of the accident Mr. Young had a symptomatically quiet ongoing pathological process in his brain.... 

The nature of the underlying pathological process in Mr. Young’s brain is still unclear.  …

Because we do not know the nature of the process with certainty, it is impossible to say exactly how much the accident accelerated any potential deterioration in Mr. Young’s brain function.  However, since MRI scans done two years apart show no significant further morphological deterioration, it is probable that the pathological process is relatively slow.  Therefore the rapid deterioration after the accident appears to be due to the accident rather than to a slow ongoing intrinsic pathological process. 

[86]            In his Addendum report, (Exhibit 2, Tab 3) with the results of the lumbar puncture tests and other laboratory tests in hand, Rathbone concluded: 

In my opinion, the motor vehicle accident resulted in a mild traumatic brain injury with mild concussion.  It is also probable that Mr. Young had the underlying pathological process before the accident.  But he was entirely compensating for it, and so the problem was not recognized clinically.  Most individuals recover from mild traumatic brain injuries.  But Mr. Young’s brain was unable to recover because it was already damaged from the pathological process.  Therefore he was prone to develop brain dysfunction after a mild traumatic brain injury much more easily than an individual with a healthy brain would have been.  This would explain the sudden onset of his symptoms after the accident.  Therefore, in my opinion, the traumatic brain injury resulted in the appearance of the neurological symptoms from which he suffers and which have been described in my earlier report.  

[87]            I accept Dr. Coen’s evidence that while he accepted Dr. Rathbone’s theory of causation, in his opinion, in addition to his head injury,  several other causes were also acting in concert to contribute to Young’s cognitive and emotional difficulties–in particular the tinnitus, the chronic pain and the significant sleep disturbance caused by the tinnitus.  Working together, all of these difficulties have adversely affected Young’s attention and memory performance.  In addition, in his view, his significant depression has contributed to his reduced cognitive efficiency.  As Dr. Coen notes in his report of May 16, 2006 (Exhibit 11, Tab 2), “Mr. Young’s condition involves a complex combination of subtle physical, cognitive and emotional conditions which collectively add up to contribute to the total level of disability I found”. 

[88]            The defence theory rejects any notion of a mild traumatic brain injury.  Further the defence theory rejects the notion that there is any pre-existing dormant neurological pathological process which has interacted with the concussion to unleash the cascade of symptoms which followed the accident.  

[89]            To the contrary, relying on the opinions of Dr. Hashimoto and Dr. Derek Smyth, the defence position is that the plaintiff has not sustained any mild traumatic brain injury or any brain injury at all.  There was no neuropsychological report tendered to counter Dr. Coen’s testimony.  

[90]            The defence position is that the multiple white matter lesions detected in Mr. Young’s brain are of no clinical significance and play no causation role here.  As Dr. Hashimoto testified in Examination in Chief, the non-specific white matter changes reflected in the MRI scan are not diagnostic.  He said “(t)hey don’t tell you anything.  They’re not a threat of any kind.  They’re just there”.  (Exam in chief, Feb 14, 2008).  He testified that in the majority of patients in their 50’s who undergo an MRI, such lesions are quite commonly seen.  In his view this was “a situation where the MRI was done and then based on the MRI some sort of disorder was then created”.  

[91]            Dr. Hashimoto’s opinion that there is no evidence of any brain injury or dysfunction rests squarely on his view that it is highly unlikely one will sustain a mild traumatic brain injury in the course of a rear end collision, unless one’s head strikes something within the vehicle during the course of the collision, thus suffering a sudden blow to the brain.  

[92]            He subscribes to the school of thought which applies what he describes as a “much more stringent test” to the diagnosis of MTBI—that is the blow must be sufficient to cause a loss of consciousness for more than a second or two.  Further, the injury must be demonstrated in some subsequent imaging change.  As he put it, “there must be some sort of deficit which is more than subjective complaints”. 

[93]            He rejected the American Congress of Rehabilitation Medicine’s definition of MTBI as “a traumatically induced disruption of brain function that results in loss of consciousness (LOC) of less than 30 minutes’ duration or in an alteration of consciousness manifested by incomplete memory of the event or being dazed or confused”.  (Exhibit 12, “Mild Brain Injury and the Postconcussion syndrome”, Textbook of Traumatic Brain Injury, Thomas W. McAllister).  This was the definition of MTBI adopted by Drs. Rathbone, Ancill and Coen.

[94]            With all due respect to Dr. Hashimoto, I did not find his evidence particularly persuasive.  His opinion regarding the definition of MTBI struck me as both general and simplistic.  He testified that he, like “many neurologists”, dismissed the notion that such a brain injury could occur without a loss of consciousness.  Yet he made no reference to any body of medical literature or medical journal extracts to support his opinion. 

[95]            While he insisted that in considering such a diagnosis, a physician must focus on the precise symptoms experienced at the time of the accident, he appears to have taken a very sloppy, if not inaccurate history from Young.  During his interview of the plaintiff he made note of the fact that “approximately one week after the accident, he became aware of a screaming noise in his ear”.  On an examination of his own clinical notes, he conceded that the precise note was “one week later plus/minus became aware of a screaming noise in ear.”  Nevertheless he insisted on cross examination this was “exactly the same thing” as “approximately one week later”. 

[96]            Next, Dr. Hashimoto’s report records the patient’s complaint that “he then became aware of confusion”.  Dr. Hashimoto was unable to say when this was, although he assumes the confusion occurred at some point after the screaming noise in his ear and was “the next thing that came along”.  He could not say whether he questioned the plaintiff with any precision as to the start date of this complaint.  If he did ask the plaintiff, he concedes he failed to record his response.  He conceded that Young’s confusion could well be the sign of a neurological deficit, yet he discounted its importance, stating “we know it was not immediate”.  Thus in his view since it did not occur coincident with the time of the collision itself, it was of little or no clinical significance.  

[97]            He conceded that the plaintiff may have told him he complained of blurred vision at the walk-in clinic within approximately an hour of the accident.  While he agreed that blurred vision could also be a neurological sign, this part of Young’s history was also not recorded in his clinical note or the report which followed. 

[98]            In his report he notes his disagreement with Dr. Mattrick concerning the various antidepressants prescribed for Young.  He recommended that Young discontinue those drugs.  He explained that while he accepted a depressed person will be prescribed anti-depressants, he objected to what he called “polypharmacy”, that is multiple drugs being prescribed to treat depression.  So far as he was concerned, the patient could become drug dependent and totally dysfunctional.  

[99]            Dr. Hashimoto was emphatic that the symptomology arising from an MTBI, including any cognitive disorder, would be worst immediately post accident and would continue to improve thereafter.  At least in terms of behavioural and cognitive changes, that opinion was specifically rejected by Dr. Ancill who testified this is frequently not the case.  Rather his report notes that “(a)lmost 75% patients with personality and behavioural changes that result from TBI at one year after injury, are either unchanged or worse at 5 years”. 

[100]        In the final analysis Dr. Hashimoto’s opinion struck me as neither precise nor authoritative.  While he is an acknowledged specialist in the diagnosis and treatment of multiple sclerosis, I am not persuaded he shares the same level of expertise as Dr. Rathbone in the field of brain trauma.  He acknowledged that he not conducted any research nor published any peer-reviewed articles in the area of brain injury.  By contrast, Dr. Rathbone has a long career as a teaching neurologist, specializing in the fields of neurology, neuroscience, neuropharmacology and neurotrauma.  He has published several papers on the topic of traumatic brain injury. 

[101]        I intend to say little at this point regarding Dr. Derek Smyth’s evidence.  Like Dr. Hashimoto, he rejected the American Congress of Rehabilitation Medicine’s definition of an MTBI as including a mere alteration in consciousness, with no need for an actual period of loss of consciousness.  He too believed the plaintiff was exaggerating his symptoms and was overly dramatic in his presentation during his consultation.  As I note later in these reasons, that examination also occurred at a point in time when the plaintiff was indeed severely depressed and had not undergone any aggressive psychiatric treatment.  I attach little weight to Dr. Smyth’s evidence.  

[102]        Overall, I prefer the evidence of Dr. Rathbone and Dr. Coen to that of Dr. Hashimoto and Dr. Smyth.  I find, relying on their evidence, that as a result of the accident the plaintiff has indeed suffered a mild traumatic brain injury which has resulted in a constellation of problems including a post concussion syndrome, a cognitive disorder, a major depressive disorder with anxiety (now in remission), a pain disorder; and the significant exacerbation of his tinnitus. 

[103]        While the issue of causation has not been the subject of any intense debate, given the defence position that the white matter lesions are of no significance here, I nevertheless believe it is incumbent on the Court to address this issue.  

[104]        Dr. Rathbone has opined that there was an asymptomatic quiet ongoing pathological process in Young’s brain which pre-existed the accident.  While excluding certain diseases, he has been unable to identify the specific pathological process although he has suggested the changes in Young’s brain may be the result of an inflammatory problem or the sequelae of a viral infection.  Regardless of the defence position, I have considered which, if any, of the plaintiff’s symptoms would have naturally emerged over time, as a result of the progression of that unidentified pathological process.  

[105]        In answer to that question, I have Dr. Rathbone’s theory that by virtue of the damage already suffered in the course of that pathological process, Young’s brain was more vulnerable to injury on the date of the accident and thus less able to recover from the mild traumatic brain injury sustained.  Given the temporal connection between the emergence of the constellation of symptoms and the accident, he has concluded that Young almost immediately – or at least within days- began to undergo changes in brain function.  This strong temporal association of deterioration of Young’s brain function with the accident itself underlies Rathbone’s opinion that his deterioration following the accident is more likely due to the accident rather than to a slow ongoing intrinsic pathological process.  As I have earlier noted, the defence position is simply to reject there was any ongoing pathological process underway. 

[106]        In the end result, I am satisfied the plaintiff has proven, on a balance of probabilities, that the injuries suffered during the accident materially caused or contributed to the symptoms now suffered and that but for the accident, these symptoms would not be present.

9.0              Tinnitus, Dizziness and Loss of Balance:

[107]        As I have noted, apart from his cognitive problems, one of the plaintiff’s major complaints concerns his ongoing, persistent, and significant tinnitus as well as his sensations of dizziness and loss of balance.  

[108]        In his many reports (see Exhibit 36, Tab 1-15), Dr. Longridge has confirmed the plaintiff has suffered tinnitus, which has persisted “at an extremely severe and limiting level”.  In Dr. Longridge’s opinion it is probable that but for the accident, Young would not have developed the tinnitus. 

[109]        In response, the defence relies on the opinion of Dr. Sinanan, also an ENT specialist (Exhibit 20, Tab 6).  He has opined that Young’s pre and post-accident tinnitus were far more likely the result of his occupational noise exposure on the film set rather than from what he considers was a mild neck sprain suffered on the date of the accident.  In his opinion, if and when tinnitus occurs after a mild or moderate head injury (which he believes was case here), the most flagrant symptoms will occur at the very outset and then dissipate within days or weeks.  In his view, the plaintiff’s ongoing depression, coupled with stress at work and at home, may have also contributed to the exacerbation of his tinnitus. 

[110]        Dr. Longridge has rejected Dr. Sinanan’s opinion, stating that not infrequently in his experience, for any number of different reasons, various patients have become aware of their tinnitus some days after an accident rather than immediately.  He concludes this was the case here.  Thus he has stated emphatically that the onset of severe and intrusive tinnitus a week after the accident must be ascribed to the accident.  He agreed with Dr. Sinanan that in the vast majority of patients the symptoms are usually at their maximum at the outset and dissipate after days or weeks.  However he noted that unfortunately there is a small group of patients (which he says includes the plaintiff) where the tinnitus actually persists and occasionally even worsens over time. 

[111]        Dr. Longridge entirely rejects Dr. Sinanan’s opinion, relying on Meuniere’s disease as an example, that there will be no sustained intensity of the tinnitus when an end organ (vestibular labyrinth) is involved.  In Dr. Longridge’s opinion, Meuniere’s disease is of no relevance in the consideration of an individual whose tinnitus is probably related instead to trauma.  In his opinion sustained tinnitus and balance organ (vestibular labyrinth) disease do indeed frequently occur together.  

[112]        On cross examination, Dr. Sinanan had difficulty supporting his opinion that the post-accident tinnitus was more likely the result of occupational noise exposure on a film set, rather than to any trauma suffered in the accident.  He ultimately conceded he was unaware of any particular noise the plaintiff may have been exposed to post-accident, and that he was relying on Dr. Irvine’s commentary that at least preceding the 1999 onset of tinnitus, the plaintiff had been exposed to some staged explosions on set.  He conceded there was no specific history of such exposure post-accident.  His fall back position was that stress may well have triggered the tinnitus.  He spent some time offering opinions as to the force of the collision, the speed of the vehicle which had collided with the rear end of the plaintiff’s vehicle, and the degree of the neck sprain suffered—all matters in which he clearly has no expertise. 

[113]        In the end result, I prefer the opinion of Dr. Longridge to that offered by Dr. Sinanan.  Despite his obvious lengthy career as an ENT clinician (which  he testified ended in 2004),  Dr. Sinanan has neither the depth nor the breadth of academic, research- based expertise as does Dr. Longridge, who is presently the head of the Division of Otolaryngology at UBC Hospital and the Medical Director of the Neuro-Ottology Unit at Vancouver General Hospital, with a clear specialty in tinnitus. 

[114]        I accept Dr. Longridge’s opinion that given the number of years which have elapsed since the date of the accident and the unremitting symptoms which Young has suffered to date, this condition is likely to persist on a long-term, permanent basis.  He will likely have to permanently wear masking devices in both ears.  Those masking devices interfere with his ability to hear normally.  The tinnitus intrudes in his sleep and makes it difficult to read, to concentrate and to remember.  Dr. Longridge stressed that severe tinnitus is a disease which can “wreck” a patient, citing three other patients who have been unable to cope and have ultimately committed suicide.  

[115]        In addition to the tinnitus, the plaintiff has complained of dizziness and loss of balance issues.  On Dr. Longridge’s referral, he attended the Vancouver General Hospital Neuro-Otology Unit in May 2006 to undergo Video Electro-oculography (EOG) to address his complaints of dizziness and loss of balance.  While Dr. Longridge described the results as “non specifically abnormal, not strongly indicative of a particular disturbance, but indicative that his balance (was) not quite as good as you would expect for someone of his age,” (Exhibit 36, Tab 2, Page 8), the videotape of the plaintiff’s performance demonstrated significant balance and instability issues, particularly during the cerebellar adaptation testing.  Overtime, his sense of dizziness has also worsened despite undergoing extensive vestibular physiotherapy between April 2007and October 2007 (see Exhibit 29, Records of Carolyn Ball, Vestibular Rehabitation Therapist).  

[116]        In addition to the dizziness and loss of balance, Dr Longridge has opined (Exhibit 36, Tab 10, page 2) the plaintiff suffers a condition known as “visual vestibular mismatch” which results from the fact that the information from the balance system of the ear, while the individual is moving, does not mesh or synchronize with the information received through the individual’s own vision, thus producing a mismatch and sensation of dizziness.  This produces problems with fast—moving traffic passing by or walking on a carpet which is heavily patterned.

[117]        At trial Dr. Longridge acknowledged that some considerable time passed after the accident before the plaintiff complained of the vestibular mismatch symptoms.  He agreed that in May 2006, in the course of taking his first history from the patient, this complaint did not arise.  He explained however that this was not surprising since the complaints are the type of symptoms not readily recognized even by the patient, since they are likely always secondary to the pervasive tinnitus.  In such a nebulous situation, he explained that the patient’s response or recognition of the problem will depend on his degree of awareness and general coping skills.  On a balance of probabilities he was satisfied the plaintiff’s vestibular mismatch complaints were legitimate and were causally connected to the injuries suffered in the accident.  

10.0          Depression: 

[118]        As I have noted earlier, the plaintiff’s depression peaked some time in 2006, at which point he was suicidal and suffering what was eventually diagnosed as a major depressive episode.  Since then, following Dr. Ancill’s psychiatric treatment and a change of medication regime, as well as ongoing psychotherapy with Ms. Jean Toth, the acute depression has been in remission. 

[119]        While his condition has improved, in the sense that his mood has continued to improve, as has his sleeping pattern, Young continues to complain of fatigue and anxiety.  At the point of his last meeting with him in October 2007, while Dr. Ancill was satisfied Young’s depression was in remission, he did not exclude the possibility of a future relapse.  Even at that point Young reported to Dr. Ancill that prior to the consultation his mood has plunged considerably, largely a reflection of the tensions between himself and his wife, and the looming possibility of a martial separation. 

[120]        I accept Dr. Ancill’s evidence that the plaintiff’s depression as well as many of his ongoing symptoms are all attributable to the mild traumatic brain injury he has suffered, which have given rise to both a cognitive disorder and a mood disorder.  

[121]        In terms of the cognitive disorder, Dr. Ancill relies on Dr. Coen’s neuropsychological testing which I have already accepted.  That testing revealed impaired attention, impaired single word reading, impaired sustained auditory word attention, some imbalance, impaired oral verbal fluency, lower than expected verbal list learning and impaired non verbal memory.  All of this has resulted in several persistent psychiatric consequences including personality changes, anxiety, mood disorders, irritability, cognitive changes, fatigue and sleep problems. 

[122]        As I have already noted, relying on the opinion of Dr. Derek Smyth, the defence says the plaintiff has not suffered a mild traumatic brain injury.  When he examined the plaintiff in June 2006, Dr. Smyth did indeed find the plaintiff to be depressed.  He diagnosed him as suffering a “depressive disorder not otherwise specified, in partial remission”.  He noted that Young’s mood fluctuated very considerably over the two-hour session and that in the last 20 minutes of the interview, during the course of a mental status examination, Young admitted to suicidal ideation.  He told Dr. Smyth that he thought frequently of suicide, either by driving his car off a cliff, slitting his wrists in a bathtub, or taking pills.  He broke down into what Dr. Smyth described as “dramatic sobbing” for the balance of the session.  Dr. Smyth did not form the impression there was any significant suicidal risk at this point and thus took no steps to alert his physicians or counsel. 

[123]        In the end result, Dr. Smyth rejected any suggestion the plaintiff had suffered a brain injury, raising instead the suggestion (although not a diagnosis) that the plaintiff perhaps might qualify for the diagnosis of mood disorder or perhaps a partially treated Major Depression .  He nonetheless acknowledged the plaintiff’s complaint of insomnia and pain, thus recommending the referral to a sleep clinic, the commencement of psychiatric treatment and possibly an assessment in a pain clinic. 

[124]        I have already addressed the issue of the mild traumatic brain injury.  However regarding the depression, it is significant that Dr. Smyth saw the plaintiff before any real psychiatric treatment had commenced and before Dr. Ancill’s altered medication regime addressed both the deep depression and sleeping disturbances. 

11.0          General Damages – Non Pecuniary Damages:

[125]        Based on the constellation of injuries detailed above, the plaintiff has claimed non pecuniary damages of $200,000–$250,000, relying primarily on Adamson v. Charity 2007 BCSC 671 and Lines v. Gordon 2006 BCSC 1929.  In the event the Court finds the plaintiff is at least able to relate his complaints of severe tinnitus to the accident, the defence submits an award for non-pecuniary damages should not exceed $100,000-$120,000. 

[126]        I have clearly rejected the defence position that the plaintiff’s complaints attributable to the accident are limited to the severe tinnitus.  Rather I have found that the accident caused or significantly contributed to the emergence of the entire constellation of symptoms here.  While the complaints are not identical to those in Adamson or Lines, all of the main features are present:  a mild traumatic brain injury with personality changes and cognitive deficits, chronic pain, headaches, depression, and the fact that he will remain effectively chronically unemployable in his chosen profession for the remainder of his life.  In these circumstances, I fix an appropriate award under this head of damages at $200,000. 

12.0          General damages – Pecuniary Losses: 

[127]        The plaintiff has advanced two heads of pecuniary loss:  (1) a claim for a future loss of earning capacity as a cameraman and/or photographic director in the sum of $2,699,400; and (2) a loss of opportunity claim in the sum of $200,000. 

12.1          Past Loss of Income claim:  

[128]        While he has been employed for much of the period since the accident, the plaintiff claims that but for the accident he would have worked on a full-time, albeit on a seasonal basis, both as a film cameraman and more consistently as a Director of Photography, earning as much as $150,000 gross per year, for total gross earnings of approximately $625,000 to date.  Deducting the amounts actually earned during this period, the plaintiff claims a net past loss of income claim of $425,000. 

[129]        The defence entirely rejects that claim submitting that for the last number of years since the accident, the plaintiff has in fact been able to work without difficulty. 

[130]        As I noted earlier, the plaintiff is 56 years of age.  He was born and raised in Montreal, completed high school there and a year later enrolled in Dawson College (latterly Concordia University), graduating with a Fine Arts Degree, cum laude, in 1979.  Prior to graduation, the University invited him to continue as a graduate student, assisting in the Cinema Department and teaching part-time.  He stayed on as a part-time teacher at Concordia for nine years, all the while working independently as a freelance cameraman slowly climbing the film industry hierarchy from second assistant cameraman, to first assistant , to camera operator and ultimately, in some cases, to Director of Photography.  At his wife’s suggestion, and in an effort to expand his marketability, he borrowed funds and purchased his own movie camera.  He participated in all manner of film work—feature films, TV series, commercials, music videos and documentaries, before deciding to move to British Columbia in 1995. 

[131]        Based on the evidence of Mr. Robert Pressner and Mr. Minor Mustain, I accept that during Young’s years in Montreal, particularly in the late 1980’s and early 1990’s, prior to the move in 1995,  he achieved a very solid reputation as a cameraman and Director of Photography.  He was widely regarded as a hard-working, personable, efficient man, who delivered an excellent, artistic product and was capable of tackling the most difficult projects.  According to Mustain, Young’s “innovativeness on the camera rank(ed) up in the top ten” of the Directors of Photography he had worked with.  According to Young’s accountant, Mr. A.R.J. Martin, during his years in Montreal, Young earned an average income of $45,000-$60,000 per year. 

[132]        However following Young’s departure for Vancouver in 1995, Young had no more than social contact with Pressner, and very little professional contact with Mustain.  Sometime in approximately 2000 Mustain hired Young for the last time for an episode of the TV series VIPERS in British Columbia.  Following this they had little contact, given Mustain’s own health and other personal problems.

[133]        During the pre-accident years in Vancouver, from 1995 to 2002, the plaintiff had no difficulty finding work.  Within a couple of weeks of his arrival he was able to fast track his union application and almost immediately he found employment as a camera operator for a long television mini-series.  I accept his evidence that over the years since his arrival in British Columbia he has worked on a regular, albeit seasonal basis, often as the second unit cameraman, although sometimes in the dual role of second unit cameraman and Director of Photography.  Exhibit 49, an extensive film biography prepared by Young, lists the many projects he participated in during this period.  If he worked on a television series, he might work steadily for an average of 6-9 months, but in some years, the work was more sparse.  By the date of the accident, the union pay scale represented his minimal earning rate per hour, although he was usually able to demand a pay scale in excess of the union scale. 

[134]        Young testified that but for the accident, his goal was to continue his work as a cameraman, eventually working exclusively as a Director of Photography.  He expected to continue to work well into his 70’s, which he said was not at all unusual for Directors of Photography in the film industry.  The uncontroverted evidence is that the Union pay scale is $83.97 per day as a Director of Photography and $55.56 per day as a cameraman (Exhibit 32 – IATSE Local 669 Master Agreement).  Including fringe benefits, the plaintiff claims a loss of approximately $100 per hour as a DOP and $65 per hour as a cameraman.  Thus for the period 2002 to 20008, he claims that but for the accident,  he would have earned a gross income of approximately $500,000-$750,000 (starting at a base of $100,000 and increasing by 10% in each year) less the amounts earned to date, resulting in a net loss of $425,000. 

[135]        Even setting aside the issue of whether the plaintiff is brain injured, the defence rejects this calculation, submitting that in fact since the accident the plaintiff has worked as much or more than usual and that the evidence does not support the loss claimed. 

[136]        The plaintiff did not contest the defence summation of his earnings history set out in Exhibit 60.  I should note that shortly after his move to British Columbia, he incorporated a company, Shadows and Light Ltd., which he used as a corporate vehicle to shelter his income.  The company charged out Young’s fees as a cameraman and director of photography, against which he wrote off various expenses, including a portion of the costs of his home office. 

[137]        Exhibit 60 reflects the following income for each year ending April 30th: 









































































1Taxable dividend from Shadows and Light as opposed to the actual amount of 9830. 

2Taxable dividend from his company but the actual dividend was 10,000. 

[138]        As the defence points out there was a significant drop in income between April 30, 2001 and April 30, 2002, which was several months before the accident.  The plaintiff’s accountant, Mr. Martin, explained that during this period, rather than doing his usual high volume of film camerawork, Young had instead turned his attention to the creation of a software application to provide 360-degree tours of facilities or hotels on the World Wide Web—what the plaintiff referred to as his virtual reality project. 

[139]        Although the plaintiff’s efforts dated back to 1999, it was indeed during this period that the plaintiff began to seriously explore the field of virtual reality with two film industry colleagues, Mr. John Rowand and Mr. Alex Ketura (“Ketura”).  Ketura purchased a Virtual Reality camera rig.  The trio paid various individuals to train them to use the equipment at Rowand’s home studio.  As Rowand explained, Young emerged as the most adept in the group and then went on to develop what he described as “world leading” methods taking 360-degree panoramic and still object photos for easy web presentation.  He treated his methods as proprietary and shared them with no one.  The trio eventually dissembled, Rowand and Ketura pursuing their own technological interests. 

[140]        In April 2002, Young met Mr. Darren Peigan (“Peigan”), a web designer with Skinny Technologies Inc.  The company was pursuing the development of compressing large graphic images into a fraction of their original size, so as to be more transportable to a printer.  Young attended the company’s Open House where he demonstrated his own developing portfolio of virtual reality images.  Young eventually hired Peigan as the web designer to design his own web site.  I will address the virtual reality project at greater length later in these reasons. 

[141]        At this point, what is notable is the fact that well before the accident, the plaintiff was devoting substantial time and energy to the virtual reality project, to the degree that his overall earnings profile fell considerably.  

[142]        While Young did not turn down any work in 2002, he explained that various factors combined to create a general slowdown in the film industry:  the 9/11 attack in New York City; a writers’ and actors’ strike; and the huge film industry production surge in 2001 which had already created a large collection of work, thus reducing demand for more production.  In any case Young did not participate in any film set work, either as a cameraman or director of photography, from November 2001 to the date of the accident, a period of approximately eight months. 

[143]        Just shortly before the accident, he was asked to teach part-time at the Vancouver Film School and he obliged.  Gregory Berridge (“Berridge”) recalled Young’s “exceptional knowledge” and his amazing ability to recall the various students’ names.  Based on his performance, Young was invited back to teach on a contract basis.  

[144]        Then the accident occurred in July 2002.  

[145]        Following the accident, as he struggled with the tinnitus and pain and his own unrecognized cognitive deficits, Young worked on various small film jobs as “a way of staying in the game”, to use his words.  He continued to work part-time at VFS but struggled.  Berridge testified that he slowly became aware of the deterioration in Young’s health.  He appeared to have some problems hearing and repeatedly asked Berridge to repeat himself.  Young’s energy level seemed to gradually decline and with that, his patience.  While he sat in on Young’s cinematography class, Berridge noted that Young repeated many of the same film set stories week after week, much to the students’ chagrin.  When Berridge brought this up, Young was apparently unaware of the problem.  The two men also met for lunch, and again Berridge noted that Young would repeat the same stories.  The students began to complain to Berridge regarding Young’s repetition of material and his seeming inability to recognize their faces.

[146]        Challenging Berridge’s evidence, the defence produced an undated letter (Exhibit 31) he penned towards the end of that six-month stint at VFS.  The letter speaks of Young being an “invaluable addition” to the program, that his classes were extremely well organized, resulting in many students telling Berridge how much they enjoyed his classes.  He speaks of the “phenomenal knowledge” Young brought to the classes and his “connections and experience in the industry” definitely making him an authority on the subjects he taught.  In cross examination Berridge insisted that while the letter was true, he nevertheless had already noted a deterioration in Young.  While he remained impressed with Young’s knowledge of cinematography and his ability to teach to a high standard, he nevertheless insisted that Young was demonstrating memory problems and a reliance on visual aids. 

[147]        Young discounted the letter, saying he had asked Berridge to write “a nice letter” for him.  I am satisfied that Berridge did indeed witness all of the problems he described and that like Young’s other friends and colleagues, Berridge was prepared to put the best possible gloss on Young’s situation, obviously intending to help a friend with securing future employment.

[148]        In December 2002, Young’s wife, Woods, who was employed as a “scheduler” at Mainframe Entertainment, noted a company posting for a Senior Lighter position.  Mainframe Entertainment Inc. is a company which specializes in computer animation and graphics production.  Woods insisted that there was no nepotism at work in her husband’s hiring.  Ms. Jennifer Twiner-McCarron, the producer who hired Young, confirmed that Young gained the position on his own merits, having a well-established reputation as a Director of Photography in the film industry.  She thought Young’s live action industry experience and specialty in lighting would translate well to the computer production environment.  She hired him on a six-month contract, with a three-month probationary period.  She hoped he would eventually be promoted to the position of Director of Photography, earning $150,000 per year.  

[149]        In fact Young’s performance as a senior lighter did not meet either his own or Twiner-McCarron’s expectations.  She noted his inability to cope with the production creation environment—a room where 8-10 people sit together and collaborate, speaking to each other and sharing information as the animation product evolves on the computer screen.  She recalled Young complaining of “ringing in his ears” and saw him continually holding his hands over his ears, apparently struggling to hear.  In her view, he appeared to be trying to distinguish her voice from the other sounds in the studio.  He also appeared to have some difficulty grasping and learning the new computer 3D graphic software.  Approximately a month after he began work at Mainframe, his wife recalled sitting with him at lunch when he broke down crying, expressing his fears that he would lose the job since he could not function.  Indeed within two months, on March 31, 2003, his position was terminated by Mainframe Entertainment Inc. 

[150]        Much to her embarrassment, Twiner-McCarron was confronted with a letter of reference she penned in support of Young on April 8, 2003 (Exhibit 25).  In the letter she extols Young’s skills as an “extremely talented artist with a great sense of lighting and composition” whose “wealth of experience in the live action world has been invaluable to Mainframe”. 

[151]        Despite the defence submission that McCarron’s letter more truthfully represented Young’s experience at Mainframe Entertainment Inc, I find that his probationary period was indeed a disaster.  As a fellow employee of Young’s wife, obviously keen to be supportive, I find that Twiner-McCarron participated in preparing what was obviously a misleading reference.  As she rationalized her actions:  “everyone liked Keith” and he was “obviously a talented guy suffering from some auditory issues”.  She admitted that she wrote the letter in the hopes that Young would “find a better niche” for his considerable talents. 

[152]        Sometime after this he found work as the B unit cameraman on ROMEO, a live action television series.  He was able to survive the first and second seasons (each season lasting approximately 5 months) earning an average of $3000 per week.  Mr. Michael Wale, the Director of Photography on set, testified that when he hired Young, he did not know him very well.  While Young impressed him as a very pleasant, likeable individual, he nevertheless found that he under-performed on the set.  He noticed he was “hard of hearing”, and seemed “to have difficulty in understanding”.  He was occasionally confused and misinterpreted verbal instructions on the film set.  In Wale’s view he lacked initiative and his confidence seemed to dwindle between the series’ first and second season.  While Mr. Wale did not control the hiring process, he testified he would not have personally re-hired him to return.  Indeed the producers did not re-hire Young to return for the third season, despite Young’s pleas. 

[153]        That said, Young’s earnings from Mainframe Entertainment Inc. in December 2002 to April 2003 and his further earnings as a camera man on the ROMEO through several months in 2003 and 2004, together with his EI benefits during those same periods, have accounted for substantial post-accident earnings. 

[154]        In the spring of 2005, he applied for full-time employment at the Vancouver Film School (Exhibit 53) and was hired as a CSI Lighting and Texturing instructor, full-time commencing in September 2005. 

[155]        Precisely how Young performed during this contract is again the subject of some controversy.  The defence position is that the plaintiff was indeed able to perform without difficulty, as reflected in the VFS formal evaluation completed by a Mr. Larry Bafia (“Bafia”) on January 5, 2006 (Exhibit 5).  In the evaluation, Young’s skills and technical competence, the quality of his work and output, and his initiative are all graded as “above expectations”.  His judgment and decision making, organization and time management, dependability, planning and organization and supervisory skills are graded as “meets expectations”.  Indeed the defence has relied heavily on this evaluation to negate any suggestion of a brain injury or any cognitive difficulties.  Bafia comments:

Keith has done a great job of stepping into the visual effects stream when we were caught short handed.  He has put in hours above and beyond the call to duty.  Keith has also helped standardize presentation specifications in the program.  

On average, the students were described as being “very pleased with Keith’s guidance”.  Bafia, the author of the report, did not testify at trial for either party.

[156]        In contrast to the Bafia evaluation, Berridge testified that after some time away, he returned to the VFS in the fall of 2005 and found that as before, Young was still struggling.  He recounted how Young continually dropped into his office repeatedly asking questions about the software program MAYA and taking studious notes of the information Berridge relayed.  Despite all the note taking, he would return to Berridge once again asking him to explain the program.  In his view Young appeared to be unable to retain the information.  There were continuing problems with his hearing.  In his view, Young regressed dramatically over the course of the year.  While Young remained enthusiastic, Berridge testified that he seemed unable to recognize many of his problems.  In Berridge’s view the position was simply more than the man could handle, given his physical and mental limitations.  

[157]        Woods, Young’s common-law wife, described his continuing difficulties coping with his full-time position at VFS.  She recalled that he had great difficulty preparing and remembering his lesson plans and learning to manipulate the software.  He complained he was unable to recall the names of the students in the class.  She did her best to assist him at home, reviewing his material and attempting to learn the software, so as to lend him support.  She noted that he became more and more fatigued, moody and irritable.  When she returned home, she would find him lying down, trying to recover from the demands of the day.  In March 2006 Dr. Mattrick recorded Young’s complaint that he was spending “all of his time doing homework to keep up with his present employment and it’s a ‘very difficult struggle’” (Exhibit 19, Tab 1). 

[158]        The plaintiff has explained the positive VFS evaluation form as Bafia’s attempt to cover up his own failure to properly assess him within the three-month probationary period, and thus justify his continuing employment for the balance of the year.  I accept that this may be one explanation.  More likely however, the evaluator was either unaware of Young’s problems (since he apparently did not attend Young’s classroom) or he was aware, but was reluctant to tackle the issues, given Young’s extensive experience, his successful history with the VFS to that point, and his rather aggressive response to the earlier evaluation in July 2005 (see Exhibit 59).  

[159]        In any case, I am satisfied that the January 2006 appraisal does not properly reflect the deficiencies in Young’s performance at his then full-time job.  The student evaluations which cover the period from May to August 2006 (Exhibit 54) more accurately describe Young’s dismal performance as a teacher, echoing many of the difficulties identified in Berridge’s testimony. 

[160]        As I have stated earlier, following his termination from VFS, Young became severely depressed.  Since being terminated at VFS in October 2006, the plaintiff has not worked in any capacity.  I am satisfied, based on the evidence of the plaintiff, Woods, Berridge, and Drs. Rathbone, Coen, Mattrick and Longridge, that he has effectively been unemployable since that date, at least in his chosen profession. 

[161]        That said, I do not accept the plaintiff’s calculations of his loss of earnings to date. 

[162]        I am satisfied that but for the accident, the plaintiff would have continued to work as a cameraman, likely with increasing opportunities to also work as a Director of Photography on set.  However, given his past history of earnings which is so graphically demonstrated in Exhibit 60, I am not persuaded that his income would have likely reached $100,000 in 2002 and continued to climb to $150,000 or more by 2008.  While Woods testified that her husband received telephone calls from time to time offering employment which he declines, there was no evidence of any specific offers or opportunities tendered at trial.  I expect that his earnings would have been far more modest than claimed, likely in the range of $60,000 to $75,000 over the course of the period 2002 to 2008, resulting in an approximate gross income of $371,250 for that period.  Deducting the earnings to date of approximately $200,000 yields a net past income loss of $171,250.  I award that sum under this head of damages. 

12.2          Future Loss of Income earning capacity: 

[163]        The plaintiff has advanced a claim for a future loss of income earning capacity in the sum of $2,699,400, premised on the present value of an average annual loss of income of $200,000 to age 75.  The defence entirely rejects this claim, submitting that the plaintiff has suffered no loss whatsoever.  In the alternative, the defence submits that if the Court finds the plaintiff’s tinnitus is causally related to the accident, $100,000 would be an appropriate award to address his total loss of income earning capacity.

[164]        However assuming the Court finds there has been a brain injury suffered (with a consequential loss of income earning capacity), the defence stresses the plaintiff’s actual earnings pre-accident did not approach anything close to $150,000 per annum, let alone $200,000.  The defence submits that based on the plaintiff’s historical earnings figures, his future loss, if any, should not exceed $50,000 per annum.  Adopting that figure, the present value of the future loss of income earnings to age 65, with no discount for rate of participation in the labour force, is $387,150. 

[165]        The relevant legal principles to be applied in this analysis are aptly summarized by our Court of Appeal in Reilly v. Lynn 2003 BCCA 49, adopted by Bauman J. (as he then was) in Fournier v. Stevenson Brothers Warehousing Inc., 2003 BCSC 448, at ¶ 98:

[98]      Their Lordships summarize the proper approach so (at ¶ 100-101): 

[100]          An award for loss of earning capacity presents particular difficulties.  As Dickson J. (as he then was) said, in Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 at 251: 

We must now gaze more deeply into the crystal ball.  What sort of a career would the accident victim have had?  What were his prospects and potential prior to the accident?  It is not loss of earnings but, rather, loss of earning capacity for which compensation must be made: The Queen v. Jennings, supra.  A capital asset has been lost: what was its value? 

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

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

[166]        Applying those principles, I find that despite all of Young’s dogged efforts to pursue every possible employment opportunity (whether doing film jobs, computer animation at Mainframe Entertainment Inc., or cinematography teaching at VFS), he has found himself unable to perform, either on the film set, in an animated production studio, or in the classroom.  I am satisfied that his inability to perform is a direct reflection of his chronic tinnitus condition, coupled with his vision, speech and cognitive deficits, as well as his ongoing depression, all related to the mild traumatic brain injury suffered.  

[167]        That said, I once again do not accept the plaintiff has proven the possibility that but for the accident, he would have graduated to the position of a full-time Director of Photography, earning an average of $200,000 per year for the balance of his career, extending to age 75. 

[168]        I say this since notwithstanding his insistence to the contrary, Young was not an individual focused exclusively on the film industry, bent on maximizing his income at every opportunity.  To the contrary, over the years he has pursued a somewhat eclectic, diversified career, divided between part-time teaching, the exploration of innovative technologies, and the pursuit of both still photography and camera film work.  His pursuit of the VR project, which began as early as 1999 and eclipsed his camera work almost entirely in the year before the accident, reflects this bent.  

[169]        Assuming he would have continued to pursue his various interests, including camera work, teaching, virtual reality work, and photography, and considering the various negative contingencies which apply (including labour strikes, unemployment, and health set backs—all of which have affected the plaintiff in the past), I believe there is a significant possibility that but for the accident, the plaintiff would have earned an average of approximately $75,000 per annum to age 65.  While some of the witnesses spoke of various directors of photography who have worked to age 75, that anecdotal evidence did not satisfy me there was a substantial possibility the plaintiff would have worked to that late age.  During the 4-5 years pre-accident he suffered relatively regular physical ailments such that I doubt his constitution would have tolerated the demands of a career into his advanced years. 

[170]        Thus, for the purposes of this analysis, I calculate the plaintiff would have earned an average of $75,000 per annum during the period from the date of trial (January 14, 2008) to age 65 (October 24, 2016), a period of 8.8 years.  Adopting Mr. Turnbull’s multiplier of $7,743 (Exhibit 27, Tab 1), which reflects no contingencies other than Young’s probability of survival, the present value of that loss of income is $580,725.  

[171]        As against that assessment of the amounts Young would possibly have earned but for the accident, I believe there ought to be some small deduction to reflect the amounts which he remains able to earn in the future.  While I accept the weight of the evidence that he is unemployable as either a cameraman, a director of photographer, or a film teacher,  I find that he at least retains some general ability to operate a still camera (as the Jade Book project completed in the spring of 2003 demonstrates).  While his potential future income as a photographer is likely minimal, it is not zero.  I will roughly discount the earlier figure to approximately $500,000, to reflect earnings of approximately $10,000 per year to age 65.  

[172]        Further, assessing the positive and the negative contingencies which face this plaintiff in the workplace and considering the overall fairness and reasonableness of the amount, I award the plaintiff $400,000 under this head of damage.

12.3          Loss of Opportunity – Virtual Reality project: 

[173]        As I noted earlier, prior to the accident the plaintiff focused almost exclusively on the pursuit of his virtual reality project.  He claims that but for the accident, he would likely have succeeded in marketing that technology, earning perhaps as much as $200,000 in sales to various hotels and resorts.  He says that he can no longer pursue that opportunity since, by virtue of his cognitive deficit, he is unable to decipher the secret code he concocted pre-accident, which code summarized his proprietary process in creating the virtual reality web photographs. 

[174]        Prior to the accident, he believed that this process had great value and accordingly, he shared it with no one, including his wife.  Rather he distilled the process to several distinct steps which he recorded in a hand-written ciphered code.  At some point post-accident (he was unable to say precisely when) he discovered he could not recall the process.  While he had made no specific efforts to de-code the text or to have a third party attempt to do so on his behalf, he concluded the task was an impossible one.  At trial he claimed that the process had been lost forever.  

[175]        In the course of the trial, the defence was able to successfully de-code the text.  In cross-examination, the plaintiff conceded the defence appeared to have done so.  Nevertheless he said he was unable to understand the meaning of many of the items in the text.  Even assuming he could eventually work out the meaning of those items, he noted that what had been recorded in the secret cipher code only represented the “important steps” in the process, leaving open for recall the many other subsidiary steps to be undertaken.  He claimed he could not recall these other steps. 

[176]        While I accept the plaintiff’s contention that he cannot understand his own secret code sufficiently to resume his virtual reality project, I still have some grave doubts that but for the accident, there is a significant possibility he would have succeeded in marketing his virtual reality technique.  In my view it is important to note that despite the hiring of various individuals between 2002 and 2005—Mr. Frodsham, Mr. Clements, Mr. Peigan and Mr. Hall—both to market his services and to create the Shadows & Light Productions web site, the plaintiff did not conclude a single contract with any client, either before or after the accident.  Despite the hundreds and hundreds of hours Young spent over a period of some 4-5 years, creating the photographs of the objects and the panoramas on the website, only one contract for a single client ever came close to fruition—that is the Wickaninnish project. 

[177]        Mr. Paigan, who met Young in April 2002, eventually assisted him as the Shadows & Light website designer.  He recalled that shortly after the July 2002 motor vehicle accident Young complained of headaches, ringing in his ears and sleep deprivation.  He appeared “distant” and “changed”.  None of Peigan’s efforts to assist in marketing the company’s technology came to fruition. 

[178]        Mr. Hall, a film industry camera operator who was off work with a broken leg, ran into the plaintiff at a tradeshow in early 2003 and learned of his virtual reality project.  Mr. Hall saw the Shadows & Light web site which was by then up and operating and included examples of virtual reality tours of vacation resorts and hotels.  Believing Young’s VR project was his own opportunity to get into a business with the potential of unlimited income, Hall offered to use his spare time marketing the project.  Young retained him as the company’s Director of Marketing in mid to late 2003. 

[179]        Mr. Hall immediately targeted the Wickaninnish Inn on Vancouver Island as a potential client.  Following a series of telephone calls and correspondence Hall and Young travelled together to Vancouver Island to make a sales pitch directly to the client in early 2005.  They were successful and ultimately concluded negotiating a contract price of $6000 cash plus four weekend packages at the Wickaninnish, for an overall value of $10,000 as set out in a letter dated February 2005 (Exhibit 7).  According to Hall, this contract price was clearly a heavily discounted price, that is a “lost leader” designed to establish Shadow & Light’s foothold in the industry and increase the company’s exposure.  I am satisfied that had that contract been finalized, it would not have left any profit for the plaintiff, given his own rough pro forma bills established for panoramic work (see Exhibit 41). 

[180]        After the settlement of the letter agreement with the Wickaninnish Inn manager, Hall telephoned Young several times attempting to confirm a September 5th shoot date as well as to finalize all arrangements.  Young did not return his phone calls and the September 5th shoot date passed.  Finally Hall met with him, desperately seeking Young’s agreement to reschedule a new shoot date.  So far as Hall was concerned, Young was creating any number of excuses for not proceeding with the shoot—the need for a staff of four and the possible non-availability of the camera.  In Hall’s view, Young seemed both irrational and irritable.  Young told him that there was “something he was working on” or that “something had to be worked out”.  Apart from Young’s complaints of ringing in his ears, Hall was unaware of any other problems which prevented the Wickaninnish project from proceeding.  Ultimately, he gave up his efforts and quit his work as the Director of Marketing. 

[181]        Young had only a vague recollection of the Wickaninnish deal, describing it as no more than a “probable contract”, requiring the hotel’s payment of a deposit before the contract could be finalized.  He could not recall travelling to the hotel with Hall to visit the client.  He acknowledged that he must have had some sort of discussions with Hall prior to the finalization of the Wickaninnish quotation, but he could recall neither the discussions nor the details of the quotation.  He could not recall the particular reason the Wickaninnish shoot did not proceed.  While Young could not recall precisely what the problem was, Peigan raised the implication it was around this time that Young realized he could not recall the secret code and that he was thus unable to duplicate the VR process.

[182]        While I accept that Young’s many cognitive and physical problems interfered with his ability to perform that particular contract, this still leaves open the question of the overall viability or marketability of the virtual reality panoramic and still object photos.  While the plaintiff urges me to find that his injuries foreclosed this potentially lucrative opportunity, in my view the underlying reality is that the plaintiff lacked the financial resources to invest heavily in the project.  Even for the Wickaninnish project, the virtual reality camera rig was to be rented or perhaps loaned from Mr. Kuthchera.  Young did not own the necessary equipment.  Young did not pay Hall any salary, nor did he underwrite any of the expenses Hall incurred in marketing the VR project.  Thus Young had little direct investment in the project, beyond the hundreds of man hours perfecting the process.  

[183]        Interestingly, although the virtual reality process was largely developed prior to the accident,  Young spent little time pursuing the project in either 2003 or 2004, instead devoting his efforts to the Mainframe employment and later the ROMEO television series.  There is no clear evidence as to when he realized he could no longer recall his coded text.  Nor is there any explanation of his seeming inability or unwillingness since 2005 (or perhaps earlier) to ever pursue any sustained collaboration with others, including his own wife, to achieve a successful deciphering of the text and a re-mastery of this apparently valuable process.  He was clearly insistent, at whatever the cost, to work alone.

[184]        He does not appear to have focused any energy on the resurrection of the project until 2005, around the time of Hall securing the Wickaninnish Hotel’s interest.  Yet at this time, Young was about to commence his full-time teaching position at VFS.  There appears to have been no point in time when he committed himself to the Virtual reality project to the exclusion of his other traditional modes of earning income—teaching or camera work. 

[185]        My overall impression is that even before the accident, while creative and innovative, the plaintiff lacked the administrative and commercial skills, and most importantly the requisite capital investment, to properly develop this technology and bring it to market.  Throughout his investment has been minimal, his efforts largely solitary, and any sustained collaborative effort on a business plan almost non-existent.  Not surprisingly, like many sole proprietors of innovative technology, the business model failed.  While I accept that as an income-earning opportunity, the virtual reality project constituted a real possibility, I am not persuaded that under the plaintiff’s stewardship, there was a substantial possibility this technology would have ever attained any level of profitability.  At most, I am satisfied, that by virtue of his injuries the plaintiff lost the possibility of occasional stand-alone contracts for the photography of various virtual reality objects and panoramic scenes.

[186]        I am satisfied that in addition to the loss of the Wickaninnish contract ($10,000) the plaintiff lost the possibility of other similar stand-alone opportunities.  While I will award $10,000 for the loss of that opportunity, the balance of any award under this head is subsumed in the award under the previous head of damages for loss of income earning capacity. 

12.4          Special Damages: 

[187]        I am satisfied that the plaintiff is entitled to full recovery of the Special damages listed in Exhibit 58: 





Carolyn Ball, Vestibular Rehabilitation:



Carol Lau, Audiology



Dr. S. Johal- Panorama Optometry



Kam Yan-Main Yan Physiotherapy



Institute for Study of Pain (STOP)



Medical Receipts



Miscellaneous Receipts



Lawn Maintenance



RRSP deregistration



Plasma bed



Travel and mileage



Total special damages:





I note that the plaintiff’s counsel has advanced a claim for special damages of $26,955.75, but I am unable to determine which of the claims has been withdrawn or reduced.  I will leave it to counsel to address the matter between themselves.

12.5          Costs of Future Care: 

[188]        The plaintiff has advanced a claim for future care costs in the sum of $1,867,000, being the present value of the costs tallied in the report of Mr. Pakulak (Exhibit 21, Tab 3).  Those costs include an assumption that Young will require 40 hours per week of attendant care for the first ten years post- trial (2008-2018) and thereafter, full-time care (24-hour) to the end of his life expectancy.  This latter assumption is based on Dr. Rathbone’s estimation that given Young’s present level of mild cognitive loss, there will be a continual loss of brain function and the development of age-related dementia at an earlier age than would otherwise have been the case—likely in 10 years time.  

[189]        With all due respect to Dr. Rathbone, this latter assumption appears to be based on a misunderstanding of the plaintiff’s present functional level.  In direct examination, Dr. Rathbone conceded that his opinion, effectively predicting early dementia, was an “extreme point of view”.  He explained that his opinion was largely based on the fact that Young was apparently already unable to look after himself and even at the present, relied heavily on his wife.  As he put it, Young had already “lost so many brain cells” that “his ability now to compensate behaviourally (to) the further loss of brain cells is already starting at a reduced level” (Jan 14/08, page 34).

[190]        By contrast, in her evidence, Ms. Woods did not leave any impression that her husband was presently unable to care for himself or that he relied heavily on her to supervise him.  She noted that he sometimes became lost while driving solo in his car but she said that difficulty had been met with the purchase of a GPS device.  Apart from the need to hire a gardener (to do the yard work Young used to do) and an accountant to eventually assist them in managing any damages award, she did not refer to any need for any attendant care at the present time.  Thus, in my view, the evidentiary foundation for the claim for attendant future care is wanting.  

[191]        As to the balance of the items claimed, my sense is that many of the items now amount to over-reaching.  Mr. Young has developed a sort of lifestyle built around attending many different therapies—physiotherapy and acupuncture, visual therapy, psychotherapy, and auditory therapy—some of which in my view has exhausted its usefulness. 

[192]        I accept that going forward, he will likely require attendance at a pain clinic (once only, $13,439), auditory training (once only, $2,885), ongoing psychological therapy sessions to 2010 ($4,160 +2,880), prescription glasses (every four years, $5,739), some exercise programming ($2000) and pain as well as anti-depressant medication ($26,346).  In addition the plaintiff will require some assistance with yard care which I will value roughly at $20,000.  The total award for these items under this head of damages is $77,449.

13.0          In-trust award for Ms. Woods: 

[193]        The plaintiff seeks an in-trust award for Ms. Woods in the sum of $25,000.  There was no evidentiary foundation laid by the plaintiff concerning any particular services rendered by Ms. Woods on the plaintiff’s behalf to justify such an award. 

14.0          Management fee & Tax Gross-up: 

[194]        I will leave it to counsel to determine whether this matter will be pursued following a review of these reasons for judgment.  

15.0          Summary: 

[195]        Thus, in summary, I award the following sums: 


General damages – non-pecuniary



Past loss of income



Future loss of income earning capacity



Loss of opportunity



Special damages



Costs of future care



Management and Tax Gross up

(to be determined)

16.0          Costs: 

[196]        Since I am unaware of whatever offers of settlement may have been exchanged here, I will not address the issue of costs.  If counsel are unable to resolve this matter between themselves, I invite them to contact the Registry to set a date for submissions on the matter.

“The Honourable Madam Justice Boyd”