IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130213

Docket: M103021

Registry:
Vancouver

Between:

Jennifer Lindsay
Gonzales

Plaintiff

And

Stavros T.
Voskakis

Defendant

Before:
The Honourable Madam Justice Fitzpatrick

Reasons for Judgment

Introduction

[1]            
On September 16, 2008, the
plaintiff, Jennifer Gonzales, was in her vehicle waiting to enter onto a
highway when she was rear-ended by the defendant, Stavros Voskakis. Both
parties described the impact as slight or, as Ms. Gonzales particularly
described it, a “minor fender bender”.

[2]            
At the time, Ms. Gonzales was
no stranger to injuries. In 2002, she had been involved in two motor vehicle
accidents. In addition, she had participated in various athletics from when she
was a young girl and had suffered injuries from her sports activities over the
years.

[3]            
Some months after the accident, Ms. Gonzales
returned to her sports activities. She also took a strenuous physical test,
during which she experienced a shoulder injury. That event led to more medical
treatment and eventually a diagnosis that there were issues with her right
shoulder joint. Ultimately, surgery was performed on her right shoulder. At
trial, she suffered from what is described as a “frozen shoulder”. The prognosis
of her condition is not clear.

[4]            
Ms. Gonzales contends that the 2008 motor vehicle accident
caused an injury to her right shoulder and ultimately led to her current
condition. She says that her condition has thwarted her career plans and has
prevented her from enjoying her sporting activities. She was 24 years old at
the time of the accident and is now 29 years
old.

[5]            
Mr. Voskakis admits liability for the accident and the soft tissue
injuries which resulted from the accident. However, he denies that the accident
contributed in any way to the right shoulder condition now suffered by Ms. Gonzales.
Damages are also in issue in the event that causation is found.

The Facts

(i)       Prior to the Accident

(A)      Background

[6]            
Ms. Gonzales has a twin
sister, Jamie Montgomery. After their mother died when they were four years of
age, they lived with and were cared for by their grandparents. Their
grandfather is Fred Messenger, who had a long career with the Province of
British Columbia and in the administration of this Court through Court Services.

[7]            
Ms. Gonzales still lives with
her grandparents.

[8]            
Ms. Gonzales displayed an
interest in sports from an early age. She played a variety of sports, but later
gravitated to track and field, soccer and softball. She played the position of
pitcher while in softball. The pitching motion was a “windmill” style. Later,
she moved to the position of catcher, a position that not surprisingly requires
substantial overhand throws to the pitcher and other players. She described
herself as a very physical, athletic and competitive person who played hard at
these sports. In the popular vernacular, she would have been called a “jock”.

[9]            
At age 14, when in Grade 10 in 1998/1999,
she discovered rugby. She took to it immediately and organized a team. Her
competitive spirit continued in this sport. As with her other sports
activities, she is a self-described physical and aggressive player. She has a
sturdy build and describes herself as physically strong. Her love of rugby
continued even after her graduation from high school in 2001. By her early 20s,
she had focused her attention solely on rugby.

[10]        
She continued to play competitive
rugby until the spring of 2009. As Ms. Gonzales says, rugby is a rough
sport. In the later years of playing this sport, her position in the game was
typically that of the “hooker”. The role of a hooker has some relevance to the
issues in this action because a hooker is involved in the scrum, positioned in
the centre between other players on the team. The hooker is required to “hook”
her outstretched arms around the back of her teammates on either side (the
“props”) as they bend down when the scrum engages, which in reality amounts to
the teams colliding with each other. While in this position, the hooker is
lifted up by her teammates so that her feet can be raised to kick the ball back
in the play.

[11]        
The evidence from Frank Ellestad,
who coached Ms. Gonzales in rugby over the years, confirmed that there is
a significant amount of pressure put on the hooker’s arms and shoulders in the
play. In addition, rugby also involves “boosting”, where one player is lifted
into the air by two others. This requires heavy lifting. Also, there are other
pressures that may be brought to bear on a rugby player’s shoulders when they
are tackled while running with the ball or are tackling another player with the
ball. Needless to say, rugby has its share of injuries, including shoulder
dislocations.

[12]        
In addition to enjoying the rugby
games themselves, Ms. Gonzales was very involved in the social aspects of
the sport. Typically, players would join together after a game for some food
and refreshments. This was a major part of Ms. Gonzales’ social life in
2008.

[13]        
After high school, Ms. Gonzales
took various college courses, although she admits that she is not particularly
academically inclined. In 2005, she completed a six-month program to qualify as
a veterinarian assistant, a job she currently holds. Her work at the
veterinarian office is also quite physical. She is at times required to lift
and restrain animals and complete certain office-related duties which involve
lifting and reaching.

(B)     General Medical History

[14]        
As any parent of an athlete will
attest, children can and do get injured from normal sporting endeavours. Ms. Gonzales
was no exception.

[15]        
Fred Messenger describes her
suffering the typical “bumps and bruises”. He says that she was taken to the
hospital more than once for rugby injuries. On at least one occasion, she broke
a bone while playing rugby.

[16]        
Dr. Janice Kirkpatrick is a
family physician who has treated Ms. Gonzales and members of her family
for some decades. Dr. Kirkpatrick’s clinical records commencing in 2002 were
disclosed in this litigation. Initially, Dr. Kirkpatrick was to be called
as a witness by Ms. Gonzales, but a decision was made after the trial
management conference not to do so.

[17]        
When Ms. Gonzales indicated
that she would not be calling Dr. Kirkpatrick, defence counsel then took
steps to speak to Dr. Kirkpatrick. It became apparent that the doctor
considered that there were earlier records dating back to 1997 relating to Ms. Gonzales’
medical treatment that were potentially relevant to this case. On February 21, 2012,
shortly after the commencement of the trial, I granted an order that Dr. Kirkpatrick
produce these earlier records.

[18]        
Dr. Kirkpatrick was later
subpoenaed to appear at the trial by the defence. Dr. Kirkpatrick was unhappy
about being called to potentially give evidence against the interests of her
former patient, Ms. Gonzales. Nevertheless, I found her testimony to have
been given in a clear, concise and forthright manner and, as will become
apparent, I accept her evidence relating to Ms. Gonzales’ medical history.

(C)     The 2002 Motor Vehicle Accidents

[19]        
As mentioned earlier in these
reasons, Ms. Gonzales was involved in two motor vehicle accidents in 2002
when she was 19 years old.

[20]        
The first accident occurred on May
8, 2002. Ms. Gonzales was a passenger in her boyfriend’s vehicle when it was
rear-ended. She suffered soft tissue injuries to her neck and back.

[21]        
The second accident occurred on
December 2, 2002, when she was still symptomatic from the first accident. Ms. Gonzales
was driving along a roadway when another vehicle quickly moved across her lane
of travel, colliding with her vehicle. She suffered similar soft tissue
injuries to her neck and back.

[22]        
In both instances, she referred to
her injuries as feeling “boxy”.

[23]        
Ms. Gonzales was treated for
her injuries from both accidents by Dr. Kirkpatrick. In addition, she
completed certain physiotherapy with Glenn Hendricks at Tsawwassen Sports &
Orthopaedic Physiotherapist Corporation (“Tsawwassen Sports Physiotherapy”). Ms. Gonzales
appears to have a limited memory of her actual complaints from the accidents and
the treatments after those times. In any event, I accept the records of Dr. Kirkpatrick
and Mr. Hendricks, which are described in more detail below, as a more
accurate description of her complaints and the treatments provided at the time.

[24]        
The injuries from these accidents
appear to have only slightly affected Ms. Gonzales’ participation in
softball and rugby. She returned to both sports fairly quickly after these
accidents.

[25]        
On May 4, 2004, Ms. Gonzales
attended with Fred Messenger at ICBC’s offices. They met with Kerri Giesbrecht
(now known as Kerri Andstein), who was the adjuster assigned to these files.
She noted at the time:

We discussed claim. Their concern is that Jennifer is still
feeling tightness in her neck and upper back/shoulder area.

She missed out on various sporting activities for a long
time. She is back playing softball and rugby, but missed out on the opportunity
to play for the under 23 league.

We went over IME Rpt and I assured them that Dr Hepburn found
no permanent disability and doesn’t anticipate any surgery will be required.
This is soft tissue and should resolve in time if Insd stays active. Also read
them the area of the Rpt where Hepburn suggested she might not be participating
in some of these activities out of “fear of reinjury”.

Discussed settlement. …

Advised nothing to bump this out
of mild STI category and we settled on max $6500 for each claim. …

[26]        
Ms. Andstein had no
independent recollection of this discussion aside from her notes. Fred Messenger
had little recollection regarding the injuries suffered by his granddaughter
from these prior accidents and at one point thought it was only her neck that
had been injured. He did not recall any complaints regarding her upper back and
shoulder. He also had no memory of the meeting with Ms. Andstein.

[27]        
I accept that Ms. Andstein’s
notes are accurate and record a discussion in which both Ms. Gonzales and Fred
Messenger participated.

[28]        
Dr. Kirkpatrick gave evidence
that, as of the fall of 2008, Ms. Gonzales advised her that she was 80%
recovered from her 2002 injuries. This was based on a specific question asked
by her of Ms. Gonzales at her first visit after the 2008 accident and as
recorded by Dr. Kirkpatrick in her notes.

(ii)      The Accident

[29]        
The accident occurred on September 16, 2008. Ms. Gonzales had left
work and was driving in her 2007 Pontiac Vibe to her boyfriend’s place. She was
waiting at an on-ramp so that she could enter Bridgeport Road, which was
merging to the right. While she was stopped and looking to her left, she was
rear-ended by Mr. Voskakis’ vehicle. She described that she had her right
arm on the steering wheel, while hunched forward to look at the oncoming
traffic.

[30]        
Mr. Voskakis says that he was slowing down (to about 10 to 20
kilometers per hour) as he approached the merge point and that he momentarily
took his eye off the road while checking over his shoulder for oncoming traffic
coming along Bridgeport Road. He applied the brakes too late and “touched” Ms. Gonzales’
vehicle. He described it as a “low impact” or minor collision. He says that he
felt no force on his seatbelt and that no airbags deployed and nothing in his
vehicle was thrown around.

[31]        
At trial, Ms. Gonzales
herself described this collision as a “minor fender bender”. Despite this, she
also said that her vehicle was pushed forward about a car length and, to some
extent, into the oncoming lane. Mr. Voskakis denies this. He says that by
the time he had fully stopped, Ms. Gonzales had let go of her brakes and
had moved forward, but both vehicles were still in the merge lane.

[32]        
I accept the evidence of Mr. Voskakis
in relation to the forces applied in the accident and find that this was a low
impact collision. I do not accept Ms. Gonzales’ evidence that her vehicle
was pushed forward in the collision.

[33]        
 Both parties moved their vehicles
off to the right to exchange information. Mr. Voskakis went up to Ms. Gonzales
and asked if she was ‘OK’. He says that she responded that she was fine and
then exited her vehicle. Ms. Gonzales now says that she was shaken up.
They both inspected the vehicles and saw the dent on hers, but no damage on
his.

[34]        
When asked by Mr. Voskakis if
she was able to drive, Ms. Gonzales replied that she was. In addition, she
was able to open her passenger door and reach into her glove box to retrieve
the documents in order to exchange driver and insurance information. She then
used her dominant right hand to write down the information; Mr. Voskakis
did not observe that she had any difficulty doing so.

[35]        
Ms. Gonzales now describes
her head moving back and then forward as a result of the collision. She also
describes an impact on her right shoulder and experiencing a tingling sensation
there. She said that her arm was “pushed back into itself”. She now says that
she was experiencing significant shoulder pain at the scene. Despite this, Mr. Voskakis’
evidence was that she did not mention any pain or injury arising from the
accident. In particular, she made no mention of her right shoulder. This is not
denied by Ms. Gonzales. I find as a fact that she made no mention of any
injury — in particular, a shoulder injury — at the time.

[36]        
Ms. Gonzales drove off after
the exchange of information.

[37]        
Ms. Gonzales’ vehicle
suffered some minor damage to her right rear bumper. Her vehicle was eventually
repaired at a cost of $1,203.15. No damage was found on Mr. Voskakis’
vehicle.

(iii)     After the Accident

(A)      The Immediate Aftermath

[38]        
Ms. Gonzales was picked up by
her boyfriend, Dave Molina, at his place later that day and they went to the
hospital. Similar to her 2002 injuries, Ms. Gonzales described herself as
feeling “boxy” and that her neck and mid-back felt completely frozen. At the
hospital, the doctor taped her neck and shoulder blades and prescribed Robaxacet.

[39]        
She saw Dr. Kirkpatrick the
next day on September 17, 2008. At that time, she was diagnosed as having
suffered Grade II soft tissue injuries to her neck and back area. There was no
issue at trial but that she suffered these types of injuries as a result of the
accident.

[40]        
She commenced physiotherapy with
Dara Storey of Tsawwassen Sports Physiotherapy on September 22, 2008.

[41]        
Ms. Gonzales gave evidence
that immediately following the accident, her treatment concentrated on her neck
and muscle tightness. She says that it was only after her neck got better that
her right shoulder became an issue. She said that her shoulder “didn’t feel
right in the socket” and that it was “grinding”, “catching”, or was “blocked”
after the motor vehicle accident. She says that these problems, including difficulty
using her right arm at work, arose in the months immediately following the
accident. This evidence from Ms. Gonzales is significantly challenged by
the medical evidence, as discussed below. That medical evidence is that any
complaints of Ms. Gonzales relating to the shoulder related to problems
with the shoulder muscles, not with the shoulder joint. That
evidence also indicates that the first sign or complaint of any shoulder joint
issue, such as weakness, did not arise until approximately 13 months after the
motor vehicle accident.

[42]        
Ms. Gonzales’ family members,
being her sister, Ms. Montgomery, and her grandfather, Fred Messenger,
gave no evidence to confirm that Ms. Gonzales was complaining of shoulder joint
problems after the 2008 motor vehicle accident. In fact, Fred Messenger
understood that her complaints were the same as those arising from the 2002
accidents (i.e., whiplash or symptoms relating to soft tissue injuries). Her
sister had little knowledge or recollection of any of Ms. Gonzales’
injuries prior to 2008, whether from sports or from the two motor vehicle
accidents, and no specific knowledge of her injuries from the 2008 accident.

[43]        
Ms. Gonzales’ uncle, Brad Messenger, gave no detailed
evidence about Ms. Gonzales’ injuries arising from the 2008 motor vehicle
accident. Although he mentioned, in a general fashion, injuries to her
“shoulder” during cross-examination, I find that he had no specific knowledge
of her actual injuries.

[44]        
Shortly after the accident, in November 2008, Ms. Gonzales
returned to playing with her rugby team, the Bayside Club. One of her teammates,
both before and after the accident, was Paige Kuz. Ms. Kuz recalls Ms. Gonzales
coming to practices until the season ended in December 2008. She was a
substitute during that period of time, which Ms. Kuz attributes to a
possible reduction in her fitness level after an absence from the games following
the 2008 accident.

[45]        
In addition, Mr. Ellestad, coach of Ms. Gonzales’ rugby
team, said that when Ms. Gonzales returned to practices in late 2008, she
would have determined herself what her level of participation would be in the
games. He had no specific knowledge of what injuries she suffered in the 2008
accident.

(B)     The SOPAT

[46]        
Despite having worked as a veterinarian assistant for some years, Ms. Gonzales
had been thinking for some time about applying to join the Sheriff’s Office of
the Province of British Columbia. She garnered this interest through Fred
Messenger and his work with Court Services. In addition, her uncle, Brad Messenger,
worked in the Sheriff’s Office and had from time to time over the years
encouraged her to apply to join. He thought that, with her athletic ability,
she would have some success in qualifying as a candidate for the position.

[47]        
Applicants for positions at the Sheriff’s Office are subjected to a
rigorous selection procedure. In the first instance, applicants are required to
submit various documents, including a first aid certificate and a class 4
driver’s license.

[48]        
After the documentation phase is satisfactorily completed, all applicants
must complete the Sheriff Officer Physical Abilities Test (the “SOPAT”). Both
Brad Messenger and an Inspector from the Sheriff’s Office, Jacqueline Ross,
indicated that the test is physically challenging. Ms. Ross indicated that
approximately 25% of applicants fail this test. The testing procedure is as
follows:

Station 1 – mobility run: run a 400 meter course around
various cones, including jumping over various chair and stick obstacles and
going up and down some stairs. Applicants must complete 6 laps of this course.

Station 2 – push-pull activity: control a 50 lb weight while
moving through a machine controlled arc of 60 degrees. This movement through
the arc must be completed six times for the push activity and six times for the
pull activity.

Station 3 – do a modified squat thrust and stand with rail
vault: from a standing position, perform a squat thrust to the front and place
chest on the mat. Stand quickly and vault over a rail. From a standing
position, perform a squat thrust to the back and touch shoulder blades on the
floor. Sit up and stand quickly and vault over the rail. Complete 10 squat
thrusts and stand up.

Stations 1, 2 and 3 must be completed within 4 minutes and 15
seconds.

Station 4 – weight-carry:
assuming the timed portion is completed, pick up an 80 lb weight and carry it
in front of the body for 25 feet and back again.

[49]        
Applicants must have medical clearance to attempt the SOPAT and for the
application process generally. As part of the application process, Ms. Gonzales
indicated in her medical history report dated December 29, 2008 that her only
injuries related to the September 2008 motor vehicle accident and that she was
“recovering as expected”. Having full knowledge of the physicality of the test,
she felt that she was physically prepared to do it, which speaks to her own
view of her recovery from the 2008 motor vehicle accident.

[50]        
As part of the application process, Dr. Kirkpatrick examined Ms. Gonzales
on January 6, 2009. The rigours of the SOPAT were disclosed to her in a form
from the Sheriff’s Office. Dr. Kirkpatrick cleared Ms. Gonzales for
the test, specifically noting no muscular or skeletal problems that would put
her at risk during the test, nor any other medical condition that may affect Ms. Gonzales’
physical performance during the test. In specific response to the question as
to whether Ms. Gonzales would be at risk in completing the SOPAT, Dr. Kirkpatrick
did not identify any potential issues save for noting the motor vehicle
accident from September 2008 and that it “caused STI [soft tissue injury] to
neck and back and she is now 70% recovered”.

[51]        
No mention was made in this application documentation by either Ms. Gonzales
or Dr. Kirkpatrick about any difficulties that Ms. Gonzales was
having with her right shoulder joint, contrary to the evidence now given by Ms. Gonzales.

[52]        
On January 10, 2009, Ms. Gonzales attempted to complete the SOPAT.
There was no evidence from any family member (Fred or Brad Messenger or Ms. Montgomery)
about what training, if any, Ms. Gonzales did in anticipation of the test.
Similarly, her boyfriend, Mr. Molina, did not recall her training for the
test. Ms. Gonzales was confident that she could pass, having her rugby
training in hand along with some other gym work and some modest running that
she had done. If she was concerned at all, it related to the aerobic aspect of
the test during the running portion at Station 1.

[53]        
Ms. Gonzales failed the SOPAT because she did not complete Stations
1, 2 and 3 in time. She finished those in 4 minutes and 54 seconds, some 40 seconds
too long.

[54]        
At her discovery, she indicated that while she was on the third lap of
the running portion of the test during Station 1, her “shoulder sort of
collapsed or sort of came out of the shoulder socket”.

[55]        
Despite having suffered this shoulder injury, Ms. Gonzalez finished
the running portion of the test and then proceeded to also finish the 50 pound
push-pull activity at Station 2, the thrust-vault activity at Station 3, and
the 80 pound weight-carry at Station 4, even knowing that she had failed the
test.

(C)     Post-SOPAT

[56]        
Ms. Gonzales said everything became worse — her pain, range of
motion and shoulder strength — after the SOPAT. Her complaints then moved to
the front of her shoulder.

[57]        
Brad Messenger was “stunned” to learn that his niece had failed the
SOPAT. As he stated, he thought that every indication was that she had the
physical ability to complete the test. He never learned from her why she had
failed.

[58]        
Fred Messenger similarly said that he was surprised that she failed the
test. Like his brother, he never heard from her about what actually happened
during the testing.

[59]        
Mr. Molina suffered from the same lack of knowledge regarding the
SOPAT. He learned that she did not pass, but he never heard from her about what
actually happened during the testing. Although Mr. Molina recalled some
complaints by Ms. Gonzales regarding her shoulder, his evidence was vague
and it was not clear whether any such complaints occurred before or after the
SOPAT.

[60]        
Ms. Montgomery was not able to recall details regarding the SOPAT
or any problems arising from that test.

[61]        
Ms. Kuz also recalls that Ms. Gonzales returned to training
for full contact rugby in January 2009, but that she was slower and more
hesitant. By the spring of 2009, however, Ms. Gonzales had returned to
tackling in the play. Ms. Kuz has no recollection of any shoulder injury
either before or after the accident. Ms. Kuz noticed that Ms. Gonzales
was taping her shoulder before games in the spring of 2009, but she does not recall
which shoulder was taped or why the taping was done.

[62]        
Mr. Ellestad had no recollection of any concerns about her play in
January 2009 or in relation to her participation in rugby games which began in
February and continued into March 2009.

[63]        
By the spring of 2009, Ms. Gonzales felt she could no longer continue
playing rugby. She stopped playing at or near the end of the season.

(D)     Events Leading to Surgery

[64]        
In early July 2009, Dr. Kirkpatrick’s associate, Dr. Helen Eng,
took over Ms. Gonzales’ care. At that time, Ms. Gonzales was
reporting symptoms in her right “shoulder”, specifically the trapezius muscle.
In addition to noting tenderness in the shoulder blade muscles and in the right
trapezius, Dr. Eng was concerned that she might have damage in the right
rotator cuff. Accordingly, and at the request of Ms. Gonzales, she ordered
an MRI of the right shoulder. Ms. Gonzales’ symptoms remained consistent,
as reported during the further visits to Dr. Eng in August and November
2009.

[65]        
When Dr. Eng took over from Dr. Kirkpatrick, there were no
documented reports of right shoulder pain, nor were any registered with Dr. Eng
by Ms. Gonzales in July 2009 and in the months following.

[66]        
Ms. Gonzales attended at a rehabilitation program in August and
September 2009 to improve her flexibility, right shoulder strength and symmetry
between her shoulders. She was still reporting constant pain at that time.

[67]        
The MRI was performed on November 5, 2009. At that time, the summary of
findings was that there was a “circumferential labral tear including the bicpital
anchor [and a s]mall partial thickness joint surface tear of the supraspinatus
tendon.” Dr. Eng received the MRI report in early December 2009. Based on
these findings, she referred Ms. Gonzales to Dr. Kendall, an orthopaedic
surgeon.

[68]        
Ms. Gonzales’ right shoulder symptoms continued into the early
spring of 2010. On April 8, 2010, Ms. Gonzales attended at Dr. Kendall’s
office at which time she was examined by a locum, Dr. Derek Smith. Dr. Smith’s
notes indicated that she had done the SOPAT and that “since then she has felt
unstable and noted significant crepitus and popping in her shoulder”. Dr. Smith’s
diagnosis was she had multi-directional shoulder instability. He recommended
surgery.

[69]        
Dr. Kendall performed surgery on Ms. Gonzales’ right shoulder
on August 4, 2010. Neither Dr. Smith nor Dr. Kendall was called as a
witness at trial; nor did they provide any medical opinions for the purposes of
this trial. The only evidence relating to Dr. Kendall’s findings as result
of the surgery is his operative notes, which are described in more detail below.
Essentially, he found that, despite the MRI, there was no circumferential tear
of the labrum but only a 45 degree tear from the 12 o’clock to the 3 o’clock
position of the labrum (known as a SLAP tear). Significantly, Dr. Kendall
found that there was substantial and unusual degenerative fraying of the labrum.
Dr. Kendall performed some repairs to the shoulder joint.

[70]        
Ms. Gonzales was on medical leave
from her workplace after the surgery for approximately six months. She returned
to work on a gradual basis and was later reintegrated into full-time work.

[71]        
Despite the surgery, Ms. Gonzales’ symptoms worsened. Her pain
continued and by her November 2010 visit with Dr. Eng, she reported that
the right shoulder pain had become intolerable. Throughout this period, she was
prescribed pain medication, including morphine. Ms. Gonzales stated that
her shoulder range of motion and shoulder pain in the fall of 2009 was markedly
better than it was after the surgery in 2010.

[72]        
Ms. Gonzales continued to see Dr. Eng throughout 2011. By
January 2011, Ms. Gonzales had returned to work with modified duties and
powers. She was still reporting soreness and pain. She was also receiving
physiotherapy twice a week.

[73]        
Ms. Gonzales saw Dr. Kendall
on March 15, 2011. At that time, Dr. Kendall suggested further surgery, an
option which Ms. Gonzales rejected. By April 2011, Ms. Gonzales was
seeing a chiropractor in addition to the physiotherapist. By May, 2011, Ms. Gonzales
had returned to normal working hours. The pain continued further into 2011. In
July 2011, her physiotherapy sessions stopped for a period of time and she hired
a personal trainer for a short period of time.

[74]        
On September 15, 2011, in an
attempt to address the ongoing shoulder symptoms, Dr. Kendall treated Ms. Gonzales
by injecting anti-inflammatory medication into her right shoulder joint.
Unfortunately, Ms. Gonzales had an adverse reaction and the pain actually
increased as a result.

[75]        
By November 2011, Ms. Gonzales
reported to Dr. Eng that her work duties were still modified, but that she
continued to work full time. She continued with her physiotherapy sessions and
continued to tolerate the pain.

[76]        
Ms. Gonzales saw Dr. Kendall
again on November 15, 2011. At that time, he noted that Ms. Gonzalez had
reacted poorly to the injection. Dr. Kendall referred Ms. Gonzales to
Dr. Leung, an orthopaedic surgeon, for a second opinion. Dr. Leung’s
view was that Ms. Gonzales would not benefit from further surgery, but she
did recommend a further injection.

[77]        
Dr. Eng concluded that the
ongoing symptoms throughout 2011 were consistent with a diagnosis of adhesive
capsulitis, also known as “frozen shoulder”. She had very restricted range of
motion during this time. Dr. Eng described Ms. Gonzales’ prognosis in
her November 25, 2011 report as “fair” to “guarded”.

[78]        
Ms. Gonzales stated at trial
that she had started to see some improvements in the prior six months or so. Ms. Storey,
her physiotherapist, confirmed this improvement. Ms. Gonzales has decided
to proceed with a recommended second injection before considering further
surgery to address a bicep tendon issue.

Causation of Ms. Gonzales’ Shoulder Injury

(i)       Ms. Gonzales’ Position

[79]        
Ms. Gonzales’ case in relation to her shoulder injury largely rests
on the proposition that the 2008 motor vehicle accident was a contributing
factor to a labral tear in her right shoulder joint which was identified in the
2009 MRI and surgically repaired in August 2010.

(ii)      Mr. Voskakis’ Position

[80]        
Mr. Voskakis takes the position that the
motor vehicle accident did not cause any injury to Ms. Gonzales’ right
shoulder joint, nor did it aggravate any underlying conditions. He says that Ms. Gonzales’
surgery on the right shoulder joint and the resulting increase in symptoms and
any disabilities arising from this condition are unrelated to the accident.

[81]        
Mr. Voskakis also says that the labral tear
found during Ms. Gonzales’ August 2010 surgery likely pre-existed the 2008
motor vehicle accident and that any shoulder joint pathology found during
surgery was not caused or aggravated by the minor collision in September 2008.
He posits that, although it is not necessary for him to prove the true source
of the symptoms in Ms. Gonzales’ shoulder joint, it is likely that the underlying
shoulder pathology was made symptomatic by the SOPAT in January 2009, and was also
possibly aggravated by Ms. Gonzales’ rugby activities in late 2008 leading
up to the spring of 2009 or by any number of other activities she undertook
during that time.

[82]        
He further says that Ms. Gonzales’ current
problems are related to the right shoulder surgery itself rather than to any
injury or activation of any prior pathology. The surgery itself caused
increased pain and decreased range of motion to the point of immobility in the
shoulder — in other words, “frozen
shoulder”.

[83]        
Finally, and in the alternative, Mr. Voskakis says
that Ms. Gonzales’ shoulder condition has improved since the diagnosis was
made and continues to improve. He says that the current symptoms are not as
severe as alleged and will not cause her to suffer any loss of earnings or
earning capacity in any event.

(iii)     The Medical Evidence

[84]        
The relevant medical evidence relating to Ms. Gonzales begins when
she was only 14 years old and continues until approximately three years after
the 2008 motor vehicle accident.

[85]        
As will become apparent from the discussion below, the medical evidence
adduced at trial, including the expert medical opinion evidence, was both
confusing and conflicting.

(A)      Medical Terminology

[86]        
The principal injury alleged by Ms. Gonzales relates to her right “shoulder”,
which in the context of this case is a fairly ambiguous word. Accordingly, some
discussion of the medical terminology relating to the shoulder is instructive
at this point and will be helpful in understanding the medical evidence.

[87]        
One major category of shoulder pathology relates to the shoulder joint.
The head of the arm bone (humerus) meets the shoulder at the shoulder socket or
glenoid cavity. Next to the glenoid cavity is the labrum, which is further back
in the socket. The labrum forms a cup for the end of the humerus to move
within. The labrum circles the glenoid to make the socket deeper and the
shoulder joint more stable.

[88]        
Injuries to the shoulder joint may result in a “subluxation” (where the
joint partly comes out and goes back in again) or a “dislocation” (where the
joint comes out and stays out).

[89]        
One common form of shoulder injury is a tear to the labrum. Dr. Eng
describes a labral tear, which is the central issue in this litigation:

There is another shoulder injury
called a glenoid labrum tear which can also occur from acute trauma or
repetitive shoulder motions like those performed by throwing athletes and in
many jobs. The labrum is a soft fibrous tissue rim that makes the glenoid
deeper so that the head of the upper arm bone fits better. It also serves as an
attachment site for several ligaments. Dr. Kendall noted that anthroscopically,
there was a SLAP [Superior Labrum, Anterior to Posterior] lesion, which means a
tear of the rim above the middle of the glenoid that may also involve the
biceps tendon. Traumatic injury causing labral tears include examples such as a
direct blow to the shoulder, falling on an outstretched arm, a sudden pull (as
when trying to lift a heavy object) or a violent overhead reach (as when trying
to stop something from falling on you). …

[90]        
Another medical term relating to the shoulder is “laxity”, which means
looseness of the shoulder joint.

[91]        
One of the muscles involved in the shoulder is the biceps muscle. The
long head of the biceps tendon comes up a groove in the humerus bone and over the
top of the bone, attaching at the shoulder joint close to the labrum.

[92]        
There are also certain muscles in the shoulder area (called the
persiscapular area) which start in the neck area and extend down the back. The
levator scapulae is a muscle situated at the back and side of the neck; it functions
to lift the scapula or shoulder blade. The trapezius is a large muscle that
extends from the base of the neck to the lower vertebrae and laterally to the
shoulder blade area. It is these muscles which are typically injured in a
whiplash situation, resulting in what are commonly referred to as “soft tissue
injuries”.

(B)     The 1997 Incident

[93]        
I have already mentioned the early
medical records of Dr. Kirkpatrick that were disclosed during the course
of the trial. Of some significance is an entry made by Dr. Kirkpatrick on
May 8, 1997 (when Ms. Gonzales would have been 14 years of age) relating
to a right shoulder injury suffered by Ms. Gonzales while playing softball.

[94]        
 Dr. Kirkpatrick confirmed
the accuracy of her records and, in particular, that in preparing and
completing her records, she complied with the Bylaws of the College of
Physicians and Surgeons of British Columbia. In addition, she recorded matters
using the well known “SOAP” method — meaning S for subjective, O for objective, A for
assessment/diagnosis, and P for plan. The note read:

(S) 2 days ago → right shoulder – felt like popping out
of socket → pitching for softball. No history of shoulder problems
previously.

(O) Tender – head biceps. No evidence dislocation. ROM [range
of motion] normal. Strength normal…

(A) Right Biceps Tendonitis.

(P) Rest/Ice/Physio …

[95]        
Dr. Kirkpatrick says that the description of Ms. Gonzales’
injury on this date (i.e., the “subjective”) was made by Ms. Gonzales, and
I accept that this was communicated by her to the doctor. “Popping out of the
socket” is not a medical term that Dr. Kirkpatrick would have used. She
would have described it as either a “subluxation” or “dislocation”. Her
diagnosis of “right biceps tendonitis” could have been a symptom of a
subluxation.

[96]        
Dr. Kirkpatrick did not see Ms. Gonzales for this medical
condition after this visit.

[97]        
Ms. Gonzales had no recollection of this 1997 incident or the treatment
of her condition by either Dr. Kirkpatrick or the physiotherapist who also
treated her for that injury.

(C)     The 2002 Motor Vehicle Accidents

[98]        
Dr. Kirkpatrick treated Ms. Gonzales in the aftermath of both
of these motor vehicle accidents.

[99]        
The first visit was on May 9, 2002. Ms. Gonzales reported pain in
her neck and tingling in her left arm. Dr. Kirkpatrick noted spasms in the
trapezius in May 2002 and that the pain was worse with respect to Ms. Gonzales’
right trapezius. By November 2002, spasms were noted in both trapezius. After
the December 2002 motor vehicle accident, Ms. Gonzales reported to Dr. Kirkpatrick
that she had been 50% recovered from the May 2002 motor vehicle accident. The
complaints of pain in Ms. Gonzales’ trapezius area continued and Dr. Kirkpatrick
continued to treat those symptoms. This treatment regime continued on a regular
basis over the course of 2003 and into 2004. The last visit with Dr. Kirkpatrick
relating to these accidents was on April 27, 2004, at which time Ms. Gonzales
reported that she was doing better. Dr. Kirkpatrick found a normal range
of motion, no spasm in the trapezius area, and that she was “doing well” at
that time.

[100]     In
addition, Ms. Gonzales began seeing Mr. Hendricks for physiotherapy
sessions soon after the first accident on May 17, 2002. She would continue to
see him until June 2003 over some 64 sessions, which even Mr. Hendricks
described as an unusual number of visits.

[101]     Mr. Hendricks
was aware of the 1997 incident regarding Ms. Gonzales’ right shoulder and
had reviewed physiotherapy notes from May 1997 relating to that injury. He
interpreted these notes as describing this injury as relating to the right
anterior shoulder joint, as opposed to the periscapular area. He indicated that
the physiotherapist in 1997 identified Ms. Gonzales as having rounded
“protracted” shoulders, which indicates a posture problem. He also said that
this condition would have preceded the 1997 injury and predisposed her to the 1997
injury and the periscapular problems that she would seek to address in later
physiotherapy sessions in 2002/2003.

[102]     From May
2002 to June 2003, Mr. Hendricks treated Ms. Gonzales for injuries to
her periscapular, upper trapezius, scapular and neck areas, with an emphasis on
her right side. He also treated her thoracic spine. Some progress was made, but
her condition plateaued to the point where Mr. Hendricks referred her to
another therapist for a second opinion in January 2003. Symptoms continued and
by May 2003, Mr. Hendricks began to think that the condition was chronic.
At her last visit in June 2003, Ms. Gonzales was still complaining of pain,
but was managing. Mr. Hendricks considered that she had improved
functionally. Ms. Gonzales stopped seeing Mr. Hendricks only because ICBC
stopped funding the treatment. ICBC referred her to a kinesiologist, however.

[103]     Ms. Gonzales
has a very poor memory of the course of her treatments arising from the 2002
motor vehicle accidents, although she does acknowledge that there were only
muscular problems. I accept the evidence of Mr. Hendricks and Dr. Kirkpatrick
in terms of complaints she made and diagnosis and treatment plans arising from
those accidents. Also, as noted above, I accept the notes of Ms. Andstein
from ICBC as providing an accurate description of her injuries and symptoms as
of May 2004.

(D)     The 2008 Motor Vehicle Accident

[104]     Dr. Kirkpatrick
also treated Ms. Gonzales after the subject motor vehicle accident, first
seeing her on September 17, 2008, the day after the accident. The doctor’s notes
indicate that Ms. Gonzales confirmed to her that she had felt 80%
recovered from the 2002 motor vehicle accidents at that time, which Ms. Gonzales
now denies.

[105]     Ms. Gonzales
has little recollection of what she said to Dr. Kirkpatrick at the time,
including with regard to the pain in her right neck area and headache pain. She
does admit that the symptoms she reported to both Dr. Kirkpatrick and Ms. Storey,
the physiotherapist, in the fall of 2008 were very similar to the ones she
reported after the 2002 motor vehicle accidents. She also says that it was only
after the neck and periscapular areas had “settled down” that she began to
become aware of the shoulder problem. She admitted that it was only “possible”
that she mentioned any catching and grinding of the right shoulder joint to Dr. Kirkpatrick
in the months following the accident.

[106]     Ms. Gonzales
said in her evidence that she had a “strange” shoulder pain down her arm at the
point of impact.

[107]     Nevertheless,
Dr. Kirkpatrick testified that Ms. Gonzales did not report any
problems or pain relating to her right shoulder joint after the accident. There
was no mention of any weakness in Ms. Gonzales’ right arm, and the testing
for strength indicated a normal range. In December 2008, testing of Ms. Gonzales’
range of motion in relation to her shoulders was found to be normal. Ms. Gonzales
now says that it was “unlikely” that she did not report to the doctor what she
now describes as her symptoms.

[108]     While
considering entries on the January 6, 2009 visit, Dr. Kirkpatrick
indicates that there was again no mention by Ms. Gonzales of any right
shoulder joint problem. It was during this visit that the matter of the
upcoming SOPAT was discussed, and I have already indicated that Ms. Gonzales
did not complain at all concerning any right shoulder difficulty, nor did Dr. Kirkpatrick
indicate that she had any concerns in that respect for the purpose of clearing Ms. Gonzales
for that test.

[109]     Dr. Kirkpatrick
indicated that the focus of her treatment was dealing with the Grade II soft
tissue injuries that she had diagnosed. She indicated that if any labral tear
symptoms had occurred, she would have treated them.

[110]     Ms. Gonzales
now says that she did not mention any joint complaints at the January 6, 2009
visit with Dr. Kirkpatrick because she “might have exaggerated her
recovery to have her sign off” for the SOPAT.

[111]     At the
visit on March 19, 2009, Ms. Gonzales reported to Dr. Kirkpatrick
that she had failed the SOPAT because of “neck and back pain”. Again, the range
of motion of the shoulders was found to be normal, although spasms were noted
in the right trapezius. These same spasms in the right trapezius were also
noted in the final visit with Dr. Kirkpatrick in relation to these issues
on May 5, 2009.

[112]     I find
that Dr. Kirkpatrick was a detailed and accurate note-taker — a matter
confirmed by her colleague Dr. Eng — in terms of the subjective complaints
made by Ms. Gonzales at her visits and the objective findings made by her
at that time. In my view, Ms. Gonzales’ evidence concerning her shoulder
difficulties after the accident and the complaints she says she may have made
to Dr. Kirkpatrick is likely a hindsight reconstruction to assist her
case.

[113]     During her
direct examination at trial, Dr. Kirkpatrick offered her opinion that it
was highly unlikely that this minor motor vehicle accident could cause shoulder
damage to the labrum that would present months after the accident. I would have
ignored that opinion since Dr. Kirkpatrick was not called by the defence to
give such evidence, but she was cross-examined on that opinion by Ms. Gonzales’
counsel. At that time, Dr. Kirkpatrick indicated that, in her view, the
mechanism of injury was such that it was highly unlikely that this motor
vehicle accident could cause a tear to the labrum. Dr. Kirkpatrick was not
called to give expert evidence and, needless to say, she did not offer her
opinion in the usual fashion that would provide the usual safeguards under the Supreme
Court Civil Rules (the “Rules”) to ensure fairness to the parties in
presenting this opinion. In light of this fact, and since it is not necessary
to rely on Dr. Kirkpatrick’s opinion given the other expert evidence that
has been adduced at trial, I give no weight to this aspect of Dr. Kirkpatrick’s
evidence.

(E)      Dr. Helen Eng

[114]     As noted
above, Dr. Eng began seeing Ms. Gonzales in July 2009. Her decision
to order an MRI ultimately led to the surgery being performed by Dr. Kendall
in August 2010.

[115]     Dr. Eng
prepared two medical legal reports for Ms. Gonzales, dated January 14,
2011 and November 25, 2011. For the purposes of this trial, Dr. Eng was
qualified to give opinion evidence in the area of family medicine.

[116]     In her
first report, Dr. Eng addressed issues of causation in relation to the
2008 MVA. She outlined Ms. Gonzales’ history both with her and Dr. Kirkpatrick.
Dr. Eng confirmed her reading of Dr. Kirkpatrick’s clinical notes to
the effect that all complaints by Ms. Gonzales subsequent to the 2008
motor vehicle accident were in relation to soft tissue injuries to the periscapular
or trapezius/levator scapulae area of the shoulder. She confirmed that there
was no mention by Ms. Gonzales in the clinical notes about any right
shoulder joint symptoms and no diagnosis of any shoulder joint pain or other
symptoms over this period to May 2009. Dr. Eng confirmed that over the
remainder of 2009, there continued to be no complaints from Ms. Gonzales
regarding her shoulder joint, although she did note some decrease in the range
of motion of the right shoulder at the July 2009 visit, which was the reason
for ordering the MRI at that time. But she confirmed that the decreased range
of motion could have been caused by other matters not specific to a labral
tear.

[117]     The first
report by Ms. Gonzales of any weakness in her right shoulder was during
the January 2010 visit with Dr. Eng, at which time the results of the MRI
were discussed. Dr. Eng confirmed that prior to April 2010 when Dr. Smith
diagnosed shoulder instability, there had been no complaints of shoulder
instability, nor had she tested for shoulder instability. The first time that Ms. Gonzales
reported pain in the anterior (i.e., front) of her shoulder was during Dr. Eng’s
examination on June 21, 2010. Even at that time, Dr. Eng only reported Ms. Gonzales’
subjective comment that her right shoulder was continuing to decline; this was
not matched by the actual examination conducted by Dr. Eng.

[118]     Dr. Eng
confirmed that both the pain relating to and range of motion of Ms. Gonzales’
right shoulder were far worse after the surgery in August 2010.

[119]     All of
this is to say that Dr. Eng agreed that Ms. Gonzales’ complaints
after the 2008 motor vehicle accident were similar to the complaints she made
after the 2002 motor vehicle accidents right up until the time that the results
of the MRI were disclosed in December 2009.

[120]      Dr. Eng
concluded that since Ms. Gonzales had only partially recovered from the
2002 MVAs to the extent of 80%, there were pre-existing injuries to her neck
and back and trapezius area which may have been aggravated by the motor vehicle
accident on September 16, 2008.

[121]    
With respect to the shoulder injury, Dr. Eng noted that there was
no history in Ms. Gonzales’ medical records that there were any problems
with her right shoulder. Unfortunately, when Dr. Eng gave her opinion, she
did not comment on Dr. Kirkpatrick’s May 1997 clinical notes with respect
to the right shoulder injury at that time. Dr. Eng indicated that since
there were no further symptoms reported in that area after May 1997, it
suggested to her that it had healed. Nevertheless, Dr. Eng confirmed that
reports of the shoulder “popping" could have been a sign of a labral tear
and that a labral tear sometimes results in instability. She agreed that there
is a connection between such events and labral tears and that a labral tear
could cause symptoms in the biceps tendon, as noted by Dr. Kirkpatrick.

[122]    
Dr. Eng further indicated that in many cases, labral tears can be
asymptomatic. However, she stated in her report that:

With regards to the right
shoulder pain, Ms. Gonzales does not give a history of it prior to this
MVA and there is nothing documented in her medical records that there were any
problems. …

[123]     This
statement was made in the context of Dr. Eng having reviewed the prior
medical records of her colleague, Dr. Kirkpatrick, and specifically noting
the May 1997 subluxation incident. Yet, no reference to this incident was made
in Dr. Eng’s report and this would not have come to the attention of the
parties and the court but for the later disclosure of Dr. Kirkpatrick’s
notes.

[124]     The lack
of disclosure by Dr. Eng of this May 1997 record is troubling. Dr. Kirkpatrick
had no difficulty in recognizing the significance of that injury in the context
of the issues raised in this litigation. It signals that Dr. Eng may not
have fulfilled her role in assisting this court as an objective and neutral
third party who is not acting as an advocate for Ms. Gonzales. In light of
this matter, I approach Dr. Eng’s report and conclusions with some
skepticism.

[125]      On cross-examination,
Dr. Eng confirmed that this 1997 incident could have possibly contributed
to some damage to Ms. Gonzales’ right labrum.

[126]    
After noting that it would not be surprising for Ms. Gonzales to
have some pathology in her right shoulder joint given her participation in
sports such as rugby and softball (a connection also noted by Dr. Regan,
as discussed below), Dr. Eng stated in her report:

Prior to this MVA, it is possible
that Ms. Gonzales either had an asymptomatic abnormality in her rotator
cuff or had symptoms that came and went, without needing a doctor’s attention.
In many instances, nonsurgical treatment can provide pain relief and improve
the function of the affected shoulder. I think her involvement in this MVA may
have contributed to the pre-existing pathology, an asymptomatic rotator cuff
tear, to become significantly symptomatic.

[127]    
It should be noted that the injuries identified in the surgery had
nothing to do with a rotator cuff injury.

[128]    
Dr. Eng also agreed that the 2009 incident suffered by Ms. Gonzales
during the SOPAT, where her shoulder joint was said to have “come out of the
socket” or to have subluxed, could be sign of a labral tear. Dr. Eng
agreed that this incident could have rendered an asymptomatic labral tear
symptomatic.

[129]    
Dr. Eng concluded:

…The rear-end collision that Ms. Gonzales described and
the history of her immediate symptoms do not correlate well with the accident
being the sole and direct cause of the entire labral tear in her right
shoulder.

Rather, I think that her involvement in this MVA may have
contributed to some pre-existing, asymptomatic pathology in the labrum to bring
on the symptoms in Ms. Gonzales’ right shoulder.

Had this accident not occurred, Ms. Gonzales might have
experienced these same symptoms, albeit within the next decade or so.

[130]     Dr. Eng
further confirmed that the labral tear could have resulted from Ms. Gonzales’
participation in her various sports activities or that playing rugby in the
spring of 2009 could have aggravated a pre-existing labral tear. Finally, Dr. Eng
was asked to comment on the results of Dr. Kendall’s observations of the
shoulder injury during the surgery. Dr. Eng agreed that the injury
described by Dr. Kendall was not a clean tear that would be suggestive of an
acute one-time injury. Rather, the findings indicated a degenerative process. Dr. Eng
agreed that it was more likely caused by repetitive strain rather than by acute
trauma to the right shoulder.

[131]     Dr. Eng
concluded that it was more likely that Ms. Gonzales’ participation in
sports — which involved force or contact — caused or aggravated the labral tear,
as opposed to the 2008 motor vehicle accident. She also indicated it was
possible that the 2002 motor vehicle accidents caused the labral tear. She did
feel, however, that the 2008 motor vehicle accident contributed to what was
happening in the shoulder joint and most likely accelerated what was happening.

[132]     Dr. Eng
stated that Ms. Gonzales would not likely have been able to continue
playing rugby or working at a physical job involving the shoulder regardless of
the 2008 motor vehicle accident.

(F)      Dr. Derek Smith/Dr. Richard
Kendall

[133]     Drs. Smith
and Kendall were not called as witnesses, but their notes were available at
trial.

[134]    
Dr. Smith was Dr. Kendall’s locum charged with interpreting
the MRI and examining Ms. Gonzales on April 8, 2010. At that time, Dr. Smith
recorded what he was told by Ms. Gonzales were injuries related to the
2008 motor vehicle accident and the SOPAT incident:

She initially had primarily neck
and chest pain and this has improved. She did note that she continued to have
some weakness and issues with reaching activities or lifting. This was mostly
away from the body. In January of 2009 while doing some fitness testing for the
Sheriff’s office, she felt what he describes as the shoulder come [sic] out
while doing a run. This was atraumatic. She had some soreness but finished run.
Since then she has felt unstable and noted significant crepitus and popping in
her shoulder with activities of daily living such as driving.

[135]     Dr. Smith
concluded that the MRI showed a near circumferential labral tear. Dr. Smith
also noted that there was a small partial thickness tear of the supraspinatus.

[136]     Despite Ms. Gonzales
reporting “global” pain that was worse on the anterior aspect of the shoulder, Dr. Smith
found no anterior pain on an objective evaluation. Rather, it appears that Dr. Smith
was the only doctor to diagnose her with shoulder instability, which largely arose
from the SOPAT incident since there were no symptoms of instability arising
from the 2008 motor vehicle accident.

[137]     Dr. Smith
indicated that Ms. Gonzales would require surgery to repair the labrum,
both anteriorly and posteriorly.

[138]     Dr. Kendall
performed the surgery on Ms. Gonzales’ right shoulder on August 4, 2010.
At that time, he found that she had multi-directional instability in both
shoulders consistent with her hypermobility. Dr. Kendall noted that while
examining the joint, there was shredding or degenerative tearing of the
anterior labrum, which Dr. Kendall described as “extremely friable”. Finally,
Dr. Kendall noted that posteriorly, the labrum did not indicate any obvious
tear, although again there was some fraying. Accordingly, Dr. Kendall
found that, contrary to the findings from the MRI, there was no circumferential
tear of the labrum. He only found a 45 degree tear from the 12 o’clock to the 3
o’clock position of the labrum.

[139]     Noting
that there had been no complaints of instability but rather of a dull ache with
a “catching and locking”, Dr. Kendall performed an anterior repair of the
biceps anchor and debrided the frayed tissue from the labrum.

[140]     As will
become apparent, the instability in Ms. Gonzales’ right shoulder was
possibly caused by the SOPAT incident or the 1997 incident earlier described.
In addition, if there was any laxity or “looseness” of the shoulder, then
further evidence from Dr. Regan suggests that there are genetic causes for
this condition.

(G)     Dara Storey

[141]     In late 2008, Dara Storey was employed as a physiotherapist at the
Tsawwassen Sports Physiotherapy. She was a fairly recent graduate, having
received a Masters degree in physiotherapy in 2006.

[142]     Ms. Storey began seeing Ms. Gonzales immediately after the
2008 motor vehicle accident and was called to give evidence in support of her
case.

[143]     Somewhat surprisingly, it appears that over the ensuing three and a
half years to the time of the trial, Ms. Storey saw and treated Ms. Gonzales
some 170 times. This is an unusually high number of visits and is consistent
with the unusually high number of visits to Mr. Hendricks in 2002/2003. It
was clear to me that Ms. Storey clearly identifies with the medical trials
and tribulations that Ms. Gonzales has been through over the time that she
has seen her. I agree with the defence that at times, she displayed less of an
objective attitude than one might expect and became more of an advocate for Ms. Gonzales.
I accordingly approach her evidence with some caution.

[144]     Ms. Gonzales places a high degree of reliance on the records of
Ms. Storey in the months immediately following the 2008 accident. During
her initial assessment, Ms. Storey says that she focused on the headaches
and the neck and shoulder complaints. On September 22, 2008, Ms. Storey
noted that Ms. Gonzales reported “now” decreased sharp pain in her right
shoulder and that her shoulder felt like a “barrier”. Ms. Storey
acknowledged that this latter comment could have arisen from pain, stiffness or
muscle weakness and that an inability to move is often caused by pain. She says
that once the neck and headaches became more manageable, she shifted more
attention to the shoulder in October and November 2008. Over that period of
time, these records show many references to the shoulder, although there is no
specific designation of the complaints as relating to the shoulder joint as
opposed to the shoulder muscles. There were no complaints of instability of the
right shoulder. Many other general references were made by Ms. Storey in
her notes to Ms. Gonzales describing the shoulder as being “stuck” and
“feeling out of place” in the fall of 2008.

[145]     Ms. Storey made various notations regarding Ms. Gonzales’
range of motion over this fall period, but I find that Ms. Storey’s determination
that Ms. Gonzales lacked a full range of motion in her right shoulder was
not particularly accurate since she did not test both sides to see what her
“normal” range of motion was. In addition, at times Ms. Storey’s testing conflicted
with similar testing done by Ms. Gonzales’ medical doctors, including Dr. Kirkpatrick,
Dr. Smith and Dr. Leung. I do not, in any event, place any reliance on
Ms. Storey’s assessment of “abnormal” range of motion tested on Ms. Gonzales,
as Ms. Storey conceded that it was not necessarily indicative of a
shoulder injury because such findings could be caused by pain after injuries to
the neck and back, including the periscapular area. In particular, she
confirmed that if someone had very tight muscles in the trapezius/levator
scapula areas, this could cause a decrease in shoulder range of motion.

[146]     Ms. Storey noted that Ms. Gonzales advised that she had
pain in her right shoulder in the third lap of her run while doing the SOPAT.

[147]     The defence submits, and I agree, that Ms. Storey’s records in
the months following the 2008 accident show repeated complaints about and
treatment directed at the right periscapular area — including the levator scapula/trapezius — rather than the right shoulder joint. This contention is supported
by the evidence of Dr. Regan, as outlined below, who indicated that in his
opinion, the notes indicate that the initial symptoms and treatment all related
to the right periscapular area rather than the shoulder joint.

[148]     Further, Mr. Hendricks’s evidence was that Ms. Storey’s
records indicate a treatment regime similar to the one that he implemented in
2002/2203, namely one directed at treating the right periscapular area on the
right side and the thoracic spine. Mr. Hendricks said that these were the
same complaints from Ms. Gonzales that he had received and that Ms. Storey
had completed virtually the same treatment that he had done.

[149]     Ms. Storey was unaware of any prior right shoulder joint
complaints arising from the May 1997 records, since she did not review the
physiotherapy records from that time. Also, Ms. Storey acknowledged that
she had only skimmed the prior clinical records at Tsawwassen Sports
Physiotherapy in the 2002/2003 time frame and did not review prior entries in
any particular detail. When Mr. Hendricks’ records were brought to her
attention on cross-examination, Ms. Storey reluctantly agreed that there
were substantial similarities between the previous complaints of right shoulder
pain and tightness and decreased range of motion in 2002/2003 and those
complaints that were observed by her after the 2008 motor vehicle accident.

[150]     The defendant says that the 2002 records show only right
periscapular area problems and that when compared to the 2008/2009
physiotherapy records (prior to the MRI in November 2009), Ms. Gonzales’
complaints in both time periods were remarkably similar. At both times, she had
the typical “whiplash” symptoms of neck and upper back/shoulder complaints,
with upper back/shoulder referring to the periscapular area on the right more
than on the left. Further, the defendant says that contrary to Ms. Gonzales’
contention that these symptoms — that is, decreased range of motion and pain in the “shoulder” — are “consistent” with a labral tear, these
are actually symptoms relating to the periscapular area, including muscle spasm
and pain in that area of the “shoulder”.

[151]     In fact, the first reference to the shoulder joint by Ms. Storey
in her notes was at the visit on October 5, 2009, when Ms. Gonzales said
that she had a “very clicky” shoulder and that Dr. Eng wanted to send her
for an ultrasound. This was, of course, just before her appointment for the MRI
the following month.

(H)     Dr. Mark Adrian

[152]     Dr. Adrian
was also called as a witness to provide a medical opinion in support of Ms. Gonzales’
case. Dr. Adrian practiced physiotherapy for two years and then went to
medical school, graduating in 1993. He is trained in the area of physical
medicine and rehabilitation; he was qualified to provide a medical opinion in
that area. His sub-speciality deals with matters relating to the spine and
musculoskeletal and occupational medicine. He appears to spend time on all
joints, but admits to spending more time on spinal conditions. I accept the
defence’s contention that he does not particularly specialize in matters
relating to the shoulder joint to the same extent that Dr. Regan, the
defence’s expert, does.

[153]     Dr. Adrian
examined Ms. Gonzales on September 9, 2011. Further, he reviewed various
documents, including the records of Dr. Kirkpatrick, Tsawwassen Sports Physiotherapy
and Drs. Smith and Kendall. He also reviewed the first medical legal report of Dr. Eng
and the medical legal report of Dr. Regan.

[154]    
Dr. Adrian concluded that the September 2008 motor vehicle accident
had “materially contributed” to the development of a symptomatic labral tear in
Ms. Gonzales’ right shoulder:

Following the 2008 motor vehicle accident, Ms. Gonzales
experienced pain involving her neck, right periscapular region, and right
shoulder that limited her ability to participate with her recreational,
vocational and household activities.

Ms. Gonzales probably suffered physical forces, during
the course of the September 2008 motor vehicle accident, to the soft tissue
structures involving her right shoulder resulting in an injury and right
shoulder pain. She indicates that the intensity of the symptoms fluctuated. The
symptoms involving her right shoulder were triggered by reaching and lifting
with her right upper extremity. She experienced a popping sensation involving
her right shoulder during Karp Rehabilitation. There is a recording in the post-accident
physical therapy notes of right shoulder being “out of place”.

Ms. Gonzales probably suffered a spontaneous instability
episode (subluxation) involving her right glenohumeral joint in January 2009
while running. Prior to this episode, she was experiencing ongoing symptoms
involving her right shoulder that limited her ability to participate with
reaching and lifting activities. She indicates that the 2009 episode was a
unique feeling involving her right shoulder which she had not previously
experienced. Following the 2009 incident, she experienced frequent catching
sensations and a sense of instability involving her right shoulder.

Ms. Gonzales was evaluated with an MRI of the right
shoulder in 2009 that demonstrated a labral tear. The labrum is a fibrocartilaginous
ring that deepens the shoulder socket and assists with shoulder stability. She
was assessed by Dr. Smith (locum for Dr. Kendall) and diagnosed with
multidirectional shoulder instability.

Ms. Gonzales probably suffered symptomatic labral tear
in 2009 during the running incident, resulting in the shoulder instability
episode (subluxation). At the time of the incident, she was experience
ongoing symptoms involving her right shoulder that had been present since the
September 2008 motor vehicle accident. In my opinion, the motor vehicle
accident probably materially contributed to the development of a symptomatic
labral tear and the instability episode that occurred in 2009.

[Emphasis added]

[155]     As can be
seen from the above quote, in coming to his conclusion, Dr. Adrian placed
a great deal of reliance on the history relayed by Ms. Gonzales, and particularly
on Ms. Gonzales’ report that she was experiencing “ongoing symptoms
involving her right shoulder” since the time of the September 2008 motor
vehicle accident. It is also apparent that he places a great deal of reliance
on Ms. Gonzales’ report of anterior pain in her shoulder in the
time frame after the 2008 accident. It is therefore unsurprising that he
conceded during his testimony that if the accuracy of this reporting by Ms. Gonzales
was in error, his opinion might be subject to change. The testing of those assumptions
was therefore a matter of some importance.

[156]     To a large
extent, however, the defence was unable to accurately test those conclusions. This
is because Dr. Adrian did not safeguard all of his records for the purpose
of this proceeding, even though he was specifically instructed to do so when he
was asked by Ms. Gonzales’ counsel to examine her and prepare his report.
In particular, he discarded the handwritten notes that he made at the time of
his examination of Ms. Gonzales. Accordingly, the defense submits that it
is impossible to determine from the report whether Dr. Adrian’s
conclusions are derived from Ms. Gonzales’ self-reporting of her symptoms (or
lack of symptoms) or from the clinical records that he reviewed and his
interpretation of those records.

[157]     I do not
accept as satisfactory Dr. Adrian’s contention that the facts cited in his
report came from Ms. Gonzales unless otherwise noted. For example, Dr. Adrian
noted that prior to the 2008 motor vehicle accident, Ms. Gonzales was not
experiencing regular recurring symptoms involving her neck and periscapular
area and she only had minor aches and pains associated with playing rugby.
Nevertheless, that is contradicted by Dr. Kirkpatrick’s notes that at the
time of the 2008 accident, she was only 80% recovered from the soft tissue
injuries arising from the 2002 motor vehicle accidents, a matter that was noted
by Dr. Adrian in his report. Access to his notes might have provided the
defence with a further basis upon which to test his assumptions.

[158]     In
addition, Dr. Adrian makes no detailed assessment of the clinical records
of Dr. Kirkpatrick or Ms. Storey concerning the type of complaints
and diagnoses that were identified as arising in the months following the 2008
motor vehicle accident and leading to the SOPAT. This is in contradistinction
to Dr. Regan’s analysis, as set out below, concerning the actual
complaints made over that time and the actual treatments performed on Ms. Gonzales.
Dr. Adrian himself suggested that notes made by a medical practitioner at
the time are probably more reliable than recollection of a patient concerning
symptoms.

[159]     Dr. Adrian
also agreed that rugby was a very physical sport and that labral tears could occur
while playing the sport or result from throwing a ball in a repetitive manner,
such as in baseball.

[160]     Dr. Adrian
also addressed the two major symptoms noted by Ms. Gonzales in support of
her argument: shoulder pain and reduced range of motion. During
cross-examination, Dr. Adrian conceded that shoulder pain and reduced
range of motion were not specific to labral tears; injury to the shoulder
muscles could result in these very same symptoms. In fact, he indicated that it
is not typical for labral tears to cause periscapular pain as a primary
symptom. He indicated that Ms. Gonzales did not report any further symptoms
consistent with a “silent” labral tear.

[161]     Dr. Adrian
noted the following in Ms. Gonzales’ reported history: “Immediately
following the impact, she experienced pain symptoms localized to her right
shoulder, over the anterior (front) aspect associated with tingling sensations
spreading into her right hand. She does not recall experiencing a specific pop
or instability involving her right shoulder.” Dr. Adrian confirmed that this
tingling sensation could have been neurological and not specific to any labral
tear.

[162]     Dr. Adrian
confirmed that he can’t say that the 2008 motor vehicle accident caused the
labral tear, but that it probably “materially contributed” to it becoming
symptomatic. He acknowledged, however, that “material contribution” is not a
medical term that he generally uses and that it is a legal term. He says that
the mechanism of the accident and the reported symptoms are consistent.

[163]     On cross-examination,
Dr. Adrian conceded that it is impossible to say whether Ms. Gonzales
had a labral tear prior to the 2008 motor vehicle accident. It is possible that
she had an asymptomatic labral tear at that time. He also indicated that in his
opinion, the labral tear became symptomatic after the SOPAT, as manifested by the
instability episode. He was definite in saying that the symptoms experienced by
Ms. Gonzales after the SOPAT were the strongest symptoms of a labral tear.

[164]     Dr. Adrian
holds Dr. Regan in high regard and, in fact, refers patients to him for
treatment. Dr. Adrian specifically defers to Dr. Regan in terms of
surgical expertise in relation to the shoulder, while Dr. Adrian considers
that his own expertise relates to non-surgical procedures.

[165]    
Once produced, Dr. Adrian was asked to review the May 1997 medical and
physiotherapy records. He provided a supplementary report dated March 9, 2012,
in which he concluded:

In summary, Ms. Gonzales probably suffered an injury to
her right shoulder in May 1997 that resolved over a brief period of time. She
experienced localized right shoulder pain shortly following the September 2008
motor vehicle accident consistent with suffering a soft tissue injury. She
experienced ongoing problems affecting her right shoulder following the 2008
accident when she suffered a spontaneous instability episode (subluxation)
involving her right glenohumeral joint in January 2009 while running. Ms. Gonzales
probably suffered a symptomatic labral tear in 2009 during a running incident
resulting in an episode of shoulder instability (subluxation). Ms. Gonzales
was experiencing ongoing localized right shoulder pain (consistent with an
ongoing disorder of the shoulder soft tissue structures) at the time of the
2009 incident that had been present since the September 2008 accident. In my
opinion, the injury suffered in the motor vehicle accident probably materially
contributed to the development of the symptomatic labral tear and the
instability episode that occurred in 2009.

[Emphasis added.]

[166]     It can be
seen that Dr. Adrian’s supplementary opinion is the same as before; that
is, the 2008 motor vehicle accident “materially contributed” to the labral tear
becoming symptomatic, largely as premised on Ms. Gonzales’ evidence that
she was experiencing “localized right shoulder pain" immediately after the
2008 motor vehicle accident.

(I)       Dr. William Regan

[167]     Dr. Regan
is an orthopaedic surgeon who has practiced in this field for the last 30 years.
He is educated and trained in the diagnosis and management of musculoskeletal
disorders, which includes the diagnosis and treatment of soft tissue injuries.

[168]     Dr. Regan’s
career to this point in time is indeed impressive. His resume is some 25 pages
long. He is a renowned medical specialist, with a focused practice relating to
the upper extremities — that is, the arms, particularly the shoulder and elbow.
He has authored many papers in relation to the shoulder joint that have been
published in peer-reviewed journals. He has also made numerous presentations
locally, nationally and internationally on topics involving the shoulder. Dr. Regan
is currently the team doctor for the Vancouver Canucks, an instructor at UBC,
and has acted as a mentor to many orthopaedic fellows specializing in the
shoulder.

[169]     Dr. Regan’s
qualifications were not in dispute and he was admitted as an expert in the
field of orthopaedic surgery, including musculoskeletal matters with
specialized expertise regarding the shoulder joint. I agree with the defence
that Dr. Regan was the most qualified medical practitioner called at this
trial to opine on shoulder injuries and, in particular, those to the right
shoulder joint.

[170]     Dr. Regan
was asked by the defence to prepare a medical legal report. He saw Ms. Gonzales
on one occasion on May 4, 2011, some 11 months after her surgery. He spent
about one hour with her during which he took a history from her and then
performed a physical examination. Prior to commencing the examination and
writing his report, he reviewed certain materials provided to him, including the
clinical records of Drs. Kirkpatrick and Eng from 2002, physiotherapy records of
Ms. Storey and notes of Dr. Kendall. He prepared a first report dated
May 4, 2011. Later still, when Dr. Kirkpatrick’s clinical records and the
physiotherapy records from 1997 were produced, he prepared a supplementary
report dated March 22, 2012.

[171]     Dr. Regan
noted the records of both the physiotherapist and Dr. Smith regarding Ms. Gonzales
reporting that she felt right shoulder pain and popping during the SOPAT. Dr. Regan
indicated that this was a subluxation. He explained the significance of the
SOPAT incident, noting that someone who has a subluxation/dislocation
immediately after a run will have more sense of instability in the shoulder. It
will feel worse and then will slowly improve.

[172]     Dr. Regan
also commented on the confusing state of affairs relating to the MRI, Dr. Smith’s
findings and the findings from the later surgery by Dr. Kendall. The
diagnosis from the MRI was that there was a “near circumferential labral tear,
small partial undersurface tear of the suprespinatus”. Later, Ms. Gonzales’
surgery was recommended by Dr. Smith on the basis of instability or
multidirectional laxity, although Dr. Regan notes that Dr. Smith was
the only medical professional to report this. Dr. Regan explained that
“ligamentous laxity” is simply looseness in the shoulder joint as a result of
which it “slides around”. He explained that such laxity is caused by a genetic
predisposition.

[173]     Dr. Regan
also noted that during the surgery, “there was a degenerative labral tear”
noted by Dr. Kendall, or as he put it, a “poor quality labrum”. He
explained that the labrum is a structure that is designed to provide more
stability to the shoulder joint. It is similar to a seal around a preservative
jar. The shoulder capsule or socket attaches to the labrum. Multiple recurrent
episodes of tension on that structure produce small little tears in the labrum.
In Dr. Regan’s view, what Dr. Kendall noted was fraying of the labrum,
which is an indication of microscopic tears from recurrent multiple small
episodes of tension producing a ratty appearance of the labrum (like on the end
of an old shoe lace). Dr. Regan described this as resulting from a series
of events in repetitive loading of force to the labrum that produced the tears,
which were degenerative in nature and not likely due to an isolated event. Dr. Kendall
therefore cleaned up or debrided the labrum during the surgery.

[174]    
Dr. Regan further explained: “Dr. Kendall states that
instability had not been her complaint but rather a dull achy pain with a sense
of catching. Therefore he repaired the biceps anchor.” Dr. Kendall felt
that reattaching the labrum to the glenoid should be done to help with the
popping and catching sensations. He put an anchor in, which is like putting a
cleat just in front of the labrum. He put a hook in the labrum and sewed it into
the bone.

[175]    
Dr. Regan commented on the causation issues. He found that Ms. Gonzales
had recurring pain in her neck and right trapezius muscle group accompanied by
right shoulder stiffness following her 2008 motor vehicle accident. This was
followed by her first subluxation event while doing the SOPAT. He concluded:

The September 16, 2008 accident also contributed to her
initial shoulder stiffness as she did have limited motion initially, but this
was recovered in six months by March 19, 2009, as recorded by Dr. Eng.
This, in spite of the fact that she has had repeat injury January 2009, right
shoulder, with a subluxation episode documented. I believe the responsibility
for the accident-related symptoms right shoulder largely ends in the spring of
2009. Since her problems of “feeling loose” did not completely resolve she
underwent an MRI followed by a surgical consult. The MRI done in November 2009
indicated an anterior labral tear which likely occurred with her subluxation
event, only unfortunately to be made markedly worse following her biceps labral
complex reconstruction done in August 2010.

Overall, I believe the motor vehicle accident had about a
six-month responsibility for her shoulder complaints, but has no responsibility
of her ongoing issues. Her specific right shoulder stiffness came on following
her accident of September 15, 2008, but was resolved according to Dr. Eng’s
records, by March 2009. As a result, the September 16, 2008 accident has no
responsibility for her ongoing symptoms. These symptoms of stiffness were not
present after March, 2009 and have been made markedly worse following her
surgery of August 2011 [sic].

…

Her right shoulder condition as is currently exhibited on the
physical examination is markedly different than it was following the accident.
She had pain in the posterior aspect of the shoulder in the region of the trapezius
muscle groups and mild limitation of motion that recovered fully by March 19,
2009. She had no anterior shoulder pain as evidenced by Dr. Derek Smith’s
consultation April 8, 2010, and only three vertebral levels loss of internal
rotation. Following the surgery, her shoulder pain is now anterior in nature plus
she has marked stiffness. I believe her current condition is related to post-operative
complications of stiffness following the anterior labral bicep repair.

…

The subluxation that occurred
following the running event did produce her only documented evidence of
shoulder subluxation which then produced her symptoms as illustrated in Dr. Derek
Smith’s letter of instability, creptitus and popping in the shoulders. I do not
believe the accident had any involvement with respect shoulder instability.

[176]     Dr. Regan
concluded that Ms. Gonzales’ current condition related to post-operative complications
rather than to damage incurred from the 2008 accident. He describes the SOPAT
incident as the only documented evidence of shoulder subluxation producing the
symptoms which were later identified by Dr. Smith as shoulder instability
and which, in turn, led to the surgery. It is significant that Dr. Regan
notes that Ms. Gonzales had no anterior shoulder pain prior to her
meeting with Dr. Smith, whose examination disclosed no anterior pain. It
was only after the surgery when she complained of significant pain in the front
of her shoulder.

[177]     On cross-examination,
Dr. Regan rejected the proposition that the 2008 motor vehicle accident had caused the shoulder injury, stating that after her
accident, Ms. Gonzales had symptoms of neck and trapezius pain, limited
adduction of her shoulder and pain at the back of her shoulder almost
exclusively. Then she had the event during the SOPAT when she subluxed her
shoulder, after which she had a shift of the type of shoulder symptoms. Those later
symptoms did not arise in the time immediately after her accident and before
the SOPAT.

[178]    
As noted above, in light of the medical records that were produced
during the trial, Dr. Regan prepared a supplementary report, in which he
confirmed his previous opinion:

The overwhelming evidence in this case is that Ms. Gonzales
had a previous problem with a labral tear, likely as a result of her pitching
endeavors as she functioned as a competitive pitcher prior to the accident in
question. There is documentation of shoulder subluxation with pain over the
biceps, likely the initiating event of her biceps tendinopathy / tear. In
contrast, there is no evidence of instability following her motor vehicle
accident of September 16, 2008. There was recurrence of her myo-fascial pain
that gradually resolved, and it was only 3 months later that she had another
subluxation event while running, inciting more clicking and a sense of
instability.

It is clear she had a prior
subluxation of her shoulder, which is likely (i.e. greater than 50 percent) the
source of her labral tear and the biceps labral injury pattern is likely
secondary to her baseball pitching. I do not believe the motor vehicle accident
had any involvement of producing or extending a labral tear.

[179]     Dr. Regan’s
conclusions arising from a review of the physiotherapy records after the
accident were not shaken on cross-examination. In relation to the September 22,
2008 notation of Ms. Storey, her first clinical note after the accident, Dr. Regan
felt that the immediate pain and weakness of the shoulder noted by Ms. Storey
had to be taken in context with the remainder of the clinical note, which
showed that neck pain on the right was greater than on the left, combined with
a very strong headache. Dr. Regan confirmed that neck pain which radiates
to the right trapezius area could cause pain in the right shoulder joint. It is
not necessarily a sign of labral or rotator cuff pathology. In fact, this was
the same pain that Ms. Gonzales complained of before the 2008 motor
vehicle accident which arose from the 2002 motor vehicle accidents.

[180]     Accordingly,
Dr. Regan concluded that the labral tear was likely caused by Ms. Gonzales’
baseball pitching and throwing motions over a prolonged period of time, particularly
in light of the documented biceps tendon pain and subluxation noted in the 1997
records. This is consistent with his conclusion that the extremely “friable”
nature of the labrum noted by Dr. Kendall is indicative of degeneration
from a series of events and repetitive loading of the labrum, and not likely
due to an isolated event.

[181]     Dr. Regan
also rejected the contention that the physiotherapy records from the time
following the 2008 motor vehicle accident supported the position that the
accident caused a shoulder joint injury. Dr. Regan notes that the records
indicate that Ms. Gonzales had pain radiating into her arm. He notes that
this is a very nonspecific finding and is often recorded in individuals with
strain pattern involving upper extremities. He notes that there is no sign of
biceps tenderness from the physiotherapist or from Ms. Gonzales’ family
physician. He also notes that there is no evidence of instability recorded at
that time and, in particular, that her shoulder was recorded as being stiff by
the physiotherapist just following the accident on September 22, 2008.

[182]     Dr. Regan
indicated that, in addition to labral tears being caused by the baseball
pitching motion, labral tears are also associated with playing rugby, particularly
in the position of hooker.

[183]     During cross-examination, Dr. Regan agreed that labral tears
are difficult to diagnose. They can be classified in four main types, one of
which is Type II. This is where, in addition to fraying and degenerative
changes, there is a lifting off of the labrum from the socket. Ms. Gonzales’
report of popping and snapping directly in front of shoulder is one of the
symptoms of the Type II or SLAP lesion.

[184]     Dr. Regan
agreed that it was possible that such a labral tear could be asymptomatic over
many years.

[185]     Dr. Regan
also agreed that it would be possible for a rear-end collision to cause a
labral tear, but he would expect to see a posterior tear rather than an
anterior tear as was found in Ms. Gonzales’ case. Dr. Kendall found
no obvious tear in the posterior of the labrum during the surgery.

[186]     During cross-examination, Dr. Regan gave his opinion that the
SOPAT running incident was responsible for the MRI results that led to the
surgery. He confirmed there were no other episodes of instability recorded in Ms. Gonzales’
history. Other than the 1997 softball event, the running incident was the only other
event. Dr. Regan confirmed that instability can occur 12 years apart in
relation to the same labral tear. He felt that subluxations produced labral
tears, and that they were not a symptom of labral tears. He felt that the
subluxation taking place during the SOPAT made more sense in light of the
injuries suffered by Ms. Gonzales in 1997. He considered that it was a
recurring problem for her.

[187]     In conclusion, Dr. Regan’s opinion was that Ms. Gonzales’ surgical
condition arose out of the pre-accident condition of her torn and frayed right
shoulder labrum and the “lifted” biceps tendon which was first noted to be
symptomatic in 1997. He also concluded that her right shoulder condition was
made symptomatic ― or
unstable ― as a result of
the SOPAT incident which led to the surgery, but that this had nothing to do
with the soft tissue injuries sustained in the 2008 motor vehicle accident.

Law

(i)       Causation

[188]     The
plaintiff must establish, on a balance of probabilities, that the defendant’s
negligence caused or materially contributed to an injury. The defendant’s
negligence need not be the sole cause of the injury so long as it is part of
the cause beyond the de minimis range. Causation need not be determined
by scientific precision: Athey v. Leonati, [1996] 3 S.C.R. 458 at paras. 13-17.

[189]     The
primary test for causation asks: but for the defendant’s negligence, would the
plaintiff have suffered the injury? The “but for” test recognizes that
compensation for negligent conduct should only be made where a substantial
connection between the injury and the defendant’s conduct is present: Resurfice
Corp. v. Hanke, 2007 SCC 7 at paras. 21-23.

[190]     In special
circumstances, where the “but for” test proves unworkable, the court may apply
a “material contribution” test. Application of the “material contribution” test
has two requirements: (1) for reasons outside of the plaintiff’s control,
it is impossible to prove that the negligence caused the injury using the “but for”
test; and (2) the defendant breached a duty of care owed to the plaintiff,
thereby exposing the plaintiff to an unreasonable risk of injury, and the
injury falls within the ambit of the risk created: Resurfice Corp. at paras. 24-28.

[191]    
Both parties agree that the “but for” test applies in this action,
notwithstanding Dr. Adrian’s use of the phrase “material contribution” in
his opinions.

[192]    
Causation must be established on a balance of probabilities before
damages are assessed. As McLachlin, C.J.C. stated in Blackwater v. Plint,
2005 SCC 58:

[78]      It is
important to distinguish between causation as the source of the loss and the
rules of damage assessment in tort. The rules of causation consider
generally whether “but for” the defendant’s acts, the plaintiff’s damages would
have been incurred on a balance of probabilities. Even though there may be
several tortious and non-tortious causes of injury, so long as the defendant’s
act is a cause of the plaintiff’s damage, the defendant is fully liable for
that damage. The rules of damages then consider what the original position of
the plaintiff would have been. The governing principle is that the
defendant need not put the plaintiff in a better position than his original
position and should not compensate the plaintiff for any damages he would have
suffered anyway: Athey. …

[193]    
The “but for” test was affirmed in Clements (Litigation Guardian of)
v. Clements, 2010 BCCA 581 as the primary or default test for causation:

[40]      Causation is a fundamental element of liability for
negligence. A person who suffers harm is entitled to compensation from
those who caused that harm. The but-for test is the method by which
factual causation is established. The way the test works is described in
Linden and Feldthusen, Canadian Tort Law, 8th ed. (Markham, Ont.: 
LexisNexis Butterworths, 2006) at 116:

[I]f the accident would not have occurred but for the
defendant’s negligence, this conduct is a cause of the injury. Put another
way, if the accident would have occurred just the same, whether or not the
defendant acted, this conduct is not a cause of the loss. Thus the act
of the defendant must have made a difference. If the conduct had
nothing to do with the loss, the actor escapes liability.
[Emphasis added.]

[194]    
As was stated by Mr. Justice Butler in Ng v. Sarkaria, 2011
BCSC 1643:

[10]      The most basic
principle of tort law is that the plaintiff must be placed in the position he
or she would have been if not for the defendant’s negligence, no better or
worse. The tortfeasor must take his or her victim as they find them, even if
the plaintiff’s injuries are more severe than they would be for a normal person
(the thin skull rule). However, the defendant need not compensate the plaintiff
for any debilitating effects of a pre-existing condition which the plaintiff
would have experienced anyway (the crumbling skull rule): Athey v. Leonati,
at paras. 32-35.

(ii)      Adverse Inference

[195]    
The defence submits that an
adverse inference should be drawn because Dr. Kendall did not provide any
expert report in support of Ms. Gonzales’ case.

[196]    
After some negotiations, a meeting
was scheduled between Dr. Kendall and both counsel in July 2011. Just
before the meeting, Dr. Regan’s initial report was served on Ms. Gonzales’
counsel. Ms. Gonzales’ counsel subsequently refused to agree to a meeting,
and Dr. Kendall refused to meet in those circumstances.

[197]    
Dr. Kendall was asked by Ms. Gonzales’
counsel to prepare a report for this case and he did so in November 2011. This
report was not served and Ms. Gonzales declined to waive privilege over
the report.

[198]    
In January 2012, Dr. Kendall
was served with a subpoena by the defence in order to obtain his lay evidence
before trial. Afterwards, Ms. Gonzales’ counsel and Dr. Kendall
agreed to a meeting, which took place in early February 2012 just prior to the
commencement of trial. Apparently, Dr. Kendall discussed both the factual
evidence and his opinions at that meeting. The day after the meeting, Ms. Gonzales’
counsel requested that Dr. Kendall provide an addendum report, again
presumably for the purpose of the trial. This would have been surprising since the
initial report had not been served, and certainly both the original report and
any addendum report would have been out of time under the Rules in terms
of presenting them at trial.

[199]    
Despite all this, no report or
addendum report from Dr. Kendall was served on the defence for the
purposes of trial. This was so even in light of the adjournment of the trial
into April 2012, although I note again that service at that time would have also
been outside of the limits provided for in the Rules.

[200]    
The defence cites Kinnersley v. Sansregret, [1981] B.C.J. No. 136
(S.C.) at para. 20, as an example where an adverse inference was drawn where
treating physicians of the plaintiffs provided no evidence at trial.

[201]    
The modern approach to this issue is as set out in Buksh v. Miles,
2008 BCCA 318 at paras. 30-35. There, the Court held that the threshold
question is whether a reasonable inference can be drawn that the witness was
not called because he or she would have given evidence detrimental to that party’s
case:

[35]      In
this environment, and bearing in mind the position of a lawyer bound to be
truthful to the court, it seems to me there is a threshold question that must
be addressed before the instruction on adverse inferences is given to the jury:
whether, given the evidence before the court, given the explanations proffered
for not calling the witness, given the nature of the evidence that could be
provided by the witness, given the extent of disclosure of that physician’s
clinical notes, and given the circumstances of the trial … a juror could
reasonably draw the inference that the witness not called would have given
evidence detrimental to that party’s case. …

[202]     Somewhat
similar circumstances were addressed in Bouchard v. Brown Bros. Motor Lease
Canada Ltd., 2011 BCSC 762 at paras. 118-122. In that case, the
defendants argued that the plaintiff had failed to call the neurosurgeon who
operated on the plaintiff and who was, in their view, in the best position to provide
opinion evidence concerning the degeneration of the plaintiff’s spine and an opinion
on issues of causation and future treatment. Similar to this case, there had
been full disclosure of the doctor’s consultation and operative reports, which were
made available to the defence. The court found that the defendants could have
interviewed the doctor and called him if they wished. That is the same
situation here. Finally, the court found that other medical doctors were in a
position to provide opinions on the extent of the plaintiff’s disability and
his requirements for future care. In those circumstances, a further report was
found to have been of little utility.

[203]     The latter point has some resonance in this case. Dr. Kendall
was the surgeon who had the clearest insight into the condition of Ms. Gonzales’
shoulder. Dr. Adrian — who
would arguably be the other doctor who provided whatever opinion Dr. Kendall
did not provide — does not profess
any surgical expertise and, in fact, defers to surgeons, including Dr. Regan,
in that regard. To that extent, one might say that Dr. Kendall’s opinion
on the critical causation issue would have been superior to that of Dr. Adrian:
see Buksh at para. 30; Sidhu v. Johal, 2012 BCSC 587 at para. 79.

[204]     In
addition, I have not been provided with any explanation for the failure to call
Dr. Kendall as a witness. Since a report was prepared by Dr. Kendall
as far back as November 2011, there could be no explanation along the lines
that it was too costly to proffer his opinion. Also, the circumstances in which
Ms. Gonzales’ counsel withdrew his consent for defence counsel to meet
with Dr. Kendall in July 2011, only allowing such a meeting in the face of
the subpoena, raise the specter of the defence not having had full access to Dr. Kendall
save and except to discuss his medical records. It is clear, however, that
during the February 2012 meeting, Dr. Kendall fully discussed his opinions
with defence counsel. Even though Dr. Kendall’s opinions were disclosed to
the defence just prior to the commencement of the trial in February 2012, no
arguments have been made that his opinions would have been contrary or
detrimental to Ms. Gonzales’ case.

[205]     In my view, this is a troublesome issue and the overall
circumstances could support a decision to draw an adverse inference regarding Dr. Kendall’s
opinion. My conclusion, however, is that I need not decide whether an adverse
inference should be drawn, particularly given my overall conclusions in respect
of the evidence adduced at trial on the issue of causation.

(iii)     Minimal
Impact Issue

[206]    
I will briefly address one aspect of the
submissions from the defence regarding the low impact of the collision, namely,
what is to be taken from that fact.

[207]     Evidence of the damage caused and the impact generally can be one of
many factors considered by the court in determining what injuries, if any, were
caused by the accident: see, e.g., Koonar v. Schleicher, [1997] B.C.J. No. 3054
(P.C.) at paras. 30-33.

[208]    
In Miller v. Darwel, 2005 BCSC 759, the court
stated:

[9]  On
appeal, the claimant argues that the trial judge erred in considering the force
of the impact of the collision on the issue of liability. In support of this
position the claimant relies upon the case of Gordon v. Palmer (1993),
78 B.C.L.R. (2d) 236 (B.C.S.C.) in which Thackray,
J. (as he then was) said at para. 4:

I do not subscribe
to the view that if there is no motor vehicle damage then there is no injury.
This is a philosophy that the Insurance Corporation of British Columbia may
follow, but it has not application in court. It is not a legal principle of
which I am aware and I have never heard it endorsed as a medical principle.

[10]  As
other judges who have considered this passage have already said, these words
should not be taken to mean that the extent of damage in a collision is
irrelevant to causation. It is some evidence of impact, which is not logically
unrelated to injury.

[11]  I
agree with Taylor, J. in Yeh v. Ford Credit Canada Ltd., [1996]
B.C.J. No. 1400 (B.C.S.C.), when he said at para. 7:

Such evidence is therefore relevant with
respect to what injuries resulted from the impact and to the issue of the
credibility of the plaintiff who asserts such injuries, by reason of the fact
that such injuries often do not have objective symptoms. Such evidence may,
depending upon the extent of the property damage, either contradict or
corroborate evidence of personal injury.

[209]    
More recently, Mr. Justice Macaulay stated
in Lubick v. Mei and another, 2008 BCSC 555 at para. 5, that
“[t]he Courts have long debunked as myth the suggestion that low impact can be
directly correlated with lack of compensable injury.”

[210]     I agree that this was a low impact collision, as discussed earlier
in these reasons. As such, it is a factor to be considered when assessing Ms. Gonzales’
claims of injury, particularly as they relate to her right shoulder.

Discussion

(i)       Causation

[211]      There is no issue here that Ms. Gonzales suffered soft tissue
injuries to her neck and back area as a result of the accident. Liability for
those injuries has been conceded. The only causation issue that remains is
whether the 2008 accident was a cause of the injury to Ms. Gonzales’ right
shoulder joint.

[212]     It is
evident from the complicated medical history of Ms. Gonzales that there
are a myriad of possible explanations, going back as early as 1997, for the origination
and aggravation of the right shoulder pathology that was discovered during her
surgery in August 2010. Possible explanations include:

a)    the
shoulder subluxation in May 1997;

b)    the
repetitive strain on her shoulder arising from years of pitching in softball;

c)     the
strain on her shoulders arising from her years of playing competitive rugby and,
in particular, playing in the hooker position;

d)    the
September 2008 motor vehicle accident;

e)    physically
demanding work-related activities, including lifting animals; and

f)     
the January 2009 SOPAT incident.

[213]     Despite
the substantial medical expertise that has been brought to bear on this matter
(including that adduced at trial), it is readily apparent that it is impossible
to determine with certainty which one or number of the above matters truly
caused the shoulder injury and any aggravation of the injury over time. As
pointed out by Ms. Gonzales’ counsel, without having more detailed and
accurate medical evidence (such as an MRI) from just before and after the 2008 accident,
it is also impossible to determine with certainty what contribution, if any, to
that injury was caused by the 2008 accident. No such evidence exists.

[214]     In those
circumstances, the court must consider the overall factual circumstances and
medical opinion evidence in an attempt to determine whether Ms. Gonzales
has proved, on a balance of probabilities, that the 2008 accident caused or
aggravated that injury, beyond a de minimis range.

[215]     Prior to
the 2008 accident, Ms. Gonzales had suffered the incident in May 1997
where her shoulder had subluxed and she was diagnosed with tendonitis in her
right bicep. Dr. Regan’s opinion was that this was more than likely the
source of her labral tear. Dr. Adrian agrees that a labral tear was
possible given the symptoms noted at that time.

[216]     While Dr. Adrian
indicated in his second report that this 1997 injury was “resolved over a brief
period of time”, this conclusion does not mean that no labral tear was caused
by that incident or that a labral tear was not present at that time. Dr. Adrian
conceded that he was unable to say what Ms. Gonzales’ shoulder joint pathology
was arising from that incident. Nevertheless, I accept Dr. Regan’s opinion
that the condition of the labrum found by Dr. Kendall, in that the labrum
was “friable” or frayed, indicated that the tears or fraying of the labrum had
occurred over a long period of time as a result of Ms. Gonzales’ sports
activities, likely her softball pitching. The frayed nature of the labrum does
not suggest that the damage resulted from a one-time incident such as the 2008 motor
vehicle accident.

[217]     Ms. Gonzales
points to her various and extensive sporting activities that she was involved
in even after the 1997 incident and until the 2008 motor vehicle accident. I
agree that she continued to play her sports at a very competitive level and
that she continued to be a physical and aggressive player over that time. Nevertheless,
the medical professionals all conceded that it is possible that a labral tear
was present, but simply asymptomatic at that time. I also consider that Ms. Gonzales
would likely have “pushed” through any difficulties given her personality. Ms. Gonzales
herself admitted to shoulder pain after playing rugby.

[218]     Based on
the evidence from Dr. Kirkpatrick, which I accept, it appears that the
2002 motor vehicle accidents only resulted in soft tissue injuries to Ms. Gonzales
and that they were resolved to the extent of 80% at the time of the 2008 motor
vehicle accident.

[219]     Based on
the medical evidence, I find as a fact that Ms. Gonzales’ right labrum was
significantly injured — torn and frayed — prior to the 2008 accident, but remained
asymptomatic at the time of the 2008 motor vehicle accident.

[220]     On the
other side of the timeline is the SOPAT incident which happened in January
2009. Dr. Adrian indicated in his evidence that she probably suffered a
symptomatic labral tear during this test, which resulted in shoulder
instability and led to the surgery. Dr. Regan agrees that this event also
likely resulted in tearing of the labrum.

[221]     Dr. Adrian,
however, gave his opinion that the 2008 accident “materially contributed” to
the development of the labral tear becoming symptomatic and the instability
episode during the SOPAT. As noted above, this is a legal test that does not
apply to this case; I am required to determine if the injury would not be
present “but for” the 2008 motor vehicle accident.

[222]    
I agree with the defence that Ms. Gonzales, in large part,
relies on the contention that since her shoulder joint problems became evident
after the 2008 motor vehicle accident, they must have been caused by the
accident. This approach was somewhat indicative of the reports of Drs. Adrian
and Eng, although such a simplistic approach to causation is not particularly
helpful; more importantly, it is not reliable. In White v.
Stonestreet, 2006 BCSC 801, Mr. Justice Ehrcke
addressed a similar argument:

[74]      The inference from a temporal
sequence to a causal connection, however, is not always reliable. In fact, this
form of reasoning so often results in false conclusions that logicians have
given it a Latin name. It is sometimes referred to as the fallacy of post
hoc ergo propter hoc: “after this therefore because of this.”

[75]      In
searching for causes, a temporal connection is sometimes the only thing to go
on. But if a mere temporal connection is going to form the basis for a
conclusion about the cause of an event, then it is important to examine that
temporal connection carefully. Just how close are the events in time? Were
there other events happening around the same time, or even closer in time, that
would provide an alternate, and more accurate, explanation of the true cause?

[223]     Dr. Adrian’s
report stated that Ms. Gonzales was experiencing ongoing problems
affecting her right shoulder after the 2008 motor vehicle accident. In fact,
this was the fundamental basis upon which he formed his opinion that the 2008
motor vehicle accident was at least one cause of the labral tear becoming
symptomatic.

[224]     I turn to
a consideration of the evidence said to support the contention that the 2008
motor vehicle accident was a cause of the shoulder injury.

[225]     In the first
instance, Ms. Gonzales argues that prior to the accident, she played
various sports, and in particular, competitive rugby, without restriction
beyond some bumps and bruises and a fractured arm. I accept that Ms. Gonzales
did play at a very high level of sport and that she played very competitively
and physically after both the May 1997 incident and her 2002 motor vehicle
accidents.

[226]     I also
accept that by the spring of 2009, Ms. Gonzales had medical problems
relating to her shoulder that materially and negatively affected her ability to
play sports. This was confirmed by her own evidence and by the evidence of Ms. Kuz.
By the spring of 2009, however, she had suffered a further injury arising from
the SOPAT which might explain that situation. In addition, she had returned to
playing competitive rugby which, by reason of the forces applied to Ms. Gonzales’
shoulder by hooking and boosting activities, could also explain this
deterioration.

[227]     The
difficulty lies in linking the later difficulties in the spring of 2009 with
the September 2008 motor vehicle accident. As mentioned earlier in these
reasons, Ms. Gonzales now suggests that, in addition to her soft tissue
injuries, she was experiencing difficulties with her right shoulder joint
immediately following the 2008 motor vehicle accident. That she was
experiencing these types of difficulties was not supported by the evidence of her
family members, including her sister and grandfather, who had little knowledge
of her medical condition. In fact, Fred Messenger understood that she was
experiencing the same difficulties (i.e. soft tissue injuries) as with the
prior accidents.

[228]     Importantly,
the medical evidence also does not support that Ms. Gonzales reported any
such symptoms. Dr. Kirkpatrick indicated that no complaints of right
shoulder pain were reported by Ms. Gonzales and that if she had reported
any, she would have been treated. Ms. Gonzales’ evidence regarding her
complaints to Dr. Kirkpatrick was unclear and vague; and in large part, it
related to her soft tissue injuries or to the shoulder generally and not
specifically to the shoulder joint.

[229]     Ms. Gonzales
relies quite heavily on the records of Ms. Storey as to her complaints
regarding her right shoulder. I have already reviewed Ms. Storey’s
evidence in some detail above. I conclude that these records do not, in fact,
record any specific complaints about right shoulder pain, but rather document
symptoms consistent with soft tissue injuries which are acknowledged to have
been suffered by Ms. Gonzales from the 2008 motor vehicle accident;
although it must be pointed out that such symptoms are not necessarily
inconsistent with a labral injury having occurred.

[230]      The
records relating to the SOPAT, including Ms. Gonzales’ self report of her
medical condition and Dr. Kirkpatrick’s report of symptoms and her medical
assessment, do not refer to any right shoulder joint problems.

[231]     In fact,
as mentioned above, the first recorded medical record regarding any problem
with the shoulder joint was Ms. Storey’s note from October 5, 2009
which recorded Ms. Gonzales reporting that her shoulder was “very clicky”.
Even before that, Dr. Eng did not report any difficulties with Ms. Gonzales’
right shoulder regarding pain or any other matter beyond the soft tissue
injuries that had been reported from the outset.

[232]     I find as
a fact that Ms. Gonzales did not report any symptoms relating to her right
shoulder joint to Dr. Kirkpatrick or Dr. Eng prior to early 2010. I
also find as a fact that Ms. Gonzales did not report any symptoms relating
to her right shoulder joint to Ms. Storey until October 2009.

[233]     I accept
that the evidentiary value of medical records in terms of supporting or
refuting other evidence, such as symptoms, must be considered in the overall
circumstances and, in some cases, considered with some skepticism: Edmondson
v. Payer, 2011 BCSC 118 at paras. 34-37, aff’d 2012 BCCA 114. In
addition, the absence of reported symptoms is not necessarily evidence that no
symptoms existed. Nevertheless, the facts here are unlike those addressed in Edmondson,
where reported symptoms ceased in the clinical records sometime after the
accident. In this case, the medical records overwhelmingly support the proposition
that, though she obtained substantial medical treatment over that entire period
of time, no complaints of right shoulder pain were reported at all by Ms. Gonzales
until some 13 months after the 2008 motor vehicle accident.

[234]      Ms. Gonzales
gave her evidence in a measured and straightforward manner. I do not consider
that she was trying to mislead the court in terms of what she said were her
symptoms immediately following the accident. Overall, however, I consider that
she was quite vague in providing details concerning her condition following the
2008 motor vehicle accident. In addition, I consider that her evidence as to
her reported symptoms is as a result of a quite human attempt to remember, reconstruct
and explain in hindsight what became known at a later point in time.

[235]     No lay
witnesses gave evidence to confirm her right shoulder complaints made either
immediately after the 2008 accident or in the months following. This included
her boyfriend, Mr. Molina, who took her to the hospital and who could only
refer generally to “shoulder” complaints.

[236]     Having
considered all the evidence and particularly that of Ms. Gonzales, and
having considered Ms. Gonzales’ evidence in light of the medical evidence,
I find as a fact that Ms. Gonzales did not suffer any symptoms relating to
her right shoulder joint after the 2008 motor vehicle accident up to the time
of the SOPAT in January 2009.

[237]      The
medical opinion evidence must now be considered in light of my findings as
above.

[238]     The
medical professionals, with the exception of Dr. Kirkpatrick, all agreed that
the 2008 motor vehicle accident and the mechanics of that accident could be
consistent with a labral injury or tear.

[239]     Dr. Adrian’s
opinions were clearly based on Ms. Gonzales’ reports that she was having
ongoing symptoms involving her right shoulder joint. Having now decided that
she did not in fact have those symptoms, Dr. Adrian’s opinions are of
little evidentiary value, a matter that he even concedes. Dr. Adrian further
stated that her localized shoulder pain was consistent with an “ongoing disorder
of the shoulder soft tissue structures” that was present at the time of the
SOPAT. Dr. Regan agrees that this was Ms. Gonzales’ complaint
immediately after the 2008 accident.

[240]     Dr. Eng’s
report on the causation issue was not particularly forceful in stating: “I think
that [Ms. Gonzales’] involvement in this MVA may have contributed
to some pre-existing, asymptomatic pathology in the labrum to bring on the
symptoms in Ms. Gonzales’ right shoulder”. I take her opinion to suggest
that this was a possibility, but this does not support that the legal threshold
has been met. She also relied on Ms. Gonzales’ history of “immediate
symptoms” as relating to the right shoulder joint, which I have rejected. In
addition, Dr. Eng’s opinion was given in the face of the expert opinions
of Dr. Regan, who is clearly more qualified in this area than her. In all
these circumstances, including my earlier stated skepticism of her
independence, I place no weight on Dr. Eng’s opinion.

[241]     What
remains from the expert medical evidence is the opinion evidence of Dr. Regan,
whose qualifications and expertise in this area are unquestioned. He provided
two opinions, which resulted in a full review of all the medical evidence including
the 1997 shoulder subluxation incident, the 2002 motor vehicle accidents, the
2008 motor vehicle accident, the SOPAT incident, and the medical procedures
that followed from that time. He also examined Ms. Gonzales, took her
history and considered reports of her symptoms from time to time. His opinion
was overwhelmingly that the 2008 motor vehicle accident had no involvement in
producing or extending the labral tear. I consider that, in large part, his
opinion was unshaken during cross-examination by Ms. Gonzales’ counsel.

[242]     I am
unable to find that the 2008 motor vehicle accident caused further pathology in
Ms. Gonzales’ right shoulder. I have considered all of the evidence: the
evidence regarding Ms. Gonzales’ history; her reported symptoms after the
accident, as found by me; and the medical evidence, including the opinion of Dr. Regan.
I accept the opinions of Dr. Regan as to the cause of the labral tear and
the lack of involvement of the 2008 motor vehicle accident in contributing to
that tear, particularly where they differ from those of Drs. Adrian and Eng. There
are many possible explanations for Ms. Gonzales’ shoulder problems,
beginning with the labral injuries arising from the 1997 incident and the
repetitive strain by reason of her sports activities, and continuing with
events after September 2008, including her work-related physical duties, the
SOPAT incident, and her continuing rugby playing.

[243]     Ms. Gonzales
submitted that this is a case involving indivisible injuries, citing B.P.B.
v. M.M.B., 2009 BCCA 365, leave to appeal ref’d [2010] S.C.C.A. No. 90
(S.C.C.) and Bradley v. Groves, 2010 BCCA 361. I do not agree. In my
view, the underlying finding of causation has not been made out here, which is
a precondition to the assessment of damages on this basis. In fact, the defence
agreed that if causation was made out in relation to the shoulder joint injury,
then Mr. Voskakis was fully liable for all damages arising from Ms. Gonzales’
present condition, notwithstanding any other tortious or non-tortious causes.

[244]     In
conclusion, I do not consider that Ms. Gonzales has proved, on a balance
of probabilities, that the 2008 motor vehicle accident was a cause of her
shoulder joint pathology which was later identified in 2009 and which led to
her 2010 surgery and present difficulties.

[245]     I accept the defence’s contention that the 2008 motor vehicle
accident caused only minor soft tissue injuries to Ms. Gonzales’ neck and
periscapular area and that this was an aggravation of injuries sustained in the
2002 motor vehicle accidents. In addition, I accept the defence’s contention,
as supported by Dr. Regan’s opinion, that these injuries returned to their
baseline within six months of the accident, around March 2009. Based on Dr. Kirkpatrick’s
evidence, which I found to be an accurate portrayal of Ms. Gonzales’ own
assessment of her injuries at the time and which evidence I accepted, she was
80% recovered from her injuries suffered in the 2002 motor vehicle accidents at
the time of the 2008 motor vehicle accident.

(ii)      Non-Pecuniary Damages

[246]      Non-pecuniary
damages are awarded to compensate the plaintiff for pain, suffering, loss of
enjoyment of life, and loss of amenities. The compensation awarded should be
fair to all parties, and fairness is measured against awards made in comparable
cases. Such cases, though helpful, serve only as a rough
guide. Each case depends on its own unique facts: Trites v. Penner,
2010 BCSC 882 at paras. 188-189.

[247]    
In Stapley v. Hejslet, 2006 BCCA 34, the Court outlined the
factors to be considered when assessing non-pecuniary damages:

[46]      The inexhaustive list of common factors cited in Boyd
[Boyd v. Harris, 2004 BCCA 146] that influence an award of non-pecuniary
damages includes: 

(a) age of the plaintiff;

(b) nature of the injury;

(c) severity and duration of
pain;

(d) disability;

(e) emotional suffering; and

(f) loss or impairment of
life;

I would add the following factors, although they may arguably
be subsumed in the above list:

(g) impairment of family,
marital and social relationships;

(h) impairment of physical and
mental abilities;

(i) loss of lifestyle; and

(j) the plaintiff’s stoicism (as a factor that should
not, generally speaking, penalize the plaintiff: Giang v. Clayton,
2005 BCCA 54).

[248]     The
assessment of non-pecuniary damages is necessarily influenced by the individual
plaintiff’s personal experiences in dealing with his injuries and their
consequences, and the plaintiff’s ability to articulate that experience: Dilello
v. Montgomery, 2005 BCCA 56 at para. 25.

[249]     The assessment must be made for a soft tissue injury over an
approximately six-month period. During this time, Ms. Gonzales sought
medical treatment and treatment from a physiotherapist.

[250]     The accident has had some nominal effect on Ms. Gonzales’
everyday life. She was able to return working at her veterinary office job
shortly after the accident. She was unable to play rugby, her passion, immediately
after the accident. But she slowly returned, starting in November 2008 (at
which time she was even “boosting”), and had essentially returned to full play
by the start of the season in February 2009. No other factors were raised by Ms. Gonzales
in relation to the soft tissue injuries suffered in the period of time from
September 2008 until March 2009.

[251]     The defence submits that the award should not exceed $20,000. He relies
on the following cases, which involve plaintiffs who had compensable soft
tissue injuries and later injuries which were rejected at trial as compensable:

a)   
Chandra v. Chen,
2010 BCSC 838. The plaintiff alleged left shoulder, arm and lower back
injuries. Prior to the accident, the plaintiff had a modest history of
occasional back and neck stiffness, had been experiencing some stresses at
work, and had complaints of knee and shoulder pain with heavy duties at her
job. It was not established that forearm pain that developed 14 months after
the accident was related to the injuries suffered in the accident. The court
awarded the plaintiff $20,000.

b)   
Gabrilo v. Greater Vancouver Transportation
Authority, 2008 BCSC 1333. The plaintiff alleged
injury to his shoulder. His shoulder pain was ongoing, and was aggravated eight
months later due to the plaintiff’s use of crutches after an unrelated injury
to his heel. The aggravation of the plaintiff’s shoulder pain was not
compensable, but soon after suffering the heel injury the plaintiff was found
to have noticeable tenderness and muscle wasting in his shoulder, which
indicated that the plaintiff continued to suffer ongoing effects from the motor
vehicle accident. Had the subsequent heel injury not occurred, the plaintiff’s
shoulder should have resolved by the time of trial. The plaintiff’s ability to
work as a painter was significantly affected by his shoulder injury, but he was
able to move into a supervisory role that was less affected by his shoulder
discomfort. He had not shown that any ongoing shoulder symptoms were a result
of the accident and no award was made for loss of future earning capacity. The
court awarded the plaintiff $13,000.

c)    
Hough v. Wyatt,
2011 BCSC 910. The plaintiff alleged injuries to his wrist, knee, neck, and
lower back that disabled him from working and continued at the time of trial.
He also claimed that a wrist fracture suffered more than a year after the
accident was caused by the accident because it resulted from a fall that he
suffered due to leg weakness from injuries suffered in the accident. Prior to
the accident, the plaintiff had suffered from longstanding serious neck and
back pain. The court found that the accident caused a minor aggravation of the plaintiff’s
pre-existing neck, shoulder and back problems. The only new injury caused by
the accident was the sprain injury to his wrist that continued to bother him at
the time of trial, more than two years post-accident. His subsequent wrist
fracture was not shown to have been caused by the accident. The court awarded
the plaintiff $15,000.

d)    Roach (Guardian ad litem of) v. Hurst, [1998]
B.C.J. 1114 (S.C.). The plaintiff alleged injuries to her neck and right shoulder.
She was still experiencing some shoulder difficulties when she fell off a horse
after the accident. The fall resulted in a fracture and subluxation of the left
shoulder. The court concluded that the plaintiff’s fall from the horse was not
caused by the reduced movement in the right arm and shoulder. The residual
effects of the injury to the plaintiff’s right shoulder were minimal at the
time of trial, more than four years post-accident. The court awarded the
plaintiff $16,000.

[252]     Ms. Gonzales
cited a number of cases in support of her position that an award of $90,000-$115,000
is appropriate. However, the cases cited involve substantially greater injuries
than what were caused here and are based on Ms. Gonzales having
established causation for the shoulder joint pathology.

[253]     I have no
doubt that Ms. Gonzales will be disappointed in the rejection of her claim
for damages for her right shoulder joint problems. Even by the time of her
testimony at the trial, Ms. Gonzales displayed a defeated view of her
current situation. While she was described in the past as a vibrant young woman
with a competitive and outgoing spirit, none of that was on display at the
trial. In particular, she did not appear to be exercising despite the wealth of
medical advice she has received over the last few years that she should
undertake an exercise program on her own to assist in her recovery. She has
certainly undergone a series of medical setbacks; and as Dr. Eng said in her
report of November 2011, her prognosis arising from her right shoulder
condition is “fair” to “guarded”. She seems defeated by her current
circumstances, although the medical professionals seem to have some hope of
improvement.

[254]    
Ironically, it appears that Ms. Gonzales’ passion for sports,
in particular softball and rugby, have been in part the reason for her current
condition and the fact that she is no longer able to enjoy those sports and the
accompanying social activities. Nevertheless, I
have every confidence that Ms. Gonzales, with the help of the medical
practitioners who are assisting her, can regain her spirit and energy to
improve her condition to the extent that she is able.

[255]     I award
$20,000 for non-pecuniary damages.

(iii)     Past Wage Loss/Loss of Earning Capacity/Costs
of Future Care

[256]     The
submissions of Ms. Gonzales on these issues were also based on Ms. Gonzales
having established causation for the shoulder joint pathology.

[257]     Given my
findings on causation, no such claims arise. Ms. Gonzales did not suffer
any time off work after the September 2008 accident and arising from her soft
tissue injuries. Further, it was not established that any loss of earning
capacity arose by reason of these injuries. Finally, no cost of future care
issues arise.

(iv)     Special Damages

[258]     It is well
established that an injured person is entitled to recover the reasonable
out-of-pocket expenses they incurred as a result of an accident. This is
grounded in the fundamental governing principle that an injured person is to be
restored to the position he or she would have been in had the accident not
occurred: X. v. Y., 2011 BCSC 944 at para. 281; Milina v.
Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.) at 78.

[259]     Ms. Gonzales
incurred the cost of physiotherapy sessions with Ms. Storey ($550),
prescribed medication ($59.32), and drugstore rehabilitation items ($58.76),
all in the period up to March 2009. I am satisfied that these expenses arose
from the soft tissue injuries arising from the accident.

[260]     Accordingly,
special damages are awarded in the amount of $668.08.

Conclusion

[261]     I find
that Ms. Gonzales is entitled to damages as follows:

(a)      Non-pecuniary
damages:  $20,000;

(b)      Special
damages:              $668.08.

[262]     Ms. Gonzales
is entitled to pre-judgment interest on the amount of special damages.

[263]     Ms. Gonzales
is also entitled to her costs, unless the parties seek to make further
submissions in that respect. If further submissions are to be made, they must
be filed within 30 days of the delivery of this judgment.

“Fitzpatrick
J.”