Gold v. Joe,


2008 BCSC 865

Date: 20080702
Docket: M061102
Registry: Vancouver


Leonard Gold



Robert Albert Stanley Joe,
Andrew Glenn Jason Johnson



Insurance Corporation of British Columbia

Third Party

Before: The Honourable Madam Justice Dillon

Reasons for Judgment

Counsel for the Plaintiff

K.C. Jarvis
J.M. Rice

Counsel for the Defendants

No one appeared

Counsel for the Third Party

J.R. Walsh

Date and Place of Trial/Hearing:

March 10, 11, 12, and 13, 2008


Vancouver, B.C.


[1]                The plaintiff seeks damages for pain and suffering, loss of income, loss of future earning capacity, cost of future care and special damages arising from a motor vehicle accident on June 12, 2004.  The defendants have not entered an appearance to this lawsuit and the third party does not dispute liability.

The Motor Vehicle Accident and the Nature, Extent and Duration of the Plaintiff’s Injuries

[2]                The plaintiff, Leonard Gold (“Gold”), was a 56 year old millwright who was peacefully driving his 1991 GMC Tracker at 50 kp/h towards work for the early morning shift at the Howe Sound Pulp and Paper Mill near Sechelt, British Columbia on June 12, 2004, when he was suddenly jarred from behind.  Gold had not noticed a car behind him at 4:45 a.m., although he checked his rear-view mirror periodically.  Gold did not realize that he had been hit by another vehicle at first.  Despite Gold’s application of brakes, his vehicle was pushed the length of a city block before coming to a stop.  Gold removed his seatbelt and exited the vehicle as the other car took off around a corner.  Parts of Gold’s car littered the highway.  There was over $3,000 damage done to the Tracker and the other vehicle, a Pontiac, was a write-off, the front end having been crushed and destroyed.

[3]                Gold felt dizzy, headachy, and had pain in his neck, chest and back immediately.  The police officer who attended the scene insisted that Gold attend at the hospital across the street.  Gold saw a doctor, but then continued on to work.  In typical fashion, he testified, “I had a job to do”.  He saw his general practitioner two days later.

[4]                Indeed, Gold continued to work for two more “tours”, a tour being two days and two nights of 12 hour shifts followed by four days off, before the neck and back pain, headaches, and dizziness steadily increased to the point that Gold was unable to perform the heavy work of a millwright despite attendance at physiotherapy.

[5]                One month after the accident, Gold’s general practitioner described persistent and severe neck pain with limited range of motion, tenderness and spasm in the trapezius, and mild pain and reduced range of motion in the lower spine.  There was increased pain with any lifting or bending, and inability to sit for any length of time. Recovery was slow.

[6]                About two months after the accident, Gold’s general practitioner found significant pain and stiffness in the neck, which stimulated pain lower down the back.  There was very significant restriction of range of motion.  The doctor testified that there were consistent findings of immobility and pain in the neck.  Because nothing showed in x-rays, the doctor referred Gold to an osteopathic specialist.  Four months after the accident, it was quite apparent to the doctor and the physiotherapist that Gold’s neck was very stiff and painful, and that he was not recovering well.

[7]                Gold was off work from June 28 to November 8, 2004, when he returned on a graduated schedule.  During this time, he attended physiotherapy several times per week and had massage.  His headaches were frequent and severe.  The lower back pain was paralysing at times.  He performed exercises as recommended and took pain and other medication as prescribed by his general practitioner.

[8]                He resumed full-time work on December 4, 2004.  With the help of his partners, his job was not modified.  However, he continued to experience neck, upper and lower back, shoulder, and chest pain, headaches and periodic dizziness.  He used Tylenol at work to ease the headaches because he was worried about jeopardizing the safety of his partner.  He did not accept overtime work except when absolutely necessary, a major change from before the accident.  He continued with physiotherapy, but therapy was slow due to pain and Gold was referred to a pain institute in August 2004 and 2005.

[9]                During 2005, the plaintiff visited his general practitioner only four times related to injuries from the accident.  The focus was on neck pain and headaches with ongoing upper and lower back pain.  He saw him even less in 2006.  Gold explained that he would not see the doctor unless his pain was severe.  This was supported by the doctor who testified that Gold was not the sort of person who came to see a doctor.

[10]            The plaintiff was examined by an orthopaedic surgeon, Dr. Schweigel, for purposes of an independent medical assessment in August 2005.  The orthopaedic surgeon reviewed all relevant medical records.  Following a thorough examination, the doctor diagnosed soft tissue injury to the neck and thoracic and lumbar spine caused by the accident.  Prognosis was guarded, with the warning that there was a risk that the plaintiff would not recover full motion in his neck and might have intermittent pain for the rest of his life.  He said that the plaintiff probably would have had these problems regardless of the accident because of his underlying degeneration of the cervical and lumbar spine.  However, this would likely not have appeared for five or ten years without the accident as there was no degenerative symptoms at the time of the accident.  The doctor expressed the opinion that there was a chance that the pain would decrease and neck motion would improve with rigid therapy; however, there was also a risk that this was not so.  As it turned out, the latter forecast proved true.

[11]            In the fall of 2006, Gold saw an orthopaedic surgeon because of the continuing headaches and occasional low back pain. By the fall of 2007, Gold had headaches two or three times per week.

[12]            The plaintiff’s general practitioner, Dr. Burlin, reported that Gold suffered pain and stiffness throughout his neck, upper back and base of skull, associated with frequent headaches, dizziness and low back pain after the accident.  There was extreme stiffness in the neck with very limited range of motion that had not resolved after three years.  Gold had extensive physiotherapy, treatment by an osteopathic physician and acupuncture.  In September 2007, the physician reported that Gold continued to have partial disability from the accident that affected his ability to work, but not his social life.  The doctor summarized by saying that Gold suffered a soft tissue injury to his neck, that Gold had some pre-existing degenerative changes which were totally asymptomatic, and that Gold will continue to have restricted mobility in his cervical spine.  Gold is required to continue exercises and physiotherapy.  The doctor testified that being a millwright poses a major problem for someone with difficulty with his neck and shoulder as epitomized by Gold’s inability to lift his head whilst swimming.

[13]            At an independent medical assessment in September 2007 by Dr. Travlos, a specialist in rehabilitation medicine, Gold complained of pain in the neck and head and into his back, numbness in the left arm, and pain in the lower back.  The doctor concluded that Gold did not suffer from any head, neck, or back symptoms prior to the accident, but had other musculoskeletal symptoms related to gout.  He found Gold to be straightforward, without abnormal behaviours or mannerisms, a similar conclusion also made by this Court.  Gold was found to have a marked reduction in spinal flexibility and mobility, reduced range of motion from his neck through to his lower back, and reduction in mobility of his spine in all directions.  The primary source of pain was mechanical neck and low back pain. His gout was under control with proper medications.  Dr. Travlos said that the plaintiff would need help to do heavier work around the house if he did not improve.  Recreational activity was necessarily limited.  The doctor said that Gold would be able to work to the end of his working career, but would have difficulty finding work if his present job ended.  He has to avoid certain types of work given the restrictions in his neck and lower back.  The potential for significant improvement in Gold’s condition was small.

[14]            When Gold was seen by a neurologist, Dr. Robinson, in the late fall of 2007, he complained of constant discomfort in his neck, as well as mild to moderate headaches accompanied by nausea and fatigue.  Lower back pain had improved and occurred about twice a week.  Upon examination, the doctor found reduced range of motion in the cervical spine by 50% in all directions.  The doctor concluded that Gold suffered soft tissue injury to his neck, mid and low back in the accident.  Headaches continue frequently, which are directly related to the level of discomfort in his neck.  Job and driving related activities aggravate this condition.  The diagnosis was chronic headache related to neck injury.  No further investigation would be helpful and treatment was difficult.  The only advice that could be given was to maintain an active lifestyle.  Botox injections were a reasonable consideration to reduce pain over three months, costing $400.  The doctor felt that Gold would continue to work until retirement with a reduced quality of life.

[15]            Gold’s physiotherapist from the time of the accident until April 2007 reported that there was little lasting improvement from regular physiotherapy during this time.  However, the physiotherapy helped to maintain a reasonable level of function, enabling the plaintiff to work.  Range of motion in the neck and upper back was severely limited with pain secondary to this limitation.  Significant lifestyle changes were made to accommodate this limited function and increased pain.

[16]            In the summer of 2006, Gold’s general practitioner and physiotherapist recommended that he get a personal trainer and that he begin a structured exercise programme.  Gold lacks the confidence to follow up on this recommendation because of the pain that he still feels with his daily physio exercises and walking programme.  In September 2007, a specialist in rehabilitation medicine recommended that Gold participate in an active exercise programme to deal with extreme deconditioning and recommended attendance with a nutritionist to reduce weight.  Gold did not follow through on this recommendation.  However, it should be noted that Gold’s general practitioner testified that this is a man who has a heart condition and the recommendation for exercise is a general one, unrelated to a specific problem.

[17]            At trial, the plaintiff still experienced headaches two or three times per week, especially with certain movements at work.  He still has pain in his back and shoulders.  His lower back still flares up with pain with little effort.  The shoulders continue to bother Gold, with pain and pressure so that he has to back off from what he is doing.  His range of movement of his head is limited.  He still experiences dizziness if he moves his head rapidly, causing him to occasionally pull over on the road when driving.  He still performs the exercises as recommended by the physiotherapist at least twice daily and attends physiotherapy about twice a month.  He has found that the physiotherapy helps quite a bit to keep him working and to maintain the range of motion in his neck.

[18]            Prior to the accident, Gold was in relatively good health given that he suffered from gout, a degenerative knee condition associated with arthritis, hypertension, and coronary heart disease.  He had recovered from heart problems, a work related knee injury in 1980, and a serious infection in 1995.  He took prescription medication for maintenance of his heart.  His knee problems took awhile to resolve because of poor prescriptive diagnoses, but were resolved just after the accident by a specialist who prescribed proper medication.  He had the usual bumps, falls, and strains working as a millwright, but recovered with physiotherapy, which was available at the mill, and Tylenol.  Gold never missed a shift because of workplace strains.  Both of Gold’s working partners testified that they were unaware of any physical limitations in Gold prior to the accident.  His doctor reported that Gold had no continuing musculoskeletal or neurological complaints prior to the motor vehicle accident.

[19]            Since the accident, Gold moved from his previous home with its steep inclines to an easier setting with less gardening because his back prevented him from doing the heavier work around the home that he had previously enjoyed.  It was just too much to continue with the heavy millwright job and also work at home.

[20]            Since the accident, Gold has gained weight because he cannot exercise as much.  He used to swim, but now he cannot lift his head out of the water due to the neck pain.  He has tried to swim, but it causes neck pain and headache.  He has also curtailed hunting and camping, which he used to enjoy.  As Gold has pain when driving for longer periods, he no longer travels long distances within the province to visit with relatives.  He gave up his motorcycle because it was hard on his back.  When he returns home from work, he needs to rest and cannot do the household chores as he could prior to the accident.  Some tours are worse than others for the time it takes Gold to recover so that he is able to return to work.

The Effect of Injuries on Work

[21]            The plaintiff had been a millwright for 30 years at the time of the accident, 18 of them with Howe Sound Pulp and Paper.  He enjoyed considerable seniority.  He took pride in his work and in his work record.  He missed work only for a serious heart condition and for flesh eating disease, both of which were successfully treated.  He had planned to work to age 65, building his pension as much as he could in the meantime as the pension amount was linked to the amount of time worked, particularly overtime.  For this reason, Gold had worked overtime as much as he could during regular mill shutdowns for maintenance and otherwise.  As there came to be fewer millwrights and an aging mill, the amount of available overtime had increased, along with Gold’s seniority to claim the extra hours.

[22]            Since the accident, Gold has had difficulty with some of the required work of a millwright, which is a very strenuous and risky job requiring upper body strength.  Fortunately, the millwrights work in pairs and his partner has been able to shoulder the heaviest work and tightest spaces.  Gold trades his inabilities for more welding.  His partners testified that, after the accident, Gold could not perform some of the heavy lifting, crawling and pulling as before the accident.  Both partners also said that this was hard on Gold, but that they worked as partners and, basically, accommodated Gold without formality.  One partner noticed that Gold could not take the overtime hours as he could before the accident.

[23]            Overtime is a regular feature for millwrights.  Whenever machinery breaks down, the regular day shift cannot handle the work and off duty millwrights are called.  There are also routine shutdowns for maintenance of machinery, which requires millwrights to work overtime to complete the work as fast as possible to get the mill running again.  There were generally two big shutdowns per year and at least three “mini-shuts”.  Overtime is generally offered by seniority except at shutdowns when all millwrights have an opportunity to work overtime.  Gold and his partner, Douglas Mitani, worked as much overtime as possible prior to the accident, with Mitani working the most.  In the four years prior to the accident, Mitani worked 172 more overtime hours per year on average.  The plaintiff worked 229.5 overtime hours per year on average.  This average includes 2003, when the plaintiff was off work for eight weeks due to heart surgery.  The figures vary somewhat in each year due to the schedule of shutdowns for the mill, the timing of Gold’s holidays, and whether work was over a holiday.

[24]            Since the accident, Gold has been unable to work the extended overtime hours at his previous rate.  The differential between Gold’s and Mitani’s overtime hours widened in the years after the accident.  While the plaintiff worked an average of 76 overtime hours per year from 2004 to 2007, Mitani averaged 278 overtime hours.  The 2004 figures for Gold were only for the six months prior to the accident as he did not work any overtime for the rest of 2004 following the accident.  Noticeably, the number of overtime hours that Mitani worked was also less during this time.  Both Gold and Mitani said that this was because Mitani purposefully reduced his overtime because he was financially free of mortgage and debt.  Gold, however, was motivated to work overtime by the direct relationship to the amount of his pension.  Gold testified that he would have worked between 275 and 325 overtime hours per year if he had not been disabled by the accident.  This is more than his average before the accident and reflects his enthusiasm to work towards his pension.  I accept that he would have worked his traditional time of about 230 overtime hours per year if he had been capable and not fatigued from pain.  When he does work overtime, his headaches, neck and back pain worsen and become constant.

[25]            Gold is now five years away from retirement. He is worried that he might not be able to work to age 65 because of his use of painkillers and his concern for others’ safety.  Although two medical specialists encouraged Gold to keep working, it is uncertain whether they understood the tough physical nature of Gold’s job.  I accept the opinion of Gold’s general practitioner who said that Gold would have problems working as a millwright due to pain and restriction of movement in his neck.  Gold seems prepared to soldier on working in pain with occasional headaches.


(a)    Non-Pecuniary Damages

[26]            The third party suggested that the plaintiff suffered nothing beyond soft tissue injury because of the accident and that ongoing symptoms are not causally related to the accident, but simply the result of the natural aging process and underlying degenerative changes to the cervical spine.  This is based upon the opinion of Dr. Schweigel, who examined the plaintiff in August 2005.  Dr. Schweigel said that the plaintiff probably would have had problems regardless of the motor vehicle accident to the level of discomfort, but he estimated that he could have been symptom free for five or ten years without the accident.  He acknowledged that the plaintiff suffered soft tissue injury to the neck and thoracic and lumbar spine and gave a guarded prognosis for recovery in 2005.

[27]            It is the common opinion of all the doctors that the plaintiff’s degenerative changes to the spine were asymptomatic at the time of the motor vehicle accident.  Dr. Robinson said in 2007 that the plaintiff’s symptoms were related to the soft tissue injury in his neck and opined that the degenerative changes were minimal for a person of the plaintiff’s age and did not render him more susceptible to neck pain related to trauma.  Dr. Burlin said that the ongoing symptoms were precipitated by the motor vehicle accident.  Dr. Travlos said in 2007 that the plaintiff’s current symptoms were residual from the injuries sustained in the accident and that he would not have experienced such symptoms in the absence of this accident.  He also opined that the degenerative changes noticed in the plaintiff’s spine would not produce symptoms in the majority of patients and that the presence of such degenerative changes had no bearing on the potential to develop symptoms as experienced by the plaintiff.

[28]            There is no medical opinion that the plaintiff would have suffered from chronic neck or back pain, to the extent and severity that he has incurred, but for the accident.  Gold has developed severe and disabling chronic neck and back pain, which significantly limits movement.  He continues to have headaches.  His condition plateaued within two years after the injury and has not improved despite reasonable effort on his part.  This has had a significant effect on his ability to work overtime to the extent that he did before the accident and requires cooperation with his work partners to fulfill the mandate of his job without formal accommodation being made.  He has suffered a loss of lifestyle and recreational activity.

[29]            In these circumstances, I conclude that the measure of damages for pain and suffering and loss of enjoyment of life is within the range suggested by the plaintiff.  General damages of $80,000 are awarded.

(b)   Loss of Past Income

[30]            The plaintiff’s claim for lost income is for regular wages lost when he did not work from June 12 to December 5, 2004, and for the loss of overtime that he could have worked if he had not been injured in the accident.  The plaintiff calculates that he would have averaged 300 overtime hours per year and seeks a calculation based upon the hourly rate for these hours per year, minus a 30% reduction for taxes and statutory deductions in the years prior to trial.  While the third party agrees with the 30% deduction, the third party maintains that the plaintiff would not have worked overtime to the extent suggested, if at all.  At most, the third party says that the plaintiff lost ten overtime shifts per year.

[31]            I accept that the plaintiff worked less overtime after the accident because of his injuries.  He had been highly motivated to work overtime hours to increase his pension.  His work record was remarkable for his commitment after his heart problems and other setbacks.  He had seniority such that he was in an excellent position to command more overtime in an aging mill.  The evidence established that the plaintiff worked almost every overtime that was offered before the accident.

[32]            The payroll clerk from the mill testified that the plaintiff lost $30,882 in regular wages from the date of the accident, June 12, 2004, through to December 5, 2004, including consideration for loss during the period from November 8 to December 5, when the plaintiff gradually returned to work.  Minus the 30% deduction, his loss of regular pay during this period was $21,618.

[33]            With respect to overtime work, the payroll clerk explained that, in 2004, while there were only nine overtime days available prior to the accident, there were 33 days of overtime available after the accident.  However, the clerk did not review the overtime availability in relation to days that the plaintiff would have regularly worked in any event.  This meant that the plaintiff would not have been available for all of the 33 days overtime.  The clerk also based her calculation of lost overtime of $11,276 in 2004 on a comparison with the overtime hours worked by Mitani.  However, the record for Mitani historically showed greater overtime hours worked on an annual basis.  That employee was also the highest earning millwright at the mill.  I do not consider that comparison to be directly applicable.

[34]            The plaintiff testified that he would have worked an average of 300 overtime hours per year, but for the accident.  Historically, however, he had worked an average of 230 overtime hours per year in the four years prior to the accident.  While there are explanations for fewer hours in certain years, especially the year when Gold had heart problems, I conclude that these reflect the exigencies of the work schedule and the plaintiff’s capacity that could arise in any year.  I do not accept that the plaintiff would have worked overtime to the extent that he suggested, which was just short of the maximum overtime of 306 hours that he worked in 2001.  In the three years since the plaintiff returned to work full time after the accident, he has averaged 73 hours of overtime annually.

[35]            Based upon 230 average yearly hours of overtime, minus the overtime actually worked from 2005 to 2007, at an hourly rate of $49, and minus the 30% for net figures, I conclude that the plaintiff lost $16,156 in overtime pay from 2005 to 2007.  Based upon the same method, I figure that the plaintiff lost $7,056 of overtime pay in 2004.  To the date of trial in 2008, he lost $1,032.

[36]            In total, the plaintiff is awarded ($21,618 + $16,156 + $7,056 + $1,032) $45,862 for past wage loss.

(c)    Loss of Future Earnings/Loss of Earning Capacity

[37]            There is more than a substantial possibility that the plaintiff will be unable to work overtime at his historical pre-accident rate into the future.  Based upon the plaintiff’s work history these past few years, it is almost a probability his condition is unlikely to change, although he may benefit from future treatment.  He has five more years until retirement.  Based upon the same average hours of overtime pre-accident and the likelihood that the plaintiff will work the same average hours of overtime post accident to the date of retirement, future losses of overtime work are estimated to be $39,000.

[38]            The plaintiff argued that there is a real and substantial risk that the plaintiff will not be able to work fully until retirement, based upon the difficulties he experiences at work and at home.  However, the medical opinions of Doctors Travlos and Robinson offered positive prognoses that the plaintiff would work until retirement. Gold’s general practitioner said that working as a millwright with Gold’s injuries would be a major problem in the next years.  There was no evidence as to what formal accommodations might be available to the plaintiff if his partners were unable to shoulder the bulk of the heaviest work for him.  However, Dr. Travlos also said that the plaintiff would have difficulty finding work if his job ended.  At Gold’s age and with his physical limitations as a result of the accident, I consider this to be a real and compensable possibility.  He certainly would be quite unlikely to be able to engage in post-retirement work.

[39]            Compensation for future income loss and diminished earning capacity is awarded in the amount of $70,000.

(d)   Cost of Future Care

[40]            Dr. Robinson favoured a trial of Botox, which the plaintiff has been unable to afford.  This would cost $1,600 per year.  A trial and treatment over a period of two years is reasonable in the circumstances.  Working out with a trainer has also been recommended.  However, I conclude, this is more related to general health than to remedying the accident injury.  Dr. Travlos noted that the plaintiff appropriately avoided doing heavier chores around the house given his condition and said that unless the plaintiff improved substantially, he would need to hire people to assist him in this regard.  The fact is that the plaintiff probably will not improve substantially and he will have to hire people to assist him.

[41]            Damages in the amount of $10,000 are awarded for costs related to future care.

(e)   Special Damages

[42]            The plaintiff incurred prescription, physiotherapy, and travel expenses related to seeking medical and other care for which he is entitled to reimbursement.  In addition, he paid $300 for heavy work that he could not do in the yard.  I decline to award expenses related to moving as I do not conclude that these expenses directly related to the injury.  Special damages are awarded in the amount of $1,053.

(f)    Mitigation

[43]            The third party alleges that damages should be reduced by 25% because the plaintiff failed to start an exercise programme as recommended by his general practitioner, his physiotherapist, and the rehabilitation medicine specialist.

[44]            To succeed in this submission, the third party must prove, on a balance of probabilities, that the plaintiff failed to undertake the recommended treatment; that by following that recommended treatment he could have overcome or could in the future overcome the problems; and that his refusal to take that treatment was unreasonable (Janiak v. Ippolito, [1985] 1 S.C.R. 146, 16 D.L.R. (4th) 1; Maslen v. Rubenstein, [1994] 1 W.W.R. 53 at 57-58, 83 B.C.L.R. (2d) 131 (C.A.); Fox v. Danis, 2005 BCSC 102 at para. 37).  The remedial programme must be likely to achieve resolution of the problem or at least have a positive effect on the plaintiff’s injury arising from the accident (Hepner v. Gill, [1999] B.C.J. No. 1755 at paras. 5 and 7 (S.C.) (QL); Briglio v. Faulkner and Reichel, 1999 BCCA 361, 69 B.C.L.R. (3d) 122 at para. 44; Wong v. Stolarchuk, [1997] B.C.J. No. 2837 at para. 48 (S.C.) (QL)).  The reasonableness of a refusal to undertake a recommended programme depends upon the risk that such a programme would impose, the gravity of the consequence of refusing to participate, and the potential benefits to be derived from it (Janiak v. Ippolito, supra).

[45]            The plaintiff did fail to undertake a structured exercise programme with a trainer.  However, the defendant has not established that a more structured exercise programme with a trainer would probably have achieved resolution or even a reduction in the plaintiff’s symptoms.  The rehabilitation specialist addressed the exercise regime as helpful to address the plaintiff’s general health and deconditioning and commented that the plaintiff’s current exercise programme was not enough given the general nature of his spinal restrictions.  However, the doctor fell short of suggesting that such a programme would reduce or resolve the plaintiff’s symptoms.  Similarly, the suggestion by the general practitioner was addressed to the general health of someone who had suffered heart issues and not to the resolution of specific problems.

[46]            Also, I do not conclude that the plaintiff’s failure to undertake such a programme was unreasonable.  The plaintiff undertook the programme as recommended by his physiotherapist who commented regularly that recovery was slow.  The plaintiff’s constant pain and work attendance resulted in considerable fatigue such that Gold testified that he spent most of the time in between work recovering so that he could work the next day.  The pain caused him to lack confidence that he could do more.  While this is subjective, there was no medical suggestion that such a programme would likely overcome the pain that the plaintiff endured.  None of the doctors suggested that Gold did not do what was appropriate for his injuries.

[47]            The defendant did not establish that the plaintiff failed to mitigate his damages.


[48]            The plaintiff is awarded damages as follows:


non-pecuniary damages



loss of past income



loss of future earning capacity



cost of future care



special damages


[49]            The total damage award is $206,915.  The plaintiff is entitled to costs throughout on Scale B unless the parties ask to speak to the matter.

“Dillon J.”


The Honourable Madam Justice Dillon