



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


Bohun 
          v. Segal,







2008 
          BCCA 23



Date: 20080122

Docket: CA034887

Between:

Pamela 
    Bohun

Respondent

(
Plaintiff
)

(Appellant on Cross Appeal)

And

Dr. 
    Jean Michael Segal

Appellant

(
Defendant
)

(Respondent on Cross 
    Appeal)




Before:


The 
          Honourable Madam Justice Kirkpatrick




The 
          Honourable Mr. Justice Frankel




The 
          Honourable Mr. Justice Tysoe








J. 
          M. Lepp, Q.C.  and C.L. Khanna


Counsel for the Appellant




S.H. 
          Ashcroft and C. Sweet


Counsel for the Respondent




Place 
          and Date of Hearing:


Vancouver, British Columbia




13 November 2007




Place 
          and Date of Judgment:


Vancouver, British Columbia




22 January 2008








Written 
          Reasons by
:




The 
          Honourable Madam Justice Kirkpatrick




Concurred 
          in by:




The 
          Honourable Mr. Justice Frankel

The 
          Honourable Mr. Justice Tysoe



Reasons 
    for Judgment of the Honourable Madam Justice Kirkpatrick:

[1]

The central issue in this appeal is whether the trial judge erred in 
    principle in adopting the material contribution test of causation.  The case 
    at trial concerned the delayed diagnosis of breast cancer.  The trial judge 
    found that when the plaintiff, Pamela Johnston (who was known as Pamela Bohun 
    at the time the writ of summons was filed), first saw the defendant, Dr. Segal, 
    she was suffering from undiagnosed breast cancer.  The trial judge found that, 
    at that time, Ms. Johnston had about a 79% chance of survival and a 21% chance 
    of death from the disease.  The trial judge found that Dr. Segal was in breach 
    of his duty of care to Ms. Johnston by failing to perform a biopsy which, 
    if performed, would have disclosed the breast cancer and resulted in the removal 
    of the tumour at that time.  The tumour was later excised.  The trial judge 
    found that the delay in diagnosis decreased Ms. Johnston's chance of survival.

[2]

Ms. Johnston claimed damages for her reduced life expectancy or "lost 
    years" and her increased pain and suffering during those years.

[3]

The trial judge concluded that, since the plaintiff could not prove 
    whether the cancer had metastasized before or after she first saw Dr. Segal, 
    he ought to adopt the "material contribution" test of causation.  
    He found in favour of the plaintiff.

[4]

Dr. Segal appeals from the finding of liability.  Ms. Johnston filed 
    a cross appeal on 2 April 2007 from the trial judge's assessment of damages.  
    She died prior to the hearing of the appeal.

[5]

The essential facts of the case are not in dispute.

[6]

On 12 April 2001, Ms. Johnston attended at the office of her family 
    physician, Dr. Sennewald, because she was concerned about a breast lump she 
    had noticed a few days earlier.  The expert medical evidence was that the 
    size of the tumour is a critical factor in the diagnosis, treatment and prognosis 
    of breast cancer.  Ms. Johnston testified that the lump was then the size 
    of a pea.  Dr. Sennewald palpated the breast.  Her impression was that the 
    lump was approximately 2 cm in size, which she recorded in Ms. Johnston's 
    chart.  The trial judge accepted Dr. Sennewald's evidence.

[7]

Dr. Sennewald considered that Ms. Johnston probably had fibrocystic 
    breasts, a benign diagnosis. However, because of her patient's concern, Dr. 
    Sennewald referred Ms. Johnston for an ultrasound and mammogram, which were 
    scheduled for 8 May 2001.

[8]

On 8 May 2001, prior to ultrasound and mammogram tests, Ms. Johnston 
    had a complete physical examination by Dr. Sennewald.  Ms. Johnston testified 
    that she told Dr. Sennewald at that time that the lump had grown from the 
    size of a pea to approximately the size of a quarter.  Dr. Sennewald's clinical 
    notes indicate that there had been no change in the size of the lump.  The 
    trial judge again accepted Dr. Sennewald's evidence.

[9]

The mammogram report was interpreted as showing "[D]ense irregular 
    fibrocystic stoma.  No evidence of mass or malignant change identified".

[10]

The ultrasound report showed a 24 x 13 x 23 mm solid, irregular mass. 
     The ultrasound was interpreted as showing a "[r]ight breast mass, just 
    above and behind the nipple.  May be a cyst with a clot or a fibroadenoma.  
    Biopsy is recommended, however, for further assessment."

[11]

Dr. Sennewald testified that, after reviewing the mammogram and ultrasound 
    results, she referred Ms. Johnston to the defendant, Dr. Segal, a general 
    surgeon who specializes in the treatment of breast cancer, to "rule out 
    cancer and for biopsy or as per [his] advice".  Dr. Sennewald was a defendant 
    at trial.  The trial judge found that she met the standard of care of a general 
    practitioner and dismissed the action against her.  There is no appeal from 
    that order.

[12]

Ms. Johnston first saw Dr. Segal on 15 June 2001.  He examined her 
    breast and found a mobile, smooth, discrete mass that he measured with a ruler 
    to be 2.5 cm in size.  His impression was that Ms. Johnston had a benign right 
    breast mass likely to be a fibroadenoma.

[13]

On 15 June 2001, Dr. Segal wrote to Dr. Sennewald and advised her that 
    Ms. Johnston's "benign right breast mass" would be observed over 
    the following three months.  Ms. Johnston was to contact him if there were 
    any changes.

[14]

The trial judge found that Dr. Segal did not follow his standard practice 
    of recommending that a biopsy be performed and that the failure to do so was 
    a breach of the standard of care.  No appeal is taken from that finding.

[15]

Ms. Johnston missed her next scheduled appointment with Dr. Segal on 
    24 September 2001.  She saw him for follow-up on 22 October 2001.  Dr. Segal's 
    notes indicate that Ms. Johnston told him that the lump was increasing in 
    size.  His examination, again with a ruler, indicated that the lump was still 
    2.5 cm in size.  He observed that the breast was tender and made arrangements 
    to have the lump removed.

[16]

On 10 January 2002, Dr. Segal performed an excisional biopsy.  The 
    pathological size of the tumour was 4.5 cm in size.  The trial judge accepted 
    that Dr. Segal's clinical assessment of 2.5 cm to 3 cm at the time of surgery 
    was different from the pathological size because clinical assessments cannot 
    measure the microscopic extensions of the tumour.  The pathological findings 
    of tumour extension necessitated further surgery to ensure that all of the 
    tumour was removed.

[17]

On 28 January 2002, Dr. Segal performed a right partial mastectomy 
    and axillary dissection (also known as breast conserving surgery).  The pathology 
    report following that surgery indicated that there was no evidence of residual 
    malignancy and eight nodes were found to be negative for metastatic carcinoma.  
    The surgery was followed by radiation therapy.

[18]

Ms. Johnston underwent four cycles of chemotherapy from May to June 
    2002, followed by radiation therapy in July 2002.

[19]

Ms. Johnston married in May 2003.  On 5 May 2004 she gave birth to 
    her daughter.  The trial judge described the events that followed at paras. 
    2930 of his reasons (2007 BCSC 269, 46 C.C.L.T. (3d) 138):

In April 2004, near the end of her pregnancy she felt something at the source 
    of her earlier tumour.  An ultrasound was negative.  In June 2004, another 
    ultrasound test was performed followed by a needle biopsy which determined 
    that her breast cancer had recurred at the same site.  A treatment plan was 
    discussed and it was determined that both breasts should be removed.

Prior to surgery taking place, however, test results from a CT scan showed 
    that the cancer had spread to her lungs.  Surgery was no longer a viable treatment 
    option.  By July 2006, the cancer had spread to Ms. Johnstons hip, liver 
    and bone area.  Tumours had grown in her lungs, as had the lump in her breast.  
    She is now in a palliative care program.  Her prognosis is very poor and she 
    has but months to live.

[20]

Ms. Johnston died in June 2007, approximately four months after the 
    trial.

[21]

As I have noted, the central issue at trial was the effect of the delay 
    in diagnosis between June 2001 (when Ms. Johnston first saw Dr. Segal) and 
    January 2002 (when the excisional biopsy was performed).

[22]

The defendants called Dr. Olivotto, a radiation oncologist at the B.C. 
    Cancer Agency (the "Cancer Agency"), who was the only expert qualified 
    to give evidence as to how a delay in diagnosis affects the prognosis of patients 
    with breast cancer.

[23]

The plaintiff's expert surgeon, Dr. Woo, was qualified to give an opinion 
    on the standard of care.  Dr. Woo's practice is to leave specific discussions 
    of a patient's prognosis to the oncologists at the Cancer Agency.

[24]

There was no dispute that a delay in diagnosis and treatment increases 
    the risk of relapse of the cancer and death.  Dr. Olivotto testified that 
    the ten-year risk of death from breast cancer for a tumour 2.1 cm to 3.0 cm 
    in size was 21%, and for a tumour 3.1 cm to 5.0 cm the risk was 25%.

[25]

The trial judge summarized the scientific and medical evidence and 
    his findings in respect of the effects of delay in diagnosis at paras. 8992 
    of his reasons:

It is a complicated task to integrate the effects on risk estimates of all 
    the clinical, pathology and treatment factors to determine a valid estimate 
    for the risk of recurrence or death from breast cancer for an individual woman.  
    In recent years, a web-based algorithm has been developed that provides a 
    convenient and reliable way to incorporate an individual womans clinical 
    and pathological features at the time of diagnosis with the estimates of the 
    [effects] of various chemotherapy and hormonal treatment that she might receive.  
    The program known as ADJUVANT! is accepted as a reliable predictor of ultimate 
    outcomes.

Dr. Olivotto used ADJUVANT! to calculate the risk of relapse from breast cancer 
    for a woman whose age and cancer was that of Ms. Johnstons.  The 10-year 
    risk of death for a woman with a tumour of 2.1 cm to 3.0 cm was 21%.  For 
    a tumour measuring 3.1 cm to 5.0 cm, the 10-year risk of death was 25%.  Growth 
    from 2.5 cm to 4.0 cm would increase a young womans risk of spread or death 
    from breast cancer about 3% to 4%.  A change from 3.0 cm to 4.5 cm as exists 
    in this case, would increase the risk of death by approximately 2% to 3%.  
    Stated another way, if Ms. Johnstons tumour had been removed in June 2001, 
    it would have increased her chances of survival by 10% to 15%.

ADJUVANT! does not take into account the form of Ms. Johnstons cancer.  As 
    previously noted, ACC [adenoid cystic carcinoma] is a very rare tumour which 
    accounts for less than 1% of all breast cancers.  Research indicates that 
    ACC tumours are slow growing and rarely metastasize.  Patients with such tumours 
    generally have a more favourable prognosis than other breast cancer patients.  
    Dr. Olivotto did not reduce the risk factors because he considered the tumour 
    a variation of ACC, which he believed was more likely to act like other cancers.  
    He acknowledged that the rareness of the tumour made the determination more 
    difficult.


I accept generally Dr. Olivottos evidence in regard to the impact that 
    delay of the diagnosis had on Ms. Johnston.  Even if the tumour had been diagnosed 
    in June, as it should have been, there was a significant risk that she would 
    die.  The growth of the tumour subsequent to June 15, 2001 reduced her chance 
    of survival by a further 10% to 15%.  This number must be adjusted to take 
    into account the nature of her cancer.
In making this adjustment, I am 
    aware that the pathologist suggested that this was a variant of ACC of which 
    little is known.  However, given the evidence that ACC is rarely fatal, I 
    find that if Dr. Segal had removed the tumour in June 2001, Ms. Johnston had 
    a 20% increased chance of survival.

[Emphasis added.]

[26]

It appears that the trial judge confused the plaintiff's increased 
    risk of death with her decreased likelihood of survival.  For example, he 
    noted that the growth of the tumour subsequent to 15 June 2001 reduced the 
    plaintiff's likelihood of survival by 1015%.  In fact, based on the scientific 
    evidence accepted by the trial judge, the plaintiff's
risk of death
was increased by a relative 1015% due to the delay in diagnosis.  Her likelihood 
    of survival decreased by a nominal amount, 34%, which is a relative decrease 
    of 3.85%, due to the delay.  This error is an unintended transposition of 
    two easily confused terms (risk of death versus likelihood of survival).  
    As will be seen, this error is of no consequence in the final analysis of 
    causation.  However, in these reasons, I have chosen to correct the unintended 
    transposition, and I rely on the facts that the trial judge must have intended 
    to find, namely that the plaintiff's risk of death increased by a relative 
    1015% due to the delay in diagnosis.

[27]

Following his erroneous expression as to the plaintiff's likelihood 
    of survival, the trial judge adjusted the figure from 1015% to 20% to account 
    for the rare type of cancer suffered by the plaintiff.  By properly expressing 
    the trial judge's finding as to the risk of death versus likelihood of survival, 
    it is clear that the plaintiff's relative risk of death was increased by 20% 
    due to the missed diagnosis and the type of cancer she had.

[28]

As I have noted, the trial judge found that Dr. Segal breached the 
    standard of care by failing to recommend a biopsy in June 2001.  He found 
    that the plaintiff would have undergone the procedure and that the cancer 
    would have been detected.  He then considered whether the failure to detect 
    the cancer in June 2001 caused damage to the plaintiff.

[29]

The trial judge first considered the principles of causation recently 
    restated by the Supreme Court of Canada in
Resurfice Corp. v. Hanke
, 
    2007 SCC 7, [2007] 1 S.C.R. 333.

[30]

The trial judge described the parties' positions at paras. 71 and 75:

Ms. Johnston submits Dr. Segals failure to discover the cancer in June 2001 
    was a material contribution to her injury and loss.  She says that the plaintiffs 
    injury clearly falls within the ambit of risk created by Dr. Segals breach 
    of the standard of care.  She submits that liability may be imposed, even 
    though the but for test is not satisfied, because it would offend basic 
    notions of fairness and justice to deny liability in these circumstances.

[.]

The defendants submit the plaintiff has not proved that but for the alleged 
    delay there would not have been a reoccurrence of Ms. Johnstons breast cancer.  
    They submit that the evidence has established that the more likely cause of 
    the reoccurrence and spread is the breast cancer itself.

[31]

He concluded his analysis of causation at paras. 9395:

This discussion returns us to the submissions of the parties on causation.  
    The defendant submits that Ms. Johnston has not proven that but for the 
    alleged delay she would not have had a recurrence of her breast cancer.  In 
    their submission, the most likely cause of the recurrence and spread is the 
    breast cancer itself.  They submit that at best, Ms. Johnston has established 
    a lost chance, and that such a loss is not sufficient to establish causation:
Laferriere v. Lawson
, [1991] 1 S.C.R. 541.

I do not agree.  This is not a lost chance case, but a causation case.  
    This case meets the special circumstances that require an application of the 
    material contribution test.  In the language of
Resurfice
, it is impossible 
    for Ms. Johnston to prove that Dr. Segals negligence caused her injury using 
    the but for test.  The impossibility is due to factors that are outside 
    of her control.  While it is known that the cancer metastasized to other parts 
    of Ms. Johnstons body prior to the first surgery in January 2002, it is impossible, 
    due to the current limits of scientific knowledge, to know whether that migration 
    took place before or after June 2001.

Dr. Segals negligence caused the delay in diagnosis and treatment.  Any delay 
    in the treatment of breast cancer increases the risk.  The delay in treatment 
    materially contributed to the fatal outcome Ms. Johnston now faces.  Ms. Johnstons 
    injury falls within the ambit of the risk created by Dr. Segals negligence 
    when he failed to do a biopsy in June 2001.

[32]

The trial judge discussed damages at paras. 9798:

The measure of damages is subject to any contingencies that might reduce them.  
    Ms. Johnston is only entitled to be returned to the position she would have 
    enjoyed, with all its attendant risks and shortcomings, but for Dr. Segal's 
    negligence:
Athey v. Leonati
, [1996] 3 S.C.R. 458.

The contingency of unsuccessful treatment and recurrence must be considered 
    and taken into account in the assessment of damages.  I have found that if 
    Ms. Johnston's condition had been properly diagnosed in June 2001 that her 
    chances of survival would have increased [by] 20%.  Except for the award for 
    psychological damage, the damage awards must be discounted by a global contingency 
    of 80% to reflect that fact.

[33]

The trial judge then assessed Ms. Johnston's damages which are summarized 
    at paras. 117118:

I award the plaintiff the following sums:





1.  
            Non-pecuniary damages:


$ 100,000.00




2.  
            Past wage loss:


42,500.00




3.  
            Loss of Future Earning Capacity:


100,000.00




4.  
            Special Damages:



30,073.39




Total:


$272,573.39




The above awards are subject to an 80% deduction to reflect the contingency 
    that Ms. Johnston may not have survived even if Dr. Segal had properly diagnosed 
    her cancer in June 2001.  This reduces the award to $54,514.67.  In addition, 
    I award Ms. Johnston $25,000 in psychological damages, which award is not 
    subject to deduction.  Judgement is awarded against Dr. Segal for $79,521.52.

Arguments on Appeal

[34]

The appellant's fundamental argument is that the trial judge erred 
    in principle when he found Dr.Segal's delay in treatment caused the harm even 
    though the relative increase in the risk of harm from that delay was only 
    20%.

[35]

The respondent cross-appeals on the basis that the trial judge erred 
    in principle in reducing by 80% her damages for non-pecuniary loss, past wage 
    loss, loss of future earning capacity and special damages, and in awarding 
    the amounts he did for non-pecuniary damages, past wage loss and future earning 
    capacity.

[36]

Dr. Segal, as respondent on the cross-appeal, concedes that the trial 
    judge erred in reducing Ms. Johnston's damages by 80%.  Based on the principles 
    enunciated in
Athey v. Leonati
, [1996] 3 S.C.R. 458, Dr. Segal 
    agrees that once causation is established, a defendant is fully liable for 
    the damages suffered by a plaintiff subject to any negative contingencies 
    to be applied.  Dr. Segal contends that in this case, if causation were established, 
    the appropriate negative contingency would be 21% based on the fact that Ms. 
    Johnston already had a 21% chance of dying at the time the diagnosis should 
    have been made.  Ms. Johnston's counsel urged a 10% negative contingency based 
    on Ms. Johnston's existing 21% risk of death, less 11% to take into account 
    her relatively rare and rarely fatal form of breast cancer.

[37]

Because I hold the view that the trial judge erred in principle in 
    finding causation, I need not discuss the assessment of damages, other than 
    to say that I agree that the trial judge erred in reducing damages in the 
    manner he did as offending well-established principles of damage assessment.  
    In my opinion, the trial judge conflated the evidence in respect of causation 
    with the appropriate negative contingency applicable in determining the appropriate 
    measure of damages.

[38]

The appellant, Dr. Segal, conceded that, regardless of the success 
    of the appeal, Ms. Johnston remains entitled to the $25,000 awarded to her 
    for the psychological damages she suffered due to the failure to diagnose 
    her condition.  Dr. Segal concedes that the award of those damages is not 
    contingent on a finding of causation in that Dr. Segal accepts that Ms. Johnston 
    experienced psychological distress from the knowledge of her missed diagnosis.

[39]

I turn now to the central issue, causation.

Causation

[40]

As I have noted, the trial judge referred to the recent Supreme Court 
    of Canada decision in
Resurfice Corp. v. Hanke
, in which the 
    court, per McLachlin C.J., summarized the applicable principles of causation:

20        
    Much judicial and academic ink has been spilled over the proper test for causation 
    in cases of negligence.  It is neither necessary nor helpful to catalogue 
    the various debates.  It suffices at this juncture to simply assert the general 
    principles that emerge from the cases.

21        
    First, the basic test for determining causation remains the "but for" 
    test.  This applies to multi-cause injuries.  The plaintiff bears the burden 
    of showing that "but for" the negligent act or omission of each 
    defendant, the injury would not have occurred.  Having done this, contributory 
    negligence may be apportioned, as permitted by statute.

22        
    This fundamental rule has never been displaced and remains the primary test 
    for causation in negligence actions.  As stated in
Athey v. Leonati
, 
    at para. 14,
per
Major J., "[t]he general, but not conclusive, 
    test for causation is the 'but for' test, which requires the plaintiff 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 have been incurred on 
    a balance of probabilities."

23        
    The "but for" test recognizes that compensation for negligent conduct 
    should only be made "where a substantial connection between the injury 
    and defendant's conduct" is present.  It ensures that a defendant will 
    not be held liable for the plaintiff's injuries where they "may very 
    well be due to factors unconnected to the defendant and not the fault of anyone":
Snell v. Farrell
, at p. 327,
per
Sopinka J.

24        
    However, in special circumstances, the law has recognized exceptions to the 
    basic "but for" test, and applied a "material contribution" 
    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 "but for" test.  
    The impossibility must be due to factors that are outside of the plaintiff's 
    control; for example, current limits of scientific knowledge.  Second, it 
    must be clear that the defendant breached a duty of care owed to the plaintiff, 
    thereby exposing the plaintiff to an unreasonable risk of injury, and the 
    plaintiff must have suffered that form of injury.  In other words, the plaintiff's 
    injury must fall within the ambit of the risk created by the defendant's breach.  
    In those exceptional cases where these two requirements are satisfied, liability 
    may be imposed, even though the "but for" test is not satisfied, 
    because it would offend basic notions of fairness and justice to deny liability 
    by applying a "but for" approach.

[41]

Lord Hoffmann recently stated the English equivalent of the "but 
    for" test in
Barker v. Corus
, [2006] UKHL 20, [2006] 3 
    All E.R. 785 at para. 1:

The 
    standard rule is that it is not enough to show that the defendant's conduct 
    increased the likelihood of damage being suffered and
may
have caused 
    it.  It must be proved on a balance of probability that the defendant's conduct
did
cause the damage in the sense that it would not otherwise have 
    happened.

[Emphasis in original.]

[42]

The medical and scientific evidence in the case at bar was unique in 
    that it provided highly accurate predictions of the increased likelihood of 
    death depending on the size of the breast cancer tumour.

[43]

It was a matter of no controversy that a diagnosis of breast cancer 
    alters the prognosis of the patient.  Dr. Olivotto testified that life expectancy 
    following a diagnosis of breast cancer is determined by a number of factors:

·
age of the patient;

·
whether 
    the tumour has spread to the lymph nodes under the arm;

·
the size of the tumour; and

·
certain 
    features of the tumour such as cell grade or the degree of microscopic abnormality.

Both 
    Dr. Olivotto and Dr. Woo considered the size of the tumour at the time it 
    could have been diagnosed to be an important factor.

[44]

In his medical legal report, Dr. Olivotto outlined the various factors 
    that are taken into account in arriving at a prognosis:

The 
    prognosis of breast cancer is related to a number of clinical and pathological 
    features that can be determined at the time of diagnosis.  The factors which 
    have most consistently been demonstrated to influence the subsequent likelihood 
    of relapse or death from breast cancer include the number of involved axillary 
    lymph nodes, the size of the primary tumor, the tumor's grade (a measure of 
    how abnormal the cells look on microscopic examination, typically scored on 
    a scale of 1 to 3) and the presence of lymphatic or vascular space invasion 
    in the tumor.  Patients who are younger (age <40 years) and those with 
    Estrogen Receptor (ER) negative tumors also have a higher risk of recurrence 
    and death.  Various publications from the Breast Cancer Outcomes Unit, as 
    well as elsewhere, have confirmed that these features can reliably be used 
    to predict the future outcome after a diagnosis of breast cancer.

[45]

In his evidence at trial, Dr. Olivotto confirmed that the pathological 
    measurement of the tumour is closely associated with outcomes.

[46]

Dr. Segal agreed in cross-examination that tumour size directly correlates 
    with survival.

[47]

As can be seen from the trial judge's summary of the scientific and 
    medical evidence, a unique feature of this case was the availability of the 
    ADJUVANT! prognostic tool.  Dr. Olivotto testified at some length as to the 
    ADJUVANT! program.  He stated that the program was shown to predict, within 
    one per cent, the outcomes for patients with breast cancer. As Dr. Olivotto 
    explained, the algorithm clusters the tumours into groups of less than one 
    centimetre; 1 to 2 centimetres; 2.1 to 3 centimetres; 3.1 to 5 centimetres, 
    and so on.  When applying the ADJUVANT! model to Ms. Johnston's circumstances, 
    Dr. Olivotto inputted a tumour of between 2.1 to 3 centimetres and then stated:

[] 
    when we incorporate the risk of dying from the breast cancer minus the potential 
    benefit of chemotherapy it comes to about a 21% chance of mortality, or, in 
    other words, a 79% chance of being alive 10 years later.  If the tumor was 
    four-and-a-half centimetres but otherwise the same characteristics that were 
    seen in the pathology report:  grade II, ER negative, 34-year-old womanitit 
    comes out toit was about 24-and-a-half per cent and I round it up to 25% 
    chance of death 10 years from diagnosis, or about a 75% chance of being alive, 
    and that's including the benefits of chemotherapy that she received.  So, 
    inin summary, about a 4% difference if the growth was from two-and-a-half 
    to four-and-a-half centimetres.  If the growth was less than that then the 
    magnitude of benefit of adverse effect on survival would be a bit lower, so 
    somewhere between 1 and 4% is probablyprobably reality.

The 
    trial judge accepted Dr. Olivotto's explanation as to the application of the 
    ADJUVANT! program.  Alive to the difference between clinical and pathological 
    measurement, and the need to track tumour growth by reference to one method 
    of measurement, the trial judge accepted expert opinion as to the likely pathological 
    size of the tumour in June 2001 and incorporated in his own analysis tumour 
    growth of either 2.5 cm to 4.0 cm or 3.0 cm to 4.5 cm.  Depending on which 
    set of numbers is chosen, the increase in absolute risk of death fluctuates 
    by, at most, one per cent and does not alter the analysis of causation.

[48]

The trial judge was aware that tumour size is key in determining prognosis.  
    He noted at paras. 8687 of his reasons:

All witnesses agreed that a delay in the diagnosis of breast cancer is associated 
    with a poor outcome.
Delays of diagnosis allow a

tumour to enlarge 
    and spread and for the cancer to travel to other parts

of the body
where it may for some years sit dormant before recurring.

The prognosis of breast cancer is related to a number of clinical and pathological 
    features including the size of the primary tumour, the number of involved 
    axillary lymph nodes, the tumours grade and the age of the patient.  Patients 
    who are younger than 40 years old have a higher risk of recurrence and death.

[Emphasis 
    added.]

[49]

The evidence before the trial judge, and accepted by him, established 
    that the delay in diagnosis increased Ms. Johnston's risk of death from breast 
    cancer from 21% (her risk from dying from breast cancer on 15 June 2001 when 
    the tumour ought to have been diagnosed) to 23 or 24% (rounded to 25%, as 
    explained earlier).  In other words, accepting the trial judge's findings 
    of fact, and his allowance for the rare type of cancer the plaintiff had, 
    the missed diagnosis relatively increased the plaintiff's risk of death by 
    20% and in absolute terms the plaintiff's risk of death rose from 21% (if 
    the tumour had been diagnosed and removed immediately) to approximately 25%.  
    That is, a 4% absolute increase in the plaintiff's risk of death represents 
    an approximate 20% relative increase.  The 20% relative increase in the plaintiff's 
    risk of death represented a causation probability of 20%.

[50]

The trial judge placed critical emphasis on the 21% figure, and on 
    the increase to 25%, which were statistical probabilities indicating the increasing 
    risk of death for Ms. Johnston, who had a growing tumour in her breast. Having 
    accepted this medical and statistical evidence, the trial judge had a sufficient 
    and appropriate basis for conducting the but for analysis.

[51]

However, the trial judge anchored his decision to apply the material 
    contribution test in the fact that it is impossible [] to know whether the 
    migration took place before or after June 2001 (para. 94). This solitary 
    statement, which appears late in his reasons, propelled the remainder of his 
    causation analysis, but completely devalued the significance of the ADJUVANT!-generated 
    evidence, which the trial judge accepted and used as the basis for his earlier 
    statistical exposition of the plaintiffs increased risk of death due to her 
    enlarged tumour.  The weight of the medical evidence accepted by the trial 
    judge was that the size of the tumour is predictive of the probability of 
    recurrence, spread and death.  In other words, a prognosis generated by ADJUVANT! 
    incorporates the potential eventuality of migration or metastasis.

[52]

The appellant thus contends, and I agree, that based on the evidence 
    of Dr. Olivotto and the application of the ADJUVANT! program to the circumstances 
    that confronted the plaintiff, the defendant, while obviously not obliged 
    to do so, had disproved causation.  In order for the plaintiff to succeed, 
    she had to prove that it was more probable than not that proper and timely 
    diagnosis and treatment would have prevented her loss  namely, that she would 
    likely have lived longer had Dr. Segal not been negligent (see
Hotson 
    v. East Berkshire Area Health Authority
, [1987] 2 All E.R. 909 (H.L.)). 
    To state it another way, Ms. Johnston had to establish that Dr. Segals conduct 
    made it more probable than not that the delayed diagnosis of her cancer would 
    cause her death to occur earlier than it would have but for Dr. Segals negligence. 
    As Lord Hoffmann stated in
Barker v. Corus
, it was not enough 
    to show that the defendant's conduct increased the likelihood of damage and 
    may have caused it.  The evidence of causation in this case fell far short 
    of proof on a balance of probabilities.

[53]

Having failed to establish causation on the available "but for" 
    test, the causation analysis ought to have come to an end. It was not open 
    to the plaintiff to prove, or to the trial judge to consider, the material 
    contribution test. As stated in
Resurfice
,

it 
    must be impossible to prove negligence using the "but for" analysis 
    before resort can be made to the material contribution analysis.  I do not 
    read
Resurfice
to mean that, because a plaintiff fails to prove 
    causation on the "but for" analysis, a plaintiff may then resort 
    to the less stringent material contribution test. As this Court recently stated 
    in
B.S.A. Investors Ltd. v. DSB
, 2007 BCCA 94, 69 B.C.L.R. (4
th
) 
    292, leave to appeal to S.C.C. requested, where the reasons of the trial judge 
    indicate that the plaintiff could not meet the burden of proving causation, 
    then the plaintiff's action should be dismissed (at para. 33).

[54]

It follows that I would allow the appeal and dismiss the cross-appeal 
    except to the extent agreed to by the appellant, namely the preservation of 
    the $25,000 award for psychological damage suffered by Ms. Johnston from the 
    knowledge of the delayed diagnosis.

The Honourable Madam Justice Kirkpatrick

I 
    agree:

The 
    Honourable Mr. Justice Frankel

I 
    agree:

The 
    Honourable Mr. Justice Tysoe


