Date: 20000713
Docket: T-2273-76
Between:
DAME YVETTE TREMBLAY,
Plaintiff,
And:
HER MAJESTY THE QUEEN
- and -
THE CANADIAN HARBOURS BOARD,
Defendants,
And:
COMMISSION DE LA SANTÉ ET DE LA
SÉCURITÉ DU TRAVAIL OF QUEBEC,
Intervener.
REASONS FOR JUDGMENT
NADON J.
[1] On April 20, 1979 Raymond Décary J. of this Court allowed in part an action in tort for bodily injury brought by Dame Yvette Tremblay ("the plaintiff") against Her Majesty the Queen ("the defendant"). The judge ascribed 75 percent of the liability to the defendant and 25 percent to the plaintiff.
[2] By consent of the parties Décary J. ordered that the quantum of the damages claimed by the plaintiff be determined at a later date. At p. 1 of this his reasons Décary J. summarized the relevant facts of the action brought by the plaintiff as follows:
| The question at issue is as to who should be held liable for a fall suffered by plaintiff as she descended a stairway inside shed No 50 at the Port of Montreal, the property of defendant. |
| The evidence established that: plaintiff had been working as a waitress at the restaurant in shed No 50 for over a year; to get to and from the restaurant or the adjacent longshoremen's room, she had to use a stairway; plaintiff used this stairway daily, in the morning at about 8 am and in the late afternoon at about 3:45 pm; on the day of her fall, June 18, 1975, a port employee was waiting for plaintiff in his car, to take her home; plaintiff left her work and headed for the stairway; as she got onto the stairway, the plaintiff did not take hold of the handrail; she had her handbag in her left hand and the handrail was on her right; she put her foot on the second step and collided with the iron bar at the edge of the step of the concrete stairway; she was wearing her working shoes, which are skid-resistant and the heels of which cannot be more than 1[frac12] inches high; she fell down in the middle of the stairway; she did not summon the police on the day of the fall, but the following day a police officer, who was a customer of the restaurant, visited the premises. |
[3] By her statement of claim filed on June 10, 1976 the plaintiff claimed the sum of $8,600. On August 13, 1993 the plaintiff filed a re-amended statement of claim and increased the quantum of her claim to $321,471. This amount results from the expert report by Blondeau et Compagnie filed as Exhibit P-14, where at p. 17 it states the following:
[TRANSLATION]
V - TOTAL ECONOMIC LOSS
| The total economic loss suffered by Yvette Boivin-Tremblay as the result of her accident on June 19, 1975 is equal to the following amounts: |
Amounts of economic
| Description of loss loss at July 20,1990 |
Loss of income for
the period June 19, 1975 to
| July 20, 1990 $138,797 |
Loss of income for the
period subsequent to
| July 20, 1990 $ 2,138 |
| TOTAL $140,935 |
| The amount of income loss from June 19, 1975 to July 20, 1990 includes the minimum interest of 5 percent from the date of filing, namely November 25, 1975. Allowing for surplus interest rates defined by the Department of National Revenue Act and applicable to past losses, the total loss is increased from $180,536 to $321,471. |
[4] In his pleadings Mr. Lupien, for the plaintiff, submitted his client's claim as follows:
[TRANSLATION]
| So, your Honour, this is an action claiming damages. Actually, it is not for damages but a claim for loss of salary based on s. 8 of the Workmen's Compensation Act, which allows the person who is compensated - actually which allowed - because apparently it is no longer the case now, but at one point, a person who was covered by the Workmen's Compensation Act and was compensated by the Commission des accidents de travail, still had an action against the third party at fault for losses which were not compensated for by the Commission des accidents de travail, regardless of any other provision of any other Act, under s. 8. This meant that [as] this action was not compensated for by the CAT, the victim still had her right of action against the third party at fault. |
| Where we are concerned, the action is not an action claiming overall the items of damage usually claimed in such a proceeding, that is there is no claim for PPD, TTD, suffering, pain, inconvenience, various expenses and so on: the claim is limited only to this portion of income, as established in the actuary's report.1 |
| It must be borne in mind that in this case, at the present stage, the judgment on liability established the proportionate share of each party with respect to the wrongful act and held that 25 percent of the fault should be attributed to the plaintiff and 75 percent attributed to the defendants. |
| Accordingly, the burden of proof which still rests with the plaintiff since that judgment is to establish that there is causal link between the injuries sustained in the accident in 1975, June 1975, the fall which gave rise to the said judgment on liability. Secondly, it is to establish the amount of the damages resulting from the fault and the incident. |
[5] The plaintiff worked until July 10, 1975, the date on which she was laid off by her employer because of a longshoremen's strike in the Port of Montréal. Until December 1975 the plaintiff received unemployment insurance benefits. Subsequently, the plaintiff never returned to work. The plaintiff maintained that she could not return to work because of injuries suffered in her fall, namely injuries to the spinal column for which she had to have operations on two occasions at the Ste-Jeanne-d'Arc Hospital in Montréal in 1978. The injuries for which the plaintiff is claiming damages are described in the report by Dr. Raymond Lemaire (Exhibit P-15).
[6] The proof and hearing on the quantum of the plaintiff's damages took place before me on May 5, 6, 8 and 9, 1997 and on May 9, 2000. The explanation of the delays in completing the hearing of this matter is as follows. On May 9, 1977 the hearing was adjourned to June 5, 1997 to allow the plaintiff to submit evidence in reply and in order to hear the arguments of counsel. On June 3, 1997 Mr. Lupien, the plaintiff's counsel, informed the Court that his client was dead. That is why on June 4, 1997 I signed an order adjourning the hearing sine die. On February 9, 1998 I dismissed a motion by the Public Curator of the province of Quebec to resume the hearing following the plaintiff's death. The Public Curator appealed my decision and on November 19, 1999 the Court of Appeal, per Robert Décary J.A., allowed its appeal. As the Public Curator's motion2 was allowed, a new hearing date was set, May 9, 2000.
[7] For the reasons that follow, I have come to the conclusion that the plaintiff is not entitled to the damages she is claiming. I am of this view because the plaintiff did not demonstrate to the Court that the damages claimed resulted from the fall of June 18, 1975.
[8] Two expert witnesses, Drs. Raymond Lemaire for the plaintiff and André Gilbert for the defendant, testified in this Court regarding the injuries for which the plaintiff is claiming damages. Dr. Lemaire's report, a letter dated April 22, 1985, was entered in evidence as Exhibit P-15. Dr. Lemaire, an orthopaedic surgeon, testified on May 6, 1997 and I acknowledged him as an expert witness.
[9] Dr. Lemaire examined the plaintiff on April 9, 1985 and came to the following conclusion:
[TRANSLATION]
CONCLUSION
| As the consequence of a work-related accident in June 1975 Ms. Tremblay has a post-diskectomy condition and lumbar graft extending from L4 to S1. Although the current X-ray does not confirm pseudo-arthrosis, it might be necessary to obtain tomograms. In any event, this does not change matters very much since this condition now seems to be a settled one from the medical point of view. There is clearly no question of surgical intervention. The chances of success are too small. Ms. Tremblay's condition is now irreversible and no improvement is expected: there may be a deterioration as the years go by and she gets older. |
| It should further be noted that Ms. Tremblay has never returned to work since the 1975 accident. In 1982 in social rehabilitation at the CSST, she was considered unsuited to any type of work. She was therefore awarded a permanent partial disability of 41 percent, that is 25 percent APD plus 16 percent ESRD and long-term financial assistance until age 65. |
| I think it is unrealistic to contemplate Ms. Tremblay returning to the job market. At the time of her accident she was working as a waitress in a restaurant and had been doing such work since age 16. She has no training for clerical work and completed Grade 6. Further, I do not even think she could attend work regularly, even seated. This accident victim has been treated for several years, she has received virtually all types of conserving and surgical treatment and there is nothing more she can be given. At most she could benefit from supporting treatment to partially relieve the pain. |
| It seems clear that this accident victim was regarded by the CSST as disabled since she was awarded long-term financial aid until age 65. |
| Such financial aid is usually reserved for persons who cannot be re-employed and are unsuited to resuming any type of work, based not only on physical disability but other factors which make rehabilitation for work impossible. However, we know that this financial aid is not indexed and ceases at age 65. |
| Since Ms. Tremblay's current disability seems to be due solely to her work-related accident and there is no other serious pathology that might prevent her returning to some form of work, it seems reasonable to say that Ms. Tremblay is permanently disabled. She should accordingly receive total permanent disability from the CSST and be paid accordingly. |
| Ms. Tremblay is suffering from total, serious, permanent and irreversible disability. In my opinion, this physical disability prevents her from holding any form of remunerative work. |
| Since 1982, she has also been regarded as unsuited to any kind of work. |
[10] As appears from Dr. Lemaire's letter, it was not written in preparation for his testimony in this Court, but to challenge the CSST decision on the plaintiff's condition. It goes without saying that Dr. Lemaire had no personal knowledge of the event causing the plaintiff's injuries. I note that in his conclusion Dr. Lemaire indicated that the plaintiff would never have returned to work following her accident. This statement is incorrect, since after her fall the plaintiff worked without interruption until July 10, 1975. During that period, she neither saw nor consulted any physician about her injuries. Similarly, she did not go to any hospital to have her injuries examined. She stopped work on July 10, 1975, not because of her injuries or the resulting pain but because there was a strike by longshoremen in the Port of Montréal and she received a notice of dismissal from her employer.
[11] In this Court Dr. Lemaire explained that his examination concentrated on the plaintiff's lumbar rachis [TRANSLATION] "where she had been operated on twice".3 Dr. Lemaire testified that his neurological examination was [TRANSLATION] "normal". Further, on the day of the examination Dr. Lemaire took an X-ray of the plaintiff's lumbar vertebrae. At p. 13 of the transcript of May 6, 1997 Mr. Lupien, the plaintiff's counsel, asked Dr. Lemaire to indicate to the Court the conclusion he had arrived at following his examination of the plaintiff. Dr. Lemaire's reply was as follows:
[TRANSLATION]
| A. Well, I wrote this in the conclusion here. [Dr. Lemaire referred to the conclusion contained in his report of April 22, 1985, at pp. 4 and 5.] I do not think it is necessary to re-read what was written here. Naturally I took into account the patient's history, her medical record since a fall which apparently occurred - which had however occurred some years before, in 1975. We knew that she had been operated on twice: on a second occasion for what appeared to be pseudo-arthrosis.4 Even at the time of this examination, it was still not absolutely clear that there was not still a pseudo-arthrosis. There was in my opinion no indication of additional surgery because when you start repeatedly operating on a person's back you are risking problems and looking for trouble, especially when it is the second and third time: the chances of success are very small . . . In any case, the CSST had already ruled on her condition at that point by awarding her disability assessed at 41 percent, and she was awarded financial support until age 65. The conclusion was that for all practical purposes she would make little or no recovery and was probably not in a position to return to the labour market. This was somewhat confirmed by the clinical examination that was done: she still had a back which was very painful, which was stiff, and which for all practical purposes immobilized her for many tasks . . . |
[12] The cross-examination of Dr. Lemaire was short, and I reproduce it in its entirety. It appears at pp. 16, 17 and 18 of the transcript of May 6, 1997:
[TRANSLATION]
| Q. Dr. Lemaire, I will be very brief. If I understood your testimony correctly it was in 1985, April 1985, that Ms. Tremblay went to see you because she was dissatisfied with a decision by the Commission des accidents du travail, the CSST? |
| A. Correct. |
| Q. And of course that is why you examined her and prepared the report? |
| A. Yes. |
| Q. Which is addressed [TRANSLATION] "To whom it may concern". |
| A. Usually when it is a patient who consults me for an expert opinion, and it is not made at the request of counsel or a specific organization, I address it "To whom it may concern" because I am well aware that of course it will be used elsewhere. |
| Q. And I note that in your expert opinion, Dr. Lemaire, you do not give the patient's weight. |
| A. Yes, that's right. That may be a mistake. I usually do it. It may be an oversight. Weight may sometimes be relevant. Naturally, an obese person may have tendencies to have more lumbar problems than a person who is lanky. Ultimately, it is not an absolute test. |
| Q. Right. And at page 4 of your expert opinion, the second paragraph after the conclusion, it states: [TRANSLATION] "It should also be noted that Ms. Tremblay never returned to work after this accident in 1975". I assume this is information that Ms. Tremblay gave you? |
| A. Correct. |
| Q. Finally, I take it - this is my final question - I take it, Dr. Lemaire, that in the examination of the patient which you made in April 1985 you did not reach a conclusion as to the causal connection between her fall that she claimed to have had in 1975 and her condition at the time of the examination? |
| A. Absolutely not. |
[13] In his argument Mr. Lupien clearly acknowledged that the plaintiff had not called an expert in medical matters as a witness so that the latter might give an opinion on the causal link between the plaintiff's injuries and the fall of June 18, 1975. Certainly, as Mr. Lupien pointed out, determination of the causal link must be made by the Court and the absence of medical evidence is not necessarily fatal. At the same time, the opinion of an expert on the cause of the injuries is undoubtedly a relevant point which the Court must take into account.
[14] The defendant called Dr. André Gilbert, an orthopaedic surgeon since 1964, as an expert witness. I had no hesitation in acknowledging Dr. Gilbert as an expert in this case.
[15] On March 14, 1994 Dr. Gilbert examined the plaintiff. Following that examination, he prepared a report dated March 14, 1994 which was filed as Exhibit D-23. This report was followed by a second report dated October 16, 1995, which was filed as Exhibit D-24. As a result of the medical examination of the plaintiff and in light of the latter's medical history since June 18, 1975, Dr. Gilbert concluded that the injuries for which the plaintiff was claiming damages did not in any way result from the incident of June 18, 1975. Dr. Gilbert's reasons in support of his conclusion are as follows.
[16] First, according to Dr. Gilbert, if the back pain for which the plaintiff was operated on twice, at Ste-Jeanne-d'Arc Hospital in Montréal on February 15 and August 28, 1978, resulted from her fall, she could not have returned to work as she did the day after the incident and worked without interruption until July 10, 1975.
[17] Secondly, Dr. Gilbert noted that when the plaintiff went to St-Luc Hospital in Montréal in September 1975 she gave as her complaint a neurological problem, namely dizziness, headaches and giddiness. This is how the plaintiff's principal subjective symptoms are described in the admission report issued by the St-Luc Hospital (Exhibit D-1):
[TRANSLATION]
| The patient is 40 years old and has come in for loss of balance and staggering. Previous history: patient operated on for exeresis of cervical rib at age 17, three prior pregnancies, taking of anovulant and Fiorinal as needed. Current illness: on or about June 19 the patient fell on a stairway and is currently suffering severe headaches which have persisted for several hours. A month later the patient began having falls - her left side is weaker than her right side. She is afraid to drive her car or go out for fear of falling. High level of anxiety also noted. |
[18] Under the heading [TRANSLATION] "Physical Pathological Symptoms", the report relates the following:
[TRANSLATION]
| Negative physical examination except from neurological standpoint, where there was a reduction in sensitivity and left motor function with positive Romberg and positive cerebellar tests. |
[19] Various tests were conducted during the period of hospitalization, including X-rays of the cranium, lungs and cervical column. The X-ray of the cervical column on September 11, 1975 showed that there [TRANSLATION] "were very small changes secondary to incidents of spondylosis". According to Dr. Aubé, a neurologist, this was a conversion disorder5 and Dr. Aubé accordingly recommended a psychiatric assessment. The patient was seen by Dr. Beaudoin, a psychiatrist, and he gave the following diagnosis:
[TRANSLATION]
| Based on this single interview, and on the condition in which we saw this patient, when she seemed quite comfortable and at ease, and co-operated fully, and in light of the information we were able to obtain, we cannot today state categorically that this is a conversion symptom. We of course respect the observations made in neurology and the absence of any physical indications which could objectify the symptoms shown by this patient, and this would accordingly lead us to believe in a conversion symptom as well. However, the remainder of our observation does not support a categorical statement of this. |
[20] Dr. Gilbert testified that throughout the period of hospitalization at the St-Luc Hospital, [TRANSLATION] "at no time was there any question of lumbago: no suggestion of pain around her spinal cord. There was absolute silence".
[21] It further appeared from the evidence (and the plaintiff's medical record) that the plaintiff went to see Dr. Pierre Franchebois on September 2, 1975, two and a half months after the incident of June 18, 1975. Dr. Franchebois' report indicated that the patient was complaining of a condition in her head and dizziness.6
[22] Thirdly, Dr. Gilbert noted that it was not until September 1976, when she was seen by Dr. Deshaies, that the patient began complaining about lower back pain, which led Dr. Gilbert to give the following opinion:7
[TRANSLATION]
| Reality and intensity of traumatism: if the traumatism referred to is real, I think it can be assumed that the biomechanics were sufficient to result in a lumbar traumatism, a lumbar lesion, and the lesion could have been what the English literature calls a "strain" or "sprain", which involves twisting or actual contusions. |
| If in fact we recognize that the biomechanics could have resulted in such lesions, it is not conceivable that the patient would have been able to continue working, and that this question of lower back pain would not have appeared overwhelmingly and conclusively in the days following the traumatic event, that is, in the hours following the traumatic event, and especially when she went to the St-Luc Hospital in September [1975]. |
[23] During his testimony Dr. Gilbert was categorical concerning the plaintiff's lumbo-sacral instability. This is what he said:8
[TRANSLATION]
| There is no lumbo-sacral instability in this patient, based on X-ray documents, the X-ray photos taken in flexion and tension and the actual description given by the X-ray technicians, where there was no indication of traction osteophyte or alteration of inter-somatic spaces. |
[24] Dr. Gilbert testified that the plaintiff's Schober index was 100 percent, that is 15 out of 15. This is the explanation given by Dr. Gilbert in his examination-in-chief. After referring to his report of March 14, 1994, where he stated that:
[TRANSLATION]
| The patient was seated on the examination table: I got her with her, two index fingers - she could lift the two knees in complete support on the table, the tibial crest, up to 4 cm from the tibio-tarsal space with a Schober index at 15/15. |
Dr. Gilbert said the following:9
[TRANSLATION]
| Q. Which is 100 percent? |
| A. One hundred percent. I will tell you what the Schober index is. I will explain it to you on my hand, it will be simpler. When people are standing, this being let us say the lumbar curve - there is always a small hollow in the back - if you draw a line at the spinal process of the fourth lumbar vertebrae and take a gallon and go 10 cm above and make a new line and ask people to lean forward, something interesting happens: with people who are in an acute phase, at that point when you ask them to lean over, because the movement in their back produces pain, they will learn over but using their hips. At that point, when they are leaning over, you measure the Schober index: you see if it remains at 10 or has increased. |
| With people who do not have pain in their backs, these are people who when they lean will first begin by slightly inclining their heads, the dorsal segment, and progressively bending their backs. At that point, when they are completely bent, you look at your points to see that the distance between the two lines you have made corresponds to the width of the rachis. The normal is 15. |
| This means that with normal individuals who have no painful reactions in their spinal cords, when they lean forward there will be an increase in their index from 10 to 15. |
| With this patient there was a clear Schober index of 15 over 15. That means that in her antiflexion mechanics, she would try to identify at 30 degrees when she was in a standing position: this antiflexion was false. The patient had antiflexion up to 100 degrees minimum. In addition to that, she had no defence mechanism in her spinal cord since the Schober index was 15 over 15. |
[25] What appears from this passage, as submitted by Mr. Brisson, counsel for the defence, was that the plaintiff exaggerated her reactions or had reactions where she should not have had any. It further appeared from Dr. Gilbert's testimony that the plaintiff was feigning pain from cephalic pressure. Dr. Gilbert's testimony was to the following effect:10
[TRANSLATION]
| I would also like to draw your attention to the fact the patient described an increase of pain from cephalic pressure. You press on their heads and people say: wow! That hurts my back. This is another sign that is inconsistent with pathological reality. |
Dr. Gilbert continued his testimony by referring to a passage from his report of March 14, 1994, where it states at p. 8:
[TRANSLATION]
| On the neurological question, the patient described a hypoesthesis throughout her right lower limb. |
Dr. Gilbert commented on this paragraph as follows:
[TRANSLATION]
| I would also draw your attention to the fact that the patient had a left radicular symptom. If she had a discal hernia or if she had a radicular injury that could explain her pain in the left lower limb, especially at the L4-L5 space as indicated by the neuro-surgeon's operational record, she would have been likely to have a change in sensitivity on the external lateral face of the limb and the internal dorsal face of the foot. |
| Here the patient described a reduction in sensitivity throughout the area. |
| It is usually recognized that people who have more than three Waddell indications are people who should automatically be asked to have a psychiatric assessment, and most importantly not to undergo surgical treatment. |
[26] I accept Dr. Gilbert's opinion without reservation. His opinion was not contradicted or seriously challenged.
[27] At a pre-trial conference held on October 1, 1996, the defendant allowed a number of medical reports about the plaintiff to be filed. The admission reads as follows:
[TRANSLATION]
| The defendant admits the filing of all the plaintiff's expert reports (except for the report by Dr. Lemaire), apart from the facts stated in those medical reports which are not within the personal knowledge of the expert witnesses, and the plaintiff undertakes not to call these expert witnesses; counsel for the parties have until October 8 next to withdraw this admission in whole or in part. |
[28] The aforementioned reports, despite the fact that they were described in the admission as expert reports, are not all expert reports within the meaning of the Federal Court Rules, 1998. Some of these reports are actually only medical reports prepared after visits by the plaintiff or following a consultation. For example, Exhibit P-1, titled [TRANSLATION] "Expert report and counsel's certificate pursuant to Rule 482(6)(b)", is simply a report by Dr. Pierre Franchebois dated September 2, 1975 following a visit by the plaintiff.
[29] None of the writers of these medical reports and medical opinions testified in this Court. I am in complete agreement with Mr. Brisson's contention that, apart from Dr. Maurice Lécuyer, the writers of these reports and opinions said nothing about the cause of the back problems from which the plaintiff was suffering. Dr. Maurice Lécuyer, an orthopaedic surgeon, concluded in his letter of June 18, 1979 to counsel for the plaintiff that the latter [TRANSLATION] " . . . was seriously injured in her accident. She developed a discal hernia and had probable instability since there was a lombo-sacral graft".
[30] Mr. Brisson drew the Court's attention to the fact that Dr. Lécuyer mentioned at p. 1 of his report that the plaintiff [TRANSLATION] " . . . suffered violent lumbar pain" after her fall. It goes without saying that Dr. Lécuyer had no personal knowledge of the fall of June 18, 1975 and the pain suffered by the plaintiff. The evidence before the Court is inconsistent with this premise in Dr. Lécuyer's report, since the plaintiff did not establish to the Court's satisfaction that she actually had lumbar pain after her fall. Except for Dr. Lécuyer, the writers of the other reports, described as expert witnesses, made no statements about the cause of the plaintiff's lumbar problems.
[31] Only Drs. Lemaire and Gilbert testified in this Court, and only Dr. Gilbert gave any opinion about the causal relationship.
[32] I can only conclude, in light of the evidence before me, that the plaintiff made no complaint about lumbar problems following her accident of June 18, 1975. The evidence was that the plaintiff began complaining of back problems about 15 months after her fall of June 18, 1975. The plaintiff testified that she consulted a Dr. Larue a short time after her accident. Unfortunately, I cannot believe the plaintiff on this point. The plaintiff could have summoned Dr. Larue or, at the least, indicated that Dr. Larue had died or was unavailable. The plaintiff made no attempt to prove anything regarding Dr. Larue. I further note from the judgment by Décary J. that when the plaintiff fell on June 18, 1975 she went to the automobile of a Port employee who waiting for her to drive her home. In my opinion, this person would unquestionably have been in a position to testify about the plaintiff's condition immediately after the accident. This witness was not called by the plaintiff and the Court was given no explanation of this.
[33] The plaintiff could also have called some of the persons working with her in the Port of Montréal restaurant. The latter could undoubtedly have testified about the plaintiff's physical condition and the pain of which she complained the next day and in the days after her fall. None of her fellow workers appeared to testify in court. The plaintiff's employer, Roger Soumis, was present during the hearing of the case as he was summoned by the defendant, but he did not testify. Why the plaintiff did not call him as a witness I do not know. Once again, this was a witness who could have testified about the plaintiff's condition.
[34] I further note that all the physicians, including Dr. Lemaire, accepted, as they had to do, the plaintiff's statement that her back was injured in her fall of June 18, 1975. These physicians were not in any way concerned with the causal relationship.
[35] I should further note that the plaintiff was not entirely credible. For example, she admitted lying about the amount of her tips. With respect, I cannot say that the plaintiff testified openly and directly. That is why, in the circumstances, she should have called the persons I have just mentioned as witnesses.
[36] There can be no doubt that the plaintiff fell on June 18, 1975. The question is whether that fall was so serious as to require back surgery in 1978. As I indicated earlier, the plaintiff's argument was that because of the fall she could not return to work after late December 1975. The available evidence did not persuade the Court that the plaintiff injured her back on June 18, 1975 and is consequently entitled to damages resulting from her back problems.
[37] I further note that none of the physicians called by the plaintiff, and those who did not testify but whose reports were filed, indicated that only the fall of June 18, 1975 could have caused the injuries for which she had operations and for which she is claiming damages. In fact, in his cross-examination Dr. Lemaire indicated to Mr. Brisson, for example, [TRANSLATION] that "an obese person may have tendencies to have more lumbar problems than a person who is slim". Did the plaintiff's lumbar problems result from the fall of June 18, 1975 or from some other cause? In light of the evidence before the Court I am, unfortunately for the plaintiff, unable to conclude that her lumbar problems resulted from the fall of June 18, 1975.
[38] It is interesting to note that the X-ray report at the Ste-Jeanne-d'Arc Hospital dated April 10, 1978, Exhibit D-6, indicates that there was [TRANSLATION] "no X-ray evidence of traumatic lesions in the lumbo-sacral column". In my opinion, this report completely corroborates Dr. Gilbert's testimony. I should like to note that a report from the National Harbours Board police dated December 2, 1975 was that the plaintiff injured her left elbow in her fall. Const. Savaria, who prepared the report, testified in court about his discussions with the plaintiff leading to preparation of the report. As appears from point No. 2 of the said report, Const. Savaria suggested that the plaintiff go to hospital but the latter refused, saying that she would go to the Maisonneuve Hospital at the end of her work day on June 20, 1975. In closing, I should also note that Gérard Picher, an employee of Roger Soumis' restaurant, was a witness to the plaintiff's conversation with Const. Savaria. Mr. Picher was not called to testify.
[39] For these reasons, the plaintiff is not entitled to the damages she is claiming. The defendant will be entitled to costs equivalent to those payable to the plaintiff following the judgment of Décary J. dated April 20, 1979.
| Marc Nadon Judge |
OTTAWA, Ontario
July 13, 2000
Certified true translation
Martine Brunet, LL. B.
Date: 20000713
Docket: T-2273-76
Ottawa, Ontario, July 13, 2000
Before: Nadon J.
Between:
DAME YVETTE TREMBLAY,
Plaintiff,
And:
HER MAJESTY THE QUEEN
- and -
THE CANADIAN HARBOURS BOARD,
Defendants,
And:
COMMISSION DE LA SANTÉ ET DE LA
SÉCURITÉ DU TRAVAIL OF QUEBEC,
Intervener.
JUDGMENT
The plaintiff is not entitled to the damages claimed since those damages did not in any way result from the fall of June 18, 1975. The defendant will be entitled to costs equivalent to those payable to the plaintiff following the judgment by Décary J. on April 20, 1979.
Marc Nadon
Judge
Certified true translation
Martine Brunet, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| COURT No.: T-2273-76 |
| STYLE OF CAUSE: DAME YVETTE TREMBLAY |
- and -
| HER MAJESTY THE QUEEN - and - THE CANADIAN HARBOURS BOARD, |
- and -
| COMMISSION DE LA SANTÉ ET DE LA SÉCURITÉ DU TRAVAIL OF QUEBEC |
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 9 and June 28, 2000
REASONS FOR JUDGMENT BY: NADON J.
DATED: July 13, 2000
APPEARANCES:
| Nathalie Lupien FOR THE PLAINTIFF |
| Yvon Brisson FOR THE DEFENDANT |
SOLICITORS OF RECORD:
| Malo Dansereau FOR THE PLAINTIFF |
Montréal, Quebec
| Gowling, Lafleur, Henderson FOR THE DEFENDANT |
Montréal, Quebec
__________________
1 See Exhibit P-16, the report by Blondeau et Cie.
2 For convenience's sake I will continue to use "the plaintiff" rather than the Public Curator.
3 The plaintiff was operated on at Ste-Jeanne-d'Arc Hospital in Montréal on February 15 and August 28, 1978. She had a left radical discoidectomy L4-L5. See Exhibits D-4 and D-5, the operating records of Drs. Michel Décarie and Ulrich Jacques.
4 At p. 9 of the transcript of May 6, 1997 Dr. Lemaire explained this term as follows: [TRANSLATION] We should not confuse too many things. A hernia and a pseudo-arthrosis are not at all the same. We are talking here about a bone graft, which was implanted in the lumbar area to unite two or three vertebrae, and you want to be sure that the graft is properly made, that it is firm, so there is no further movement between those two vertebrae. That is the purpose of a bone graft. If the graft becomes pseudo-arthrosis, that is if part of the graft does not take, then there will still be movement and the purpose of the operation has not been achieved, namely to permanently stabilize two or three vertebrae.
5 A conversion disorder is defined as follows: "Conversion disorder" is one of the so-called somatoform disorders, a group of psychological conditions in which a bodily function is affected in some way without an obvious "medical" or neurological cause.
6 Exhibit P-1 is obviously a photocopy. In fact, it is a bad photocopy that is difficult to read. The book of documents (2 of 2) filed by counsel for the plaintiff contains a better photocopy of Dr. Franchebois' report and it can be clearly seen there what Dr. Franchebois noted in a box titled [TRANSLATION] "Condition of accident victim and treatment". Dr. Franchebois indicated in that box [TRANSLATION] "cranial condition and dizziness". These words are found in the photocopy filed as P-1, but it is apparent that someone other than Dr. Franchebois wrote on the document used as the original for preparing P-1. The words "palpation, sacral column" appear in Exhibit P-1, but it is clear that these words were not on the original document, as can be clearly seen from the copy of Dr. Franchebois' report contained in the book of documents filed by the plaintiff.
7 See pp. 134-135 of the transcript of Dr. Gilbert's testimony on May 8, 1997.
8 See p. 116 of the transcript of Dr. Gilbert's testimony on May 8, 1997.
9 See p. 125 of the transcript of Dr. Gilbert's testimony of May 8, 1997.
10 See p. 127 of the transcript of Dr. Gilbert's testimony of May 8, 1997.