LaFleur v. Kesterke

2020 BCSC 1859 LaFleur v. Kesterke

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: LaFleur v. Kesterke, 2020 BCSC 1859 Date: 20201127 Docket: M170676 Registry: Victoria Between: Jesse Shane LaFleur Plaintiff And: Aleece Kesterke Defendant Before: The Honourable Mr. Justice Steeves Reasons for Judgment Counsel for the Plaintiff: M. D. Selly Counsel for the Defendant: E. J. Wagner Place and Date of Trial/Hearing: Victoria, B.C. July 6-10, 2020 July 11-17, 2020 Place and Date of Judgment: Victoria, B.C. November 27, 2020 Table of Contents A. INTRODUCTION. 3 B. BACKGROUND. 4 (a) Before the April 2015 accident 4 (b) The accident on April 26, 2015. 5 (c) After the April 2015 accident 6 C. EXPERT REPORTS. 12 D. CAUSATION. 17 (a) Head trauma and loss of consciousness. 18 (b) 2016 thrombosis. 24 (i) The lay evidence. 25 (ii) The medical evidence. 28 (iii) The expert evidence. 30 (c) Conclusion: causation. 32 E. DAMAGES. 36 (a) Injuries related to the 2015 accident 36 (b) Assessment of damages. 40 (i) Special damages. 40 (ii) Non-pecuniary damages. 42 (iii) Cost of future care. 44 (iv) Loss of housekeeping capacity. 46 (v) Past loss of income. 47 (vi) Future loss of income. 48 F. SUMMARY. 51 A. INTRODUCTION [1] The plaintiff was injured in a motor vehicle accident in Mayerthorpe, Alberta, on April 26, 2015. The defendant's vehicle failed to stop at a marked stop sign and collided with the plaintiff's vehicle. Liability

is admitted. [2] The plaintiff had a spinal stroke (spinal cord infarct) in 2008 and he accepts that he continues to have minor right arm symptoms from that event. In April 2016, after the 2015 accident, the plaintiff suffered a dural sinus venous thrombosis (blood clot). A test in 2016 found he had a genetic factor (Factor V Leiden) that predisposes him to blood clots. [3] The plaintiff says that the 2016 thrombosis was caused by the 2015 accident. Alternatively, he says that his current symptoms are related to head trauma from the 2015 accident. This issue of causation is controversial and significant for the amount of damages the plaintiff is entitled to. [4] The plaintiff claims ongoing problems with sinus thrombosis, seizure disorder, concussion/head injury, left wrist and other medical conditions as a result of the 2015 accident. In particular, the plaintiffs says that, but for the 2015 accident, he would be working in automobile sales where he used to earn substantial income. He could have also advanced to the position of management or even dealer ownership but for the 2015 accident. He seeks damages under the following heads: non‑pecuniary, special damages, past and future wage loss and future care. [5] The defendant admits liability for the April 2015 accident. However, her counsel says the 2016 thrombosis was not causally related to the 2015 accident and the plaintiff

is not entitled to any damages for that condition. The defendant also questions whether the plaintiff's abuse of alcohol and drugs some time ago contributed to his thrombosis and other symptoms. [6] The parties are agreed that the Supreme Court of British Columbia has jurisdiction over this accident in Alberta pursuant to s. 3(b) and s. 3(d) of the Court Jurisdiction and Proceedings Transfer Act, R.S.B.C. 2003, c. 28. [7] There is a document agreement filed July 6, 2020 with respect to the use of clinical records. B. BACKGROUND [8] The plaintiff was 42 years old at trial. He did not complete high school but started working at age 15 in the construction and logging industries. He had a left knee injury in 2000 or 2001 that required surgery. He later attended school to become an aircraft maintenance mechanic. He testified he completed the program with very good marks but decided not to pursue that work because it did not pay well, at least in the beginning. He had a minor motor vehicle accident in 2009 or 2010. [9] He has been active in sports such as wrestling, golf and dirt-biking. He currently has five children, aged 7 to 19 years of age. He has separated from their mothers and he lives with another woman in Dawson Creek, British Columbia. The mothers have the children and the plaintiff has parenting time. He has strong roots on Vancouver Island. (a) Before the April 2015

accident [10] In 2005 the plaintiff commenced work in the car sales industry as a salesman. He also worked a second job at times such as delivering pizzas. He testified that at least since his 2008 spinal stroke he intended to ultimately have his own car dealership. He testified that work like delivering pizzas exposed him to drugs and alcohol. His brother - his "best friend" - died about this time and the plaintiff testified that was very hard. [11] In April 2008 the plaintiff suffered a spinal stroke and there is some medical evidence that it related to cocaine use. In his evidence he described the stroke as very painful and like being "electrocuted 24/7." He had trouble walking including using the bathroom. He also testified that he had "significant improvement" and he participated in a number of sports afterwards including golf, wrestling and dirt-biking. He described "very mild" ongoing symptoms with some tingling in his arms and the only limitation he has is the inability to do push-ups. [12] The plaintiff's alcohol became a problem and he was in rehabilitation/recovery in 2006 and 2008. He was also using drugs. He was sober for six years then had a relapse in 2014. He has been sober since November 24, 2014. That date is significant because it was the day he was terminated from his work because of alcohol and drug use. In his recovery program it is his sobriety date. [13]

The plaintiff describes himself as being quite successful in his work of car sales and financing. Prior to the 2015 accident, and after his stroke in 2008, he worked at a number of dealerships as seems to be the pattern of some people in that industry. [14] A colleague and friend, Charles Zovighan, testified that the plaintiff was an excellent sales manager and he was very professional. He was very accurate in his paperwork and he would get approval of financing when most other managers would not be able to. He was able to quickly calculate in his head the price for a car a customer could afford by quickly running through the trade-in, the credit available and the interest rate. (b) The accident on April 26, 2015 [15] On April 26, 2015 the plaintiff was working at a car dealership in Grande Prairie, Alberta. His wife, Rebecca LaFleur, was living on Vancouver Island but she was visiting him in Grande Prairie. They decided to visit her family in Edmonton. They used a pick-up truck from the dealership and left in the morning. [16] In Mayerthorpe, Alberta, they were driving on the freeway within the speed limit and with their seat belts on. The plaintiff has no memory of the impact but the defendant's vehicle came from a road on the right, without stopping, and hit the plaintiff's vehicle. The plaintiff testified that the last thing he remembered was looking at Ms. LaFleur. He does

not recall the air bags going off (they did go off) or getting out of the vehicle. He does recall the in-vehicle safety system calling 911. He and Ms. LaFleur were taken to the local hospital for assessment including some imaging. [17] They were discharged the same day and continued on to the family event in Edmonton after Ms. LaFleur's aunt picked them up. They were disoriented and in shock. The plaintiff testified that he could not recall any new symptoms. He and Ms. LaFleur drove back to Grande Prairie, he returned to work and she returned to Vancouver Island. [18] In his evidence the plaintiff described some pain in his left wrist, going up to his neck, at the time of the accident. He also had some tingling and numbness in his left hand and he was disoriented. He described the symptoms as "completely different" than the ones he had with his previous spinal stroke which affected his whole body and made him feel like he was paralyzed. (c) After the April 2015 accident [19] A few days after the accident the plaintiff was in a meeting at work and he testified a colleague said to him, "You don't seem to be into this." In his testimony he described the situation from his point of view as being surreal. He agreed he should go home. [20] He then drove "home" to Campbell River, British Columbia, with a friend, Mr. Zovighan. According to the plaintiff the friend seemed concerned

about his driving and offered to drive. The plaintiff declined the offer. They stayed in a hotel "somewhere between Kamloops and Merritt" for the night. This was early May 2015. Upon arriving in Campbell River the plaintiff realized that he had symptoms. He took some Advil medication. In his evidence Mr. Zovighan described essentially the same trip. [21] The plaintiff took four to six weeks off work and then found some contract work at a car dealership in Courtenay on a part-time basis. He agreed to take on full‑time work as a sales manager and he could not recall "any hiccups" with the work. He did have regular headaches, he was yawning a lot and he had to take naps. The work in Courtenay was never intended to be permanent and, in October 2015, the plaintiff commenced work at a dealership in Campbell River as director of finance. [22] The plaintiff testified that he had always been a multi-tasker in his work and he had worked at a number of different dealers with different systems. However, he described it as unusual that he had difficulty figuring out the financing system at the dealership in Campbell River. That system was, in fact, the same one he had used while working at a previous dealership. He said there were a number of deficiencies in his work and at one point he imagined someone else trashing his office. He testified that he had trouble remembering what he did the

night before, trouble getting to sleep, his headaches worsened and the light in the office bothered him. He wondered whether he had Alzheimer's disease and discussed this with his doctor as well as his problems at work. [23] He testified that he was not very involved and at one point his wife said to him that he was not "watching the same movie as everyone else is." His relationship with his children was not good and he was not attending their sport events. He and his wife went on a work/social trip to Las Vegas but the plaintiff could not remember many of the things they did. He did remember "lying around" most of the time and the lights and sounds of the city aggravated his symptoms. [24] In October 2015 the plaintiff commenced work at Steve Marshall Ford as the finance manager. He testified that the work should have been easier but he struggled with it. There were deficiencies, "a big drop in my numbers" and he was not remembering names. Remembering names is important for someone in sales. [25] In April 2016 the plaintiff took his oldest children to a hockey game in Vancouver and they stayed with his aunt. One night he went to sleep on the couch but "woke up in the hospital." At first he was told he had a grand mal seizure and then he was told he had a dural sinus venous thrombosis (blood clot) in his head. He could not remember much of what happened in the hospital except a

"huge loss of memory", headaches and fatigue. His wife, Ms. LaFleur, came to Vancouver and took over explaining to the doctors what happened and his history. He had a second seizure in the hospital, he was in the hospital about two weeks and his driver's license was suspended. He was prescribed a blood thinner which he has been taking ever since. [26] There is a dispute about when the symptoms from the thrombosis commenced; the plaintiff says that they started immediately after the April 2015 accident and the defendant says they did not start until March 2016. [27] While in the hospital the plaintiff was assessed by a neurologist, Dr. John Diggle. His consultation report of April 7, 2016 included the following impression:

IMPRESSION 1. Spontaneous right dural venous sinus thrombosis in the transverse sinus, with a minimal temporal venous infarct and minimal petechial hemorrhage.

2. The patient is aware that this is unrelated to the accident that occurred a year ago, nor do I think the headaches that he has had over the last year were symptomatic of this transverse sinus thrombosis. I think this a new clinical event, unrelated to what have been going on in the years past (i.e., this was not missed - this was a new clinical event), 3. Secondary seizure, with underlying transverse sinus and petechial hemorrhage. [28] The plaintiff explained in his testimony that, after leaving the hospital, his condition returned to about what it had been before and his driver's license was ultimately returned. He continued to have headaches (but less severe than in the hospital) and he was sleeping poorly. Ms. LaFleur testified that his behaviour worsened, his "spirit was gone" and she became his caretaker. [29] The plaintiff's family physician referred the plaintiff to a hematologist, Dr. Hilary Wass. In a consultation report dated September 16, 2016 Dr. Wass described the history and the symptoms at the time included "amnesia and ongoing memory problems." Testing was positive for Factor V Leiden which controls coagulation of the blood. [30] Dr. Wass testified as an expert in this trial (for the plaintiff) and she explained that the positive test means that the plaintiff has a gene mutation that disrupts the normal coagulation balance of the blood in the direction of

coagulation. Hence the need for blood thinners. The September 2016 consultation report from Dr. Wass also said: It seems inescapable that the seizure disorder and the sinus thrombosis were directly caused by the motor vehicle accident. It is not clear whether the Factor V Leiden played much of a role. This is generally a very weak promoter of clotting raising the risk by 5-7 fold. That sounds like a lot until we consider that the risk for any abnormal thrombosis in a young, strong, fit, healthy person is very, very low. With Factor V Leiden there is usually some other event that precipitates clotting such as surgery, pregnancy, air travel, etc. Presumably it was a factor in his transverse sinus thrombosis, though most of the events associated with this mutation are peripheral venous thromboses such as DVT/pulmonary embolus. How much of a role the V Leiden played is unclear but I doubt it was the major precipitating event. [31] The plaintiff's family physician also referred the plaintiff to a neurologist for treatment a number of times. This was Dr. Martin SuttonBrown on June 24, 2015 (just after the April 2015 accident), March 18, 2016 (just before the April 2016 thrombosis), April 22, 2016, May 27, 2016, August 12, 2016 and March 24, 2017. [32] In May/June 2016 the plaintiff was offered work at Comox Valley Nissan which was part of the Revy Auto Group. He started at three

hours a day and, because he did not have a driver's license at the time, he was given a vehicle and a driver. The driver (who was also head of human resources for the Revy Group) also managed his schedule and made it "really easy." This continued for about two months until his driver's license was returned. This work ended in March 2017. [33] At this time he also began some counselling and was working out in the gym. But, left to himself, he had anxiety attacks and he was not sleeping well. In his evidence he described the situation as an "absolute disaster again." He was seeing his family physician regularly and talking about his anxiety. He was taking Tramadol medication for the headache pain and a blood thinner. The doctor told him to stop work which he did in February 2017. [34] The plaintiff's common-law partner at the time, Jennifer Riddoch, also testified (the plaintiff and Ms. LaFleur separated in December 2017). She met him when they both worked at the same dealership in Campbell River in 2017. She was a service representative at Steve Marshall Ford. She described the plaintiff at work as being "great with customers" and "very smooth." [35] However, at the end of 2017 some things struck Ms. Riddoch as unusual. Someone brought some files to the plaintiff that he had not completed and he threw them against the wall. Another time, Ms. Riddoch observed the plaintiff on the

telephone at work through a window (she could not hear him). He smashed and broke the telephone. And a vehicle in the showroom had a broken tail light because the plaintiff had punched it. He then got in an altercation with someone and was ultimately dismissed because, as he testified, he criticized his boss. [36] More generally the plaintiff, according to Ms. Riddoch, like most sales people, had a very good memory for names of people. And he previously had a very good knowledge of the car inventory. For example, she said that when she worked at the same dealer as the plaintiff (as a service advisor) she knew all the vehicles on the lot and their history. According to Ms. Riddoch the plaintiff also had this type of memory for people and vehicles. However, by 2017 he had trouble in these areas so that, for example, he could not remember the name of the parts manager whom he had worked with for some time. The plaintiff also complained about headaches and not sleeping well. [37] At this point the plaintiff was looking for work and he testified it was the first time that he had ever had to prepare a resume. He was unsuccessful obtaining work on Vancouver Island and he went on a road trip through British Columbia to find work. He took a position in Grande Prairie, Alberta, at Windsor Ford as sales manager in September 2018. However, the offer to work was rescinded on his first day

of work. [38] The plaintiff then worked at Bannister Ford in Dawson Creek, British Columbia, from October 2018 to April 2019. Ms. Riddoch also worked there but she left because it "was not a good fit" for her. [39] The plaintiff and Ms. Riddoch now live in Bonanza, Alberta, near Dawson Creek. Ms. Riddoch described a typical day for the plaintiff when he was working as an employee in early 2019. He seemed "overwhelmed, he complained of headaches, he was not sleeping very much, he was losing things and he seemed to have a tornado behind him." He saw a doctor and tried anti-anxiety medication, he had a test for sleep apnea, he tried a new bed (with electronic controls) but "nothing worked." In a typical morning he found it hard to wake up, he was irritable, he could not remember where his wallet and keys were and he would often get angry. [40] At the end of the day he would come home, go straight for a shower, sometimes to bed. If he ate supper he would talk about how stressed he was. He only left home to attend AA meetings. Ms. Riddoch testified that she has never seen the plaintiff take alcohol or drugs. The plaintiff sponsors two AA members and he is available to them 24 hours a day, seven days a week. That work is very important to the plaintiff, as are his children. Ms. Riddoch has never been concerned that the plaintiff would relapse. [41] In late 2019, the plaintiff worked

at Browns Chevrolet in Dawson Creek as the manager of the used car department. Again, he experienced fatigue, headaches, and memory loss. On one occasion, he experienced an anxiety attack that he believed was a heart attack, which he went to the hospital for. After this incident, he and his employer agreed that he should work on a contract basis to train staff in finance and sales methods. [42] Since early 2020 the plaintiff has worked on a contract basis providing training to dealerships about how to sell products such as insurance through the financing of cars. He has had a few contracts and then the COVID 19 pandemic caused the cancellation of some other contracts. He intends to continue with this work since he finds it less stressful than finance and sales. His common-law wife, Ms. Riddoch, testified that this work brings in less income but the plaintiff is more rested, his mood has improved, he complains less often of headaches, he is more responsive and he is interested in going out. C. EXPERT REPORTS [43] The plaintiff relies on two experts in the areas of hematology and physical medicine and rehabilitation. [44] Dr. Hilary Wass is the plaintiff's expert in hematology and she prepared a report dated March 17, 2020. As above, she treated the plaintiff in September 2016 and provided a consultation report. Her later expert report reviewed the medical reports since then. She

only examined the plaintiff in 2016. [45] Dr. Wass's expert report includes the following: Cerebral sinus thrombosis is quite uncommon representing about 2% of all strokes. It is however the most common stroke in young people. The most common cause of this syndrome is infection, particularly in immune compromised individuals. The next commonest cause is head injury. There is an association with both genetic and acquired promoters of thrombosis (thrombophilias). This includes the use of birth control pills, pregnancy, and the immediate postpartum period. The incidence of transverse sinus thrombosis following head injury is 4.8%. In most cases there is a skull fracture. If the fracture line is adjacent to the dural sinus the risk of thrombosis goes up to 51%. Cerebral sinus thrombosis can become chronic in about 20% of cases. The most common symptom in this situation is headache occurring in about 90% of individuals. In 25 - 40% headache is the only symptom i.e. there are no other neurologic findings. About a third of these patients will have seizures and many have focal sensory deficits. Mr. LaFleur was found to be positive for Factor V Leiden following the thrombosis. This mutation interferes with the natural anticoagulant protein C, thus tipping the balance slightly towards clotting. This is generally a very weak promoter of clotting and it would be very unusual to have such a

significant thrombosis particularly in the brain. Usually these patients present with deep vein thrombosis in the leg or possibly a pulmonary embolus (a clot from the leg that has broken off and gone to the lung). Many of these events occur with some other usually transient risk factor such as surgery, prolong travel, hormones. Mr. LaFleur had cognitive, memory and personality issues subsequent to the motor vehicle accident in May 2015, and he complained of chronic headaches over the following year. There is no other obvious explanation for the occurrence of an unusual thrombosis in an apparently well active young man. I think that it is likely that he had a chronic dural sinus thrombosis which occurred at the time of this motor vehicle accident and head injury. I think this was the cause of the subsequent seizure disorder. I think it is highly unlikely that Factor V Leiden played a major role in this event. I am unable to comment on his vocational disability or general disability as I saw the patient only once shortly after the thrombosis was diagnosed. I do not think that any further treatment or investigation is needed. I cannot comment on the final outcome, though I note that Dr. Rocheleau's opinion in September 2017 was that "Mr. LaFleur has reached maximum medical improvement and that his situation is permanent". [46] Dr. Michael Rocheleau is the plaintiff's expert in

physical medicine and rehabilitation. He examined the plaintiff on July 28, 2017 and prepared a report dated September 19, 2017. [47] Dr. Rocheleau's report includes the following: Current Status: 1. Headaches: Mr. LaFleur reports that he is experiencing an increase in headaches since returning to work. He takes 4 to 5 extra strength Tylenol per day to counteract the headaches and feels that the medication does "help a bit".

2. Cognition: Mr. LaFleur reports that he is "not as sharp" as he was before the accident. He describes himself as being "fuzzy". He uses his phone as a memory aid. He finds that when he is driving he has to concentrate a lot more. He reports that it is easy for him to lose his train of thought.

3. Emotions: Mr. LaFleur finds that his emotions have changed. He describes them as being more blunted and he no longer experiences happiness or sadness to the same degree.

4. Behaviour: In general, his personality/behaviour has changed. He seems to have lost his fear of consequences. His judgement isn't really sharp. He is also more subject to his whims and impulses. He ended up spending a couple of hundred thousand dollars on items such as cars, boats and trucks. He also gambled away significant funds at the casino. Despite this, he reports his conscience really doesn't "weigh on him" and he feels like it would be easy for him to repeat these behaviours.

5. Musculoskeletal: The main concern from a physical standpoint is his left wrist. Otherwise, the aches and pains that he was experiencing after the accident have mostly resolved. Occasionally, he can still experience some neck and lower back pain. In terms of the wrist, he experiences symptoms in the area of the distal radial/ulnar joint (DRUJ). He also gets some aching in the area of the underside of his wrist (volar region). He describes a persistent snapping in the wrist which seems to relate to the DRUJ and this is bothersome.

6. Sleep: He can get to sleep although this may take time and often it requires an hour or more. After that he may need to get up in the night. He is usually up early, around 430 or 5 AM. He doesn't find that his sleep is particularly restful.

7. Sports: Mr. LaFleur owns a boat and can pull water skiers and wakeborders. He primarily does this on local lakes. He enjoys taking his children or friends out. He has tried to wakeboard himself and he wears a helmet when doing so. Whenever he has attempted the activity (wake boarding) he finds that his wrist will hurt after. He also still golfs. He couldn't do this for about a year after the motor vehicle accident because of his left wrist. He did attend physiotherapy and did some weight training which he found helpful. However, whenever he plays a game of golf his left wrist hurts for a few days afterwards.

8. Medications: Cipralex 20 mg OD; Xarelto ?20 mg OD. [48] Dr. Rocheleau's report also included the following: 1. DIAGNOSIS: a. musculoskeletal trauma secondary to motor vehicle accident of April 26, 2015 b. left wrist injury with residual capsular/ligamentous pain, chronic c. head trauma with resultant development of a brain clot and subsequent brain damage d. previous spinal cord infarct (2008) with residual right upper extremity weakness 2. CAUSATION: a. the above injuries (1a,b,c) were caused by the motor vehicle accident of April 26, 2015 3. VOCATIONAL: a. Mr. LaFleur is no longer as able as he was prior to the motor vehicle accident of April, 2015. He has experienced cognitive, memory and personality change as a consequence of his head trauma and subsequent brain clot. b. He continues to be troubled with headache which is probably a direct consequence of his brain injury/clot. c. There are apparently significant issues as to the quality of his work. Future employment in a capacity similar to his pre-accident work is probably not possible. Continue to employment will likely be contingent on the benevolence of his employer to a significant degree.

4. PROGNOSIS: a. Considering the length of time that is passed (over 2 years) and the nature of the injuries, is more likely than not based on a reasonable degree of medical certainty that Mr. LaFleur has reached maximum medical improvement and that his situation is permanent.

5. RECOMMENDATIONS: a. A program of cognitive behavioural therapy might be of some benefit in mitigating some of the issues that Mr. LaFleur is experiencing. b. An assessment by a psychologist/neuropsychologist with a familiarity with brain injury would be useful in providing guidance in terms of potential management strategies. c. A formal neuropsychological evaluation would also help to provide some insight into the nature of his deficits. Probably, this would be useful in determining future treatment strategies as well. d. A custom wrist splint would probably help Mr. LaFleur in terms of his recreational activities and also with the heavier household tasks. [49] The defendant retained two experts in the fields of pharmacology and neurosurgery. [50] Dr. Sid Katz holds a Ph.D in pharmacology and he has taught that subject at the University of British Columbia. He did not examine the plaintiff and his report is dated March 28, 2020. He reviewed the medical files of the plaintiff and in particular his medication use and he opined on the significance of the plaintiff's history of cocaine use some 14 years ago. Following a voir dire I ruled that Dr. Katz's report opined on issues for which he had no expertise and I directed that parts of his report should be given no weight. There are other issues with Dr. Katz's report and I discuss them below. [51] The defendant's expert in neurosurgery is Dr. John Sun. He examined the plaintiff on February 22, 2020 and his report is dated March 17, 2020. [52] Dr. Sun's report included the following (line numbers omitted):

OPINION Diagnosis and Causation: Mr. Lafleur did not have any significant complaints related to a concussion following the suspect MVA on April 26, 2015 to suggest that the MVA caused a significant head injury. His first complaints of headache and cognitive problems were on March 21, 2016. This was almost a year after the MVA and therefore the timing of his complaints are not consistent with the MVA causing his symptoms. In March 2016, he complained of headaches and cognitive difficulties. It is likely his dural sinus thrombosis was progressively developing at this time. This is supported by the fact that with treatment of the thrombosis his headaches and cognition improved. It was shortly after this he had a seizure. The continued progression of the right dural venous sinus/transverse sinus thrombosis leading to an occlusion, eventually led to a venous infarct and seizure. He was diagnosed with Factor V Leiden heterozygosity, which was a pre-existing life-long condition and not related to the MVA. Factor V heterzygosity [sic] has been a recognized cause of dural sinus thrombosis. Mr. Lafleur did not have any clinical evidence of a skull fracture or significant head injury as a result of the MVA that would make the MVA the likely cause of his dural sinus thrombosis. A skull fracture would cause immediate and severe head pain at the site of the fracture and is often associated

with bruising, swelling and concussion like symptoms. Based on my review of medical records, this did not occur immediately after the MVA. A closed head injury without a skull fracture can rarely cause a dural sinus thrombosis, however the head injury is significant and immediately apparent. Based on review of the records, Mr. Lafleur demonstrated no symptoms of head injury following the MVA. I agree with the April 5, 2016 neurologist Dr. J. Diggle's evaluation of him. He diagnosed him as having a spontaneous dural venous sinus thrombosis and temporal venous infarct. He felt this was a new and spontaneous event and unrelated to his MVA. The seizure was related to this new event. It is also a possibility his spinal cord infarct in 2008 was partially related to his Factor V Leiden heterozygosity in combination with drug use. At that time he did not undergo hematological testing to establish the diagnosis of being Factor V Leiden heterozygous. There has been another case of a patient that had Factor V Leiden heterozygosity in combination with sickle cell that may have caused an anterior spinal cord infarct. I do not feel that these two events (spinal cord infarct and dural sinus thrombosis) occurred simply by coincidence, because they are two very rare events that occurred in the same individual. Therefore, the underlying cause is his lifelong condition of being Factor V Leiden

heterozygous. His current headaches and cognitive difficulties are the result of the venous infarct caused by the dural sinus thrombosis and not the result of the MVA. In addition, he did not have significant complaints of anxiety or depression after the MVA and only developed this after he had a venous infarct from the dural sinus thrombosis. Following the MVA Mr. Lafleur complained of left wrist, cervical, thoracic and lumbar pain. The cervical, thoracic and lumbar pain was related to soft tissue strain as a result of the MVA. He has recovered from this with no significant ongoing issues. I do not feel he had any radicular symptoms into the left arm and most of his left arm symptoms were related to a wrist injury. In addition, the MRI done in October 2015 confirmed that there was no nerve root compression to explain his left arm symptoms. Prognosis and Treatment: It is likely that Mr. Lafleur's current cognitive complaints will be permanent given the lack of improvement since 2016. He has adapted well and will likely need to continue this life long. He has already adjusted his career to accommodate this. There are no further treatment recommendations I would make. Objective testing by a Neuropsychologist can define his current cognitive deficit and the limitations it poses. I cannot comment on his prognosis and treatment of his anxiety and depression. This is not my area of

expertise. He has recovered fully from his soft tissue strain of his cervical, thoracic and lumbar spine. General spine care is all I would recommend to prevent future problems. [References omitted.] D. CAUSATION [53] There is an issue between the parties with respect to the causation of the plaintiff's 2016 thrombosis/blood clot. [54] Causation is a significant issue here because many of the current problems of the plaintiff including seizure disorder, concussion/head injury and other medical conditions relate to the blood clot and its effects. The plaintiff's submission is that he suffered a serious head injury in the 2015 accident which caused his symptoms. In any event, he says his headaches and cognitive deficits started immediately after the 2015 accident. On the other hand, the defendant says they started in March 2016 and they are causally independent of the accident a year before. In the alternative, the defendant says that no clear cause of the thrombosis has been proven, such that it cannot be said to result from the 2015 accident. [55] The legal context for this issue is that causation is established where the plaintiff proves to the civil standard on a balance of probabilities that the defendant caused or contributed to the injury. The "but for test" has proven unworkable in some circumstances so the courts have recognized that causation is established where the

defendant's negligence "materially contributed" to the occurrence of the injury. It is not necessary for the plaintiff to establish that the defendant's negligence was the sole cause of the injury because there will frequently be a myriad of other background events which were necessary preconditions to the injury occurring (Athey v. Leonati, [1996] 3 S.C.R. 458, at pgs. 466-468; citing a number of authorities including Snell v. Farrell, [1990] 2 S.C.R. 311; McGhee v. National Coal Board, [1972] 3 All E.R. 1008 (H.L.)). [56] Apart from the medical aspect of this issue there is a significant factual/medical issue: did the plaintiff suffer a head injury in the April 2015 accident including a loss of consciousness? [57] I will discuss this factual issue and then discuss whether the 2016 thrombosis can be causally related to the 2015 accident. (a) Head trauma and loss of consciousness [58] I will review the evidence for the period April 2015 to March 2016 to assess whether the plaintiff suffered head trauma or a loss of consciousness from the 2015 accident. [59] Beginning with the evidence of the 2015 accident itself, as discussed above, the plaintiff and his wife, Ms. LaFleur, were driving to attend a family gathering near Edmonton, Alberta, on April 26, 2015. His wife was in the passenger seat of the pick-up. They were using cruise control within the speed limit at about 100-110

kilometres per hour and they were wearing seat belts. [60] At a highway intersection at Mayerthorpe, Alberta, they were struck on the right side by the defendant's vehicle which had run a stop sign. The air bags in their vehicle went off but the plaintiff testified that he did not remember them going off or getting out of the vehicle. The last thing he could remember was looking at Ms. LaFleur. He did remember the in-vehicle assistance system calling 911 after the impact. There is also a reference in the medical reports about the plaintiff saying he called 911. [61] The plaintiff testified that, right after the accident, he remembered pain in his left wrist and a burning up his left arm. The "only other thing" was feeling disoriented. He also said it was "completely different" from the spinal stroke he had in 2008. Ms. LaFleur testified that she screamed at the time of the impact and she looked at the plaintiff. She also did not remember the impact except for the sound. She got out, patted herself down to make sure she was alright and then went to check on the defendant. At one point she observed the plaintiff out of their vehicle but she could not recall seeing him get out. [62] An ambulance attended and the attendant's chart described a 37 year old male with "ᴓ obvious distress, pain or injuries." The chart also recorded no loss of consciousness ("ᴓ LOC") and "G15-15." This

is a reference to the Glasgow Coma Scale or "GCS," which is used to assess the wakefulness and alertness of patients in these situations. Dr. Sun a neurologist, testified it measures verbal, motor and eye responses and reflects degrees of wakefulness. A score of 15 is a "perfect" score with the patient fully awake and alert; 13-15 would be a mild loss of consciousness, 9-12 would be a moderate loss and a severe loss would be 8-3 (the lowest score would be 3). [63] The plaintiff was taken by ambulance to the hospital first (Ms. LaFleur thought that was because of his history of a spinal stroke) and then Ms. LaFleur was also taken there by ambulance. A nursing assessment (at 1418 hours) described no loss of consciousness ("ᴓ LOC") and a GCS of "15/15". The physician's notes (at 1445 hours) recorded loss of consciousness ("LOC") and the same GCS score. The plaintiff says that these records demonstrate that he lost consciousness and the defendant says they demonstrate that he did not lose consciousness. [64] The plaintiff and Ms. LaFleur were picked up by a family member and they continued on to the family gathering. Ms. LaFleur described the gathering as overwhelming after the accident and the plaintiff was unusually withdrawn. They then returned to Grande Prairie where, according to Ms. LaFleur, the plaintiff developed headaches and "overall body soreness." [65] They returned to

Vancouver Island separately and the plaintiff was examined by his family physician, Dr. R. Arnold. This was on May 4, 2015, nine days after the accident. Dr. Arnold's notes from the examination are as follows: Head and neck exam unremarkable. Full range of motion of the neck. Flexion, extension and lateral rotation. Patient does note minor tightness in the right perhaps more than left paravertebral muscles. Patient has some limitation to forward flexion of the back producing a tight sensation in the lumbar spine area with the discomfort. Examination of the upper extremity reveals minimal tenderness at the extensor surface of the left wrist, with full range of motion. Patient has generalized atrophy of the muscles in both the left and right upper arm. He has very limited tricep function in both arms, much stronger biceps. He has notably weak extension of the wrist and both arms, right worse than left. He has muscle weakness of flexion of both wrists. Hand grip is weak on both sides, right, [weaker than] the left. The intrinsic muscles of his hands are weak on both sides. These neurologic findings all date to the previous spinal cord infarct apparently. [T]he patient now has subjective hypoesthesia of the ulnar 3 fingers of the left hand and this is new. He has greatly reduced sensation over the extensor surface of the hand. Subjectively he has normal sensation to light touch in

the forearm and upper arm, and in spite of this feeling of paresthesias. Range of motion of his neck has no bearing of his arm or wrist symptoms. [66] The assessment was: - Major motor vehicle accidents [there was one accident] with minimal injuries - Ulnar nerve compression injury? Producing paresthesia in the left hand. - Significant premorbid neurologic compromise because of spinal cord infarct years ago - Sprained left wrist [67] Dr. Arnold's plan included the plaintiff continuing to wear a left wrist splint and a referral to a neurologist who had seen the plaintiff in the past "[f]or continued neurologic complaints." In his oral evidence Dr. Arnold confirmed that there was no diagnosis of concussion or any record of a head injury. [68] Dr. Sun, an expert in neurosurgery for the defendant, opined that it is significant that there is no record here or in the other medical records of headaches, head injury or the other symptoms the plaintiff says he had from the accident. These are first noted in the medical records in March 2016. They were, according to Dr. Sun, from the underlying thrombosis and they were precursors to the seizures in April 2016. This is discussed in more detail below. [69] Continuing with the chronology of the plaintiff's symptoms and treatments, Dr. Arnold referred him to a neurologist (with a sub-specialty in neuro-ophthalmology), Dr. SuttonBrown, who

examined the plaintiff on June 24, 2015. He recorded that the plaintiff was not sure if he lost consciousness in the accident but he "had some amnesia for his wife exiting the vehicle." Dr. SuttonBrown concluded that: The immediate symptoms included left hand numbness, burning and tingling. He had some associate neck and wrist pain. His ongoing symptoms include tremor of his left hand. He feels there increased fatigue and weakness in the left hand. [70] The next assessment by Dr. SuttonBrown was on March 18, 2016, about a month before the April 2016 thrombosis. The plaintiff was doing exercises and "working at the gym regularly." In addition, "[h]e feels the main residual deficit is sensory changes in the left hand and left wrist 'clicking.'" There is no reference to other neurological issues such as are now associated with the thrombosis. [71] From the above I take the following. [72] The impact of the accident was from the right side and not from the back or front. If the plaintiff hit his head it was on the inflated air bag. The ambulance report records minimal distress. There is no evidence of a physical injury to the head in the medical reports at the time of the accident and the primary complaint of the plaintiff appears to have been the left arm, hand and wrist. He was understandably in shock, he could not remember the accident and he was disoriented by the impact but he

was able to exit his vehicle by himself. Ms. LaFleur was also in shock and was similarly disoriented. [73] There is some inconsistency in the references to the plaintiff's level of consciousness at the time of the accident: the ambulance and nurse charts describe no loss of consciousness and the later physician's chart describes loss of consciousness. On the other hand, all three charts were consistent with a GCS of 15 indicating the plaintiff was fully awake and alert. There is no evidence from observers at the accident scene that he actually lost consciousness and his memory, perhaps understandably, is not clear. The plaintiff's lack of memory of some of the events at the time of the accident were later described by physicians as a kind of amnesia. [74] Five days after the accident, Dr. Arnold noted that a head and neck exam were unremarkable. Dr. Arnold's neurological findings were from the previous spinal cord infarct but with new symptoms in the left hand. There is no reference in Dr. Arnold's chart to the plaintiff being unconscious at the time of the accident (or that the plaintiff said as part of his history that he was unconscious), that he was concussed or that he had any head injury. Nor are there references to these issues in the two reports of Dr. SuttonBrown the neurologist, who was treating the sensory problems in the left wrist before the onset of the thrombosis

in April 2016 (June 24, 2015; March 18, 2016). The plaintiff apparently did not raise those symptoms with his doctors at the time. [75] According to a report from Dr. Wass, dated September 16, 2016, the plaintiff told her then that he did not think he lost consciousness at the time of the accident. He did tell her that his memory of the event was vague and he believed he was confused. In her report Dr. Wass described this as "presumably concussed." Then, in her expert report of March 17, 2020, Dr. Wass stated more definitely that the plaintiff "suffered a concussion." In his expert report of September 19, 2017 Dr. Rocheleau said that the plaintiff "appears to have had a concussion." His diagnosis included "head trauma with resultant development of a brain clot and subsequent brain damage." [76] I have some difficulty with these two latter opinions. Again, Dr. Wass noted in September 2016 that the plaintiff did not think he lost consciousness. She concluded that he was "presumably concussed" and then stated more firmly that he was concussed when she wrote her expert report in 2020 (without a second examination). In neither report is there a record of any head injury from the plaintiff's history or from Dr. Wass's examination of him. For his part, Dr. Rocheleau qualifies his finding of a concussion by saying it appeared to be one. He also opines there was trauma to the head of

the plaintiff but I am unable to see that finding in the history he took or his assessment of the plaintiff. Nor is it in the medical records at the time of the accident or in Dr. Arnold's chart of May 4, 2015. [77] I note the plaintiff's submission that "the absence of a clinical record, and the absence of reference to a symptom within those records, is not evidence of anything" (citing Edmondson v. Payer, 2011 BCSC 118, at paras. 36-37). In Edmondson, the plaintiff sustained soft tissue injuries in a motor vehicle accident. Over the two years following the accident, she saw physicians from time to time for various matters, but according to her medical records she did not report any history or symptoms relating to the accident (para. 8). However, five years following the accident, she still complained of frequent neck pain and stiffness as well as headaches (para. 1). The plaintiff's medical experts opined that, based on the symptoms reported to them by the plaintiff, her symptoms were a result of the accident (paras. 19-21). The defendant did not present expert evidence (para. 52). Mr. Justice Smith accepted the experts' opinions and found the plaintiff's symptoms were related to the accident, even though there was a lack of medical documentation of those symptoms (para. 91). [78] However, I find Edmondson is distinguishable given Dr. Sun's evidence, as well as the fact that

two neurologists (Dr. Waterman and Dr. SuttonBrown) who are specifically trained to identify and treat neurological cognitive symptoms examined the plaintiff between the 2015 accident and the 2016 thrombosis and reported no such symptoms or head trauma. [79] Dr. Sun, the expert in neurosurgery for the defendant, has considerable experience in head injuries and, in my view, his review of the plaintiff's accident and related injuries is the preferred one. In his report Dr. Sun opined that skull fractures cause immediate and severe pain at the site of the fracture and are often associated with bruising, swelling and concussion like symptoms. On the basis of a review of the medical records he concluded that there was no fracture in the case of the plaintiff. A closed head injury without a fracture can "rarely cause a dural sinus thrombosis, however the head injury is significant and immediately apparent." [80] I conclude that, taken overall, the evidence supports the conclusion that the plaintiff, although understandably disoriented and in shock immediately after the accident, did not lose consciousness. I also conclude that the plaintiff hit his head on the inflated or inflating air bag at the time of the accident but there is no evidence of any serious head injury such as closed head injury at the time or in the month after the accident. It follows that I disagree with the

statements by Dr. Wass and Dr. Rocheleau that there was trauma to the head and that there was a concussion. And, as demonstrated above, the medical history is not consistent with Dr. Wass's statement that the plaintiff complained of headaches during the year following the 2015 accident. This finding weakens the weight to be given to those two reports. Dr. Wass's expertise in hematology is acknowledged but I conclude that Dr. Sun's extensive experience with head injuries is to be preferred. [81] The plaintiff says he suffered a mild traumatic brain injury in the accident but no doctor made that diagnosis at the time or later, including the plaintiff's own doctors. Without medical support I cannot make that diagnosis. (b) 2016 thrombosis [82] I next turn to the sinus thrombosis. As above, the emergency onset of this condition occurred in April 2016, about a year after the April 2015 motor vehicle accident. The plaintiff was visiting Vancouver with his children when he had a seizure. He attended at Surrey Memorial Hospital where he had a second seizure. There is no dispute that the plaintiff suffers from this condition and that it was, and is, a significant medical event. [83] The question here is whether it is causally related to the 2015 motor vehicle accident. The plaintiff says the accident caused the 2016 thrombosis and is responsible for his current symptoms of headaches and

cognitive deficits. If that is so, the plaintiff is entitled to damages for the condition. He also says he can no longer work at a level he did before the accident and the thrombosis. This means that he no longer can expect the increased income he would have earned but for the accident and, in particular, his plan to eventually have his own car dealership is at an end. [84] The plaintiff accepts he has ongoing right arm/hand problems from the 2008 spinal stroke that are not related to the 2015 accident. For example, because of this limitation, he could not do a push-up before the 2015 accident and he cannot do one now. [85] I will review the medical and non-medical evidence from the accident in April 2015 to the emergency onset of the thrombosis in April 2016 in order to consider whether the latter is causally related to the former. The plaintiff very much relies on the evidence of his family and friends and he says it establishes a consistent and strong relationship between the accident and the thrombosis. On the other hand, the defendant says the medical evidence demonstrates that these are two separate events and there is no causal relationship between them. (i) The lay evidence [86] Beginning with the evidence relied on by the plaintiff on this issue, he testified about the physical pain from the 2015 accident. This included pain in the left arm and wrist. There was

apparently some pain in the neck from the accident and body soreness as described by Ms. LaFleur. He also felt disoriented, most particularly (and understandably) when he proceeded to the family gathering the same day as the accident. I have found above that the plaintiff did not have any significant head trauma in the accident, there is no evidence of any brain injury (including a mild traumatic brain injury or closed head injury) and he did not lose consciousness. [87] The plaintiff returned to work in Grande Prairie for a short period. His co‑worker and friend Mr. Zovighan described him as uncharacteristically docile and unfocussed. As well, the plaintiff testified that at work he seemed unable to deal with questions and provide quick answers as he had done before. His ability to perform financial calculations was also not what it was before. These are among the cognitive deficits that the plaintiff attributes to the 2016 thrombosis which he says were caused by the 2015 accident and which continue. [88] The plaintiff testified that he was told by his manager that he "was not that into it" and they agreed he would leave. He returned to Vancouver Island and Mr. Zovighan left with him. The plaintiff drove for the trip and Mr. Zovighan described the plaintiff's erratic driving as "harrowing." He could not recall any complaints from the plaintiff about headaches. In contrast, Ms.

LaFleur testified that the plaintiff "almost immediately" after the accident complained of headaches. He testified that he had headaches right after the accident. [89] The plaintiff took some time off work when he returned to Vancouver Island and then worked at Steve Marshall Ford in Campbell River from October 2015 to May 2016 as a director of finance. In his evidence he described difficulties learning the financing system. This was a problem because he had previously used the same system at another dealership. He testified that he made mistakes and he could not remember what he had done the previous day. His headaches worsened, he had blurred vision, he had trouble sleeping and he questioned to himself whether he had Alzheimer's disease. [90] The relationship between the plaintiff and Ms. LaFleur was breaking down before and after the April 2015 accident. She was nonetheless in contact with him when he returned to Vancouver Island and she described him as "void of emotions" and not himself. As well, he could not recall what he wanted to say and he talked about his headaches. During a trip to Los Vegas, just before the April 2016 thrombosis, the plaintiff was unusually withdrawn and, according to Ms. LaFleur, he just wanted to stay in the hotel room. [91] Benjamin Coyle was a co-worker with the plaintiff in the fall of 2015. When the plaintiff started work he had a very good

reputation but Mr. Coyle testified that it quickly became obvious he needed help. He was not "skilled like we expected." He could not remember telephone numbers and Mr. Coyle was the "back-catcher" to find errors or omissions the plaintiff made. This was frustrating for Mr. Coyle because he was not being paid as much as the plaintiff. [92] A number of other witnesses testified about the affect of the 2016 thrombosis on the plaintiff and his work. For example, Lisa Napier was the human resources coordinator at the Revy Auto Group where the plaintiff worked after his thrombosis. She testified that she managed his schedule and time but this was difficult because he did not follow-up with tasks, among other problems. [93] The defendant also tendered evidence about the work of the plaintiff before and after the 2015 accident. Karl Edrup is currently a dealership owner and he worked in management positions with the plaintiff before that. Mr. Edrup testified that the plaintiff was a good salesman before the 2015 accident and he "did a great job" after the accident when the dealership "had the best results we have ever had." Mr. Edrup described the plaintiff as a "1 or 2 year guy" who "lights the world on fire", gets comfortable and then moves on. [94] In cross-examination Mr. Edrup denied that his description of the plaintiff as being a "flash in a pan" was the case only after the

accident. It is "part of his make‑up", according to Mr. Edrup. As well, the plaintiff was never good at doing the required paperwork, before and after the 2015 accident, but that is "not a big deal" in a car dealership. The plaintiff did say he was forgetful but Mr. Edrup "just thought it was making excuses" and he never heard about any complaints of headaches from the plaintiff. (ii) The medical evidence [95] I next turn to the medical evidence that is relevant to the relationship between the 2015 accident and the 2016 thrombosis. As will be seen, the medical evidence does not include the kind of symptoms described by the plaintiff in his evidence or the evidence of his family and colleagues until March 2016, just before the April 2016 onset of the thrombosis. [96] I have set out above Dr. Arnold's chart for his first examination of the plaintiff after the accident, on May 4, 2015, nine days after the accident. As can be seen there are no references to a loss of consciousness, to headaches or to any cognitive deficits. The head and neck examinations were unremarkable and there was no mention of any head trauma. There were neurological findings related to the previous 2008 spinal stroke but symptoms in the left hand/wrist were new. [97] At the next appointment, May 13, 2015, Dr. Arnold described the physical problems and the neurological issues in the left hand/wrist and it was

noted that the plaintiff was not sleeping well. There were subsequent examinations by Dr. Arnold on June 4, 2015, August 21, 2015, August 27, 2015, January 6, 2016, February 4, 2016, and March 21, 2016 and the primary concern at these visits was the left hand. [98] The plaintiff was referred to Dr. SuttonBrown, a neurologist, and his first report is dated June 24, 2015. I discuss that report above and it was addressing left wrist issues. In his oral, lay evidence, Dr. SuttonBrown confirmed that there was no cognitive assessment on June 24, 2015. [99] Dr. Arnold or Dr. SuttonBrown referred the plaintiff to another neurologist, Dr. K. Waterman, for the left hand/wrist problem and for neurological problems continuing from the 2008 spinal stroke. (Dr. Waterman appears from his letterhead to have a different sub-specialty than Dr. SuttonBrown, in the field of neuro-ophthalmology). [100] Dr. Waterman provided a consultation report dated October 1, 2015 where he reviewed the plaintiff's medical situation. The 2008 stroke was discussed as was the 2015 accident. With respect to the left arm complaints it was noted that the plaintiff had trouble lifting his left arm above his head. Further, "[t]hese motor problems have improved substantially but he feels his hand is not back to normal. He gets a tremor involving his index finger and thumb." The "major acquired deficit related to the

accident is weakness of wrist and finger extensors on the left " There was no mention by Dr. Waterman of a loss of consciousness, head injury, cognitive problems and the only neurological issues related to the left hand/wrist. In his evidence Dr. SuttonBrown stated there was not reference to cognitive issues in Dr. Waterman's report. [101] The plaintiff saw Dr. SuttonBrown one more time before the April 2016 thrombosis. This was on March 18, 2016 when the "main residual deficit" was described as "changes in the left hand and wrist 'clicking.'" A power exam was "improved", meaning it was not resolved. In his oral evidence Dr. SuttonBrown states that he could not recall any signs of a head injury and there were no cognitive problems noted. (The plaintiff saw Dr. SuttonBrown five times after the 2016 thrombosis including a visit on April 22, 2016 just after it became acute). [102] Dr. Arnold, the plaintiff's family physician, examined the plaintiff on March 21, 2016. The findings are significant because this was the first reference in the medical evidence to the plaintiff reporting to his doctors about headaches and what later became identified as cognitive deficits. The relevant parts of the chart note included (reproduced as written): getting some headaches making some mistakes at work co workers complaining forgetting conversations after having them less attention to

detail more aware in the last sleeping fine no substances denies signif stress [103] The assessment by Dr. Arnold was "[a]pparent cognitive impairment of unclear etiology/significance. Anxiety/stress?" A plan for referral to Dr. SuttonBrown, the neurologist, was started. It now appears that Dr. Sun's statement in his expert report of March 25, 2020 that the thrombosis was progressively developing at this point is an accurate one. [104] The emergency onset of the thrombosis then unfortunately occurred in early April 2016. [105] As part of the treatment for the thrombosis the plaintiff was assessed by a neurologist, Dr. Diggle, on April 7, 2016. He stated in his consultation report that the plaintiff was aware that the condition was unrelated to the 2015 accident. As the plaintiff points out, this is an opinion from a treating physician rather than one from an expert certified under the Supreme Court Civil Rules. As will be seen it was, however, subsequently adopted by Dr. Sun. [106] The plaintiff was then referred to Dr. Wass, a hematologist, who provided a consultation report dated September 16, 2016. In that report Dr. Wass stated that it was "inescapable" that the seizure disorder and the sinus thrombosis were directly caused by the 2015 accident. She discussed the presence of the Factor V Leiden and she said it was not clear whether it played much of a role (this is

discussed further below). As with the opinion of Dr. Diggle above, this is not the opinion of a court certified expert. However, as will be seen, Dr. Wass provides essentially the same opinion in her subsequent expert report dated March 17, 2020. (iii) The expert evidence [107] As above the parties have tendered conflicting expert evidence on the issue of whether the 2016 thrombosis is causally related to the 2015 accident. [108] I have set out above excerpts from Dr. Wass's expert report in 2020. She recorded that the plaintiff had cognitive, memory and personality issues "subsequent to the motor vehicle accident in May 2015." She opines that the plaintiff's thrombosis is causally related to the 2015 accident. She described the plaintiff as complaining about chronic headaches in the year after the 2015 accident. She opines that there "is no other obvious explanation for the occurrence of an unusual thrombosis in an apparently active young man." She also opined that it is "likely that the plaintiff had a chronic dural sinus thrombosis which occurred at the time of this motor vehicle accident and head injury." She thought this was the cause of the subsequent seizure disorder and the Factor V Leiden did not play a major role. [109] The other expert for the plaintiff, Dr. Rocheleau, a specialist in physical medicine and rehabilitation, prepared a report dated September 19, 2017.

His diagnosis was of musculoskeletal trauma secondary to the 2015 accident, a left wrist injury and "head trauma with resultant development of a brain clot and subsequent brain damage." [110] Turning to the evidence of the defendant on the issue of causation, Dr. Katz provided opinions in his report about causation, neurology and addiction medicine that were not in his area of expertise. These were the subject of a voir dire and I struck parts of the report of Dr. Katz. He did opine that the plaintiff's "long term" cocaine and alcohol use was "likely a contributing factor to the occurrence of the venous thrombosis and seizure events." [111] However, the unchallenged evidence is that the plaintiff has been drug-free since November 2014. The plaintiff has never hid this history, it was known to the other doctors and none of them considered it significant. Dr. Katz describes the plaintiff as "allegedly" stopping his drug use but there is no basis for any suggestion that somehow the plaintiff has been hiding his abstinence. I am unable to give the report and opinions of Dr. Katz any significant weight. [112] The defendant also relies on the expert opinion of Dr. Sun, a neurosurgeon. I have excerpted above parts of Dr. Sun's report, dated March 25, 2020. The plaintiff was examined by Dr. Sun and he reviewed the medical history of the plaintiff including the detailed chart of Dr.

Arnold, the plaintiff's family physician. [113] According to Dr. Sun, the plaintiff did not have any significant complaints related to a concussion after the 2015 accident "to suggest that the MVA caused a significant head injury." There was no clinical evidence of a skull fracture or significant head injury from the 2015 accident that would make it the likely cause of thrombosis. A fracture would have caused immediate and severe head pain and can often be associated with bruising, swelling and concussion-like symptoms. Rarely a closed head injury without a fracture can cause a thrombosis but the head injury is significant and immediately apparent. [114] Dr. Sun agreed with the assessment by Dr. Diggle (another neurologist) in April 2016 that the thrombosis was unrelated to the 2015 accident. In addition, Dr. Sun opined that the plaintiff's complaints of depression and anxiety were not significant after the 2015 accident and only developed after he had the venous infarct from the thrombosis in 2016. [115] Dr. Sun also noted from the medical history that the first complaints of headache and cognitive problems were on March 21, 2016, about a year after the accident. This was taken from Dr. Arnold's chart note of that date that the plaintiff was getting some headaches and making some mistakes at work. Dr. Sun believed that it was likely that the thrombosis was progressively

developing at that time and then the seizure occurred in April 2016. [116] Dr. Sun opined that the plaintiff's current headaches and cognitive difficulties are the result of the 2016 thrombosis and not the 2015 accident. He has recovered from the physical injuries of the accident "with no significant on going issues." Further, the radicular symptoms in the left arm are not related to the 2015 accident and, as confirmed in a 2015 MRI, there is no nerve root compression to explain the left arm symptoms. Dr. Sun could not recommend any further treatment options. (c) Conclusion: causation [117] Again, the issue here is whether the thrombosis suffered by the plaintiff in 2016 is causally related to the 2015 accident in a direct sense or in the sense of the accident being a material contribution to the thrombosis. The plaintiff answers that question by relying on his evidence, the evidence of his family and friends and the expert evidence of Dr. Wass and Dr. Rocheleau. For her part, the defendant says there is no causal relationship and she relies on the medical history of the plaintiff and the expert opinion of Dr. Sun. [118] In my view, there are some difficulties with the opinions of Dr. Wass and Dr. Rocheleau. Firstly, the facts they rely on include head trauma and/or loss of consciousness at the time of the accident. However, I have found above that there was no head trauma or

loss of consciousness and those findings weaken the weight to be given to the opinions of Dr. Wass and Dr. Rocheleau. Dr. Wass actually records the plaintiff as telling her he did not think he lost consciousness. There is evidence from the plaintiff and his family and friends that he was having cognitive difficulties and headaches right after the accident. But there is no record in any of the medical records about these symptoms until March 2016, shortly before the onset of the thrombosis in April 2016. [119] It is significant that during the period April 2015 to March 2016 the plaintiff saw two neurologists (Dr. SuttonBrown and Dr. Waterman) and one of them he saw two times between the accident and the thrombosis. And yet there is no record of any neurological or cognitive problems during this period recorded by the neurological specialists. They are specifically trained to identify those problems and to provide treatment. While the reason for the referral was for the left wrist problem it seems to me that these two neurologists would be alive to other neurological issues, either from the examinations of the plaintiff or because he explained them to his neurologists. In fact, the evidence is that the plaintiff did not raise his thrombosis related symptoms to them or to any doctor until Dr. Arnold in March 2016. Dr. Arnold was immediately responsive to the plaintiff's

complaints and arranged for a referral to Dr. SuttonBrown (that was overtaken by the subsequent need for hospitalization). [120] It is possible that two neurologists on a number of occasions (and also Dr. Arnold) missed the neurological cognitive symptoms and head trauma but that is highly unlikely. In fact the medical reports demonstrate that, again, the plaintiff did not raise these symptoms with his doctors until March 2016. And presumably there are some medical conditions that occur a year after the cause. But the expert evidence in this case is that it is highly unlikely to have a dural sinus thrombosis from trauma and even more unlikely one year after the trauma. [121] What is required here is medical evidence about the causal relationship, if any, between the 2015 accident and the 2016 thrombosis. The evidence from lay witnesses is relevant but I do not agree with the plaintiff that it is to be preferred over the medical evidence. The lay evidence is relevant and it may be that his family and friends conflated the plaintiff's symptoms in March 2016 with his condition immediately after the April 2015 accident. In any event the medical evidence is that the plaintiff did not suffer from symptoms characteristic of a thrombosis until a year after the accident. [122] I accept that March 21, 2016 cannot be taken as the precise date when the thrombosis was symptomatic. Like any

patient, the plaintiff would not have gone immediately to a doctor on the first symptom, he would have waited to see if it was serious. And he may well have had to wait for an appointment with Dr. Arnold. However, the fact is that the plaintiff did not see a doctor about the symptoms he says arose immediately after the 2015 accident until about a year after the accident. He says these were serious cognitive symptoms and painful headaches. [123] There was also an issue in Dr. Sun's evidence about whether trauma can have a causal relationship with a thrombosis. In one article cited by Dr. Sun a patient developed a thrombosis eight months after trauma. He was questioned as to whether this was equivalent to the plaintiff in this case developing symptoms about one year after the 2015 accident. Dr. Sun's response was that the person in the article was an "extremely" rare case and, based on his experience of seeing thousands of head injuries over 19 years of practice, his observation was that most patients have symptoms within days of the trauma. He also did not know the history of the person in the article and whether or when he had developed symptoms such as headaches. I do not think this is proof on a balance of probabilities that the plaintiff's thrombosis was caused by the 2015 accident. [124] I conclude that the medical evidence does not establish that the accident directly

caused the thrombosis. And this is not a case where there are a myriad of potential causes and the accident was one of those causes. I also conclude that the 2015 accident did not make a material contribution to the cause or onset of the thrombosis. [125] Finally, there is issue of Factor V Leiden. Dr. Wass, the expert in hematology, explained in her evidence that this is a mutation in a person's genes and genetic testing demonstrates that the plaintiff has this mutation. Dr. Wass explained that the blood system is constantly undergoing blood clotting for various reasons. The effect of Factor V Leiden is, in Dr. Wass's words, to "tip the balance" in the blood towards coagulation. Put another way, Factor V Leiden interferes in the natural coagulation process in favour of coagulation. Typically, as in the case of the plaintiff, blood thinners are used to offset the potential seriousness of this condition. [126] The specific Factor V Leiden causation issue here is whether the plaintiff's 2016 thrombosis was causally related to this condition. Dr. Wass opines that the condition is "generally a very weak promoter of clotting" and, in the case of the plaintiff, it "would be very unusual to have such a significant thrombosis particularly in the brain." Dr. Sun found some research that demonstrated an association between this condition and dural sinus thrombosis. [127] It seems to me

that the expert evidence of Dr. Wass, the hematologist, is to be preferred and I conclude that, in the case of the plaintiff, Factor V Leiden did not play a significant causative role in the onset of the 2016 thrombosis. [128] Considering all of the above, I am unable to agree with the plaintiff that the 2016 thrombosis is causally related to the 2015 accident. E. DAMAGES [129] I turn to the plaintiff's claim for damages. [130] The above discussion and conclusions about causation have a significant affect on the damages the plaintiff is entitled to. Specifically, he is not entitled to damages for headaches and cognitive deficits related to the 2016 thrombosis. And he accepts that he has ongoing wrist problems that are related to the 2008 spinal stroke and not the 2015 accident. I have found above that the plaintiff's history of drug and alcohol use is dated and not relevant. [131] I will discuss the injuries and symptoms that I find are related to the 2015 accident and then proceed to assess the damages he is entitled to for those injuries and symptoms. (a) Injuries related to the 2015 accident [132] In his evidence the primary focus of the plaintiff was on his thrombosis related problems such as headaches and cognitive deficits. He obviously sees those symptoms as serious and the result of the 2015 accident. However, as a result of my conclusions above, I must focus on any

symptoms the plaintiff has from the accident and that are separate from the neurological issues. [133] Similarly, the evidence of the experts (except for Dr. Sun) has primarily focused on the thrombosis related problems. For example, Dr. Rocheleau, an expert in physical medicine and rehabilitation for the plaintiff, in his report dated September 19, 2017, stated that the plaintiff "has experienced cognitive, memory, and personality change as a consequence of his head trauma and subsequent brain clot;" and that he "continues to be troubled with headache which is probably a direct consequence of his brain injury/clot." He concluded that the plaintiff "is no longer as able as he was prior to" the 2015 accident, "that future employment in a capacity similar to his pre-accident work is probably not possible," and that "he has reached maximum medical improvement and that his situation is permanent." [134] Dr. Rocheleau did diagnose "musculoskeletal trauma secondary to motor vehicle accident of April 26, 2015." I take that to be uncontroversial but there is no indication of the symptoms related to that trauma independent of the thrombosis or their duration. He also describes head trauma but, as above, there is no reference to that injury in the medical documents at the time of the accident (or shortly after). I have found above that any head trauma was limited to the plaintiff's head

hitting the inflated air bag. And I have found that the headaches and other cognitive symptoms first arose in March 2016 and are unrelated to the 2015 accident. His reliance on "cognitive, memory and personality change as a consequence of his head trauma and subsequent brain clot" cannot be sustained as a basis for damages here. [135] Dr. Wass, in her report of March 17, 2020, stated that she was unable to comment on the plaintiff's vocational disability or general disability because she saw him only once after the thrombosis occurred. Her report of September 16, 2016 was focused on diagnosis and treatment and she does not provide an opinion or any information about the accident symptoms. [136] I have reproduced above parts of the chart of Dr. Arnold, the plaintiff's family physician. His findings of May 4, 2015, a few days after the vehicle accident, described an unremarkable examination of the head and neck, full range of motion of the neck but some minor tightness on the right and some limitation to forward flexion of the back. There were some new neurological symptoms in the left wrist with some minimal tenderness there. There was intrinsic weakness of the hands that predated the accident but also "subjective hypoesthesia of the ulnar 3 fingers of the left hand and this is new." The assessment was "[m]ajor motor vehicle accidents [sic] with minimal injuries." [137] Dr.

Arnold saw the plaintiff on two other occasions before the neurological symptoms were recorded on March 21, 2016. On January 6, 2016, the October 1, 2015 consultation with Dr. Waterman, a neurologist, was reviewed with the plaintiff. Dr. Waterman's report stated that the plaintiff's "major acquired deficit related to the accident is weakness of the wrist and finger extensors on the left ..." Dr. Arnold found "lots of pain in the left wrist and into the hand" and "the biggest bother" was a tremor or bouncing of a finger on the right when typing. There was no back pain. [138] Then on February 4, 2016 Dr. Arnold noted that the plaintiff had his left wrist in a splint after the accident but then he removed it. Left wrist pain was making it more difficult to use that hand and it shook involuntarily at times. He was taking "lots of Tylenol with incomplete relief for pain." [139] The last chart notes from Dr. Arnold in evidence are four entries from June - July 2016 where there were discussions about medication, the prospect of the plaintiff changing his family physician and a missed appointment with Dr. Wass (discussed with the plaintiff's wife). These appear to have been brief meetings and there is no specific information about the plaintiff's health. [140] Dr. Sun, the defendant's expert in neurosurgery, examined the plaintiff on February 22, 2020. This appears to be the most

recent examination. Dr. Sun recorded the history given by the plaintiff and stated in his report: "Mr. LaFleur did not have any significant complaints related to a concussion following the suspect MVA on April 26, 2015 to suggest the MVA caused the head injury." In cross-examination, Dr. Sun acknowledged that the plaintiff had in fact told him he had concussion related complaints right after the 2015 accident. Dr. Sun's sentence could have been better worded but I take its meaning to be what he said in his evidence: there was no record in any of the medical records of the plaintiff complaining about these problems until March 2016. That is, in February 2020 he complained to Dr. Sun about neurological problems on or right after the 2015 accident. But he did not complain about any neurological issues to his physicians until March 2016 (and the physicians, including two neurologists, did not identify any neurological issues between the accident and March 2016). [141] On physical examination Dr. Sun found the range of motion in the plaintiff's cervical spine was normal with no pain. There was diffuse atrophy of the right arm (from the 2008 spinal stroke). The left side was strong but with some decrease in sensation to the fingertips of the left hand. [142] According to Dr. Sun, the plaintiff has recovered from the physical injuries of the accident "with no significant on going

issues." Further, the radicular symptoms in the left arm are not related to the 2015 accident and, as confirmed in a 2015 MRI, there is no nerve root compression to explain the left arm symptoms. Dr. Sun could not recommend any further treatment options. [143] The plaintiff's evidence about the problems he has as a result of the April 26, 2015 accident is, again, limited because he focuses on the thrombosis symptoms. He acknowledges that his right arm problems are related to the 2008 spinal stroke and not the 2015 accident. He had pain, numbness and tingling in the left wrist immediately after the accident, symptoms he described as completely different from the spinal stroke. He used a splint for a time for this. He was also in shock, disoriented and he had a form of amnesia so that he cannot remember the actual impact. [144] He carried on with his plan to attend a family gathering the day of the accident although he was withdrawn and undoubtedly still experiencing some shock. He saw Dr. Arnold on May 6, 2015 and I have discussed that assessment above. In summary there were new neurological symptoms on the left arm/wrist but the examination was largely normal. Dr. Arnold described it in his chart as a major accident with minimal injuries. [145] The left wrist problems continued including a referral to a neurologist, Dr. SuttonBrown for them. A consultation report dated June 24,

2015 noted the "immediate symptoms" from the accident were left hand numbness, burning and tingling as well as some associated neck and wrist pain. On examination there was a tremor as well as fatigue and weakness in the left hand. The plaintiff was using a splint for the left wrist and he attempted a return to golf but noticed a weak swing. The right arm was unchanged. A report from Dr. SuttonBrown dated April 22, 2016 concerned the recent thrombosis. [146] In his evidence on July 7, 2020 the plaintiff described his current condition. He described "getting foggy" during the afternoon, taking Tramadol for headache pain and problems with sleep. There are also problems with fatigue, concentration and memory. [147] Considering the above it has to be said that the current symptoms related to the 2015 accident - and that are distinct from the 2016 thrombosis - are minimal. Dr. Sun opines there no ongoing issues but I interpret the evidence a bit differently. I find that the plaintiff has continuing left wrist and arm problems related to the accident. As Dr. Sun also said there was in July 2020 some decrease in sensation to the fingertips of the left hand. This apparently was the result of the mechanics of the collision and the position the left arm was forced into. These problems in the left arm/wrist were, as Dr. Arnold stated right after the accident, "new" and they have

continued. The plaintiff no longer uses a splint for the left wrist. The neck and back problems were not significant and they have resolved. (b) Assessment of damages [148] With the above discussion and conclusions in mind I turn to the specific heads of damages claimed by the plaintiff. These are special damages, non-pecuniary damages, cost of housekeeping, cost of future care and past and future loss of income. (i) Special damages [149] A plaintiff is entitled to recover reasonable out of pocket expenses as a result of an accident. Some evidence of medical justification is required (Carrillo v. Deschutter, 2018 BCSC 2134, at para. 165; Moody v. Hejdanek, 2018 BCSC 380, at para. 33). [150] In the subject claim, the plaintiff seeks special damages in the amount of $12,594. In contrast the defendant submits that payment for "some paid medication may be justified" and $275.00 for physiotherapy are the only appropriate special damages. [151] I note that two of the items claimed by the plaintiff have been paid by a medical plan. These are ambulance services and "medical services" and they total $941.00. As well, the plaintiff attempted during final submissions to tender a new document describing the plaintiff's expenses. This included new expenses that had not been disclosed previously. I am unable to consider those expenses. [152] The following special damages claimed by the

plaintiff remain in dispute: Tramadol medication $ 146.97 Hypnotherapy May 2018 - May 2020 $2,160.00 Prescriptions $1,094.48 Prescriptions $2,977.00 Total $6,378.45 [153] Some of these expenses are related to the 2016 thrombosis and cannot, therefore, be claimed. For example, there are a number of prescriptions for blood thinners which are clearly related to the thrombosis. Similarly, I understand from the plaintiff's evidence that he takes Tramadol for headache pain but that is not a condition arising from the accident. [154] There are expenses for other medications but there is no medical explanation as to what medications or treatments are for what condition. For example, there is no medical, psychological or psychiatric evidence justifying the hypnotherapy. Looking at the dates of the expenses is a rough guide to determine which are related to the 2015 accident and the 2016 thrombosis. However, there is no medical evidence justifying any of these expenses and that is reason enough to deny the plaintiff's claim. [155] I nonetheless conclude that some medications are justified as being related to the 2015 accident. I assess special damages in the amount of $750.00 for these medications and for the physiotherapy. (ii) Non-pecuniary damages [156] The plaintiff seeks damages for non-pecuniary loss in the range of $200,000 to $250,000. This is on the basis of all of the

plaintiff's physical and psychological symptoms, including neurological issues, being causally related to the 2015 accident. Cases cited by the plaintiff to support this figure include: Lines v. Gordon, 2006 BCSC 1929; Burdett v. Eidse, 2010 BCSC 219; and Sirna v. Smolinski, 2007 BCSC 967. [157] The defendant relies on authorities where the range of non-pecuniary damages is $20,000 to $40,000. The authorities relied on by the defendant include: Sun v. Sukhan, 2012 BCSC 365; Moore v. Cabral, 2006 BCSC 920; Chapman v. Zilm, 2020 BCSC 695; and Erwin v. Butler, 2017 BCSC 362. The defendant also submits an additional $10,000 may be appropriate if the plaintiff's cognitive and emotional problems are accepted as causally related to the 2015 accident. [158] An award of non-pecuniary damages "acts as a substitute for the pleasure and enjoyment which has been lost and endeavours to alleviate, as far as possible, the pain and suffering that the plaintiff has endured and will have to endure in the future" (ter Neuzen v. Korn, [1995] 3 S.C.R. 674, at para. 106). The broad framework for the assessment of non-pecuniary damages has been set out by our Court of Appeal in Stapley v. Hejslet, 2006 BCCA 34, leave to appeal ref'd [2006] S.C.C.A. No. 100: [46] The inexhaustive list of common factors cited in Boyd [Boyd v. Harris, 2004 BCCA 146] that influence an award of non-pecuniary damages

includes: (a) age of the plaintiff; (b) nature of the injury; (c) severity and duration of pain; (d) disability; (e) emotional suffering; and (f) loss or impairment of life; I would add the following factors, although they may arguably be subsumed in the above list: (g) impairment of family, marital and social relationships; (h) impairment of physical and mental abilities; (i) loss of lifestyle; and (j) the plaintiff's stoicism (as a factor that should not, generally speaking, penalize the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163, 2005 BCCA 54). [159] The ability to work is relevant to non-pecuniary damages because it may impact a person's enjoyment of life (Dabu v. Schwab, 2016 BCSC 613; Ken Cooper-Stephenson, Personal Injury Damages in Canada, 2nd ed. (Scarborough: Carswell, 1996) at 553; Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, at 368; Boyd v. Harris, 2004 BCCA 146, at para. 54). [160] The plaintiff was 42 years old at trial. He is in a common law relationship and he has five children from two previous relationships. He is working as a consultant for car dealerships in the north-east area of British Columbia and he lives in Dawson Creek. [161] The plaintiff relies on a diagnosis of mild traumatic head injury for the basis of his claim for non-pecuniary damages (and other heads of damages). However, I have found above that no

physician, including the plaintiff's, has made that diagnosis. The extent of the plaintiff's head injury from the 2015 accident is that he hit his head on the inflated air bag. The plaintiff was disoriented and in shock at the time and he has some amnesia of the actual impact but there was no loss of consciousness. [162] The injuries that are causally related to the 2015 accident are limited to ongoing weakness and loss of sensation in the left hand/wrist. The plaintiff was referred to two neurologists for this problem. There is no evidence of neck or back problems as demonstrated by Dr. Arnold's examination a few days after the accident. There is no evidence that the left arm/wrist problems have affected the plaintiff's ability to work (the plaintiff describes the thrombosis related problems as having had a significant impact and this is supported by the opinion of Dr. Rocheleau). [163] Turning to the specific issue of quantum for non-pecuniary damages the plaintiff's authorities are comparable for a person with neurological symptoms. For example, in Lines a 33 year old man with a mild traumatic brain injury with persisting post-concussion symptoms was awarded $225,000 in non-pecuniary damages. The plaintiff here has some neurological symptoms (although not a mild traumatic brain syndrome or a concussion) but they are not causally related to the 2015 accident. Therefore the

plaintiff's authorities are not applicable here. [164] The defendant's authorities have more application since they are presented from the point of view that the 2016 thrombosis is not related to the 2015 accident. In Erwin a 53 year old plaintiff was rear-ended in a motor vehicle accident and received $40,000 in non-pecuniary damages. There were symptoms related to the neck, shoulder and lower back but these were "mostly resolved" within one year of the accident although intermittent problems in these areas continued with activity (para. 122). The age of the plaintiff, 53 years old, was noted to be one where duration and severity of ongoing pain was troublesome for the plaintiff (para.123). Right hip problems were not accepted as part of the accident injuries (para. 106). [165] In Sun the 31 year old plaintiff had soft tissue injuries and numbness in the leg from an accident. He was about 95% recovered with some mild residual symptoms in the neck. He received $20,000 in non-pecuniary damages. And in Chapman the 33 year old plaintiff received $30,000 for persistent minor neck pain with pre-existing back, shoulder, arm and elbow injuries. [166] Bearing in mind that no two cases are the same, I conclude that the plaintiff in this case is entitled to $35,000 in non-pecuniary damages, including a modest amount for loss of housekeeping capacity (as discussed below). (iii) Cost of

future care [167] The test for assessing costs for future care is well settled; the question is whether they are reasonable and medically necessary (Tsalamandris v. McLeod, 2012 BCCA 239, at paras. 62-63; Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33, at 83-84 (S.C.)). [168] Here the plaintiff seeks damages for future care in the amount of $29,049.00 (this is the amount in the body of the plaintiff's written submission but the number in the summary at the back of the submission is $28,786.00). According to the defendant no damages for future care are payable. [169] The specific items claimed by the plaintiff are: Prescription Tramadol $ 300.00 (6 months at $150) Counselling $ 540.00 (6 sessions over one year at $90) Miscellaneous medication $ 360.00 Total $1,200.00 [170] The total amount claimed is calculated by using a multiplier of 23.9886, age 75 and a discount rate of 2%. [171] As discussed above in detail, the injuries that the plaintiff is entitled to damages for are limited to the ongoing problems with his left wrist. As above, the Tramadol is for headache pain which is a symptom from the thrombosis. And there is no medical justification for the counselling, assuming it is attributable to the left wrist. On the other hand there is some evidence that medication will assist with the left wrist. Dr. Rocheleau recommended a splint for the left wrist but that is not included

in the plaintiff's submission. [172] I assess damages for future care as $650.00, including an amount for a wrist splint. (iv) Loss of housekeeping capacity [173] The plaintiff claims damages in the amount of $25,000 for loss of housekeeping capacity. The defendant says no damages are appropriate under this head of damage. [174] It is well-established that damages for loss of housekeeping capacity are payable where "the services are routinely performed gratuitously by family members or friends." (Riley v. Ritsco, 2018 BCCA 366, at para. 101). This loss may also be compensated by means of non-pecuniary damages (Kim v. Lin, 2018 BCCA 77, at para. 28). [175] The plaintiff is currently living with his common-law partner, Ms. Riddoch. They appear to have something of a traditional relationship with the plaintiff working and Ms. Riddoch looking after the home. Specifically she cleans, cooks and keeps the plaintiff's appointments. She testified that the plaintiff comes home and often retires to the bedroom although his level of activity and mood have improved since he started working for himself as a consultant. He does spend time with his Alcohol Anonymous circle and he takes seriously his work as a sponsor. [176] To a considerable extent the problems described by Ms. Riddoch and the plaintiff are attributable to the 2016 thrombosis and not the 2015 accident. These include fatigue,

less concentration and increased memory loss. There is some left hand weakness from the accident but little else. There is no specific evidence as to the household work the plaintiff did before the 2015 accident and what he is capable of doing now. For example, he apparently did not clean or prepare meals before the accident. So it is not clear that his household responsibilities have changed since the accident. There is no medical evidence recommending household assistance or that provides details of what that could be. [177] I conclude that no damages for loss of housekeeping capacity are payable except for an amount included in the above decision on non-pecuniary damages. (v) Past loss of income [178] A claim for past loss of earnings is for the loss of earning capacity or the loss of the value of the work (usually from the date of the accident to the date of trial) that the plaintiff would have performed but is unable to perform because of an accident (Rowe v. Bobell Express Ltd., 2005 BCCA 141, at para. 30). In addition, a claim for past (or future) lost earning capacity is an assessment rather than a calculation, it requires considerations of fairness and reasonableness and all negative and positive contingencies are to be taken into account (Abbott v. Gerges, 2014 BCSC 1329, at para. 165). [179] The plaintiff here claims $245,050 for past loss of earning on the basis

that, but for the 2015 accident, he would have maintained his employment and earnings as a finance manager with income in the range of $150,000 to $200,000. Alternatively, he could have been the owner of a car dealership by now, with earnings in the range of $300,000 to $500,000. The defendants say no damages are justified under this head. [180] The income history of the plaintiff since 2010 (taken from Line 150 of his tax documents) has been: 2010 $ 81,703 2011 $ 66,854 2012 $ 54,152 2013 $ 65,073 2014 $ 75,255 2015 $ 46,059 [MVA: April 26, 2015] 2016 $140,996 [Thrombosis: April 2016] 2017 $105,114 2018 $136,576 2019 $126,792 2020 not available [Date of trial: July 2020] [181] There was something of a dispute among the parties about the amount of income he received from a company he owns. Any corporate income would increase the above numbers. [182] As can be seen, the plaintiff is actually earning more money since the 2015 accident and that level of earnings has largely continued since the 2016 thrombosis. Hence his reliance on the loss of earning capacity approach over a loss of earnings approach. [183] The plaintiff left his employment in Grande Prairie a few days after his April 2015 accident for reasons unrelated to the accident. He returned to Vancouver Island where he took some time off. As demonstrated above, he then commenced work with a significant increase in

income. [184] The plaintiff's injuries from the 2015 accident are, again, limited to the left wrist problems identified in the medical evidence. He has identified his problems with headaches, anxiety, concentration, loss of memory, fatigue and other cognitive symptoms as the reason for his loss of income capacity. For example, the work as a finance manager in May 2016 was for about a year. He testified that his employer was not satisfied with his work because of his cognitive deficits. However, those problems relate to the 2016 thrombosis and not the left wrist symptoms. I note that he nonetheless had the highest annual income that year of the 2010-2019 period. [185] I am unable to find any medical basis for past loss of earnings as a result of the 2015 accident. (vi) Future loss of income [186] The following sets out the general approach to the assessment of future earning capacity (Tsalamandris v. McLeod, 2012 BCCA 239, at para. 31): [31] The appellants do contest how the trial judge then went about assessing that loss [of future earning capacity]. The trial judge set out to apply the principles canvassed in Rosvold v. Dunlop, 2001 BCCA 1, saying at para. 259: The principles that govern the measurement of damages for loss of earning capacity were thoroughly discussed in Rosvold v. Dunlop, 2001 BCCA 1, 84 B.C.L.R. (3d) 158. The principles set out in that case can be summarized

as follows: 1. the assessment of damages is not a precise mathematical calculation but a matter of judgment; 2. a plaintiff is entitled to be put in the position she would have been but for the accident; 3. an award for loss of earning capacity recognizes that the ability to earn income is an asset and the plaintiff deserves compensation if this asset has been taken away or impaired; 4. since these damages must often be based on a hypothetical, the standard of proof of a hypothetical is "real and substantial possibility" and not mere speculation; 5. the court must consider the real and substantial possibilities, and give weight to them according to the percentage chance they would have happened or will happen; 6. one starting approach to valuation may be to compare the likely future of the plaintiff had the accident not happened, and the likely future of the plaintiff after the accident has happened, and to consider the present value of the difference between the amounts earned under these two scenarios. (I note that in using the word "likely", the Court on this point was meaning what hypothetical was a real and substantial possibility); 7. however, the overall fairness and reasonableness of the award must be considered, taking into account all of the evidence. [187] As with past loss of income, loss of future earning capacity can be quantified on an earnings approach or a

capital asset approach (Perren v. Lalari, 2010 BCCA 140, at para. 32; Hosseinzadeh v. Leung, 2014 BCSC 2260, at paras. 126-127). [188] The capital asset approach is not restricted to cases where the plaintiff has no clear earnings history. It is more appropriate than the earnings approach in any case "where the loss, though proven, is not measurable in a pecuniary way" (Perren, at para. 12). One example cited is instructive (Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 393 (C.A.); Perren at para. 11): ... In Kwei, where it was not possible to assess damages in a pecuniary way as was done in Steenblok (1990), 46 B.C.L.R. (2d) 133 (B.C.C.A.), Taggart J.A., speaking for the Court, held that the correct approach was to consider the factors described by Finch J., as he then was, in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353. Mr. Kwei had suffered a significant head injury with significant permanent sequelae that impaired his intellectual functioning. However, both before and after the accident, he worked at a variety of low paying jobs, thus making it difficult for him to demonstrate a pecuniary loss. Mr. Justice Taggart cited the Brown factors with approval: [25] The trial judge, as I have said, referred to the judgment of Mr. Justice Finch in Brown v. Golaiy. Future loss of earning capacity was at issue in that case. It stemmed from quite a different type of injury than the injury

sustained by the plaintiff in the case at bar. But I think the considerations referred to by Mr. Justice Finch at p. 4 of his reasons have application in cases where loss of future earning capacity is in issue. I refer to this language at p. 4 of Mr. Justice Finch's judgment: The means by which the value of the lost, or impaired, asset is to be assessed varies of course from case to case. Some of the considerations to take into account in making that assessment include whether: 1. The plaintiff has been rendered less capable overall from earning income from all types of employment; 2. The plaintiff is less marketable or attractive as an employee to potential employers; 3. The plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and 4. The plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market. [189] In the subject claim, the plaintiff relies on the loss of earning capacity approach. He says it justifies damages in the amount of $2,199,000 to $2,640,000. This is for the same reason as the claim for past loss of income: the plaintiff would have worked as a finance manager or the owner of a car dealership but for the 2015 accident. The defendant submits that no damages for loss of future earning capacity are justified. [190] As with the

other heads of damages discussed above, there is a problem with causation with respect to future loss of income. The plaintiff says that the accident caused the 2016 thrombosis or, alternatively, caused a mild traumatic head injury. As above, I do not agree that the medical evidence supports a causal relationship between the accident and the thrombosis. As well, there is at best very limited evidence of any head trauma. As Dr. Arnold, the plaintiff's physician put it, there was a major accident in 2015 but, fortunately, minimal injuries. [191] I recognize that, as a matter of law, and as discussed above, a plaintiff is entitled to be put in the position he would have been but for the accident and compensation is payable if the ability to earn income has been taken away or impaired. However, there must be a real and substantial possibility of that loss occurring. In light of the limited effect of the injuries that can be causally related to the 2015 accident I conclude that threshold has not been met here. The 2016 thrombosis may well negatively affect the future earning capacity of the plaintiff but that does not arise from the 2015 accident. [192] I conclude that the plaintiff has not demonstrated that he has a loss of future earning capacity from the effects of the 2015 accident. F. SUMMARY [193] The admitted liability of the defendant for the motor vehicle accident on April

26, 2015 resulted in injuries to the plaintiff. He is entitled to damages for those injuries, primarily ones to the left wrist. [194] The 2016 thrombosis was not causally related to the 2015 accident and the plaintiff is not entitled to damages for that condition. The extent of the plaintiff's head injury from the 2015 accident was his head hitting an inflated/inflating air bag at the point of impact. He was not concussed from the accident, he did not lose consciousness and there is no evidence or diagnosis of a mild traumatic head injury. The plaintiff accepts that his current right arm problems are related to the 2008 spinal stroke and not the 2015 accident. [195] The plaintiff is entitled to the following damages arising from the 2015 accident: Special damages: $ 750.00 Non-pecuniary damages $35,000.00 Future care $ 650.00 Housekeeping: None Past income loss None Future income loss None TOTAL $36,400.00 [196] The plaintiff has been substantially successful and, subject to any application made within 60 days of this judgment (or appeal judgment), he is entitled to his costs at Scale B against the defendant. "J. J. Steeves, J." The Honourable Mr. Justice Steeves