Thomas McKay will not be able to tell his side of what happened in a cellblock struggle with Victoria police that left him with a devastating head injury, according to a Globe and Mail report.

A hearing ordered by British Columbia's police complaint commissioner into the four-year-old case resumes Thursday in Victoria, but lawyer Chris Considine said his client won't be there.

"I do not anticipate Mr. McKay attending," Considine said in an interview Wednesday.

"He won't be able to attend for health reasons."

Considine said he would explain further at the hearing.

"It will be a statement with respect to the health of Mr. McKay and why he will not be present for the purposes of testimony."

Considine said he could not yet say whether McKay will ever be able to address the hearing.

"He has permanent injuries," he said.

But he noted there is "self-explanatory" surveillance footage of the incident.

That footage shows the former Camosun College student in April 2004, after he was arrested for causing a disturbance on his way home from a night of bar hopping in downtown Victoria.

McKay, then 24, was standing in the police station handcuffed while being searched. Const. Greg Smith appears to sweep McKay's feet out from under him when the student tries to escape the officer's grasp.

McKay hit his head on the floor when he fell, suffering a head fracture and acute epidural hematoma that has, according to an agreed statement of facts at the hearing, left him with "cognitive impairment."

"It's been devastating to his life," said Considine of his client, who is married and the father of a toddler. "It's tragic."

The deputy chief of the Victoria Police Department concluded after reviewing the case that allegations of abuse against Const. Smith were not warranted, so no disciplinary measures were necessary.

He stood by his views despite a request by Dirk Ryneveld, the police complaint commissioner, for a second look at the matter.

Ryneveld ordered the public hearing, suggesting it was in the public interest.

McKay's father had submitted a complaint about Const. Smith's action.