IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	Kean v. Porter,
	2008 BCSC 1594

Date: 20081120
Docket: 38743
Registry: Kamloops

Between:

Brian Joseph Kean

Plaintiff

And

Chad McLean Porter and Stacey Reed Seniuk

Defendants

And

Insurance Corporation of British Columbia

Third Party

Before: The Honourable Mr. Justice Meiklem

Reasons for Judgment

Counsel for the Plaintiff	M.J. Sutherland M.D. Kranz
Counsel for the Defendants and Third Party	J.A. Hemmerling B. Bagabuyo
Date and Place of Trial/Hearing:	June 9-13, 16-18, 23-25 and June 27, 2008
	Kamloops, B.C.

[1]                Shortly after midnight on November 6 2005, Mr. Kean, a 56-year-old taxicab driver, was sitting in his parked taxicab on the north side of Victoria Street in Kamloops, when his car was struck very forcefully in the left rear corner by a west-bound 2004 Dodge Ram pickup owned by the defendant Seniuk and driven by the defendant Porter.  The accident reconstruction report estimated that at impact the Dodge pickup was traveling in a clockwise yaw at 70 km/h, but faster than that prior to impact in the likely event that Porter was braking prior to impact, as the crash analysis of the post-impact trajectory suggests.  The force of the collision caused the collapse of the back of the driver’s seat and caused the taxicab, a full sized Ford Crown Victoria sedan, to spin counter-clockwise approximately 180°.  The rotating taxicab struck two pedestrians on the adjacent sidewalk and when it came to rest Mr. Kean was lodged, unconscious, in the rear seat against the passenger side door.

[2]                The damages to the Dodge Ram pickup cost $29,890.52 to repair.

[3]                The defendant Porter fled the scene of the accident and was subsequently convicted of violating s. 251(1) (b) of the Criminal Code.  Mr. Porter did not appear in this action, but the defendant Seniuk and the third party ICBC have admitted that he was driving with the owner’s express or implied consent.  These parties (whom I will, for the purposes of convenience and readability, refer to collectively as “the defendant”) denied negligence on the part of Mr. Porter in their pleadings, which made it necessary for the plaintiff to present evidence on the liability issue, but the defendant and third party took no position on liability at trial.  In their closing submissions they acknowledged that there was no issue that Mr. Porter was negligent, and I find that he was, and that the defendant Seniuk is vicariously liable for the plaintiff’s injuries.

[4]                There is no issue of contributory negligence.  Although Mr. Kean was not wearing a seat belt at the time, his vehicle was parked off the travelled portion of the street and the motor was not running as he sat in the driver’s seat counting his cash before entering the casino to obtain smaller bills with which to make change.

The Plaintiff’s Injuries

[5]                Mr. Kean remained unconscious for approximately 7 minutes.  He was removed from his vehicle by ambulance and fire department personnel and placed on a stretcher and taken to hospital.

[6]                Mr. Kean's chief complaint as noted by the ambulance crew report was a chest injury.  He remained in hospital until November 9, 2005.  The hospital discharge summary noted the diagnosis most responsible for the hospital stay to be severe multiple motor vehicle accident injuries.  The specific diagnoses noted were:

1. Fractured sternum;

2. Head injury with probable significant cerebral concussion;

3. Contused lower thoracic spine and upper lumbar spine;

4. Multiple rib contusions.

[7]                On discharge from hospital, Mr. Kean was given discharge instructions by Dr. Faridi, a neurosurgeon on call who examined him at the request of Mr. Kean's family physician Dr. Hollman, and advised him to re-check with Dr. Hollman within the next few days.

[8]                On November 18, 2005, on his second visit to Dr. Hollman following his discharge from hospital, Mr. Kean reported marked difficulties with his sense of hearing, and was referred to an audiologist for an evaluation.  On his third visit post-accident to Dr. Hollman on December 2, 2005, she sent him for a neurological assessment to Dr. Jennifer Takahashi and referred him for a CT scan of his head to investigate possible head injury accounting for difficulties with memory and concentration, vision disturbance and hearing impairment in both ears.

[9]                The report of audiologist Ms. Palaga indicated mild mixed hearing loss for the right ear and mild-moderate hearing loss for the left ear.  It is to be noted that Dr. Takahashi reported that Mr. Kean said he had bilateral hearing loss "which seems to be more prominent since his accident".  Thus, although it appears Mr. Kean mentioned pre-existing hearing loss, Dr. Takahashi said that she had lost or misplaced any notes she had made regarding his hearing loss prior to the accident.

[10]            Ms. Palaga recommended that Mr. Kean be assessed by an otolaryngologist, Dr. Kramer.  Dr. Kramer noted that although Mr. Kean does have a history of exposure to machinery noise, that normally induces a predominantly high-frequency loss which is maximal at 4000 Hz, and even a mild head trauma can cause a nerve induced hearing loss.  Dr. Kramer's opinion is that the motor vehicle accident was the cause of his hearing impairment.  That opinion is not contradicted and Dr. Kramer was not required to attend for cross-examination.  Dr. Kramer's view was also supported to an extent by neurologist Dr. Teal.  I accept Dr. Kramer's opinion, modified as it must be by the fact that there was some pre-existing hearing impairment.

[11]            Mr. Kean has a plethora of health problems independent of the motor vehicle accident.  Mr. Kean has Type II diabetes.  He also has a long-standing history of depression, and was being medicated with Citalopram prior to the motor vehicle accident.  Mr. Kean smoked two packages of cigarettes per day from 1964 to 2006 and currently smokes 1/2-1 pack a day.  He has COPD, or emphysema, and he has an abdominal aortic aneurism.  The exhibit of medical reports contains 32 reports from 16 medical doctors and many different specialties.  I heard viva voce testimony from 15 expert witnesses, primarily plaintiff’s experts called for cross-examination.

[12]            Mr. Kean has had a history of coronary artery disease since at least 2000.  He had a heart attack in 2002 requiring a coronary angiograph, and underwent two angioplasties and a stent implantation.  He had a second heart attack in October 2006 and underwent quintuple coronary bypass surgery in February 2007.  This heart surgery involved a sternotomy, which is a surgical splitting of the sternum that had been fractured in the motor vehicle accident.  The surgery involved prying apart his ribs, which were also injured in the motor vehicle accident.  There is thus a factual question concerning the relative causal contribution of the surgery and the rib cartilage dislocations that occurred in a motor vehicle accident in respect of the ongoing chronic pain that Mr. Kean is experiencing in the area of the sternum.

[13]            Dr. Fradet, the heart surgeon who operated on Mr. Kean, stated his opinion that the sternotomy would most certainly have made Mr. Kean’s sternum pain worse, at least in the acute post-operative phase, and most likely chronically thereafter.  He contrasted this with the usual sternotomy for a routine heart surgery where chronic chest wall pain would result in less than 1% of cases.  In his own practice, Dr. Fradet performs 200-250 heart surgeries per year and in 25 years he has only seen one patient who developed chronic chest wall pain as a result of the sternotomy.

The Causation Issues

[14]            The defendant and the third party acknowledged that Mr. Kean sustained a concussion or mild traumatic brain injury.  The most significant factual issue in this case is the extent of that injury and whether Mr. Kean's subsequent cognitive difficulties are attributable to the head injury sustained in the accident.

[15]            The defendant and third party argue that Mr. Kean's co-morbid problems with depression, narcotic medication, impaired sleep, and pain, are all factors established by the evidence to negatively affect cognition.  They submit that there is no convincing evidence of any physiological injury to the brain or convincing evidence that Mr. Kean is within the 10% of people who do not have complete resolution of post-concussive problems within two years of injury.

[16]            Another main thrust of the defendant’s arguments is that it is not proven that Mr. Kean’s injuries in the accident underlie his depression, and that that is unlikely given that he was being treated for depression before the accident and given his other very serious health concerns, his reduced life expectancy and his financial circumstances.  It is submitted that Mr. Kean has become a "cardiac cripple", afraid of doing anything since his heart surgery, and he would have become such in the absence of the accident.  It is further argued that the depression is treatable and can be expected to improve further with treatment.

[17]            The defendant further argued that Mr. Kean's refusal to pursue counselling breaks the chain of causation of the ongoing depression from any roots that it may have had in the negligence of the defendant Porter.

[18]            The defendant says that to the extent that Mr. Kean has chronic chest pain, it is not disabling.  He has a heightened perception of his pain and his limitations because of his depression, but he is actually able to do more than he believes.  It is argued that the main disabling condition is his coronary artery disease, and that he would be in the same depressed and disabled position currently because of that, even if the accident had not occurred.

The Medical Opinions

[19]            There are 9 medical reports from Mr. Kean’s general physician Dr. Mavis Hollman in evidence, starting with one dated November 18, 2005, and ending with one dated March 31, 2008.  I will summarize some of them.

[20]            In her first report, Dr. Hollman provided her opinion that the injuries could involve several months for total recovery; that Mr. Kean was totally disabled from all types of work at that time and most likely would remain so until he had achieved total healing of his fractured sternum and had totally recovered from his “significant cerebral concussion type injury as well as his back injuries.”  She noted that the symptoms of the head injury were: “significant difficulties with memory and concentration, visual disturbances and decreased hearing.”

[21]            In Dr. Hollman’s January 11, 2006 report to plaintiff’s counsel, she reported on the results of her referrals of Mr. Kean to audiologist Ms. Palaga and ear, nose and throat (ENT) specialist Dr. Kramer and recommended hearing aids “of the best possible quality” in order that hopefully Mr. Kean could return to work as a taxicab driver.

[22]            In Dr. Hollman’s April 24, 2006 report she said:

In summary, as of today’s date, it is my professional medical opinion that due to the fact that Mr. Kean has not had any significant improvement regarding his fractured sternum or his brain injury, with ongoing significant cerebral concussion symptomatology, as well as his ongoing hearing impairment, it is highly unlikely that he will ever be able to return to any types of work, and is permanently non-retrainable to any future types of gainful employment, unless, of course, he is, somehow, over this next year, able to recover from these above-described injuries to his pre-accident level of functioning.

It is also my professional medical opinion that Mr. Brian Kean will, eventually, require intensive counselling for post-traumatic stress disorder syndrome related to his above-described near-fatal motor vehicle accident injuries.

[23]            Dr. Hollman’s July 27, 2006 letter reported that Mr. Kean’s fractured sternum was not healing and had in fact further displaced according to recent x-rays, leading Dr. Hollman to refer him to a thoracic surgeon for assessment.  She re-stated her opinion about Mr. Kean being permanently non-retrainable in somewhat more qualified terms, stating that this was “quite possible”, unless he was able to improve his mental and physical functioning significantly and to discontinue narcotic pain medications.

[24]            Dr. Hollman’s first mention of Mr. Kean’s depression occurs in two passages of a December 17, 2007 letter to plaintiff’s counsel.  The first passage is the following:

Mr. Kean was then seen again by myself on March 24, 2006, April 3, 2006, April 9, 2006, as well as May 10, 2006, specifically regarding his above-described motor vehicle accident injuries, and on those occasions, he reported [and] was noted to be experiencing a great deal of anxiety and also increasing depression regarding the fact that not only was he not able to work at his job as a cab driver, that he had thoroughly enjoyed up until the time of this accident, but he might not ever be able to work again at all.

[25]            Dr. Hollman then discusses subsequent attendances during 2006 including those following Mr. Kean's myocardial infarction on October 6, 2006, and continues:

By the next time that I specifically assessed Mr. Kean regarding his November 6, 2005 motor vehicle accident injuries, on November 28, 2006, he reported having been experiencing increasing depression symptoms, at least partially due to his above-described motor vehicle accident, and he had also been assessed by Dr. Victor Huckell and undergone coronary angiography, and had been found to have significant blockage of several arteries such that Dr. Huckell was arranging for him to be seen urgently by a cardiac surgeon for coronary bypass surgery.

[26]            Dr. Hollman reported that as of December 30, 2006, Mr. Kean was “noted to have been taking” a 40 mg dose daily of Citalopram instead of 20 mg daily, "due to his increased depression symptomatology that he had been experiencing ever since his near-fatal motor accident in which he had been involved on November 6, 2005.” 

[27]            Dr. Hollman’s report letter dated March 31, 2008 comments on the fact that Mr. Kean had already been taking Citalopram for treatment of depression prior to his November 6, 2005 motor vehicle accident and goes on to say "since having been involved in this motor vehicle accident and having been noted to have been suffering from post-traumatic stress disorder with associated exacerbation of his pre-existing chronic depression, his Citalopram dosage has had to be increased to 40 mg daily." In cross-examination Dr. Hollman specifically dated her advice to Mr. Kean to double the dosage of anti-depressant as being the November 28, 2006 attendance where Mr. Kean presented with increased depression.  That attendance was of course between his heart attack on October 6, 2006, and a cardiac catheter procedure on December 12, 2006 and at a time when, according to Dr. Fradet’s reports, Mr. Kean was suffering from angina, worsened by shortness of breath, and, as Dr. Hollman mentions at one point in her report, which I have quoted in ¶26 above, Mr. Kean had undergone angiography and had been informed of several significant arterial blockages.

[28]            Dr. Hollman's December 17, 2007 medical legal letter is relatively lengthy and summarizes her prior treatment of Mr. Kean.  Her conclusions are stated as follows:

In summary, it is my professional medical opinion that Brian Joseph Kean has sustained the following significant injuries as a direct result of the motor vehicle accident in which he was involved on November 6 2005:

1)         Significant brain injury with ongoing chronic post-concussion syndrome with significant impairments of cognitive functioning, including memory and concentration, organizing, sequencing, planning, problem solving, etc.;

2)         Fractured sternum, which had not yet healed at the time of his coronary bypass surgery that was done on February 21, 2007;

3)         Significant hearing impairment;

4)         Contused and/or musculoligamentous flexion-extension type injury to his lower thoracic/upper lumbar spine region;

5)         Significantly contused lower posterior ribs;

6)         Moderate degree of chronic post-traumatic stress disorder syndrome, with ongoing nightmares, as well as worsening of the pre-existing chronic endogenous depression symptomatology, most likely due to having had to come to terms with the loss of his ability to do his previously-enjoyed work as a cab driver, which had involved a great deal of social contact with other people and had helped him to maintain some self esteem.

It is also my professional medical opinion that due to the fact that Mr. Kean has had essentially no significant improvement regarding his cognitive functioning due to the brain injury that he sustained from this November 6, 2005 motor vehicle accident, he is considered to be permanently disabled from all types of gainful employment, as well as permanently disabled from all types of personal/recreational driving, as well as professional driving, and he is also non-retrainable to any future types of gainful employment.

In addition, I would like to clarify at this time that the size of his abdominal aortic aneurysm, had Mr. Kean not been involved in this above-described motor vehicle accident, his abdominal aortic aneurysm by itself would not have precluded him from working or driving. It, however, of course, does require routine monitoring with follow-up CT scanning or ultrasound scanning on a yearly basis. At the present time, however, it is not large enough to require surgical treatment.

In addition, specifically regarding his cardiac condition, from the cardiac point of view, had Mr. Kean not been involved in this above-described motor vehicle accident, he was considered unfit for any types of work from the time of his myocardial infarction, on October 6 2006, until six months following his coronary bypass surgery, which had been done on February 21, 2007 (i.e. he would have been disabled from professional driving, from the cardiac point of view, until August 21, 2007), and he would then have had to undergo a treadmill test, which, I believe, he would have been able to pass with no problems, due to the fact that, from the cardiac point of view, he has had a full recovery.

[29]            In her penultimate medical legal letter dated March 28, 2008, Dr. Hollman reported that Mr. Kean attended her office on March 26, 2008 and: "in addition to his ongoing significant chronic chest wall pain, in the region of his previously fractured sternum, he also reported having been experiencing frequent bouts of neck stiffness and pain, since his motor vehicle accident, which he kept forgetting to tell me about…”.  Consequently Dr. Hollman's March 28, 2008 letter lists seven "significant injuries as a direct result of the motor vehicle accident", rather than the six mentioned in her December 17, 2007 letter, with the additional injury described as "probable mild to moderate degree of musculoligamentous , flexion-extension type injury to his cervical spine with almost continuous pain and stiffness in his neck:”

[30]            The defendant and third party vigorously challenge the opinions of Dr. Hollman, on the basis that she is biased and partial to supporting her patient's best financial interest.  To avoid the risk of misstating the thrust of this strongly-worded submission, I will quote a passage from their written argument:

Finally, Dr. Hollman’s evidence is clearly biased and not impartial. She clearly is doing what she thinks is in her patient's best financial interest. She sent a letter to her patient's lawyer on April 24, 2006 stating, "it is highly unlikely that he will ever be able to return to any types of work, and is permanently non-retrainable to any future types of gainful employment, unless, of course, he is, somehow, over this next year, able to recover from the above described injuries to his pre-accident level of functioning." She gives this bleak prognosis without the benefit of Dr. Mak’s assessment or any rehabilitation that was intended to occur following Dr. Mak’s assessment. She gave this assessment 5.5 months after the accident. As Dr. Lawrence and Dr. Wallace commented, you wouldn't want to give this bleak news to someone prone to depression unless it was absolutely necessary.

Further, she wrote on October 10, 2006 requesting homemaking assistance from ICBC when she knew that her client was restricted from lifting anything more than a cup of coffee following his October 4, 2006 heart attack.

Further, Dr. Hollman has failed to follow up with any of the recommendations provided to her by Dr. Takahashi, Carol Burden or Dr. Wallace. She is waiting until after the litigation is settled before pursuing these recommendations. She clearly is not in any hurry to help her patient until that time.

She even forgot to follow up on her patient's aortic abdominal aneurysm ("A.A.A.") which may well be growing and is life threatening.

It is submitted that very little weight should be afforded Dr. Hollman's biased views.

[31]            This is strong criticism, but I find that there is some merit to the challenge to the weightiness of Dr. Hollman's opinion evidence.  In addition to the points made in the quoted passage of the defendant’s argument, I find a tendency toward exaggeration in some of her written reports.  For example, she repeatedly characterized the accident as "near-fatal” (at least 9 times by my count).  During cross-examination she tried to explain this characterization by saying that she occasionally uses this phrase in medical-legal letters as a reference to the extent of damages to the vehicles involved.  Dr. Hollman ought to be aware that the readers of medical-legal letters from a treating physician would never understand that to be the basis of such a characterization; rather, the phrase used in that context suggests that someone involved suffered a life-threatening injury.  While I recognize that hyperbole or rhetorical overstatement might be useful on occasion to focus the attention of one’s listener, particularly those perhaps thought to be cynics or doubters, persistent use of misleading exaggeration serves only to generally diminish the weight of one’s opinions.

[32]            It is unsettling that when Mr. Kean apparently reported, on March 26, 2008, “frequent bouts” of neck stiffness and pain since the accident, acknowledging that he kept forgetting to tell her about it in the 2 ½ years since the accident, she developed the professional medical opinion, stated in her March 28, 2008 letter, that he had sustained in the accident a mild to moderate cervical spine injury with "almost continuous" pain and stiffness in his neck. 

[33]            Dr. Hollman did not disguise her advocacy of her patient’s financial interests in her first medical letter shortly after the accident to Mr. Kean’s counsel, dated November 18, 2005.   After summarizing the injuries Mr. Kean sustained in the “near-fatal” accident and her conclusion that he was totally disabled, and required urgent financial reimbursement for lost wages, she added:  “I am respectfully requesting that his ICBC claims adjudicator help him with this as soon as possible” and she thanked plaintiff’s counsel “very much for your kind consideration of this most urgent matter.”

[34]            In the last of her medical letters in evidence, that dated March 31, 2008, she concludes: “In conclusion, it is my professional medical opinion that Mr. Brian Joseph Kean should, in fact, be reimbursed for the cost of his above-described pain medications….”

[35]             Dr. Hollman’s remarkable degree of commitment to her patient’s interests is certainly praiseworthy from the patient’s perspective, but when she broadens the ambit of her professional medical opinion to include her views and advocacy of her patient’s legal rights or financial entitlement, she unfortunately leaves herself vulnerable to the charge that her stated medical opinions lack the presumed professional objectivity.

[36]            Notwithstanding these factors which affect the weight of Dr. Hollman's medical opinions, and notwithstanding the fact that her dire prognosis of Mr. Kean's inability to ever return to the workforce may have been premature, that prognosis is now well supported by other expert medical opinions.

[37]            Dr. Mark Adrian, a physical medicine and rehabilitation specialist, assessed Mr. Kean on March 14, 2008.  His April 8, 2008 report states the following:

Prognosis:

Mr. Kean has experienced persistent left upper chest pain symptoms for a period of over two and a half years. It is unlikely, in my opinion, that Mr. Kean will experience further spontaneous improvement of the injuries to his upper chest over time.

Functional Capacity:

Mr. Kean will probably continue to experience difficulty performing activities that place physical forces on the painful and injured structures involving his upper chest. Specifically Mr. Kean will probably continue to experience difficulty performing activities that require heavy or repetitive lifting; repetitive reaching; carrying; and forceful or repetitive pushing and pulling activities due to his upper chest pain symptoms.

In my opinion, these physical limitations described above will probably be permanent.

[38]            Dr. Nelems, thoracic surgeon, assessed Mr. Kean on August 15, 2006 and concluded that the sternum was essentially healed and the ongoing pain was sterno-chondral and costo-chondral, that is, relating to separation of the costal cartilage connections with the sternum and the ribs.  Dr. Nelems assessed Mr. Kean again on April 29, 2008.  Dr. Nelems reports in his May 14, 2008 letter that Mr. Kean advised him that his chest wall pain was worsened for some time following his heart surgery in February 2007, but that as of April 29, 2008 the intensity of his chest pain had returned to its pre-surgical state.  Dr. Nelems’ May 14, 2008 letter reports as follows:

On this occasion the findings on chest wall examination were different from my initial assessment. He continued to have pain over the right 2nd costo-chondral and sterno-chondral junction but now he had pain on the left side as well.  Additionally, there was a diffuse swelling of the anterior chest wall that straddled the manubrio-sternal junction and bulged to the left. The examining nurse described the swelling as ‘spongy’. The patient was clearly tender on compression of this swollen area.

…..

In summary, the right sided costo-chondral pain as described above clearly occurred as a consequence of the motor vehicle accident of November 6, 2005. The cardiac surgery has obviously altered some of his pain patterns, again as described above. Mr. Kean's overall pain intensity at the present time is essentially unchanged from that described to have existed since the motor vehicle accident.

With respect to prognosis, Mr. Kean will remain permanently symptomatic. We have no surgical options for him in terms of treatment. It has been my experience that [if] patients remain continually symptomatic or two years or more that the chances of spontaneous resolution are very low. He is now almost two and a half years out following the accident and he remains significantly symptomatic.

……

In conclusion, Mr. Kean has a permanent costo-chondral and sterno-chondral pain that occurred following a fracture of his sternum at the time of the motor vehicle accident of November 6, 2005. He will not return to work because of this disability.  I acknowledge that he has head injury issues which have been commented upon by many experts.

[39]            Dr. Fradet, who performed the heart surgery on Mr. Kean, provided a medical letter dated February 4, 2008 in which he agreed with Dr. Nelems’ assessment that there was no surgical solution for Mr. Kean’s chronic pain associated with the cartilage junctions, and he provided the following comments in response to questions posed by counsel for the plaintiff:

We wholeheartedly and totally agree with Dr. Nelem’s assessment and also certainly at the time of mediastinotomy especially in patients who have sustained previous sternal fracture the distribution of stress at the costochondral junctions during the sternotomy and spreading of each half of the sternum can be quite uneven compounding even further the issue of costochondritis and we have certainly seen patients that have remained permanently disabled from exacerbation of their chronic pain syndrome after such a surgery. That being said this was clearly explained to the patient prior to us proceeding with the surgery.

So to answer your question, would surgery have fixed or corrected the sternum problem or made it worse or had any effect at all, certainly the sternotomy that we performed would not have fixed or corrected his chest wall problem but most certainly would have made it worse at least in the acute post operative phase and most likely chronically thereafter. This would be in sharp contrast to the usual sternotomy performed for routine heart surgery where chronic chest wall pain thereafter would be less than 1%. Thus, our reasons for making recommendations that the patient would likely not have been able to return to work after cardiac surgery for a period that we arbitrarily double from the usual 2-3 months to 5-6 months.

[40]            Dr. Fradet was cross-examined at trial and testified that it was rare that people became “cardiac cripples”.  He said that prior to discharge cardiac surgery patients are seen by physiotherapists and conditioned to the point that they can climb three flights of stairs. Dr. Fradet’s evidence was that he would normally expect bypass surgery patients to go back to work three months after surgery, but in Mr. Kean’s case he would reasonably expect him to take between four to six months after surgery.

[41]            I was very impressed by Dr. Fradet’s qualifications, his lengthy experience and his testimony, and I attribute a great deal of weight to his opinions.  His evidence on the rarity of people becoming “cardiac cripples” does not of course exclude the possibility that that label might apply to Mr. Kean, considering his particular vulnerabilities, including his endogenous depression.  I will later discuss evidence that supports the submission that Mr. Kean is apprehensive of the risks of another heart attack, and limiting his activities because of that apprehension.

[42]            Dr. Tessler, neurologist, was the only medical expert on behalf of the defendant who testified at the trial, or whose report was presented in evidence.  The salient portions of his February 21, 2008 report state the following opinions:

Opinion:

As a result of the MVA on November 6, 2005 the patient sustained the following injuries:

1.  Closed head injury with a concussive brain injury which resulted in a brief period of probable loss of consciousness and a short period of amnesia. The degree of the injury would be deemed mild, but the consequences resulted in a post-traumatic concussive syndrome, with problems with memory and mood changes. In part, his memory changes were due to pain, and medication to contain his pain, including long-acting morphine and Oxycocet. The accident had an emotional impact on him, as his job as a taxi driver provided him with a sense of pride. He was able to support his wife and himself financially.

He had a history of previous depression, but seemed to be functioning fairly well, having made adjustment to his previous depression which seemed to be fairly well controlled prior to the accident, according to the clinical records. He was described as having a fragile psyche. As a result of impairment, not being able to work and disability, he had increased depression.

He had memory and some cognitive problems. It is uncertain as to whether he would have been able to return to his former job, but the possibility was considered. However, subsequently he developed more medical problems including further heart circulation problems which required surgical intervention. He had intractable pain and medications which also interfered with his concentration. He has also developed enlargement of the abdominal aorta.

These morbidities are life threatening and reduce his life expectancy. His added illnesses have precluded the chance that he might have been able to return to work.

He continues to have persistence of low back pain. There is no evidence of nerve root irritation or spinal cord injury.

He continues to have pain over the sternum, necessitating the analgesics.

…

I defer to the otolaryngologist with regard to whether the accident resulted in his hearing loss. There is no indication of a neurological injury that would account for his bilateral hearing loss which is amenable to the use of a hearing aid.

Depression can contribute to memory problems and cognitive problems. It was said that his depression was under control prior to the accident.

The patient is not capable of returning to work as a cab driver, and I don't think that he is competitive with regards to obtaining other types of work for multi factorial reasons.

There is also the issue of alcohol which may have contributed to reduction in mental functioning.

With regard to his aortic aneurysm, this is under observation, but if this continues to advance, then he will require further surgery with its inherent risks.

If he had sustained only the concussive injury, there is a reasonably good chance that he could have recovered, but in the background of all his problems, i.e. pain, medication, depression, alcohol and mood changes, the chances that he is able to return to a full or part time job is guarded.

His disabilities likely will be permanent. The injuries that he sustained as a result of the accident have occurred in a vulnerable person. If work could be found for him, this would help his self esteem as he has appeared to be motivated to return to some form of employment.

[43]            The plaintiff's expert neurologist was Dr. Teal.  He interviewed and examined Mr. Kean on March 12, 2008, and his medical-legal report dated April 9, 2008 contains an eight-page appendix providing a comprehensive summary of the medical reports from other doctors and the clinical records of doctors Hollman, Kramer and Takahashi (also a neurologist).  Dr. Teal's opinion was that Mr. Kean sustained a closed head injury consistent with the diagnosis of the mild traumatic brain injury.  Dr. Teal noted that although an MRI brain scan performed March 13, 2006 did not reveal any MRI changes consistent with parenchymal brain injury, certain sequences which are sensitive for hemorrhagic lesions and hemorrhagic shear injuries were not performed, nor were FLAIR sequences, which are often sensitive for non-hemorrhagic injuries.

[44]            It was Dr. Teal's opinion that Mr. Kean suffered a persisting post-concussional syndrome with persisting cognitive complaints which are attributable to both the direct and indirect effects of the accident and his mild traumatic brain injury. Although the majority of patients with a mild traumatic brain injury similar to that sustained by Mr. Kean will have complete or near complete recovery of cognitive function, a small percentage of patients have persisting cognitive deficits and disabilities.  A portion of Dr. Teal's report states the following:

At the time of my evaluation, Mr. Kean still had persisting and consistent complaints of problems with decreased concentration and attention, decreased memory and forgetfulness, sleep and mood disturbance, and persisting pain. He remains on morphine as a potent narcotic analgesic.

It is my opinion that Mr. Kean does have mild persisting cognitive deficits that are directly attributable to a traumatic brain injury. Additionally, some of his cognitive complaints of concentration and attention and memory disturbance are likely secondary to persisting sleep disturbance, chronic pain, the use of potent medications, other coexisting medical problems, and possibly mood disturbance.

[45]            On cross-examination, Dr. Teal acknowledged that depression is associated with memory loss and that symptoms of depression can confound the symptoms of concussion.  Specifically, he agreed that the symptoms of sleep disturbance, mood disturbance and persisting cognitive complaints, which his report had noted were consistent with post-concussional syndrome, could also be caused by other factors, including depression.

[46]            In respect of Mr. Kean's prognosis for return to work, Dr. Teal’s written opinion is:

Mr. Kean has persisting cognitive deficits, fatigue, and headaches as a result of the direct and indirect effects of the motor vehicle accident. He has persisting chest pain due to his sternal fracture and costochondral injury. He has impaired stamina and fatigues easily. It is my opinion it is unlikely Mr. Kean will return to work as a taxi driver. It is my opinion he is not competitively employable.

[47]            A more optimistic note had been struck much earlier in a reporting letter dated February 7, 2006 from Dr. Jennifer Takahashi to Dr. Hollman.  Dr. Hollman had referred Mr. Kean to Dr. Takahashi, a neurologist and movement disorders specialist, with regards to his restless limb syndrome.  Dr. Takahashi reported:

We also discussed plans for his return to work. Brian is very keen to return to work as soon as possible due to financial constraints. At this time, I am concerned about his degree of mild multidomain cognitive difficulties, particularly in the area of working memory. It appears that he is in the unfortunate 10% of individuals with postconcussional syndrome that continue to have cognitive difficulties three months after injury. He has shown gradual improvement overall I am very optimistic that he will continue to do so. I think that a more realistic time frame for his return to his work safely would be late April or onwards. I have requested that Dr. Magdalene Mak perform psychometric testing with him around this time so that we have some objective data on file to help with this decision making. I think it would also be a proactive move for his cab company to put him through a functional assessment with one of their staff before he returns to work. He had difficulty finding a local street address as recently as two weeks ago.

It is possible that he will have further cognitive improvement with treatment of his depression, weaning off of narcotics for his sternal pain, and improved nighttime quality of sleep.

[48]            The defendant relied on the optimism expressed in this assessment, which occurred 4 months into Mr. Kean’s convalescence, in support of the argument that Mr. Kean’s persisting cognitive difficulties are more likely attributable to the combination of operative factors including depression, narcotic and other medication, sleep difficulties, a borderline IQ of 78 and his educational achievement of Grade 7, than to any brain injury sustained in the accident.  Dr. Takahashi testified at trial that she was being optimistic, but she felt that Mr. Kean was on the cusp of the 10% cohort and, as a soft-hearted clinician, she also wanted to preserve his optimism.

[49]            Mr. Kean was referred by counsel to Dr. Kaushansky, a neuropsychologist, who first assessed Mr. Kean briefly in April 2006 and then conducted a more thorough neuropsychological testing and evaluation in July 2006.  Dr. Kaushansky’s clinical impressions at that time were as follows:

Clinical Impressions:

This now 57 year old man with a grade 8 [sic] education was involved in a single passenger motor vehicle accident in 2005 at which time his stationary vehicle was hit from behind by a truck. Based on the indices around the time of the trauma is probable that he sustained a mild traumatic brain injury (mTBI) in addition to soft-tissue and musculoskeletal injuries, which latter included a fractured sternum and injuries to his thoracic and lumbosacral spine. He also sustained a mild bilateral sensorineural hearing loss for which hearing aids were recommended.

This gentleman has a history of situational depression and a suicidal attempt but had regained a sense of place and purpose in the community as a taxi driver, work that he had enjoyed. Since the trauma in question he has not returned to any form of employment and is living on income replacement from the Insurer.  He and his wife, who is herself ill, have been living in a mobile home. The mobility afforded Mr. Kean as a taxi driver had allowed him to return home as needed to support his wife.

The results of the neuropsychological assessment suggested a man of "low average" to "average" intellectual skills with a variable pattern of results on the test measures administered. His skills were weak on tasks of mental processing speed and on measures of perceptual organization and visual-spatial skills; there was inconsistency on some measures of memory-adequate for learning a span of digits or pairs of unrelated words, but weak for learning and later recalling a list of words, or recalling the details of auditorally presented short paragraphs: on measures of more complex attention as well as multitasking Mr. Kean’s skills were quite weak, as they were on measures of nonverbal abstract reasoning. There had been some improvement in his mental functioning between the two testing periods.

As noted by the neurologist, Dr. Takahashi in his [sic] February/2006 report, it is probable that this gentleman is experiencing the persistent sequelae of the mTBI coupled with physical pain and a very diminished mood given what has befallen him (and his wife). He had previously been able to earn enough money to support both himself and his wife and, moreover, he had gained some stability in his life after a period that had included a suicidal attempt, a police incident and a six month period of incarceration.

In evaluating this gentleman's case with a particular view towards considering his future, a number of significant factors do present:

(a)        Mr. Kean's present age of 57;

(b)        his limited education;

(c)        his vocational history, with a taxi driver being his most recent work;

(d)        his post accident weakened physical abilities and persistent pain, especially regarding his sternal fracture and related upper torso pain;

(e)        a mild bilateral sensorineural hearing loss with tinnitus;

(f)         problems with neuropsychological functioning primarily affecting his ability to attend, concentrate and recall; plan, organize, multitask and problem solve:

(g)        with regard to mood, Mr. Kean presents with a severe degree of depression and co-morbid anxiety.

As is often seen with this patient group a "chronic loop" has formed whereby organic, psychological and physical symptoms have become intertwined and are exacerbating each other. I am not at all optimistic that any kind of retraining, even in a "hands-on" situation (that is, without a formal training period) would be suitable for this gentleman. Mr. Kean's physical pain and limited stamina would in my view constrict any potential working situation. As such, in reviewing this case, two critical conclusions can be deduced:

(1)        Given the time since the trauma and Mr. Kean's age, I would not expect a significant improvement in his cognitive abilities, especially given the persistence of his pain and mood - as such, it is more probable that his constellation of difficulties will persist.  In summary, I am very guarded that Mr. Kean's overall circumstances will improve, yielding a concomitant improvement of his cognition. In that regard, it could well be the case that this gentleman did sustain a brain injury with permanent sequelae;

(2)        Given such circumstances, it is most probable that Mr. Kean will be unable to return to work as a taxi driver and will remain unemployed over his remaining working life.

[50]            On cross-examination at trial, Dr. Kaushansky acknowledged that he did not have Mr. Kean’s school records at the time of his report and he agreed that knowing Mr. Kean's educational achievement was Grade 7 rather than Grade 8 would change his assessment and make Mr. Kean's performance more average than below average.  He agreed that Mr. Kean tested as severely depressed, which would negatively impact cognition, and he agreed that medication would also affect his cognition.  However, Dr. Kaushansky testified that, in his view, the test results that differentiated the cognition difficulties as relating to traumatic brain injury rather than depression were Mr. Kean’s performances on the executive functioning tests and his poor reasoning on the card sorting test and Category Test (a measure of visual concept formation).  He maintained his view that the mild traumatic brain injury is a crucial component of the combination of factors involved in the cognitive impairment.  He did agree that problems with long term memory would not be related to brain injury and that the effects of traumatic brain injury on memory and concentration would be improvement or no improvement, but would not be deterioration.

[51]            In a third report dated April 2, 2008, Dr. Kaushansky summarized the results of a second neuropsychological assessment performed on March 12, 2008.  He found that Mr. Kean measured “extremely low” to “borderline” on measures of attention and executive and language skills and his neuropsychological profile suggested a further diminishment in cognition function which he attributed to “psychological features, particularly the significant degree of depressive mood.”

[52]            Dr. Kaushansky’s April  2, 2008 report contains the following comments:

As is often seen with this patient group, and Mr. Kean is unfortunately a good example, a constellation of accident-related organic (the persistent sequelae of a brain injury), somatic, and psychological features can become intertwined and exacerbate each other. It is most difficult now to ascertain what degree of Mr. Kean's overall presentation is due to what specific factors.

Even if Mr. Kean's mood disorder was treated successfully, his pain symptoms would not be significantly altered, his cognitive problems would continue to impact upon his daily functioning, and of greater concern and with more sinister implications, his constellation of weak "executive skills", that is, those skills relating to self-regulation and goal-orientated behaviours, would persist.

While a multi-disciplinary pain clinic might be able to address a number of Mr. Kean's presenting problems concurrently, I am not optimistic that there would be a significant generalization of learned techniques or compensatory skills to his home and community life. Influencing such difficulties in implementation would be Mr. Kean's limited education and "low-average" intelligence; the fact that he is not psychologically-minded; and critically, that there is a probable organic contribution to his constellation of problems which would place a "ceiling" on the degree of improvement that could be expected.

Given this profile, I am very guarded - as I was at the time of the initial assessment - about Mr, Kean's ability to work within the market place for the following reasons:

a)         Mr. Kean continues to present with ongoing physical pain, necessitating the continued use of analgesics; it is well recognized that pain, in and of itself, can impair cognition and contribute to diminished mood;

b)         Mr. Kean continues to have the probable sequelae of a traumatic brain injury- that is, there is a likely organic contribution to his constellation of presenting cognitive problems and executive dysfunction (the latter includes a poor ability to initiate, organize, use working memory, shift from one task to another - all of these weaknesses make him a very poor candidate for competitive employment). Such problems will probably remain over his lifetime;

c)         there is now a significant psychological overlay of depression which is further contributing to Mr. Kean's already diminished level of dysfunction. Significant depression can impact - even in the absence of other contributing factors - upon cognition and executive functioning, typically through its effect on frontal lobe functioning.

Such a constellation of problems would render retraining (for example, in a classroom setting) or even entry-level positions where Mr. Kean would be provided with on-the-job training most demanding for him and I am very doubtful he could succeed. I understand that Mr. Kean will be assessed by a vocational consultant.

I continue to be of the view that Mr. Kean could probably do some avocational work to give him some sense of place and purpose within the community.

Vocational Assessments and Opinions

[53]            Mr. Kean was assessed by Dr. Gordon Wallace, a consultant in psychological and vocational rehabilitation, to assess his residual employability potential.  Dr. Wallace relied on his interview with Mr. Kean on March 31, 2008, the results of a psychological and vocational test battery his office performed on that date, and a review of the medical reports, most of which I have summarized above.

[54]             In Dr. Wallace's opinion, Mr. Kean's decreased cognitive functioning, pain, as well as a significantly depressed mood combine to reduce his functioning abilities and effectively preclude him from working as a taxi driver on a competitive basis.  Dr. Wallace considered alternative occupations including labouring and service-oriented jobs.  He feels that Mr. Kean’s physical limitations, including an inability to complete maintenance tasks at his home, combined with increased pain arising from activities requiring physical exertion, and his significant fatigue preclude Mr. Kean from competitive labour occupations.  Similarly, service oriented jobs requiring physical capabilities would be excluded.  Dr. Wallace suggests that less physically demanding service oriented jobs such as self-service gas bar attendant, self storage facilities attendant, car rental clerk, recreational facilities attendant, retail sales clerk, etc. would require cognitive and psychological functioning capabilities in order to carry out the job duties in an efficient and effective manner commensurate with competitive employment standards.  Even noting that Mr. Kean had transferable work skills in those areas, having owned and operated a campground store in the past, his aptitude results would not be congruent with the demands of the low skilled service oriented positions.

[55]            Dr. Wallace relied on Dr. Kaushansky's opinion that Mr. Kean was not able to succeed in retraining for even entry-level positions which provided on-the-job training and his own measurement of Mr. Kean's aptitudes, in concluding that he was unable to identify any occupational options that were compatible with Mr. Kean's residual vocational attributes and abilities.  Dr. Wallace's written report includes the following comments.

It is important for the Court to understand that in addition to any specific skills required to complete job duties, individuals need to demonstrate three very basic foundational skills in order to be considered to be competitively employable. These basic skills include being able to 1) attend a jobsite on time and when scheduled; 2) interact appropriately with coworkers, supervisors, and if required, customers/clients; 3) and complete job duties in an efficient and effective manner commensurate with competitive employment standards. Mr. Kean's considerable ongoing fatigue and depression (including vegetative features) certainly makes it questionable as to whether he would be able to attend a jobsite on a regular ongoing basis. In addition, the amount of time that he would be able to attend a jobsite also is of concern. Mr. Kean remains socially isolated with his depression and chronic pain so it also is questionable as to whether he would be able to interact appropriately with others at a worksite. Of significant concern however from a rehabilitation psychology perspective, is his ability to efficiently and effectively carry out job duties in a manner commensurate with competitive employment standards. Mr. Kean's neuropsychological assessment results, coupled with my aptitude results would certainly not provide confidence that he would be able to demonstrate this foundational skill. While he certainly may be able to complete some required job duties, I am not confident that he would be able to complete them in an efficient and effective manner required by competitive employment standards.

It is therefore my opinion from a rehabilitation psychology perspective that Mr. Kean must be considered competitively unemployable. This is not a conclusion that I easily arrive at but considering the multiple interacting concerns regarding his physical, emotional, and cognitive dysfunction, it is my opinion that this is the only reasonable one to consider.

[56]            Dr. Wallace acknowledged on cross-examination that Mr. Kean's depression on the date of testing would certainly affect the results and that, if his depression could be lifted, retesting might provide a very different picture.  Dr. Wallace, who also practices as a clinical psychologist, disagreed with the suggestion that counselling would be the correct first step.  In his opinion a multidisciplinary approach was needed to "tease out" the key factor in addressing Mr. Kean’s depression.

Discussion of the Medical Evidence

[57]            The more significant physical injuries Mr. Kean sustained in this very forceful rear-end collision in terms of lasting effect were the fractured sternum with associated sternal and rib cartilage separations and the mild traumatic brain injury.  The less significant physical injuries were some hearing loss, contusions to various parts of his body, and moderate flexion-extension type soft tissue injuries to his back and neck.  The most serious injury sustained in the accident turned out to be the psychological injury of an exacerbation of his pre-existing chronic depression.  This exacerbation developed in the months following the accident as the chest pain became chronic and his cognitive deficits manifested themselves.  He was unable to return to work because of his physical and cognitive symptoms and he was receiving dire medical prognoses about ever working again.

[58]            The evidence is overwhelming that prior to this accident Mr. Kean was a very vulnerable individual from a medical perspective as well as from an economic and lifestyle perspective.  His main medical vulnerability was his chronic endogenous depression, for which he was taking a daily dosage of the anti-depressant Citalopram.  I am satisfied that one of the effects of the accident was a worsening of his depression when it became apparent that his chest wall pain and other symptoms were not resolving and he was not able to return to work in a timely manner.  I accept Dr. Hollman’s observations that Mr. Kean’s depression was increasing in the early months of 2006 because of these factors.  As to the doubling in the dosage of Citalopram in late November 2006, I find that Dr. Hollman’s initial observation that this was “at least partially” due to the motor vehicle accident carries more weight than her later comments that clearly imply that the increased dosage related solely to the motor vehicle accident, notwithstanding the obvious circumstance of life-threatening arterial disease, which made its urgency known in October and November 2006.

[59]             Mr. Kean has many extraneous health problems which undoubtedly also contribute to the current level of his mood, but I am satisfied that the direct and indirect effects of the lingering physical injuries from this accident were a contributing cause beyond the trivial of his increased depression which started in 2006 and continues to the present time.

[60]            It is clear from Dr. Wallace's testimony and the explanation in his report of the three basic foundational skills necessary for competitive employment that the severity of Mr. Kean’s depression is a major factor disabling him from competitive employment.  Dr. Kaushansky acknowledges the importance of the severe depression as a significant psychological overlay contributing to Mr. Kean’s dysfunction, (and, in his opinion, probably responsible for the further diminishment in cognition between July 2006 and March 2008) but puts much more emphasis on the significance of his cognitive difficulties.  He postulates that even if Mr. Kean’s mood disorder was treated successfully, his pain symptoms would not be significantly altered, the impact of his cognitive difficulties would continue, and his constellation of weak “executive skills”, those relating to self-regulation and goal oriented behaviours, would persist. 

[61]            The defendant urges me to find that the plaintiff has not established that there are any residual cognitive effects from the mild traumatic brain injury.  That question remains relevant to non-pecuniary damages, which I will revisit later in these reasons, but in my view, it does not matter a great deal on the employability issue in the circumstances of this case.  Even if Dr. Kaushansky is correct in his opinion that there are probably organic effects lingering from the mild brain injury which would place a “ceiling” on the improvement of Mr. Kean’s cognitive deficiencies, there are several other factors that he mentions which also represent “ceilings”, including Mr. Kean’s limited education, low average intelligence and not being psychologically-minded.  The more pertinent question, which he does not address, is whether the improvement “ceiling” he would attribute to organic injury is one that would preclude Mr. Kean from re-entering the workforce, either standing alone or as a contributing cause above the trivial.  Dr. Kaushansky goes no further than to state: “It is most difficult now to ascertain what degree of Mr. Kean’s overall presentation is due to what specific factors.” 

[62]            The defendant is on solid theoretical ground when he argues that the increased depression is treatable directly by drugs and counselling therapy and indirectly by treating the underlying factor of chronic chest wall pain with medication, and the other underlying factor of boredom with activity.  The difficulty in practice is that although medication helps Mr. Kean manage the chest wall pain, direct medication of the depression has not reduced it substantially, and the pain medication and the persistent depression both adversely affect Mr. Kean’s cognitive functioning.  His diminished cognitive abilities then become another source of anxiety, and contribute to his depressed mood. 

[63]            The defendant’s answer to these difficulties in implementation is that Mr. Kean’s pain is not significant enough to warrant the narcotic medication he is taking, and that he has a heightened perception of his pain and limitations because of his depression.  The defendant points out that when Mr. Kean attended Dr. Wallace without having taken medications on March 31, 2008, he said his sternum and neck pain was 2 out of 10 and after 3.5 hours of assessment and a half hour lunch it only rose to 3 out of 10.

[64]            The difficulty with counselling has been that, although Mr. Kean did follow the recommendation of Dr. Kaushansky for psychological counselling and attended two sessions with a psychiatrist, Dr. Lawrence, in July and August 2006, and a third session in January 2008 at the request of counsel, he and his wife (who accompanied him on the latter two appointments), advised Dr. Lawrence that they were coping well enough at the time and did not feel that counselling was providing significant benefit, and it was adding to the stress and burden of existing medical appointments.   Dr. Lawrence felt that there may have been an unspoken issue over affordability of the sessions.  Dr. Lawrence testified that he agreed with Mr. and Mrs. Kean’s overall assessment of why they did not want to pursue treatment, but said that Mrs. Kean’s interpretation of his remarks to the effect that he could not help them was not “how I would put it”.  He testified that the “loop” effect with pain and depression is difficult to treat.

[65]            Clearly the recommended counselling should have been pursued, and should still be pursued, but I do not accede to the defendant’s argument that Mr. Kean’s refusal to continue attending Dr. Lawrence and his subsequent inactivity in pursuing counselling elsewhere has broken the chain of causation such that the ongoing psychological injury no longer has its roots in the negligence of the defendant Porter.  I am satisfied that it did not involve a choice by Mr. Kean to remain depressed. 

[66]            Mr. Kean’s depression clearly did worsen in the aftermath of the accident and the explanation that this was commensurate with his realization that he could no longer work as a taxi driver, or perhaps not work again at all, (a realization aided by Dr. Hollman’s advice “not long after the accident”) makes the most sense to me.  His depression worsened considerably after his cardiac crisis, and the discovery of the aortic aneurism.  Although the opinion of Dr. Fradet is that he has fully recovered from his heart surgery, and that the aneurism would not itself preclude him driving, Mr. Kean testified in cross-examination that he limits what he does to avoid the risk of a heart attack, and said that “the Doctors” have restricted him to safeguard against heart attacks.  Mr. Kean did not remember saying it, but Dr. Lawrence’s report makes it clear that Mr. Kean told him of a deep fear of having another heart attack and worrying that it could be fatal.  Mr. Kean acknowledged that he told Dr. Wallace in March 2008 that he did not want to “push it” for fear of a heart attack.  His depression is now accompanied by vegetative features.  When defendant’s counsel suggested that he would feel better if he became more active, his response was that he thought he should get some physical rehabilitation first.  He said he has walked the dog only twice in the past year because he is just not motivated. 

[67]            I accept the defendant’s argument that an exacerbation of depression was inevitable in connection with the cardiovascular problems and the financial hardship connected with being unable to work for several months after bypass surgery.  I do not accept the proposition that he would be in the same severely depressed condition that he is now in without the accident.  When the inevitable increase associated with his cardiovascular problems occurred, it was supplemental to the exacerbation caused by the consequences of the accident.   The latter effect was not temporary, and the underlying causes of that exacerbation of depression – chronic pain, cognitive diminishment and unemployability – persist.

Non-pecuniary Damages

[68]            It is a very close call as to whether the plaintiff has established on a preponderance of probabilities that the mild traumatic brain injury resulted in permanent cognitive difficulties.  Dr. Takahashi felt that Mr. Kean was on the cusp of the 10% of mild cases that do not fully resolve within two years.  Dr. Teal’s opinion on this subject favours the plaintiff’s submission but I find that it is rather barren of rationale.  He describes mild persisting deficits and acknowledges that some of Mr. Kean’s cognitive complaints of concentration and attention and memory disturbance are likely caused by co-existing factors.  It seems to me that that leaves little that can be unequivocally definitive of brain injury in this case. 

[69]            Dr. Kaushansky’s opinion also favours the plaintiff’s submission, and his rationale (not contained in his report, but elicited on cross-examination) is that Mr. Kean’s scores on executive functioning, a category test and a card sorting test were more consistent with that conclusion.  Dr. Kaushansky’s report also acknowledged that pain and pain medication do affect cognition and mood and that significant depression impacts cognition and executive functioning.  This begs the question of why he would infer persisting brain injury sequelae from a low score on executive functioning. 

[70]            I do not find these opinions particularly compelling, but they are uncontradicted.  The defendant relies solely on the 9 – 1 odds against the occurrence of persisting effects past two years and the evidence that Mr. Kean’s ability to concentrate had worsened over the past 12 to 18 months as reported by Mrs. Kean to occupational therapist Carol Burden and to Dr. Lawrence.  This is a progression that is acknowledged not to be the case with effects of brain injury.  One difficulty with this submission is that the defendant also argues that Mrs. Kean is an unreliable witness not to be believed because she will say whatever she believes will benefit her husband.  She may well have believed that information would benefit him.  Another difficulty is that the worsening could be due to the other causative factors that have been identified.

[71]            On balance I conclude that I accept the expert evidence to the effect that it is more likely than not that there are persisting, but very mild, sequelae from the mild traumatic brain injury affecting cognition.  The effects on Mr. Kean’s cognition are so subtle as to be virtually indistinguishable from the concurrent effects from the other operating causes, namely pain, pain medication, and depressed mood. 

[72]            Turning to the question of quantum of damages for non-pecuniary losses, the plaintiff seeks an award in the range of $190,000 to $220,000, whereas the defendant urges that $75,000 is the appropriate award.

[73]            The cases referred to by the plaintiff for guidance and comparison of awards for similar injuries were:

Dikey v. Samieian, 2008 BCSC 604;

Lines v. Gordon et al and ICBC, 2006 BCSC 1929;

Adamson v. Charity, 2007 BCSC 671.

[74]            In Dikey v. Samieian, a 26 year old who had completed a university degree, suffered a brain injury that the court held was “moderate when it occurred, but this is of little assistance in determining the long term impact of the injury”.  The plaintiff was left with significant cognitive impairments of memory, planning, organization, attention, concentration, awareness, judgement, decision-making, language, reasoning, abstract thinking, mental flexibility, and calculations.  He was unlikely to work again because of his cognitive impairment.  The plaintiff, a pedestrian had been struck by a vehicle, thrown about 50 feet and struck his head on a concrete wall, becoming unconscious.  The medical experts’ opinions varied in describing the brain injury from mild to moderate to severe.  He also suffered soft tissue injuries to his neck and back (still symptomatic 4 years after the accident), psychological injuries (depression), head and jaw injuries, wrist fractures, and a knee injury, but the court held that the traumatic brain injury was by far the most significant injury.  The award for non-pecuniary loss was $215,000.

[75]            Clearly Mr. Kean suffered a less severe brain injury than did Mr. Dikey and, being a much older man at the time of injury, presumably has several decades less of life expectancy to suffer the loss of enjoyment of life and other non-pecuniary consequences of that injury and his other injuries.  I find that Mr. Kean’s other injuries, taken together, are roughly comparable to Mr. Dikey’s other injuries.  Overall I would assess Mr. Kean’s non-pecuniary losses as less significant than those of Mr. Dikey.

[76]            In Lines v. Gordon et al and ICBC, a 32 year old working as a deck hand at the time of injury, but found to have realizable potential as a marine engine mechanic, suffered what was categorized as a mild traumatic brain injury in a motor vehicle accident.  The court found that the mild injury affected the plaintiff profoundly, and resulted in severe and constant headaches with vestibular dysfunction, visual difficulties, fatigue, sexual dysfunction, depression, impairment of higher cognitive function and capacity.  He, like Mr. Kean, was deemed unlikely to be competitively employable.  Mr. Lines was awarded $225,000 for non-pecuniary losses.  The decision in his case was considered by the court in the Dikey case. 

[77]            There were no injuries other than the brain injury mentioned in the decision in Lines, and the medical evidence described major cognitive deficits and emotional difficulties from the brain injury.  It is difficult to compare the nature of the non-pecuniary losses in that case to those of Mr. Kean, where I have concluded that the persisting effects of the brain injury on cognition are subtle and barely distinguishable from the effects of other factors, some of which, such as depression and intelligence in the 7^th percentile (Dr. Mak’s report) pre-existed the accident.  The totality of Mr. Kean’s injuries has had a similar effect in rendering him unemployable, but again, as in Dikey, his loss of the enjoyment of working and feeling productive, which is a significant loss in both cases, is much less because of his age.  Mr. Kean does not suffer severe and constant headaches.

[78]            In Adamson v. Charity, a 42 year old Home Depot renovations contractor was awarded $200,000 for non-pecuniary damages.  Paragraphs 200 and 201 of that decision describe injuries and a prognosis that closely parallel my findings in respect of Mr. Kean, with the exception that Mr. Adamson suffered from severe headaches (which were deemed worthy of five further short paragraphs to describe), and it appears that Mr. Adamson’s moderately severe and permanent depression developed initially from the accident and he did not have symptomatic pre-existing depression as did Mr. Kean.  Another distinction is that the evidence accepted by the court described significant cognitive deficits attributed to the brain injury (which in that case did not involve a blow to the head, but was a result of whipping forces).  Mr. Adamson was 14 years younger than Mr. Kean was when he was injured.

[79]            The defendant has referred me to the following cases on this head of damages:

Frayne v. Alleman et al, 2006 BCSC 1988

Abma v. Paul, 2008 BCSC 783

Clark v, Hebb, [2007] B.C.J. No. 1340

Yoshikawa v. Yu, [1996] B.C.J. No. 623

Maslen v. Rubenstein, [1993] B.C.J. No.1813

[80]            The defendant’s authorities involve awards in the range of $75,000, but on facts that differ substantially from those that I have found in this case.  In Frayne the court found prolonged depression and anxiety, but no brain injury, no chronic pain and no long term affect on employability.  The most serious complaint was chronic fatigue.  The case is useful as an example of reducing an award for failure to mitigate – a subject that I will return to shortly.

[81]            In Abma, the plaintiff suffered soft tissue injuries, but continued to operate her consulting business, and her claim relating to an alleged traumatic brain injury was rejected.

[82]             Clark v. Hebb is useful in referring to other cases and ranges of damages in cases where there is mild traumatic brain injury with long term impact short of total permanent disability, but the $75,000 award in that case was based on the finding that the plaintiff’s symptoms had all resolved within 2 years.

[83]            Yoshikawa is a case where a plaintiff with depression and psychogenic pain held to be capable of marked improvement within 3 years with proper treatment was awarded $75,000.  This case and the Maslen case were cited primarily for their analysis and discussion of the principles underlying the defendant’s argument that the evidence in this case was not convincing enough to overcome the improbability that Mr. Kean’s mild traumatic brain injury, unaccompanied by objective signs, would not resolve in the usual recovery period.

[84]            Mr. Kean was, unfortunately for himself and for the defendant, a particularly vulnerable victim.  I find myself in agreement with Dr. Kaushansky’s assessment of the profound effect of this accident upon Mr. Kean’s life.  In his April 2008 report he said:

There is the risk of underestimating the effect of this accident on this gentleman. Mr. Kean's premorbid options were restricted by his lower intelligence, limited education, and consequential restriction to physical based occupations. Despite the lesser options available to him Mr. Kean was, pre-accident, and after a difficult history, in the process of firming the elements of a satisfactory life: a job that he enjoyed, that reinforced his self-esteem, that provided opportunities for socialization, and that was offering some financial security. This accident has resulted in the loss of all the elements that made his life worth living and it has occurred at a relatively young age -- clearly, there has been a diminishment in the quality of his life which unfortunately will persist.

[85]            On the mitigation issue, I understand the plaintiff’s argument that I must take into account the particular nature of Mr. Kean’s injuries as well as his low average intelligence.  I have done so.  I acknowledge as well that Dr. Hollman apparently deferred to Mr. Kean’s position that he did not feel ready to pursue counselling and she made no specific referrals.  I do not understand why she would defer on that matter to her severely depressed patient.  I do not see the applicability in this case of Dr. Hollman’s partial rationale for inaction, namely a concern that counselling might do more harm than good when patients have to relive traumatic events they are desperately trying to forget.  There was no evidence that Mr. Kean would necessarily have to relive the trauma in order to receive counselling.  Dr. Kaushansky has been recommending since April 2006 that psychological support/therapy be sought “expeditiously”.  In my assessment, based on Mr. Kean’s evidence and presentation in court as well as the as the expert evidence, he is now simply at the end of the line in applying self-motivational resources to escape the downward spiral into an abyss of depression that could become inescapable.  His severe level of depression is the most significant feature of his constellation of problems and has been for some time. His judgement that counselling was not beneficial enough to be worth pursuing is not to be deferred to or preferred over the experts’ opinions. There is an obvious need for the counselling that has been recommended, and I am satisfied it would have been beneficial.  The defendant has established a failure on the part of the plaintiff to mitigate the impact of the increase in depression attributable to the accident.  My award is discounted to take account of that failure.

[86]            I conclude that the appropriate award for non-pecuniary damages is $180,000.

Past Wage Loss

[87]            The plaintiff claims past wage losses in the monthly amount of $2,875, which is based on an estimated annual income of $30,000 plus 15% for tips.  The defendant says that Mr. Kean has never earned that level of income and that the proper amount, established by reference to the plaintiff’s income tax returns and T4 documents, is approximately $1,500 per month, plus tips.  The T4 evidence was that in 2005, Mr.  Kean earned commissions of $1,240.35 for one month with one company and commissions of $2,977.19 for two months with the other company before he became a lease operator for the latter.  His 2005 total reported income for the 10 months before the accident was $12,520, which was comprised of these T4 amounts and a net income of $8,302.83 from 8 months, plus a few days of self-employment as a lease operator from March 3, 2005 to the date of the accident.

[88]            There is agreement that the defendant is not liable to pay for the period between October 3, 2006 and approximately August 21, 2007, which was 6 months following his bypass surgery.  The compensable period of past wage loss is therefore approximately 20 months to the time of trial.

[89]            The plaintiff and his wife, who helped him with his income reporting, assert that his income tax returns do not provide an accurate record of his income, because he did not report all his income, and the omissions were not limited to tips.  He attempted to prove his claim by reference to trip sheets, bank statements, evidence of average earnings of other drivers from an office manager and the owner of one of the taxi companies Mr. Kean had worked for, both as a commissioned employee and as a lessee, for various periods of time before the accident, and from the owner of another taxi company that he had been working for on a lease basis for eight months prior to the accident. 

[90]            One of the taxi company owners estimated that the tips for full time drivers averaged $20 to $30 per night.  The owner of the other company estimated that tips averaged 15% of the drivers’ commissions.

[91]            While relying on his banking records as evidence of greater income than reported, the plaintiff argued against their ultimate reliability as recording all his cash receipts, asserting that the household sometimes spent his cash income directly without depositing it.  The other difficulty with the bank records was the uncertainty in identifying the source of many deposits as his earned income.  To further confuse the interpretation of the banking records, there were occasionally several withdrawals and deposits on the same day.    

[92]            In general I agree with the defendant’s submission that the banking records do not support reliable inferences.  I agree also that the plaintiff did not establish his past income loss from November 6, 2005 by reference to the evidence of one of the taxi company owners and his office manager that their good full-time night-shift drivers on commission currently earn approximately $29,000 annually plus tips, in the face of the other evidence presented.

[93]            I am prepared to infer that Mr. Kean’s 2005 self-employment income as a lease operator probably did exceed that which he reported, but I will not make the inference that his T4 commission income was inaccurate.  While it is acknowledged that Mr. and Mrs. Kean were cheating Canada Revenue in respect of gross revenue while he was working as a lessee and, in respect of tips, all the time, there was no similar acknowledgement, or evidence, that Mr. Kean was cheating his employers while on commission. 

[94]            I conclude that the plaintiff has proved a likely past wage loss of approximately $20,000 per year plus tips averaging 15%, for a total of approximately $23,000.  I therefore calculate past wage loss for 20 months at a gross amount of $38,333.  If I understand the Hudniuk decision correctly and if I am applying the table in Mr. Carson’s letter of February 13, 2008 correctly, this should be reduced by 15.2% for notional income tax and employment insurance contributions.  The resultant net award for past wage loss is $32,506.38. 

[95]            The parties are at liberty to apply to correct any interpretive or calculation errors I may have made in this section or the following sections in respect of applying the economic consultant’s evidence.

Loss of Future Earning Capacity

[96]            There can be no doubt that the injuries sustained in the accident are a contributing cause beyond the trivial of a loss of future earning capacity.  I accept the evidence that in the absence of successful rehabilitation, which is unlikely, Mr. Kean is no longer competitively employable, and is unlikely to earn any employment income in the future.  I do not think there is a sufficiently realistic possibility that he will earn income to warrant applying a contingency reduction to the award for this loss.

[97]            Both parties approached the quantification of this head of damages on the basis of calculating a present value for future wage loss.  This is of course not the only approach that may be taken, but I think that it is appropriate in the circumstances of this case.

[98]            The plaintiff urged me to find that there is a measurable likelihood that Mr. Kean would have, but for the injuries sustained in the accident, worked past age 65, because of his enjoyment of the job of driving a taxi and his need to support himself and Mrs. Kean.  The defendant urges me to calculate an award based on Mr. Kean working to age 65 and then to find that, considering his degenerative and life-threatening conditions of coronary artery disease, aortic aneurism, and COPD, all of which are made ten-fold higher risks to life by his smoking habit, there is certainly a contingency to be applied that he would not work to age 65 for health-related reasons extraneous to the injuries sustained in the accident. 

[99]            Applying the present value information provided by Mr. Carson to an annual income of $23,000 per year from the date of trial (June 9) to age 65, I calculate a present value of $119,140 to that income stream. 

[100]        In that calculation I have used a multiplier of $5,180 per $1,000, which is an interpolation between the multiplier ($5,220) that would apply on Dr. Anderson’s estimate of life expectancy of 16.5 years and the multiplier ($5,056) that would apply on Dr. Elliot’s estimate of life expectancy of 10.2 years.  This interpolation is my own approximation based on my finding that a reasonable estimate of Mr. Kean’s life expectancy is a further 15 years.  I come to this finding because, on an examination of their reasoning and calculations, I find Dr. Anderson’s estimate generally more realistic.  I found that Dr. Elliot’s opinion was very conservative and he was very defensive about his methodology, which clearly contained some subjective conclusions that were identified by Dr. Anderson.  The reason that I conclude that Dr. Anderson’s estimate may be overly optimistic is that he makes no adjustment whatever for depression affecting life expectancy.  While this may be consistent with the absence of accepted data from studies, I think in the case of Mr. Kean’s particularly severe depression and inactivity, Dr. Elliot is correct in assigning it some significance.

[101]        In respect of the offsetting contingencies described in ¶98 above, I would measure the contingency relating to health concerns, other than those caused by the accident resulting in retirement before age 65, as significantly outweighing the possibility that he would have worked longer.  On balance I conclude that a reduction for this contingency of the award for future income loss to the sum of $100,000 is appropriate.

Deductibility of CPP Disability Benefits

[102]        Counsel for the defendant and the third party argued that CPP disability benefits received by Mr. Kean should be deducted from his award for past wage loss, and the present value of future CPP disability benefits should be deducted from his future income award.  The thrust of their argument is that this is necessary to prevent double recovery.  The defendant argues that CPP disability benefits are a form of mandatory social insurance that workers cannot negotiate out of, and the scheme is a form of income replacement.

[103]        The defendant’s argument is essentially the same argument that these same counsel made unsuccessfully in the case of Maillet v. Rosenau 2006 BCSC 10.  In Maillet, the plaintiff had received social assistance payments which were deducted from the past wage loss, but Powers J. did not accede to the defendant’s argument that future CPP disability benefits should be deducted from the award for losses of future earnings.  As here, the defendants relied on the case of M.B v. British Columbia, 2003 SCC 53, suggesting that the rationale applied in that case to conclude that social assistance payments were deductible from a future wage loss award, was equally applicable to CPP disability benefits and that the decision represented a change in the law.

[104]        In Maillet, Powers J. followed a line of authority which had held that the CPP disability pension scheme was essentially an insurance scheme and covered by the insurance exception to the rule against double recovery.  This line of authority includes Canadian Pacific v. Gill,[1973] S.C.R. 654, Hayre v. Walz (1992), 67 B.C.L.R. (2d) 296 (BCCA) and Cugliari v. White, (1998) 159 D.L.R. 4^th 254 (Ont.C.A.).

[105]        Like Powers J, I do not see the reasoning in M.B. as effecting a change in the law as it applies to CPP disability payments.  The analysis undertaken in that case was outlined in ¶24 of the decision:

The first question is whether social assistance is a form of income replacement.  If it is not, no duplication arises.  If it is, the further question arises of whether social assistance can be excluded from the non-duplication rule under an existing or new exception.

[106]        The court determined that social assistance was a form of income replacement and then stated in ¶28:

It follows that the only way in which they can be non-deductible at common law is if they fit within the charitable benefits exception, or if this court carves out a new exception. Otherwise, retention of them would amount to double recovery.

[107]        After holding that social assistance payments did not fit the charitable benefits exception (because the rationale for that exception did not concern the purpose of charitable donations, but its effect on the owners and the difficulties of valuation), the court discussed whether it should carve out a new policy- based exception.  The court decided that it should not do so.  Clearly there was no viable argument that the insurance exception might be applicable to social assistance and that was not considered.

[108]        The defendant wishes to characterize the CPP disability payments as a form of social security because it is a legislative creature and contributions are mandatory. But, unlike social assistance, it is funded by contributions and only those who have contributed can benefit.  There is an overlap of recovery, but that is inherent in the insurance exception to the rule against double recovery.  The other side of the coin is that to deduct the CPP benefits from a tort award is to force the injured contributor to share the benefits of his contributions, (which represent deductions from his former earnings), with the tortfeasor.

[109]        The defendant's book of authorities included, in fairness, the case of Sulz v. Minister of Public Safety and Solicitor General 2006 BCCA 582, which was decided shortly after the Maillet decision.  In Sulz, the British Columbia Court of Appeal quotes from Mr, Justice Iacobucci in Sarvanis v. Canada 2002 SCC 28 at ¶33:

….it has already been held by this court that CPP disability payments are not to be considered indemnity payments, and therefore that they are not to be deducted from tort damages compensating injuries that actually caused or contributed to the relevant disability.  See Canadian Pacific Ltd. v. Gill; Cugliari, supra.  This rule is passed on the contractual or contradictory nature of the CPP.  Only contributors are eligible, at the outset received benefits, provided that they then meet the requisite further conditions.

[110]        The issue in Sulz was the deduction of superannuation pension from a tort award.  The British Columbia Court of Appeal, in a decision written by Madam Justice Levine, (who was the trial judge in M.B. whose deduction of social assistance payments was upheld by the Supreme Court of Canada) said, at ¶65:

The superannuation pension received by the respondent is of the same character as CPP disability benefits and other pension payments, which have consistently held to be non-deductible from tort damages.

[111]        I conclude, as did the court in Maillet, that the law in this jurisdiction is settled to the effect that CPP disability benefits fall within the insurance exception to the rule against double recovery and should not be deducted from tort awards for past or future wage loss.

Future Care Costs

[112]        The plaintiff advances a claim for professional services, compensatory services, equipment, and medications, all recommended and “costed” by occupational therapist Carol Burden.  I must say that Ms. Burden has avoided the excesses that the court occasionally sees in similar analyses by others.  The defendant disputes some of the recommendations and suggests in respect of the compensatory services, that the defendant should not have to bear the entire burden because there has been the intervening cause related to the plaintiff’s cardiac conditions that has increased Mr. Kean’s inability to look after some of his chores.  I agree.  The defendant also points out that the medication for Levocarb relates to restless leg syndrome which predates the accident.  I agree.  In respect of Zoplicone, it is argued that it was not related to the accident by Dr. Hollman and had been used for sleep before the accident. I will factor in 50% of the annual cost estimated by Ms. Burden for Zoplicone. I will do the same in respect of the increased dosage of Citalopram.  Mr. Kean had been taking 20mg per day before the accident and it was not until one year post-accident and nearly two months after the heart attack that the dosage was increased.

[113]        There is no evidence in support of the defendant’s submission that there is alternative funding available for the required medication under the provincial Pharmacare program, so I have included the adjusted costs of medication on the basis that it will be required indefinitely.

[114]        I accept that the following costs of professional services are required, taking Ms. Burden’s recommendations into account in the context of all the other evidence and my factual findings in this case, which in some cases have caused me to reduce the quantity or duration of the services recommended:

1.	Occupational Therapy services (including travel):	$3,400.00
2.	Physiotherapy input for the VIP program (4 sessions):	$240.00
3.	Rehabilitation driving assessment:	$1,037.20
4.	Counselling support (18 months – 36 sessions):	$5,760.00

 

[115]        These items are considered initial outlay costs by Ms. Burden, and I will not compute present values, considering that they all should be incurred within the next 18 months.  The total of these items is $10,437.20

[116]        In addition, I find the following necessary expenses will recur annually:

1.	Handyman services:	$356.25
2.	Homemaking support:	$835.90
3.	Hearing aid replacement reserve and batteries:	$1,250.00
4.	Oxycocet:	$180.00
5.	M-Eslon:	$875.52
6.	Zoplicone:	$71.88
7.	Citalopram:	$183.00
	TOTAL:	$3,752.55

 

[117]        Applying my finding that Mr. Kean’s life expectancy is 15 years, and the same interpolation method I applied in respect of calculating the present value of future income loss, I arrive at a multiplier of 10,818 per $1,000.  This results in a present value for the future recurring annual costs to the end of Mr. Kean’s lifetime of $40,595.08.

Special Damages

[118]        The plaintiff seeks $10,802.95, which includes $5,800 for hearing aids, $2,919.19 for reimbursing Blue Cross for accident related prescriptions, and costs of counselling with Dr. Lawrence and other miscellaneous items.  The submission of counsel is slightly at odds with the summary sheet in evidence, and defence counsel seeks a reduction of $380 yard work expenses by 50%, but agrees to an ambulance bill for $396 which does not appear on the summary sheet.  It appears from the policy material in evidence that Blue Cross is entitled to be reimbursed where a third party becomes liable for medication expenses, so I do not accede to the defendant’s suggestion that there is no evidence that the insurer purports to exercise subrogation rights.  I will award special damages in the amount set out on the summary sheet, namely: $10,672.95. 

Summary of Damages Awarded

[119]        In summary, I have made the following assessments:

Non-pecuniary damages:	$180,000.00
Past wage loss:	$32,506.38
Future earning capacity loss:	$100,000.00
Future care costs:	$51,032.28
Special damages:	$10,672.95
TOTAL:	$374,211.61

Costs

[120]        Apart from the possible import of pre-trial matters of which I am unaware, the plaintiff has substantially prevailed on all issues except the past wage loss component of his claim.  On that component the defendant was substantially successful, and complains of the inordinate amount of trial time consumed on that issue, which only arose because of the plaintiff’s deceit and the attempt to disprove his own income tax returns.  The defendant requests that he receive the costs of the approximately two days of trial that were spent on that issue.

[121]        There is merit in this submission.  The plaintiff’s reply that time spent on proving liability was also needless does not impact the merit of the submission, because the plaintiff prevailed on that issue and is receiving costs for that time wasted.  Of course the past income determination was directly related to the loss of future income claim as well, and was therefore more significant than the amount of past wage loss in dispute.  The plaintiff did achieve a result that was $2,000 per annum plus 15% above the position of the defendant at trial, so the defendant did not prevail completely.  In the circumstances, I will not allocate costs to the defendant, but I find that it is just and appropriate to deny the plaintiff costs of 2 days of trial on the basis argued.  With that exception, the plaintiff is prima facie entitled to costs on Scale B.  The parties are at liberty to apply in respect of costs if necessary.

“I.C. Meiklem J.”
MEIKLEM J.