IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20110629

Docket: M111000

Registry:
New Westminster

Between:

Michelle Rintoul

Plaintiff

And

Liana Gabriele

Defendant

Before:
The Honourable Mr. Justice A. Saunders

Reasons for Judgment

Introduction

[1]            
The plaintiff, Michelle Rintoul, 27 years of age at the time of trial,
was walking across Richards Street at the intersection with Dunsmuir Street in downtown
Vancouver, late in the afternoon of November 3, 2006, when she was struck by a
vehicle being driven by the defendant. She was knocked to the ground and
suffered injuries, including a head injury.

[2]            
The defendant acknowledges some degree of responsibility for the
accident, but contends that the plaintiff was contributorily negligent.

[3]            
With respect to damages, the central issue in this case is the severity
of the plaintiff’s head injury, in particular whether she continues to suffer
cognitive impairments which restrict or prevent her from maintaining
competitive employment.

[4]            
At the time of the accident the plaintiff had a junior secretarial
position at a small personal injury law firm, Pierce Law Group. After some time
off following the accident, her employment there continued for more than a year
before she was terminated for reasons unrelated to the accident. Ms. Rintoul
was then able to find new employment in a more challenging position — one
which involved less photocopying, and more opportunities to follow files
through from beginning to end —  at the law firm of Shergill & Company,
commencing in mid-August, 2008. She encountered difficulties in this position,
and her employment was terminated after less than one year.

[5]            
The plaintiff alleges that the difficulties she encountered at Shergill
& Company were a direct result of her brain injury, and are evidence of
continuing unemployability. The defendant’s position is that the plaintiff has
no ongoing cognitive deficiencies and that her problems at Shergill &
Company were caused by significant anxiety, to which she was pre-disposed.
Alternatively, the defence contends that any residual cognitive difficulties
are mild, and that they should not and do not interfere significantly with her
work or her life.

[6]            
A complicating factor is that the plaintiff has a rare and profoundly
significant condition, the technical name for which is phocomelia; she was born
without upper limbs. I am reluctant to refer to this condition as a disability
or a defect because to all appearances, Ms. Rintoul does not see herself that
way. She has adapted to the world in remarkable ways, using her feet and toes
as others used their hands and fingers to grip and manipulate objects,
including typing and using a Blackberry, and using her chin, neck and shoulders
to carry things. Not surprisingly, this condition affects many facets of this
case: the circumstances of the accident, and the range of employment options
available to her.

The Accident

[7]            
The defendant, Ms. Gabriele, was in attendance on the first day of
trial. She was called to the witness stand as the first witness for the
plaintiff’s case, and cross-examined.

[8]            
Ms. Gabriele had been driving west on Dunsmuir St., which is one way.
She stopped just before the intersection with Richards St., which is also
one-way, intending to turn left and head south. There were several cars ahead
of her in the left lane and she had to wait; she could not recall whether all
of those vehicles proceeded straight through the intersection, or turned up
Richards St. She waited through one red light.

[9]            
The car ahead of Ms. Gabriele then made a left-hand turn. It did not
turn into the left-most lane of Richards St.; that lane was blocked by a car
which had stopped to pick up a passenger, and so it made its turn into one of
the centre lanes.

[10]        
Ms. Gabriele then pulled ahead on Dunsmuir St. into the position which
the previous car had been in, roughly in the middle of the intersection. Her
light was green. A passing truck had splashed water onto her windshield, and
she put on her wipers to clear it. As she was doing that, she looked to her
left and saw that there were people at the southeast curb.

[11]        
She does not know how long, at that point, the light had been green. Evidence
from the City of Vancouver indicates that the pedestrian “walk” signal would
have been concurrent with the green traffic light.

[12]        
After looking to her left, Ms. Gabriele saw the car that was stopped in
the curb lane of Richards St., which was the lane she otherwise would have
turned into. She then looked to her right – “doing a sweep”, as she described
it at a later point in her testimony – and saw that there were people on the
opposite curb. She then proceeded to make her turn.

[13]        
Ms. Gabriele repeated her evidence as to that sequence – looking left, seeing
the car on Richards St., looking right, and then turning – several times.

[14]        
Ms. Gabriele testified that she was turning her vehicle and had just
started to enter the pedestrian crosswalk, going perhaps 10 or 15 km/h, when she
felt a bump, and saw a flash of a face in her headlights. She stopped and got
out, and ran to the front of her vehicle. The plaintiff was lying unconscious
in the crosswalk.

[15]        
Ms. Gabriele was not challenged on her estimate of her speed.

[16]        
Ms. Gabriele was asked why she did not, after looking to the right, look
to the left again before making her turn, to see if any of the pedestrians she
had previously seen on the southeast corner were walking in the crosswalk. She
replied, “I made a mistake”.

[17]        
There were two independent witnesses.

[18]        
Mr. Enciso was walking on the west side of Richards St., south of
Dunsmuir. His attention was drawn to the plaintiff when he heard the sound of
the impact. He looked over to the crosswalk and saw the plaintiff, for a split
second, airborne. At that point, he said, she was a little more than a quarter
of the way across the crosswalk.

[19]        
From his “flash” of memory, Mr. Enciso could recall about ten people in
the crosswalk, to the west of Ms. Rintoul.

[20]        
Ms. Schwartz was in the northern crosswalk, walking west. Just before
the impact, she had turned her head and was looking to her left up Richards St.
She saw the defendant’s vehicle making the turn. Asked about the vehicle’s
speed, she said it was going quite fast; she said it shocked her to see a
vehicle going that fast to turn a corner. She saw the vehicle hit the plaintiff
from behind. The plaintiff was “probably at least a quarter of the way in” to
the crosswalk, “maybe 3 or 4 feet from the curb”.

[21]        
Ms. Schwartz observed several other pedestrians in the crosswalk, behind
and in front of the plaintiff.

[22]        
Ms. Schwartz was not challenged, on cross-examination, as to her
evidence of the defendant’s speed.

[23]        
Ms. Rintoul has no memory of the accident and an incomplete memory of
events immediately preceding it. She recalls walking down Richards St. towards
the intersection. She recalls that it was beginning to get dark, though
visibility was fine. She remembers that it was not raining. She was wearing a
music player and headphones. She does not recall whether there was a “walk” or
“don’t walk” signal displayed for westbound pedestrians when she reached the
intersection. She believes, but does not recall, that she would have stopped
and looked around for approaching vehicles before she stepped off the curb, as
that was her habit. She recalls being in the crosswalk.

[24]        
There was a break in the trial of just over two months. During that time
period, Ms. Gabriele walked through the accident scene with her counsel. After
the trial resumed, Ms. Gabriele was called to give evidence as part of the
defence case. Testifying in chief, she gave a slightly different version of
events. She said in her evidence in chief that after looking at the southwest
corner, she looked back in front of her, did not see anything, and then
proceeded to make her turn.

[25]        
I do not accept this second version of events. But even if I did, and I
were to conclude that Ms. Gabriele did look forward at all before starting her
turn, she could not have done so carefully; otherwise she would have seen the
plaintiff, who would have been there to be seen, just slightly to her left. I
find that the defendant commenced her turn and proceeded into the crosswalk
without making any adequate check to see if there were pedestrians whom she was
at risk of hitting.

[26]        
Ms. Schwartz, who was an independent, disinterested witness, gave
evidence as to the defendant’s speed. All other things being equal, the
evidence of an independent witness will normally carry more weight than that of
the parties. However, without the defendant having been challenged on her own
estimate of her speed at the point of impact — 10-15 km/h — I cannot reject
the defendant’s evidence. The physical evidence does not point to the
defendant’s speed or rate of acceleration being excessive; the evidence of all
the witnesses was consistent with the defendant having been able to come to a
stop quickly, within the crosswalk, to the northeast of the plaintiff, with the
plaintiff also still being situated within the crosswalk. I do not think it likely
that the defendant could have stopped so quickly if she had been driving as
described by Ms. Schwartz.

[27]        
It is equally the case that, not having observed any pedestrians in her
path, the defendant would have had no reason to be proceeding particularly slowly
or cautiously. I find it is probable that the defendant proceeded, not slowly,
but at what would have been a normal speed for a driver who believed their way
to be clear.

Assessment of Liability

[28]        
Subsection 127(1)(a)(ii) of the Motor Vehicle Act, R.S.B.C. 1996,
c. 318 provides that a driver facing a green light,

…must yield the right of way
to pedestrians lawfully in the intersection or in an adjacent crosswalk at the
time the green light is exhibited

[29]        
It is common ground that even if a pedestrian has the right of way, the
common-law duty to use care for one’s own safety remains active. A pedestrian
who steps into the path of a known danger will generally be held contributorily
negligent: British Columbia Electric Railway. Co. v. Farrer, [1955]
S.C.R. 757.

[30]        
Where a pedestrian has the right of way, the burden is on the defendant
driver to show that the pedestrian ought to have known that the driver was not
going to yield the right of way, and to show that at the point when the
pedestrian ought to have had that knowledge, the pedestrian could reasonably have
acted to avoid injury: Feng v. Graham (1988), 25 B.C.L.R. (2d) 116
(C.A.); Dionne v. Romanick, 2007 BCSC 436.

[31]        
I do not find that the defendant has discharged that onus.

[32]        
Ms. Rintoul’s congenital phocomelia decreased her ability to recover
balance, and in addition, as she cannot break a fall, left her more vulnerable
to injury in a fall. To that extent, the risk to her of injury as a pedestrian,
if involved in an accident, was greater than that of the general population,
and her duty to care for her own safety accordingly was higher.  But as a
pedestrian, Ms. Rintoul was not under an obligation to make eye contact with
the drivers of stopped vehicles to ensure she had been seen. She was not
obliged to keep a constant eye on stopped vehicles in anticipation that they
might suddenly accelerate towards her. Nor was she obliged to keep a distance
from every vehicle in her immediate vicinity sufficient to allow her react if a
vehicle suddenly became a danger.

[33]        
I do not find the presence or absence of other pedestrians to have been
a significant factor. If, as could be found on the basis of Mr. Enciso’s
testimony, a group of pedestrians had left the southeast corner first, and Ms.
Rintoul had followed several seconds later, creating a significant gap between
them, the existence of that gap would have entitled Ms. Gabriele to anticipate
that she might have a safe opening to proceed with her turn; it would not relieve
her of her responsibility to take a proper look before proceeding into the
crosswalk.

[34]        
As stressed by defence counsel in argument, the intersection is somewhat
unusual in that there is a high stone wall running south down Richards St., separating
the sidewalk from Holy Rosary Cathedral. For pedestrians proceeding north on
Richards St. towards Dunsmuir St., the wall does obstruct their view of traffic
on Dunsmuir St. to the east of the intersection. But I do not find that this
materially contributed to the accident. Prior to commencing her turn, Ms.
Gabriele had an unobstructed view to the south; she saw the car parked in the left-hand
lane on Richards St. There was no impediment to her seeing Ms. Rintoul, and no
impediment to Ms. Rintoul seeing her.

[35]        
I find that when Ms. Rintoul stepped off the curb, the defendant was
stopped, intending to turn left on a green light, and Ms. Rintoul had the right
of way. There is no evidence that the defendant indicated an intention to begin
her turn prior to her actually accelerating into the crosswalk. The defendant
was not a “known danger”.

[36]        
Once the defendant did commence her turn, it appears that things
happened very quickly. I cannot find on the evidence that Ms. Rintoul would
probably have had sufficient time to perceive the risk, react, and avoid the
impact.

[37]        
I assess the defendant’s fault at 100%.

Evidence as to the Plaintiff’s Pre- and Post-Accident
Condition

The Plaintiff’s Pre-Accident Physical Condition

[38]        
Evidence was given by a family physician, Dr. Arnold, who was Ms.
Rintoul’s g.p. from 1993 to 2005. His notes disclose a history of intermittent
episodes of, among other things, various musculo-skeletal complaints, including
neck and shoulder pain and lower back pain, and muscle tension headache. From
time to time he made recommendations as to exercise and stretching.

[39]        
Ms. Rintoul was injured in a motor vehicle accident in June 2004, and
suffered headache, pain in the back and sides of her neck, pain in the upper
and middle back, and pain in her left leg and right hip.

[40]        
Dr. Arnold treated Ms. Rintoul for her injuries in August 2004. She was
experiencing intermittent neck pain. She estimated that she was 50% recovered. She
made a comment that exercise was an irregular part of her life. Dr. Arnold
referred her to physiotherapy. By the time he examined her again in November
2004, she put her degree of recovery at about 75%.

[41]        
In late December 2004 Ms. Rintoul began treatment with a chiropractor,
Dr. Stuart. In her intake forms, she described suffering neck and mid-back pain
on and off for years, with no relief. Her problems were worse when she sat or
stood for long periods and when she walked a lot. She indicated that these
problems had existed not only since the motor vehicle accident earlier that
year, but on and off for years, mostly with no relief.

[42]        
Ms. Rintoul underwent a period of intensive treatment by Dr. Stuart and
then continued to see him periodically for “maintenance” treatment.

[43]        
In October 2005 Ms.Rintoul reported to Dr. Arnold a further flare-up of
her neck pain, of six weeks’ duration. On examination, there was mild
restriction of her neck range of motion, with some tenderness over both sides
of her neck extending into her shoulder blades. Dr. Arnold encouraged her to do
range of motion and stretching exercises, and to retry physiotherapy.

[44]        
Ms. Rintoul then came under the care of Dr. Wang. She took a history
from Ms. Rintoul during their first session on June 7, 2006.  Dr. Wang’s notes
record Ms. Rintoul as having said, or indicated,

MVA two years ago with multiple
soft tissue injuries. Still has upper back and neck pain.

[45]        
On cross-examination, Ms. Rintoul said that she could not recall what
symptoms she had complained of to Dr. Arnold, nor what she told Dr. Wang during
their first session. In her examination in chief, she denied that she was still
suffering neck pain at that time.

[46]        
I accept the note in Dr. Wang’s clinical records as a true and accurate
statement. No doctor takes perfectly accurate notes at all times. Dr. Wang,
however, had never previously had a patient with phocomelia, and in order to
understand her new patient’s condition fully I believe it is likely that Dr.
Wang would have been even more careful than normal to document Ms. Rintoul’s
history and reported complaints.

[47]        
Dr. Nairn Stewart, a physiatrist, examined Ms. Rintoul at the request of
her counsel in August 2009. Under cross-examination, Dr. Stewart stated that as
a general rule, persons who are still suffering the effects of a motor vehicle
accident after two years will probably continue to suffer from at least some of
those symptoms on an ongoing basis. This opinion was offered in the context of
Dr. Stewart’s comments, in her report, on the likelihood of Ms. Rintoul
continuing to suffer from the physical effects of the subject accident. I see
no reason why the same logic would not apply to the effects of the June 2004
accident as well. It also stands to reason that the likelihood of this would
only increase when Ms. Rintoul’s history of similar complaints prior to the
June 2004 accident is taken into account.

[48]        
Ms. Tilley, an occupational therapist, conducted workplace assessments
of Ms. Rintoul at Pierce Law Group from time to time, on behalf of the Neil
Squire Society. In October 2006, Ms. Rintoul contacted Ms. Tilley by telephone,
complaining that she was getting sore hips while standing on one foot at the
photocopier, using her other foot to operate the machine. During her
assessments, Ms. Tilley would frequently urge Ms. Rintoul to look at the way
she was using her body to do things, to be mindful of the risk of developing
work-related musculo-skeletal injuries because of the way she was doing things,
and to consider whether there were alternatives through using assisted devices
or other technologies

[49]        
I find that as of the date of the November 2006 motor vehicle accident,
Ms. Rintoul had a long history of neck and upper back pain, and other
musculo-skeletal complaints. While there is no evidence that she was actively suffering
from any of these problems on the date of the accident, it is a certainty that
she was predisposed to injury; and it is likely that, in the absence of the accident,
she would have continued to suffer similar complaints, at least intermittently
and perhaps chronically.

Employment with Pierce Law Group

[50]        
When in high school Ms. Rintoul had wanted to be a teacher. She did not
obtain admission to Simon Fraser University, and instead decided to purse
general studies at Kwantlen College beginning in the fall of 2001. She obtained
a Diploma in Criminology from Kwantlen College in 2004, followed by a
Certificate in Applied Business Technology – Legal Secretary Option, a year
later. Following graduation it took more than a year for her to find
employment, and ultimately with the assistance of the Neil Squire Society she
did find a junior secretarial position with Pierce Law Group in July 2006,
assisting two paralegals.

[51]        
Ms. Rintoul types with her feet. Her typing speed is limited to 30 words
per minute. This must be contrasted with a more usual typing speed of junior
secretaries, of 60 to 90 wpm.

[52]        
Her job consisted primarily of typing letters from precedents, gathering
documents and photocopying. This junior position did not require her to
exercise initiative.

[53]        
Ms. Rintoul was well-liked by her colleagues at Pierce Law Group. She
passed a three-month probationary period and her position became permanent on
October 26, 2006.

[54]        
The accident occurred just eight days later.

[55]        
Evidence as to her outward appearance to her co-workers, before and
after the accident, is described below.

Plaintiff’s Condition in the Aftermath of the Accident

[56]        
Having no arms, Ms. Rintoul would have been unable to break her fall. In
landing on the pavement, she hit her head and was briefly unconscious.

[57]        
She suffered a brief period of post-traumatic or anterograde amnesia,
indicative of a brain injury, and a CT study showed contusions to the brain.
She also suffered physical injury to her body due to the impact of the car and/or
her impacting the ground. She was hospitalized overnight.

[58]        
Ms. Rintoul was off work for two months until January 2007. During that
time she suffered from constant neck and upper back pain and daily headaches. She
then resumed full-time employment, and her symptoms gradually improved. She testified
that she could be pain-free in the morning, but then a full day of work could
lead to her neck getting sore.

[59]        
Her neck would be pain-free on weekends. Her headaches came on only once
or twice a week.

[60]        
She testified that as of January she still did not feel ready to return
to work because of problems with her memory, and because she was feeling tired
during the day and a little bit sore. However, she was afraid she might lose
her job if she took any more time off, and so returned to working full time.

[61]        
With respect to her cognitive function, Ms. Rintoul described generally in
her evidence that she has had and continues to have problems with memory,
concentration, distractibility, and multi-tasking, and feelings of fatigue
after periods of intense concentration. She experienced these problems when she
went back to work at Pierce Law Group in January 2007, and also subsequently
while working at Shergill & Company.

[62]        
Ms. Rintoul went to part-time employment as of May 2007 on her doctor’s
advice. She worked part time, four days a week, until the end of June 2007.
During this period, she testified that she found the intensity of her neck pain
decreased. She did not think that there were particular thins she did at work
that triggered or aggravated her neck pain.

[63]        
Ms. Rintoul then resumed working full time from then until June 2008
when she was dismissed for reasons unrelated to the accident.

Post-Accident Functioning at Pierce Law Group

[64]        
At Pierce Law Group, the plaintiff recalled, she would have problems
remembering verbal instructions, remembering appointments, and remembering to
do tasks assigned to her. She described difficulties with thinking that left
her feeling fatigued by the end of a day. At first she says she did not
communicate these problems to her family doctor or to her employer – she was
afraid of losing her job, and she was hoping they would go away. However, her
problems with memory and concentration were a significant factor in her
deciding, on her doctor’s advice, to cut back to part-time work for a period in
the spring of 2007, although continuing symptoms from her physical injury were
also a factor. She then worked part-time, four hours a day, four days a week, for
approximately 6 weeks.

[65]        
These problems with memory, thinking and concentration, she testified,
continued after she resumed full-time work in the summer of 2007 at the request
of the office manager. There were days when she did not record all of her time
because she felt she had not been productive.

[66]        
Dr. Wang also confirmed Ms. Rintoul’s complaints of problems with memory.
She remarked on her memory issues during sessions with Dr. Wang in November and
December 2006. In light of the recurring headaches and memory complaints, Dr.
Wang referred Ms. Rintoul to a neurologist, Dr. Johnston, in May 2007. Ms.
Rintoul reported to Dr. Johnston problems with memory, concentration and
irritability.  Continuing problems in these areas were reported to Dr. Wang in
March 2008.

[67]        
Dr. Elliott Weiss, a specialist in physical medicine and rehabilitation,
and the department head at St. Paul’s Hospital, evaluated Ms. Rintoul at the
request of her legal counsel, in October 2007. She complained to Dr. Weiss of persistent
neck and upper back pain with headaches. She said that she also was less
organized and was having difficulty multitasking. She reported ongoing memory
dysfunction. His clinical diagnosis was post-traumatic concussion consistent
with a mild closed head injury, and non-specific neck pain and headaches.

[68]        
Ms. Rintoul worked full-time for approximately a year at Pierce Law
Group, and then was let go in June 2008, due to her employer’s need to cut
staffing costs. She did not give evidence of having suffered any great degree
of pain or discomfort during the last year she was at Pierce Law Group, nor
during her subsequent period of employment at Shergill & Company.

[69]        
Evidence was given for both the plaintiff and the defence by several of
Ms. Rintoul’s co-workers from Pierce Law Group.

[70]        
Ms. McEwen was the office receptionist when Ms. Rintoul worked there.
During her three month probationary period, she found Ms. Rintoul to be
friendly and talkative, eager and excited to be working. Ms. McEwen noticed a
marked change in the plaintiff’s demeanour when she returned to work following
the accident. Ms. Rintoul became quieter, slower, “not with it” or “out of it”,
“not focused”, “not all there”. Asked on cross-examination if Ms. Rintoul’s
speech was spontaneous, she testified that she recalled a couple of incidents
— she could not be precise as to the time period when these occurred — when,

. . . you would talk to her and
she would kind of look at you for a second like she was, I don’t know, didn’t
hear you or just couldn’t figure it out. She would just kind of stare at you
for a second  . . .  .

[71]        
Ms. McEwen testified that at some point Ms. Rintoul fell behind and she
was asked to help out with her bring-forwards and telephone calls. There was no
evidence that Ms. Rintoul had been unable to keep up with her workload during
her probationary period prior to the accident. Ms. McEwen continued assisting
Ms. Rintoul through to June 2008 when Ms. Rintoul’s employment was terminated.
Ms. McEwen recalled that at that point, Ms. Rintoul seemed a bit better, but
still seemed to be “out of it”, not the person she had been before the
accident.

[72]        
Ms. Kinasewich was the office manager, and performed some of the duties
of a paralegal. She recalled the plaintiff as being just as capable after the
accident, as she had been before, and had no problems with her work
performance.  She was hopeful that Ms. Rintoul eventually would be given more
responsibility. She described Ms. Rintoul as having been a good fit within the
office, and important member of the team. As to Ms. Rintoul’s outward
appearance, Ms. Kinasewich said that she saw “a bright, bubbly woman, at all
times”.

[73]        
Ms. Kinasewich did recall there being an issue, after the accident, with
the number of hours the plaintiff was recording. After January 2008, the firm
was less busy; the principal, Mr. Pierce, was withdrawing from practice, and
there were fewer new files. However, Ms. Kinasewich recalled that even with the
lower workload, Ms. McEwen continued to assist Ms. Rintoul.

[74]        
In cross-examination, Ms. Kinasewich conceded that she was unaware that
Ms. Rintoul was complaining to her doctor of memory problems. She said that it
does not surprise her that Ms. Rintoul would not complain:  “she’s a trooper”.

[75]        
Ms. Thompson was one of two paralegals whom Ms. Rintoul worked for. She
had no issues with Ms. Rintoul in terms of her competence, and did not notice
any post-accident change in her personality. She thought that Ms. Rintoul was
probably somewhat slow in performing certain tasks due to her disability, but
overall did not consider her to be different than any other junior secretary. Ms.
Thompson took a four-week holiday in the summer of 2007, shortly after Ms.
Rintoul’s return to full-time work, and left the employ of Pierce Law Group in
late August or September.

[76]        
The other paralegal whom Ms. Rintoul worked for was Ms. Burgess. She
felt Ms. Rintoul was bright, and wasted doing basic secretarial work; she
wanted Ms. Rintoul to be transitioned into a more responsible position. Her
recollection was that the redistribution of Ms. Rintoul’s work to Ms. McEwen
and others came about when the volume of work began to drop off; the plaintiff’s
co-workers began to socialize more in the office, the plaintiff joined in with
them and this distracted her from her work, so her work was redistributed to
the others to keep everyone busy.

[77]        
Mr. Oh, Mr. Pierce’s associate, who purchased the practice from him in
2007, testified that he had little day-to-day interaction with Ms. Rintoul, as
he did most of his typing himself.  He testified that the offices were
renovated in September 2007 and the plaintiff was moved some distance from the
paralegals and was out of their line of sight.

[78]        
I give relatively little weight to the testimony of the latter three
witnesses who say they observed no change in Ms. RintouI. Both Ms. Kinasewich,
and another witness, a Ms. Poole, who is a friend of the plaintiff’s mother and
who has known the plaintiff since Ms. Rintoul was a child through involvement
in Girl Guides, portrayed the plaintiff as someone who is not a complainer. I did
not get the sense from any of the Pierce Law Group witnesses that Ms. Rintoul was
closely monitored as she performed her work; the quality of her work product
may have been acceptable, without those co-workers having observed, or having
had the opportunity to observe, difficulties which she says she was having
producing the work.

[79]        
The evidence of Ms. McEwen, though it was more in the nature of
subjective impressions than specific observations, generally supports the
plaintiff’s evidence of her having had cognitive issues during her employment
at Pierce Law Group, and I find that this was the case.

The Plaintiff’s Experience at Shergill & Company

[80]        
In August 2008 Ms. Palbinder Shergill, a lawyer in practice in Surrey, offered
the plaintiff a temporary position as a legal assistant with her firm. Ms.
Shergill had interviewed Ms. Rintoul two or three years previously for a junior
position, but had passed her over at that time in favour of someone more
experienced. The second time around, Ms. Rintoul seemed, in her interview, to
have much more self-confidence.

[81]        
This new position was as an intermediate secretary. Ms Rintoul’s job
duties in this position typically involved drafting routine letters based on
precedents. She would manage documents received from clients, collating them
and drafting lists of documents, though not necessarily reviewing the content
of the documents as to privilege or relevance issues. This secretarial position
did not entail the interviewing of witnesses, nor the preparation of briefs.

[82]        
After a couple of weeks, Ms. Shergill offered Ms. Rintoul a permanent
position in her personal injury practice. Ms. Shergill had some slight
hesitation in making this offer to Ms. Rintoul because the tasks she had
performed as a temp were not sufficient to demonstrate her entire skill set,
and so she was hired on the condition of a four-month probationary period. In
this early period, Ms. Shergill worked closely with Ms. Rintoul and gave her
specific directions. She found that Ms. Rintoul’s letters, typically, were
correctly typed and well-done. Her limited typing speed was not an issue for
Ms. Shergill. She did well in her contacts with clients. Her physical
limitations did not impact her ability to do her job; as she had at Pierce Law
Group, she made adaptations and found ways to perform physical tasks.

[83]        
Ms. Shergill did not appreciate that Ms. Rintoul’s typing speed was only
one-third to one-half that of other secretaries.

[84]        
Ms. Shergill testified that throughout her term of employment – both
during the probationary period, and then in her permanent employment – Ms.
Rintoul had on average a workload at about 70% of what Ms. Shergill considered
to be normal. This was for three reasons: Ms. Shergill had other staff
available to help, two other secretaries and a paralegal; towards the end of
that term she took on an articling student; and her personal injury practice,
where Ms. Rintoul worked, was not overwhelmingly busy at that time.

[85]        
Towards the end of December 2008, as Ms. Rintoul’s probationary period
was drawing to a close, Ms. Shergill undertook a formal performance review. She
identified three concerns and discussed these with Ms. Rintoul.

[86]        
First, Ms. Shergill perceived that there was a need for Ms. Rintoul to
spend more time getting feedback on what her priorities should be, so that
things would not fall through the cracks.

[87]        
Second, she believed Ms. Rintoul was having problems with her memory;
frequently she would be given a task and then a short time later would be asked
about it, and in response would give Ms. Shergill a blank look. In Ms.
Shergill’s words,

. . .it would throw me off
because I just couldn’t understand why she would just — it was almost as if
she had no recollection of either having done the task or what it was that I
was talking about.

[88]        
Third, she felt that that Ms. Rintoul needed to gain a better appreciation
of the linkage between one task and another. She presumed that this weakness may
have arisen from Ms. Rintoul not having had continuous conduct of files in her
previous job. As an example, Ms. Shergill said that if they received materials
from a doctor, and saw that the doctor’s office address had changed, there
would be a need to update their records. She said that Ms. Rintoul was not able
to “pick up the threads” for appropriate diarizing and follow-up. It also
appeared she needed to gain an appreciation of the purpose of what they were
doing: not that they were collecting documents for their own sake, but that
they were gathering evidence.

[89]        
Despite these areas of concern, Ms. Shergill offered Ms. Rintoul a
permanent position. She felt Ms. Rintoul was loyal, hard-working, and
personable – a good fit with clients and with co-workers. She seemed to have
potential. Her physical condition posed absolutely no problems; notwithstanding
her typing speed, she seemed in general to be able to type, fax and photocopy
as well as any other employee.

[90]        
However, the identified areas of concern remained problematic over the
next six months. Ms. Shergill testified that Ms. Rintoul continued to have a
lot of trouble multi-tasking and prioritizing her files; she “continuously”
had,

. . . sort of vacant kind of
moments that were very frequent where she would just sort of lose the thread of
what we were working on, on a file.

[91]        
Ms. Shergill attempted to address these problem areas by providing Ms.
Rintoul with more structured feedback, meeting with her regularly to assist in
prioritizing. When that did not work, she tried switching Ms. Rintoul out of
personal injury practice into family practice, on the basis that the latter was
more lawyer-driven, so Ms. Rintoul would not have to demonstrate so much
independence, and her job would have a structure more akin to what she had
experienced during her probationary period. However, as Ms. Shergill stated,

. . . The sense that I was
getting by this time that we had — I felt that there was some real cognitive
things going on with Michelle that I couldn’t put my finger on.

This change of assignments did not help matters either.

[92]        
As a last-ditch effort, Ms. Shergill began meeting with Ms. Rintoul
every morning, for up to an hour or sometimes as much as two hours at a time,
going over her work assignments item by item, arriving at time estimates for
each activity and prioritizing tasks. Ms. Rintoul took the initiative of
putting this priority list on the computer every day, and then printing out a list
and bringing it to Ms. Shergill every morning. They did this for about three
weeks, but it only seemed to help to a minimal degree. Even though a to-do list
had been created, it seemed to Ms. Shergill that Ms. Rintoul would not refer to
it or follow it. Items which had been given the highest priority would not
necessarily be done, and only rarely were all of the tasks completed. As an
illustration, Ms. Shergill testified that she would find that Ms. Rintoul had
inexplicably jumped from the fourth or fifth most important task, to the eighth
or ninth; she would ask Ms. Rintoul why she had skipped over higher-priority
items, and again would be met with a blank look.

[93]        
Particularly during those occasions when Ms. Rintoul would exhibit her
blank look, Ms. Shergill sensed that Ms. Rintoul was frustrated with herself
and her inability to address Ms. Shergill’s concerns. Asked specifically on
cross-examination, she denied that Ms. Rintoul exhibited any signs of anxiety
or despondency. There were times during their one-on-one sessions when Ms.
Rintoul became distraught and tearful; it was apparent to both of them that
they were running out of options.

[94]        
Ultimately Ms. Shergill came to the conclusion that the difficulties
were so great that Ms. Rintoul was simply incapable of performing the job. She
emphasized that to her this was not a matter of Ms. Rintoul lacking the
necessary intelligence. In her mind, the plaintiff was a bright woman. If given
discrete tasks to perform, the quality of the work product was good, and she
would not take a long time to produce it. Ms. Shergill believed that absent
what she perceived to be Ms. Rintoul’s cognitive issues, Ms. Rintoul had the
potential to advance to a senior legal secretary position possibly within five
years. However, what her job performance demonstrated was lacking was her
ability to move from one assignment to the next, and to judge what the next
steps ought to be:

A:         . . . I didn’t get the sense with her that
she wasn’t smart enough. I just in my own mind concluded towards the end but
there was just something that – that just was preventing her from being able to
see that big picture and to kind of see what needed to be done and then to get
it done to the point where I just felt that she just was not – there was no
real contribution to the office anymore. I wasn’t able to, you know, to justify
keeping her around.

 . . .

 If I — if I
gave her something and I taught her how to do a task, she would do the task.
And it would always come out well and in time. It wasn’t that she would take a
long time producing it. Her productivity, if it was monitored task by task was
very good, but if I left her to her own devices for the day, then that’s where
things would fall apart. I just have no explanation for it, but it was just
very different from what I had with other staff.

[95]        
Ms. Rintoul’s employment at Shergill & Company was terminated in
June 2009.

[96]        
I accept entirely Ms. Shergill’s evidence as to the nature of the
plaintiff’s job and work environment, her job performance, the nature of the
difficulties she exhibited and the steps taken to assist her.

[97]        
Ms. Rintoul, in her evidence, testified as to all of these problems as observed
by Ms. Shergill. She did feel that they affected her productivity. Ms. Rintoul
acknowledged feeling nervous when confronted by Ms. Shergill with the
deficiencies in her productivity and organizational skills. She became
depressed that she seemed unable to work through her issues, and very worried
that she would lose her job.

[98]        
The defence argues that Ms. Rintoul’s issues at Shergill & Company
were fundamentally productivity issues, and that those issues arose from Ms.
Rintoul’s competitive disadvantages — that is, being unable to type at an
average speed — and her perfectionism. That was not Ms. Shergill’s perception
of the plaintiff’s issues. Impaired productivity may have been a component of
Ms. Rintoul’s difficulties at that point in time but it does not appear to have
been the only manifestation of her issues, and it does not appear to have been
Ms. Shergill’s impression that the difficulties were linked to her having no
arms. I do not accept this argument.

[99]        
In April 2009, Ms. Rintoul complained to Dr. Wang of low energy and
reduced appetite. These were new complaints. Dr. Wang administered a depression
test and diagnosed Ms. Rintoul as being mildly depressed. This is the first
indication, chronologically, in the evidence of Ms. Rintoul suffering symptoms
of a mood disorder. By mid-June, Dr. Wang was aware that Ms. Rintoul’s
situation at work was very bad, and her symptoms of depression were continuing.

[100]     I accept
that, as Ms. Rintoul told Dr. Wallace, the plaintiff’s vocational rehabilitation
expert, there were times at Shergill & Company when she was conscious of
not following the priority list; she was unable to explain why this happened.
In her evidence at trial, she explained that there were occasions when work was
dropped off on her desk that seemed to her to have greater priority, as is the
case with any legal assistant. Her problem, it seemed to her, was with getting
back on track once she had dealt with the interruption.

[101]     The
defence, as will be discussed below, asks me to conclude that Ms. Rintoul’s
failure to follow the priority lists was an example of stubbornness on her part,
brought on by anxiety.

Counselling and Continuing Cognitive Issues

[102]     At the
suggestion of Ms. Shergill and of Dr. Wang, Ms. Rintoul sought counselling; she
testified that she needed someone to talk to about the problems she was having.

[103]     A
therapist by the name of Ms. Jackson was referred to in evidence; she was
referred to in the evidence variously as a psychologist and a counsellor. I
have no evidence as to her qualifications. It appears from receipts submitted
to document the special damages that she is a registered clinical counsellor. At
the time of trial Ms. Rintoul was still seeing her counsellor, and testified
that the counselling had helped her gain a better understanding of what was
going on inside her head. It had not assisted with her memory, thinking and
concentration issues.

[104]    
As an example of memory issues, Ms. Rintoul testified as to an occasion
on which she went to see a movie for a second time, and could not remember the
opening scenes. She is clearly under the apprehension that incidents such as
this are attributable to her brain injury. She also testified that she finds it
difficult to follow conversations:

A:         It’s a lot of –
– like nobody sits and says, you know, you talk first and then you talk second
and then you talk third. It’s everybody like talks together, so you have to try
and, I guess, figure it all out and put it like all together and like sort it all
out, which I have a hard time doing.

Other “Before and After” Evidence

[105]     Aside from
the testimony of the plaintiff’s co-workers at Pierce Law Group, there was only
a limited amount of “before and after” evidence from persons familiar with the
plaintiff.

[106]     Ms.
Rintoul’s mother testified as to her impressions of the plaintiff’s demeanour.
Before the accident, the plaintiff was bright, energetic and positive. As far
as her physical condition goes, she testified that her daughter now seems to be
in pain at times, and becomes fatigued easily; with respect to cognitive
issues, she seems forgetful and disorganized, relies on lists and post-it notes
to keep her organized, and occasionally mixes up words.

[107]     As noted
above, testimony was also given by Ms. Poole, who has known Ms. Rintoul since
the latter was nine or ten years old.  She has noted changes in the plaintiff’s
personality, in that she now seems less goal-oriented and more withdrawn.

Adverse Inferences

[108]     The
plaintiff’s therapist Ms. Jackson did not give evidence and the defence asks
that I draw an adverse inference from the plaintiff’s failure to call her. The
defence had obtained discovery of a copy of Ms. Jackson’s file, and appeared to
be using those notes in cross-examination of Ms. Rintoul to put to her various
factual statements concerning her history.

[109]     I have no
grounds for assuming that Ms. Jackson’s evidence could not have been obtained
by both sides through a Swirski interview.

[110]    
In Buksh v. Miles, 2008 BCCA 318, an appeal from a jury’s
dismissal of a motor vehicle accident damages claim, Saunders J.A. commented on
the changes in medical practice and in discovery rules which have occurred
since that court, in Barker v. McQuahe (1964), 49 W.W.R. 685 (B.C.C.A.),
had pronounced that as a general rule, a plaintiff ought to call all physicians
who had provided treatment with respect to important aspects of the matters in
dispute, or explain their absence. Saunders J.A. noted,

33.       . . . the free
exchange of information and provision of clinical records through document
discovery raises the possibility that an adverse inference may be sought in
circumstances where it is known to counsel asking for the inference that the
opinion of the doctor in question was not adverse to the opposite party.

[111]    
Saunders J.A. reformulated the threshold test for putting the
possibility of an adverse inference to a jury, as follows:

34        In this
environment, and bearing in mind the position of a lawyer bound to be truthful
to the court, it seems to me there is a threshold question that must be
addressed before the instruction on adverse inferences is given to the jury:
 whether, given the evidence before the court, given the explanations
proffered for not calling the witness, given the nature of the evidence that
could be provided by the witness, given the extent of disclosure of that
physician’s clinical notes, and given the circumstances of the trial (e.g., an
initial agreement to introduce clinical records that work contrary to the
inference, or incorporation of that witness’s views or observations in the
report of a witness called by the other side) a juror could reasonably draw the
inference that the witness not called would have given evidence detrimental to
the party’s case.

Though the context there was the preconditions to a charge
to a jury, I find those remarks helpful in deciding what factors could guide
the exercise of my discretion in the present case.

[112]     There was
no explanation given in the present case for the failure to call Ms. Jackson. However,
I have no evidence before me as to Ms. Jackson’s credentials, other than her
having an M.A. and an R.C.C. designation. Without more than that, it is
difficult to conclude that Ms. Jackson would be in a position to offer a
prognosis or a diagnosis. Further, I do not seem to have a complete picture of
the sorts of issues which Ms. Rintoul is exploring with Ms. Jackson; Ms.
Rintoul was not cross-examined at any length on the nature and substance of the
advice or therapy she is receiving.

[113]     The
defence says that the court should not be left in the dark as to the evidence
of the only person who is currently providing rehabilitation therapy to the
plaintiff. No doubt, Ms. Jackson’s testimony would have been interesting. But
for me to conclude that it would have been helpful, I would need to know much
more than I do. In my view, the cross-examination of the plaintiff did not lay
the basis for a compelling argument in favour of an adverse inference being
drawn by the court. Given that factor, and also given that the defence had Ms.
Jackson’s records, I decline to do so.

[114]     The
plaintiff has had one particularly close friend since childhood, a Ms.
Castleton. She and the plaintiff have travelled together since the accident.
Ms. Castleton did not testify. The defence says that if anyone could be expected
to give useful evidence of the plaintiff’s before-and-after abilities and
conduct, it is Ms. Castleton, and the defence asks that I draw an adverse
inference from that failure.

[115]     Ms.
Rintoul testified that she has not confided in any of her friends about her
problems.

[116]     The explanation
I was given by plaintiff’s counsel during the course of argument was that Ms.
Castleton was extremely reluctant to come to trial. She was interviewed by
plaintiff’s counsel, and struck them as emotionally volatile; the interview
could not be finished because she was so upset.

[117]     Plaintiff’s
counsel conceded that if Ms. Castleton had been called, she probably would have
given evidence that she did not really notice anything about the plaintiff that
was dramatic. I was told that Ms. Castleton was living in England at the time
of the plaintiff’s accident and returned to Vancouver several months later.
Upon her return she learned that her own mother had been diagnosed with cancer;
this was a distraction for her and, counsel asserted, could reasonably be
thought to have affected her ability to form impressions of the plaintiff for
some time.

[118]     It appears
to be the case that the defence would have had the opportunity to pursue an
interview of Ms. Castleton prior to trial, or at least to obtain a written
statement from her. I was told during the course of argument that at one point
Ms. Castleton was on the defence witness list.

[119]     The
defence also asks that I draw an adverse inference with respect to the failure of
the plaintiff to call evidence from her father and her brother. By way of
explanation, I was told by plaintiff’s counsel that the plaintiff and her
father were not close, and the evidence confirmed this; the plaintiff’s mother
and father separated when the plaintiff was at Kwantlen College, and the
plaintiff lived with her mother. The brother, I was told, did not strike
counsel as the sort of witness who could give assistance to either side.

[120]     The
defence does not go so far as to say that the appropriate inference to be drawn
in this case is that these witnesses would have given evidence explicitly
harmful to the plaintiff’s case. Rather, the defence contends that if Ms.
Rintoul is in fact experiencing significant cognitive problems, those problems
would have been observed by those witnesses. It is argued that the court can
infer a lack of such observations from the witnesses’ absence, and can then
draw inferences as to the likelihood of the presence of, or as to the extent of,
a cognitive deficiency.

[121]     I do not
agree that an adverse inference is appropriate in the present case. I say this
because it seems to me that the adverse inference the defence contends should
be drawn would be inconsistent with the defence’s own theory of the case. On
cross-examination, Ms. Rintoul was not challenged as to the truth of her
statements that she is subjectively experiencing issues with organization and
concentration. Ms. Shergill was not cross-examined on her perception of the
plaintiff having cognitive issues. The plaintiff’s mother was not challenged on
her evidence of the plaintiff’s demeanour, e.g. that the plaintiff now seems
more forgetful and appears to rely upon lists and notes to help her remember
things. If the truthfulness of the testimony of the plaintiff, and Ms.
Shergill, and the plaintiff’s mother as to these matters had been put in issue,
then proof of the plaintiff’s case may have necessitated further corroborative
testimony; and the absence of such corroboration from witnesses who might be
expected to be in a position to give it, could be regarded with suspicion and
give rise to an inference. But the defence did not appear to take issue with
that evidence. (As will be set out below, the defence has a different theory to
account for the plaintiff’s complaints, one which would not turn on the
evidence of lay witnesses familiar with the plaintiff.) With the evidence on
these matters not having been challenged, the plaintiff was not obliged to call
further witnesses in corroboration, and no adverse inference flows from the absence
of such further witnesses.

[122]     This, of
course, has no bearing on the plaintiff’s burden of proof. But an adverse
inference is not appropriate.

The Plaintiff’s Current Physical Condition

[123]     Ms.
Rintoul testified that her neck and upper back pain, over the previous three
years, has become less frequent and less intense. There are times when she
doesn’t notice it at all. Being in a position where she is constantly looking
down will tend to aggravate things, but she finds that taking breaks and
stretching prevents her from getting tight. She rarely takes medications.

[124]     Since
leaving Shergill & Company, the intensity and frequency of her neck and
upper back symptoms has diminished, and the frequency and character of her
headaches has improved. She testified that she experiences headaches only once
or twice a month. She said that in some sense her headache is “constant”, but she
doesn’t always notice it.

[125]     Ms.
Rintoul also complains of jaw pain, and pain in her left thigh.

[126]     Ms.
Rintoul suffered from some dizziness after the accident. Investigation by two
eminently qualified otolaryngologists, Dr. Longridge and Dr. David, revealed
that Ms. Rintoul had suffered an injury to her vestibular system. Ms. Rintoul
is now symptom-free. Dr. David did not express an opinion on the potential for
long-term complications. Dr. Longridge is of the opinion that there is still a
probability that Ms. Rintoul will have difficulties with balance and
unsteadiness, in her “significant old age”. I accept this opinion.

[127]     Dr.
Blasberg, a specialist in oral medicine, examined Ms. Rintoul on behalf of the
plaintiff.  He diagnosed left- and right-side temporomandibular joint pain, and
myofascial pain of the masticatory muscles. He attributed these to the subject
accident. He noted they had been treated with some success through
physiotherapy, exercises, and dental appliance therapy. He felt the prospects
for further recovery were good. I accept his opinion.

[128]     Dr.
Hirsch, a physiatrist, examined Ms. Rintoul for the defence.

[129]     Dr. Hirsch
noted Ms. Rintoul’s ongoing discomfort in her left thigh, which she testified
comes on if she sits for lengthy periods. He believed that this is due to
bursitis, the onset and persistence of which is causally related to the
accident. He recommended cortisone injections as a possibly beneficial treatment.

[130]     Dr. Hirsch
found Ms. Rintoul’s voluntary neck flexion was restricted, and voluntary
rotation was restricted to 55 degrees, whereas normal range of motion is 90
degrees. Mr. McNeil, who performed a functional capacity evaluation at the
request of defence counsel, had recorded similar restrictions in Ms. Rintoul’s
neck mobility on his examination, which was within approximately a week of Dr.
Hirsch’s exam. However, Dr. Hirsch observed that Ms. Rintoul was in fact able
to rotate her neck quickly to 90 degrees in either direction when lying on her
stomach, without any pain mannerisms. There was no medical explanation, in Dr.
Hirsch’s opinion, that could account for this discrepancy in Ms. Rintoul’s
presentation.

[131]     Dr. Leith,
an orthopaedic surgeon retained by the defence, found the plaintiff exhibited
full neck range of motion, when he examined her.

[132]     The
findings of Dr. Hirsch and Dr. Leith cast doubt upon Mr. McNeil’s findings. 
The weight to be given Mr. McNeil’s opinion is discussed below.

[133]     Ms.
Rintoul reported to Mr. McNeil and Dr. Hirsch only minimal restrictions in her
ability to do various daily housework tasks, before and after the accident. Her
current neck and upper back complaints limit her ability to vacuum somewhat. However,
Mr. McNeil’s assessment was that her actual capacity to do these tasks, when he
assessed her, was only one-third her self-reported capacity.  This leads to
three possible conclusions.  Either Ms. Rintoul’s self-assessment of her past
and present capacity is wholly unreliable, in which case her pre-accident
restrictions would have been as profound as those which Mr. McNeil felt she
demonstrated during Mr. McNeil’s assessment; or, her self-assessment of her
current condition was correct, and Mr. McNeil’s assessment methods, or
conclusions, exaggerated her degree of restriction. Whatever explanation is
true, it does not lead to the conclusion that the subject accident is
responsible for Ms. Rintoul’s current complaints of neck and upper back pain
and stiffness.

[134]     Dr.
Stewart, the plaintiff’s physiatry expert, recommended that Ms. Rintoul
continue physiotherapy over the long term, for symptomatic relief, given that
she found it helpful in decreasing pain and tension in her upper back. Dr.
Stewart expected that Ms. Rintoul would be able to decrease the frequency of
physiotherapy to every two weeks.

[135]     Dr. Hirsch
rebutted this evidence. He believed that this mode of rehabilitative therapy
should be time-limited and goal-oriented. Dr. Hirsch’s opinion is that Ms.
Rintoul needs to perform a regular exercise programme, consisting of abdominal
core, neck and shoulder blade stabilization exercises, neck and hip girdle
stretching exercises, hip girdle strengthening exercise and cardiovascular
exercise. He also noted that she may benefit from trigger point injections to
the trapezius muscles.

[136]     Dr.
Stewart expressed some skepticism as to the utility of the stabilization and
stretching exercises recommended by Dr. Hirsch, given Ms. Rintoul’s phocomelia
and given that she is more flexible than average because of the way she uses
her body. Dr. Hirsch’s reply to that was that because Ms. Rintoul in effect
uses her head and shoulder girdle as a prehensile tool, to grasp and move
objects, she has a greater need to stretch, strengthen, and stabilize these
muscle groups.

[137]     Dr. Leith shared
Dr. Hirsch’s reservations as to the utility of further physiotherapy.

[138]     Dr. Hirsch
believed that Ms. Rintoul’s headaches are probably attributable to tension or
to her jaw symptoms. Improvement of her pain in her neck, upper back, and jaw
could be expected to result in a lessening of her headache symptoms.

[139]    
Dr. Hirsch stated in his report,

As outlined above, Ms. Rintoul
appeared to have been experiencing chronic neck and upper back symptoms
predating the subject motor vehicle accident, precipitated by the remote motor
vehicle accident in June of 2004. In the context of pre-existing neck and upper
back symptoms, Ms. Rintoul was probably more susceptible to any superimposed
trauma. By the same token, it is difficult at this stage to quantify to what
extent her ongoing neck and upper back symptoms are causally related to the
injuries she incurred to her neck and upper back in the subject motor vehicle accident,
versus her pre-existing chronic painful neck and upper back condition.

[140]    
He gave the following prognosis:

With respect to the musculoskeletal injuries Ms. Rintoul
suffered in the motor vehicle accident, I would view her long-term prognosis is
as favourable. In the context of her pre-existing neck and upper back symptoms
and the accommodating strategies she has to employ to compensate for her absent
upper limbs, I expect that she will be left with some degree of discomfort and
pain in her neck and upper back, which, however, would e expected to be
manageable with conservative measures.

From a functional perspective, Ms.
Rintoul has regained her abilities to almost the same degree as prior to the
subject motor vehicle accident. . . .

[141]     He
expressed the view that Ms. Rintoul is physically capable of working full time
as a legal secretary or in a similar occupation.

[142]     As noted,
Ms. Rintoul underwent a functional capacity evaluation by Mr. Russell McNeil.
Mr. McNeil identified many areas or tasks in which he assessed her as being
restricted in her capacity. In some areas, he assessed her capacity as being
somewhat more restricted than her own perceived or reported levels. Mr. McNeil
concluded that Ms. Rintoul does not have the demonstrated ability to perform as
a legal secretary on a full-time basis, at a competitively employable work
pace. He concluded that she has sufficient capacity for part-time work only,
with accommodations for her work station and the pace of her work.

[143]     Mr.
McNeil’s report failed to address the fact that Ms. Rintoul had been able to
work full time at Pierce Law Group and at Shergill & Company, following the
accident, without her physical complaints impacting on her ability to perform.
In that most significant respect his report does not have the air of reality.
Ms. Rintoul did not testify to suffering anywhere near the level of disability
which Mr. McNeil concluded was present. I give no weight to his opinion.

[144]     Dr.
Stewart, the plaintiff’s physiatrist, was of the view that Ms. Rintoul was
continuing to suffer the effects of the motor vehicle accident, and that her
prognosis for full recovery from her injuries was doubtful. Dr. Stewart appears
to have been highly influenced by the opinions of Dr. Krywaniuk and Mr.
MacNeil. Dr. Krywaniuk’s opinion is problematic and I comment on it in the
following section of these reasons. Dr. Stewart was also presuming that at the
time of the subject accident, the plaintiff’s injuries from her earlier 2004
accident had fully resolved by December 2005. As stated above I have found that
not to have been the case. I give relatively little weight to Dr. Stewart’s
opinion.

[145]     I find it
has not been established on the evidence that the majority of the continuing neck
and back symptoms are any more than the consequences of deconditioning, i.e.
lack of regular exercise and stretching, superimposed on her pre-existing
symptoms. The accident has not been showed to have caused the plaintiff to be
physically disabled from any form of employment.

[146]     However, I
find that the plaintiff has proven, on a balance of probabilities, that as a
result of the accident she continues to suffer jaw pain, thigh pain, some
degree of elevation of her pre-existing neck and upper back symptoms, and
headache, and that she will continue to suffer those symptoms attributable to
the accident, though to a relatively minor extent. It has also been established
that the injuries sustained in the accident have likely made her more
vulnerable to injury in her neck and upper back, in the future, and that she
has an elevated risk of seizures.

[147]     I conclude
that as a result of the accident, the plaintiff will require some degree of
ongoing physical therapy.  Dr. Hirsch and Dr. Leith advocate exercise and
stretching as preferable to passive treatments, but it is not clear to me that
they have turned their minds to the question of whether the plaintiff will be
able to carry out a full range of stretches of her neck and shoulder muscles,
given that she is without upper arms and therefore does not have the ability to
stretch using her arms. It may be the case that given her anatomical
restrictions, the administration of active physical or manual therapy as a
supplement to stretching is called for, and given that continuing passive
treatments are recommended by Dr. Stewart I find them appropriate in this case.

Neurological and Neuroradiological Evidence

[148]     The
majority of the neurological evidence addressed the extent and consequences of
the plaintiff’s brain injury. One discrete topic addressed by some of the
neurologists was the issue of the plaintiff’s headaches.

[149]    
Dr. Johnston evaluated Ms. Rintoul in May 2007 at the request of her
g.p. Dr. Wang. In his consultation report he stated that he suspected her
headaches were

. . . related to a combination
of temporomadibular joint dysfunction related to the accident and cervical
spine soft tissue injury with referred pain. I don’t think this is true
post-traumatic headache but it’s impossible to exclude that at this point.

[150]    
Dr. Rees, the defence neurologist, opined as to the headaches in his
report of March 5, 2009. He noted Dr. Johnston’s conclusions and stated,

Present information would
suggest that her continued headaches are predominantly or exclusively of
tension type related both to emotional tension and muscular tension in her neck
and jaws.

[151]    
It will be noted that Dr. Johnston’s initial opinion, and Dr. Rees’
opinion, are consistent with the opinion of the physiatrist Dr. Hirsch, as summarized
above.

[152]    
In a medical-legal report prepared in November 2009, Dr. Johnston – who
had not re-examined the plaintiff, but who had been given some further medical
records – wrote,

Ms. Rintoul suffered a post-traumatic headache as a result of
the accident of November 3, 2006, and these have been a chronic problem since
the accident.

. . .

In particular, her headaches
were an ongoing problem. In my experience, post-traumatic headaches can be a
long lasting symptom after an impact such as this. It is not uncommon for
post-traumatic headaches to last, to varying degrees, for many years. Dr.
Townsend’s letter reports that she was still suffering two or three headaches
per month as of July 2009.

[153]     In
cross-examination, Dr. Johnston was not able to defend his apparent change of
opinion.

[154]     With
respect to the brain injury, if the plaintiff’s difficulties in the work
setting as described above arose out of cognitive deficiencies, a variety of
cognitive functions such as executive functioning and the exercise of judgment,
and/or memory could be implicated. It is common ground that these functions are
related to the frontal lobes of the brain, and, with respect to memory, to the
deeper structures within the temporal lobes.

[155]     The report
of the first CT scan of the plaintiff’s head following the accident indicated
that there were hemorrhagic contusions over the convexity of the right frontal
lobe. This report, it is acknowledged by both parties, was in error; subsequent
review of the CT scan, and subsequent MRI examinations confirmed that there was
one small "coup" surface contusion on the left side of the brain, on
the left frontal convexity of the temporal lobe; and, two or three small
"contre coup” contusions on the opposite location, resulting from movement
of the brain within the skull case from the initial blow. These were the only
indications of injury to the brain, and they were to the superficial structures
of the temporal lobes only. There is no direct evidence on the imaging studies
indicative of injury to the frontal lobes.

[156]     Three
expert witnesses who testified for the plaintiff – a psychiatrist, Dr. Lu, a
radiologist, Dr. Clement, and the aforementioned neurologist Dr. Johnston –
testified that the contusions themselves were evidence, directly or by
implication, of a serious brain injury.

[157]     Dr. Lu
felt that the contusions were likely the “tip of the iceberg” and indicative of
a severe injury. On cross-examination, he conceded that the adjective “severe”
would not be in keeping, in this case, with conventional classification of the
plaintiff’s injury. Dr. Lu seemed only to have a superficial degree of
familiarity with some fairly basic concepts in the fields of neurology and
brain injury. Alone amongst the many experts who testified, he attached no
particular significance to the contusions being in the temporal lobes as
opposed to the frontal lobes; being close to the frontal lobes, in his view,
was sufficient to raise the possibility of the contusions causing impaired
executive functioning. He also seemed unfamiliar with the sensitivity of MRI
examinations, stating that they could only detect contusions down to about the
size of a thumb. I did not attach any weight to Dr. Lu’s opinion on matters
related to neurology.

[158]     Dr.
Clement testified that over the past 20 years approximately, it has become
increasingly understood that in cases of mild and moderate traumatic brain
injury, one of the more significant mechanisms by which injury occurs is
“diffuse axonal injury” or DAI — injury to the linkages between axons and neurons
in the white matter of the brain, as a result of the forces of
acceleration/deceleration. A majority of such injuries are not detectable with
standard imaging techniques; the damage is too small, and if there is no
bleeding there will be no hemosiderin – a signature product of blood
degradation which MRI’s excel in detecting. The CT scan and the two MRI’s
cannot rule out the possibility of Ms. Rintoul having suffered a DAI.

[159]     Dr.
Johnston also used the “tip of the iceberg” metaphor, and on the basis of the damage
shown on the imaging studies inferred that Ms. Rintoul’s brain injury was
severe.

[160]     The
defence relied upon the opinions of a neurologist, Dr. Rees, and a
neuroradiologist, Dr. Graeb.

[161]     I accept
the opinion of Dr. Rees that the appropriate classification of the plaintiff’s
brain injury, given her Glasgow Coma Scale scores of 14 and 15, and given
post-traumatic amnesia of less than 24 hours, is of a mild traumatic brain
injury; and that the presence, as documented in the imaging studies, of structural
damage to the brain means that her injury was at the upper end of mild,
bordering on moderate — or, "complicated mild”.

[162]     Dr. Rees,
in his report, described the GCS and PTA criteria as being those of “multifocal”
or diffuse axonal injury, i.e. injury to the axons – the nerve fibres in the
interior white matter of the brain, which provide interconnection between
different areas of the cortex. The potential for a diffuse axonal injury still
being present is, in his opinion, a factor in the uncertainty as to Ms.
Rintoul’s prognosis.

[163]     On
cross-examination of Dr. Rees, several statements were put to him from a
medical text. Dr. Rees agreed that the frontal lobes have the greatest degree
of connectivity with other regions of the brain; connectivity is established
through long association fibres, i.e. axons that have one terminus in the
frontal lobes. These axons may be damaged in a diffuse axonal injury, or a
complicated mild traumatic brain injury.  (This was consistent with evidence
given by the defence neuropsychologist Dr. Iverson that deficits in executive
functioning can be caused by damage to the frontal lobes, or to their
interconnections.)

[164]     Dr. Rees
also testified that Ms. Rintoul’s risk of developing epilepsy as a consequence
of the trauma to her brain is five times greater than that of the population
who have not suffered a traumatic brain injury, i.e. a 5% risk. I accept this
evidence.

[165]     With
respect to the implications of the imaging studies of the plaintiff’s brain,
the defence neuroradiologist Dr. Graeb agreed that there could have been more
widespread damage than indicated. He explained that the two types of MRI used –
gradient echo and susceptibility-weighted – would not detect a focal
non-hemorrhagic contusion smaller that 1 mm or 2 mm in size. Furthermore, even
an MRI which is normal in all respects will not rule out the possibility of DAI.
There is evidence that such injuries may be detected with a new emerging
technology, diffuse tensor imaging or DTI.  However, DTI is only available for
experimental purposes at present in British Columbia; this technology could not
have been made available to refine Ms. Rintoul’s diagnosis.

[166]     On
cross-examination, Dr. Graeb agreed with the proposition that DAI’s are known
to result from shearing forces within the brain; however, he qualified this
evidence, stating that he was not aware of an association between DAI’s and
contre coup injuries caused by a direct blow. DAI’s, he stated, (and here he
may have been opining outside his specific area of expertise in neuroradiology)
are more typically associated with acceleration/deceleration whiplash injuries,
or rotational forces. However, neither he, nor any other witness, gave evidence
as to whether or not the mechanical forces that would have been at work in the
case of Ms. Rintoul’s accident – acceleration of her body and head when she was
struck by the vehicle, and sudden deceleration when her head hit the pavement –
could be expected to result in a DAI. Dr. Graeb did acknowledge that persons
with DAI may exhibit evidence of executive dysfunction, short term memory
difficulties, and labile mood.

[167]     Given the
evidence of the neurologists, the plaintiff contends that notwithstanding the
lack of direct evidence of trauma to the frontal lobes, the subject accident
was sufficient to cause a diffuse injury to the axons providing connection to
the frontal lobes, resulting in cognitive impairment that could account for Ms.
Rintoul’s performance issues as Shergill & Company.

[168]     No medical
doctor gave that explicit opinion, and that specific proposition was not put to
any of the witnesses. However, I took to be implicit in the evidence of the
neurologists and radiologists that, at a minimum, the trauma inflicted on Ms.
Rintoul’s brain by the accident may have been sufficient to cause a
diffuse axonal injury of a magnitude which could lead to permanent and significant
cognitive impairment, and I so find.

[169]    
Beyond this, I do not find that the neurological and neuroradiological
evidence is of much assistance. In particular I did not find the “tip of the
iceberg” metaphor used by Dr. Lu and Dr. Johnston to be helpful in
understanding what has happened to Ms. Rintoul. Because of our knowledge of the
physical characteristics of ice we can draw reliable conclusions about the size
of an iceberg beneath the ocean surface, from the size of its visible tip. I am
not persuaded that we can draw similar conclusions about the likelihood or
unlikelihood of significant axonal injury from either the presence of
superficial contusions, or the absence of indications of hermosiderin on a MRI.
More to the point, I am not persuaded that we can reliably draw such
conclusions if they would be inconsistent with evidence of a patient’s
post-accident cognitive functioning in the real world.

[170]    
As noted above, I have accepted Dr. Rees’ opinion as to the proper
classification of the plaintiff’s brain injury. I also accept the following
opinion of Dr. Rees, as stated in his report of March 5, 2009, regarding the
plaintiff’s prognosis:

In this situation, full
resolution of neurocognitive sequelae is more likely to be incomplete compared
to when there is no structural abnormality shown by imaging. Accordingly, some
individuals with "complicated mild” injury make a full recovery, and
others do not.

[171]     Dr. Rees further
opined in his report that in the case of Ms. Rintoul there are two points that
would favour complete or near-complete resolution of her brain injury: the
suggestion, from a follow-up MRI study of the brain in August 2007, of complete
reversal of the structural abnormalities, without residual focal atrophy; and,
the plaintiff’s return to full employment in a more challenging line of work.

[172]     I find
that Dr. Rees was an error with respect to both of these points. As the defence
concedes, the conclusion that there had been a complete reversal, in the report
of the 2007 MRI, was incorrect. The defence neuroradiologist Dr. Graeb gave
evidence that cystic degeneration was imaged on that MRI and that it was
indicative of brain cell death. Further, as noted above, Ms. Rintoul’s return
to employment was far from uneventful.

[173]     Dr. Rees
conceded on cross-examination that as his assumptions were incorrect, his
conclusions also would have been incorrect to a degree. I therefore discount
Dr. Rees’ opinion as to the likelihood of Ms. Rintoul’s brain injury resolving
or having resolved.

[174]     To various
expert witnesses who carried out assessments of Ms. Rintoul, defence counsel
asked a series of questions intended — or so I inferred — to illustrate that
the plaintiff showed no overt signs of brain injury: they all observed when
interviewing her that her speech was spontaneous, her thoughts were
well-organized, she was able to express yourself without difficulty and choose
the right words to express what she had to say, she did not ramble or repeat
herself, and she conducted herself in a perfectly normal way.

[175]     The
defence says that this evidence is significant, in that the absence of
"typical brain injury symptoms" on these interviews makes it less
likely that the motor vehicle accident has caused permanent brain injury
symptoms. I do not accept this argument. There is no evidence that these
characteristics of the plaintiff’s presentation during assessments are
inconsistent with or diminish the probability of the existence of a brain
injury which is subtle – that is to say, difficult to measure or detect –  but which
nevertheless could profoundly or significantly affect cognitive abilities
critical to the plaintiff’s employability. The absence of gross manifestations of
impairment is of no assistance to the court in determining whether that is the
case.

[176]     The
defence, largely on the basis of the evidence of Dr. Graeb as to the limited
extent of the injuries revealed by the imaging studies, contends that a person
whose brain injury has similar characteristics to those revealed on Ms.
Rintoul’s studies can expect probably to have a good outcome. This argument
confuses a prognosis, based on statistics of how other brain injury patients
with similar imaging results fare over the long run, with the diagnosis, i.e.
the analysis – based on all of the present evidence of the plaintiff’s
condition – of the probability of Ms. Rintoul’s present difficulties being
caused by a brain injury. At the time of trial, more than three years had passed
since Ms. Rintoul’s accident. In the words of the defendant’s physiatrist, Dr.
Hirsch, “she is now past the time when neurologic recovery occurs”.  If the
difficulties which arose in her employment were a result of cognitive
impairment, or deficits, caused by a diffuse axonal injury, then the fact that
her cognitive issues are continuing indicates that improvement of her cognitive
functioning is unlikely.

[177]     I do not
accept that the duration of the PTA, the GCS score, the classification of the
plaintiff’s injury and the evidence revealed by the imaging studies have any
implications for the present case beyond Dr. Rees’ simple statement that some
persons with complicated mild injuries recover, and some do not. The questions
of whether Ms. Rintoul did in fact sustain a diffuse axonal injury, and whether
her employment difficulties were in fact caused by her brain injury, can only
be answered by reference to other evidence.

Psychological and Neuropsychological Evidence

[178]     Dr. Larry
Krywaniuk performed neuropsychological testing and a psychological assessment
for the plaintiff. Dr. Grant Iverson undertook these tasks for the defence. Dr.
Wallace carried out a vocational assessment for the plaintiff, in the course of
which he conducted a psychological assessment.

Opinion of Dr. Krywaniuk

[179]     Dr.
Krywaniuk assessed Ms. Rintoul as being of average intelligence with a full
scale IQ of 95. He felt this was somewhat low given that she has had some
post-secondary education and vocational training.  Her perceptual reasoning
scores were in the upper half of the average range, the verbal comprehension in
the lower half.

[180]     In terms
of language skills, she responded appropriately but seemed to Dr. Krywaniuk to
process language more slowly than expected, with evidence of word-finding
difficulties. There were indications on the Nelson-Denny Reading Test of some
difficulty with complex verbal processing. Abstract verbal reasoning scores on
the WAIS-IV intelligence test were well below expected levels, with nonverbal
abstract reasoning being substantially better. Dr. Krywaniuk expressed the view
that some of Ms. Rintoul’s scores, on tests dependent on physical responses,
were lower in part because of her phocomelia and would tend to underrate her
performance and ability. This would result in the discrepancy between verbal
and non-verbal abilities appearing to be smaller than it actually is.  His
interpretation of the WAIS-IV (Weschler Adult Intelligence Scale, 4^th
edition) scores was that they indicated “substantial difficulty with verbal
conceptualization, form generalizations or understanding ideas”.

[181]     Her
overall memory score was in the superior range, substantially higher than her
overall intellectual abilities would suggest. However, her working memory score
was at the 27^th percentile, the bottom of the average range, on the
WAIS-IV test; on the WAIS-III working memory component, her score was higher,
which Dr. Krywaniuk attributed to the fact that those components are more
highly dependent on visual abilities, a relative area of strength for Ms.
Rintoul. On tests that demanded rapid information processing and divided
attention, her scores were significantly impaired, On the PASAT her scores were
in the impaired range, with her demonstrating a tendency to panic and unable to
respond – not an unusual result, given the stressful nature of the tests.
Overall, Dr. Krywaniuk was of the view that Ms. Rintoul’s memory functions were
in the superior range.

[182]     Other
tests aimed specifically at testing of frontal lobe functions gave average scores,
though with some degree of unevenness.

[183]     Psychological
testing using the MMPI gave a profile consistent with a mood disorder or
adjustment disorder; Dr. Krywaniuk opined that the general indication is
depression along with adjustment difficulties associated with the accident and
the changes she has experienced. Use of a symptom checklist, SA-45, gave mildly
elevated scores on the depressive and obsessive-compulsive scales, though not
at the level of clinical significance. He noted the perfectionist tendency,
given the need for order as a consequence of her physical disability.

[184]     Dr.
Krywaniuk felt that the disparity between Ms. Rintoul’s superior memory scores,
and her low-average overall intellectual functioning, and the other
neuropsychological deficits demonstrated by testing were characteristic of and
consistent with a frontal lobe injury. Among the documents he was provided with
before he assessed the plaintiff was the erroneous CT scan reported which
located contusions in the frontal lobes.

[185]    
With respect to her emotional condition, he believed that in the wake of
her difficulties with her employer, and her she had developed a “maladaptive
emotional adjustment pattern”, with feelings of guilt, self-blame and
diminished self-concept and self-confidence, due to being unsuccessful in the
workplace, overlying a depression which was mild at least. He comments,

Although she anticipates going
back to a similar job, this may . . . simply reflect a sense of denial and
defensiveness.

[186]    
Dr. Krywaniuk believed that her neuropsychological and psychological
prognosis was “at least mildly guarded”. Anxiety about work could lead to her
becoming overwhelmed, with her coping structures tending to fall apart. The
combination of decreased emotional resilience and increased difficulties on the
job,

. . . make returning to work a
considerable challenge for her and there is substantial likelihood that she
will not be able to function at the same level as before.

[187]    
Dr. Krywaniuk’s report concluded :

Ms. Rintoul has grown up with incredible
challenges and, in many ways, she has adapted to them in a remarkable fashion.
At the same time, however, she is more dependent on things being exactly right
in order for her to be able to function. This may account for her tendency
towards obsessiveness and the need for structure. Her accident has had the
effect of disturbing the structure as well as reducing her confidence and her
cognitive skills. As a result, she is substantially less adaptive [than] she
was before. This will persist into the future at both the physical and
emotional level.

[188]     He
recommended that she undergo counselling.

[189]     With respect
to the neuropsychological testing, on cross-examination, Dr. Krywaniuk conceded
that there had been an error in his scoring of a component of the Weschler
Memory Scale – III. Revising the test scores brought Ms. Rintoul’s score on the
auditory immediate memory index up from the 55^th percentile to the
82^nd, and on the immediate memory index, from the 70^th
percentile to the 86^th. Dr. Krywaniuk also conceded that Ms.
Rintoul’s memory abilities, as measured on testing, likely have always been
high and continue to be high; and that her intelligence continues to be average
to high-average.

[190]     The
scoring error in Dr. Krywaniuk’s report did not impact the WAIS-IV Similarities
subtest result, in which Ms. Rintoul had scored in the 5^th percentile.
That score, and another equally unusual low score on the Digit Span subtest,
brought her overall WAIS-IV score into the 27^th percentile.

[191]     Dr.
Krywaniuk maintained his position that, apart from the tests on which there had
been errors in scoring, there was still a pattern of relative weaknesses – he
would not go so far as to describe them as “deficiencies” – in verbal areas,
compared to non-verbal. He based this opinion largely on the variability in her
scoring across different tests.

Opinion of Dr. Wallace

[192]     Dr.
Wallace conducted a psychological and vocational assessment of Ms. Rintoul at
the request of her counsel. He did not see the need to duplicate Dr.
Krywaniuk’s neuropsychological testing and his report adopts Dr. Krywaniuk’s
interpretation of those test results. Dr. Wallace did carry out a depression
screening assessment. He concluded that she is suffering from depression to
some degree; he did, however, note a particular concern in that Ms. Rintoul
appeared to have a tendency to under-report negative aspects of herself. Dr.
Wallace also felt that Ms. Rintoul’s difficulties experienced at work following
the accident have been hard on her self-concept and self esteem. He agreed that
continued counselling is appropriate, and was optimistic that she could learn some
coping strategies to assist her in the workplace.

[193]    
Dr. Wallace, in his evidence at trial, elaborated on this opinion. He
testified that for Ms. Rintoul, her being gainfully employed was the first
significant step she had taken towards independence, and that with her failure
at Shergill & Company her self concept has been shattered. Asked about the
consequences of continuous future failures in the workplace, he said:

A:         I don’t think
that would happen too often, because I don’t think her self concept could hold
it. I think she simply wouldn’t do it because it’s too threatening to her sense
of self to set herself up to fail again. If however she was able to continue to
get jobs but failed at them, then over time, that has the effect of making it
more difficult to getting any new job because now you’re carting around this
resume of job failures, and clearly that acts as a red flag to any prospective
employer, so your attractiveness as an employee certainly goes down with that
type of work history.

Opinion of Dr. Iverson

[194]     Dr.
Iverson also administered tests of Ms. Rintoul’s intellectual functioning, and
found her verbal intelligence and reasoning to be above average, and her
nonverbal intelligence and reasoning to be superior. He attributed no
significance to one being higher than the other. A battery of
neuropsychological tests yielded an overall mean score in the average range; in
specific domains, e.g. processing speed, executive functioning, and learning 
& memory, some test score averages were in the superior or high-average
classification range, and none were less than average. Some specific scores
were low-average, particularly in learning, and attention & working memory.
Dr. Iverson did not feel that the variability in her scoring across different
tests was clinically significant.

[195]     Among the
tests Dr. Iverson administered was the third edition of the Weschler test,
WAIS-III.  Whereas Dr. Krywanuk had scored Ms. Rintoul on the WAIS-IV’s
Similarities subtest in the 5^th percentile, Dr. Iverson scored her
at the 84^th percentile. This dramatic difference, Dr. Iverson
testified, was not attributable to different versions of the test being used,
nor to practice effects. He was of the view that Dr. Krywaniuk’s result was
spuriously low and should be considered an anomaly. As Dr. Krywaniuk had, he
found Ms. Rintoul scored unusually low on the Digit Span subtest, but in view
of the other subtest scores – with some degree of variability being normal, and
with the probability of variability increasing with the number of tests
performed — he did not attribute any significance to this.

[196]    
Dr. Iverson stated in his report that there are no universally-accepted
definitions of cognitive impairment. He provided a continuum of categories,
ranging from the most severe — “Profound cognitive impairment/severe dementia”
— through severe, moderate, and mild forms of impairment, to the least severe
category, what he termed “mild cognitive diminishment”. He believes that Ms.
Rintoul falls within the latter category, which he described in the following
terms:

This is not cognitive
“impairment”. Instead, this represents a mild diminishment in cognitive
functioning. This cognitive diminishment may or may not be identifiable using
neuropsychological tests. This diminishment can, but does not always, have a
mild adverse impact on a person’s social and/or occupational functioning. This
diminishment may or may not be noticeable by others.

[197]     He opined,
in his report, that this cognitive diminishment, in Ms. Rintoul’s case,
manifests itself in forgetfulness and some aspects of executive functioning
such as planning, organizing and sequencing. This forgetfulness, in his
opinion, is likely related to lapses in attention and concentration, rather
than memory per se, as her core learning and memory functions appeared
from testing to be intact; this, he suspects, may lead her to miss part of the
information that is being presented at the very beginning of a conversation or
interaction.

[198]    
Dr. Iverson’s evaluation of Ms. Rintoul’s mental health was that she
meets the criteria for an Adjustment Disorder with Anxiety. This disorder did
not predate the accident, but he hypothesizes that there were aspects of the
plaintiff’s personality that predisposed her to anxiety in certain situations. Under
cross-examination, he stated that it was his understanding that Ms. Rintoul has
had some anxiety-related problems for many years before and after the accident.
He therefore assumed that to a certain degree, there had been anxiety
throughout her adolescence and adult life.

[199]    
Dr. Iverson was of the opinion that Ms. Rintoul’s cognitive diminishment
was multifactorial in origin, with her anxiety playing a significant role due
to its self-perpetuating and self-reinforcing nature. Being downsized from
Pierce Law Group would have led to stress and worry. Ongoing pain, and
perceived changes in her cognitive functioning, would also predispose her to
developing this adjustment disorder. His report continued,

. . . When she obtained her next
job [at Shergill & Company], with greatly increased responsibilities and
significantly diminished supervision and guidance, her anxiety condition either
emerged de novo or was seriously exacerbated. In other words, her anxiety
condition was likely kindled by multiple factors and then elicited by
struggling to perform on her new job.

[200]     Dr. Iverson’s report concludes that with psychological treatment
and/or a reduction in her current pain levels, Ms. Rintoul might
experience improvement in her cognitive functioning, and could learn and apply
compensatory techniques to lessen the impact of her difficulties. With
treatment for her anxiety, motivational counseling, and guidance regarding
managing her cognitive inefficiencies, he anticipates that she will transition
relatively easily back to the workplace.

[201]     Dr.
Iverson’s theory as to the role played by anxiety in the plaintiff’s condition,
and the genesis of that anxiety, is critical to the defendant’s case. The
defence contends that the job at Shergill & Company was beyond the
plaintiff’s abilities, and that the plaintiff had an anxiety reaction to her
inability to perform on the job, which manifested itself in cognitive issues. Further,
it is argued, her perception that she suffers significant cognitive
deficiencies has fed her anxiety. The subject accident has
become the scapegoat for the Plaintiff’s problems. This litigation, it is
argued, has been counter‑productive for the treatment of the Plaintiff’s
real problem, which is emotional or psychological.   The plaintiff has not been
able to resolve or deal effectively with her anxiety and this has detracted
from her enjoyment of life.  The defence submission is that the sooner this
litigation ends, the sooner the plaintiff will be in a position to address her
issues, and the better the plaintiff’s prospects for a good and healthy life.

Analysis of the Neuropsychologists’ Opinions

[202]     Dr.
Iverson’s credentials as a neuropsychologist are superior to those of Dr.
Krywaniuk in every respect. As between the two of them, I prefer the opinion of
Dr. Iverson as to all matters of interpretation of neuropsychological test
results.

[203]     Specifically,
I do not accept Dr. Krywaniuk’s opinion that his test results demonstrate a
significant degree of cognitive impairment.  When the scoring error on the
memory test and the anomalous result on the WAIS-IV test are taken into
account, I accept Dr. Iverson’s opinion that Dr. Krywaniuk’s testing revealed
no remaining indicia of impairment. Following his acknowledgment of the scoring
error, Dr. Krywaniuk tried to maintain, under cross-examination, that there was
still some basis for concluding that there were deficiencies, but in giving that
evidence I believe Dr. Krywaniuk was likely biased by his misunderstanding —
based on the erroneous CT scan report – that there had focal contusions to the
frontal lobes, and that he also was likely unable to discount appropriately the
influence which the erroneous scoring had on his opinion.

[204]     I also,
however, have a great many reservations with Dr. Iverson’s opinion.

[205]    
My first reservations are with respect to the ability of
neuropsychological testing, or test interpretation, to detect cases of subtle cognitive
dysfunction and to characterize it accurately in terms of its impact on a test
subject’s functioning in the real world. I asked Dr. Iverson if he was able to
explain whether he was able to look at Ms. Rintoul’s test scores and say,
categorically, that she had not suffered a cognitive impairment, as opposed to
simply saying that she had not suffered a cognitive impairment of the type that
these tests are capable of measuring. Dr. Iverson gave a lengthy answer:

A:         It’s cutting right to the heart of neuropsychology,
and neuropsychology is very good at defining a specific cause for low test
scores. We are more precise with the primary inference, and the primary
inference is, you have a cognitive problem, and as measured by our tests, and
our tests without question have limitations.

 The primary inference is, do you have a
cognitive problem and then a secondary inference might be, what is the cause or
what are the causes of the cognitive problem, and then your question also
expands that to, to what extent do your tests actually measure something real
for the person in their daily life and is it a fair and comprehensive
assessment of what it’s like to be a human being with a cognitive problem. And that
is a philosophical question to a certain degree and a methodological question,
and I would say that our tests, we tried very hard to measure or cognitive
abilities, some of which are relevant to daily life and some of which are less
relevant to daily life, but we think are relevant to how the brain works, and
the idea of moving from the laboratory to the real world is complicated without
question. Sometimes it is very straightforward.         If a person has
something seriously wrong with their brain, we can identify it pretty easily in
the laboratory and it makes sense that they have problems in the real world.

 If a person has
something very subtle wrong with their brain, it is difficult to identify that
in the laboratory, and it is difficult to identify that in the real world. And
crossing from the laboratory to the real world is difficult when it comes to
things that are very subtly wrong with your brain, and that’s because many
things mimic or cause cognitive problems. So, mental health problems cause
cognitive problems. Neurological problems cause cognitive problems and for you
all, spending a long day in court and long hours at night and being exhausted
and trying to listen to me talk about philosophy and methodology is probably
causing a cognitive problem in terms of waxing attention and that sort of thing. 
. . .

[206]    
Dr. Iverson continued:

A:         I mean, we are good – when we know something
is wrong with your brain, we are good at correlating from the laboratory to the
brain. So if you have a language problem, we can measure that well. If you have
a visual/spatial problem we can measure and quantify that in the laboratory. If
you have Alzheimer’s disease and you have a memory problem, we are very good at
measuring that. If you have Parkinson’s disease and you have slowed processing,
it’s called bradyphrenia, slow thinking, we’re good at measuring that.

 So we are good
at quantifying changes in brain function that are attributable to neurological
injury and disease. Where the trouble comes is when we’re talking about things
that are very subtle, the subtle overlap between normal functioning and
something not being right with a person’s brain. That’s where – that’s where
it’s most difficult, of course. And so for – an example of that would be
identifying the very early stages of Alzheimer’s disease. That’s the holy grail
for the drug industry right now and a tremendous amount of effort is being put
into that, and neuropsychology is at the forefront of trying to develop a
methodology for the very beginning of Alzheimer’s, when do you see it first.
And that’s cognition and so we need a laboratory for that.

[207]    
When Dr. Iverson’s testimony resumed two days later, he elaborated on
this evidence:

A:         I think that when you give a large number of
tests to someone and they perform well on those tests, that that provides you
information about how certain cognitive abilities are operative for that
individual. Take, for example, memory: if you give a person a lot of memory
tests and they consistently perform well or very well, and that finding
replicates with additional testing, you can have increased confidence that the
person does not have a serious problem with their memory in the sense that it
can be measured.

 That doesn’t mean that the person might not
have a problem with their memory in their daily life. In their daily life, it’s
possible to have a problem with your memory for a lot of reasons that are
unrelated to your actual ability to learn and remember. For example, if you
have an anxiety problem, that anxiety problem can interfere with your
cognition. It can interfere with your ability to pay attention and to remember
something on the job, for example.

 Therefore, the
root cause in that scenario of a problem, a perceived problem with memory, is
actually a problem with anxiety as opposed to a more biologically based problem
with your ability to learn and remember.

[208]     Given Dr.
Iverson’s test results, I find unlikely that Ms. Rintoul’s tendency to
forgetfulness, as he termed it, when at Shergill & Company was related to her
ability to form memories. Also, with respect to at least some of the memory
issues reported by Ms. Rintoul in social settings — specifically, I have in
mind the incident when she could not recall scenes from a movie which she had
previously seen — I accept that there is no reason to attribute them to an
organic brain injury or dysfunction. An incident such as she describes is
readily explained as a common, everyday result of distraction. Not all
forgetting is a sign of pathology. It is significant that Ms. Rintoul feels
that such incidents are a sign that something is seriously wrong with her
brain. This reaction is understandable and is of the type that should be
addressed through psychological therapy or counselling.

[209]     On the
other hand, I do not think that Dr. Iverson’s opinion that her memory issues
may be attributable simply to her missing part of the information that is being
presented at the very beginning of a conversation or interaction, quite
captures the full extent of the difficulties she reports in following
conversations. Dr. Iverson seems somewhat dismissive in describing this as a
mild diminishment with possibly only a mild adverse functional impact.  I would
think that for a person in Ms. Rintoul’s position, the difficulties she
describes could be extremely distressing and could seriously impair her
interaction with others.

[210]     I do not
find that Dr. Iverson’s test results necessarily lead to the conclusion that
the diminishment or impairment of Ms. Rintoul’s cognitive functioning, however
one might wish to describe it — in particular what she experienced in the
workplace as problems with her memory, and with executive functioning such as
planning, organizing and sequencing — would only mildly impact her
occupational functioning. The evidence may, in this case, suggest such a
limited functional impact but it does not rise to the level of conclusive proof
on a balance of probabilities.

[211]    
In his report, the defence neurologist Dr. Rees recommended
neuropsychological testing of Ms. Rintoul, but cautioned,

Her day-to-day performance in
and outside of the workplace may be a better measure of her cognitive status
than the artifice of formal neuropsychological testing.

Dr. Rees recommended that such
testing be carried out by an impartial neuropsychologist,

. . . having experience and
appropriate knowledge of the scope and limitations of neuropsychological
evaluation.

In this case, I find the evidence of Ms. Rintoul’s
performance in the workplace to be a better indicator of her cognitive
functioning, than either of the sets of neuropsychological tests.

[212]    
Dr. Iverson, in evaluating the role of anxiety as a significant
component of Ms. Rintoul’s cognitive difficulties in the workplace, focused
almost exclusively on her experience at Shergill & Company. Dr. Iverson was
of the view that the plaintiff has personality characteristics which predispose
her to anxiety, and concluded that an anxiety reaction – as exemplified by her
breaking down in tears before Ms. Shergill, and becoming tearful when
recounting those episodes to Dr. Iverson during their interview – is the best explanation
for what Ms. Rintoul perceived to be cognitive dysfunction. Although he did not
rule out the presence of a brain injury — as noted above, he described the
cause of her issues as “multi-factorial” – Dr. Iverson felt that anxiety was a
predominant factor. In direct examination he said,

. . . It was my impression that
she was experiencing a lot of anxiety and stress and worry, and preoccupation,
and that I have assumed that that anxiety, stress, worry and preoccupation with
her functioning interfere with her functioning. It interfered with her
performance. It certainly interfered with her perception. I was persuaded by
what she was saying, it made sense to me that when she would get into a
situation there, and be having a meeting with a lawyer who was supervising her,
she would almost have an anxiety attack in the context of that meeting, and
that would, without question in my mind, that would make it very difficult to
concentrate and process information effectively.

[213]     On
cross-examination, Dr. Iverson conceded that anxiety can complicate the
symptoms or manifestation of a cognitive deficit due to a traumatic brain
injury – like “throwing gasoline on a fire”.

[214]     It was
demonstrated on cross-examination that the factors which Dr. Iverson believed
he had identified on Ms. Rintoul’s personality assessment as pre-disposing the
plaintiff to anxiety did not substantially differentiate Ms. Rintoul from a
large proportion of the population.

[215]     Dr.
Iverson interviewed the plaintiff’s mother over the telephone. He did not ask
her whether anxiety had ever been an issue in her daughter’s life. I found this
omission on his part difficult to understand.

[216]     Dr.
Iverson took Ms. Rintoul’s focus on Shergill & Company during their
interview to be an indicator of anxiety surrounding her experience there.
However, Dr. Iverson acknowledged on cross-examination that one likely
explanation for that focus was that she had just been fired and was therefore
upset. Likewise, it appears to me that Ms. Rintoul having been tearful and distraught
when Ms. Shergill had addressed her shortcomings, towards the end of her
working there – when they were, in Ms. Shergill’s words, running out of options
– could just as easily be seen as a natural reaction to a very upsetting
circumstance, as opposed to the manifestation of an anxiety state.

[217]     On
cross-examination, Dr. Iverson stated that it was his sense from Ms. Rintoul
that there had been a dramatic difference between the job at Shergill &
Company, and her previous job at Pierce Law Group, in that the second employer
placed more responsibility on her. Dr. Iverson was not made aware of Ms.
Shergill’s evidence that Ms. Rintoul showed difficulties in coping even when
there had been an attempt made to address her difficulties by switching her
into family law, where there was less of a requirement for independent action
on her part.

[218]    
Dr. Iverson excused the lack of detail in his report of Ms. Rintoul’s
post-accident experience at Pierce Law Group by saying that that during the
interview Ms. Rintoul seemed focused on Shergill & Company, and that he did
not have, in his own mind, enough information to know what her experience had
been at the former employer. The only comment in Dr. Iverson’s expert report
regarding Pierce Law Group was as follows:

In June of 2008, Ms. Rintoul was
laid off from her job as a legal secretary. She had worked for nearly two
years. She said this was due to downsizing. She enjoyed working for this firm.
She worked under the supervision of two paralegals. They gave her specific projects
to do. She said that she was able to perform her job duties without difficulty.

[219]     It is not
clear whether the latter statement — performance of duties without difficulty
— was made by Ms. Rintoul in respect of her pre-existing physical limitations,
her physical injuries sustained in the accident, her cognitive issues, or a
combination of those factors; nor whether the statement was in respect of the
quality of her work product, as opposed to her productivity.

[220]     On
cross-examination, Dr. Iversen conceded that he was told by Ms. Rintoul that
following the accident she did have “minor problems” at Pierce Law Group – that
she “struggled” somewhat. Dr. Iversen said that he assumed that those problems
were worse when she initially got back to work following the accident, and that
they improved to a certain degree. That assumption was not supported by the
evidence at trial. He did not seek from her any elaboration as to her
“struggles”. Dr. Iverson acknowledged on cross-examination that Ms. Rintoul
appeared to him to have a tendency to minimize her problems and keep them to
herself. He does not seem to have considered whether her statement regarding
her job performance at Pierce Law Group needed further investigation, in light
of those personality traits.

[221]     It appears
that Dr. Iverson did not explore with Ms. Rintoul her subjective experiences at
Pierce Law Group in any detail. The defence conceded, in argument, that Dr.
Iverson did not have a complete picture of the plaintiff’s post-accident
employment experiences.

[222]     The
lynchpin of Dr. Iverson’s assessment of the role played by anxiety in Ms.
Rintoul’s employment experiences is his assumption that her cognitive issues,
or her subjective belief that she was suffering from cognitive issues, while
perhaps manifest to some extent at Pierce Law Group, only became significant
when she took on a more stressful job with Ms. Shergill.  This characterization
of Ms. Rintoul’s history is an oversimplification. It bears only some
resemblance to what actually transpired.

[223]     I conclude
that Dr. Iverson was likely predisposed to believe in the efficacy of his
neuropsychological evaluation of the plaintiff as a diagnostic tool. Therefore,
when he concluded that the test results did not indicate significant cognitive
impairment, it appears he was predisposed to attribute the plaintiff’s
employment difficulties to a factor, such as anxiety, which could independently
account for diminished cognitive functioning, rather that questioning his
underlying assumptions as to the efficacy of the tests.

[224]     I do not
find Dr. Iverson’s theory of the contributing role played by anxiety in the
emergence of Ms. Rintoul’s cognitive issues, or her failure at Shergill &
Company, to be consistent with or supported by the evidence. On the balance of
probabilities, I do not find anxiety to have been significant contributing
factor.

Discussion of the Defence’s “Anxiety Theory”

[225]    
The defence, in support of its position that the plaintiff’s current
issues are largely a function of anxiety, sought to emphasize the dissimilarities
between the plaintiff’s presentation at trial, and her presentation when she had
undergone independent medical examinations. The following description of the
plaintiff’s demeanour while on the witness stand was put by defence counsel to
a number of expert witnesses, and to her co-workers at Pierce Law Group, as a
hypothetical:

I want you to assume that at the
best of times in court the plaintiff was slow in answering questions, was
unrelaxed, and that there was a strained quality to her evidence. There’s
another set of times when I want you to assume that she was worse, that she was
halting in speech, emotional, anxious, and unable to articulate spontaneously
or well. I want you to assume that there was generally a third period of time
when she was answering questions about Shergill where she was overwhelmed,
where she had great difficulty organizing her thoughts, was tearful, was
stunned, was bewildered, and where her speech became almost paralyzed.

The witnesses were then asked how this compared to the
plaintiff’s presentation during their assessments of her.

[226]     Uniformly,
the witnesses to whom this hypothetical was addressed testified that the
plaintiff’s presentation during their interactions with her was dramatically
different: that she had been relaxed, self-confident, articulate, and
responsive.

[227]    
In argument, defence counsel asked me to accept their description of the
plaintiff’s presentation in court: that it,

. . . while variable, appeared
to involve substantial anxiety with slow processing and delivery of
information, particularly when subjects were raised which aggravated the
plaintiff’s anxiety, such as her experience at Shergill.

[228]     The
defence asks me to accept that the plaintiff’s performance as described in the
above hypothetical, in what it colourfully refers to as the "anxiety
cauldron" of trial, was analogous to what she exhibited when under stress
at Shergill & Company; that her forgetfulness and the stubbornness she
exhibited on the job were manifestations of the stress she was under; that the
stress in her job can be accounted for by her own inexperience, her competitive
disadvantages due to her physical condition, lack of mentoring, and the
unrealistic production expectations of her employer; and that the variability
or disparity between the plaintiff’s presentation when in these stressful
situations, and when she underwent medical examinations, indicates that the
difficulties she experienced in her work resulted not from a brain injury, but
from anxiety.

[229]     I do not
accept this argument, for several reasons.

[230]     First, if
the plaintiff’s issues are as intertwined with an anxiety condition as the
defence contends, then I would have expected there to have been some
significant demonstrations of anxiety, not only in the courtroom – as the
defence contends did take place – but also when Ms. Rintoul underwent the
defence medical examinations, given that she would have understood that the
assessment of her damages could be strongly influenced by the examination
results. Instead, as noted, the witnesses uniformly described the plaintiff as
pleasant, relaxed, and self-assured, or words to that effect.

[231]     Second,
there is no evidence whatsoever that the plaintiff displayed any unusual
emotional reactions when she was experiencing cognitive issues during her
employment at Pierce Law Group, nor during the majority of the time she spent
at Shergill & Company. There is no evidence that she, subjectively,
regarded her workplaces as an “anxiety cauldron” comparable to the courtroom.
When confronted by Ms. Shergill with her issues, towards the end of her
employment – when it was becoming apparent to Ms. Shergill how profoundly these
issues were affecting the plaintiff – there were occasions when she was upset
to the point of being tearful and distraught. It is certainly possible that at
that point, some degree of anxiety may have exacerbated the plaintiff’s cognitive
dysfunction. However, the evidence is much more consistent with Ms. Rintoul
having substantive cognitive issues, as a consequence of her brain injury, which
interfered with her work and led her to feel distraught or possibly anxious, as
opposed to anxiety being a substantial causal factor in the emergence of her
cognitive issues.

[232]     Third, in
my view the description of the job at Shergill & Company as one which was
beyond the plaintiff’s abilities, where there was a lack of mentoring and
unrealistic production expectations, does a great disservice to Ms. Shergill,
who, I find, was making only modest demands on Ms. Rintoul, and was working
with her diligently to try to find effective means of overcoming her difficulties.
The defence asks that I find that Ms. Shergill was an unreasonably demanding
employer, based on her evidence, in cross-examination, as to staff turnover in
her practice prior to and subsequent to Ms. Rintoul’s employment with her. I do
not make that finding. Ms. Shergill is an experienced lawyer and an experienced
employer of support staff. She needed secretarial help in her office, and she
thought Ms. Rintoul, despite her modest experience, was a “keeper”. Ms.
Shergill did, in fact, keep Ms. Rintoul employed for more than nine months —
longer than the terms of several employees who have not worked out — 
notwithstanding her evident difficulties. Ms. Shergill was motivated to find ways
to help Ms. Rintoul succeed, and it appears to me that she made her best effort
to do so.

[233]    
Dr. Wallace, the psychologist whose report addresses Ms. Rintoul’s residual
employability potential, carried out psychological and vocational assessments
of her, and interviewed both Ms.Rintoul and Ms. Shergill. Commenting on the
latter, he stated in his report:

Ms. Shergill appears to be a
very accommodating and supportive employer who attempted to make various changes
to Ms. Rintoul’s’s job duties in order to allow her to succeed. From my
experience, this level of employer support is rare, but unfortunately, even
with it, Ms. Rintoul was unable to efficiently and effectively carry out her
job duties and therefore was let go.

This description of Ms. Shergill was not objected to by the
defence and was not challenged by the defence on cross-examination.

[234]     A
statement of this sort by an expert witness can come dangerously close to
usurping the fact-finding function of the court. It is, in this case, an
appropriate comment to be made by an expert in vocational assessment issues,
and admissible as an opinion. I found it noteworthy that Dr. Wallace made no
adverse comments as to Ms. Shergill’s training and supervision of Ms. Rintoul.

[235]     In support
of their theory, the defence called evidence from Ms. Garbutt, principal of the
Legal Freelance Centre in Vancouver. Ms. Garbutt testified that she deals
virtually on a daily basis with young, inexperienced secretaries who have been
terminated from their jobs. Often they are tearful and anxious, find difficulty
speaking and cannot explain what their qualifications are. The defence asks me
to accept that what Ms. Rintoul exhibited at Shergill & Company – her tearfulness,
and her “deer in the headlights” reaction – was akin to this. Ms. Garbutt was not
called as an expert witness and was not called upon to express an opinion as to
whether the type of support given Ms. Rintoul by Ms. Shergill would have been
effective, had this been a case of Ms. Rintoul simply suffering from
inexperience.

[236]     Given Ms.
Shergill’s assessment of the plaintiff’s intelligence and ability, I have no
reason to conclude that the job at Shergill & Company was beyond Ms.
Rintoul’s potential, absent any cognitive issues. That would be conjecture on
my part. Nor can I conclude that Ms. Rintoul’s failure at that job can be laid
at the feet of a difficult and demanding employer.

[237]     Furthermore,
I do not accept the defence’s description, in the hypothetical quoted above, of
Ms. Rintoul’s presentation when in court. My impression of the plaintiff as she
presented at trial was that of someone who is reserved and private,
plainspoken, and somewhat unsophisticated. In some respects she seemed to have
a curiously passive or disengaged attitude to the outside world. It is fair to
say that there were numerous points in cross-examination when Ms. Rintoul was
slow to respond and halting in speech.  Her evidence certainly did not appear
prepared or rehearsed. Clearly, there were aspects of the trial process which
overwhelmed her.  She was emotional at times when giving evidence as to the
impact of her injuries, particularly in respect of her experience at Shergill
& Company. I did not attribute any of this to anxiety. It seemed to me that
the manner of her responses could be attributed to her having been disconcerted
and upset by having to speak publicly about private matters, puzzled as to the substance
of, or the implications of, questions put to her, and unfamiliar with the trial
process. If she was also fatigued by the demands that questioning was putting
on her cognitive processes, that would only have exacerbated matters.

[238]    
A number of witnesses testified to the plaintiff being, in everyday
life, a friendly, engaging, energetic person, someone who was fun to be around.
I do not see this description of the plaintiff in everyday life as inconsistent
with her demeanour when on the witness stand.

[239]    
One persuasive illustration of the inadequacy of the defence’s “anxiety
theory” came during the cross-examination of Ms.Rintoul. On the final day of her
cross-examination, Ms. Rintoul was questioned at length as to her experience at
Shergill & Company. She was visibly upset, and needed time to compose
herself. When the court reconvened after a very brief adjournment, defence
counsel resumed the line of questioning, suggesting to Ms. Rintoul that she
wouldn’t have been the first secretary to encounter difficulties in her first
major job. Ms. Rintoul was asked if she had ever given any thought to
consulting with a secretarial agency equipped to deal with persons who had
suffered bad job experiences. Ms. Rintoul replied:

A:         I – I – I don’t
know. I just – I don’t think that – how would that be helpful to me when I
can’t even really describe what the problems are? I worked for so long at
Shergill & Company and we tried to work through them and I’m not getting
how some other person is going to be able to come in and – and be like – it’s –
like not going – it’s not like I’m in a situation where the problems that I’m
having is that I can’t physically do the job. This is like mentally. How is
somebody going to tell me how I can do this job. When I can’t even explain to
you what is happening? Like I – I don’t get it. Like, how would that help me?

[240]    
Counsel suggested that when you fall off the horse, you’ve got to get
back on again. Ms. Rintoul replied:

A:         Mr. Easton, I’ve tried to get back on the
horse and ride it obviously since I was working at Shergill & Company and
obviously getting back on the horse and riding doesn’t help because I fell off
again. I don’t know what I did wrong. I don’t know how to fix it and I can’t
explain it to you.

Q:        But you have explained it to me.

A:         But you’re not
understanding. You keep asking me the same question. I’m telling you I don’t
know what went wrong. I know what went wrong. I can’t explain it to you. I
don’t know how going to somebody who specializes in secretarial work is going
to help me when my employer couldn’t even help me. And like who better to help
me when she works in the field? Like she knows what she wants from a legal
assistant. So I just – I don’t know what to tell you.

[241]     The words
on the page do not convey the emotional impact of this exchange. Ms. Rintoul’s
responses to these questions were not delayed or halting, but were delivered
clearly and without undue hesitation. If there was any validity to the
defence’s theory, then this was probably a point at which the plaintiff should
have frozen up, or broken down. Instead, she fought back. This exchange did not
leave the impression that the plaintiff is a person whose thought processes have
become impaired by anxiety.

Conclusions as to the Plaintiff’s Disability, and Assessment of Damages

[242]     Particularly
in light of the corroborative evidence of Ms. Shergill, and to a lesser extent
that of Ms. McEwen and of the plaintiff’s mother, it is far more reasonable to conclude
from the evidence as a whole that Ms. Rintoul is a person who has suffered a brain
injury which is subtle in its presentation but which nevertheless has
significantly impacted her life, particularly in the workplace, in ways which
Ms. Rintoul to some extent finds difficult to articulate.

[243]     I do not
find that Ms. Rintoul is, from a neurological or physical standpoint, totally
disabled.

[244]     I find
that the plaintiff has established on a balance of probabilities that the
cognitive issues in her post-accident employment, and her ultimate dismissal
from Shergill & Company, are attributable to the brain injury sustained in
the subject accident.

[245]     I find
that the evidence has established that the plaintiff has sustained a mild
traumatic brain injury that has permanently impaired her cognitive abilities
such that she will not be competitively employable beyond the level of the most
junior legal secretary.

[246]     I find on
the balance of probabilities that as a result of her cognitive injuries she
cannot and will not in the future be competitively employable in a position of
the type she was hired for at Shergill & Company, that of an intermediate
secretary, nor in any more advanced position requiring her to work with minimal
or no supervision on complex tasks or multiple tasks.

[247]     I also
find that Ms. Rintoul likely retains some residual level of potential
employability, up to the level of a most junior legal secretary, or a junior
level clerk/typist. This is subject to a number of contingencies, as will be
discussed below.

[248]     The
defendant, accordingly, is liable for the pecuniary loss that flows from these
findings.

[249]     My
findings as to the extent of the plaintiff’s physical injuries are as stated
above.

[250]     As to the
plaintiff’s current psychological condition, my conclusions with respect to the
defence theory of the link between the accident, Shergill & Company, and
Ms. Rintoul’s cognitive issues, lead to me assigning less weight to Dr.
Iverson’s finding that she currently suffers from an “Adjustment Disorder with
Anxiety”, and to his relatively optimistic view of her employment prospects. I
prefer Dr. Krywaniuk’s opinion that Ms. Rintoul has suffered from an adjustment
disorder, and that her self-concept and lack of self-confidence may imperil her
ability to undertake employment which she would otherwise be capable of, given
her cognitive issues. The reservations I have expressed as to Dr. Krywaniuk’s
neuropsychological assessment do not extend to his psychological evaluation.

[251]     In the
same vein, I accept the conclusions of Dr. Wallace with respect to the
plaintiff’s psychological state, in particular his conclusions as to the impact
that any future failure in employment positions will likely have on her.

[252]     There is
evidence that the plaintiff’s dismissal from Shergill & Company has had a
significant effect on the plaintiff’s emotional well being. It may be the case
that her difficulties in the workplace have become a source of anxiety, and it
does appear that she is now less self-confident, and anxious or apprehensive as
to whether she will ever again be gainfully employed and as to what the future
holds for her.

[253]     I have not
found that that anxiety was likely a significant contributing factor in her past
difficulties in the workplace.  Whether, psychologically, she is currently
suffering from anxiety, or only from a significantly altered sense of
self-confidence and self-worth, she does require treatment. If anxiety is a
significant component of her present condition, and if that anxiety state
proves resistant to treatment, that may further complicate her cognitive issues
and further compromise her ability to return to competitive employment. In any
event, there are clearly obstacles she will need to overcome.

Non-pecuniary Damages

[254]     The
plaintiff contends that an appropriate award of non-pecuniary damages would be
at or near the “rough upper limit” established by the Supreme Court of Canada
in Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229, which
now – adjusted for inflation – stands at approximately $330,000.

[255]    
In urging me to set an award which fully addresses the unique
circumstances of this plaintiff, counsel referred to a number of decisions,
including Dikey v. Samieian, 2008
BCSC 604; Sirna v. Smolinski, 2007 BCSC 967; and Young v. Anderson,
2008 BCSC 1306.

[256]    
In Dikey, the plaintiff suffered a traumatic
brain injury which seriously diminished his cognitive functioning, particularly
his short-term memory. While retaining most functional abilities, he would need
some assistance for the rest of his life. He also continued to suffer severe
headaches and chronic neck pain. Non-pecuniary damages were assessed at
$215,000.

[257]    
In Sirna, the plaintiff’s injuries included
significant chronic pain and fatigue, and a traumatic brain injury which
profoundly affected her memory. Non-pecuniary damages were assessed at
$200,000.

[258]    
In Young, the plaintiff suffered a constellation
of significant injuries including pain radiating from his low back down his
left leg, light sensitivity, loss of balance, severe and intrusive tinnitus,
ongoing depression, and issues with memory and attention. Non-pecuniary damages
were assessed at $200,000.

[259]    
These cases, and others cited by the plaintiff,
involved injuries which were much more severe than those which I have found
have been suffered by Ms. Rintoul. This is pointed out in the defence argument
and I accept their critique of the plaintiff’s position.

[260]    
The defence cited a number of cases which would be applicable only if I
were to conclude that the plaintiff does not have a cognitive deficiency. Those
cited by the defence which involved a cognitive injury included an award of
$150,000 in J.F.C. v. Ladolcetta, 2009 BCSC 1151, and an award of $180,000 in Kean v. Porter,
2008 BCSC 1594, in which, it is argued, the injuries were more severe than Ms.
Rintoul’s. In Kean, however, the court did find that the sequelae from
the brain injury affecting cognition were only very mild, and were virtually
indistinguishable from the concurrent effects of other significant injuries,
i.e. persistent pain in the upper chest, and depression.

[261]    
I assess non-pecuniary damages at $175,000.

Past Income Loss

[262]     The plaintiff’s
gross (pre-tax) pre-trial income losses are agreed at $7,051.82 at Pierce Law
Group, and $15,187.50 at Shergill & Company.

[263]     Following Lines
v. W & D Logging Co. Ltd., 2009 BCCA 106, the Court has the discretion
to attribute past income losses to specific periods of time, for the purpose
of  determining a defendant’s liability for net income loss under s.98 of the Insurance
(Vehicle) Act, R.S.B.C. 1996, c. 231. In this case, the appropriate result
is obtained by imputing lost income to the year in which it would have been
earned, and applying the prevailing marginal tax rate.

[264]     The
defence concedes that no tax was payable on the income earned in 2006, which totalled
$3,525.91. I accept the marginal rate calculations for 2007-2010 provided by
the defence. The total net income loss to trial is $18,361.87.

Special Damages

[265]    
Special damages were agreed to at trial in the amount of $4,782.28, plus
a disputed claim for acupuncture in the amount of $1,035.00. The acupuncture
expenses date from 2009. Ms. Rintoul testified that acupuncture was recommended
by her family doctor. She finds it helps to loosen up her neck and upper back.
Occasionally the therapist provides acupuncture to her jaw as well. I find this
expense reasonable in the circumstances. Specials are allowed in the total
amount of $5,817.28.

Cost of Future Care

[266]    
The plaintiff has submitted an extensive list of future care items,
based largely on the report of Mr. McNeil, with a present value cost of
approximately $103,000.  Given that I have rejected Mr. McNeil’s conclusions as
to the extent of the plaintiff’s physical disability attributable to the
accident, the vast majority of the claimed expenses are not recoverable.

[267]    
In addition, Mr. McNeil considered the transportation costs that might
be incurred if seizures become an issue. The present value of a Handidart pass
is stated as $17,754. The present value of the cost of one trip a week by taxi,
when Handidart is not available, between Surrey and Vancouver for the purpose
of medical and rehabilitation appointments, is said to be approximately
$162,000.

[268]    
The plaintiff proposes an award covering the potential transportation
costs of $4,000, which allows for a 2% chance of Ms. Rintoul developing
seizures that cannot be controlled by medication.

[269]    
There are several problems with this claim. The present value
calculations were based on a need beginning in 2010. The evidence is that Ms.
Rintoul has a 5% chance of developing seizures at some unspecified future date,
not a 5% chance that she will begin suffering them now. There is no evidence as
to the likelihood of seizures being uncontrolled. And there is no basis I have
found for a claim that weekly visits to doctors and therapists will continue to
be necessary. This claim is speculative and remote. I reject it.

[270]    
I allow the sum of $7,500 towards future costs of psychological and
vocational counselling, personal training/exercise, and membership in the B.C.
Brain Injury Association.

Loss of Earning Capacity

[271]    
The consequences of the findings I have made as to the extent of the
plaintiff’s disability – together with other considerations as to potential
future outcomes, with and without the accident having occurred – are to be evaluated
by means of the type of analysis undertaken by Finch J., as he then was, in Brown
v. Golaiy, (1985), 26 B.C.L.R. (3d) 353:

The means by which the value of the lost, or impaired, asset
is to be assessed varies of course from case to case. Some of the
considerations to take into account in making that assessment include whether:

1.         The plaintiff has been rendered less capable
overall from earning income from all types of employment;

2.         The plaintiff is less marketable or attractive as
an employee to potential employers;

3.         The plaintiff has lost the ability to take
advantage of all job opportunities which might otherwise have been open to him,
had he not been injured; and

4.         The plaintiff is less
valuable to himself as a person capable of earning income in a competitive
labour market.

[272]     The
assessment of the pecuniary loss that flows from this analysis must bear in mind
the following considerations.

1.       First and foremost, the
plaintiff is entitled to be restored to the position he or she would have been
in but for the defendant’s negligence, so far as that can be done with a
monetary award. This may involve “a comparison of the likely future of the
plaintiff if the accident had not happened with the plaintiff’s likely future
after the accident has happened” – Rosvold v. Dunlop, 2001 BCCA 1 at
para. 8.

2.       The task of a court is to
assess damages, rather than to calculate them mathematically – Mulholland
(Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 at
para. 43. While the assessment is based on the evidence, it necessarily
involves an element of “crystal ball gazing”: Andrews.

3.       The standard of proof is
not the balance of probabilities; the plaintiff need only establish a real and
substantial possibility of loss, one which is not mere speculation, and
hypothetical events are to be weighed according to their relative likelihood – Athey
v Leonati, [1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235, at para. 27.

4.       Allowances must be made
for the contingency that the assumptions upon which an award is based may prove
to be wrong – Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 at 79
(S.C.), aff’d (1987), 49 B.C.L.R. (2d) 99 (C.A.).

5.       Any assessment is to be
evaluated in view of its overall fairness and reasonableness – Rosvold,
at para. 11.

[273]     In
assessing the plaintiff’s loss of earning capacity, I have considered the
following issues, submissions and evidence.

[274]     The
plaintiff says that but for the accident, there is every reason to believe that
Ms. Rintoul would have remained in the employ of Ms. Shergill in the near term
at least. Ms. Rintoul anticipated eventually obtaining her paralegal qualifications
once she had sufficient experience.

[275]     The
plaintiff contends that an appropriate award, taking a mathematical approach to
the evidence, would be in the range of $1,066,000 to $1,308,000. The upper end
of this range is based on the plaintiff remaining employed as a legal secretary
until age 31, and then earning an average salary to age 70 of $58,000 as a
paralegal. That paralegal salary figure is based in part on the evidence of
witnesses who testified at trial as to the current salaries paid to paralegals
in the Greater Vancouver area. The lower end of the range is based on a
presumed residual capacity of $10,000 per year.

[276]     The
plaintiff says this is preferable to the approach taken by the plaintiff and
defence economists, respectively Mr. Carson and Mr. Hildebrand. Both of those
experts based their earnings assumptions upon a data set that covers
paralegals, but also similar occupations such as commercial law clerks and
trademark agents; and, that covers all of British Columbia.

[277]     Mr. Carson
and Mr. Hildebrand also provided alternative calculations based on the
plaintiff receiving, or not receiving, non-wage benefits of a value of up to
10%.

[278]     The
defence concedes that given the unlikelihood of the plaintiff having a family,
and given the importance to her of financial independence, a strong attachment
to the workforce may fairly be presumed, and that the approach championed by
Mr. Carson, of using female earnings data with male workforce participation
rates, is appropriate.

[279]     The
defence contends that the appropriate figure to be used as a starting point is
approximately $830,000, that being the cumulative adjusted and discounted
income for female legal secretaries, without benefits, and with a male
participation rate. That figure would require further adjustment downwards by a
factor of 25% to account for Ms. Rintoul’s competitive disadvantages, giving an
adjusted present value of future earnings in the amount of approximately
$623,000; the comparable figure for a paralegal would be approximately
$698,000. To that figure, a further adjustment would have to be made to account
for the plaintiff’s residual working capacity. The defence contends she has
lost no more than 25%.

[280]     I have
found the evidence given by Mr. Carson and Mr. Hildebrand to be most helpful in
outlining possible parameters for assessing the loss of capacity.
Fundamentally, however, this process is an assessment, not a calculation.

[281]     First, I
accept that the notion that the plaintiff was and would remain strongly
attached to the workforce, subject to her competitive disadvantages.

[282]     Second, I
agree that the contingency of the plaintiff obtaining paralegal certification,
and a commensurate increase in her salary, must be accounted for. But this was
not a certainty and cannot be treated as such. But for the accident, the
plaintiff may have determined that she did not have either the ability or the
inclination to pursue that goal. Not all plans come to fruition.

[283]     Third, the
plaintiff may have had job security at Shergill for a reasonable length of
time. But, if her employment there ended for any reason, the competitive
disadvantages posed by her phocomelia would inevitably have been a significant
factor in looking for new employment. That is not to say that Ms. Rintoul would
have become a victim of blind prejudice. It would be unfair to assess her future
employment prospects on that basis. But it must be the case that not every
prospective employer would believe it to be to their advantage to hire an
employee whose typing speed is as impaired as Ms. Rintoul’s.

[284]     Fourth,
both Mr. Carson and Mr. Hildebrand have assumed continuing salary growth in
this job category.  Although this point was not addressed in the evidence, I am
concerned that the possibility of changes in the economics of the practice of
law becoming an issue may not have been accounted for. As law firms make
increasing use of digital technology – voice-activated dictation, automated
electronic filing, etc. – it seems within the realm of possibility that the
most junior clerical or secretarial positions, such as those which Ms. Rintoul
is now most suited for, may be at risk of becoming technologically obsolete. Mr.
Oh of Pierce Law Group, for example, testified that he did his own typing, and therefore
did not delegate much to Ms. Rintoul — a situation which would have been
unthinkable 20 years ago. There is also the possibility of growth in the amount
of offshore-outsourcing of paralegal work, which could create downward pressure
on paralegal salaries and stifle employment opportunities.

[285]     There was
no evidence before the Court of either of these factors. It is however
appropriate, in my view, as part of the “crystal ball gazing”, to take judicial
notice of them and consider the potential for them impacting the plaintiff,
both in terms of her likely employment but for the accident, and her present
residual employability. Having said that, without evidence I cannot conclude
that these factors would have had more than a marginal impact.

[286]     There are
further complications involved in the assessment of Ms. Rintoul’s residual
earning capacity. I have found that she has the potential to obtain employment
up to the level of a most junior legal secretary, or a junior level
clerk/typist. I do not see that there is any realistic possibility of her
retraining in any other field, given her physical disability and in particular
her cognitive issues.

[287]     Before
seeking such employment, she will have to complete a period of vocational
assessment to assist her in finding effective means of compensating for her
cognitive issues, and will have to be emotionally ready to seek employment and
to face the disappointment which the job search process can create and the
stresses of starting a new job.

[288]     Further,
it will require time and effort to find a job that matches her level of
cognitive abilities, so that she reduces the risk of losing that job, and the
risk which that would pose to her emotional well-being, as discussed by Dr.
Wallace.

[289]     There is
the additional difficulty posed by the need to find a job that is a good match
for her pre-existing competitive disadvantages. And, there may be difficulty in
persuading an employer to hire someone who is bound to remain at a junior level
due to cognitive difficulties.

[290]     Taking
account of these factors, the submissions of counsel and the evidence, I assess
the plaintiff’s loss of earning capacity at $750,000.

Summary

[291]     The
plaintiff is awarded the following amounts:

Non-Pecuniary Damages:                            $175,000.00

Net Past Income Loss:                                  $18,361.87

Loss of Earning Capacity:                            $750,000.00

Cost of Future Care:                                       $7,500.00

Special Damages: $5,817.28

Total:                                                          $956,679.15

[292]    
Subject to any pre-trial offers, costs are to be assessed at Scale B.

“A. Saunders J.”