Gillis v. Roy Stutley Plumbing and Heating Ltd., 2012 NSSC 244

SUPREME COURT OF NOVA SCOTIA Citation: Gillis v. Roy Stutley Plumbing and Heating Ltd., 2012 NSSC 244 Date: 20120628 Docket: Hfx No. 183960 Registry: Halifax Between: Kathy Gillis Plaintiff v. Roy Stutley Plumbing and Heating Limited, a body corporate and the Estate of Roy Stutley Defendants - and - Intact Insurance Company Intervenor D E C I S I O N Judge: The Honourable Justice Suzanne M. Hood Heard: November 23, 24, 25, 29, 30 and December 1, 2011, in Halifax, Nova Scotia Counsel: Brian J. Hebert and Jason May, for the plaintiff Scott C.

Norton, Q.C. and Chris Madill, for the defendants By the Court : [ 1 ] Kathy Gillis had a hot water expansion tank fall on her in 1996. She obtained default judgment against the company which installed it and the estate of the company's owner. She claims damages arising from the accident. The company's insurer obtained intervenor status with respect to causation and the damages claimed.

[ 2 ] ISSUES 1. Causation 2. Damages: General Damages; Past Loss of Income; Future Loss of Income; Future Loss of Pension Income; Past Valuable Services; Future Valuable Services; Cost of Care: Past; Cost of Care: Future; Interest 3. Costs [ 3 ] Kathy Gillis, her sister, Marylou Eldridge and Marylou's husband, Grant Eldridge, were in Kathy Gillis ’ home. It was a new home, nearly finished, when Marylou and Grant Eldridge dropped by on August 4, 1996. It was very hot in the house and Kathy Gillis asked her brother-in-law to look at the hot water gauge for the hot water heating system.

They went to the basement and Grant Eldridge tried to look at the gauge but could not see it properly. Kathy Gillis tried to look at it but then she and Marylou Eldridge changed places so Marylou could look at the gauge. Just as that happened, Kathy Gillis said that, as she was bent forward at the waist looking at the gauge, she heard Grant Eldridge yell out. She said the tank smashed her on the back of her head and her neck and shoulders. She testified that she fell to her knees and the tank hit the lower part of her back and pushed her flat out on the floor.

She believes she was semi-conscious because she could hear the voices of Grant and Marylou but that she could not do anything. She said Marylou eventually assisted her out of the boiler room. [ 4 ] Marylou Eldridge's testimony was that as they all bent over to look at the gauge she heard a noise and the tank dropped. She said it hit Kathy on the head and then on her lower back and it then fell to the floor. She said Kathy was incoherent, not completely knocked out but was not moving.

She said she picked her up by the arms to get her up so they could leave the furnace room. [ 5 ] Marylou said she was between her husband and Kathy when the tank fell. In cross-examination, she repeated that the tank hit Kathy on the head and she said it was the lower back part of her head. She said Kathy was half bent over when the tank hit her. She said Kathy fell and the tank was on her back and then rolled. off. [ 6 ] Grant Eldridge testified that the gauge they were looking at was about 2.5 feet off the floor.

He said that Kathy stepped aside as Marylou moved to have a closer look at the gauge and he said that he was between Kathy and Marylou. [ 7 ] He said that the tank fell from overhead along with the pipes attached to it and it hit Kathy on the shoulders and back. He pointed to his upper back and shoulders to show where the tank hit Kathy. On cross-examination, he said that it hit her shoulders and lumbar back and rolled down her back onto the floor. He said it hit up high first as it came down on an angle. He said it knocked Kathy to the concrete floor. He and his wife helped her up and out of the furnace room.

He said she may have been semi-conscious. [ 8 ] He said the tank was a 20 to 30 gallon tank about 4 feet long and 14 inches in diameter. He said hot water was spraying everywhere and they kept slipping on the water. He said the tank was overhead out of his reach and was about 8.5 to 9 feet up from the floor. [ 9 ] Grant Eldridge said they did not take Kathy to the hospital because she did not ask to go. He said she told them she would go to the medical centre the next day. Kathy Gillis said that, after she got home, she laid down and her head hurt a lot.

She said her whole upper body hurt, pointing to her shoulders and, as well, to her knees. She testified that she went to the Cobequid Medical Centre and got something for her headache. She said she went home and laid down again but said her head, shoulders and neck still hurt. She testified that her back hurt some but what she remembered most was the pain in her head, neck, shoulders and knees. She said she went to work the next day but was in terrible pain. [ 10 ] Kathy Gillis denied having low back pain before the accident. She said she had recovered from a lumbar muscle strain in 1988

before the accident. When asked on cross-examination why she had a lumbar spine x-ray in May 1994, she said it must have been because she was having muscle spasms but she said she did not recall back that many years. [ 11 ] Kathy Gillis testified that when she went back to work after the accident, the pain would come and go. She said that the motor vehicle accident she had in September 1999 had no effect on her pain levels. [ 12 ] She said that the main source of her pain now is her lower back and her buttocks and the pain radiates down to her heel.

She said she also has pain in her left hip which she attributes to compensating for her right hip. [ 13 ] With respect to her neck and upper back, Kathy Gillis testified she had physiotherapy for them. She said she still has pain in her neck and shoulders. However, she acknowledged that that pain would not have prevented her from working. Kathy Gillis ’ Prior Medical History [ 14 ] Kathy Gillis has a lengthy medical history. Her family doctor was Dr. Thomas Chui from 1979 to 2009. The consultations included knee pain, problems sleeping, stress, anxiety, migraines, skin problems and cystitis. [ 15 ] She saw Dr.

Chui regularly and was referred by him to others: Dr. Peter McGregor, a rheumatologist, in 1992; Dr. Judith Hammerling, a psychiatrist; Dr. Rachel Morehouse, a sleep specialist; Dr. Robert Michael, an internal medicine and pulmonary specialist; Dr. Marlene Scott, a neurologist. [ 16 ] Throughout the years before the accident, there are reports of complaints of headaches and Dr. Chui ’ s records and correspondence indicate she had a history of migraines. She also complained on occasion of neck pain, cervical pain and knee pain. She was diagnosed with fibromyalgia in 1992.

History of Low Back Complaints [ 17 ] There are instances when Kathy Gillis complained of low back pain. On June 10, 1988, Kathy Gillis had a lumbar muscle strain and had slight tenderness of the lumbar spine and muscles. She was instructed in back exercise. [ 18 ] On March 23, 1989, she saw Dr. Robertson, an associate of Dr. Chui, complaining of right hip pain for 24 hours, with occasional shooting pain in the back of her leg.

His clinical impression was “ low back strain. ” [ 19 ] On June 14, 1989, Kathy Gillis was diagnosed with osteoarthritis. [ 20 ] On May 11, 1992, she was diagnosed with fibrositis and fibromyalgia. [ 21 ] On June 5, 1995, she had tenderness of the bilateral lumbar muscles. [ 22 ] During this time period, an x-ray was done on May 24, 1994. It showed “ a slight scoliosis of the dorsal spine, concave towards the left and a slight scoliosis of the lumbar spine concave towards the right, as could simply be related to muscle spasm. The vertebra are intact and the disc spaces are well maintained.

No significant abnormality is seen. ” Medical History Post August 4, 1996

[ 23 ] After the tank fell on her, Kathy Gillis went later that day to Emergency at the Cobequid Medical Centre. Her chief complaint that day was bilateral knee injuries. Bruising and swelling of both knees was noted. She also complained of a bad headache. The notes indicate she was struck in the parietal area and complained of a head injury. There is no reference to low back pain. On August 5, she returned to the Emergency Room at the Cobequid Medical Centre. The records show her chief complaint was pain in the left side of her neck radiating to her left arm. She also complained of headache.

The notes indicate that the tank hit her on the left shoulder. They also note that she had a bruise on her left flank area. The diagnosis was: soft tissue injury to the trapezius. There is no mention of low back pain. [ 24 ] On August 7, Kathy Gillis went to see her family doctor, Dr. Chui. She told him she had had a head injury. His notes refer to bruises on the left side of her upper back and left knee. She complained of neck problems but there was no reference to low back pain on that date. [ 25 ] On August 17, 1996, Kathy Gillis went to the Emergency Room at the QEII complaining of head pain.

She said the head pain was occipital. She said she was unable to move her neck the day after the tank fell on her. She complained of neck pain. [ 26 ] On August 19, she returned to Dr. Chui complaining of headache. He referred her for an x-ray and to Dr. Stephen Bedwell, a neurologist. The x-ray showed no abnormality or fracture. [ 27 ] On August 22, Kathy Gillis saw Dr. Chi complaining of neck pain. He noted tenderness of the cervical spine and muscles. [ 28 ] Dr.

Bedwell ’ s notes of Kathy Gillis ’ visit to him on August 27, say that she reported that a tank hit her “ on the back of her head and neck, upper shoulders.... ” There is no mention of a low back injury or low back pain. Dr. Bedwell ’ s diagnosis was post-traumatic headaches and he ordered a CT scan of her head. [ 29 ] Dr. Chui on August 27 referred Kathy Gillis for physiotherapy. She began physiotherapy on August 28 and had 21 sessions during 1996. [ 30 ] The August 28 physiotherapy report at Tab 9, p. 2043 of Exhibit 1 shows that she circled her lower back indicating it as one area of pain.

She reported that her chief complaints were headache, left shoulder stiffness and referred left arm pain. Her knees were swollen and stiff bilaterally. The notes say “ she pointed out that her low back was and is a problem – at this time it is secondary to the present problem.... ” The report notes, with a diagram, that the tank hit her left to right across her head and shoulders and that she fell to her knees and then on to her side. It notes that she reported pain especially right-sided head, neck and shoulder pain when working or sitting. [ 31 ] On September 6, 1996, she saw Dr.

Chui and complained of neck pain because of muscle strain and complained of a tightness sensation in her upper back. Dr. Chui's notes indicate she had slight tenderness of her cervico-dorsal spine and muscles. [ 32 ] Kathy Gillis returned to Dr. Chui on September 10 and said she was having physiotherapy every day and was feeling better "not too bad." His notes indicate she advised that she was having neck pain on and off during the day and that she said she had had low back pain since the accident but was more concerned about her neck. Dr.

Chui notes she had tenderness of her cervical spine and muscles and pain on moving her shoulders. He noted tenderness of the dorsal spine and muscles. He also noted there was tenderness of the lumbar spine and muscles and straight leg raising ( “ SLR ” ) was ninety degrees. He sent her for an x-ray of her lumbar spine. [ 33 ] The x-ray report of September 10 showed “ slight scoliosis of the lumbar spine concave to the right as may be related to muscle spasm. ” This is the same as the x-ray report of May 20, 1994. The vertebrae were intact and the spaces were well maintained. The SI joints appeared normal.

[ 34 ] A physiotherapy report is also dated September 10. It states that Kathy Gillis reported a decrease in headaches and general neck and head symptoms. She continued to complain of general aches and pains in the low back and thoracic spine, usually dependent on activity. [ 35 ] On September 17, Kathy Gillis complained of neck pain. Dr. Chui's notes indicate she was having physiotherapy every day. They note there was slight tenderness of her cervical spine and muscles. She reported upper back pain on moving her shoulders and there was slight tenderness of her dorsal spine and muscles.

He noted that there was slight tenderness or her lumbar spine and muscles and SLR was 85 degrees. [ 36 ] The September 25 physiotherapy report notes Kathy Gillis was complaining of headaches and some knee pain from time to time. There is no mention of low back pain. [ 37 ] Kathy Gillis saw Dr. Chui on October 12, but there is no reference to low back pain. [ 38 ] Kathy Gillis saw Dr. Chui again on October 28, 1996. She was then having physiotherapy once a week. She complained of pain in her neck. Dr. Chui noted there was slight tenderness of her cervical spine and muscles.

She complained of upper back pain on moving her shoulders but he noted there was no tenderness of the dorsal spine and muscles. There is no reference to low back pain on that occasion. [ 39 ] On November 6, 1996, Kathy Gillis saw Dr. Chui again complaining of neck pain. She was then having physiotherapy once or twice a week. He noted there was tenderness of the cervical spine and muscles. She also complained of upper back pain with respect to her shoulders and he noted tenderness of the dorsal spine and muscles.

There is no reference to low back pain. [ 40 ] On November 22, 1996, Kathy Gillis ended her physiotherapy sessions. She saw Dr. Chui on December 19, saying she had had back pain for two days. She reported that she had not had physiotherapy for three weeks. Dr. Chui's notes indicate she had slight tenderness of the lumbar spine and muscles and SLR was 80 degrees. This is the first mention of low back pain since September 17. He suggested that she continue physiotherapy and exercise. There are no records of any physiotherapy in 1997. [ 41 ] On her visit to Dr.

Chui, on January 11, 1997, Kathy Gillis complained of increased neck pain for one day and upper back pain affecting her shoulders. Dr. Chui's notes indicate there was tenderness of the cervical spine and muscles and tenderness of the dorsal spine and muscles. There is no reference to low back pain. [ 42 ] There is then a seven month gap before Kathy Gillis ’ next related visit to Dr. Chui's office. On August 15, 1997, she complained of upper back pain. Dr. Chui noted there was no tenderness of her dorsal spine and muscles or her cervical spine and muscles.

On that occasion, there was no reference to her lumbar spine or to low back pain. [ 43 ] On November 24, 1997, Kathy Gillis saw Dr. Chui complaining of mid-back pain but he noted that her neck movement was free and there was no tenderness of her cervical spine and muscles. He did note there was slight tenderness of the dorsal spine and muscles. On that occasion, SLR was 90 degrees and he noted no tenderness of the lumbar spine and muscles. [ 44 ] One month later on December 29, 1997, Kathy Gillis saw Dr. Chui complaining of low back pain radiating to her posterior right thigh.

On that occasion, straight leg raising was 85 degrees on the left and 75 degrees on the right. He noted there was slight tenderness of the lumbar spine and muscles. [ 45 ] On April 17, 1998, Kathy Gillis saw Dr. Chui who noted that her neck movement was free except there was some discomfort on turning her head. He noted there was no tenderness of her cervical spine and muscles and that her shoulder movement was free. He noted there was no tenderness of her dorsal spine and muscles. There is no reference to low back pain.

[ 46 ] A report from Renova Physiotherapy dated May 15, 1998, refers to a few weeks prior to that date. It notes that Kathy Gillis ’ chief complaint was lower back pain and buttock pain. The diagram completed shows pain in that area radiating down her legs. The physiotherapist's notes say that the onset was "couple weeks ago getting out of shower and bent over and felt back let go. Pt states a water cooler fell on her a couple of yrs. ago and has had prob ever since.

Now c/o LBP which now goes into buttock and post. legs. ” [ 47 ] May 6, 1998 Emergency Room notes from the Cobequid Medical Centre state that Kathy Gillis said she had been sore for two days and the pain became much worse when she lifted her right leg that morning. The pain was not radiating to her legs at present, but was radiating to her right buttock. The notes say there is no history of any injury. [ 48 ] From these two reports, I conclude the “ shower incident ” occurred around May 4, 1998. [ 49 ] On May 7, 1998, Kathy Gillis advised Dr.

Chui that she had gone to the Emergency Room because of back pain and was told her muscles caused the pain. Dr. Chui noted her SLR was 70 degrees and that there was tenderness of the lumbar spine and muscles. [ 50 ] On May 11, 1998, Kathy Gillis saw Dr. Chui again complaining of low back pain. At that time, he noted that SLR was 75 degrees and there was tenderness of the lumbar spine and muscles. He sent her for an x-ray of the lumbar spine and his notes indicate he instructed her in a back care program.

The x-ray report dated May 12, 1998 showed no evidence of fracture, dislocation or significant degenerative change. It stated: “ disc spaces, foramina and sacroiliac joints appear preserved. ” [ 51 ] Kathy Gillis returned to Dr. Chui on May 14, 1998 complaining that her back was not improving. On that occasion, SLR was 75 degrees and there was tenderness of the lumbar spine and muscles. Dr. Chui suggested that she continue physiotherapy. [ 52 ] Kathy Gillis went off work on short term disability on May 14, 1998. On May 20, 1998, Dr.

Chui noted that SLR was 75 degrees and there was tenderness of the lumbar spine and muscles. He also noted there was tenderness of the right SI joint. She was having physiotherapy. On May 27, she reported she was having physiotherapy everyday. Her SLR remained at 75 degrees and she still had tenderness of the lumbar spine and muscles. On her return to Dr. Chui on June 8, 1998, complaining of low back pain, she reported she was having physiotherapy daily. On that occasion, Dr. Chui referred her to Dr. Reginald Yabsley, an expert in orthopaedic medicine. [ 53 ] On June 12, 1998, Kathy Gillis again complained to Dr.

Chui of low back pain. She said she was back at work, working one-half days, but that her back was aching after work. She reported having physiotherapy daily for three weeks. Dr. Chui noted his clinical impression was that she might have mechanical low back pain.

He suggested she continue with physiotherapy. [ 54 ] There is a June 15 physiotherapy report which notes Kathy Gillis reported more persistent lumbosacral pain radiating into her posterior buttock/hip joint and leg. [ 55 ] Kathy Gillis continued with physiotherapy from mid-April until June 21, 19 sessions over approximately two months. [ 56 ] Kathy Gillis saw Dr. Yabsley on June 29, 1998. He wrote to Dr. Chui on that date. The history she gave Dr. Yabsley was that: A tank which she said weighed about 250 pounds containing water fell from the ceiling onto her cervicobrachial area posteriorly.

She was bent over. [ 57 ] She also told him: She said that she has had back pain ever since the accident. She denies having had any back pain before then. She has been going to physiotherapy since then and she said that the physio hasn’t really been helping her because it seems to move the pain around from one spot to another.

[ 58 ] He told Dr. Chui: Her pattern, therefore, is one of low back pain with radiation and I don’t think her right leg pain represents a sciatic or a radicular problem per se so much as it represents a radiation type of phenomenon. [ 59 ] He continued: There is vague tenderness to percussion more in the mid-lumbar area than anywhere else but there is no spasm, scoliosis or curve reversal. When she bends forward with a little effort she can get her fingertips just about to ankle level and she recovers well. She has normal straight leg raising and no suggestion of sciatic tension or irritation.

She has no neurovascular deficit to screening. Mrs. Gillis has x-rays of her back and these to my mind are quite normal. I did not see any indication on the basis of my examination today to recommend a CT scan. [ 60 ] He continued: I discussed all of these things with her. She seems to have a non-specific, persistent low back pain. I don’t think she has a slipped disc or is having sciatica. I did not see the indication to do a CT scan today. I think she should commit herself to more graduated, persistent exercises. She can’t swim and that’s unfortunate as I do think that would be beneficial.

I discussed with her the thought of returning to work and from a physical sense I cannot see any contraindication to that. I’ll leave it to you to discuss these things with her but I do believe that the answer to her problems lies with a determined low back exercise maintenance program, and I’ve asked her to ask her therapist to provide her with instructions so that she can do these in a progressive, graduated fashion. [ 61 ] On September 24, 1998, Dr. Chui's notes indicate that Kathy Gillis was complaining of a burning sensation in her neck and upper back. She also complained of low back pain.

He noted there was slight tenderness of the cervical spine and muscles and the dorsal spine and muscles. He noted SLR was 75 degrees and there was slight tenderness of the lumbar spine and muscles. [ 62 ] An x-ray report dated march 17, 1999 states: The vertebrae are intact. Note is made of mild relative narrowing of the disc space at L5-S1 level which was not evident on the previous examination of May 121 [sic] 1998 and this raises the possibility of degenerative disc narrowing here although no associated abnormality is seen. The facet and joints and SI joints appear normal.

Comment: Mild narrowing of the L5-S1 disc spaces since the examination of May 12, 1998 as is presumably degenerative in nature. [ 63 ] On Kathy Gillis ’ visit to Dr. Chui's office on July 8, 1999, she complained of pain in her right hip and back. Dr. Chui noted that her SLR was then 65 degrees, her hip movement was free and there was slight tenderness of her SI joints. He sent her for an x-ray of her lumbar spine and SI joints. The x-ray done on July 8 showed mild degenerative narrowing of the disc spaces at L5-S1. [ 64 ] Kathy Gillis returned again to Dr. Chui on August 10, 1999 complaining of low back pain.

He noted her SLR was 75 degrees and she had slight tenderness of the lumbar spine and muscles and free hip movement. Dr. Chui referred her to a rheumatologist, Dr. Ahmad, and to Dr. Yabsley again. [ 65 ] Just over a year after his previous examination of her, Dr. Yabsley saw Kathy Gillis again in August, 1999. He wrote to Dr. Chui on August 25. He said:

She continues to have back pain and it all seems to date from the occasion when the expansion tank in her basement fell on her spine as they were in the process of selling their home. [ 66 ] He said she feels she is getting worse. He said: ...She can do her job and generally can do her housework but sometimes cannot. She does not do a lot recreationally in any event. The pain is in her back and it goes down to her right lateral thigh.... [ 67 ] He noted she had not had therapy or any other treatment recently.

He set out the results of his examination: On examination she is not acute but one gets the impression that perhaps the pain is wearing her down a little. She is tender in her low back but it looks normal without spasm or curve reversal or scoliosis. In fact, she has very good flexion and recovery. Straight leg raising is not symptom-producing. She has no objective findings again today. [ 68 ] He ordered a CT scan but said he was “ not optimistic that it will show mich that is helpful. ” [ 69 ] Dr. Ahmad wrote to Dr. Chui on August 30, 1999. He had examined Kathy Gillis on August 23.

He reported: About three years ago she was involved in a freak accident when a furnace expansion tank, weighing approximately 250 lbs, fell and hit her lower cervical spines and back. [ 70 ] Her symptoms were reported to be: Since then she has been having discomfort in her back. The symptoms are episodic and on occasion the pain radiates to her buttocks. About a year ago she had right sciatica. [ 71 ] On examination he found: She has good mobility of lumbar spines with Schober’s index of 10/15.

Straight leg raising is to 70° bilaterally and deep tendon reflexes are normal. [ 72 ] He reviewed her x-ray and said: X-rays of lumbosacral spines show significant abnormality. It is reported that there is narrowing of L5-S1 disc space but this is very mild. She has marginal osteophyte formation of right acetabulum. Joint space is well maintained. She has early degenerative changes in the hip but I don’t think the symptoms are originating from that. [ 73 ] He concluded:

She seems to have sustained soft tissue injury to the lower back. [ 74 ] On September 6, 1999 an Emergency Room record from the Cobequid Medical Centre states that Kathy Gills was in a motor vehicle accident. She went through a stop sign and hit a garbage truck. The notes indicate she reported chest pain radiating to her back. They also say she did not stay, saying she would see Dr. Chiu the next day. [ 75 ] The CT scan, ordered by Dr. Yabsley, was done on October 12, 1999. Dr. Yabsley reported to Dr.

Chui (in his letter dated November 12, 1999) that it “ shows a small right paracentral disc with minimal displacement on the right SI root. ” [ 76 ] On October 27, 1999, Kathy Gillis complained to Dr. Chui of headaches and he referred her again to Dr. Bedwell. He also sent her for an x-ray of her cervical spine. [ 77 ] Kathy Gillis began physiotherapy again on November 9, 1999 and had seven sessions between then and November 18. [ 78 ] On November 12, 1999, Dr. Yabsley again wrote to Dr. Chui, after he had reviewed the CT scan. He said: Ms. Gillis continues to have difficulty.

You will recall that I did not notice any objective signs when I saw her before, but we went ahead with the CT scan. That shows a small right paracentral disc with minimal displacement on the right S1 root. [ 79 ] He continued: She asked me about the relationship of the fall of the tank to the onset of her symptoms, and I told her that I really cannot say whether this caused it because disc problems like this are so common. Historically, thought, she did not appear to have any trouble before the tank fell. The same is true of the relationship to her syndrome to the CT findings.

A causal relationship is always tempting but these findings, too, are frequently encountered and one has to be very cautious about interpreting CT scans especially because she has no objective findings. [ 80 ] He concluded: Mrs. Gillis was referred to therapy once again for assessment and instruction in a low back maintenance exercise program. [ 81 ] Kathy Gillis returned to physiotherapy on January 5, 2000. [ 82 ] On February 6, 2000 Dr.

Chui wrote a letter to counsel for Kathy Gillis in which he said she had sustained a soft tissue injury of the head, left knee and cervico-dorsal-lumbar spine. [ 83 ] On May 31, 2000, an x-ray showed that the disc spaces were well maintained except there was mild narrowing at L5-S1 as previously noted. [ 84 ] A physiotherapy report of June 5, 2000 refers to a flare-up of back pain during late 1999 and early 2000. Kathy Gillis had complained of low back discomfort to the physiotherapist. [ 85 ] In February 2000, Kathy Gillis started massage therapy. She also began to see Dr. Yuen, a chiropractor, in June 2000.

[ 86 ] She continued with physiotherapy in 2000. A physiotherapy report dated July 12, 2000 notes that Kathy Gillis ’ cervical spine and low back were deteriorating, beginning in March 2000. [ 87 ] Kathy Gillis went off work on June 5, 2000. [ 88 ] She saw Dr. Yabsley again on August 21, 2000. He said she made an appointment because she “ has gotten worse. ” He reported: She continues to go to Renova [physiotherapy] three times a week. She, as well, for the past month and a half has been seeing Dr. Benjamin Yuen, a chiropractor twice a week....

Her right radicular syndrome now is worse than it was. [ 89 ] He continued: Today she is sore. She has more overt findings clinically than she did before and she now has an absent right ankle jerk which she did not have before. We are going to repeat her CT scan. [ 90 ] He ordered a new CT scan and said he would report again after receiving the results. A CT scan was done on September 13, 2000. The report states: At L5-S1 note is again made of a small central disc herniation. This appears to have increased slightly in size compared to the previous and there is some impression on the thecal sac.

There also appears to be impression on the right S1 nerve root. IMPRESSION: Slight increase in the size of the central L5-S1 disc herniation with impression on the thecal sac and right S1 nerve root. [ 91 ] Thereafter, Dr. Yabsley wrote to Dr. Chui again on September 18, 2000. He said: She continues to be rather miserable with her right sciatica. She is getting some symptoms in her left leg. We did a repeat CT scan and I am enclosing a copy of that report.

You will see there is a suggestion that the protrusion is bigger and that there is impingement on the first root which would all fit with her clinical syndrome.... [ 92 ] He concluded by saying: ... I am going to ask Dr. David Alexander to see her as soon as possible with the thought in mind of perhaps considering a right L5-S1 discectomy. [ 93 ] Dr. Yabsley referred Kathy Gillis to Dr. David Alexander. He is an expert in orthopaedic medicine. Dr. Alexander first saw Kathy Gillis on September 29, 2000, four years after the tank fell on her. He reported to Dr. Chui:

I saw Kathy Gillis today at the suggestion of Dr. Yabsley. She had an injury about four years ago when something heavy fell on her, and she had a neck and low back problem. She has had ongoing difficulties ever since.

Although the history is not clear, at some point in the more recent past she developed quite significant right sided sciatica, and this has become her predominant symptom. [ 94 ] He noted her SLR bothers her at 45 degrees and she had an absent right ankle reflex and “ perhaps minor weakness of plantar flexion as well. ” He opined: I believe she has an element of disc herniation as seen on the most recent CT scan.... [ 95 ] On October 11, 2000, Kathy Gillis had a discectomy.

The operative report indicates that the nerve root was “ quite swollen and red ” and there was “ a large bulge on the disc. ” On December 5, 2000 Dr. Alexander said Kathy Gillis has “ 80 % improvement in her symptoms.... ” He believed she could return to work part-time in early January 2001. [ 96 ] An x-ray report of February 12, 2001 states: There is a slight scoliosis of the lumbar spine concave towards the right as may be related to muscle spasm. There is at least mild narrowing of the disc space at the L5-S1 level as may be degenerative in nature. I would suggest correlation with the clinical picture.

The facet joints and S.I. joints appear normal. [ 97 ] Dr. Alexander re-evaluated Kathy Gillis on February 20, 2001. The report said: She is being seen in clinic today concerning a recent increase in lower back pain over the past week. Ms. Gillis reports that the pain in the lower back is greater than in the left leg. This left leg pain consists of left hip and buttock pain. There is radiation down the leg, the patient is unsure how far, when she sneezes or strains. There is no pain in the right leg.

Prior to the surgery in October the right leg had been the painful side. [ 98 ] The physical examination disclosed: On examination Ms. Gillis shows no apparent distress at rest. Mobility of her spine is reduced with forward flexion, but good with extension, lateral flexion bilaterally, and rotation to either side. The lumbosacral spine is not tender to palpation. Ms. Gillis has full strength at the hip, knee, ankle and EHL in both lower extremities. Sensation is normal to light touch in the feet, all distributions bilaterally.

Deep tendon reflexes are preserved, symmetrical, and within normal limits side to side and top to bottom. Toes are downgoing bilaterally. Straight leg raise on the right causes pain at 50° at the knee posteriorly on the ipsilateral side. Straight leg raise on the left side causes pain in the left buttock at 55°. This pain is increased with dorsiflexion and decreased with knee flexion. [ 99 ] He concluded that she is suffering “ residual lower back pain ” since the discectomy. He arranged for an x-ray. [ 100 ] Dr. Alexander reviewed Kathy Gillis again on March 20, 2001.

The report notes: Unfortunately, she continues to have back pain that significantly got worse after surgery. It is mechanical in nature, worse with motion of the back. Her leg pain is not a predominant symptom. [ 101 ] The results of the physical examination were:

On physical examination, she has no pain on palpation of her spine. She has pain on forward flexion and hyperextension. She has normal straight leg raise bilaterally, normal neurologic examination. [ 102 ] Dr. Alexander then reviewed the recent CT scan which ... suggested a central disc herniation, albeit small, at L4-5, but obviously this doesn’t appear to be contributing to her symptoms, as it is predominantly mechanical back pain. [ 103 ] On May 31, 2001, Kathy Gillis had a spinal fusion.

The surgery report gave the diagnosis as “ L5-S1 disc herniation, recurrent. ” [ 104 ] In his chart note of November 21, 2000, sent to Dr. Chui, Dr. Alexander said: I saw Kathy Gillis today. She still has some ongoing issues with regard to some back pain and some leg pain related to her long standing problem. She had surgery about six months ago to try to stabilize the first mobile segment, and she is doing reasonably well. [ 105 ] He examined her and said: Today I examined her and she has an excellent range of motion of her spine, but does have pain on the extremes of movement.

Her straight leg raising is possible to 80° and neurovascularly she is stable. Her x-rays show satisfactory position of her spinal construct. [ 106 ] With respect to a return to work he said: I think that because she is having great difficulties with sitting that she would have trouble working in a job that required her to sit all day. I think she would be able to sit for perhaps an hour or two, but that would not be able to be done without having the ability to stand up and walk around.

If a job could be constructed for her that allowed her the flexibility of sitting and standing, then I think in the New Year she would have the ability to go back on a very part-time basis and hopefully be able to increase her tolerance from there. [ 107 ] Dr. Alexander next saw Kathy Gillis on August 20, 2002. His chart note says: Kathy Gillis came to my clinic today because of a recent onset of some discomfort in the right buttock area. She has not had any major amount of back pain and the sciatic pain that she has had has not been very severe.

She was worried that there was some major problem with her back. [ 108 ] He noted that her lumbar spine movements were normal and SLR was 90 degrees bilaterally, “ with no evidence of irritation of the sciatic nerve. ” [ 109 ] He concluded: I believe that this lady likely had a flare up of mechanical dysfunction of the lower spine which is likely to settle down on its own without treatment. I have told her that she should be as active as her back will let her be and I will see her again on a p.r.n. basis.

[ 110 ] On February 17, 2004, Dr. Alexander saw Kathy Gillis again. He reported “ She is having right-sided sciatica. ” He concluded there was nothing to be done surgically but said “ she may benefit from an internal stimulator .... ” He referred her to Dr. Ivar Mendez for this purpose. [ 111 ] On December 21, 2006 Dr. Alexander reported to Dr. Chui: Kathy Gillis had a severe flare up of low back pain and left sacroiliac pain. It has not been well controlled. On physical examination there is nothing neurological to find.

We have given her some Demerol to control the pain and we arranged for some X-rays and follow up. [ 112 ] On January 18, 2007, Dr. Alexander wrote a letter to “ To Whom It May Concern. ” He said: Mrs. Gillis has been left with neuropathic right leg and back pin. [ 113 ] He concluded: ... Mrs.

Gillis has failed back syndrome and presents with classical symptoms of neuropathic pain.... [ 114 ] On February 21, 2008 he saw Kathy Gillis and reported that on his examination of her that day “ there was nothing specific to find. ” He said “ her range of motion was acceptable in both her spine and her knee. ” He concluded medical, not surgical, treatment was called for. [ 115 ] Dr. Alexander prepared an experts report on October 1, 2010. He summarized the information contained in his treating physician ’ s reports. He also reviewed material from other treating physicians, including Dr.

Chui ’ s chart notes. [ 116 ] Dr. Alexander said on p. 7 of his report: In review, it would appear that the records indicate Ms. Gillis had some issues regarding her neck and lumbar spine prior to accident of note which occurred in August 1996. She had many other medical complaints during the years prior to her accident. It did not appear that the complaints she had were such that they were severely incapacitating her. [ 117 ] He then gave a history of the tank accident on p. 7: She then had this episode where a heavy object struck her upper torso with her spine in a bent position.

After that it would appear that the symptoms of neck and back pain increased. The low back pain within a year or two evolved into a syndrome of low back pain and right sided sciatica... [ 118 ] Under the heading “ Statement of Opinion ” Dr. Alexander opined: It is my opinion that Ms. Gillis had some issues with her lower back and neck prior to her injury as evidenced by the family doctor’s notes in the period of time prior to her injury.

It is my opinion that the injury she sustained may have caused further damage to her cervical and lumbar area such that there was the development of further deterioration in those areas with the development of significant symptomatology that eventually led to surgical procedures. It is impossible to know whether this lady would have developed the symptoms that led to her surgery without the injury she sustained in August 1996 as the vast majority of patients who developed this syndrome do not have an injury such as this lady described.

I have in my experience seen patients who have suffered problems such as this lady has had due to similar types of injuries. The disability that Ms. Kathy Gillis currently has is in my opinion a combination of pre-existing problems and the noted accident in August 1996. It is my opinion based on my experience and the information that I have reviewed that this lady’s symptoms are likely to continue for the foreseeable future, but it is very unlikely that this will require further surgical procedures, and it is very unlikely to cause any major neurological problems related to the lumbar spine condition.

I do believe that her symptoms are likely to continue for the foreseeable future. Once again, Ms. Gillis had complaints related to her back and neck prior to an accident that occurred in 1996. On the basis of my review of the information made available to me this accident triggered a worsening of symptoms that eventually led to surgical interventions. As stated above, it is impossible to know whether she would have developed these problems without the noted accident. [ 119 ] Under the heading “ Degree of Certainty ” , Dr.

Alexander said: I am 75% certain that my opinion is correct. [ 120 ] Under the heading, “ Qualifications to Opinion ” , Dr. Alexander noted it is subject to the accuracy of the medical records of others and also “ to the accuracy of the information provided by Kathy Gillis. ” [ 121 ] Kathy Gillis began to see Dr. Robert Paterson on February 1, 2008. He is an expert in anaesthesiology and pain medicine. In the Introduction to his expert ’ s report, Dr. Paterson says: Ms. Gillis was referred to me by her attending Orthopedic Surgeon, Dr. David Alexander of the QE2 Health Sciences Ctr., Halifax, Nova Scotia.

The reason for referral was for unrelenting low back pain continuing after two prior back surgeries. She was first seen in consultation by me on February 1, 2008 at the Dartmouth General Hospital, Dartmouth, Nova Scotia in my Outpatient Clinic.

She indicated that she had been injured years earlier in approximately 1996, when an expansion tank came loose of its moorings in a basement location and fell on her upper and lower back. [ 122 ] As part of the chronology he writes: She reported to me she was in a basement in the presence of personnel working on the heating system when an expansion tank fell from the ceiling height onto her neck and upper back and ultimately her lower back. She recalls immediate discomfort in her low back as well as discomfort towards her head.

She went on to have physiotherapy and medication with some degree of relief but unfortunately was never free of pain. This situation persisted until the year 2000 when she began to develop right-sided pain to her foot and in May of 2000 she stopped working. [ 123 ] He concluded on p. 3:

My conclusion at the time was that Ms. Gillis represented a case of “failed back syndrome” which essentially is a syndrome of persisting pain, ultimately chronic (back, leg, or both) despite operative intervention(s). [ 124 ] He subsequently saw Kathy Gillis on a number of occasions throughout 2008 and continuing to January 2011, prior to the date of his report of February 25, 2011. [ 125 ] He elaborated on “ Failed Back Syndrome ” and “ chronic pain ” as he concluded it applied to Kathy Gillis.

He said on page 7: Her diagnosis remains “Failed Back Syndrome” reflecting the unfortunate lack of response to her surgeries which were embarked upon in an effort to treat her initial pain. I would also state that the term “chronic pain” would be appropriate as it is applied to her back and resultant referred leg discomfort. This refers to the process of change in the central nervous system pain processing areas as a result of constant neural input of painful signals.

This is typically a change that takes place of both a micro-anatomical and neurochemical nature that changes the responsiveness to painful input to something that is quite inappropriate i.e. enhanced intensity and duration of response regardless of the intensity of the stimulus. This is a process termed “Central Sensitization” and is thought to replace the acute pain response that all of us experience after injury.

The time frame in which this converts is thought to be in the realm of 3 to 6 months and is reflected in the definition of chronic pain which simply stated is pain that lasts more than six months after an injury beyond reasonable allowances for healing to take place. [ 126 ] He continued on page 7: This process has obvious implications for prognosis from this point onward in Ms. Gillis’s case but also I feel is significant given the time lapse from the injury sustained in 1996 to the time of the eventual surgery in the fall of 2000.

That is to say, the process of chronic pain and central sensitization was likely well-established after several months to a year postinjury-“the die was cast”. [ 127 ] On December 12, 2008, Kathy Gillis had a stroke. According to Dr. R. Rebello of the Department of Medicine (Internal) at the QEII, she has made a full recovery. Causation [ 128 ] There is no question that Kathy Gillis continues to suffer from chronic low back pain or that she has “ failed back syndrome ” . Kathy Gillis said that the pain got worse as time went on. [ 129 ] This is confirmed by the evidence of her friends and family.

Mary McMillan, with whom Kathy Gillis worked, said she saw Kathy Gillis get progressively worse and was restricted in her activities, but could not put a time-frame on when that occurred. [ 130 ] Kathy Gillis ’ son, Michael, said that after the accident, he helped more with household activities.

He too said she got worse and was in more pain. [ 131 ] Her sister, Doris Ettinger, with whom Kathy Gillis now resides part of the time, said that after the accident Kathy had frequent headaches and had back pain. [ 132 ] Grant Eldridge, Kathy Gillis ’ brother-in-law, said she now is always complaining about her back. [ 133 ] Marylou Eldridge, her sister, said now she sees Kathy Gillis in pain, from headaches and back pain. [ 134 ] This is not disputed. The critical issue is the cause of Kathy Gillis ’ low back pain. She attributes it to the tank falling on her.

However, it has been more than 15 years since the tank fell on Kathy Gillis. Since approximately 1998, she has been on medication and

in pain. She has had a stroke. She has had memory problems, first documented before the accident, including by Dr. Morehouse in December, 1992 when she was consulted because of Kathy Gillis ’ “ sleep onset insomnia. ” She said Kathy Gillis “ notices that her memory is poor and she sometimes has difficulty concentrating. ” [ 135 ] When asked about the “ shower incident ” , Kathy Gillis testified she could not recall that incident. This is in spite of the fact that the pain became so bad she went to the Emergency Room on May 6, 1998.

She said she could not recall it because of her pain and the medication she is on. [ 136 ] Dr. Alexander, in his first letter to Dr. Chui in September 2000, related Kathy Gillis ’ history as having a neck and low back problem arising from the tank falling on her. He did note that her history was not clear. He repeated that in his expert ’ s report written in October 2010.

In that report, he said she could not give him an accurate history. [ 137 ] Because of documented problems with Kathy Gillis ’ memory, the passage of time, the medications she is on and her pain, I conclude the independent records of treating physicians made contemporaneously with Kathy Gillis ’ visits with them are more reliable. [ 138 ] Marylou Eldridge and Grant Eldridge testified about the tank falling on Kathy Gillis. Both said the tank hit Kathy Gillis on the lower back. They were testifying about events that occurred in a matter of seconds over 15 years previously.

As an example of how details can become unclear, I refer to their testimony about where they were standing when the tank fell. Marylou Eldridge said she was standing between her husband and Kathy Gillis. Grant Eldridge, however, testified that he was standing between Kathy and Marylou. Kathy herself said only that she had switched places with Marylou. [ 139 ] There are a number of versions of where the tank struck Kathy Gillis. At trial, she said it hit her lower back. However, at discovery she said it rolled off her lower back after hitting her head, neck and upper back.

When this discrepancy was put to her at trial, she said she was “ not very good ” the day of the discovery. [ 140 ] On other occasions, close in time to the accident, the notes and reports of hospitals, doctors and physiotherapists make no mention of the tank striking Kathy Gillis ’ lower back. They say: – struck in the parietal area (Cobequid Emergency Room, August 4, 1996) – tank hit left shoulder (Cobequid Emergency Room, August 5, 1996) – hit on back of head (QEII Emergency Room August 17, 1996) – hit the back of her head and neck, upper shoulders (Dr.

Bedwell, August 27, 1996) – tank hit her head, shoulders and upper back (Renova physiotherapy, August 28, 1996) [ 141 ] In 1998, after she saw Dr. Yabsley, his letter to Dr. Chui says: – tank fell on cervicobrachial area (Dr. Yabsley, June 29, 1998) [ 142 ] In 1999, when Kathy Gillis saw Dr. Yabsley and Dr. Ahmad, their letters to Dr. Chui say:

– tank fell on her spine (Dr. Yabsley, August 25, 1999) – tank hit her lower cervical spines and back (Dr. Ahmad, August 30, 1999) [ 143 ] Dr. Alexander first saw Kathy Gillis four years post accident. In his expert ’ s report he says: – heavy object struck her upper torso (October 1, 2010 report) [ 144 ] Dr. Paterson first saw Kathy Gillis on February 1, 2008 more than 11 years after the accident. He says: – tank fell onto her neck and upper back and ultimately her lower back (expert’s report of February 25, 2011) [ 145 ] When Kathy Gillis saw Dr. Sherry James, a psychiatrist, in July 2010, Dr.

James reports that the tank fell on her neck. [ 146 ] Warren Comeau, who provided a report on past and future costs of care, said in the introduction to his report, dated March 4, 2011: – the tank fell on her neck, shoulders and back [ 147 ] As recently as September 10, 2010, Kathy Gillis emailed information to her counsel to be passed on to Jessie Gmeiner, an actuary. Kathy Gillis said: ... tank fell, hitting me on the back of my head and shoulder, rolling off my back... [ 148 ] Kathy Gillis had occasions of low back complaints before the tank fell on her. These have been referred to above. Dr.

Alexander refers to these as well in his expert ’ s report. [ 149 ] In the first weeks after the tank fell on her, there is no mention of low back pain in Dr. Chui ’ s chart notes or the ER reports. In the ER report of August 5, mention is made of a bruise on Kathy Gillis ’ “ left flank area ” . Counsel for Kathy Gillis in his submissions said that area is defined as “ below the ribs and above the ileum ” . When Dr. Chui examined Kathy Gillis two days later on August 7, he noted that there was bruising on the left side of her upper back. He made no mention of bruising on the lower part of her back.

The upper back is the area Kathy Gillis marked on the physiotherapy chart notes, which indicate that is the location where the tank first hit her (August 28, 1996 report). [ 150 ] In that same physiotherapy report she said low back pain “ was and is a problem ” although secondary and would need treatment in future. It is unclear to me whether “ was ” refers to the period since August 4 or to problems she had with her low back in 1995 and earlier. [ 151 ] The Emergency Room reports of August 4 and August 5 do not mention her lower back. On the August 4 note, it says it her parietal area.

The August 5 note says it hit her left shoulder (the area where Dr. Chui noted bruising). [ 152 ] The first mention of back pain to Dr. Chui is in his notes of September 10, more than one month after the accident. The notes

reflect Kathy Gillis saying she had had low back pain since the accident but was more concerned about her neck. On that occasion, her straight leg raising was 90 degrees and Dr. Chui noted she had slight tenderness of her lumbar spine and muscles. [ 153 ] The x-ray Dr. Chui ordered showed no abnormalities. It showed a slight scoliosis which might be related to muscle spasm. That is the same wording as was used in the May 1994 x-ray report. The physiotherapy report dated the same day the x-ray was done, notes Kathy Gillis had pain in the low back usually dependent on activity. [ 154 ] Dr.

Chui ’ s notes of her next visit on September 17, indicate there was slight tenderness of the lumbar spine and muscles and straight leg raising was 85 degrees, slightly less than normal. The September 25 physiotherapy report does not mention low back pain. [ 155 ] Between September 17 and October 12, Kathy Gillis did not consult with Dr. Chui with accident related complaints. When she saw Dr. Chui on October 12, there was no reference to a complaint of low back pain. The same was the case on her next visits to Dr.

Chui on October 28 and November 6, 1996. [ 156 ] Six weeks after the November 6 visit and just before Christmas 1996, Kathy Gillis on December 19 complained to Dr. Chui of having low back pain for two days. Dr. Chui noted there was slight tenderness of the lumbar spine and muscles and that straight leg raising was 80 degrees. [ 157 ] Between Christmas 1996 and just after Christmas, in late December 1997, Kathy Gillis was not having physiotherapy and there was no reference to low back pain. In fact, on November 24, 1997, Dr.

Chui notes that straight leg raising was 90 degrees and there was no tenderness of the lumbar spine and muscles. On the December 29, 1997 visit, just after Christmas, Kathy Gillis again complained of low back pain radiating to her posterior right thigh. At that time, straight leg raising was 85 degrees left and only 75 degrees right. Dr. Chui also noted there was slight tenderness on the lumbar spine and muscles. [ 158 ] There are no reports of related visits to Dr. Chui in early 1998. On April 17, 1998, there is no reference to low back pain.

The physiotherapy report of May 15, 1998 refers to an incident in the shower a couple of weeks earlier when Kathy Gillis reported that she felt her back let go. She reported to Dr. Chui that she had gone to the ER on May 6 because of low back pain, but his notes contain no mention of the “ shower incident. ” [ 159 ] The ER report notes she said she had been sore for two days, which puts the “ shower incident ” on May 4. Then the pain became worse on the morning of May 6. It also notes there is no history of injury.

That could refer to the incidents on May 4 or May 6 or that Kathy Gillis did not mention the tank accident at that time. On her visit to Dr. Chui on May 7, he noted that her straight leg raising was reduced to 70 degrees and there was tenderness of the lumbar spine and muscles. This is substantially reduced from November 1997, when it had returned to 90 degrees. Two incidents around Christmas 1996 and Christmas 1997 had apparently caused low back problems which did not lead Kathy Gillis back to Dr.

Chui or to physiotherapy in 1997 or early 1998. [ 160 ] However, after May 1998, low back pain appears to have become a chronic problem. Kathy Gillis was referred to Dr. Yabsley in 1998 and again in 1999 and 2000. The x-ray of May 12, 1998 showed no evidence of fracture, dislocation or significant degenerative change. A later x-ray, the following year on March 17, 1999, showed mild narrowing at L5-SI which was presumably degenerative. [ 161 ] Dr. Yabsley ’ s reports have been referred to. He noted on June 29, 1998, that the tank had fallen on her cervical and arm areas.

He reported that Kathy Gillis told him she had had pain in her lower back every since. She also denied having any previous back problems. [ 162 ] From the medical records, it appears this is not accurate. Even Dr. Alexander refers to her prior history of back problems in his expert ’ s report. Furthermore, there is little in Dr. Chui ’ s notes to support a conclusion that Kathy Gillis ’ low back had been a problem ever since August 4, 1996. She saw Dr.

Chui often, for accident-related and other medical problems, but there is only sporadic reference to low back problems. [ 163 ] By July 8, 1999, Kathy Gillis ’ straight leg raising was reduced to 65 degrees and she had, on that occasion, slight tenderness of the lumbar spine and SI joints. A further x-ray confirmed mild degenerative narrowing at L5-SI, as was expected from the x-ray four

months earlier. [164] On August 10, 1999, Dr. Chui referred her to both Dr. Ahmad and, again, to Dr. Yabsley. Their reports have been referred toabove. Dr. Yabsley, based on what he earlier reported, said the back pain seems to date from the tank accident. [165] Dr. Ahmad reported that the tank hit Kathy Gillis’ “lower cervical spines and back.” He concluded based upon that, that KathyGillis had suffered soft tissue injury to her lower back. However, this is the first reference to the tank hitting Kathy Gillis’ “back”.

It maybe a mis-reporting of what Kathy Gillis told him or it may be what she told him. [166] After the CT scan in 1999 showed “a small right para-central disc with minimal displacement on the right SI root”, Dr. Yabsleyreferred Kathy Gillis to physiotherapy and for instruction in a low back program. He did not refer her to Dr. Alexander until after 2000CT scan. [167] Even though he reports she had no back problems before the tank accident, he could not attribute her disc problems to theaccident because he said they are “so common”. [168] In a letter to Kathy Gillis’ counsel on February 6, 2000 (Exhibit 4), Dr.

Chui opined that Kathy Gillis had suffered soft tissueinjuries to her head and her “Cervico-dorso-lumbar spine.” [169] Kathy Gillis’ back problems continued and a CT scan in 2000 led Dr. Yabsley to refer her to Dr. Alexander, She had adiscectomy in October 2000. The pain subsided but returned and in May 2001 Kathy Gillis had a spinal fusion. The pain continued andin 2007 Dr. Alexander concluded she had “failed back syndrome”, a diagnosis with which Dr. Robert Paterson agreed in 2008. The Law of Causation [170] The plaintiff says that Athey v.

Leonati (SCC), [1996] 3 S.C.R. 458 is the leading authority on causation. Shesays it stands for the proposition that the “but for” test can be unworkable in some circumstances and this is one of those circumstances. She says therefore that the “material contribution” test applies here and that she has met the onus on her. [171] The intervenor, on the other hand, says that the “but for” test applies and has not been met. The intervenor refers to ResurficeCorp. v. Hanke, 2007 SCC 7, which affirmed that the “but for” test is the primary test.

The intervenor says that the “materialcontribution” test is not applicable in this case. [172] In Athey the plaintiff had been involved in two motor vehicle accidents, in February and April of 1991. Then in the fall of thesame year he had improved. In paras. 5 and 6, Major, J. said: 5 In light of the improvements in the appellant’s condition, his doctor suggested that he try to resume his regular exercise routine. The appellant went to a health club where, while stretching as part of his warm-up, he felt a ‘pop’ in his back and immediatelyexperienced a great deal of pain.

He hobbled to the showers, dressed and returned home. By the next morning, he was unable to move. He was transported by ambulance to the hospital, where he remained for three weeks. 6 His condition was diagnosed as a disc herniation, which was ultimately treated by surgery (a discectomy) and morephysiotherapy.... [173] In para. 7, Major, J. set out the issue as: 7 ..... The only issue was whether the disc herniation was caused by the injuries sustained in the accidents or whether it was

attributable to the appellant’s pre-existing back problems. [ 174 ] He referred to general principles with respect to causation. In para. 28 he said: 28 ... Likewise, the negligent conduct either was or was not a cause of the injury. The court must decide, on the available evidence, whether the thing alleged has been proven;... [ 175 ] He also considered independent, intervening events and referred to cases where such an event occurred. He noted, under that heading, in para. 33: 33 In the present case, there was a finding of fact that the accident caused or contributed to the disc herniation.

The disc herniation was not an independent intervening event. The disc herniation was a product of the accidents. [ 176 ] In considering the “ thin skull ” and “ crumbling skull ” doctrines, Major, J. said at para. 36: 36 The “crumbling skull” argument is the respondents’ strongest submission, but in my view it does not succeed on the facts as found by the trial judge.

There was no finding of any measurable risk that the disc herniation would have occurred without the accident, and there was therefore no basis to reduce the award to take into account any such risk. [ 177 ] In para. 41, Major, J. summarized the principles with respect to causation: 41 The applicable principles can be summarized as follows. If the injuries sustained in the motor vehicle accidents caused or contributed to the disc herniation, then the defendants are fully liable for the damages flowing from the herniation. The plaintiff must prove causation by meeting the “but for” or material contribution test.

Future or hypothetical events can be factored into the calculation of damages according to degrees of probability, but causation of the injury must be determined to be proven or not proven. This has the following ramifications: 1. If the disc herniation would likely have occurred at the same time, without the injuries sustained in the accident, then causation is not proven. 2. If it was necessary to have both the accidents and the pre-existing back condition for the herniation to occur, then causation is proven, since the herniation would not have occurred but for the accidents.

Even if the accidents played a minor role, the defendant would be fully liable because the accidents were still a necessary contributing cause. 3. If the accidents alone could have been a sufficient cause, and the pre-existing back condition alone could have been a sufficient cause, then it is unclear which was the cause-in-fact of the disc herniation.

The trial judge must determine, on a balance of probabilities, whether the defendant’s negligence materially contributed to the injury. [Emphasis in original] [ 178 ] He then referred to the factual findings made by the trial judge in that case saying in para. 43: 43 The findings of the trial judge indicate that it was necessary to have both the pre-existing condition and the injuries from the accidents to cause the disc herniation in this case. She made a positive finding that the accidents contributed to the injury, but that the injuries suffered in the two accidents were “not the sole cause” of the herniation.

She expressly found that “the herniation was not related to the accidents” and that the accidents “contributed to some degree” to the subsequent herniation....

[Emphasis in original] [ 179 ] He continued in paras. 45 and 46: 45 The finding of material contribution was not unreasonable. Although the plaintiff had experienced back problems before the accidents, there was no evidence of herniation or insult to the disc and no history of complaints of sciatica.

When a plaintiff has two accidents which both cause serious back injuries, and shortly thereafter suffers a disc herniation during a mild exercise which he frequently performed prior to the accidents, it seems reasonable to infer a causal connection. 46 The trial judge found that the plaintiff’s condition was improving when the herniation occurred, but this also means that the plaintiff was still to some extent suffering from back injuries from the accidents. The inference of causal link was supported by medical evidence and was reasonable. [Emphasis in original] [ 180 ] The plaintiff also refers to McNaughton v.

Ward , 2007 NSCA 81 , in which the Nova Scotia Court of Appeal cited Athey and the “ material contribution ” test. That case was decided in 2007, just after Resurfice was decided by the Supreme Court of Canada but it was not referred to in McNaughton . [ 181 ] The issue in McNaughton was whether a subsequent workplace injury aggravated the injuries the plaintiff suffered in a motor vehicle accident. On the appeal, the appellant (plaintiff) said that the trial judge had misapplied Athey . At paragraph 84 Saunders J.A. rejected that argument. He said: The trial judge recognized that Ms.

McNaughton did not have to show that the respondent’s negligence was the sole cause of injury. However, that did not lessen her burden of proving that the respondents’ negligence caused or materially contributed to her loss. [ 182 ] He continued in paragraph 87: Chief Justice Kennedy was not saying that the motor vehicle accident had not injured the appellant. After all he awarded her $25,000 in general damages for that loss. But he was saying that the motor vehicle accident had nothing to do with her “present,” “ongoing” complaints.

In his mind the curtain had dropped on any lasting effect from that mishap by the time Ms. McNaughton hurt herself lifting the patient in the hospital. That was the extent of the loss which she was able to prove had been caused or materially contributed to by the respondents. [ 183 ] The trial judge had set out the principles from Athey and Saunders J.A. quoted them from the decision at paragraph 90. He then concluded in paragraph 91: Thus, the trial judge was obviously alive to the various issues and implications that arose from his findings of fact with respect to causation. He was aware that Ms.

McNaughton did not have to establish that any negligence on the part of the respondents was the sole cause of her injury. He addressed her contention that the motor vehicle accident was a material cause of her injuries and resulting disability, for which she sought very extensive damages. At the end of the day Kennedy C.J. accepted that Ms. McNaughton did suffer some injury on account of the respondents' negligence, but that she had failed to show on a balance of probabilities that the collision materially contributed to her current state of disability.

He said: [78] I find that it is more likely, on the evidence, that it was the work related injury that has caused the plaintiff's continuing medical problems. It was after this second injury that her life, both working and social, began to come undone.

[Emphasis in original] [184] Saunders, J.A.’s conclusion on causation is at paragraph 102 where he said: While deciding the issue of causation may in some cases be difficult, it is not an especially complex exercise. At the end of the day thetrier must decide on the evidence before it whether the plaintiff has proved that the defendant's tortious conduct caused or materiallycontributed to the plaintiff's injury. The causation test should not be applied too rigidly: Snell v. Farrell: (SCC), [1990] 2S.C.R. 311. Causation need not be resolved with scientific precision: Alphacell Ltd. v.

Woodward, [1972] 2 All E.R. 475. Causation isessentially a practical question of fact which can best be answered by ordinary common sense (per Sopinka J. in Snell, supra, at page328). Causation is established where the defendant's negligence "materially contributed" to the occurrence of the injury: Myers v. PeelCounty Board of Education, (SCC), [1981] 2 S.C.R. 21. A contributing factor is material if it falls outside the deminimis range: Athey, supra; R. v.

Pinske (1998), (BC CA), 30 B.C.L.R. (2d) 114 (BCCA) aff'd (SCC), [1989] 2 S.C.R. 979. [185] In Resurfice the Supreme Court of Canada revisited the issue of causation after Athey v. Leonati. McLachlin, C.J.C. said inparagraph 19: 19 The Court of Appeal erred in suggesting that, where there is more than one potential cause of an injury, the “materialcontribution” test must be used. To accept this conclusion is to do away with the “but for” test altogether, given that there is more thanone potential cause in virtually all litigated cases of negligence.

If the Court of Appeal’s reasons in this regard are endorsed, the onlyconclusion that could be drawn is that the default test for cause-in-fact is now the material contribution test. This is inconsistent with thisCourt’s judgments in Snell v. Farrell, (SCC), [1990] 2 S.C.R. 311 (S.C.C.), Athey v. Leonati, at para. 14, Walker Estatev. York-Finch General Hospital, [2001] 1 S.C.R. 647, 2001 SCC 23 (S.C.C.), at paras. 87-88, and Blackwater v. Plint, [2005] 3 S.C.R. 3,2005 SCC 58 (S.C.C.), at para. 78. [186] McLachlin, C.J.C. then said the basic test for causation is still the “but for” test.

She said in para. 21: 21 First, the basic test for determining causation remains the “but for” test. This applies to multi-cause injuries. The plaintiff bearsthe burden of showing that “but for” the negligent act or omission of each defendant, the injury would not have occurred. Having donethis, contributory negligence may be apportioned, as permitted by statute. [187] She referred to Athey in para. 22 saying: 22 This fundamental rule has never been displaced and remains the primary test for causation in negligence actions. As stated inAthey v.

Leonati, at para. 14, per Major J., “[t]he general, but not conclusive, test for causation is the ‘but for’ test, which requires theplaintiff to show that the injury would not have occurred but for the negligence of the defendant.” Similarly, as I noted in Blackwater v.Plint, at para. 78, “[t]he rules of causation consider generally whether ‘but for’ the defendant’s acts, the plaintiff’s damages would havebeen incurred on a balance of probabilities.” [188] Referring to Snell v.

Farrell, (SCC), [1990] 2 S.C.R. 311, she continued in para. 23: 23 The “but for” test recognizes that compensation for negligent conduct should only be made “where a substantial connectionbetween the injury and defendant’s conduct” is present. It ensures that a defendant will not be held liable for the plaintiff’s injurieswhere they “may very well be due to factors unconnected to the defendant and not the fault of anyone”: Snell v. Farrell, at p. 327, perSopinka, J. [189] She then referred to the “material contribution” test:

24 However, in special circumstances, the law has recognized exceptions to the basic “but for” test, and applied a “materialcontribution” test. Broadly speaking, the cases in which the “material contribution” test is properly applied involve two requirements. 25 First, it must be impossible for the plaintiff to prove that the defendant’s negligence caused the plaintiff’s injury using the “butfor” test. The impossibility must be due to factors that are outside of the plaintiff’s control; for example, current limits of scientificknowledge.

Second, it must be clear that the defendant breached a duty of care owed to the plaintiff, thereby exposing the plaintiff to anunreasonable risk of injury, and the plaintiff must have suffered that form of injury. In other words, the plaintiff’s injury must fall withinthe ambit of the risk created by the defendant’s breach.

In those exceptional cases where these two requirements are satisfied, liabilitymay be imposed, even though the “but for” test is not satisfied, because it would offend basic notions of fairness and justice to denyliability by applying a “but for” approach. [190] In paras. 27 and 28, McLachlin, C.J.C. gave two examples of situations in which the material contribution test is to be used: 27 One situation requiring an exception to the “but for” test is the situation where it is impossible to say which of two tortioussources caused the injury, as where two shots are carelessly fired at the victim, but it is impossible to say which shot injured him: Lewisv.

Cook, (SCC), [1951] S.C.R. 830 (S.C.C.).

Provided that it is established that each of the defendants carelessly ornegligently created an unreasonable risk of that type of injury that the plaintiff in fact suffered (i.e. carelessly or negligently fired a shotthat could have caused the injury), a material contribution test may be appropriately applied. 28 A second situation requiring an exception to the “but for” test may be where it is impossible to prove what a particular person inthe causal chain would have done had the defendant not committed a negligent act or omission, thus breaking the “but for” chain ofcausation.

For example, although there was no need to rely on the “material contribution” test in Walker Estate v. York-Finch GeneralHospital, this Court indicated that it could be used where it was impossible to prove that the donor whose tainted blood infected theplaintiff would not have given blood if the defendant had properly warned him against donating blood. Once again, the impossibility ofestablishing causation and the element of injury-related risk created by the defendant are central. [191] In Fullowka v. Royal Oak Ventures Inc., 2010 SCC 5, the Supreme Court of Canada again touched on the issue of causation.

Inthat decision, Cromwell, J. referred to Resurfice in para. 93 where he said it clarified the law of causation: 93 ... That decision clarified that law of causation, holding that absent special circumstances, the plaintiff must establish on thebalance of probabilities that the injury would not have occurred but for the negligence of the defendant: Hanke, at paras. 21 - 22; Athey v.Leonati, [1996] 3. S.C.R. 458 (S.C.C.), at para. 14. [192] Cromwell, J. then addressed the argument that the “material contribution” test should apply.

He said in para. 95: 95 The appellants submit in the alternative that this case falls into the class of exceptional situations discussed in Hanke in which thetest for causation should be relaxed to the “material contribution” standard. I cannot accept this submission. As Hanke made clear, thesorts of special situations for which the material contribution test is reserved generally have two characteristics.

First, it is impossible forthe plaintiff to prove that the defendant’s negligence caused the injury under the “but for” test, and second, it is clear that the defendantbreached a duty of care owed to the plaintiff and thereby exposed the plaintiff to an unreasonable risk of injury of the type which theplaintiff ultimately suffered: Hanke, at para 25. This case has neither of these characteristics. It was not impossible to prove causation tothe “but for” standard.... [193] The “but for” test is the “basic test for determining causation” (Resurfice).

It is only in “special circumstances” (Fullowka) thatit is not used. I conclude that this is not a case where there are special circumstances. Both requirements from Resurfice must be met. Itis clear in my view that the defendant breached a duty of care to the plaintiff. She suffered injury as a result.

The issue for the court iswhether the low back pain from which Kathy Gillis now suffers was caused by the defendant’s negligence. [194] Before the “material contribution” test can be used I must be satisfied that it is impossible for the plaintiff to prove that thedefendant’s negligence caused her low back pain using the “but for” test. The impossibility must be outside Kathy Gillis’ control.

[ 195 ] Although McLachlin, C.J.C. gave only two examples and did not intend them to be exhaustive, they do illustrate the types of situations where a plaintiff may fall within the exception to the “ but for ” test. The first example is where there are two defendants who carelessly or negligently created an unreasonable risk of the type of injury suffered. That type of situation is not applicable here. The second example is where it is impossible to prove what a particular person would have done without the defendant ’ s negligence. That, therefore, causes a break in the “ but for ” chain of causation.

That is not the case here either. [ 196 ] There are no factors outside Kathy Gillis ’ control which would prevent her from establishing on a balance of probabilities that her back problems would not have occurred “ but for ” the tank falling on her; for example, a lack of scientific knowledge. [ 197 ] If there had been expert evidence of the mechanics of the injury, it may have explained, to the necessary standard, how back problems arising more than 21 months post-accident could have been caused by the tank accident. [ 198 ] Because no treating physician was told of “ the shower incident ” , no one gave any opinion about it.

Even without knowledge of it, Dr. Yabsley said that back problems of this type are very common. Dr. Alexander said the “ syndrome ” can develop without an injury like Kathy Gillis had. [ 199 ] I am not satisfied on the evidence that there is a substantial connection between the tank falling on Kathy Gillis and the back problems she now suffers from. Kathy Gillis had back complaints before the accident. These have been referred to above and were referred to by Dr. Alexander in his expert ’ s report.

These occurred off and on in the years preceding the accident. [ 200 ] She complained of neck, head and shoulder pain immediately after the accident. She mentioned low back pain to the physiotherapist on August 28 th , 1996 and to Dr. Chui on September 10, 1996, but only sporadically thereafter. [ 201 ] Two of those occasions where around Christmas and New Years in 1996 and 1997. There was a report of low back pain for two days on December 19, 1996 and a report of low back pain on December 29, 1997.

In my view it is of some significance that the December 19, 1996 report is of low back pain “ for two days ” as opposed to chronic pain ever since August 4, 1996. This is, in my view, similar to the low back complaints prior to August 4, 1996. As early as June of 1988, when Kathy Gillis was 32 years old, she had been instructed on back exercise. [ 202 ] In the weeks following the accident, Kathy Gillis did not complain of low back pain on her visits to Emergency at the Cobequid Medical Centre on August 4 or 5, to Emergency at the QEII on August 17, on her visits to Dr.

Chui between August 7 and September 10, nor in her visit with Dr. Bedwell on August 27. After referring to it on September 10, she saw Dr. Chui on a number of occasions between then and December 19 with no mention of low back pain and, as noted above, when she saw Dr. Chui on December 19 she mentioned she had had back pain for two days. In 1997 there are no complaints of low back pain until just after Christmas in 1997. Thereafter, when she saw Dr.

Chui on April 17, 1998 there was no reference to low back pain. [ 203 ] On September 17, 1996, Kathy Gillis ’ SLR was 85 degrees and she was slightly tender in the lumbar spine and muscles. When she saw Dr. Chui on December 19, 1996, she had slight tenderness of lumbar spine and muscles and her SLR was 80 degrees. On November 24, 1997, Dr. Chui specifically noted that there was no tenderness of the lumbar spine and muscles and her SLR was 90 degrees. At the post Christmas 1997 visit, her SLR was 85 degrees on the left and 75 degrees on the right and Dr.

Chui noted slight tenderness of the lumbar spine and muscles. [ 204 ] Between December of 1996 when Kathy Gillis had low back pain for two days and December of 1997, there are no records of complaints of low back pain. Kathy Gillis testified it persisted throughout that time but on her many visits to Dr. Chui for accident- related and other issues there is no mention of it nor is there any mention in April of 1998. [ 205 ] In my view, a very significant event was that which Kathy Gillis reported to the physiotherapist on May 15, 1998. That was the report of an incident in her shower when she felt her back let go.

In my view, it has been since that time that Kathy Gillis ’ low back pain has been a continuing problem. However, other than the repor

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