ICBC Law

BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Archive for December, 2015

Applications For Responsive Reports Ought to be “Extremely Rare”

December 30th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, criticizing the volume of applications the Court is seeing with Defendants arguing that they need to subject plaintiff’s to physical examinations in order to obtain ‘responsive’ expert opinion evidence.

In today’s case (Falbo v. Ryan) the Plaintiff was injured in a collision and sued for damages.  In the course of the lawsuit the Plaintiff attended several defence medical appointments, specifically with a physiatrist, a psychiatrist, a dental expert, and a rheumatologist.  The Plaintiff then served two functional capacity reports outlining vocational limitations.  The Defendant argued they needed a further evaluation to obtain a ‘responsive’ report.  In dismissing the application Master Harper provided the following reasons :

[10]        There are numerous cases that have dealt with these types of applications.  The plaintiff in fact produced a binder of 21 case authorities.  One of the cases that I find most persuasive in this matter is Timar v. Barson, 2015 BCSC 340.  In that case, Mr. Justice Smith said that IMEs for responsive reports should be rare.  I agree.

[11]        In my view, the defendants cannot reasonably claim to be surprised by the subject matter of the report, and further, it is my view that it is not necessary in order to provide a responsive report for the plaintiff to be subjected to a physical examination.  These types of orders are discretionary.  They ought to be rare.  There is, unfortunately in my view, what seems to be an acceleration of these types of applications.  They should be extremely rare, and in my view the defendants do not require a physical examination of the plaintiff in order to properly respond to Ms. Craig’s two functional capacity evaluations.


ICBC Doctor Criticized as “Very Unhelpful Medical Witness” By BC Supreme Court

December 28th, 2015

In the latest example of expert witnesses who cross the line into prohibited advocacy, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, criticizing a physician for such behavior.

In this week’s case (Ferguson v. McLaughlin) the Plaintiff was injured in a 2009 collision caused by the Defendant.  The Defendant’s insurer hired a physician who presented evidence largely discounting the connection of the Plaintiff’s complaints to the collision.  In rejecting this evidence Madam Justice Griffin had the following pointed comments for the physician –

[63]         The defendant called the evidence of Dr. Duncan McPherson, an orthopaedic surgeon, who performed a medical examination of the plaintiff at the request of the defendant.

[64]         Dr. McPherson was a very unhelpful medical witness.

[65]         Dr. McPherson has not practised medicine for years. He stopped his work as a surgeon in 1992 or 1994 and ceased practising medicine in 1997. It is difficult to assume that he is up to date on medical studies regarding soft tissue injuries and pain.

[66]         Dr. McPherson is wholly reliant on the Insurance Corporation of British Columbia (“ICBC”) for his income and has been for years. He was clever, and I mean this not in a complimentary way, when questioned about his reliance on ICBC for his income in the last several years, hinting at the notion that he had other sources of income. He then agreed the other sources of income were simply his investment income.

[67]         Dr. McPherson’s approach to examining patients appeared to be dependent on a verbal test. He asks the patient to explain the patient’s complaint, and if the patient does not mention pain in his answer, he concludes that in his opinion the patient does not have pain and thus does not have a lasting injury. Dr. McPherson stated that when patients describe complaints in the activities they can do, rather than stating they have pain in a body part, that is because they are not sure where the pain “should” be, implying that the patient is not telling the truth if they do say they have pain.

[68]         Dr. McPherson was in my view overly confident that the question he poses to patients is a scientifically valid “truth-o-meter”, foolproof in discovering whether pain exists or not. He seemed completely close-minded to the possibility that some patients might not understand what he means by “complaint” or may not consider “pain” to be a complaint but a condition that they simply deal with on a day-to-day basis.

[69]         Dr. McPherson found it highly relevant that when he asked the plaintiff about his present complaints relating to the accident, the plaintiff did not say he has pain, but said he is limited to certain activities now, such as he cannot do heavy work, or has issues with his back hurting during sexual activities. Dr. McPherson appeared to conclude that because the plaintiff did not say “I have pain in my back” during the interview, he therefore did not have a chronic pain injury in his back.

[70]         I found Dr. McPherson’s logic to be at best simplistic and superficial. At worst it reveals that Dr. McPherson holds such a degree of cynicism regarding patients advancing claims against ICBC that he is not independent and his evidence is unreliable.

[71]         When it was suggested to Dr. McPherson he may not have written down exactly what the patient said he was absolutely confident that he was always a perfect recorder of what patients said to him. This is so despite the brevity of his report. A reasonable, educated person would allow for the possibility of mistakes being made in transcribing a patient’s comments, but Dr. McPherson did not do so, illustrating his close-minded disposition.

[72]         It seems obvious to me that when describing his limitations to Dr. McPherson, the plaintiff was intending to convey to Dr. McPherson that the accident caused these limitations because of the pain he suffers, as he explained in court. The fact that he might not have spelled out to Dr. McPherson in a more explanatory way that ”the accident caused me to have pain in my back which limits me from these activities” is not an admission that proves that his injuries do not cause him pain in his back.

[73]         Also, Dr. McPherson gave significant weight to the fact that the plaintiff exhibits a full range of motion. He seemed unwilling to accept that a person can have a full range of motion but also suffer from pain. Dr. Lepard, the plaintiff’s family doctor until she retired in 2011, said that it is not uncommon for a patient with an injury to have full range of motion but also to have pain. I prefer Dr. Lepard’s evidence on this point, as it is consistent with the plaintiff’s evidence that he has pain on prolonged activity on a recurring basis.

[74]         Dr. Lepard did agree that the plaintiff’s range of motion suggested that his whiplash injury was not as serious as Category 3 and 4, but was more in the Category 2 range, of being in the medium to low end of whiplash soft tissue injuries.

[75]         Dr. McPherson concluded that there was no “objective” evidence of a disability relating to the motor vehicle accident. This is not a helpful opinion in relation to the injuries in this case. Pain may not something that can be measured objectively with a scientific instrument, but it can still be disabling.

[76]         I note that even the defendant concedes on the whole of the evidence that the plaintiff has suffered a soft tissue injury which will cause some future loss of earning capacity.

[77]         I do not find Dr. McPherson’s evidence to be of any value in deciding the issues in this case.


A Mind Too “Ravaged By Disease” To Be Negligent?

December 22nd, 2015

Although the concept of intent plays a far more central role in criminal law than in personal injury lawsuits, the lack of ability to form intent can indeed take away culpability for otherwise seemingly negligent actions.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry discussing this.

In today’s case (SH v. AM) the Plaintiff was injured in a vehicle collision.  The Defendant denied fault in part arguing that at the time of the collision he “was suffering a psychotic episode” and was not responsible.

The Plaintiff sought to have this defense struck on an application on a point of law arguing the defense could not succeed but the Court refused to strike it finding the evidence needed to be weighed at a full trial.  In addressing the merits of such a potential defense in a BC personal injury lawsuit Madam Justice Burke provided the following reasons:

[8]             The plaintiff relies in particular on Wenden v. Trikha, 1993 CarswellAlta 528 at para. 17 (C.A.), leave to appeal ref’d [1993] S.C.C.A. No. 126, as follows:

[17]      In order to succeed, the patient would have to prove a sudden reversal of facts. First, he would have to prove that when he was well enough mentally that he could be liable for negligence, he had no reason to foresee any danger from his possessing an automobile or car keys or not taking his medication. Then he would have to prove a sudden change in condition, his suddenly becoming too insane to be liable for negligence, and that that condition continued without let-up until the time of the collision. If he did not prove the first item, then he would be negligent in having let himself slip into Insanity while having access to an automobile (or vice versa). If he did not prove the second item, then the defence of insanity would simply be irrelevant. It does not seem to us that either was proved here. [Emphasis added.]

16]         The parties also essentially agree the legal analysis for the determination of whether a person with a mental illness is liable for negligence includes whether the act was a conscious act of the defendant and whether the onset of the incapacity to control his or her actions was foreseeable and reasonable steps could have been taken to prevent it: Hagg; Fiala…

[23]         A review of the judgment in Hagg is helpful in understanding what is needed to come to a conclusion in this matter. At 390-91 of that judgment, while not deciding the matter, the BC Court of Appeal states:

I find it unnecessary to consider whether, as seems to be indicated in Roach, J.A.’s judgment in Buckley & T.T.C. v. Smith Transport Ltd., a driver whose mind is so ravaged by disease that he does not understand the duty which rests upon him to take care, as distinct from one who is prevented from discharging that duty, cannot be held liable for his acts and omissions in the course of his driving. I reserve this for some future occasion. I am unable to find evidence establishing, directly or by reasonable inference, that the appellant in the case at bar did not understand the duty to take care which rested upon him. Likewise, I reserve until the occasion arises the question whether insanity which does not result in impairment of faculties and judgment to the full extent I have mentioned will provide a defence to an action for negligence.

[24]         The question I am in essence being asked to decide is whether the defendant in this case had “a mind so ravaged by disease that he does not understand the duty which rests upon him to take care, as distinct from one who is prevented from discharging that duty.” In the former, the individual cannot be held liable for his acts and omissions in the course of driving.

[25]         It is apparent to me that in order for a conclusion to be reached on this point, I must weigh the evidence. The plaintiff argues the onset of the psychiatric condition was foreseeable and reasonable steps could have been taken to prevent it. The plaintiff asks me to reach that conclusion after reviewing the discovery evidence and contrasting it with the psychiatric opinions. The plaintiff also points to what she maintains is inconsistencies, in particular in Dr. Cheng’s report, on the question of whether the defendant had periods of lucidity where he knew or should have known that he should have taken steps to ensure his psychotic state did not happen or that he should not get in the car, as per the situation in Wenden. He also contrasts portions of Dr. Levin’s report on the basis of his conclusion on this point and refers to a time subsequent to the accident.

[26]         All of this makes clear I am being asked to weigh the evidence in order to come to a conclusion as to whether the defendant understood the duty that rested upon him to take care. In my view, that is not something that can be done under R. 9-4. This Rule is reserved for the determination of points of law without the need to weigh evidence.

[27]         I note further the inconsistencies that are pointed to could well be explained by testimony of the experts. The discovery evidence in isolation is difficult to reconcile with the differences between the parties. It is very difficult in these circumstances to come to the conclusion on the evidence on this basis. In my view, this is more appropriately left to the trial judge to determine.

[28]         As noted in Larsen, R. 9-4 can be used where the point of law arises on the pleadings and can be determined without hearing evidence. While the plaintiff says the facts in the pleadings are not in dispute, the reality is a conclusion on a crucial point in this litigation can only be reached by weighing the evidence provided in the affidavit material. This is not consistent with the comments in Larsenand Golden Gate Seafood.

[29]         While I am sympathetic to the concern of costs of a 10-day trial raised by the parties, I also note this is an important issue with far-reaching consequences. Jurisprudence has been cited to me from Alberta and other jurisdictions. It has not, however, been definitively dealt with in the B.C. courts. I also note it may be that the parties are able to reach agreements on the evidence such that only the points of contention are proffered for testing in a trial setting.

[30]         The application is therefore dismissed.


BC Supreme Court Criticizes Defense Doctor Who “Crosses the Line”

December 21st, 2015

In what is not the first time, a psychiatrist who is frequently retained in the defense of personal injury lawsuits was criticized by the BC Supreme Court for crossing the line from impartial opinion to prohibited ‘advocacy‘.

In today’s case (Bricker v. Danyk) the Plaintiff was involved in a 2011 collision and sustained physical injuries with psychological repercussions.  The Defense hired a doctor who minimized the connection of the Plaintiff’s psychological difficulties to the collision.  In rejecting this evidence and finding the defense doctor ‘crosses the line‘ Mr. Justice Skolrood provided the following critical comments –

[118]     It is useful at this point to address Ms. Bricker’s submission that the court should place little weight on Dr. Levin’s opinion which she submits constitutes advocacy rather than expert opinion. She points in particular to numerous places in Dr. Levin’s report where he appears to editorialize about answers given by Ms. Bricker during his interview of her in a manner that suggests a pre-determined outcome.

[119]     Much of the editorializing complained of by Ms. Bricker is directed at questioning whether Ms. Bricker’s complaints are sufficiently serious to meet the diagnostic criteria for PTSD and Major Depressive Disorder and, in this regard, Dr. Levin raises valid issues. However, I agree with Ms. Bricker that the overall focus and tenor of his report, as well as his evidence at trial, crosses the line of what is proper for an expert witness and strays into advocacy.

[120]     Without going into great detail about his evidence, some excerpts from his report are illustrative:

a)    at p. 4 Dr. Levin suggests that Ms. Bricker has not reported any neurobehavioral or neurocognitive symptoms that “would even remotely be suggestive of any underlying concussive brain injury”;

b)    at p. 4 of Appendix A, where he records the results of his interview of Ms. Bricker, Dr. Levin refers to the “significant discrepancy” between her report to him and chiropractic records of past treatments;

c)     at p. 5 of Appendix A, he editorializes that the fact that Ms. Bricker enjoys watching National Geographic television programs involving sharks is inconsistent with someone complaining of anxiety; and

d)    at p. 5 of Appendix A, he again editorializes that Ms. Bricker’s description of her range of interests is “clearly not suggestive” of someone suffering from a major depressive disorder or PTSD.

[121]     While these are but a few examples, they reflect the argumentative nature of his report. I agree with Ms. Bricker that Dr. Levin’s evidence in its entirety lacks the degree of objectivity expected of an expert witness. For that reason, I attach no weight to his report.


“Clearly Established Under Canadian Law” That the Low Velocity Impact Defense Misses the Mark

December 18th, 2015

Although the “Low Velocity Impact” defense seems to be raised less and less, occasionally it still rears its head in personal injury trials.

Today, reasons for judgement were released by the BC Supreme Court, New Westminster Registry, finding that this defense misses the mark.

In today’s case (Duda v. Sekhon) the Plaintiff was injured in two relatively minor collisions.  The Court ultimately awarded the Plaintiff damages for his injuries but prior to doing so made the following pointed comments about the merits of the LVI Defence –

[62]         Counsel for the defendants spent considerable time and effort making the submission that the two accidents did not cause significant motor vehicle damage. However, it has been clearly established in Canadian law that minimal motor vehicle damage is not “the yardstick by which to measure the extent of the injuries suffered by the plaintiff”. Mr. Justice Macaulay stated in Lubick v. Mei and another, 2008 BCSC 555 at para. 5:

The Courts have long debunked as myth the suggestion that low impact can be directly correlated with lack of compensable injury. In Gordon v. Palmer, [1993] B.C.J. No. 474 (S.C.), Thackray J., as he then was, made the following comments that are still apposite today:

I do not subscribe to the view that if there is no motor vehicle damage then there is no injury. This is a philosophy that the Insurance Corporation of British Columbia may follow, but it has no application in court. It is not a legal principle of which I am aware and I have never heard it endorsed as a medical principle.

He goes on to point out that the presence and extent of injuries are determined on the evidence, not with “extraneous philosophies that some would impose on the judicial process”. In particular, he noted that there was no evidence to substantiate the defence theory in the case before him. Similarly, there is no evidence to substantiate the defence contention that Lubick could not have sustained any injury here because the vehicle impact was slight.


Personal Injury Lawyers Cannot “Stack” Contingency Fees After Being Fired

December 17th, 2015

Important reasons for judgement were released today  by the BC Supreme Court, Vancouver Registry, confirming lawyers working on a contingency basis cannot ‘stack’ contingency fees after being discharged.

In today’s case (Holness Law Group Professional Law Corporation v. Mann) the client was injured in 4 vehicle collisions and retained a lawfirm to advance her claims.  Before conclusion she discharged her initial lawyer and hired new counsel.  The claims were subsequently settled and a contingency fee of 30% was charged.  The client took no issue with the reasonableness of the global fee but a disagreement arose as to how much the first lawyer was entitled to.  That lawyer argued that

they are not bound by another firm’s contingency fee agreement and that they are entitled to their contractual contingency fee regardless of what may be charged by a subsequent law firm.”

The court disagreed noting the firms cannot ‘stack‘ contingency fees and the single global fee must be split.  In reaching this decision District Registrar Nielsen provided the following reasons:

[20]         If the position of HLG was given effect, it would result in the stacking of contingency fees, and conceivably give rise to a situation where combined contingency fees could consume an entire award of damages. If enough lawyers were dismissed and others retained along the way to the conclusion of the case, the combined contingencies could conceivably amount to100% of any damages awarded. This would be an absurd result and contrary to s. 66 of the LPA.

[23]         The Law Society Rules set a maximum fee allowable under a contingency fee agreement and provides that the total fee payable by the client must be reasonable in the circumstances and not exceed 33 1/3% of the amounts recovered in a personal injury claim arising out of the use of a motor vehicle.

[24]         Pursuant to s. 66(6) and (7) of the LPA, a fee in excess of 33 1/3% must be approved by the court, before entering into the contingency fee agreement, otherwise it is void pursuant to s. 66(4) of the LPA.

[25]         If contingency fees were stackable, from firm to firm, not only would the contingency fees potentially exceed the Law Society’s maximum in short order, this would ultimately exploit clients and dissuade them from dismissing a lawyer who the client may no longer wish to represent them. Despite losing confidence in their counsel, a client could be forced to continue to retain that lawyer for fear of escalating fees. This would not be in accord with justice and fair play.

[33]         In the present case, both law firms participated in the outcome of the same matter, with the same client. Both firms were engaged on a contingency fee basis. Both firms agree their fee would be calculated on a 30% contingency fee basis, given the stage at which the case was settled.

[34]         This is a case where justice and fair play require a single fee to be apportioned between the two firms on a quantum meruit basis, taking into account all the circumstances and factors expressed by s. 71(4) of theLPA. That fee cannot exceed the 33 1/3% limit set by the benchers pursuant to s. 66(2) of the LPA.


$45,000 Non-Pecuniary Assessment For Lingering “Moderate” Soft Tissue Injuries

December 16th, 2015

Adding to this site’s archived case summaries of soft tissue injury damage awards, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for moderate soft tissue injuries.

In today’s case (Wong v. Toor) the Plaintiff was involved in a 2013 rear end collision.  He suffered a moderate soft tissue injury to his neck which was ongoing at the time of trial and posed some lingering difficulties which were expected to continue.  In assessing non-pecuniary damages at $45,000 Madam Justice Young provided the following reasons:

[57]         I will analyse the factors before arriving at my conclusion:

(a)            The plaintiff was 69 years of age at the time of the accident and 71 at the time of trial.

(b)            He sustained a moderate soft tissue injury to the neck.

(c)            The pain has ranged between the mild to moderate range and I find that the residual effect of the accident is in the mild/intermittent range but is likely to be permanent.

(d)            There are intermittent periods of disability where the plaintiff only gets relief from lying down and resting.  He might get more effective relief if he were to take analgesics or pursue more acupuncture.

(e)            I find that Mr. Wong has residual discomfort with driving.  It is not completely debilitating.  He is able to drive but he still feels some ill ease at stop lights.

(f)              There has been some loss of enjoyment of life.  Mr. Wong enjoyed excellent health before the accident and now he suffers intermittently from neck pain that never goes away.  He has curtailed certain leisure activities that he used to enjoy and I find that the pain and fear of driving contributed to his decision to retire.

[58]         Given those findings, Mr. Wong is entitled to $45,000 for general damages.


BC Court of Appeal Confirms Negligence for Passing Vehicle Blanketing Others in Snow

December 16th, 2015

Reasons for judgement were released today by the BC Court of Appeal confirming that a motorist can be negligent by passing others in poor conditions therby blanketing the other vehicles in snow.

In today’s case (Link v. ICBC) the Plaintiff was travelling in winter driving conditions when “the front windshield of his vehicle (was blanketed with snow by a passing sport utility vehicle” following which the Plaintiff lost visibility, tapped his brakes, and lost control of his vehicle resulting in a single vehicle collision.

At trial the Defendant vehicle was found at fault for the collision.  ICBC’s appeal was dismissed with the BC Court of Appeal finding negligence can exist in these circumstances.  The Court provided the following reasons:

[12]        It appears to me it was clearly open to the judge to find that the speed of the SUV was excessive for the conditions. The plaintiff was travelling 40 to 60 kilometers per hour and, on his examination for discovery (the whole transcript of which ICBC put in evidence), he said the SUV “roared right by” and suggested it was twice as fast as he was “putting along”. He agreed that could have been 100 kilometers an hour, although he said he could not speculate because it all happened so fast. There was, of course, no evidence to the contrary and common sense dictates that, as any driver would know, the greater the speed of a vehicle the greater the amount of snow it may throw up when changing lanes on a snow-covered highway. It simply could not be said that if the SUV had passed more slowly and had not cut in front of the Jaguar as quickly as it did, the windshield of the Jaguar would have been completely obscured as it was. The speed of the SUV was excessive for the conditions because of the effect its speed had.

[13]        In my view, no error has been shown in the judge’s concluding that, in what he described as the “treacherous” conditions prevailing, the driver of the SUV had not met the standard of care required of him in the circumstances. That vehicle was required to be operated with due care and attention and with reasonable consideration for the plaintiff who was driving the Jaguar at a slow speed in the right-hand land. If undertaken, the passing and change of lanes was required to be done safely without adversely affecting the travel of that vehicle. It was open to the judge to conclude as he did the driver of the SUV knew or ought to have known the risk that was inherent in his operating that vehicle as he did. Clearly the standard of care was breached.

[14]        It follows that I would dismiss the appeal.


No Costs Consequences With Formal Offer Bested by “Almost Negligible Difference”

December 15th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, refusing to award discretionary costs where a defence formal settlement offer was not beat by a plaintiff by an “almost negligible difference“.

In today’s case (Zhao v. Yu) the Plaintiff was injured in a collision and sued for damages.  Prior to trial the Defendant issued a formal settlement offer of $93,500.  The Plaintiff declined and proceeded to trial where damages of $91,700 were assessed. The Defendant asked for trial costs but the Court dismissed the application finding it was not unreasonable for the plaintiff to reject the offer and proceed to trial.  In reaching this decision Madam Justice Baker provided the following reasons:

[13]         While in hindsight the Defendant’s Offer was indeed reasonable, that is not the test.  Rule  9-1(5) and 9-1(6) were not intended, in my view, to punish parties merely because the party’s assessment of the value of the claim proves incorrect, unless that assessment was based on irrelevant considerations; a clearly inadequate review of the available evidence and applicable authorities, or was, in view of the facts known at the time, unreasonable.

[14]         Here, the parties differed, as did some of the expert witnesses, about the Plaintiff’s prognosis; and the extent to which the injuries resulting from the accident, would affect his capacity to earn income in future.  While the Plaintiff did not succeed on this issue, I cannot say it was unreasonable for him to pursue the claim; or to believe that there was some prospect of success, even if there was a risk he would not succeed.  I note also the Plaintiff’s submission, which I consider persuasive, that even a slightly higher award for special costs or non-pecuniary damages would have resulted in an awarded that exceeded the Defendant’s Offer.

[15]         Having weighed the relevant factors, I am satisfied that this is a case in which I should award the Plaintiff the costs of the entire action, including all steps taken after the date of delivery of the Defendant’s offer, notwithstanding the Defendant’s Offer.


$3 Million “Diminished Capacity” Award For Brain Injured Teen Who Planned on Being Engineer

December 15th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages of $3 million dollars for a Plaintiff who sustained a brain injury in a vehicle collision.

In today’s case (Grassick v. Swansburg) the Plaintiff, who was 16 at the time, was a pedestrian and struck by a vehicle driven by the Defendant.  The Plaintiff suffered a moderate to severe brain injury which impacted his cognition and was expected to have permanent repercussions.

The Court found that the Plaintiff was an ambitious and hard working young man who, but for the brain injury, would have had a successful career in his anticipated profession as a civil engineer.  In assessing damages of $3 million for diminished earning capacity Madam Justice Loo provided the following reasons:

[197]     I do not accept the defendant’s argument that Stirling’s part-time employment as a server in a retirement home and his work during his co-op placements demonstrate that he has an ability to do well in the workplace. Quite the opposite. His work at Maple Reinders is a forecast of the difficulties he will have with maintaining employment.

[198]     While Stirling suffers only mild cognitive impairments, they are potent for him. His cognitive impairments directly impact his drive to excel. Perhaps if he was content to be less than average at everything he does, it would not matter so much. But he was not, and is not content to be being average.

[199]     Predicting what his future earning capacity would have been, but for the accident, is a complex task and the potential range of his earnings is broad. The plaintiff relies on the expert report of Darren W. Benning, economist, for the estimated lump sum present value of lifetime earnings of a British Columbia male civil engineer. The defendant did not require Mr. Benning to attend for cross-examination.

[200]     There is a range of possibilities for Stirling; from being, for lack of a better term, an average or 50th percentile engineer earning from May 1, 2016 when he is expected to graduate, through to age 65. Based on the present value of life-time earnings, $2,399,956. However, that figure – as do all of the figures provided by Mr. Benning – includes 24.2 percent reduction for the average labour market contingencies: unemployment, part-time work and part-year work. Without those contingencies, the figure for the 50th percentile engineer is $3,166,172.

[201]     Mr. Benning has also provided figures for engineering managers. With the labour market contingencies, the figures are $3,149,822 for the average engineering manager, and $3,868,882, and $4,880,954 for the 80th and 90th percentiles, respectively. Without the labour contingencies, the figures are $4,155,437, $5,104,065 and $6,439,253.

[202]     I conclude that there is a real and substantial possibility that Stirling would have worked for a number of years as an “average” engineer, before moving up the ranks of engineers. He would have worked full time, and his professional career would be an important part of his life.  He would have succeeded in becoming one of the higher paid engineers, a well above average engineer, or an upper management engineer.

[203]     Stirling may, like many professionals, work past the age of 65. On the other hand, he may, like other professionals, decide to retire early and do other things. However, given Stirling before the accident, and now, I do not think he is the kind of person who would choose to work part year or part time.

[204]     The plaintiff seeks damages for loss earning capacity in the sum of $3 million. I find this sum to be both reasonable to him and to the defendant. I award $3 million for loss of future earning capacity.