IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20121219

Docket: M084696

Registry:
Vancouver

Between:

Pamela Marjorie
Perry, formerly known as Pamela Kelly

Plaintiff

And

Arturo
Abenoja Vargas and Gold Key Pontiac Buick (1984) Ltd.

Defendants

Before:
The Honourable Mr. Justice Savage

Reasons for Judgment

I.        Introduction

[1]            
This matter involves a motor vehicle accident that occurred on December
4, 2006, near the intersection of Hornby Street and Smithe Street in Vancouver,
B.C (the “2006 Accident”). The plaintiff, Pamela Perry, was rear-ended by a Purolator
delivery vehicle driven by the defendant, Arturo Vargas.

[2]            
The accident occurred in stop-and-go traffic during “rush hour”, between
7 and 8 a.m. Ms. Perry, an elementary school teacher in West Vancouver, was on
her way to work. There was minimal damage to the vehicles involved. The
Mercedes Ms. Perry was driving had its rear bumper cover split, which was
replaced. The Purolator van needed no repairs.

[3]            
Although Ms. Perry continued working full time after the accident for
nearly two years, she says that she is now unable to do so, and has a claim for
past income loss and loss of future income totalling nearly $360,000, special
damages of nearly $55,000, and claims general damages in the range of $80,000
to $120,000.

[4]            
The defendant admits liability, but says that Ms. Perry has failed to
prove that her current symptoms are causally connected to the 2006 Accident. The
defendant says Ms. Perry suffered a mild to moderate grade II whiplash injury
resulting from a low-impact collision.

[5]            
The defendants say that Ms. Perry recovered from her injuries in 2008. Any
ongoing symptoms are the result of Ms. Perry’s pre-existing conditions in
combination with multiple intervening events. The defendant says that the
appropriate range of non-pecuniary damages is $20,000 to $30,000, with minimal
income loss, and special damages of about $6,000.

[6]            
The plaintiff claims approximately $500,000 in damages and the defendant
says the claim is worth less than $35,000. The resolution of this case depends
on an analysis of the causation of Ms. Perry’s ongoing symptoms.

II.       Background

A.       General

[7]            
Ms. Perry was born in November 1953. She first married in 1974. She
attended UBC and obtained a Bachelor of Arts degree in 1975 and her teaching
qualification in 1976. She taught grade 1 for several years, then took time off
teaching to raise two sons. When the youngest child entered kindergarten, Ms.
Perry returned to UBC and obtained a masters degree. She then taught full time
from 1991 to 2004.

[8]            
In 2002 Ms. Perry met her future husband, Tom Perry. He is a professor
at Simon Fraser University. They married in 2003.

[9]            
Ms. Perry says that before 2003, she was physically active and involved
in such sports as golf, swimming, cycling, volleyball, and softball. Ms. Perry
was a member of a sports group called the Inside Edge, which coordinated many
of the activities she attended. She enjoyed dancing, hiking, cross-country
skiing, and kayaking with Mr. Perry.

[10]        
In the spring of 2003 Ms. Perry decided to reduce her employment from
full time to part time. This was a life-style choice as she wanted to travel
with Mr. Perry, who was able to travel with his employment. She reduced her
employment from full time to .6 FTE (full time equivalent) employment.

B.       June 2003 Tug-Of-War Incident

[11]        
Three weeks before her marriage to Mr. Perry, Ms. Perry was injured at a
school sports day on June 13, 2003, when she was pulled to the ground during a
tug-of-war (the “June 2003 TOW Incident”). She injured her back and was
initially diagnosed with back strain. Ms. Perry was prescribed
anti-inflammatories and massage therapy. More than a year later, in the fall of
2004, the injuries were diagnosed as a herniated disc in her low back at L3/4. The
injury was subject to a WCB claim.

[12]        
Ms. Perry wrote to WCB concerning her injuries in October 2004. She was
concerned about the termination of benefits that she felt were beneficial. Ms.
Perry wrote that her life had changed “drastically” because of the injury and
that she had “lost one year of an active life” because of WCB decisions which
did not support physiotherapy.

[13]        
In 2004 Ms. Perry advised her family physician, Dr. Paul, that before
the June 2003 TOW Incident she had been golfing, playing tennis, jive dancing,
swimming 20-30 lengths of a pool, playing softball, running on a treadmill, working
out with weights, cross-country skiing, and going on overnight cycling and
camping trips as well as day hikes of five or six hours. Since the TOW Incident
she had only been walking, swimming, and doing yoga and some exercises
designated by her physiotherapist.

[14]        
Ms. Perry wrote to WCB reiterating these complaints and said that she
had “many days of pain from September 2003 to June 2004” and there was a “full
blown crisis” in August.

C.       September 14, 2004 CT Scan

[15]        
On September 14, 2004, Ms. Perry had a CT scan. The findings are as
follows:

FINDINGS:

At the L3/4 level, a moderate-sized right posterolateral/foraminal
disc herniation is seen likely impinging on the exiting right L3 nerve root.
Clinical correslation recommended.

At the L4/5 level, a small diffuse disc bulge is present, but
no nerve root impingement is seen and only mild central canal stenosis is
identified.

At the L5/S1 level, vacuum phenomenon is also present in the
right facet joint with subchondral sclerosis of the facet joints bilaterally
compatible with early osteoarthritis. However, no never root Impingement is
seen at this level.

An incidental note is made of vacuum phenomenon within the
sacroiliac joints bilaterally compatible with early degenerative change.

IMPRESSION:

Right posterolateral/foraminal
L3/4 disc herniation with slight superior migration likely impinging on the
right L3 nerve root. Clinical correlation recommended.

[16]        
As the CT Scan occurred before the 2006 Accident, the CT scan reports
the condition of Ms. Perry’s spine prior to any compensable motor-vehicle
accident related injury. The diagnosis was a right posterolateral/foraminal
L3/4 disc herniation with slight superior migration. It is agreed that the disc
herniation was caused by the June 2003 TOW Incident.

[17]        
The examiner also noted vacuum phenomenon present (1) at the L5/S1 level
compatible with early degenerative disc disease, (2) in the right facet joint
with subchondral sclerosos of the facet joints bilaterally, compatible with
early osteoarthritis, and (3) within the sacroiliac joints bilaterally,
compatible with early degenerative change.

[18]        
The CT scan report is a “Selected Document”. With respect to such
documents, the parties agreed that they are “admissible as proof of the truth
of the matters recorded as if the statements of fact and opinion in such a
document were tendered in evidence” and ”subject to the unfettered discretion
of the trial judge as to matters of weight and subject always to proof to the
contrary”.

[19]        
There was no evidence contradicting these findings.

D.       2004 to 2006 Accident

[20]        
Ms. Perry’s evidence is that she was virtually back to normal by the
time of the 2006 Accident. That is also the evidence of Mr. Perry. Ms. Perry
began pilates in June 2005. She resumed hiking and cycling. Ms. Perry and Mr.
Perry bought dance lessons and cross-country ski passes which they used and
enjoyed.

[21]        
In 2006, because of her seniority, Ms. Perry was entitled to return to
full time employment. She explained that she and Mr. Perry sold their
condominium in Yaletown, renovated a home on the west side of Vancouver, and
incurred significant debt. In March 2006 she applied to return to full time
work. She returned to full time employment in September 2006.

[22]        
Dr. Paul, Ms. Perry’s family physician, also testified. Her notes
indicated that from September 2004 to April 2006 Ms. Perry made no mention of
her back issues despite regular visits. On April 27, 2006, however, Ms. Perry
did make mention of back discomfort to Dr. Paul.

[23]        
During 2004 and 2005, however, Ms. Perry worked only three days a week. She
testified that this was by choice on her part. In cross-examination she accepted
that she had only returned to 90% of her abilities before the 2006 Accident. She
had also attended physiotherapy and massage treatments for the June 2003 TOW
Incident. She had not returned to golfing by the time of the 2006 Accident.

E.       The 2006 Accident

[24]        
On December 4, 2006, Ms. Perry was on her way to work during early
morning rush hour. She was driving a 2001 MB C240 sedan. She said she was
stopped when she was rear-ended. Her head struck the head rest from the
velocity of the impact. She immediately suffered headache and later called into
her school to take the day off. She saw her physician, Dr. Paul, the same day.

[25]        
Mr. Vargas was driving a 2005 GMC delivery vehicle. He was going to
Whistler for a delivery. I accept the evidence of Mr. Vargas that he was in stop-and-go
traffic on Hornby Street at the time of the accident. In the midst of this
traffic, Mr. Vargas momentarily lost attention and rear-ended Ms. Perry’s
vehicle.

[26]        
In my opinion the evidence supports the 2006 Accident being a minor low-speed
collision. The total damage was less than $2,000. The damage to Ms. Perry’s
vehicle was to the rear bumper cover. The bumper cover split and needed
replacing. There was painting involved. There was no repairable damage to Mr.
Vargas’s vehicle.

[27]        
Mr. Vargas testified that both vehicles were moving at the time and the
impact was light. He had a tray with deliveries on the passenger seat next to
him and the tray was not dislodged by the impact.

[28]        
The evidence on whether Ms. Perry’s vehicle was moving at the time of
impact is conflicting. In my view nothing turns on this conflict. I accept that
the impact was light. They were in stop and go traffic travelling at low speed.
Mr. Vargas’s vehicle was much heavier than that of Ms. Perry. Although the
damage was minimal and impact light, it was sufficient to cause Ms. Perry
injury, which is not disputed.

F.       2006 Accident to Spring 2008

[29]        
Although Ms. Perry missed a few days of work after the 2006 Accident,
she returned to full time employment shortly thereafter. She continued in full-time
employment until January 26, 2009. She took three months medical leave from
January 26 to April 26, 2009. She worked .4 FTE from April 27, 2009, until June
30, 2009. In September 2009 she increased her employment to .6 FTE. In September
2010 she reduced her work to .5 FTE.

[30]        
Ms. Perry saw Dr. Paul on the day of the 2006 Accident and thereafter
until she transferred to the care of another general practitioner, Dr. Alicja
Tesiorowski. Dr. Paul’s clinical record dated July 10, 2007, indicated that Ms.
Perry reported that her headaches appeared to be resolved.

[31]        
Until August 10, 2007, Ms. Perry visited Dr. Paul at various times in
relation to the 2006 Accident. She visited Dr. Paul on August 28, 2007, and
November 22, 2007, without any complaints regarding the 2006 Accident. In
September 2007, she commenced treatment with a “sacro-cranial” physiotherapist
that provided “huge relief”. She attended two physiotherapy sessions and six massage
therapy sessions from November 1, 2007 to May 16, 2008.

[32]        
In the spring of 2008, Ms. Perry took less treatment. She reported
swimming and walking, and resumed golfing.

G.      Golf Injury and Classroom Injury

[33]        
In the spring of 2008 Ms. Perry played one 9 hole round of golf
relatively uneventfully. She partially played a second round of golf. Ms. Perry
quit playing in the middle of the round suffering a back strain (the “Golf
Injury”).

[34]        
She described the Golf Injury as a “disaster”. Dr. Paul observed limited
range of motion in her neck and diagnosed Ms. Perry with chronic neck and back
pain. In a letter dated January 17, 2009, Ms. Perry referred to the Golf Injury.
She said “I ended up paying for that with many months of tightness, pain and
further loss of mobility”.

[35]        
 In the summer of 2008, Ms. Perry saw the sacro-cranial physiotherapist
and a registered massage therapist. Her shoulder symptoms improved. She tried
to resume cycling.

[36]        
In the fall of 2008, Ms. Perry strained her back while setting up her
classroom (the “Classroom Injury”).

H.       October 2008 Accident

[37]        
On October 18, 2008, Ms. Perry was involved in a second motor vehicle
accident (the “2008 Accident”). The driver of the other vehicle was Mr. J.W.
Kim. The accident was adjudged her fault. There was damage to the right front
corner and side of Mr. J. W. Kim’s 2002 Acura. The damage estimate was just
over $3,000 to Mr. Kim’s vehicle. Ms. Perry’s vehicle suffered damage estimated
at just under $7,000. The collision was a side impact rather that a straight on
collision.

[38]        
Ms. Perry testified that she was not injured at all in the 2008 Accident.
She reported no change in her symptoms. However, in January 2009 she wrote a
letter to Dr. Paul saying that she had “severe headaches, some lasting several
days, for more than a month”. She said “[f]orced inactivity has resulted in a
more or less frozen back”. She said she was in a “vicious cycle of re-injury
and trying to get better”. However, up to this time, she had been working full
time.

I.        January 2009 to January 2010

[39]        
Ms. Perry saw Dr. Paul on three or four occasions in January 2009. She was
referred to Dr. Spacey, a neurologist, to treat her headaches. Dr. Paul also
referred Ms. Perry to Dr. Condon. Dr. Paul recommended Ms. Perry go on medical
leave, which she did in late January 2009.

[40]        
Ms. Perry then completed a work hardening program with the input of BCTF
liaison and kinesiologist, Mr. Kelly Chow. Dr. Condon gave her weights to
stretch her shoulders, and taught her stretches and other exercises. An
occupational therapist came into her classroom and prescribed strategies,
techniques and equipment to improve Ms. Perry’s functioning in the classroom. After
three months of medical leave Ms. Perry returned to work on a part time basis,
initially as a .4 FTE, then as a .6 and .5 FTE. She never returned to full time
work after January 2009.

J.       February 2010 Fall

[41]        
In February 2010, Ms. Perry fell down the stairs at home (the “2010
Fall”). She said she hurt her left hip and elbow. The fall also caused bruising
on her buttocks. When her condition did not improve she attended Lions Gate
Hospital. At the Hospital her shoulder was examined and she was advised to
attend physiotherapy.

[42]        
Ms. Perry saw a physiotherapist, Ms. Nicole Stefanson, for these
injuries. Ms. Stefanson thought Ms. Perry had improved from the fall by
April 2010. She continued treating Ms. Perry for her lower back complaints on
the referral of Dr. Condon.

K.       September 2010 MRI

[43]        
Ms. Perry had an MRI scan done on September 1, 2010, on the referral of
Dr. Condon. The findings and impression were as follows:

Findings: Comparison is made to previous CT scan of
lumbar spine from St. Paul’s Hospital from L3 to S1 dated September 14, 2001.

Five lumbar-type vertebrae are demonstrated in normal
alignment.

The conus medullaris is normal in position and appearance.

L1/2: Mild bilateral facet arthropathy.

L2/3: Mild bilateral facet arthropathy. The intervertebral
disc is normally maintained.

L3/4: Mild loss of disc height and disc desiccation with
small diffuse disc bulge and moderate bilateral facet arthropathy. The anterior
thecal sac is mildly flattened. The neural foraminal canals are adequately
maintained.

L4/5: Mild disc desiccation and small diffuse disc bulge with
associated bony spurring resulting in effacement of the anterior CSF. There is
no convincing nerve root contact. The neural foraminal canals are adequately
maintained. The facet joints are relatively well preserved at this level.

L5/S1: Moderate loss of disc height and disc desiccation with
moderate diffuse disc bulge. Associated Schmori’s nodes are noted involving the
inferior L5 end plate. The bulging disc/osteophytes result in effacement of the
anterior CSF and moderate bilateral neural foraminal canal narrowing. Mild
bilateral facet arthropathy is present.

The upper SI joints are normal.

In comparison to the previous examination, the disc height
loss at the L5/S1 level appears to have increased and there may be slight
increase in the severity of facet changes. There is otherwise no definite
interval change.

Impression: Changes of
mild to moderate lumbar spondylosis maximal at the L5/S1 level with particular
details as described above. The most marked morphologic change is facet
arthropathy at multiple levels and bilaterally.

L.       December 2011 Whole Body Bone Scan

[44]        
Ms. Perry had a whole body bone scan on December 8, 2011. The scan is
described in the report of Dr. Cohen as follows:

The patient received an intravenous injection of Tc-99m MDP
(methylene diphosphonate).

Whole body skeletal imagers were obtained 3 hours post
injection. There was evidence of increased uptake in the facet joints of the
lower lumbar spine, involving L5-S1.

SPECT (Single Photon Emission Computed Tomographic) images of
the lumbar spine were obtained. SPECT images confirmed abnormal uptake in the
facet joints at L5-S1.

OPINION:

Plannar and SPECT images show
facet joint disease involving L5-S1

M.      May 2012 X-Ray

[45]        
Ms. Perry had an x-ray on May 18, 2012. The report is as follows:

HISTORY: Assess for facet arthropathy and spinal stenosis.

FINDINGS:

L1/2: Normal.

L2/3: Normal.

L3/4: Mild circumferential disc bulge and minimal facet
degeneration are present. No spinal or foraminal stenosis.

L4/5: Minimal bilateral facet degeneration. No significant
spinal or foraminal stenosis.

L5/S1: Moderate bilateral facet
degeneration is present resulting in mild bilateral foraminal narrowing,
slightly worse on the right than left. Minimal circumferential disc bulge. No
significant spinal stenosis.

N.       Treatment Costs

[46]        
The defendant introduced a chart showing the claimed special expenses of
Ms. Perry, which included passive and active therapies. The plaintiff did not
take issue with the chart except to say that it included active therapies and
thus the title was misleading. The chart is as follows:

III.       Physicians and Treatment Providers

A.       Dr. Paul

[47]        
Ms. Perry was treated by her family physician, Dr. Paul, from 2003 until
May 2010. Dr. Paul did not submit an expert medical legal report but reviewed
her clinical records in some detail in her testimony.

B.       Dr. Condon

[48]        
Dr. E. A. Condon of the Echelon Clinic treated Ms. Perry from January
2010 until his sudden passing. There are no expert medical legal reports from
Dr. Condon although several medical notes authored by him were introduced in
evidence.

C.       Dr. Tesiorowski

[49]        
Dr. Tesiorowski is a general practitioner with a family practice she
took over from another physician in 2009. She has been Ms. Perry’s family
doctor since May 20, 2010. Her opinion is based on a review of Ms. Perry’s
files and records, as well as her monthly visits with Ms. Perry.

[50]        
Dr. Tesiorowski was initially reluctant to prepare a report because she
had not conducted her own physical examination in the ten-month period after
her first visit with Ms. Perry, and had not conducted an examination in the
three years between the 2006 Accident and Ms. Perry’s first visit.

[51]        
As she was Ms. Perry’s family physician, Dr. Tesiorowski considered
herself responsible for writing an opinion, but had to rely on documentation
prepared by others. Dr. Tesiorowski had only physically examined Ms. Perry
once, and that was years after the accident. Most of her opinion was based on
what Ms. Perry had told her, on what was contained in Ms. Perry’s files, and on
the reports of other medical professionals.

[52]        
Dr. Tesiorowski said that, other than at her first visit, Ms. Perry did
not complain about her injuries. Dr. Tesiorowski’s treatment focused on Ms.
Perry’s mental health issues and general health. Ms. Perry was suffering from
some depression, but it was, in Dr. Tesiorowski’s view, mild or moderate and
could be treated without hospitalization and without seeing a psychiatrist or
psychologist. She considered Dr. Condon to be treating her other injuries.

[53]        
In her report, dated July 5, 2011, Dr. Tesiorowski described the
accident and its immediate effect on Ms. Perry:

Mrs. Perry was involved in motor vehicle accident on December
2, 2006. Prior to the accident she was working full time as a elementary school
teacher, did majority of house work and was very active doing fitness
exercises, hiking, cross country skiing, golfing, bike riding, gardening and
dancing. After the accident she was experiencing: frequent and severe
headaches, neck, upper back and shoulders pain and stiffness. She had to limit
her work hours, was not able to do her normal house work and to participate at
any sport activities. She focused her energy on treatment and recovery. Her
condition has improved slowly but she did not recover completely.

Report from Dr. Tesiorowski (July
5, 2011).

[54]        
Dr. Tesiorowski found that the MVA caused Ms. Perry’s injury:

In summary, as a consequence of the MVA on December 2,
2006 Mrs. Perry suffered soft tissue injury of her neck, upper and lower back
and shoulders. Initially she had neck pain and stiffness, upper back pain,
suffered from frequent migraine headaches and had low energy. Her symptoms
partially improved with massage therapy, physiotherapy, mobilizing exercises
and time. It significantly affected her ability to work, her daily life and
radically limited her activities. Mr. Perry demonstrated exceptional commitment
and effort towards her recovery. She still suffers from back and shoulders pain
that limits her ability to work and she is very prone to re-injury as it
happened after the Functional Capacity Evaluation in October 2010. In my
opinion she will likely always remain vulnerable to exacerbations of neck and
back pain and stiffness under conditions of longer activities and heavier
physical work, and she will be more susceptible to injury with prolonged
recovery time.

Report from Dr. Tesiorowski’s
(July 5, 2011) [emphasis added].

[55]        
When Dr. Tesiorowski gave Ms. Perry a full physical, the sole objective
symptom was tenderness on palpation on Ms. Perry’s back. This was, according to
Dr. Tesiorowski, the only objective sign of injury.

[56]        
I find it difficult to give much weight to Dr. Tesiorowski’s opinion
with respect to causation. Most of the report appears to simply reiterate what
she has been told by others. She was not in fact treating Ms. Perry for the
complaints until the passing of Dr. Condon. She only did one physical
examination. In the report she does not address any of the intervening events.

[57]        
In my opinion there is another more fundamental problem with Dr. Tesiorowski’s
report. There is no reasoning linking the current complaints with the December
4, 2006 Accident. That is, she states a conclusion as quoted above but provides
no insight into the reasons for that conclusion. I examine this matter in
greater detail below.

D.       Dr. Laidlow

[58]        
Dr. Laidlow examined Ms. Perry on April 15, 2011. His opinion is based
on that single examination, a review of other reports, and information given to
him by Ms. Perry. Dr. Laidlow specializes in physical medicine and
rehabilitation.

[59]        
In his report dated May 19, 2011, Dr. Laidlow noted that Ms. Perry has
three chief complaints: lower back pain, left posterior shoulder pain, and neck
pain. Dr. Laidlow found that the MVA caused the back and shoulder pain.

With respect to her lower back pain, I feel that Pamela
did sustain a musculoligamentous strain (Whiplash Associated Disorder Type II
by the Quebec Task Force criteria) as a result of the motor vehicle accident
that was superimposed on a previous history of degenerative disc disease of the
lumbar spine and a prior right sided L3-4 disc herniation.

With respect to her left posterior shoulder pain, neck
pain and headaches, I feel this relates to a musculoligamentous strain of the
cervical spine (Whiplash Associated Disorder Type II by the Quebec Task Force
criteria) as a result of the motor vehicle accident to which was superimposed a
strain of the left shoulder in a fall in the early part of 2010. The headaches
are likely cervicogenic in nature and are related to the motor vehicle
accident.

Report from Dr. Laidlow (May 19,
2011) [emphasis added].

[60]        
The MVA also caused her neck pain:

I believe most of the upper shoulder discomfort relates to
her motor vehicle accident, although it was aggravated by this fall to her
shoulder in early 2010.

Report from Dr. Laidlow (May 19,
2011) at 13.

[61]        
Dr. Laidlow noted that degenerative disc disease has some impact on Ms.
Perry’s symptoms, and would have arisen even if the MVA had not occurred:

As indicated, there is a small bulge in the C5-6 disc evident
on the MRI performed more recently, but I do not believe that her neck or
shoulder problems relate to that disc and it is really more of a degenerative
disc than one that is causing pressure on a nerve.

…

With the lower back, I think it is clear that she was having
mechanical lower back pain prior to the motor vehicle accident, but that the
motor vehicle accident aggravated this problem. She seemed to be improving,
with regard to her lower back pain, prior to the accident. Weighting all of
this up, I suspect that her current situation is more related to the motor
vehicle accident than her pre-existing mechanical lower back pain, but it would
be expected that mechanical lower back pain would have a variable history with
ups and downs over the course of time even if the accident had not occurred. She
did, however, seem to be capable of doing jive dancing, cross country skiing
and hiking, according to her interview with me, prior to the accident and
certainly she is not capable of doing this at the present time without
increased discomfort.

Report from Dr. Laidlow (May 19,
2011) [emphasis added].

[62]        
Dr. Laidlow did not recommend any further investigation of Ms. Perry’s
injuries. He was somewhat critical of her treatment and said:

With respect to her treatment, I personally feel that her
current treatment is too passive in nature and unlikely to make significant
progress. With this type of musculoligamentous injury the soft tissues are
prone to tightening up and remaining uncomfortable. The rehabilitation must
emphasize a major effort at flexibility exercise followed by light weight
strengthening. All measures which do not result in significant stretching or
strengthening are likely, at best, to result in a temporary improvement in
symptoms. Too much of an emphasis on passive treatments only leads to an
increasing dependency upon them with no significant long term gain.

Report from Dr. Laidlow (May 19,
2011).

[63]        
Dr. Laidlow testified that a patient’s activities, changes in work
patterns, and injuries are important in a causation assessment, and that he
relied on Ms. Perry to provide that detail, with some assistance from the
records.

[64]        
Dr. Laidlow testified that Ms. Perry did not tell him about the 2008
Accident, but also testified that if Ms. Perry was not injured in that accident
it would not be important for him to hear about it. Dr. Laidlow did not know
about the Classroom Injury, or that during the 2010 Fall she had landed on her
buttock, leaving a large bruise. Ms. Perry told Dr. Laidlow that a pilates program
had exacerbated her neck pain, but she did not tell him that she incurred an
injury during that program.

[65]        
Dr. Laidlow testified that he diagnosed Ms. Perry with whiplash-type
injuries (myofascial pain) to her shoulder, neck, and back. He stated that
improper exercise could also cause injuries including myofascial pain. He stated
that a golf-swing, a fall onto one’s buttocks, and lifting items at work could
all cause injuries.

[66]        
Dr. Laidlow concluded that Ms. Perry’s symptoms were caused by the MVA.
Dr. Laidlow found that the injuries Ms. Perry incurred during the MVA were superimposed
on her pre-existing conditions. Weighing the evidence before him, Dr. Laidlow
found that the current symptoms were more related to the MVA than to her
pre-existing conditions, but that the underlying mechanical problem would have
a variable history with “ups and downs” over the course of time, even had the
MVA not occurred.

[67]        
In my opinion the weight to be given to Dr. Laidlow’s opinion is
weakened because he was unaware of several incidents that occurred after the
MVA and which might have borne on his analysis. Dr. Laidlow also saw Ms. Perry
for the first time over four years after the 2006 Accident. He only saw her on
one occasion.

E.       Dr. Shuckett

[68]        
Dr. Shuckett is a specialist in rheumatology and osteoarthritis. Dr.
Shuckett saw Ms. Perry on November 29, 2011, and on January 3, March 29, and
June 5, 2012. Dr. Shuckett diagnosed the following symptoms based on her
first-hand observations of Ms. Perry, a review of imaging studies, and a review
of other medical reports:

1. Neck and shoulder girdle pain, most in keeping with left
sided musculoligamentous neck pain, and perhaps some left zygapophyseal joint
capsular injury on the left side of the neck.

The neck pain has improved to some degree and yet when I last
saw her she felt overall she was feeling worse.

2. Myofascial pain syndrome of the left neck and shoulder
girdle region with palpable muscle spasm and painful trigger points.

3. Initial left shoulder impingement syndrome.

This was significantly improved in my follow-up assessment of
the patient more recently. There had been a delayed exacerbation of the L
shoulder when she fell in 2009 or 2010 and after a FCE. There was apparently a
frozen shoulder around then, in the patient’s words

4. Mechanical low back pain (LBP).

I believe that the mechanical low back pain is
multifactorial. She is quite tender over the right facet and lumbar
extension and lateral flexion to the R side are painful  A right L5/S1 facet
block decreased a component of her LBP. These factors all support R L5/S1 facet
mediated pain.

Maneuvers to stress the right sacroiliac were uncomfortable.
She was tender over the right sacroiliac region, as mentioned. Thus, I feel
some of her pain is coming from sacroiliac ligament injury on the right side.

I believe that there is right facet anthropathy and this
is supported by the fact that the MRI scan, particularly in 2012, showed
progression of osteoarthiritis in that joint and the bone scan lit up in the
right facets at this level of L5/S1. The facet block I ordered helped her
which further supports a facet mediated component of her low back pain.

There are degenerative changes in the facet and I do not
believe that the MVA caused the degenerative changes, but I am wondering
whether it may have caused a new inflammation and irritation in the right
L5 -S1 facet contributing to her post-MVA pain.

It sounds like the problem with her old back injury, was a
herniated disc which was documented at L3 – 4 on the right side. She had
improved from this and was very active and working full time in the years
leading to the subject MVA. Still, her low back was probably more vulnerable to
reinjury considering her old back history and furthermore considering the
degenerative changes in her lumbar spine.

Report from Dr. Shuckett (June 8,
2012)[emphasis added].

[69]        
Dr. Shuckett found that the MVA caused Ms. Perry’s symptoms:

Causation of the lumbar spine/low back issues are addressed
above. I will not reiterate these details here. I would just say that her
underlying degenerative structural changes in her lumbar spine would probably
have rendered her more susceptible to injury in the face of MVA.

She was working full time leading to the MVA. She had
returned, she said, to a very active lifestyle before the subject MVA. This has
changed since the subject MVA.

I believe that the MVA is the main catalyst to her current
back pain but underlying degenerative change and the old injury also have to be
taken into account.

I believe that her neck and shoulder girdle symptoms were
initiated with the subject MVA. I believe her L shoulder problem is a composite
between the MVA and reinjury after the subject MVA.

I believe causality and prognosis of her headaches (HA’s) are
best left to the opinion of Dr. Stacey of Neurology.

Report from Dr. Shuckett (June 8,
2012) [emphasis added].

[70]        
In making her prognosis, Dr. Shuckett noted that Ms. Perry’s
degenerative disc disease and work history make causation difficult to
establish:

I cannot rule out that the old degenerative disc disease,
especially at L5 – S1, may be part of her central back ache and would have
structurally antedate the subject MVA, but actually became troublesome with the
subject MVA.

…

It is also noteworthy that she continued working full time, I
gather, until the early part of 2011. Again, I wonder if some mood disorder,
psychosocial issues and lesser coping of the pain and lesser coping with her
workload may have been instrumental in this.

The fact that she kept working until some delayed time
after the MVA does challenge somewhat a pure causal link between her current
part time work and direct events of the MVA. That being said I do have
significant doubts that she will ever return to full time work. This is based
upon the chronicity of her pain much of which I believe is triggered by the MVA
related events, but such situations tend to be multifactorial.

Report from Dr. Shuckett (June 8,
2012) [emphasis added.].

[71]        
Dr. Shuckett’s findings with respect to causation were weakened in
cross-examination. It seems Ms. Perry did not inform Dr. Shuckett of a number
of important factors that may have had a bearing on Dr. Shuckett’s opinion:

1.     Ms. Perry
never told Dr. Shuckett that from January 2004 until June 2006, Ms. Perry worked
only three days a week. Dr. Shuckett believed that Ms. Perry was working full
time before the 2006 Accident. However, in re-examination, Dr. Shuckett
indicated that if the part-time work was due to a change in lifestyle rather
than as a result of symptoms, it might not be relevant to her diagnoses.

2.     Dr.
Shuckett was not sure of the degree to which Ms. Perry had recovered from the June
2003 TOW Incident by the time of the 2006 Accident. Ms. Perry told Dr. Shuckett
she was getting back to her prior physical activities before the 2006 Accident,
but did not specify which activities she had returned to or her degree of
participation in those activities.

3.     Ms. Perry
did not tell Dr. Shuckett that following the June 2003 TOW Incident, but before
the MVA, Ms. Perry experienced pain from many of her activities. For example,
she used to cross-country sky for hours at a time. Following the June 2003 TOW
Incident, she could ski for only an hour and would then be in serious pain for
days. Whenever she tried to increase her activities her pain would increase.

4.     Ms. Perry
did not tell Dr. Shuckett about the Golf Injury, the Classroom Injury, or the
2008 Accident. Dr. Shuckett acknowledged that this information would have been
important to know in establishing causation. Dr. Shuckett also testified that
if Ms. Perry had told Dr. Shuckett about the 2008 Accident, but had also told
Dr. Shuckett that she had no new injuries or symptoms as a result of that
accident, then the 2008 Accident would not have been a factor in Dr. Shuckett’s
analysis.

5.     Dr.
Shuckett testified that at the time she prepared the report she was probably
unaware of the fact that Ms. Perry had injured her back while improperly
conducting a pilates exercise.

6.     Dr.
Shuckett agreed that Ms. Perry’s history of work after the 2006 Accident was an
important consideration. Dr. Shuckett testified that she did not know whether
Ms. Perry was working full time or part time from 2006 until January 2009.
However, page four of Dr. Shuckett’s report correctly states that Ms. Perry
kept working full time after the MVA until January 2009.

7.     Dr.
Shuckett agreed that one consideration in a causation assessment is the
temporal connection between a trauma and an inability to work. Since Dr. Shuckett
did not know about the incidents that occurred after the 2006 Accident but
before Ms. Perry left work, she agreed that it was hard to say how those
incidents would weigh into her causation analysis.

8.     Ms. Perry
told Dr. Shuckett that she had injured her shoulder in the 2010 Fall. However,
she did not tell Dr. Shuckett that she landed on her buttocks, leaving a
bruise. Dr. Shuckett agreed that a fall that leaves a bruised buttock might be
enough to cause an injury to a person’s spine or irritate a facet joint. It was
also possible that such a fall would not result in spinal injury.

[72]        
Dr. Shuckett found the 2006 Accident did not cause Ms. Perry’s
degenerative disc changes and herniation, but that these conditions made it
more likely that she would be injured. She found that the 2006 Accident was the
main catalyst of Ms. Perry’s symptoms, but that the disc changes and herniation
also play some role. She found that the neck and shoulder girdle injuries were
caused by the 2006 Accident, and the left shoulder injury was caused both by
the 2006 Accident and the 2010 Fall.

[73]        
Dr. Shuckett’s diagnosis is problematic because she was not aware that
until shortly before the accident, Ms. Perry had only been working part-time.
This is of particular concern because Dr. Shuckett based a key part of her
finding on causation on Ms. Perry’s pattern of work.

[74]        
Dr. Shuckett was also unaware of a number of incidents that occurred
after the 2006 Accident and which were relevant to a causation analysis. These
intervening events challenge the degree to which Dr. Shuckett could have made
an accurate determination of causation when she wrote her report.

F.       Dr. Hill

[75]        
Dr. Hill interviewed Ms. Perry on November 27, 2009, and then performed
an examination. He also reviewed a number of other documents, including
clinical reports and records.

[76]        
Dr. Hill diagnosed post-traumatic headaches secondary to cervicogenic
causes, soft tissue injuries with myofascial pain syndrome, and “soft tissue
injuries [sic] lumbar spine superimposed on previous disc herniation
unassociated with the accident”. Dr. Hill found that these injuries were caused
by the MVA:

Mrs. Perry is recovering from the injuries which she
sustained resulting from the motor vehicle accident of December 4, 2006.
The objective findings today were marginal as far as her musculoskeletal system
was concerned. She is carrying out an exercise program with daily walks and
swimming which is appropriate. She is also receiving massage therapy on a
sporadic basis which appears to be helpful at times with tightening in the
interscapular region which I deem to be secondary to myofaciitis. She is also
being monitored in her recovery program by Dr. Condon and Dr. Paul.

I anticipate that she will continue to improve in the future
as the examination today revealed no evidence of causes for permanency as far
as her status is concerned. I would recommend that she continue on the present
regimen which is successful. It is also my view that she will continue to
improve in the future barring any unforeseen traumatic incidents with respect
to her spine and that ultimately she should recover completely from the trauma
she has sustained. It must be remembered that her low back symptoms were
superimposed on a previous disc herniation so that an inherent degree of
weakness in the low back region preceded the motor vehicle accident with the
possible potentiality of a recurrence on this basis and this basis only.

Report from Dr. Hill (January 12,
2010) at 10 [Emphasis added.].

[77]        
Dr. Hill made two addenda to his report. The first, dated August 29,
2011, is not relevant to causation. The second, dated July 18, 2012, appears to
revise Dr. Hill’s opinion about the causes of Ms. Perry’s injuries. Dr.
Hill noted the progress of an underlying degenerative lumbar spine problem. In
this addendum, Dr. Hill appears to find that the cause of Ms. Perry’s ongoing
injuries is not the MVA, but is instead systemic structural changes in her
spine:

It is noted that Mrs. Perry underwent a C.T. scan of the
lumbar spine on September 14, 2004 and it was reported that it demonstrated a
right postero-lateral disc herniation at the L3/L4 level of the lumbar spine.
Other features described included mild degenerative changes of the lumbar spine
extending from L1-S1.

MRI studies performed on Mrs. Perry’s lumbar spine on
September 1, 2010 by Dr. Jason Clement and compared to the previous C.T. scan
on September 14, 2004 demonstrated obvious progression of the structural
changes consistent with lumbar spondylosis which is a systemic condition
unrelated to trauma and occurring not uncommonly in aging patients such as Mrs.
Perry and resulting in chronic mechanical back pain which by its nature can
result in pain and limitation of function.

…

As I have stated it is my view as well that the complaints
as noted are arising from a result of systemic structural changes which were
noted in the imaging studies of her lumbar spine in 2004.

Structural changes were also noted in a segment of the
cervical spine which were degenerative in nature.

Addendum from Dr. Hill’s dated
(July 18, 2012)[Emphasis added.].

[78]        
The plaintiff objected to the paragraph beginning “As I have stated” on
the basis that it effectively introduced a new opinion. If Dr. Hill wished to
enter a new opinion, counsel argued, a new expert report needed to be tendered.
Counsel also argued that the phrase “complaints as noted” was ambiguous as it
was not clear which complaints Dr. Hill was referring to. I reserved judgment
on this point, and allowed the plaintiff to cross-examine Dr. Hill on this
paragraph.

[79]        
I do not think that the paragraph objected to in Dr. Hill’s last report
is inadmissible. There was no objection with respect to the timing or delivery
of the report. As I understand it, Dr. Hill was not resiling or contradicting
his previous opinion. Of course, if he did so, that would go to the weight to
be given his opinions, not admissibility. As I understand it, his conclusion in
the addendum relates to Ms. Perry’s ongoing complaints in 2012, rather
than to his views on causation in his 2009 report.

[80]        
Dr. Hill admitted that he only saw Ms. Perry once and only for about 90
minutes, 30 to 45 minutes of which was taken up by a physical examination. His
opinion was based on this examination, the history recounted to him by Ms.
Perry, and a review of her medical records and other reports. Dr. Hill said he
would have felt more comfortable giving his opinion if he’d seen Ms. Perry more
often. He agreed that that Ms. Perry’s family doctors saw her much more often,
and this could give them a better opportunity to assess her symptoms. But he
also said that her family doctors would not have the same capacity to
understand the implications of Ms. Perry’s injuries because Dr. Hill has
specialized training. Dr. Hill also acknowledged that since Dr. Shuckett had
seen Ms. Perry four times in the past year she had a better opportunity to come
to an accurate conclusion about Ms. Perry’s present condition.

[81]        
Dr. Hill testified that Ms. Perry’s symptoms were consistent with
whiplash, and that given their duration, these injuries were not insignificant.
Ms. Perry’s injuries could lead to muscle tightness, which restricts movement
and can lead to fatigue. The injuries could interfere with activities like
driving, bending, stooping, lifting, carrying, and stretching.

[82]        
Dr. Hill testified that the purpose of his initial report was to
determine the nature and degree of injuries sustained as a direct result of the
2006 Accident. He stated that the soft-tissue injuries he diagnosed in his
initial report were all the direct result of the 2006 Accident.

[83]        
Dr. Hill stated that, based on the records, it appeared that after the June
2003 TOW Incident and before the 2006 Accident, Ms. Perry had largely returned
to her former activities. As far as the records disclosed, she was not
complaining of back problems before the 2006 Accident. While prior to the 2006
Accident Ms. Perry’s injuries might have been asymptomatic, Dr. Hill emphasised
that she did not have a normal back, that a disc herniation was present, and
that she would always be susceptible to back injuries.

[84]        
Dr. Hill admitted that the prognosis he made in the initial report,
which predicted that Ms. Perry would heal and be able to return to work in a
matter of months, was wrong and over-optimistic. Dr. Hill agreed that, as
stated in his report, the prognosis was made subject to “unforeseen traumatic
incidents” and “mitigating circumstances”, which could include flare-ups,
reinjuries, and underlying degenerative processes. Dr. Hill stated that these underlying
degenerative processes played a large role in explaining why Ms. Perry
continues to experience pain.

[85]        
Dr. Hill stood by his initial report, where he stated that the
soft-tissue injuries were caused by the 2006 Accident. However, he testified
that Ms. Perry’s continuing symptoms are the result of degenerative disc
changes. He stated he disagreed with causation with respect to her ongoing
complaints, but not with respect to the soft-tissue injuries he diagnosed in
his initial report. He accepted that the soft-tissue injuries still play a factor
alongside the degenerative disorders. He stated that the trauma of the MVA was
the initial main cause of her symptoms, but that at this point it is the
significant structural changes in her back which cause her ongoing complaints.

G. Dr. Attariwala

[86]        
Dr. Attariwala is a radiologist and nuclear medicine physician. He
reviewed reports based on a CT scan of Ms. Perry’s lumbar spine taken in 2004,
a CT scan of Ms. Perry’s head taken in 2007, and an MRI of Ms. Perry’s lumbar
spine taken in 2010.

[87]        
He noted that the 2004 CT scan describes small diffuse disc bulge, while
the 2010 MRI describes small diffuse disc bulge with associated bony spurring. In
his examination, Dr. Attariwala clarified that the bulging found in the 2004 CT
Scan is one of the first signs of degenerative disc diseases, and the later
bony spurring found in the 2010 MRI is commonly associated with the progression
of degenerative disc disease.

[88]        
In his report, Dr. Attariwala states that the 2004 CT Scan shows vacuum
phenomenon consistent with early degenerative disc diseases. The 2010 MRI shows
disc desiccation with moderately diffuse disc bulge, increased disc height, and
a slight increase in the severity of facet changes.

[89]        
Dr. Attariwala explained in his examination that “vacuum phenomenon” and
disc desiccation refer to essentially the same process. Between two bones in
the spine is the disc, which has a tough fibrous layer on the outside and jelly
in the inside. Over time and with aging, the jelly dries and is replaced with
air. Desiccation and vacuum phenomemon are symptoms associated with
degenerative disc disease.

[90]        
Dr. Attariwala testified that degenerative disc disease consists of a
constellation of symptoms experienced by everyone as a result of aging: discs
bulge out, desiccate, shrink, and flatten. The facets in the spine, which allow
movement, also change over time by thickening, reducing the range of movement.
This is associated with “wear‑and-tear” and aging, and in Dr.
Attariwala’s words is “part of life”.

[91]        
Dr. Attariwala offered a brief opinion on causation, stating that in his
view the MVA did not cause the degenerative disc changes he had diagnosed:

The pre-accident CT scan of 2004 describes degenerative disc
changes at all imaged levels of the lower lumbar spine, with facet degenerative
change at the L5-S1 level. These wear and tear [degenerative] changes all are
described to have progressed between 2004 and 2010. As no imaging was performed
immediately following the accident, it would not be possible to describe the
MVA as the inciting event. The described multilevel wear and tear changes would
most probably be associated with natural progression.

Report from Dr. Attariwala (July
20, 2012).

[92]        
 Dr. Attariwala acknowledged in cross-examination that he did not review
the images himself: he reviewed reports made by other physicians and
specialists. He agreed that this put him at a disadvantage, and ideally he
would have preferred to review the actual images.

[93]        
Dr. Attariwala did not interview or examine Ms. Perry. He did not review
any other records other than those mentioned in the report. He knew nothing
about her medical history beyond the facts and assumptions listed in her
report, and he knew nothing of her symptoms or treatment after the accident. He
agreed that all of this information would be invaluable to a physician making
an opinion about the causes of Ms. Perry’s symptoms. He said that imaging alone
is not enough to make a diagnosis: “it’s like one hand clapping”. He testified
that Ms. Perry’s consulting and treating physicians, to the extent that they
had all of the reports up to 2012, would have been in a better position to
evaluate and treat her current condition.

[94]        
The 2004 CT scan of the lumbar spine showed a moderate disc herniation.
The 2010 MRI showed mild circumferential disc bulge and minimal facet
degeneration. Dr. Attariwala testified that this could mean that the earlier
herniation had healed between 2004 and 2010, but that he could not say for sure
without looking at the images directly. He had to rely on the interpretation of
the people who prepared the reports and their definitions of “mild” and
“moderate” could differ from his own.

[95]        
Dr. Attariwala noted that the vacuum phenomenon present in the disc was
“compatible” with early degenerative disc disease. He agreed that other causes
were possible, notably infection, but in 90% of cases, vacuum in the disc is
degenerative. While it was possible that a gas-forming infection in an adjacent
bone could cause the vacuum, but in that case the patient would be in
incredible pain and would need to be hospitalized. In rare cases trauma could
cause a vacuum in the disc, but in such a case there would be fractures in the
spine. It would be very rare for trauma to cause gas in the disc without
fractures in the adjacent bone; Dr. Attariwala had never seen this occur.

[96]        
Dr. Attariwala agreed that because there was no imaging done after the
MVA, it was not possible to describe the MVA as an inciting event, but it also
could not be ruled out.

[97]        
Dr. Attariwala stated that the progression he observed in the reports —
disc bulge, then drying of disc, then thickening in the adjacent bones — is
very common and typically due to age-related changes. In his view, the
differences observed between the 2004 CT scan and the 2010 MRI were typical for
someone experiencing this kind of age-related change.

IV.      Causation

A.       Principles

[98]        
Causation is an essential principle in negligence law. It is not enough
for the plaintiff to prove that the defendant was negligent; the plaintiff must
also show that the defendant’s negligence caused the injury.

[99]        
Chief Justice McLachlin said in Clements v. Clements, 2012 SCC 32
at para. 7, 346 D.L.R. (4^th) 577:

[7] Recovery in negligence
presupposes a relationship between the plaintiff and defendant based on the
existence of a duty of care — a defendant who is at fault and a plaintiff who
has been injured by that fault. If the defendant breaches this duty and thereby
causes injury to the plaintiff, the law "corrects" the deficiency in
the relationship by requiring the defendant to compensate the plaintiff for the
injury suffered. This basis for recovery, sometimes referred to as
"corrective justice", assigns liability when the plaintiff and
defendant are linked in a correlative relationship of doer and sufferer of the
same harm: E. J. Weinrib, The Idea of Private Law (1995), at p. 156.

[100]     The test
for causation is the “but for” test: the plaintiff must show on a balance of
probabilities that “but for” the negligence of the defendant the injury would
not have occurred. This test is to be applied in a “robust common sense
fashion”, and there is no need for scientific evidence of the precise
contribution the defendant’s negligence made to the injury: Clements at
paras. 8 and 9.

[101]     While the
plaintiff bears the burden of proving causation, in most cases a judge will be
able to draw a common sense inference of “but for” causation from proof of the
defendant’s negligence. Evidence that connects the defendant’s breach of duty
to the injury suffered by the plaintiff can allow the judge to infer that the
defendant’s negligence probably caused the loss. But if causation is
established by inference only, the defendant can argue or call evidence that
the injury would have occurred even without the defendant’s negligence: Clements
at paras. 10 and 11.

[102]     There is
no need for the plaintiff to establish that the defendant’s negligence was the
sole cause of the injury. As long as the defendant was part of the cause of an
injury, the defendant will be liable even if his or her act alone was not
enough to create the injury. The defendant remains liable for all injuries
substantially connected to or caused by the defendant’s negligence: Athey v.
Leonati, [1996] 3 S.C.R. 458 at para. 17, 140 D.L.R. (4th) 235.

[103]     In Resurfice
Corp. v. Hanke, 2007 SCC 7 at paras. 21 to 23, [2007] 1 S.C.R. 333, the
Supreme Court of Canada confirmed that the basic test for determining causation
remains the “but for” test, and that the test applies to multi-cause injuries.
However, the Court developed the “but for” test by stating a “substantial
connection” between the injury and the defendant’s conduct is necessary in
cases where the defendant’s act was not the sole cause of the plaintiff’s
injury. This moved the “but for” test away from the Court’s position in Athey,
which required a material contribution to the plaintiff’s injury.

[104]    
The developments in the “but for” test in Hanke were succinctly
summarized by Madam Justice Neilson in Farrant v. Laktin, 2011 BCCA 336
at paras. 9 to 11, 338 D.L.R. (4th) 527:

[9] The general test for causation, established in Athey
v. Leonati, [1996] 3 S.C.R. 458  at paras. 13-17, is the "but
for" test: "but for" the accident, would the plaintiff have
suffered the disabling pain? In Athey, the Court also stated that a
plaintiff need not establish that the defendant’s negligence was the sole cause
of the injury. If there are other potential non-tortious causes, such as the
plaintiff’s spinal degeneration in this case, the defendant will still be found
liable if the plaintiff can prove the accident caused or materially contributed
to the disabling pain, beyond the de minimus range.

[10] In Hanke v. Resurfice Corp., 2007 SCC 7,
[2007] 1 S.C.R. 333,the Supreme Court affirmed the "but for" test
remains the basic test for determining causation, but developed the concept of
"material contribution" in a different manner than that used in Athey,
formulating a "material contribution" test as an exception to the
"but for" test, a matter that is not relevant to this appeal. The
Court replaced the Athey definition of "material
contribution" to the plaintiff’s injury with the concept of "a
substantial connection" between the injury and the defendant’s conduct.
These developments were usefully summarized by Mr. Justice Smith, writing for
the majority, in Sam v. Wilson, 2007 BCCA 622 at para. 109: 

"Material contribution",
as that phrase was used in Athey v. Leonati, is synonymous with
"substantial connection", as that phrase was used by McLachlin C.J.C.
above in Resurfice Corp. v. Hanke. This causal yardstick should not
be confused with the "material contribution test". As McLachlin
C.J.C. explained in Resurfice Corp. v. Hanke, at paras. 24 – 29,
the "material contribution test" applies as an exception to the
"but for" test of causation when it is impossible for the plaintiff
to prove that the defendant’s negligent conduct caused the plaintiff’s injury
using the "but for" test, where it is clear that the defendant
breached a duty of care owed the plaintiff thereby exposing the plaintiff to an
unreasonable risk of injury, and where the plaintiff’s injury falls within the
ambit of the risk. …

[11] Thus, in applying the "but for" test, the
trial judge was required to consider not just whether the defendant’s conduct
was the sole cause of the plaintiff’s disabling pain, but also whether the
plaintiff had established a substantial connection between the accident and
that pain, beyond the de minimus level.

[Emphasis added.]

[105]     Accordingly,
to satisfy the “but for” test, a plaintiff must show that the defendant caused
his or her injury by proving on a balance of probabilities that the defendant’s
conduct was the sole cause of his or her injury, or that there was a
substantial connection between the defendant’s actions and the injury, beyond
the de minimus level.

B.       Pre-existing Conditions

[106]     The
“but-for” test takes account of a plaintiff’s pre-existing conditions in two
ways.

[107]     If the
plaintiff’s injuries are unexpectedly severe owing to a pre-existing condition,
the tortfeasor is nonetheless liable for those injuries in accordance with the
“thin skull” rule. The tortfeasor takes his or her victim as he or she finds
him: Athey at para. 34.

[108]     If the
plaintiff experiences symptoms that he or she would have  experienced anyway
because of a pre-existing condition, the defendant is not liable for those
injuries in accordance with the “crumbling skull” rule. The defendant need not
return the plaintiff to a better position than he or she would have been in but
for the accident: Athey at para. 35.

[109]     A finding
of a “crumbling skull” can affect damages without negating causation. If there
is a measurable chance, but not a certainty, that the plaintiff would suffer a
harm regardless of the conduct of the defendant, the ultimate award can be
reduced according to the weight and relative likelihood of the pre-existing
frailty harming the plaintiff: Athey at para. 48; Loveys v. Fleetham,
2012 BCSC 358 at paras. 110-11.

C.       Multiple Tortious Causes: Divisible and Indivisible Injuries

[110]     If a
plaintiff suffers some injuries that were caused by a tortious act and others
that did not arise out of the tort, then the injuries must be divided and the
tortfeasor will only be liable for those injuries that he or she caused. Similarly,
if separate injuries are caused by two or more defendants, and it is possible
to determine which defendant caused which injury, the injuries must be divided
and each defendant is only liable for those injuries that he or she caused. The
example given in Athey is of two tortfeasors: one of whom injures the
plaintiff’s foot and the other of whom injures the plaintiff’s arm. This
recognizes the principles that a defendant should only be liable for those
injuries that he or she causes: Athey at para. 24.

[111]    
If the injuries are not divisible, then the defendants will be jointly
and severally liable. The Negligence Act, R.S.B.C. 1996, c. 333 ss. 1
and 4, provides that liability must be apportioned between the defendants, and
that each individual is then jointly and severally liable to the plaintiff and
liable to contribute and indemnify one another to the degree of their fault. The
principles underlying this form of liability were explained in Athey at
para. 22:

Apportionment between tortious
causes is expressly permitted by provincial negligence statutes and is
consistent with the general principles of tort law. The plaintiff is still
fully compensated and is placed in the position he or she would have been in
but for the negligence of the defendants. Each defendant remains fully liable to
the plaintiff for the injury, since each was a cause of the injury. The
legislation simply permits defendants to seek contribution and indemnity from
one another, according to the degree of responsibility for the injury.

[112]     This, of course,
assumes that the “but for” test is workable when two or more defendants are
liable. When there are two or more tortious causes, a circularity problem can
arise if it is impossible to say with any certainty that the injuries would not
have arisen “but for” either negligent act. In those cases, the material
contribution test may apply.

D.       The Material Contribution Test

[113]     The
“material contribution” test is a policy-driven alternative to proof of
causation that can be used only if there are two or more tortfeasors, each of
whom acted negligently and each of whose actions could have caused the
plaintiff’s injury, but the plaintiff cannot prove which one in fact caused the
injury because each can point to the other. The “material contribution” test is
not a test of factual causation; rather it is a policy-driven rule of law
designed to permit plaintiffs to recover in certain cases despite their failure
to prove causation: MacDonald v. Goertz, 2009 BCCA 358 at para. 17, 96
B.C.L.R. (4^th) 235, cited in Clements at para 14. In my view,
the material contribution test has no traction in the within analysis.

V.       Causation: Discussion and Analysis

[114]     Dr.
Laidlow, Dr. Shuckett, and Dr. Tesiorowski gave opinion evidence on causation
for the plaintiff. They were properly qualified as experts and the opinions
admitted in evidence were served in accordance with Supreme Court Civil
Rules.

[115]     There was
also evidence from Dr. Paul, a family physician, Dr. Olson, a chiropractor, Nicole
Stefanson, a physiotherapist, and Roseanna Sarty, a massage therapist. These
witnesses gave evidence from their clinical records, but notice of their opinions
was not served on the defendants in accordance with the Supreme Court Civil Rules.

[116]     The
plaintiff did not take issue with the defendant’s position that the opinions
contained in the clinical records are not admissible for their truth, which
is in accord with authority: Seaman v. Crook, 2003 BCSC 464 at para. 15,
14 B.C.L.R. (4th) 132, Metzger J.; Repole v. Bakker, 2007 BCSC 592 at
paras. 104-108, Arnold-Bailey J.

[117]     Dr. Hill
and Dr. Attariwala gave opinion evidence on causation for the defendants. They
were properly qualified as experts and the opinions admitted in evidence were
served in accordance with the Supreme Court Civil Rules.

[118]     What is in
issue between the parties is not whether Ms. Perry was injured in the 2006
Accident. That is admitted. What is in issue is whether any of Ms. Perry’s
complaints after the 2008 Accident are attributable to the 2006 Accident,
and thus whether her subsequent physical and ancillary issues,  the expenses
she incurred, and her limited employment and employability are attributable to
the injury.

[119]     As noted
earlier, I give little weight to the opinion of Dr. Tesiorowski. Dr. Tesiorowski
first started seeing Ms. Perry in May 2010. That is three and half years after
the 2006 Accident. During the first 10 months of Ms. Perry’s visits, Dr. Tesiorowski
focused on Ms. Perry’s other health issues, leaving her physical issues to Dr.
Condon.

[120]     Dr.
Tesiorowski only conducted one physical examination of Ms. Perry over several
years of care. The physical examination occurred ten months after first seeing
her in March 2011. The only complaint of neck, back, shoulder or headache made
was on the first visit in May 2010, yet Dr. Tesiorowski did not conduct a
physical examination until 10 months later.

[121]     I
appreciate that experts frequently must base their opinions on facts obtained
from others. However, Dr. Tesiorowski did not demonstrate an accurate knowledge
of Ms. Perry’s history. She did not mention in her opinion significant events
in Ms. Perry’s life before and after the 2006 Accident that might be
relevant to causation. There was no continuity to her treatment over the
important periods. She acknowledged she was reluctant to write a medical-legal
opinion, which is entirely understandable in the circumstances.

[122]     The report
of Dr. Tesiorowski has another important failing. It refers to a history gained
from Ms. Perry and others and then simply states a conclusion. To be useful an
opinion must be more than a conclusory assertion on causation. In Montreal
Light, Heat & Power Co. v. Quebec (Attorney-General) (1908), 41
S.C.R. 116 at 132, Idington J. said “I refuse to accept unless absolutely
necessary the mere ipse dixit of any expert when presented for my
acceptance merely as an act of faith, and without the aid of such reasons as
his reasoning power, or means of, and result of the use of means of,
observations may have developed”.

[123]     The same
kind of concern is noted by Binnie J., speaking for the court in R. v. J.-L.J.,
2000 SCC 51 at para. 56, [2000] 2 S.C.R. 600. The opinion must assist the trier
of fact to form an independent conclusion by “an act of informed judgment, not
an act of faith”:

56          In
Mohan , Sopinka J. held that the expert evidence in question had to be more
than merely helpful. He required that the expert opinion be necessary
"in the sense that it provide information, which is likely to be outside
the experience and knowledge of a judge or jury, … the evidence must be
necessary to enable the trier of fact to appreciate the matters in issue due to
their technical nature" (p. 23). In Béland , supra , McIntyre J.,
speaking about the inadmissibility of a polygraph test, cited at p. 415 Davie
v. Edinburgh Magistrates, [1953] S.C. 34 (Scotland Ct. Sess.) , at p. 40,
on the role of expert witnesses where Lord Cooper said:

Their duty is to furnish the Judge
or jury with the necessary scientific criteria for testing the accuracy of
their conclusions, so as to enable the Judge or jury to form their own
independent judgment by the application of these criteria to the facts
proved in evidence. [Emphasis added.]

The purpose of expert evidence is
thus to assist the trier of fact by providing special knowledge that the
ordinary person would not know. Its purpose is not to substitute the expert for
the trier of fact. What is asked of the trier of fact is an act of informed
judgment, not an act of faith.

[124]     As there
is no reasoning linking the facts referenced in the medical report with the
conclusory assertion on causation, I am unable to form an independent
conclusion from this opinion. To accept the opinion would simply be a leap of
faith, applying the logical fallacy of ipse dixit, in this context,
“because she said it”.

[125]     For all of
these reasons Dr. Tesiorowski’s opinion is of little assistance to the court.

[126]     I turn now
to Dr. Laidlow’s opinion. Dr. Laidlow saw Ms. Perry on one occasion nearly four
and half years after the 2006 Accident. Dr. Laidlow was of the view that Ms.
Perry suffered a musculoligamentous strain (Whiplash Associated Disorder Type
II by the Quebec Task Force criteria) as a result of the motor vehicle accident
that was superimposed on a previous history of degenerative disc disease of the
lumbar spine and a prior right sided L3-4 disc herniation. This part of his
opinion is not controversial.

[127]     Dr.
Laidlow found that Ms. Perry’s left posterior shoulder pain, neck pain and
headaches related to the musculoligamentous strain of the cervical spine, on
which was superimposed a strain of the left shoulder by the 2010 Fall. He
opined that the headaches are likely cervicogenic in nature and related to the 2006
Accident.

[128]     I find
this conclusion problematic. Ms. Perry reported significant ongoing headache
only after the 2008 Accident, prior to her taking a medical leave at the end of
January 2009. Of course, Dr. Laidlow did not know of the 2008 Accident.

[129]     With
respect to her lower back pain, he thought her current situation more related
to the 2006 Accident than her pre-existing back pain, but said it would be
expected that mechanical back pain would have a variable history of ups and
downs.

[130]    
Dr. Laidlow describes the 2006 Accident from information he obtained
from Ms. Perry. He writes:

Pamela informed me that she was involved in a motor vehicle
accident on December 2, 2006. The accident occurred in Vancouver. Apparently,
Pamela was driving a small C-Class Mercedes Benz and had stopped her vehicle in
traffic. Her vehicle was subsequently rear ended by a Purolator delivery truck.
She was wearing a seatbelt and shoulder strap at the time of the collision. She
believes that her head was thrown backwards striking the headrest behind her.
She had her right leg on the brake to prevent her car from being thrown
forward. Pamela was unable to remember the amount of damage done to the
vehicle, but indicated to me that the impact was sufficient to split the bumper
side to side. Apparently, the back of the car was not caved in.

Report from Dr. Laidlow (May 19,
2011).

[131]     The last
part of the description is instructive. It suggests Ms. Perry may have embellished
the severity of the 2006 Accident. Dr. Laidlow says that Ms. Perry “indicated
to me that the impact was sufficient to split the bumper side to side” and that
“[a]pparently, the back of the car was not caved in”. Elsewhere in the report
Dr. Laidlow says that “[t]he motor vehicle accident that she was involved
in on December 2, 2006 (sic) sounds to have been a significant one by her
description of it to me”. This description does not accord with my factual
findings.

[132]     At the
time of her meeting with Dr. Laidlow, Ms. Perry did not recall the amount of
damage done to the vehicle. However, the evidence shows that only the plastic
rear bumper cover was split. The cost of repairs was minimal. Apart from the
bumper cover there was no other damage to the vehicle.

[133]     Ms. Perry
did not tell Dr. Laidlow about the 2008 Accident. Much more damage resulted
from that accident, although Ms. Perry said she was not injured. However,
shortly after that accident she experienced debilitating headaches that have
been described above. Within a couple of months she went on medical leave and
never returned to full time work after January 2009. Her treatment and
treatment costs are relatively modest prior to 2009 as shown, to some extent,
in the graph noted above. Dr. Laidlow’s opinion regarding causation is weakened
by not being told of the 2008 Accident.

[134]     Dr.
Laidlow’s opinion is troubling in other respects. Dr. Laidlow did not know
about the Classroom Injury, or of the extent and location of Ms. Perry’s
injuries from the 2010 Fall. Dr. Laidlow refers to the “fall onto the left
shoulder in the early aspect of 2010”. However Ms. Perry sustained significant
bruising on her buttocks as a result of the 2010 Fall which Dr. Laidlow did not
know about. Ms. Perry also suffered an injury during a pilates program. Dr.
Laidlow was not aware of the injury but was aware that the program had
exacerbated her neck pain. Dr. Laidlow acknowledged that improper exercise, a
golf swing, a fall onto one’s buttocks and lifting items at work could all
cause injuries.

[135]     Dr.
Laidlow noted that the underlying mechanical problems with Ms. Perry’s back
would have a variable history with ups and downs even had the 2006 Accident
not occurred. In my view, his conclusion that Ms. Perry’s then-current
symptoms were more related to the 2006 Accident than her pre-existing
conditions is weakened by his imperfect knowledge of Ms. Perry’s history.

[136]     Dr.
Shuckett’s opinion suffers from many of the same weaknesses. Dr. Shuckett
first saw Ms. Perry on November 29, 2011, nearly five years post‑accident.
She had three follow up visits. I have outlined above a number of matters about
which Dr. Shuckett was not aware including (1) Ms. Perry’s pattern of work
before the 2006 Accident; (2) the activities and degree of participation in
activities following the June 2003 TOW Incident but prior to the 2006 Accident;
(3) the extent to which Ms. Perry suffered from the June 2003 TOW Incident; (4)
the Golf Injury, the Classroom Injury and the 2008 Accident; and (5) that the
2010 Fall left bruising on Ms. Perry’s buttocks.

[137]     Based on
what she did know, Dr. Shuckett acknowledged that Ms. Perry’s symptoms were multifactoral,
and that the causal link between her current part-time work and 2006 Accident
was challenged by the fact Ms. Perry kept working full-time after the 2006
Accident. She also said that Ms. Perry “was very active and working full-time
in the years leading to the subject MVA”. However Ms. Perry had not worked
full-time for the period January 2004 until September 2006. She worked .6 FTE.

[138]     The
erroneous understanding of Ms. Perry’s pattern of work formed an important part
of Dr. Shuckett’s analysis. Ms. Perry did, however, work full-time after the
2006 Accident and did not go off full-time work until January 2009. She took
medical leave and then decreased her to part-time after the Golf Injury and within
a few months of the 2008 Accident, but more than two years after the 2006
Accident.

[139]     Dr. Hill
saw Ms. Perry only once. He did one physical examination.  Otherwise he relied
on medical records and the results of imaging studies described in his report. In
comparing the imagning studies he concluded that the differences showed  “obvious
progression of the structural changes consistent with lumbar spondylosis which
is a systemic condition unrelated to trauma and occurring not uncommonly in
aging patients such as Mrs. Perry and resulting in chronic mechanical back pain
which by its nature can result in pain and limitation of function”. The
pre-existing condition is confirmed by Dr. Laidlow and Dr. Shuckett.

[140]     The best
explanation of what was observed is obtained from the report of Dr. Attariwala.

[141]     Dr.
Attariwala did not see Ms. Perry at all, or review her history. Dr. Attariwala
noted that the vacuum phenomenon present in the disc prior to the 2006 Accident
was “compatible” with early degenerative disc disease, and that other possible
causes, notably infection, or very significant trauma, were not factors.

[142]     Dr.
Attariwala opined that the progression noted in the reports — disc bulge, then
drying of disc, then thickening in the adjacent bones — is very common and typically
due to age-related changes. In his view, the differences observed between the 2004
CT scan and the 2010 MRI were typical for someone experiencing this kind of
age-related change. I accept that evidence.

[143]     Ms. Perry
gave evidence of her condition and course of treatment both prior to and
following the 2006 Accident. I believe her to be a sincere and honest witness. I
do not doubt that she has had a difficult time these past eight years, both
before and after the 2006 Accident. Those descriptions have been of limited
assistance, however, in determining the etiology of her complaints. And while
she acknowledged using colourful adjectives to describe the impact of the intervening
non-tortious events in cross-examination, she tended to downplay those events
in her evidence‑in-chief.

[144]     Apart from
the medical experts, and Ms. Perry, I also heard evidence from Mr. Perry
and sympathetic friends and caregivers. Having heard all of the evidence I am simply
not persuaded, on a balance of probabilities, that Ms. Perry’s significant ongoing
symptoms, and most importantly her inability to work full time, are related to
the 2006 Accident, as opposed to her underlying degenerative condition lumbar
spondylosis and age-related changes or the intervening non-tortious events.

[145]     In short,
I am not satisfied on a balance of probabilities that, but for the 2006
Accident, Ms. Perry would be having these ongoing symptoms. Nor am I satisfied
that the debilitating headaches she experienced shortly before going on medical
leave are related to the 2006 Accident. In my view it has not been proven, on a
balance of probabilities,  that her change from being capable of full-time work
to being incapable of full-time work, occurring two years after the 2006
Accident, is related to any of the injuries she suffered in the 2006 Accident.

VI.      Damages

A.       Non-Pecuniary Damages

[146]     The
plaintiff advances a series of cases that attributes all of her ongoing
symptoms to the 2006 Accident. I have not accepted that and therefore do not
find the following cases helpful: Ashcroft v. Dhaliwal, 2007 BCSC 533,
71 B.C.L.R. (4th) 234 ($120,000); MacKenzie v. Rogalasky, 2011 BCSC 54
($100,000); Lorenz v. Gosling, 2011 BCSC 1250 ($80,0000); and Foubert
v. Song, 2012 BCSC 1143 ($90,0000).

[147]     The
defendants cite cases that, in my view, are on the lower end of an appropriate
range. Those cases include: Rana v. Boparai, 2007 BCSC 1182 ($20,000); Jones
v. Ma, 2010 BCSC 1125 ($20,000); Sourisseau v. Peters, 2012 BCSC
1163 ($22,500); Bourdin v. Ridenour, 2009 BCSC 1295 ($22,500); Anderson
v. Dwyer, 2010 BCSC 526 ($20,000); and Chu v. Ponsford, 2008 BCSC
429 ($25,000).

[148]     In my
opinion, consistent with the evidence I accept, the causes of Ms. Perry’s significant
ongoing symptoms beyond February 2010 are multifactoral.   I am unable to
conclude, on a balance of probabilities, that they are related to the 2006
Accident. Nor, as I have said, can I treat her dramatic change in condition
leading up to her work absence commencing January 26, 2009 as related to the
2006 Accident.

[149]     In Carter
v. Zhan, 2012 BCSC 595, the plaintiff was involved in a low-impact
collision which caused very little damage to either vehicle. The plaintiff
suffered mild to moderate soft tissue injures to her jaw, neck, shoulders, back
and pelvis. The plaintiff suffered some emotional pain and loss of enjoyment of
life, and was somewhat restricted in her physical activities over that time.
Her recovery from these injuries was slow and gradual, and her symptoms
persisted for approximately 36 months after the accident. The court awarded her
$35,000 in non-pecuniary damages.

[150]     In Smith
v. Wirachowsky, 2009 BCSC 1434, 2 B.C.L.R. (5th) 347, the plaintiff was
rear-ended by the defendant while stopped at an intersection, causing little or
no damage to the plaintiff’s car but significant damage to the front end of the
defendant’s car. The plaintiff suffered mild to moderate injuries to her upper
back and shoulder. The injuries affected her ability to care for her children,
her sleeping habits, her ability to do household chores, her relationship with
her husband, and some of her physical activities. She continued to suffer from
these injuries at the time of trial, and there was a substantial possibility
they would continue for another year for a total of around two-and-a-half years.
The court awarded her non‑pecuniary damages of $30,000.

[151]     In Kop
v. Lobb, 2008 BCSC 1237, the plaintiff was rear-ended by the defendant,
leaving a sizeable dent in the defendant’s bumper which cost around $500 to
repair. There was very little damage to the plaintiff’s car and of the four
people involved in the collision only the plaintiff was injured. After the
accident, the plaintiff developed pain in her neck and upper body region. The
plaintiff also suffered persistent daily headaches which caused her a great
deal of pain and upset her day-to-day life, but the trial judge could not find
on a balance of probability that these headaches were caused by the accident.
The plaintiff was awarded $30,000 in general damages for mild to moderate soft
tissue injury to her back and neck lasting over two years.

[152]     In my opinion
the sequella of the plaintiff’s injuries are somewhat more significant than in
these cases. Carter v. Zhan most closely represents the plaintiff’s case.
I would award the plaintiff $40,000 in non-pecuniary damages.

B.       Loss of Income

[153]     Ms. Perry
worked full time from a few days after the 2006 Accident (which occurred on
December 4, 2006) until January 26, 2009. In April or May of 2008, she suffered
injury playing golf and in August 2009, she suffered an injury while preparing
her classroom. On October 18, 2008, she was in another motor vehicle accident. In
November 2008 she was injured while doing pilates. She reported severe
headaches prior to going on medical leave in 2009, yet her physician Dr. Paul
reported that her headaches had largely resolved in 2007.

[154]     I am
unable to conclude that any of these intervening events was caused by or
contributed to by the injuries she suffered in the 2006 Accident. She has an
underlying degenerative spine condition which is more likely than not the cause
of her absence from work.

[155]     I am
unable to attribute Ms. Perry’s ongoing reduction from full-time employment to
part-time employment to the 2006 Accident. Likewise, after having worked full time
from shortly after the 2006 Accident until January 2009, I am simply unable to
attribute her absence from work during the period January 26, 2009 to April 26,
2009, to the 2006 Accident. Apart from the few days absence immediately
following the 2006 Accident, I make no award under this head.

C.       Loss of Future Income / Loss of Income Earning Capacity

[156]     I make no
awards under these heads.

D.       Loss of Housekeeping Capacity

[157]     I make no
award under this head.

E.       Special Damages

[158]     Special
damages include all expenses which the plaintiff reasonably incurs between the
accident and the trial, and which but for the defendant’s negligence, would not
have been incurred: Loveys at para. 329.

[159]     An expense
cannot be recovered if it can be shown that an independent cause, like a
pre-existing injury, would have necessitated the expense even if the accident
had not occurred: Ken Cooper-Stephenson, Personal Injury Damages in Canada,
2d. ed. (Scarborough, Ontario: Thompson Canada Ltd., 1996) at 164-65.

[160]    
Accepting that Ms. Perry had some lingering symptoms until 2010 that are
attributable to the 2006 Accident, I make the following award for special
damages:

[161]    
I have allowed one-half the cost of the recumbent bicycle based on its
use. I disallow the cost for the bathtub replacement as I find this not proven,
or supported, as required, by the medical evidence.

VII.     Summary

[162]     The
plaintiff’s action is allowed. The plaintiff is awarded damages as follows: 
Non-pecuniary damages of $40,000 and special damages of $12,938.12. Any income
loss immediately following the 2006 Accident is compensable. I assume that the
parties will be able to agree as to the amount.

[163]     If there
is an issue as to costs, costs may be spoken to.

“The Honourable Mr. Justice Savage”