2005 BCSC 73 Joel v. Paivarinta et al

Before: The Honourable Mr. Justice Pitfield

Reasons for Judgment

Counsel for the Plaintiff:	Deborah A. Acheson, Q.C. Danielle C. Topliss
Counsel for the Defendants:	Patricia J. Armstrong Richard B. Lindsay, Q.C.
Date and Place of Trial:	October 4-8,12-15, October 18-22, 25-29, November 1-5, 2004
	Vancouver, B.C.

Introduction

[1] In May 1999, Ms. Paulette Joel was employed as a Constable with the Vancouver Police Department. She had applied for employment with the City of Nelson Police Department. On May 22nd, when in Nelson as part of the interview process she was engaged in a civilian "ride-along" in a police vehicle driven by the defendant, then Constable, now Inspector Paivarinta, a member of the Nelson Police Department. The purpose of the ride-along was to permit a non-member to observe the police force in operation and, in this case, to allow a member of the force to observe Ms. Joel as a prospective officer.

[2] In the early morning hours of May 22nd, Constable Paivarinta observed a truck proceeding at an excessive rate of speed. He followed the vehicle, lost sight of it for a period of time, but regained sight of it shortly before it turned on to Chatham Street. Chatham is narrow and runs up and across the slope of a hill, the high side of which is on the right as one ascends. Constable Paivarinta proceeded up Chatham which he knew to be a dead end street. He stopped his vehicle so that it faced diagonally across the road, passenger side on the up-slope, expecting that the truck he was pursuing would be unable to pass as it came downhill. Constable Paivarinta and Ms. Joel observed the truck coming downhill. It drove on to private property on the passenger side of the vehicle in order to pass the police vehicle and continue downhill. As it did so, it struck the police vehicle but did little in the way of damage. The impact did not set the police vehicle in motion. After passing the police vehicle the truck re-entered Chatham and continued downhill. Constable Paivarinta turned on his emergency lights but not his siren. He began to back his vehicle down the road at a speed he estimated to be not in excess of 30 kph. Ms. Joel testified that because of the amount of engine sound, the speed may have been greater. The alternative to backing up was to drive on to the top of Chatham where the vehicle could have been turned around in the cul-de-sac.

[3] Constable Paivarinta backed into a cloud of dust that had been raised by the departing truck. He became disoriented and, while continuing in reverse, backed his vehicle off the road on the downhill side. The vehicle descended approximately 15 feet and came to rest on its side, passenger door up. There was a marked indentation on the rear bumper of the vehicle and other damage. The cost of repair approached $12,000.

[4] Ms. Joel claims she suffered a traumatic brain injury and whiplash in this accident. She claims general damages and special damages as well as damages for lost income, impairment of earning capacity, and the cost of future care.

[5] On December 17, 1999, Ms. Joel was involved in another accident when the vehicle which she was driving was struck by the defendant Mei Chu Wu. Ms. Joel claims that accident moderately exacerbated the whiplash she sustained in the May 22, 1999 accident, and that some of the pain associated with the prior whiplash reappeared. Ms. Joel claims modest general damages in respect of the second accident.

Liability Issues

[6] I find that Constable Paivarinta operated the police vehicle in a negligent, but not grossly negligent, manner when he backed his vehicle down Chatham Street and failed to stop on a timely basis after his visibility became impaired by dust.

[7] A police officer acting in the course of his duties, as was Constable Paivarinta, is not liable for negligence by virtue of s. 21(1) of the Police Act, R.S.B.C. 1996, c. 367, except in respect of gross negligence or malicious or wilful misconduct, none of which is present in this case. The action against Constable Paivarinta is therefore dismissed.

[8] The Insurance Corporation of British Columbia ("ICBC") was named as a defendant because the driver of the truck which Constable Paivarinta was pursuing was never identified with certainty.

[9] Section 24(1) of the Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c. 231 provides as follows:

24(1) If bodily injury to or the death of a person or damage to property arises out of the use or operation of a motor vehicle on a highway in British Columbia and

(a) the names of both the owner and the driver of the motor vehicle are not ascertainable, ...

any person who has a cause of action

in respect of the bodily injury, death or property damage may bring an action against the corporation as nominal defendant, ...

[10] ICBC claims that the negligent actions of an unidentified driver caused or materially contributed to Ms. Joel’s injuries. ICBC says it was that driver’s conduct which prompted the initial police pursuit, caused Constable Paivarinta to ascend Chatham Street and stop, caused him to back his vehicle down the road, and raised the dust that obscured the constable’s vision causing him to back off the road.

[11] I find that the impact with the passing truck did not cause or materially contribute to any person’s physical injury. I find that the driver of the truck did not initiate the chain of events that resulted in the police vehicle backing off the road. The circumstances were such that after his vehicle was struck by the passing truck, Constable Paivarinta could have chosen an alternative course of conduct that would not have required him to back down the road in the unsafe manner that caused the accident in which his vehicle was involved. In the circumstances, the driver of the passing truck did not cause or materially contribute to Ms. Joel's injuries. The action against ICBC as a nominal defendant in respect of any injury sustained by Ms. Joel in the accident of May 22, 1999, is dismissed.

[12] The City of Nelson is vicariously liable for the acts of its agents, in which class the Nelson Police Department and Constable Paivarinta were included. The conclusion is not seriously disputed by the City because of s. 86(1) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318. It follows that the City is liable for damages flowing from Constable Paivarinta’s negligence unless the defence of volenti non fit injuria is available in the circumstances.

[13] The defendants claim that Ms. Joel willingly assumed the physical and legal risk of injury associated with the ride-along so that the principle of volenti prevents her from claiming damages in respect of Constable Paivarinta's negligence. The defendants do not claim to be beneficiaries of a waiver signed by Ms. Joel in their favour. As a result, I need not be concerned with questions of contract. Rather, the defence is advanced on the basis that Ms. Joel was a police officer who was aware of the risks associated with the job, she participated in the ride-along in order to impress others about her qualifications for employment in Nelson, and she acted throughout the ride-along as more than a passive observer. None of those factors is sufficient to ground the volenti defence.

[14] The substance of the volenti defence was described by the Supreme Court of Canada as follows in the case of Dubé v. Labar, [1986] 1 S.C.R. 649, at paras. 6 and 9:

Thus, volenti will arise only where the circumstances are such that it is clear that the plaintiff, knowing of the virtually certain risk of harm, in essence bargained away his right to sue for injuries incurred as a result of any negligence on the defendant's part. The acceptance of risk may be express or may arise by necessary implication from the conduct of the parties, but it will arise, in cases such as the present, only where there can truly be said to be an understanding on the part of both parties that the defendant assumed no responsibility to take due care for the safety of the plaintiff, and that the plaintiff did not expect him to.

...

The defence of volenti will, furthermore, necessarily be inapplicable in the great majority of drunken driver-willing passenger cases. It requires an awareness of the circumstances and the consequences of action that are rarely present on the facts of such cases at the relevant time.

[15] The direction provided by the Supreme Court of Canada requires that there be an awareness of the specific risk that occasioned the injury to the claimant and active and knowing acceptance of that risk. In addition, the claimant must be found to have voluntarily assumed the physical and legal risk so as to have absolved the actor, in this case an employee, and his employer from any claim for compensation in the event of injury.

[16] In this case there was no awareness of the possibility or likelihood of negligence causing harm when Constable Paivarinta put his vehicle in motion. Ms. Joel was not afforded the opportunity to assume or avoid any risk that might be created by Constable Paivarinta backing his vehicle downhill into a cloud of dust so that he became disoriented and unable to control the vehicle. There is no evidence from which one could conclude that Ms. Joel was aware of the risk that might be associated with Constable Paivarinta's decision to proceed in reverse down the hill before the risk materialized such that she might have avoided it. There is no evidence that she had observed anything about Constable Paivarinta’s driving ability that would have put her on notice that he might drive in a negligent manner.

[17] In sum, there is no conduct on Ms. Joel’s part from which it might be inferred that she knew or accepted the physical and legal risks of injury associated with Constable Paivarinta's decision to back down the hill so as to absolve the Nelson Police Department and the City of Nelson of liability in the event she sustained injury and I find as a fact she did not. None of the factors essential to ground the defence of volenti are present in the circumstances of this case and the defence fails.

[18] The defendants allege contributory negligence on the part of Ms. Joel in relation to the Paivarinta accident. The allegation was that Ms. Joel had not properly adjusted her headrest and her seatbelt. I accept the evidence of Constable Paivarinta that the passenger’s headrest was not adjustable. I find as a fact from the evidence of Ms. Joel and Constable Paivarinta that Ms. Joel was wearing a seatbelt. I accept her evidence that she had initially released the belt in order to get out of the parked police vehicle but had reattached it as the truck approached. The fact that she then relaxed the belt in order that she could turn her body in an attempt to obtain the license of the passing truck did not amount to a negligent act on her part. She did nothing that any reasonable person would have refrained from doing in the circumstances.

[19] The City of Nelson is solely liable for any damage sustained by Ms. Joel as a passenger in the Paivarinta vehicle.

[20] There is little dispute in relation to liability insofar as the second accident is concerned. The negligence of the defendant, Mei Chu Wu, was the sole cause of the accident.

[21] It follows then that only the City of Nelson is liable for damages in respect of the injuries sustained by Ms. Joel in the May 22, 1999 accident, and only Mr. Wu is liable for damages sustained by Ms. Joel in respect of December 17, 1999 accident.

Injury and Damages

[22] The questions to be addressed are these:

1. What are the nature, extent and severity of the injuries sustained by Ms. Joel in the separate accidents?

2. What amount, if any, is to be assessed as general damages in respect of each accident?

3. In respect of the May 22, 1999 accident, what amount, if any, is to be assessed as damages in respect of:

(a) income lost by Ms. Joel from May 22, 1999 to the date of trial;

(b) impairment of Ms. Joel's future income earning capacity;

(d) special damages in respect of expenditures incurred by Ms. Joel from the May 22, 1999 accident to the date of trial?

(a) Nature, Extent and Severity of Injuries

[23] I am persuaded on the balance of probabilities, and find, that Ms. Joel sustained a severe whiplash injury and a very mild traumatic brain injury in the Nelson accident on May 22, 1999. I am persuaded on the balance of probabilities that the accident caused or materially contributed to psychological problems which affect Ms. Joel. I will address the impact of the brain injury and the psychological problems on the assessment of damages later in these reasons.

[24] I am persuaded on the balance of probabilities and find that the May 22nd whiplash injury was exacerbated to a very limited extent by the accident caused by Mei Chiu Wu. I find that the Wu accident did not cause or materially contribute to any loss of income before trial or impairment of earning capacity. Accordingly, the only head under which any award in respect of the Wu accident is appropriate is that of general damages.

[25] I have made my findings in relation to the injuries sustained in the Nelson accident with regard for the following evidence.

[26] The police vehicle came to rest on its side, driver’s side down, at the bottom of a 14-foot incline. Ms. Joel used the police radio to advise dispatch that the vehicle had rolled. Constable Scott-Pryke of the Nelson Police Department testified that during the transmission, Ms. Joel used the police phrase “Alpha 12” which means “rolled vehicle” and she sounded matter of fact in her short transmission which was followed by Constable Paivarinta’s transmission of their location.

[27] Constable Paivarinta and Ms. Joel got out of the vehicle without the assistance of police or emergency personnel. Each advised the other that they were "okay". They decided that no ambulance was required. Ms. Joel told Fire Chief Chambers, one of those who responded to the radio dispatch, that she was "all right". Chief Chambers examined Ms. Joel, observed no injury to her head and found her eyes to be equal and reactive to light and her speech to be normal. Ms. Joel reported pain in the area of her shoulder and collarbone. He suggested she should go to be checked out at the hospital.

[28] Ms. Joel was driven to the Kootenay Lake District Hospital in a police vehicle. She was examined at approximately 3 a.m. on May 22nd and advised to return for x-rays later in the morning which she did. On neither occasion did the attending physician observe symptoms suggestive of neurological injury although Ms. Joel did report that her right ear seemed plugged. On each visit, the examining physician observed muscle tenderness and strain suggestive of a whiplash injury. The x-rays showed some loss of curvature in the cervical spine but no fracture or dislocation. Ms. Joel was prescribed ice, Ibuprofen, Tylenol 3, and the use of a soft collar for long driving trips.

[29] Ms. Joel stayed in Nelson with Ms. Gould, her former sister in law, the night of May 22-23. Ms. Gould testified to her recollection that Ms. Joel complained of an extremely sore back and neck. Ms. Gould provided Ms. Joel with an extra blanket in response to her complaint that she felt cold. Ms. Gould testified to her recollection that when Ms. Joel left Nelson to return to Vancouver on May 23rd, she planned to drive as far as Osoyoos and to continue to Vancouver the next day.

[30] Ms. Joel drove to Vancouver on May 23rd and 24th as planned without misadventure. She stayed overnight in Osoyoos as planned. She saw her own physician, Dr. Anderson, in Vancouver on May 25th and several dates thereafter including June 2nd, June 10th, June 22nd and July 6th.

[31] The symptoms described by Ms. Joel initially caused Dr. Anderson to conclude, on May 25th, that she had sustained a concussion and soft tissue injury in the accident. At the June 2ndconsultation, Ms. Joel advised Dr. Anderson she had hit the left side of her head on the "prisoner’s gate" in the police vehicle, that being the Plexiglas dividing wall between the front and rear passenger areas of the police vehicle. She reported that the bump she had on the left side of her head was then better.

[32] On June 10th, Ms. Joel reported that on one occasion since the last visit the left side of her body, including face and tongue, was 90% numb. She continued to report exhaustion, irritability, and "foggy" thinking.

[33] On June 22nd, Ms. Joel reported that she had tried to return to work but felt fatigued. She reported that her forgetfulness fluctuated, she was writing things down, her vision was blurred, the nausea had decreased but was still present, she had experienced numbness in the left side of her body, she thought herself to be slower at work and to be repeating questions she asked of others. On July 6th, Ms. Joel reported continuing "foggy brain" problems, numbness on the left side of her body, and poorer performance from the left side of her body in the course of physiotherapy treatments.

[34] The accumulation of symptoms reported by Ms. Joel through July 6th, including sore right posterior neck, plugged right ear, pain to her fingertips when driving to Vancouver, dull pain and tingling in her fingers thereafter, nausea on and off over a three day period following the accident, a 24-hour headache, the severity of which changed from time to time, occasional dizziness when moving too fast, a "messed up" sleep pattern, low back pain more on the right than the left, irritability, a "foggy brain", a sore left jaw, problems including numbness on the left side of her body, fatigue, exhaustion, an inability to concentrate, a very short attention span, and difficulties encountered on her attempted return to work, caused Dr. Anderson to conclude that she should refer Ms. Joel to Dr. Cameron, a neurologist, for examination.

[35] Ms. Joel first saw Dr. Cameron on August 12, 1999. He conducted a "bedside mental status evaluation" in respect of which he reported that Ms. Joel recalled none of three items she had been asked to remember at three minutes, and two of the three with prompting, but slowly. She could not subtract seven from 100 in serial fashion below 93 and did that slowly. She was able to spell the word "world" backwards, but extremely slowly. He completed his neurological examination at a second consultation on August 19th. On that occasion he noted decreased sensation to temperature on the left side of the face, and decreased temperature, pin, and vibration sensation in the left upper and lower extremities. He described the tone of the muscles in the left lower extremity as "pathologically brisk". He concluded that Ms. Joel was suffering from a very mild pattern of weakness attributable to brain injury affecting the lower left extremity and, to a lesser extent, the upper left extremity of Ms. Joel’s body.

[36] Dr. Cameron described his impression of Ms. Joel’s state in the following terms when writing to Dr. Anderson on August 16th:

It is my opinion that Ms. Paulette Joel has sustained a traumatic brain injury at the time of the motor vehicle accident in May, 1999. She remains significantly disabled because of cognitive deficits, and also pain and discomfort. It is my opinion that Ms. Joel should not be working as she is not productive. It is my recommendation that she be assessed at a head injury program, either at UBC or G.F. Strong. Also, it is my opinion that Ms. Joel have [sic] psychological assessment, including psychological counselling, and neuropsychological testing performed at this time. I would also request that a MRI brain scan be performed to evaluate whether she has sustained any contusions in the brain. Her head, in the left vertex region, struck something hard in the car: she does not recall what it struck, however, she has complained of pain, discomfort and increased sensitivity of the scalp in this region since the accident.

[37] The observation that Ms. Joel could not recall what her head struck is inconsistent with her earlier advice to Dr. Anderson that she had struck the prisoner’s gate.

[38] Following the August 19th consultation Dr. Cameron advised Dr. Anderson as follows:

Ms. Joel has definite focal abnormalities on clinical examination indicating a focal traumatic brain injury as well as diffuse traumatic brain injury, which I had discussed following my previous assessment of Ms. Joel. I recommended that she have neuropsychological testing performed and psychological counselling undertaken at the time of my previous assessment. I am also recommending that she have an MRI brain scan performed at this time.

[39] Dr. Cameron testified that his recommendations for assessment and admission to a brain injury program resulted from the fact that Ms. Joel’s short term memory seemed impaired, she was slow to process on the serial 7 examination, and he was concerned that a psychological dysfunction might be evolving. Ms. Joel was not referred at the time for the recommended psychological counselling.

[40] By January 29, 2001, Dr. Cameron had formed the opinion that Ms. Joel sustained an injury to the hypothalamus in the May 22, 1999 accident. He based his opinion primarily on neurological literature and Ms. Joel’s report of temperature intolerance or sensitivity and irregularity in her menstrual cycle. There is no evidence that Ms. Joel’s core body temperature was adversely affected by the accident. Ms. Joel had reported irregularity in menstrual cycles to her physician pre-accident as late as May 10, 1999. I do not find Dr. Cameron's conclusion that menstrual irregularity indicated brain injury in this case to be persuasive. His observation was based on self-reporting by Ms. Joel without particularity or detail regarding the character of any irregularity and without comparison to the character of the irregularity reported pre-accident.

[41] By April 30, 2001, Dr. Cameron had formed the opinion that Ms. Joel had "probably developed psychological problems as a result of the injury sustained in the May 1999 accident".

[42] Dr. Cameron provided his last written medical-legal opinion to counsel for Ms. Joel on April 14, 2003 in which he said the following:

Following my numerous neurological assessments of Ms. Paulette Joel and following my review of the medical records and documents, it is my opinion that Ms. Paulette Joel did sustain a mild to moderate traumatic brain injury at the time of the motor vehicle accident on May 22, 1999. It is my opinion that Ms. Paulette Joel subsequently manifested symptoms diagnostic of post traumatic brain injury syndrome following the accident. It is my opinion that Ms. Joel sustained both focal and diffuse traumatic brain injury at the time of the motor vehicle accident on May 22, 1999. The focal brain injury has resulted in dysfunction involving the left upper extremity objectively for a short period of time following the accident and subjectively for a chronic period of time in that Ms. Joel still reports decreased fine motor control with repetitive use involving the left hand.

Ms. Joel has also manifested symptoms of focal traumatic brain injury involving the deep regions of the brain, specifically the hypothalamus with disrupted menstrual cycle chronically and disrupted temperature sensitivity chronically, and fatigue as a result of the diffuse and focal traumatic brain injury that she sustained at the time of the motor vehicle accident on May 22, 1999. I agree with the psychologist that Ms. Joel is manifesting ongoing, chronic cognitive problems, in part as a result of the original mild to moderate traumatic brain injury that she sustained at the time of the motor vehicle accident, and in part due to development of psychological dysfunction or psychological problems as a result of the injuries that she sustained at the time of the motor vehicle accident on May 22, 1999.

[43] Ms. Joel was admitted to the brain injury program at G.F. Strong in November 1999 following assessment by Dr. Hirsch, a specialist in physical medicine and rehabilitation. At that time he recorded that Ms. Joel advised she was able to perform all household tasks but they took longer and were still a struggle, the pain in her neck and back had significantly lessened, her memory was better but she was still forgetful and had to use a diary, the left-sided numbness and weakness had more or less resolved, the plugging of the right ear had subsided, she still felt off balance when she made sudden movements, she no longer had nausea and no longer vomited, her long term memory was compromised, she had continuous headaches of variable intensity but they had improved, she occasionally had mildly blurred vision, her sense of smell and taste were intact, the pain in her left jaw had subsided completely, she was constipated at times, she experienced post-prandial abdominal pain, she experienced a feeling of clamminess and cold, and her sleep had improved but was non-restorative.

[44] Noteworthy is the fact that Dr. Hirsch found nothing abnormal on physical or mental examination except for a posterior rotation of the right pelvis, a condition which was not, quite properly, attributed to the accident. Dr. Hirsch concluded as follows:

There is no doubt that Ms. Joel suffered a traumatic brain injury. Fortunately her clinical course has been quite favourable to date. However, she has reportedly still difficulty with short and long term memory, attention, concentration, multi-tasking, and mental fatiguability.

Ms. Joel is an appropriate candidate to be enrolled in the Outpatient Acquired Brain Injury Program at G.F. Strong. I have put forth the necessary referral.

[45] On February 11, 2000 Dr. Hirsch assessed Ms. Joel again. The doctor recorded that “Ms. Joel has mechanical neck and low back pain. There is no clinical evidence of neurogenic compromise”.

[46] Ms. Joel was treated in the G.F. Strong program until early March 2000, when, in consultation with Dr. Ruckman of G.F. Strong, she decided to "take a break" from the program to go to Australia for approximately three months. She received no treatment for brain injury when in Australia from late February to June 2000. She renewed her association with G.F. Strong upon her return to British Columbia in mid-June 2000, and continued in the program until August 15, 2000, when she was discharged. Thereafter, treatment by one or more clinicians on a continuing basis was curtailed because Ms. Joel moved to Calgary to enrol in a mathematics course at Mount Royal College.

[47] In anticipation of a trial expected to proceed in mid-2003, Ms. Joel was assessed at the request of Ms. Joel’s counsel by Dr. Michael P. Krieger on March 21, 2003, almost four years post-accident, and again on June 9, 2004. Dr. Krieger is a neurologist retired from active practice in the United States who now resides in Victoria.

[48] Dr. Krieger expressed the opinion that Ms. Joel had suffered a traumatic brain injury in the May 22, 1999 accident. His opinion resulted principally from a review of the records, opinions, and test results compiled by others in the course of treating or assessing Ms. Joel combined with his observation of slightly diminished sensory sensation to temperature and pin on the left face and left extremities, and increased reflexes in the left arm when he examined Ms. Joel in March 2003, and June 2004. Dr. Cameron had reported similar observations in 1999 but had also reported vibration sensation in the upper and lower left extremities. That symptom was not observed by Dr. Krieger at the time of his examination. Dr. Krieger also found that some symptoms Dr. Cameron found to have disappeared were again present. Dr. Krieger acknowledged that Ms. Joel reported fluctuating signs after the accident and he agreed that a physiatrist had found Ms. Joel’s strength, sensation, reflexes and muscle tone to be normal as late as October 15, 1999. In final analysis, Dr. Krieger regarded the symptoms he observed and those that had been reported to him to be indicative of traumatic brain injury.

[49] Dr. Krieger relied on Ms. Joel’s report of irregular menstrual cycles since the accident as an indication of injury to the thalamus or hypothalamus but acknowledged that irregularity was not necessarily pathological in origin. My comments in relation to Dr. Cameron’s observations in that regard apply equally to the observations and opinion of Dr. Krieger and, for that reason, I do not find Dr. Krieger’s conclusion that menstrual irregularity indicated brain injury in this case to be persuasive.

[50] Dr. Krieger observed some diminished left-sided grip strength. His finding was consistent with the results of occupational therapist testing.

[51] Dr. Krieger expressed the opinion that the principal factor which caused him to form his opinion that Ms. Joel had suffered diffuse axonal injury to the right side of her brain and injury to the thalamus or hypothalamus was the fatigue which she continued to report. His opinion was that there did not appear to be alternative explanations such as "thyroid disease, depression, anaemia or other medical problems".

[52] With respect, I do not find Dr. Krieger's opinion to be independently persuasive regarding the nature and extent of Ms. Joel’s brain injury or injury to the thalamus or hypothalamus. His opinion was primarily derived from a review of the work of other professionals. His assessment of Ms. Joel was limited to a single examination almost four years post-accident and a brief follow-up exam in June 2004. He assumed that Ms. Joel was in excellent pre-accident emotional health which, as I will describe in due course, was not the case. While he testified regarding the fact that the thalamus and hypothalamus regulate body temperature, he did not describe why diminished temperature sensation should be restricted to the left side of the face. As I have previously noted there was no evidence that Ms. Joel’s core body temperature had been assessed as abnormal. Dr. Krieger offered no explanation of the means by which the thalamus or hypothalamus, deep-seated in the brain as they are, would have sustained injury in the absence of more visible signs of injury such as indications thereof in CT or MRI scans and in the absence to fracture to the cervical spine.

[53] Because of the comparatively late-arising suggestion of injury to the hypothalamus, the importance of menstrual irregularity in that finding, the presence of pre-accident menstrual irregularity, the abbreviated exploration of and inquiry into other reasons for any such irregularity, and the absence of any objective evidence of core body temperature change, I do not accept the opinions of Drs. Cameron and Krieger regarding injury to the thalamus or hypothalamus and find as a fact that Ms. Joel did not sustain such an injury in the May 22nd accident.

[54] Ms. Joel was assessed by three neuropsychologists: Dr. Crockett at G.F. Strong in February 2000, Dr. Schmidt on July 18 and 20, 2001, and Dr. Freeman in January 2003. Each of them carried out their examinations with knowledge of the diagnosis of brain injury. Their purpose was to attempt to assess the impact of that injury.

[55] The principal finding by Dr. Crockett in February 2000, was that of reduced processing speed.

[56] Dr. Schmidt was asked by Ms. Joel’s counsel to carry out an independent medical examination. He testified to finding that Ms. Joel showed "subtle weaknesses in processing speed”. That finding was consistent with prior testing undertaken by Dr. Crockett. Dr. Schmidt found no deficiency in the areas of focused, selective and divided attention or in Ms. Joel’s ability to learn and retain verbal information but observed some weakness in "sustained attention, a finding which could not be examined over time due to the fact that this had not been systematically evaluated in earlier assessments". His opinion was that Ms. Joel’s organizational abilities were generally intact and the fact that some test scores were weak in that area was most likely a reflection of difficulty with processing speed. He concluded that Ms. Joel’s ability to learn and retain verbal information was lower than would be predicted given her intelligence. He proffered his opinion that there was no evidence of a consistent deficit in her ability to learn and retain verbal information but difficulty with processing speed might affect her ability to learn information presented quickly. Dr. Schmidt concluded that there may be some subtle weakness in higher order language functioning and there was no difficulty in visual perceptual functioning. His conclusion was that the pattern of deficits was quite typical of and consistent with the effects of mild traumatic brain injury but he remarked that such effect could also arise from, or be aggravated by, psychological factors.

[57] Dr. Schmidt testified that processing speed or mental efficiency was a measure of the ability of an individual to process information, make decisions and respond in a rapid and efficient fashion. He testified to his experience that a deficiency in processing speed was commonly associated with traumatic brain injury, and to his opinion that the kind of accident in which Ms. Joel was involved could result in both emotional/personality and cognitive disorders.

[58] In relation to emotional function, Dr. Schmidt remarked that personality and emotional factors could have an impact on cognitive testing, neuropsychological disorders, including brain injury, could and usually did have an impact on personality and emotional functioning, and personality and emotional disorders can be present regardless of the individual’s neuropsychological status and have an impact in their own right. From the tests he administered, Dr. Schmidt concluded that Ms. Joel had a tendency to minimize or avoid dealing directly with psychological problems, and she appeared to be experiencing more psychological disruption than she was immediately aware of.

[59] Dr. Schmidt wrote of the psychological outfall from accidents as follows:

In addition to being potentially psychologically traumatic, accidents can also leave an individual with problems or changes in his or her life which are demoralizing and/or stressful. Such changes include direct physical problems, including disfigurement, pain, disability, and reliance upon physical treatments (surgery, medication, etc.) Such changes also include secondary effects of injury or disability, such as loss of or change of vocational status, interpersonal status, self image, financial security, and so on. Many of these changes are very difficult for the individual to adjust to. Often, the combined effects of such changes and problems is such that the individual simply is unable to achieve a successful adaptation to them, leading to development of a psychological disorder, such as a mood disorder (e.g., depression), an anxiety disorder, or a pain disorder. The accident in question has led to significant disruption of Ms. Joel's life. She has had to stop her police work as well as many physical and leisure activities that gave her a great deal of pleasure and sense of purpose and accomplishment. She has had repeated frustrating attempts to overcome her problems and return her life to a more stable basis. I believe that all of this has had an impact on her psychological state, leaving her with increased feelings of anxiety and depression which she finds it difficult to cope with at this point in time. At the same time, I do not view these psychological factors as being of a sufficient magnitude to explain all of the problems that she currently presents with.

[60] Finally, Dr. Schmidt stated his opinion that changes in emotional/personality status resulting from psychological and from neuropsychological factors are often highly similar and it is often difficult to determine, even with detailed testing, which is present. His conclusion was that Ms. Joel’s problems arose from a combination of psychological and neuropsychological factors.

[61] Overall, I found Dr. Schmidt’s evidence in this case to be balanced and objective.

[62] Dr. Freeman assessed Ms. Joel at the request of her counsel on four occasions in January 2003 over a cumulative period of 24 hours. He testified that the need for the multiple assessments resulted from the fact that Ms. Joel’s speech was pressured and very rapid, she did not pick up cues offered to her, she expressed a need to go back over various matters in detail, he wanted to minimize the effects of fatigue on the test results, and he wanted to be thorough. Those observations of Ms. Joel’s demeanour do not correspond to the observations of others who have examined her from time to time.

[63] Dr. Freeman testified that susceptibility to fatigue was a striking clinical feature during his examination of Ms. Joel and, in his opinion, a critical factor affecting her performance. He testified that the motor function tests he administered indicated slight, left-side deficiencies. In relation to intelligence as measured by the Wechsler Adult Intelligence Scale, 3rd edition, he found her score on the verbal comprehension index to be superior, on the perceptual organization index to be average, on the working memory index to be high average, and on the processing speed index to be average. He testified to his experience that the processing speed index was that part of testing most affected by head injuries. He offered his opinion that what was most significant in relation to Ms. Joel was the extent to which the score on the processing speed index differed from the scores on the comprehension, perceptual organization and working memory indexes. He regarded the difference as both statistically and clinically significant and suggestive of brain injury.

[64] Overall, the neuropsychologists who have examined Ms. Joel are consistent in their assessment that there is a discernible, but mild, deficiency in her ability to process information. They share the view that such deficiency may be associated with a traumatic brain injury. With the exception of Dr. Freeman, they acknowledge that psychological factors affect Ms. Joel.

[65] Ms. Joel was assessed post-accident by a number of psychologists including Dr. Ruckman at G.F. Strong and Dr. Hobson-Underwood.

[66] Dr. Ruckman summarized her work with Ms. Joel at G.F. Strong prior to discharge in a report of July 5, 2000 as follows:

Paulette is a 30-year-old woman who sustained a head injury in a MVA a year ago. She has made a good recovery but still reports back and neck pain, sensitivity to cold, fatigue, and cognitive and memory changes. Her educational background and previous testing indicate that is an intelligent woman with excellent verbal skills.

On the current testing her memory for visual material was good. She also retained organized, meaningful auditory material well. However, as she had to recall more extensive, less meaningfully integrated material, she had difficulty encoding and retrieving the material. She did not always use the most efficient memory strategies to organize the material. Paulette reports the subjective feeling that her memory is not as good as it was prior to the accident. Given her educational level, work skills, and other verbal skills, it is certainly possible that her memory skills have declined. Although her attentional skills are with the average range, she does not perform as well when speed is a factor. Again Paulette subjectively experiences a decline in her attentional skills. Given her previous work as a police officer, it is certainly possible that her average performance on these tasks is below her previous skills. Paulette’s ability to problem solve, plan learn from her errors, and think flexibly seem intact.

At this time it would be difficult for Paulette to return to active duty on the police force. She is still experiencing considerable pain and fatigue which would interfere with her job. In addition, she has more difficulty organizing information and responding quickly in complex attentional situations. One would expect that active police work requires better than average attentional and speed of processing skills. In the restricted testing situation she generally performed in the average range. In an active police situation one might expect her to have more difficulties. If Paulette improves in the future and a return to active duty is ever considered, she would need to be thoroughly reassessed in the specific skills necessary to be a police officer.

Paulette is exploring alternative careers and considering a return to school. Nothing in the testing counter-indicates this goal. She certainly has the intelligence and verbal skills for college or university courses. Her memory, while not as strong as before, would be adequate. If she does decide to return to school, starting with one or the most two course[s] would be recommended. She will need time to discover how her pain and fatigue and her reduced memory and processing skills will affect her studies. Initially, she will have to allow more time to study and pace herself to accommodate her fatigue. Paulette will be working with the Vocational Counsellor to explore educational possibilities and possible career directions.

[67] Dr. Hobson-Underwood, a registered psychologist, first assessed Ms. Joel in May 2001, twenty-four months after the accident and long after November 1999 when Dr. Cameron recommended psychological counselling. Dr. Hobson-Underwood first reported to anyone in relation to her treatment of Ms. Joel some eight months later on January 17, 2002, in a letter to the ICBC Rehabilitation Department. At that time she said the following of Ms. Joel:

- Ms. Joel continues to struggle with the idea of post-injury permanent limitations, and the associated emotional reactions to these losses.

- Ms. Joel tended to push herself to exhaustion.

- Ms. Joel has reduced capacity to deal with environmental stresses because of cognitive and physical limitations post-injury, at a time when there are increased environmental stressors (litigation, financial issues, etc.

[68] She described some post-injury cognitive difficulties, but did not describe the physical limitations of which she spoke. Dr. Hobson-Underwood described the goals of therapy in the following terms:

...helping Ms. Joel to continue to adapt, psychologically, to her post injury limitations, and to provide corrective feedback where appropriate in interpersonal interactions. Behavioural indicators that we are on the right track include the initiation of meaningful activities into her life (volunteer work, some hobby) on a regular basis, a decrease in her expectations of herself in terms of daily productivity, increased ability to pace herself, and associated increase in perceived quality of life and mood.

[69] At that time, Dr. Hobson-Underwood stated Ms. Joel needed continued therapeutic support, probably weekly, for the next ensuing few months after which frequency could likely be decreased. I find that the emphasis was therapy for brain injury related issues as opposed to psychological issues that were not neurological in origin.

[70] Dr. Hobson-Underwood next wrote to ICBC in September 2002 when she stated “I have not seen Ms. Joel much over recent months”. No particulars were provided. The only point of significance in the report was Dr. Hobson-Underwood’s observation that, ”Ms. Joel continues to struggle with her fatigue and deficits, and is increasingly accepting 'what is' in terms of her limitations and changed life”.

[71] Dr. Hobson-Underwood wrote again on November 25, 2002 saying she had seen Ms. Joel three times rather than two in the preceding month in order to provide support through Ms. Joel’s examination for discovery.

[72] The next report was that of April 21, 2003 addressed to Ms. Joel’s counsel. In that report, Dr. Hobson-Underwood wrote as follows:

Ms. Joel continues to have great difficulty coming to understand her deficits, although intermittently she says she 'gets it'. This is consistent with my experience with persons with brain injury, in that it is a lengthy (years) and arduous process to find a new identity, life, and sources of satisfaction and self-esteem, after sustaining such debilitating injuries, no matter how well adjusted the person may have been pre-injury.

[73] Dr. Hobson-Underwood’s final report to counsel was dated July 26, 2004. She stated that the opinions expressed in her April 21, 2003 letter had not changed. The letter contained no detailed description of the number of times Ms. Joel had visited for psychotherapy, but did say that contact continued by telephone while Ms. Joel was in Australia over a period of six months. My overall impression is that Dr. Hobson-Underwood provided limited and intermittent therapy in relation to coping skills associated with a brain injury rather than assessing the need for counselling and treatment in relation to psychological issues unrelated to any brain injury.

[74] The defendants did not tender evidence to contradict the opinions of neuropsychologists or psychologists. The defendants did tender two medical reports in direct evidence: one from Dr. P. Wong, a neurologist and another from Dr. M. Vallance, a psychiatrist.

[75] Dr. Wong examined Ms. Joel at the request of counsel for the defendants on February 17, 2003. At the time he had not been provided with, or at least had not reviewed, Ms. Joel’s historical records. He formulated his opinion solely by reference to that which Ms. Joel told him about an accident that occurred approximately three years and 9 months prior to the assessment. He stated his impression as follows:

This patient had been in excellent health prior to the MVA of 99/5/22, where she suffered a rather bad case of whiplash injury, but did not appear to have hit her head. She did not exhibit symptoms suggestive of a concussion, but described some symptoms which may have some neurological significance. Subsequently she describes soft tissue symptoms which gradually resolved. There were also some cognitive changes which persist till now. Prior to a neurological diagnosis being made, more information would be necessary to corroborate and to illustrate more clearly her difficulties in order to arrive at a better understanding. Such information would include observations at the scene of the accident by others regarding her behaviour and function, the Emergency record, and other records by the family doctor and specialists. For this writer, there is inadequate details and understanding of the neurological aspects to render an accurate diagnosis. A second report will be made after such a review.

[76] Dr. Wong subsequently reviewed the historical medical reports. Having done so, he stated his conclusions in the following terms:

Based on the above review, this writer offers the following opinion on the neurological status following the 99/5/22 MVA:

1. There is significant pre-MVA history of progressive symptoms germane to the understanding of this case.

2. The MVA caused soft tissue injury. It did not result in any significant neurological impairment or permanent brain injury. In particular it would not have caused injury to the hypothalamus.

3. Muscle spasms developed a short while later, and became more exaggerated during the long drive home.

4. The appearance and progression of the neurological and cognitive symptoms were delayed by some time after the MVA, making them unlikely to be caused by the MVA trauma.

5. The understanding of the neurological history varied widely between different doctors, resulting in different diagnoses. It would be important to ensure that all primary documentation relating to the MVA events have been reviewed for corroboration before diagnosis.

6. The possibility of analgesia side effects has not been considered adequately.

7. The cause for the left-sided body symptoms is unclear, but is unlikely to be the MVA trauma.

[77] With respect, I do not attach much weight to Dr. Wong’s opinions. The first was formulated long after the accident without reference to historical records. In my view, in order for the opinion of an expert to assist the Court, it should be based on a consideration of all that is known about a particular case, or the presentation of specific facts from which the opinion is to be derived. The second opinion is inconclusive.

[78] Dr. Vallance reviewed the written record, interviewed, and assessed Ms. Joel. I find that of the physicians who have examined her, he has been the one to focus most on the difference between that which Ms. Joel recalled of the periods before and after the accident as opposed to that which she knew as a result of what others had told her. Dr. Vallance concluded that Ms. Joel had a very good, if not complete, recollection of events up to the time of the accident but gaps in memory for a period of less than 24 hours afterwards, a fact which he attributed to a concussion sustained in the accident. He regarded the symptoms described in Dr. Anderson’s notes as consistent with a concussion. He stated that he found Dr. Cameron’s opinion that Ms. Joel had endured a sustained “significant prolonged amnesia with interrupted memory for the month of June after the accident occurred” to be inconsistent with the records and findings of Dr. Anderson and the history he, Dr. Vallance, had obtained from Ms. Joel. He identified inconsistencies in the findings of Dr. Cameron and Dr. Krieger in that Dr. Cameron reported finding various symptoms at the time of his initial assessment in 1999 that had abated or fully resolved by the time of somewhat later examinations while Dr. Krieger reported the recurrence of those same symptoms in 2003.

[79] Dr. Vallance considered the results of Ms. Joel’s examination by psychologists. He remarked that Dr. Crockett, who examined Ms. Joel in January and February 2000, seemed to have found impairments that did not appear to Dr. Vallance to be compatible with the complaints subsequently reported by Ms. Joel.

[80] Dr. Vallance referenced the observations of Dr. Ruckman reproduced earlier in these reasons. He expressed his opinion that those test results did not appear to be compatible with the impairments described to him by Ms. Joel as present on a day-to-day basis at that time.

[81] Dr. Vallance acknowledged Dr. Freeman’s opinion, based as it was on acceptance of neurological findings such as those of Dr. Krieger, that Ms. Joel had experienced a traumatic brain injury resulting in a primary impairment in her ability to rapidly process information. Dr. Vallance also referenced Dr. Schmidt’s opinion, formulated in July 2001, the substance of which was that Ms. Joel’s problems arose from a combination of psychological and neuropsychological factors, the combined impact of which, along with her various physical problems rendered her, in July 2001, unable to pursue gainful employment or education.

[82] Dr. Vallance expressed his opinion that Ms. Joel had sustained a soft tissue injury, the nature, extent and duration of which he properly left for other practitioners to asses, and she had exhibited symptoms such as dizziness, nausea, unsteadiness on her feet, forgetfulness and fatigue as reported to Dr. Anderson which were consistent with a concussion. He continued as follows:

...What is more difficult to understand is the course and development of symptoms over time, particularly when it is suggested that not only did she have a concussion with mild traumatic brain injury or post-concussive symptoms but, in addition to that, focal damage sufficient to produce weakness and sensory changes throughout half of her body. Clearly that is not compatible with a simple concussion. One would have to suppose very extensive damage to her brain, even in the absence of a convincing period of impaired consciousness and negative MRI's and CT scans. MRI's and CT scans can be negative following a concussion but it is less likely that they will be negative following a severe concussion and particularly with focal brain damage in a patient who is heavily symptomatic years later. There also appears to be some inconsistency in the neurological findings in so far as they were present when examined by Dr. Cameron, seemingly not so when examined by Dr. Wong save for some possible sensory change, but again overtly manifest when examined by Dr. Krieger. In any event, I will defer to the neurologists with regard to any focal damage that might have occurred but focal damage to the extent as described by Dr. Krieger, given all of the circumstances, would seem rather unlikely. I have a similar difficulty with the psychological problems in that, if anything, they appear to have become more overt over time, at least early on, but even then, if I understand the neuropsychological testing, her complaints day by day appear to extend beyond what one would expect from the test results.

...Having said all of that, there is nothing in what I have read or what she had told me to suggest that she was having any such problems prior to these accidents save possibly that her respiratory problems were greater than she now recalls and she was having a problem with her periods just before the accident, but nothing to suggest that she was having any problems psychologically or in her interpersonal relationships at the time, or that she was performing in any way unsatisfactorily in her work as a police officer. She did express some concerns about the danger of the job and she was thinking of transferring to a small town but these were ordinary life decisions and nothing more than that as far as I know.

...In the meantime, I have the greatest difficulty in understanding Ms. Joel's symptoms on the basis of a lasting brain injury but am much more inclined to believe that she had an early mild traumatic brain injury, i.e. concussion, with some post-concussive symptoms that became elaborated over time but on the basis of other factors rather than persistence or worsening of the organic problem itself. Otherwise, it does not seem to hang together well clinically.

[83] A large amount of evidence supports the conclusion that the most significant symptom Ms. Joel currently reports, namely fatigue, results from the exacerbation of pre-existing psychological factors or psychological problems triggered by the accident rather than neurological injury.

[84] Several clinicians who examined Ms. Joel relied on a difference in academic achievement before and after the accident to support the conclusion that she had sustained a neurological injury. She was described by many of the clinicians as one who excelled at high school and so should be expected to excel in later life. Those statements, frequently made without recourse to scholastic records, represent an overstatement of the situation. School records indicate that Ms. Joel performed at grades B, C and C+ in her last year of school in most subjects except Band where she earned an A grade. With respect, her academic performance cannot be described as excellent.

[85] A decline in her musical ability was attributed to the accident. Ms. Joel had been and active band member at school. She was a member of the National Youth Orchestra. While she was praised by many for her work as a young musician, she was unsuccessful in her attempt to gain entry to a music program of her choice at the University of Victoria in 1992. She tried again in 1994 at which time she was offered admission to the bachelor of education program with a minor in music. The offer was less than that for which she had hoped.

[86] In 1990, Ms. Joel enrolled in a nursing diploma program in Terrace, the community in which she had resided with her family for a period of time. She completed 19 courses and four of six trimesters. She abandoned the program approximately three months before completion, having concluded nursing was not a career she wished to pursue.

[87] Ms. Joel then worked as a civilian dispatcher for the RCMP and, from that experience, concluded she wanted to be a police officer. She wrote the RCMP and Vancouver Police Department entrance exams but did not pass. She increased the intensity of her studies and engaged the services of a tutor. She then wrote the exam required by the Delta Police Department and repeated the Vancouver Police Department exam. She passed both and enrolled in the Vancouver Department in November 1995.

[88] Ms. Joel graduated from the Justice Institute where her performance was at or somewhat below the class average. She was admitted to the Vancouver Police Department as a constable. She rose through the probationary and early ranks to become a Constable, First Class. Her exam result on achieving that rank was below average and, in fact, the lowest mark in her class on that occasion. One of the units of her training as a police officer consisted of marksmanship. She did not do well compared to others in the class. She embarked upon extra individual training and succeeded in the next round.

[89] Ms. Joel was portrayed by a friend, Detective Constable Susan Kellof - a member of the Vancouver Department who trained with Ms. Joel but had not worked with her on duty and who was consistently at the top of her class - as an excellent police officer who was easy to work with. Some officers with whom she had worked regarded Ms. Joel as a competent or very competent, hard-working, dedicated and enthusiastic officer. Those officers found her report-writing ability to be very good. This favourable view was not shared by other officers to whom Ms. Joel reported and who testified at the trial. Complaints included the observation that Ms. Joel constantly sought and required approbation, had difficulty fitting in with the squads to which she was assigned, and omitted material information from reports she compiled. In sum, reviews of her performance as a police officer were mixed.

[90] In April 1999, by which time she had the rank of Constable First Class, Ms. Joel decided to apply for employment with another force, the Nelson Police Department. Constable Hudson, a Vancouver police officer who testified on behalf of the defendant, said that he worked with Ms. Joel during her probationary stage earlier in 1996. He testified that he and Ms. Joel had discussed her application for work with the Victoria Police Department. He testified to his experience that it was most unusual for a member to resign from the Vancouver force in order to pursue employment elsewhere during the probationary stage.

[91] The desire to change employers continued to 1999. Ms. Joel explained her decision by reference to her desire to be in a rural environment where she could enjoy the outdoors. Whether she would have been accepted for employment in Nelson is unknown. Constable Bank of the Nelson Police Department had walked the beat with Ms. Joel as part of the Nelson application process. He testified that after doing so, he advised superiors of his view that she would not be a good choice for their department.

[92] Clinicians relied on Ms. Joel’s self-report of diminished capacity to make decisions after the accident as a measure of the extent to which she was affected by a brain injury. There is evidence that her decision-making ability was not significantly impaired if impaired at all. Shortly before the accident, Ms. Joel located a condominium which she wished to purchase to replace the one she owned. The sale of the old unit and the purchase of the new were completed in the spring of 1999, around the time of the accident. Notwithstanding the claim of acquired brain injury, Ms. Joel was able to complete both purchase and sale, undertake the organization and execution of renovations to the newly acquired property, and complete the move from old to new. Although she was assisted by friends in the course of the move, the amount of assistance was not any different from that which friends often provide to one another in the course of such events.

[93] Ms. Joel attempted to return to police work in the summer of 1999 on a part-time basis. The return was ultimately unsuccessful. She has not worked as a police officer since. Upon discharge from the acquired brain injury program at G.F. Strong in August 2000, when it appeared that she would not return to policing duties in Vancouver after the accident, Ms. Joel moved to Calgary, where she pursued a Grade 11 math class at Mount Royal College involving algebra and trigonometry. She testified to difficulties and challenges she faced in the course. Those notwithstanding, she achieved a mark of 98 per cent in the course which represented an A grade described in college material as "excellent - superior performance, showing comprehensive understanding of the subject matter".

[94] Upon completion of the math course, Ms. Joel considered her next move. She thought she should enrol in additional courses. Dr. Cameron advised against that course of action saying she was not ready to do so. When asked by the court why he would discourage Ms. Joel from doing as much as she wished, he offered his opinion that other patients had regressed when they took on more than they could endure. I do not find the concern about possible failure to be a reason to discourage a willing and able individual in the course of recovery from an acquired brain injury. That is particularly so when the individual has been discharged from the brain injury program with the kind of assessment made by clinicians at G.F. Strong, the generally accepted period for recovery is approximately two years, and no therapist watching Ms. Joel’s progress had observed anything to suggest that her recovery effort should be restricted because of impaired ability. Discouraging effort on the part of a previously active individual who has shown the tenacity to overcome under-achievement can only reinforce the individual’s view that he or she faces severe limitations which, on the basis of the reports of many clinicians in present circumstances, appeared not to be the case.

[95] Instead of pursuing additional courses and training directed at alternative careers, Ms. Joel sold her condominium in the lower mainland and moved to Victoria. The move made sense. Ms. Joel was an only child, her father was deceased, and she wanted to be closer to her mother who was fighting cancer.

[96] After a period of time in Victoria, ICBC provided Ms. Joel with the assistance of a rehabilitation consultant and occupational therapist, Mr. James Bardy. In the spring of 2002, Ms. Joel was encouraged to undertake volunteer work at the Royal British Columbia Museum. After one shift of two hours in the gift shop and another brief attempt at working as a customer representative utilizing the email system, Ms. Joel severed her relationship with the Museum as she and the organization found her involvement with it to be unsatisfactory.

[97] The volunteer co-ordinator testified that Ms. Joel reported difficulty focusing because of pain and fatigue and found standing difficult. I find that self-report to be inconsistent with the reports and observations of others in the same and preceding time periods. I find that an inability to perform was not the cause of Ms. Joel’s failure to succeed in her role at the Museum.

[98] Later in the spring of 2002, and based on the recommendation of counsellors that she might pursue a career in journalism, Ms. Joel enrolled in a correspondence English literature course. She interrupted the course in July 2002 to go to Calgary for a three-week vacation. Her explanation for the interruption was that she found the course too difficult.

[99] The evidence of Mr. Bardy indicates that frustration resulting from the difficulty of the course was not the reason she abandoned it. Through the month of May, Ms. Joel was in start-up mode. Mr. Bardy arranged for the acquisition of a computer for her use. He assisted in finding a tutor. A replacement was found when Ms. Joel found it difficult to work with the first. Mr. Bardy testified that as at July 30, Ms. Joel reported things were going well with the course. She advised she was going to go on holiday and take her coursework with her. She intended to be without the assistance afforded by a tutor and computer throughout the holiday. Mr. Bardy understood she would return from vacation and continue with the course. In fact, Ms. Joel returned and quit the course.

[100] It may be that the course, equivalent to a first year university course, was difficult for Ms. Joel who had last studied English in Grade 12, some 14 years earlier when she achieved a C+ grade. She had also encountered difficulty with some aspects of report writing as reported by some of her police colleagues. She did not apply herself to the course. Proven inability to perform occasioned by a brain injury did not provide the reason for withdrawal. The course was quite likely very challenging having regard for her grounding in the subject. The prior caution from Dr. Cameron about the possibility of failure might have been a factor. So, too, might have been her tendency to act on impulse as she had done in relation to the nursing program and the pursuit of employment alternatives in very early stages of her policing career. From and after July 2002, Ms. Joel has done little if anything with a view to finding gainful employment. With the advice of Mr. Bardy, the emphasis has been on exercise and recreational therapy.

[101] An example of Ms. Joel’s tendency to act on impulse is provided by her decision to withdraw from the acquired brain injury program at G.F. Strong in March 2000, in order that she could go to Australia to reunite with friends she had made in her role as an organizer of "Bluey Days", an event successfully developed in Australia by a police officer in that country to raise funds for children afflicted with cancer. The event was imported to Vancouver. Ms. Joel served as co-chairman in the 1998 campaign, a role which she abandoned in 1999 before the accident for reasons that were not fully explained in the evidence, but which appear to have been related to the fact that she found the role very demanding, likely overwhelmingly so, when combined with her police duties.

[102] In the course of treatment at G.F. Strong in January and February 2000, Ms. Joel expressed anxiety and frustration with the state of affairs. On January 29, 2000, clinical notes which, as I previously noted, were admitted as evidence of the truth of their contents, record that Ms. Joel was “fed up with the constant change of professionals”. She was concerned about the lack of explanation surrounding her financial affairs including the continuing receipt of pay cheques and uncertainty about long term disability. The notes record the expression of further frustration on February 7, 2000, stating that she found it hard not knowing what the future held. On February 16, 2000, Ms. Joel stated that she was overwhelmed by all her appointments. On that date she discussed “wanting to run away”.

[103] It is certainly easy to understand, better still at the date of trial, Ms. Joel’s frustration with appointments and professionals. The catalogue of professionals is extensive: two family physicians; one treating neurologist; two neurologists to whom she was referred for independent medical examinations; one psychiatrist to whom she was referred for an IME; three neuropsychologists; two psychologists; at least two physiotherapists; one or more massage therapists; two occupational therapists; several rehabilitation and vocational therapists; and two lawyers. I have no doubt this list is incomplete. I am not persuaded that the numerous consultations have assisted Ms. Joel. In fact, they may have had an opposite effect. The numerous consultations have produced little in the way of positive results and have caused Ms. Joel to be constantly reminded that she has a brain injury of much greater magnitude than is the case in fact. The words of Gibbs J. in Mythan v. Scott (March 1, 1989), B852140 Vancouver (B.C.S.C.) are apt:

Here we are dealing largely with intangibles: with cognitive deficiencies; with emotions; with sensitivities; with anxiety; with memory impairment, and the like. And when dealing with these intangibles, and making provision for them, care must be taken to refrain from surrounding the plaintiff with such a cocoon of care and assistance and advice that she has converted from a person who can cope, albeit somewhat inadequately, with assistance, into a person who is a complete and entire dependent. That is to say, her initiative and her willingness to perform useful and self-help functions must not be stifled or destroyed.

[104] When in Australia in the spring of 2000, Ms. Joel managed personally at a very acceptable level. At various times she was able to snorkel, ride a bike, travel some distance by car on her own, dine out and attend cabarets in the evening, and pursue personal relationships. The evidence of those who saw her in Australia was that she did not appear overly fatigued. She did rest from time to time after outings in which she was involved.

[105] During the visit in 2000, Ms. Joel received no treatment to replace that which she had left behind at G.F. Strong. Whether the enjoyment she says she experienced in Australia short-term would be long-lived given her history with various pursuits and places is questionable.

[106] Ms. Joel returned to Australia for three months in the spring of 2004, again without misadventure. Her activities on that occasion were little different from those on the first trip. She has fared quite well when away from the litigation and the plethora of consultants and therapists.

[107] Ms. Joel’s pre-accident medical history was thought by most who examined her to be unremarkable and therefore supportive of the conclusion that she had suffered a brain injury. A part of her history is very relevant and material in the present context.

[108] Ms. Joel’s father committed suicide in tragic circumstances when the family was living in Terrace and she was still of young age. I am satisfied by the evidence that Ms. Joel did not receive sufficient, if any, counselling around the time of the incident. Instead, she and her mother soldiered on with their lives in a most commendable fashion. Ms. Joel lost her mother to cancer in the late summer of 2001. She had been faithful to her mother and her care over the lengthy period of illness.

[109] In the summer of 1998, Ms. Joel was required to attend as an officer on duty at the scene of a male suicide in Vancouver. The immediate result was post-traumatic stress disorder. She was required to take time off work. She received timely and appropriate treatment and counselling along

Citation:	*Joel v. Paivarinta et al.,*
	2005 BCSC 73