Barta v. DaSilva,


2014 BCSC 2113

Date: 20141110

Docket: M092738



Alex Barta



Joao F. DaSilva


The Honourable Mr. Justice Affleck

Reasons for Judgment

Counsel for the Plaintiff:

D.C. Creighton
N. Aule (A/S)

Counsel for the Defendant:

J.W. Joudrey
C.V. Morcom

Place and Date of Trial:

Vancouver, B.C.

June 2-6, 9-13, and
16-20, 2014

Place and Date of Judgment:

Vancouver, B.C.

November 10, 2014



These are reasons for judgment assessing damages for injuries the
plaintiff suffered in a car accident.  Liability is not in issue.  The
plaintiff alleges headaches and soft tissue injuries to his left shoulder, neck,
and back.  His most serious complaint is of a mild traumatic brain injury which
he asserts has destroyed his capacity to earn an income, trading securities on
his own account, and has caused him to lose the capital he had accumulated and
invested in the stock market.  His lost income from the date of the accident
until trial is alleged to be in excess of $1,000,000, and he further alleges
that in the future he will lose in excess of $850,000.  The loss of capital is
said to be more than $4,000,000.

On the other hand, the defendant, while accepting there were soft tissue
injuries to the plaintiff’s neck and back as well as headaches, says the
accident has not been shown to have caused either the shoulder injury, and most
importantly, submits there has been no brain injury.  The defendant concedes
there may have been a mild concussion, but says it was one with no lasting
consequences.  The defendant submits the stock market losses are explained by
factors other than the accident.

the accident and its immediate impact on the plaintiff’s condition

The accident occurred on July 29, 2007 when the vehicle the plaintiff
was driving collided with another vehicle.  The plaintiff was driving east on
12th Avenue in Vancouver when his vehicle struck that of the defendant who had
emerged quickly to the plaintiff’s right from Vine Street without giving the
plaintiff an opportunity to brake in time.

The right front of the plaintiff’s vehicle struck the left front of the defendant’s
vehicle.  Both vehicles were heavily damaged.  The plaintiff’s expert evidence
is that his vehicle sustained a “collision severity” of 20 to 25 kilometers per
hour which is the measurement of change in speed from impact until the
plaintiff’s vehicle came to a stop.  It is the equivalent of hitting a wall at
that speed.  The plaintiff was wearing a seatbelt and the vehicle airbags

The plaintiff believes he was unconscious “for a short time” immediately
after the accident.  He kept a journal and noted that he was “passed out 20-30
seconds”.  His first memory immediately following the accident was of a woman
banging on his window and when he opened his eyes his head was resting on the
steering wheel or airbag.  He recalls the door was jammed shut and he helped
the woman to push it open and she then helped him out of the vehicle and onto
the curb.  He felt dizzy and confused and had a “horrific headache”.  His neck
hurt and his left elbow was bleeding.  He remembered the woman wrote her name
and address on a piece of paper and left it with him.  He recalls a fire truck
and ambulance arriving within approximately 10 minutes.

The plaintiff spoke to the ambulance attendants and told them that he
did not want to go to the hospital.  He recalls speaking to another woman who
he believes was the wife of the other driver who apologized for the accident
and asked if he was okay.  The plaintiff was driven from the accident scene in
a tow truck to the impound yard, and took a taxi home.

The ambulance crew report indicates a call was received by them at 17:00
and the crew was “at the scene” almost immediately and was then “clear” by
17:25.  The plaintiff’s Glasgow Coma Scale was recorded as 15 which recognizes
full alertness.

the evidence of dr. regan

The earliest opinion from a medical expert introduced at the trial is
dated approximately a year after the accident. The report was written by
Dr. W. D. Regan, an orthopaedic surgeon, to the plaintiff’s counsel on
July 11, 2008 following his examination of the plaintiff that day.  His report
indicates diffuse mid and upper cervical spine pain without muscle spasms and
with no significant limitation of movement.  The plaintiff’s right shoulder had
full and pain free movement.  By contrast his left shoulder movement was
limited “with a great deal of pain”.  However, no abnormality had been noted in
an x-ray of the left shoulder done on January 31, 2008.  Dr. Regan
diagnosed adhesive capsulitis with posttraumatic pain in the left shoulder, a
condition known as “frozen shoulder”.  The plaintiff reported to Dr. Regan
that he could no longer play sports such as tennis and badminton in which he
had been active prior to the accident.

In cross-examination Dr. Regan agreed that the plaintiff’s left
shoulder condition could be explained if the plaintiff’s left arm had previously
been twisted behind his back with sufficient force to cause him to fall.  Dr. Regan
was unable to distinguish between the effects of such an event, causing damage
to the plaintiff’s left shoulder, and the effects of the possible forces
applied to the plaintiff’s left shoulder in the accident of July 29, 2007.  Dr. Regan
testified that the plaintiff did not tell him about an assault he had experienced
in April 2008 when he had his left arm forcefully twisted and he fell to the

the evidence of dr. ancill

The plaintiff led the expert evidence of Dr. Raymond Ancill, a psychiatrist
with a special interest in trauma.  Dr. Ancill interviewed the plaintiff
and his wife in January 2011.  He also treated the plaintiff.  In a letter of
opinion of February 22, 2011, (the “First Letter”) he indicated he found the
plaintiff to be a “reasonable historian”.  He concluded the plaintiff had
“likely suffered a mild concussion in the accident”.  The diagnosis was based in
part on a “period of altered consciousness or even loss of consciousness”
following the accident.  Dr. Ancill accepted that the plaintiff’s immediate
“post-accident memory appeared generally intact” but he had felt “dizzy,
confused and unsteady”.  Dr. Ancill referred to persisting symptoms which
he opined “indicate a chronic post-concussion syndrome”.  The symptoms were
“headaches, fatigue, dizziness, poor balance, sensitivity to noise, feeling
slowed down physically, feeling in a mental fog, difficulty concentrating,
difficulty remembering, being more emotional, being irritable, feeling nervous,
having pain and word-finding problems”.

Dr. Ancill observed that the plaintiff reported 13 out of 20 items
on a “post-concussion symptom scale” when he saw him in January 2011, which was
42 months after the accident.  He acknowledged the plaintiff’s symptoms could
be “affected” by pain, depression, and anxiety.  Dr. Ancill wrote that the
plaintiff had a number of “indicators” for a poor outcome for a person
suffering from a chronic post-concussion syndrome.  Those indicators are an age
of over 40, dizziness, depression and anxiety, and while:

Mr. Barta meets the [Centre
for Disease Control] criteria … for having suffered a mild traumatic brain
injury (MTBI), resulting from the accident in question – given his pain,
depression and anxiety, it is not possible at this time to separate out those
symptoms that might be due to the residual effects of a brain trauma and I
would reserve my opinion at this time.

As I understand the above sentence, Dr. Ancill
meant that in February 2011, when he wrote his opinion he could not say with
reasonable certainty whether the plaintiff’s symptoms were caused by a MTBI or
by pain, depression, and anxiety or by a mix of all of those factors.

Elsewhere in the First Letter, Dr. Ancill diagnosed the plaintiff
with chronic pain, a “somatoform disorder”, which cannot be explained fully by
reference to physical symptoms or signs.  It is not a well understood disorder
and “is thought to reflect underlying personality styles and characteristics”. 
In the First Letter, Dr. Ancill concluded the plaintiff’s overall
prognosis was “guarded at best” and was likely to be poor, given the time
elapsed since the accident with continuing symptoms.  In a letter dated May
2012 (the “Second Letter”), Dr. Ancill reported he saw the plaintiff again in
August 2011 when he “continued to present with several somatic complaints”
which included headaches, memory problems, poor judgment and poor impulse

In a letter dated August 15, 2013 to a Dr. Corey, who did not
testify, Dr. Ancill commented that the plaintiff “remains hard to pin down
about his clinical history and is disorganized and scattered as he has always
presented to me”.  Dr. Ancill had seen the plaintiff that day.

In a further letter of opinion dated March 4, 2014 (the “Third Letter”),
Dr. Ancill referred to the plaintiff’s “prolonged back pain since the
accident”.  Unlike the First Letter, Dr. Ancill wrote that the plaintiff
“remained a terrible historian”: he had many speech problems, he had difficulty
driving his car, would watch television programs without realizing he had seen
them before, and had gained 30 pounds in weight.  Dr. Ancill diagnosed a
mild traumatic brain injury.  But the plaintiff:

…did not present as suffering
from a Major Depression[.] His anxiety was in response to stress but could not
account for his wide range of cognitive and functional changes that emerged
after the MVA of July 2007.  I agree that an [MTBI] is only one
accident-related factor and that his pain and anxiety also contribute to his
current cognitive and functional complaints.

In Dr. Ancill’s last letter of opinion of May 1, 2014 (the “Fourth
Letter”), he refers to the Third Letter and goes on to say that:

This [the reference to
depression] is not fully accurate.  Mr. Barta did initially present to me with
what I had conceptualized as a moderate depression and although antidepressants
were tried, he did not tolerate these.  I was less concerned with depression as
a significant factor over the time I was treating Mr. Barta and saw his
agitation and other behaviors as more related to a brain injury.  The last time
I assessed Mr. Barta (August 15, 2013), I did not think he was suffering from
depression.  His anxiety appeared to be controlled by medication.

At trial Dr. Ancill agreed that “latterly” he believed
depression was at least part of the explanation for the plaintiff’s symptoms.

In cross-examination Dr. Ancill was shown a clinical record of
Dr. Dai Chow, who was the plaintiff’s family doctor at the time of the
accident.  Dr. Chow’s note reads “(age 20) obsessive to wash hand 100 x/day
worsen since age 40”.  The plaintiff agreed he very frequently washed his hands
although he denied that he had told Dr. Chow it was 100 times a day.  Dr. Chow
did not testify.

The explanation the plaintiff gives for his frequent hand washing is
that he grew up in Macao at a time when infectious disease was common.  The
plaintiff’s family was affected by this, and his father taught him to wash
frequently to avoid infections.  Other witnesses testified to the plaintiff’s
frequent hand washing and there was additional evidence about the plaintiff’s
anxious state before the accident, of which frequent hand washing may be

When presented with Dr. Chow’s note, Dr. Ancill agreed the
plaintiff may have an obsessive component to his personality.  He explained it
may have worsened since the plaintiff reached the age of 40, because of stress
caused by anxiety which the plaintiff was “self-treating”.

The plaintiff explained that he prefers to be “extra clean” and adopts
practices to maintain this.  These include placing newspapers on chairs before
sitting on them, because he fears that people may have put their feet on them, placing
his coat in a plastic bag if he has to leave it in a public place, and taking
his own plastic cutlery and “wet naps” for cleaning if he is dining out.  Further
he uses a napkin, or something similar, to avoid placing his hand on a door
knob in public places.

In cross-examination Dr. Ancill was shown a physiotherapist’s note
of April 10, 2008 pertaining to the plaintiff.  The note stated that the
plaintiff informed his physiotherapist that “last Fri – Assaulted & rob, fell
& hit head, arm twisted…”  The plaintiff testified about this incident.  He
explained that while shopping with his wife in a clothing store, he left to get
his bank card, and a security guard approached him and said something about
“damaging a jacket”.  Together they returned to the store and the plaintiff was
shown a jacket with a missing button, which he denied causing.  The next Monday
the plaintiff returned to the store and informed the security guard he intended
to complain to the manager.  The plaintiff was then assaulted in the manner he
described to his physiotherapist.  The reference to ‘Friday’ in the
physiotherapist’s notes about the nature of the assault is confirmed by the
plaintiff, but may be incorrect.  In any event, nothing in my reasons turns on
the precise date in April 2008 when the assault occurred.

Following the assault the plaintiff made a “human rights” complaint.  He
testified he was offered “up to $24,000” which he refused to accept and
thereafter the proceedings went “badly”.  The plaintiff did not describe the assault
to Dr. Ancill who first learned of it during the course of his cross-examination.

In cross-examination the plaintiff was shown a letter to the plaintiff’s
counsel sent by Dr. Peter Joy, a registered psychologist.  Dr. Joy
did not testify.  Dr. Joy’s letter includes the following:

Mr. Barta describes as well, a
Sears store incident on April 4, 2008 when a security guard twisted his arm
behind his back and threw him to the floor.  Reportedly, the security guard
thought that he was ripping a button off a coat, later shown not to be the
case.  He states that he was injured in this incident – it appears as if this
history is also recorded in the clinical records of Central Park Physiotherapy,
April 10, 2008.  Mr. Barta reports that his symptoms returned to baseline, that
is, to the way they had been, in three to four weeks following April 4, 2008. 
I observe that a note from Central Park Physiotherapy, April 10, 2008,
characterizes injuries as “mainly a flare-up”.  Absent additional information,
I assume that this is so.

At the trial the plaintiff characterized the assault as the “worst event”
in his life, which he thought about every day, and likened it to “torture”.  Dr. Ancill
candidly acknowledged he “missed” the reference to the assault in the
physiotherapist’s records.

I have serious reservations about Dr. Ancill’s evidence generally. 
In my view he was not adequately informed of the plaintiff’s history.  He
agreed that a diagnosis can be rendered more difficult with inconsistent reporting
of a plaintiff’s history and the absence of relevant information. 
Dr. Ancill’s conclusions are heavily dependent on an accurate history
which he agreed he did not have.  I accept that Dr. Ancill’s opinions are
sincerely held, but are unreliable given the absence of an accurate history.

The evidence of dr. armstrong

The plaintiff led the evidence of Dr. John Armstrong. 
Dr. Armstrong is a general practitioner without specialist qualifications,
but who has training in neuroscience and a particular interest in the
management of chronic pain.

Dr. Armstrong’s evidence was directed to the question of whether or
not the plaintiff suffered a mild traumatic brain injury in the accident.  In
the absence of objective signs of a brain injury attention to the details of
the plaintiff’s life, both before and after the accident, and the circumstances
surrounding the accident itself are necessary to reach a reasonable answer to
the question of causation of the plaintiff’s symptoms.  In my opinion
Dr. Armstrong displayed insufficient curiosity about matters of
importance.  For example, in 2011 the plaintiff and his wife were sued by a Mr. Palkovics
regarding their agreement to purchase real property from Mr. Palkovics for
a price in excess of $4,000,000.  A trial was conducted in May and June of 2011
and judgment pronounced on March 29, 2012 by which, inter alia, the plaintiff
and his wife forfeited several hundred thousand dollars.  Dr. Armstrong
comments on earlier litigation beginning in 2002 during which the plaintiff
experienced approximately six months of insomnia and anxiety “related to some
litigation”.  Notwithstanding Dr. Armstrong’s knowledge of that earlier
litigation he appears not to have considered or addressed the much more
significant litigation involving Mr. Palkovics as a possible explanation
for the plaintiff’s state of anxiety.

Further, Dr. Armstrong had been provided with a letter of opinion dated
February 11, 2011 of Dr. Jeanette Smith, a forensic psychiatrist, who
wrote the following under the heading Aetiology:

Mr. Barta’s obsessive-compulsive disorder and specific
phobias are longstanding conditions that pre-date the motor vehicle accident by
decades.  He also has a history of anxiety and insomnia back in 2002/03 when
involved in a stressful court case and required sleeping pills and anti-anxiety
medication.  A history of anxiety and phobias was also noted in January 2005.

Since the accident occurred in July 2007 Mr. Barta has been
dealing with the considerable stress of four lawsuits, one of which has since
settled and only one of which is related to the index MVA.  He has also had to
deal with the financial crisis of 2008, which wiped out a considerable amount
of his savings.  For someone like Mr. Barta who spent the past [three] decades
accumulating his wealth this would likely have been very stressful,
particularly as he had just purchased a 3-acre waterfront property in West

It is possible that the accident
played a very small role in fueling Mr. Barta’s anxiety by adding yet one
more source of stress i.e. pain, into his life, but in my opinion it is far
more likely that the financial crash, the house move and the cumulative effects
of several lawsuits are the cause of his anxiety symptoms.

Dr. Armstrong did not comment on Dr. Smith’s opinion, nor did he apparently
make inquiry into the several events in the plaintiff’s life which
Dr. Smith considered important to explain the plaintiff’s symptoms and
behaviour following the accident.

The assault on the plaintiff is noted by Dr. Armstrong in a single
sentence which reads: “Apparently, he was assaulted in 2008 and 2010 with
transient flare-ups of his physical symptoms”.  This brief remark does not
address the possibility the plaintiff struck his head in the assault, which had
the potential to cause injury, and which Dr. Armstrong acknowledged in
cross-examination could have been an outcome.

Dr. Armstrong’s diagnosis is that the plaintiff displays features of post-concussion
syndrome and frontal lobe syndrome caused by trauma, namely the car accident. 
There is no physical evidence of the presence of this syndrome such as a
positive imaging scan.

Dr. Smith does not agree with Dr. Armstrong’s opinion and
observes that frontal lobe syndrome occurs only in cases of relatively severe
brain injury.  That opinion is shared by Dr. Alister Prout, whose opinions
I will return to later in these reasons.  Dr. Armstrong does not have
expertise in diagnosing frontal lobe syndrome.

I cannot rely on Dr. Armstrong’s diagnosis.  In my opinion he
endeavoured to make a case for his theory of frontal lobe damage.  In doing so
he ignored or minimized inconvenient facts which could have contradicted his

the evidence of dr. hearn

Dr. Simon Hearn is a registered psychologist who interviewed the
plaintiff and his wife.  He reviewed the reports of Dr. Peter Joy and Dr. Knazan,
neither of whom testified.  Dr. Hearn writes that “it is my convinced
impression that pre-accident, Mr. Barta was a robust, resilient person who
rarely experienced depression or anxiety”.

A great deal of evidence at trial was directed to the plaintiff’s
unusual pre-accident behaviour which may be indicative of an obsessive or
anxious personality.  In addition to what is described earlier in these reasons
about the plaintiff’s anxious personality, it is also noteworthy that since
1991 the plaintiff has instigated or been a defendant in about 20 legal
proceedings, some in this court (not including the present action), some in the
Provincial Court, and one before the B.C. Human Rights Tribunal.  I have no basis
to conclude the litigation he instigated was without merit but I do find that
the extent of the litigation reinforces my view that the plaintiff experienced
more than the usual quota of life’s stressors before the accident.  Dr. Hearn’s
“impression” that the plaintiff was a “robust, resilient person who rarely
experienced depression or anxiety” is not borne out by the evidence before me. 
Dr. Hearn’s opinion that “before the accident of July 2007, Mr. Barta
was a highly functioning, successful stock trader, who was very physically
active in sports, and who had a flourishing and happy social life with friends
and family” fails to recognize the frailties in the plaintiff’s personality and
psychological well-being that had become manifest well before the accident.

Dr. Hearn accepted in cross-examination that if the plaintiff
displayed symptoms which may be consistent with mild traumatic brain injury, but
which persisted for more than a few months, it was appropriate to consider
explanations other than a brain injury.  That view was accepted by others who
opined on the plaintiff’s condition, and it is a view I accept.

the evidence of dr. lanius

Dr. Ulrich Lanius is a registered psychologist who was qualified at
trial to provide expert evidence as a neuropsychologist.  Dr. Lanius
acknowledged that because of time constraints he had been unable to perform a
full neuropsychological assessment of the plaintiff.

Dr. Lanius assessed the plaintiff on September 27, 2011, which was approximately
four years after the accident.  His interview and testing occupied about two
hours which he described as a “screening” for cognitive defects.  A full
clinical interview and testing to measure those defects would normally take 8
to 11 hours.

Dr. Lanius agreed that self-reporting is inherently unreliable,
particularly in the context of litigation.  He described the plaintiff’s
self-reporting as “vague”.  He did not have an opportunity to conduct validity

My confidence in Dr. Lanius’ opinions has been adversely affected
by several factors.  The first is the plaintiff’s failure to tell Dr. Lanius
of important facts which would have influenced Dr. Lanius’ understanding
of the plaintiff’s circumstances.  One was the assault in April 2008 in which
the plaintiff reported he struck his head.  Another is that as a result of what
the plaintiff told him Dr. Lanius believed that the plaintiff had lost
money consistently on the stock market in the months immediately following the
accident.  Dr. Lanius attributed the plaintiff’s inability to trade
securities successfully to cognitive difficulties caused by the accident
injuries.  As I will describe more fully later in these reasons it is incorrect
that the plaintiff consistently lost money following the accident.  The last factor
which has diminished my confidence in Dr. Lanius’ opinions is that the plaintiff
told Dr. Lanius that he had been a C to C+ student while in school.  Dr. Lanius
concluded that the plaintiff was functioning within a normal intellectual range
prior to the accident.  The plaintiff’s permanent school record for grades 10
through 12 show a total of three C+ grades and six F grades.  The plaintiff
expressed surprise when shown his school record, and it may be that he believed
that he had done better academically than the record shows.  I make no finding
that the plaintiff was functioning below a normal intellectual level before the
accident.  Nevertheless, if Dr. Lanius had the opportunity to review the
permanent school record before he prepared his assessment of the plaintiff, he
may have taken a different view of the plaintiff’s cognitive functioning after
the accident.

I do not rely on Dr. Lanius’ opinions.  I do not fault
Dr. Lanius’ approach to the task he was asked to perform.  That being said,
Dr. Lanius had little time to perform it and had faulty or incomplete
information, and accordingly little weight can be afforded to his opinions.

the evidence of dr. prout

The defendant relies on the opinions of Dr. Alister Prout, a neurologist. 
Dr. Prout notes the post-accident symptoms of the plaintiff included sleep
disturbance, headaches, dizziness, as well as neck spasm, upper back, and
shoulder pain.  There was “no tinnitus, no numbness or tingling, no double
vision and no nausea” the presence of which might have suggested a post-concussion
syndrome.  Dr. Prout notes that in October 2007 the plaintiff was assessed
by a Dr. Hanam at which time the plaintiff complained of “being more
forgetful”.  Dr. Prout referenced the notes of Dr. Wagar who recorded
frequent headaches and low back pain in December 2007. Further, the plaintiff
had requested to see a Dr. Rees, “regarding cognitive difficulties and the
diagnosis was that of a moderate post-concussion syndrome”.  The plaintiff was subsequently
referred to Dr. Cameron, a neurologist, to whom the plaintiff apparently
complained of cognitive difficulties which included problems paying bills at
the bank, looking for keys while holding them, and attempting to enter a “wrong
vehicle”.  Dr. Hanam’s, Dr. Rees’, Dr. Wager’s, and Dr. Cameron’s
opinions are not in evidence.

Dr. Prout’s letter of opinion about the immediate effects of the
accident on the consciousness and memory of the plaintiff is consistent with
other evidence including that of the plaintiff himself.  I accept it as
reliable and will quote it extensively:

Mr. Barta provides a very clear history with respect to the
fact that he recalls the impact of the accident and recalls, immediately
post-accident, being aware of the air bag having deployed, a person arriving at
the window of the vehicle and him then exiting the vehicle with the assistance
of that person. The history obtained by me and by other examiners including
the treating neurologist indicates that Mr. Barta does not have retrograde
amnesia (loss of memory prior to the impact) nor does he have post-traumatic
amnesia (loss of memory for events post-impact).
 Mr. Barta has reported to
various examiners a loss of consciousness varying between 15 seconds and two
minutes.  Several clinical records reviewed appear to include incorrect
terminology in that history is obtained that Mr. Barta lost consciousness.  The
correct terminology would be that history was obtained that Mr. Barta reported
a period of loss of recollection or loss of awareness.  By definition
unconsciousness must be observed by others and there is no documentation in
the records I have reviewed that Mr. Barta was noticed to be unconscious at the
scene of the accident.

Whether or not Mr. Barta actually has any significant period
of true loss of memory or loss of awareness immediately after feeling the
impact of the accident is not clear to me. It is my opinion that the
history provided by Mr. Barta is equally consistent with him having had a
momentary lapse of awareness due to the sudden shock and emotional disruption
of the impact of the accident.

It is my opinion that it is not possible to rule out the
possibility that Mr. Barta suffered a very mild concussion (very mild traumatic
brain injury) in the subject accident.  This is based on the fact that one
cannot entirely exclude that Mr. Barta does have a true period of loss of
awareness, possibly for seconds, immediately post-accident.  The evidence for
this is however weak.

Mr. Barta developed a variety of symptoms post-accident for
which he attended a medical clinic on the day after the accident.  The primary
symptoms documented in the early post-accident records appear to relate to neck
pain and shoulder pain.  Subsequent symptoms appeared to include the development
of headaches, back pain and more focal left shoulder pain.  Initial symptoms
did not appear to include symptoms suggesting that Mr. Barta described a true
post-concussion syndrome.  Symptoms that could be construed as representing a
post-concussion syndrome were only described at a later date and seemingly to
an increasingly significant degree with the passage of time.

It is my opinion that the initial symptoms reported by Mr.
Barta were entirely consistent with soft tissue injuries to the neck, shoulder
and back regions.  The development of headaches was entirely consistent with
the effects of a soft tissue injury primarily to the neck region. Mr. Barta
did not report early symptoms to suggest a post-concussion syndrome and in my
opinion this would be important evidence to suggest that he did in fact likely
not to (sic) suffer a mild traumatic brain injury in the subject accident.

Mr. Barta has subsequently gone on to complain of a
variety of symptoms of a behavioural and cognitive nature.
 These symptoms
are in my opinion out of proportion to the injuries sustained by Mr. Barta and
would not be the expected result of a very mild concussion, should one have
occurred.  The symptoms that Mr. Barta developed and described in an
increasingly prominent fashion include behavioural and cognitive difficulties
that are described as being quite dramatic, including, as he has put it,
difficulty doing things that he has been doing for three decades. It is my
opinion that the somewhat dramatic behavioural and cognitive issues described
by Mr. Barta are not in any way attributable to the effects of a concussion and
are entirely consistent with difficulties due to psychological dysfunction and
an overlap between emotional and psychological issues, poor sleep, pain and in
particular anxiety.
 I would defer to experts in the field of psychiatry or
psychology with respect to the nature of Mr. Barta’s psychological or
psychiatric difficulties but would comment that these appear to have been
significant in degree and sufficient to result in the behavioural and cognitive
problems described by Mr. Barta.

Mr. Barta does appear to have had some component of anxiety
and potentially obsessive compulsive disorder pre-accident but I defer to
experts in the field of psychiatry with respect to the relevance of this.

It is my opinion that Mr. Barta does not at this time suffer
from any organic cognitive deficits attributable to effects of the subject
motor vehicle accident.  There does not appear to be any evidence that he
suffers from any other disorder of the central nervous system.  Ongoing
treatment will consist of attention to psychological and psychiatric
difficulties and management of ongoing musculoskeletal symptoms primarily
through a physical exercise program and potentially involvement of orthopaedics
as this relates to the left shoulder injury.

[Emphasis added.]

The evidence of dr. smith

I have referred to Dr. Jeanette Smith in paragraph 27 above.  Her
opinion, which I accept as consistent with other reliable evidence, is that:

1.     the
possibility that the plaintiff suffered a mild concussion in the accident
cannot be “ruled out” but, if he had, recovery would have been within days or
weeks and a concussion would not explain the ongoing complaints of poor
concentration and memory several years after the accident;

2.     there is
no evidence of sustained depression sufficient to support a finding that the
plaintiff is suffering from a major depressive episode;

3.     there is
no evidence to support a finding that the plaintiff suffers from a post-traumatic
stress disorder;

4.     there is
very little objective evidence of cognitive impairment: “during the two hour
interview [the plaintiff] was able to converse without difficulty, appearing to
concentrate on my questions and answers these appropriately”;

the plaintiff suffers from an anxiety disorder for which he has sought
no treatment; and


… In my opinion it is far more likely that distractibility
flowing from stress, anxiety and possibly pain is to blame for the subjective
difficulties that he experiences with cognition.  Poor concentration and
distractibility are well-recognized features of anxiety disorders and in my
opinion anxiety is a far more plausible explanation for his subjectively poor
concentration and short-term memory than a traumatic brain injury.

the plaintiff’s allegations of income and capital loss

The plaintiff submits he lost a valuable stock portfolio following the
accident because of his inability to apply the careful judgment he had
previously employed to earn a substantial income.  His impaired judgment in
regard to stock trading is said to be revealed not only by the loss of his
ability to earn an income, but also by his imprudent decision to purchase a
home for a price in excess of $4,000,000, which he would have known before the
accident, but not after, he could not afford.  Concurrently his previously
happy relationship with his wife deteriorated because of what several witnesses
described as his verbally abusive behaviour towards her.

To explain my conclusions regarding the causes of the plaintiff’s severe
financial losses it is necessary to review more of his history.

The plaintiff and his wife enjoyed a contented marriage before the onset
of extreme financial stresses in recent years.  They enjoyed vacationing and
such activities as long walks together.  They are shy people who even before
the accident had few social contacts apart from immediate family.  Despite
these benign influences, the plaintiff’s life has been marked by many stressful
events which have affected his behaviour in a manner which, in my opinion, help
to explain his financial losses.

The plaintiff testified that because he may appear to be of aboriginal
descent, and wore his hair long, he was “targeted” by security guards in various
shopping locations.  This appears to have been a source of considerable anxiety
and upset in the plaintiff’s life over a number of years.  In 2002 he was
falsely accused of the improper touching of a young woman.  The ensuing legal
proceedings caused him great anxiety and distress.  He also became involved in additional
litigation in 2002 regarding the purchase of a house.  The litigation was ultimately
settled by agreement to the plaintiff’s apparent satisfaction.  He testified
that none of those legal proceedings at that time interfered adversely with
this ability to make trades on the stock market.  I have no reason to find otherwise,
but I do find that they added to the accumulated burden of anxiety in his life.

For many years prior to the accident the plaintiff and his wife had lived
modestly in co-op housing despite their substantial income.  That modest
approach to their housing arrangements came to an end when, in July 2008, the
plaintiff decided to purchase the waterfront home of Mr. Palkovics for 4.8
million dollars.  The plaintiff paid a deposit on the purchase price of $800,000,
but was unable to pay the balance of the purchase price and a series of seemingly
acrimonious negotiations took place with Mr. Palkovics.  Litigation ensued.
The trial before Mr. Justice Burnyeat extended over seven days in May and
June 2011 with judgment adverse to Mr. and Mrs. Barta in March 2012
(see Palkovics v. Barta, 2012 BCSC 399).  The appeal was dismissed on April
12, 2013 (see Palkovics v. Barta, 2013 BCCA 181).  An earlier
application by Mr. Barta to the Court of Appeal for leave to introduce fresh
evidence of brain damage, which evidence was not before Burnyeat J., was
dismissed.  The purpose of the evidence would have been to attempt to displace
the trial judge’s adverse findings on the credibility of the plaintiff.  The
trial judge awarded double costs, and examinations in aid of execution
followed.  It cannot be doubted that this litigation, its costs and the disappointing
outcome, caused further stress and anxiety for an already anxious man.

The plaintiff’s earlier stock trading

In the 1990s the plaintiff had inherited a modest sum of money and began
to trade on the stock exchange.  He submits that he enjoyed an annual income in
excess of $100,000 in the years immediately prior to the accident.  He had
accumulated several million dollars in stock by the time of the accident.  It should
be noted that his stock was not always readily convertible to cash at the price
it was trading at any given time.  This fact is reflected in the evidence of
Laurence Boyce which I describe below.

the evidence of joe hayes

The plaintiff led the expert evidence of Joe Hayes.  Mr. Hayes has
had 20 years’ experience in the financial service industry including as a
portfolio manager for a division of Scotiabank.  Mr. Hayes’ opinion is
that prior to the accident the plaintiff displayed a knowledgeable, skillful
and disciplined approach to trading on the stock market, but after the accident
his approach to trading and to financial decisions changed dramatically: he
became ill-disciplined and erratic and made decisions no prudent trader, as he
previously had been, would have made.

The plaintiff’s submission is that the pre-accident records show that
his trading was careful and risk averse, whereas post-accident he engaged in
reckless trading and the unwise decision to purchase a house he could not
afford.  The inference I am asked to draw is that the accident injuries explain
the catastrophic collapse of the plaintiff’s earning ability and the loss of
his capital.

the evidence of laurence boyce

The defendant led the opinions of Laurence Boyce, a senior vice
president of Sutton Boyce Gilkes Regulatory Consulting Group Inc.  Mr. Boyce
provides advice on compliance with regulatory regimes for participants in the
securities market.  Mr. Boyce worked 35 years at securities
self-regulatory organizations, including as an investigator for the Toronto
Stock Exchange, the Investment Dealers Association of Canada, and the
Investment Industry Regulation Organization of Canada.  Mr. Boyce was
asked to review Mr. Hayes’ opinion and the nature of the plaintiff’s
trades. Mr. Boyce reached the following conclusions:

Mr. Hayes errs in method in that he uses realized capital
gains as disclosed in Mr. Barta’s tax returns as a basis for measuring his
investment acumen, when the more accurate measure of success or failure over a
given period is a combination of realized and unrealized gains – i.e. the
change in value of an account’s holdings not including deposits and
withdrawals.  On that basis, Mr. Barta was frequently carrying large
[unrealized] losses on positions held in his accounts prior to the accident.

Mr. Barta was a risk-taker,
engaged in investments in unproven development stage companies and quick
in-and-out trading in larger, more volatile issues.  These are high risk
strategies.  While he did enjoy some success prior to 2008, his substantial
losses coincided with the 2008 market crash which was particularly hard on
junior companies such as those that constituted the bulk of his long-term

the evidence about the plaintiff’s stock trades after the accident

The plaintiff resumed trading stocks on August 2, 2007, four days after
the accident.  On that day for example, he bought 1400 shares in UEX
Corporation for $6.35 each and sold them the same day for $6.59.  On August 8,
2007 the plaintiff purchased 14,000 in Benchmark Energy Corp. for $0.65 each
and sold them the same day for $0.72.  These are the type of trades
Mr. Boyce described.  Over the month of August 2007 the plaintiff
continued to trade a number of stocks some at less than a dollar and some for
more.  Like Mr. Boyce, I cannot detect any change in the pattern of the
plaintiff’s stock trading in the month after the accident from what it had been
before the accident.

On August 31, 2006 the total value of the plaintiff’s portfolio had been
$3,520,923.96.  This appears to have been its peak.  On July 31, 2007, two days
after the accident, the plaintiff’s total portfolio of stocks was valued at
$1,868,836.41 and by August 31, 2007, in the month after the accident, it had
grown by about $102,000 to $1,970,740.45.

A partial explanation for the substantial loss in nominal value of the
plaintiff’s portfolio from the end of August 2006 to the end of August 2007 is
that he had held a large number of shares in a company known as Flair Petroleum
Corp. which dropped in value from $1.40 each to $0.33 each.  He acknowledged Flair
was a risky stock.  His evidence was that he received this stock as a gift and
waited for the donor to advise him when to sell.  I do not accept that
explanation.  In my opinion the plaintiff simply made a bad decision to hold on
to stock that declined in value.  Many people, who do not have post-concussion
difficulties, make similar errors in judgment.

By July 31, 2008, a year after the accident, the plaintiff’s portfolio
had increased to $2,790,301.95.  He had made successful trades in that year
increasing his portfolio by almost $921,000.  There is no possible inference to
be drawn that cognitive impairment had damaged his trading ability during this
time period.  Then disaster struck.  In September 2008 the market “crashed” and
the plaintiff testified that he was “hit hard”.

The plaintiff had purchased Lehman Brothers Holdings prior to the crash and
had made a considerable capital gain in a few days.  This appeared to have encouraged
the plaintiff to hold Lehman Brothers even as his own financial crisis deepened,
as did that of the market generally.  This the plaintiff argues indicates his
impaired judgment following the accident.  However, I have no basis to conclude
his decision to retain the Lehman Brothers stock was irrational at the time it
was made.  He had made a substantial quick profit in a few days and I believe he
concluded he could eventually continue to make money by holding on.  He did not
foresee Lehman Brothers would be forced into bankruptcy.  Many investors
suffered a similar fate.

The decision to purchase a house for in excess of $4,000,000 was made at
the time the plaintiff’s portfolio had grown substantially, and before the
stock market collapsed in September 2008.  He, like so many others, did not
anticipate that shattering event.  In retrospect the decision was imprudent,
but not necessarily so at the time it was made given information available at
that time.

By the end of 2008 the plaintiff’s portfolio had dropped to less than
$600,000 and by the end of December 2009 to less than $400,000.  With some
fluctuations it continued to decline thereafter.

findings of fact

The following are my findings concerning the allegation of a brain
injury and its alleged effects:

1.     I agree
with the conclusions of Dr. Prout and Dr. Smith.  When the plaintiff
struck his head on the airbag of his car on July 29, 2007 he suffered no more than
a mild concussion.  The absence of significant retrograde or anterograde
amnesia following the accident, and the alert state of the plaintiff at the
accident scene, as evidenced by his GCSS score, do not support a finding of
brain injury.  I conclude that the plaintiff did not suffer a mild traumatic
brain injury in the accident.

2.     The
plaintiff did not inform his medical advisors and examiners of events in his
life which are alternative explanations for his condition.  In particular I
refer to the 2008 assault and the extensive litigation the plaintiff engaged in
including the lawsuit over the house.  In my view, if the plaintiff’s medical experts
had been aware of these facts their diagnosis would have been altered.

3.     The
plaintiff’s left shoulder injury has not been proven to have been caused by the
accident.  It is at least equally probable that it was caused by the assault.  As
documented by Dr. Regan, the x-ray of his left shoulder taken in January
2008 before the assault showed no abnormality.

4.     The
plaintiff engaged in risky stock market trading over several years.  He
developed a level of expertise that permitted him to earn a reasonable income. 
However his unwise decisions made in 2008, coupled with the stock market
collapse, and the judgment in favour of Mr. Palkovics created financial conditions
from which he could not recover.  In my opinion the effects of the accident did
not compromise his ability to trade on the stock market.

It is impossible not to have sympathy with Mr. Barta’s disastrous
losses on the stock market but the evidence does not satisfy me that he has
proven that the defendant’s negligence caused them.

Non-Pecuniary General Damages

I find the plaintiff suffered a mild concussion in the accident of July
2007, as well as experienced headaches and soft tissue injuries to his neck and
back.  The effects of the concussion gradually diminished over a number of
weeks.  The headaches were related to the soft tissue injuries and I believe
they together with the soft tissue injuries continued to have effects on the
plaintiff for a number of years.

I believe the plaintiff has a personality which predisposed him to
experience headaches as well as pain from soft tissue injuries to a greater
extent that might have been the case with another person.  I find that the
plaintiff continued to experience those effects for about four years.  The
effects of the injuries robbed the plaintiff of his ability to continue to play
tennis and badminton which he had enjoyed to a considerable level throughout
much of his adult life.  I also accept that the plaintiff’s anxiety level was
increased by his injuries and as a result his relationship with his wife was
adversely affected.

The plaintiff refers me to numerous other cases in which judges have
assessed non-pecuniary general damages for pain and suffering and loss of
enjoyment of life but they are all cases in which plaintiffs suffered
significant brain injuries and I have not found them helpful for that reason. 
The defendant refers to authorities on non-pecuniary damages which in my view
fail to take into account the slow resolution of the plaintiff’s soft tissue
injuries and headaches and their interference with his enjoyment of life.

I have considered the following cases when assessing non-pecuniary
general damages: Kerr v. Macklin, 2004 BCSC 318; Verhnjak v. Papa,
2005 BCSC 1129; Jacobsen v. Beaton, 2009 BCSC 231; Raponi v. Phagura,
2005 BCSC 567; and O’Ruairc v. Pelletier, 2004 BCSC 1633.  In each of
those cases the court assessed damages following injuries which have some
similarity to those of the plaintiff but with many dissimilarities.  Inevitably
each case is unique.  The damage awards range from $50,000 to $75,000.  In my
view the plaintiff’s headaches and soft tissue injuries had a significant
impact on his life and diminished his enjoyment of life to a considerable
extent over a period of several years.  I have some reservations about his
efforts to take steps to overcome his injuries but I am not prepared to accept
the defendant’s submission that the plaintiff failed to mitigate.  I assess the
plaintiff’s non-pecuniary general damages at $75,000.

It is agreed the plaintiff is entitled to $2,750 in special damages.

If necessary the parties may make arrangement to speak to costs.

“Mr. Justice Affleck”