ICBC Law

Reasons for judgement were released yesterday by the BC Supreme Court, New Westminster Registry, assessing damages for a chronic pain disorder caused by a motor vehicle collision.

In yesterday’s case (Loveys v. Fleetham) the Plaintiff was involved in a significastn 2006 collision.   The Plaintiff was struck by an out of control large truck driven by the Defendant.  The force of impact pushed the Plaintiff’s vehicle off the road.  The Plaintiff alleged she suffered physical and psychiatric injuries as a consequence of the crash.

Mr. Justice Armstrong found that the Plaintiff did suffer from physical injuries which went on to cause a chronic pain disorder.  The court did not find the Plaintiff’s psychiatric difficulties were related to the collision finding these had their origin in other life events.  The reasons for judgement are useful for the Courts lengthy discussion of causation and indivisible injuries.  In assessing non-pecuniary damages at $65,000 Mr. Justice Armstrong provided the following reasons:

[191] I am satisfied that Ms. Loveys suffered soft tissue injuries to her neck, back and shoulder and that those areas of complaint have evolved into a chronic pain disorder. I accept the plaintiff’s chronic pain was caused by the accidents. I also accept that she experienced an exacerbation of her pre-existing symptoms of depression and bulimia after the accident; the plaintiff has not proven that “but for the accident” she would have suffered the recurrent bulimia, acute stress disorder and/or depression.

[192] Ms. Loveys experienced significant psychological symptoms after the accident but they have not been proven to have resulted from the car accident. On the evidence it is equally possible she would have developed a major depression even if the motor-vehicle accident had not occurred. The history of disputes with CRA, the bankruptcy, the serious tax arrears, the death of her friend, her parents’ illness, and the strata owners litigation all indicate she faced serious stressors that would have occurred independent of the accident. She had already had an attack of bulimia in March 2006 and was under stress at the time of the accident.

[193] In my view Ms. Loveys’ psychiatric symptoms represented a divisible injury which is separate from the initial pain and chronic pain complaints that have persisted…

[214] I have concluded that Ms. Loveys has endured significant suffering and inconvenience resulting from the injuries from the accident. I observe that she will likely have symptoms of chronic pain for the balance of her life although there is some possibility she may yet achieve some improvement. Although I do not attribute her recurrent bulimia or her depression to the accident I accept that the duration of her physical symptoms and the interference with her very active lifestyle are important factors in this assessment. The presence of chronic pain has, for this very active woman, impacted her work life, her competitive and recreational dance, and the level of enjoyment she achieved from her other recreational choices. The plaintiff had an extraordinary history of physical accomplishments in her vocational and recreational life before the accident and her return to full participation in these activities is guarded.

[215] Her injuries will not prevent her from returning to most of those activities; she will not be able to perform in those areas with the same intensity and for the same duration she enjoyed prior to her injuries.

[216] Even on an intermittent basis, chronic pain deprives a victim of the enjoyment of a full and active life. Chronic pain coupled with the limitations on Ms. Loveys’ recreational activity and work will play an important part limiting her future enjoyment. I must consider that her low back pain and toe pain will also detract from her enjoyment of life as will her psychiatric health issues. In view of all of these factors I conclude that she is entitled to $65,000 for her non-pecuniary losses.

Reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry, discussing the issue of causation in a disc injury claim.

In this week’s case (Valuck v. Challandes) the Plaintiff was injured in a 2007 head-on collision.  Fault was admitted by the offending motorist.  The Plaintiff was ultimately diagnosed with a disc protrusion at the L5-S1 Joint.

ICBC argued the disc protrusion was not caused by the crash or if it was it would have occurred even in the absence of the collision.  Mr. Justice Rogers disagreed and found that while it was not scientifically possible to say with certainty that the disc injury was caused by the crash, it certainly was an event that materially contributed to the injury.

Mr. Justice Rogers assessed non-pecuniary damages at $100,000 but then reduced this award by 40% to take into account the fact that the injury may have occurred even without the crash.  In discussing causation the Court provided the following reasons:

[59] There is a conflict in the evidence concerning the cause of the herniation of the plaintiff’s lumbar disc at the L5-S1 joint. According to Dr. Laidlow, the plaintiff’s disc was probably not injured in the collision. He bases his opinion primarily on the fact that the plaintiff’s complaints of low back symptoms did not start until several weeks after the accident. According to Dr. Laidlow, if the disc had been damaged in the accident then the plaintiff would have had symptoms in that area right after the event and that she would not have been able to ignore those symptoms. According to Drs. Shuckett and Craig, the impact likely caused some damage to the plaintiff’s lumbar disc and that damage materially contributed to the herniation that the plaintiff subsequently experienced a year and a half later.

[60] I found Dr. Laidlow’s evidence to be particularly useful here. Dr. Laidlow said, and I accept, that a spinal disc comprises a containment vessel made up of fifteen to twenty layers of fibrous material and of viscous disc material lying within the containment vessel. The fibrous layers of the wall can, over time, suffer tears. The tears can be spontaneous or, rarely, they can be caused by trauma. The tears may heal over time, or they may not. Tears may occur without causing any symptoms at all. Enough tears may, at some point, be present in the disc wall so that the wall begins to fail. If that happens then the disc might bulge out. The bulging can intrude on pain sensitive tissues and pain may result.

[61] At some further point, enough tears may be present in the fibrous layers to compromise the wall itself and the wall breaks. In that event, the viscous inner disc material will escape from the disc. The escaped material is termed a protrusion and the condition is known as a herniated disc. The protrusion may impinge on surrounding tissues, causing local pain. The protrusion may also impinge on the nerve roots that exit the spine at the site of the hernia. In that case, symptoms usually include pain radiating along the area enervated by that particular nerve.

[62] Dr. Laidlow testified that an accident such as the one in which the plaintiff was involved would likely have caused damage of some kind to her spine. Dr. Laidlow was not willing to say for sure such damage included tears in the wall of the plaintiff’s lumbar disc. In his view, such damage was possible, but that he could not say for sure one way or the other. Given the several weeks’ delay between the trauma of the accident and the onset of the plaintiff’s low back pain, and the year and half that passed between the accident and the herniation, Dr. Laidlow felt that the accident could not be said to be a material contributing factor in the herniation.

[63] Although Drs. Schuckett and Craig did not say so in so many words, the gist of their evidence was that they thought that the accident probably did weaken the disc and thus materially contributed to the herniation that occurred on the Labour Day weekend of 2008.

[64] Dr. Laidlow cannot be faulted for testifying that there is no way to know if the accident in fact caused one or more tears to the wall of the plaintiff’s lumbar disc - no images exist to show the state of her disc in intimate detail immediately before or immediately after the accident, and no physical examination short of a biopsy could have illuminated that issue for him.

[65] I have concluded that the evidence in this case does not admit a scientifically certain answer to the herniation question. Scientific certainty is not necessary, however. As the Supreme Court of Canada said in Athey v. Leonati, [1996] 3 S.C.R. 458 at paragraph 16:

…Causation need not be determined by scientific precision; as Lord Salmon stated in Alphacell Ltd. v. Woodward, [1972] 2 All E.R. 475, at p. 490, and as was quoted by Sopinka J. at p. 328, it is “essentially a practical question of fact which can best be answered by ordinary common sense”. …

[66] After taking into account all of the medical evidence and the all of evidence of the plaintiff and her witnesses, and after applying a soupcon of common sense to the mix, I have concluded that the accident did cause some damage to the containment wall of the plaintiff’s L5-S1 disc and that that damage was a material contributing factor in the herniation that occurred at the end of August 2008. It follows that I find that the defendant is liable for damages caused by that herniation.

Adding to this site’s chronic pain non-pecuniary damages archives, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic pain and depression.

In this week’s case (Tsalamandris v. MacDonald) the Plaintiff was involved in two collisions, the first in 2004 and the second in 2006.  The Defendants admitted fault in both claims.  The Plaintiff suffered from “chronic pain and a depressive disorder which is quite debilitating“.  The cause of the Plaintiff’s disability was the main focus of trial with the Plaintiff arguing the collisions were responsible while the Defendants pointed to other explanations.

Ultimately the Court found that the the collisions were responsible for the Plaintiff’s injuries.  These were expected to be largely disabling for the duration of the Plaintiff’s career.  In assessing non-pecuniary damages at $100,000 Madam Justice Griffin provided the following reasons:

[223] I therefore conclude that but for the Accidents, the plaintiff would not have suffered the chronic pain and depression she suffered following the Accidents and continuing to this day and into the future.  The plaintiff has proven that the Accidents caused her conditions of chronic pain syndrome and depression…

The BC Court of Appeal released reasons for judgment this week providing a short and useful summary of the law of causation in personal injury lawsuits.

In this week’s case (Farrant v. Laktin) the Plaintiff was injured in a 2004 collision.  He had pre-existing problems due to spinal degeneration which continued to bother him at the time of the collision.  Following the collision the Plaintiff’s symptoms worsened.  At trial the Court rejected the argument that the Plaintiff’s on-going symptoms were related to the crash.  The BC Court of Appeal ordered a new trial finding that the Trial Judge did not apply the proper legal test for causation.  In doing so the Court provided the following helpful summary of the law:

Last year the BC Court of Appeal provided reasons for judgement in Clements v. Clements in which they tried to clarify the law of causation.

In short the BC Court of Appeal provided the following summary of the law of causation in BC negligence lawsuits:

[63]         In summary, having regard to the over-arching policy that the material-contribution test is available only when a denial of liability under the but-for test would offend basic notions of fairness and justice, I agree with the following statement made by Professor Knutsen in setting out his conclusions (at 187):

g)         The “but for” test rarely fails, and currently only in situations involving circular causation and dependency causation:

1)         Circular causation involves factual situations where it is impossible for the plaintiff to prove which one of two or more possible tortious causes are the cause of the plaintiff’s harm;

2)         Dependency causation involves factual situations where it is impossible for the plaintiff to prove if a third party would have taken some action in the face of a defendant’s negligence and such third party’s action would have facilitated harm to the plaintiff;

h)         If the “but for” test fails, the plaintiff must meet two pre-conditions to utilize the material contribution test for causation:

1)         It must be impossible for the plaintiff to prove causation (either due to circular or dependency causation); and,

2)         The plaintiff must be able to prove that the defendant breached the standard of care, exposed the plaintiff to an unreasonable risk of injury, and the plaintiff must have suffered that type of injury.

Today the Supreme Court of Canada granted the Plaintiff leave to appeal (permission to appeal).  Clarity in this area of personal injury law will be welcomed by lawyers across Canada and I’ll be sure to report on this case once reasons for judgement are handed down.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for serious injuries following a BC motor vehicle collision.

In this week’s case (Bouchard v. Brown Bros. Motor Lease Canada Ltd.) the Plaintiff was involved in a 2005 rear-end collision.  He was faced in an awkward position when his vehicle was struck and he sustained injuries.  Fault for the crash was admitted focussing the trial on assessing damages.

Although there was competing medical evidence, the Court ultimately found the collision was a cause of a L4-5 disc herniation which required bilateral discectomies and foraminotimies at the L4-L5 and L5-S1 levels of the spine.

The Plaintiff’s symptoms of pain continued and he ultimately was diagnosed with a chronic pain syndrome.  The Court accepted that the Plaintiff would likely not work in his profession again.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $160,000 Mr. Justice Pearlman provided the following comments:

[117]     I find that the motor vehicle accident was a significant factor contributing to the herniation of the plaintiff’s disc at L4-L5, and the development of the plaintiff’s symptoms of severe and disabling lower back pain, and that there is a substantial connection between Mr. Bouchard’s low back injuries and the motor vehicle accident….

[155]     The assessment of non-pecuniary damages depends upon the particular circumstances of the plaintiff in each case. The factors that the court must consider include the plaintiff’s age, the nature of his injury, the severity and duration of pain, disability, emotional suffering, impairment of marital and social relationships, impairment of physical and mental abilities, and loss of lifestyle:Stapley v. Hejslet, 2006 BCCA 34 at para. 46, leave to appeal ref’d 2006 CarswellBC 2598 (S.C.C.). Here, I find that the appropriate award for Mr. Bouchard in all of the circumstances is $160,000.

This case is also worth reviewing for the Court’s discussion of causation and indivisible injuries set out at paragraphs 97-117 of the reasons for judgement.  The Court found that while the collision was a cause of the injury, that there was “a very significant risk” that the Plaintiff’s back problems would have developed even absent the collision and the damages were reduced by 40% to take this risk into account.

Lastly, this case is worth reviewing for the Court’s discussion of the adverse inference principle.  Following the Plaintiff’s surgery the Plaintiff obtained and exchanged copies of the relevant medical records.  The Plaintiff called various expert witnesses to support the case but the treating surgeon was not called.  The Defence asked the Court to draw an adverse inference.  Mr. Justice Pearlman refused to do so and provided the following helpful reasons:

[121] Here, there has been full disclosure of Dr. Heran’s consultation reports and his operative procedure report. Those records were available to the defendant when Dr. Hepburn prepared his second report of October 27, 2009. It was open to the defendants to interview and call Dr. Heran if they chose to do so. Furthermore, in my view, Dr. Hunt, whose practice is devoted to the treatment of patients with chronic pain, and who was directly involved in the ongoing testing, management, and treatment of the plaintiff’s symptoms from October 2008 through May 2010, was in a better position than Dr. Heran to provide an opinion on the extent of the plaintiff’s disability and his requirements for future care. Finally, I also take into account the explanation of counsel for the plaintiff that obtaining an expert report from Dr. Heran would have put Mr. Bouchard to additional expense, and would have involved yet another review of all of the reports and clinical records of those doctors who did testify at trial. For all of these reasons, I decline to draw an adverse inference against the plaintiff.

Reasons for judgement were released this week by the BC Court of Appeal succinctly highlighting some of the limits of the forseeability defence to personal injury lawsuits.

In today’s case (Hussack v. Chilliwack School District No. 33) the Plaintiff sustained a concussion when struck in the head with a field hockey stick as he approached another player.  He was a student in grade 7 at the time and the game was being supervised by a PE teacher.  Madam Justice Boyd of the BC Supreme Court held that the School District was responsible for this event because the teacher permitted the Plaintiff to play before he “learned any of the basic skills or even how to play the game” and that doing so breached the standard of care that the school should have exercised.

The Plaintiff developed serious psychological issues following his concussion.   At trial the Plaintiff was awarded  just over $1.3 million for his injuries and loss.

The School District appealed for many reasons but were largely unsuccessful.  The BC Court of Appeal made some modest reductions to the wage loss awards but left the trial judgement largely intact.  One of the Defendant’s arguments was that the Plaintiff’s severe psychiatric dysfunction was not a forseeable consequence of the event.  The BC Court of Appeal rejected this argument and in doing so provided the following useful reminder of the limits of the forseeability defence:

[71] It is not necessary for the plaintiff to show that the precise injury or the full extent of the injury was reasonably foreseeable.  What he must show is that the type or kind of injury was reasonably foreseeable:  Hughes v. Lord Advocate, [1963] UKHL 1; Jolley v. Sutton London Borough Council, [2000] UKHL 31; Ontario (Minister of Highways) v. CĂ´tĂ©, [1976] 1 S.C.R. 595….

[74] The principle of reasonable foreseeability in relation to psychiatric injury is subject to a qualification:  where the psychiatric injury is consequential to the physical injury for which the defendant is responsible, the defendant is also responsible for the psychiatric injury even if this injury was unforeseeable.  See White v. Chief Constable of South Yorkshire Police, [1999] 2 A.C. 455 at 470, Varga v. John Labbatt, [1956] O.R. 1007, 6 D.L.R. (2d) 336 (H.C.);  Yoshikawa v. Yu (1996) 21 B.C.L.R. (3d) 318, 73 B.C.A.C. (C.A.);  Edwards v. Marsden, 2004 BCSC 590; Samuel v. Levi, 2008 BCSC 1447.

In an ICBC Claim decided last year the BC Court of Appeal simplified the approach for compensation for indivisible injuries caused by multiple events.  ICBC sought to overturn this decision and recently the Supreme Court of Canada refused leave (meaning they decided not to hear the case putting an end to the appeal).  For the sake of convenience here are the Court of Appeals key reasons explaining how indivisible injuries should be treated in British Columbia:

[32]        There can be no question that Athey requires joint and several liability for indivisible injuries.  Once a trial judge has concluded as a fact that an injury is indivisible, then the tortfeasors are jointly liable to the plaintiff.  They can still seek apportionment (contribution and indemnity) from each other, but absent contributory negligence, the plaintiff can claim the entire amount from any of them.

[33]        The approach to apportionment in Long v. Thiessen is therefore no longer applicable to indivisible injuries.  The reason is that Long v. Thiessen pre-supposes divisibility: Longrequires courts to take a single injury and divide it up into constituent causes or points in time, and assess damages twice; once on the day before the second tort, and once at trial.  Each defendant is responsible only for their share of the injury and the plaintiff can recover only the appropriate portion from each tortfeasor.

[34]        That approach is logically incompatible with the concept of an indivisible injury.  If an injury cannot be divided into distinct parts, then joint liability to the plaintiff cannot be apportioned either.  It is clear that tortfeasors causing or contributing to a single, indivisible injury are jointly liable to the plaintiff.  This in no way restricts the tortfeasors’ right to apportionment as between themselves under the Negligence Act, but it is a matter of indifference to the plaintiff, who may claim the entire amount from any defendant.

[35]        This is not a case of this Court overturning itself, because aspects of Long v. Thiessen were necessarily overruled by the Supreme Court of Canada’s decisions in Athey,E.D.G., and Blackwater.  Other courts have also come to this same conclusion: see Misko v. Doe, 2007 ONCA 660, 286 D.L.R. (4th) 304 at para. 17.

[36]        It may be that this represents an extension of pecuniary liability for consecutive or concurrent tortfeasors who contribute to an indivisible injury.  We do not think it can be said that the Supreme Court of Canada was unmindful of that consequence.  Moreover, apportionment legislation can potentially remedy injustice to defendants by letting them claim contribution and indemnity as against one another.

[37]        We are also unable to accept the appellant’s submission that “aggravation” and “indivisibility” are qualitatively different, and require different legal approaches.  If a trial judge finds on the facts of a particular case that subsequent tortious action has merged with prior tortious action to create an injury that is not attributable to one particular tortfeasor, then a finding of indivisibility is inevitable.  That one tort made worse what another tort created does not automatically implicate a thin or crumbling skull approach (as in Blackwater), if the injuries cannot be distinguished from one another on the facts.  Those doctrines deal with finding the plaintiff’s original position, not with apportioning liability.  The first accident remains a cause of the entire indivisible injury suffered by the plaintiff under the “but for” approach to causation endorsed by the Supreme Court of Canada in Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333.  As noted by McLachlin C.J.C. in that case, showing that there are multiple causes for an injury will not excuse any particular tortfeasor found to have caused an injury on a “but-for” test, as “there is more than one potential cause in virtually all litigated cases of negligence” (at para. 19).  It may be that in some cases, earlier injury and later injury to the same region of the body are divisible.  While it will lie for the trial judge to decide in the circumstances of each case, it is difficult to see how the worsening of a single injury could be divided up.

It is well established that a small percentage of people who suffer from whiplash associated disorder following a collision go on to experience pain for a prolonged period of time.

When cases with prolonged injury go to trial it is not uncommon for the Court to hear competing medical evidence as to the cause of the chronic pain.  Oftentimes defence doctors provide opinions that causes unrelated to the collision are responsible for a Plaintiff’s ongoing symptoms.  Reasons for judgement were released today by the BC Supreme Court, Powell River Registry, dealing with and dismissing such a defence.

In today’s case (Borgfjord v. Penner) the Plaintiff was involved in a rear-end collision.  Fault for the crash was admitted by the Defendant.  The trial focused on the value of the Plaintiff’s claim.

The Plaintiff injured her neck in the crash.  She went on to have chronic symptoms of pain.  The Defendants acknowledged that the Plaintiff likely had on-going pain but argued that this was unrelated to the crash and instead was as a result of ‘degenerative changes’ .  Mr. Justice Shabbits rejected this argument and went on to assess the Plaintiff’s non-pecuniary damages for her chronic whiplash injury at $85,000.  In rejecting the defence argument the Court provided the following useful reasons:

[74] Dr. Dommisse’s opinion is that cervical strain caused the plaintiff’s early problems and that her cervical strain symptoms likely resolved within 6 months to 2 years post accident. His opinion is that degenerative changes caused the plaintiff’s later problems. He says that degenerative changes are the cause of the plaintiff’s continuing problems…

[98]         In my opinion, the plaintiff has established that the accident caused her to suffer a cervical strain.

[99]         In my opinion, Dr. Dommisse is speculating when he opines that the plaintiff’s accident caused symptoms have already resolved. The usual pattern of soft tissue injury may well involve the resolution of symptoms within 6 months to two years post injury, but the plaintiff’s complaints have continued unabated and there is no certainty that the plaintiff’s disc protrusion or degenerative condition of the spine is now or ever has been symptomatic. Dr. Waterman’s opinion is that what he saw on the MRI, (which includes the disc protrusion), is unlikely to be clinically significant. He says it is difficult to attribute spine pain to what he observed.

[100]     I accept the opinion and prognosis of Dr. Waterman. In my opinion, his evaluation and analysis of the medical evidence is persuasive.

[101]     I find that the plaintiff suffered a whiplash injury in the motor vehicle accident and that her whiplash caused injuries are ongoing. I think it more likely than not that the plaintiff falls within that category of patients referred to by Dr. Waterman who experience whiplash caused pain for years post-accident. I find that the most likely outcome of the plaintiff’s injuries is that she will be improved in several years, but that she will suffer intermittent pain which she will be able to largely control by modulating her activities…

[124] I assess the plaintiff’s non-pecuniary damages at $85,000…

(Please note the case discussed in this post is currently under appeal at the Supreme Court of Canada)

In order to successfully sue for personal injuries in negligence you must prove that the person you are suing was a cause of your injuries.  This sounds simple enough but in fact it is a fairly involved area of personal injury law.   Today the BC Court of Appeal released reasons for judgement attempting to clarify the principle of causation.

In today’s case (Clements v. Clements) the Plaintiff, a passenger on a motorcycle, was seriously injured when the driver “pulled out to pass another vehicle, (then) a sharp object, likely a nail, punctured the rear tire of the motorcycle causing it to rapidly deflate”.  This caused the motorcycle to capsize and flip over resulting in injuries to the Plaintiff.

The Plaintiff sued and succeeded at the trial level with the judge finding that the Defendant was driving too fast and the bike was overloaded and this materially contributed to the loss of control.  The insurer for the Defendant appealed arguing that the judge was wrong in using the ‘material contribution‘ test.  The BC Court of Appeal agreed and dismissed the Plaintiff’s lawsuit.

The Court discussed the law of causation at length at paragraphs 38-62 and the judgement is worth reviewing in full for anyone interested in this issue.  The Court concluded with the following short summary of the test Judges are to use in establishing ‘causation’ in BC negligence lawsuits:

[63]         In summary, having regard to the over-arching policy that the material-contribution test is available only when a denial of liability under the but-for test would offend basic notions of fairness and justice, I agree with the following statement made by Professor Knutsen in setting out his conclusions (at 187):

g)         The “but for” test rarely fails, and currently only in situations involving circular causation and dependency causation:

1)         Circular causation involves factual situations where it is impossible for the plaintiff to prove which one of two or more possible tortious causes are the cause of the plaintiff’s harm;

2)         Dependency causation involves factual situations where it is impossible for the plaintiff to prove if a third party would have taken some action in the face of a defendant’s negligence and such third party’s action would have facilitated harm to the plaintiff;

h)         If the “but for” test fails, the plaintiff must meet two pre-conditions to utilize the material contribution test for causation:

1)         It must be impossible for the plaintiff to prove causation (either due to circular or dependency causation); and,

2)         The plaintiff must be able to prove that the defendant breached the standard of care, exposed the plaintiff to an unreasonable risk of injury, and the plaintiff must have suffered that type of injury.

[64]         What does this mean for the present case?  It means that once the trial judge determined that Mrs. Clements had failed to establish that the motorcycle would not have capsized but for Mr. Clements’s negligence, he should have found that causation had not been proven.  This is not a case involving either circular or dependency causation.  Rather, it is a case like many others in which, given the current state of knowledge, it is not possible to prove whether the negligent actions of a defendant caused harm.  I do not consider it either unfair or unjust, or, to use the words of Professor Knutsen (at 172), “just plain wrong” not to fix Mr. Clements with liability when Mrs. Clements has been unable to show factually that his negligence was a cause of her damages.