CITATION: Saleh v. Nebel, 2015 ONSC 747
COURT FILE NO.: CV-08-360864
DATE: 20150202
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Aiyub Saleh
Plaintiff
– and –
Ludwig Nebel
Defendant
Ryan Naimark, for the Plaintiff
Nicholas Mester, for the Defendant
HEARD: January 19, 21,22,23,26, 27, 28, and 30, 2015
F.L. MYERS, J
REASONS FOR decision
Background
[1] The plaintiff Aiyub Saleh (“Saleh”) brings this action for damages as a result of a motor vehicle collision on May 31, 2007. The defendant admitted liability. The eight day trial was therefore limited to the issues of causation and damages. On January 30, 2015 the jury d awarded the plaintiff $30,000 for general damages and nothing for past or future loss of income or for future care.
[2] Following my jury charge and while the jury was deliberating, the defendant brought what is commonly referred to as a “threshold motion” for a declaration that the plaintiff’s claim for non-pecuniary loss is barred by, and does not fall within the exceptions to, the statutory immunity in s.267.5(5)(b) of the Insurance Act, R.S.O. 1990 c.I.8 (“the Act”) and the applicable regulations.
The Legislative Scheme
[3] Section 267.5(5)(a) and (b) of the Act provide that the owner of an automobile is not liable in an action for non-pecuniary loss unless the injured person has sustained “permanent serious disfigurement” or “permanent, serious impairment of an important physical, mental, or psychological function.”
[4] Section 267.5(5)(a) and (b) provide as follows:
Non-pecuniary loss
(5) Despite any other Act and subject to subsections (6) and (6.1), the owner of an automobile, the occupants of an automobile and any person present at the incident are not liable in an action in Ontario for damages for non-pecuniary loss, including damages for non-pecuniary loss under clause 61(2)(e) of the Family Law Act, from bodily injury or death arising directly or indirectly from the use or operation of the automobile, unless as a result of the use or operation of the automobile the injured person has died or has sustained,
(a) permanent serious disfigurement; or
(b) permanent serious impairment of an important physical, mental or psychological function.
[5] O. Reg. 461/96, as amended by O. Reg. 381/03, defines the threshold wording contained in s. 267.5 of the Act as follows:
4.1 For the purposes of section 267.5 of the Act,
“permanent serious impairment of an important physical, mental or psychological function” means impairment of a person that meets the criteria set out in section 4.2.
4.2 (1) A person suffers from permanent serious impairment of an important physical, mental or psychological function if all of the following criteria are met:
- The impairment must,
i. substantially interfere with the person’s ability to continue his or her regular or usual employment, despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue employment,
ii. substantially interfere with the person’s ability to continue training for a career in a field in which the person was being trained before the incident, despite reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue his or her career training, or
iii. substantially interfere with most of the usual activities of daily living, considering the person’s age.
- For the function that is impaired to be an important function of the impaired person, the function must,
i. be necessary to perform the activities that are essential tasks of the person’s regular or usual employment, taking into account reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue employment,
ii. be necessary to perform the activities that are essential tasks of the person’s training for a career in a field in which the person was being trained before the incident, taking into account reasonable efforts to accommodate the person’s impairment and the person’s reasonable efforts to use the accommodation to allow the person to continue his or her career training,
iii. be necessary for the person to provide for his or her own care or well-being, or
iv. be important to the usual activities of daily living, considering the person’s age.
- For the impairment to be permanent, the impairment must,
i. have been continuous since the incident and must, based on medical evidence and subject to the person reasonably participating in the recommended treatment of the impairment, be expected not to substantially improve,
ii. continue to meet the criteria in paragraph 1, and
iii. be of a nature that is expected to continue without substantial improvement when sustained by persons in similar circumstances.
(2) This section applies with respect to any incident that occurs on or after October 1, 2003.
Evidence Adduced to Prove Permanent Serious Impairment of an Important Physical, Mental or Psychological Function
4.3 (1) A person shall, in addition to any other evidence, adduce the evidence set out in this section to support the person’s claim that he or she has sustained permanent serious impairment of an important physical, mental or psychological function for the purposes of section 267.5 of the Act.
(2) The person shall adduce evidence of one or more physicians, in accordance with this section, that explains,
(a) the nature of the impairment;
(b) the permanence of the impairment;
(c) the specific function that is impaired; and
(d) the importance of the specific function to the person.
(3) The evidence of the physician,
(a) shall be adduced by a physician who is trained for and experienced in the assessment or treatment of the type of impairment that is alleged; and
(b) shall be based on medical evidence, in accordance with generally accepted guidelines or standards of the practice of medicine.
(4) The evidence of the physician shall include a conclusion that the impairment is directly or indirectly sustained as the result of the use or operation of an automobile.
(5) In addition to the evidence of the physician, the person shall adduce evidence that corroborates the change in the function that is alleged to be a permanent serious impairment of an important physical, mental or psychological function.
(6) This section applies with respect to any incident that occurs on or after October 1, 2003.
[6] Mr. Saleh claimed that as a result of the collision he suffered chronic pain and a debilitating and rare stomach problem called a gastric volvulus. The defendant denied that the plaintiff suffered from chronic pain and that the gastric volvulus was caused by the car accident. Unless the plaintiff proves to the appropriate standard of proof that he suffered either of the injuries or that he would not have suffered them but for the car accident on May 31, 2007, he does not reach the stage of assessing whether the injuries meet the legislative threshold.
[7] In my view, the plaintiff has not proved that he suffers chronic pain as he claims and he has not proved that his gastric volvulus was caused by his car accident. Therefore the claim for non-pecuniary loss is dismissed. Given that the jury awarded no other damages to the plaintiff, the action is dismissed.
The Plaintiff’s Claim of Chronic Pain
[8] The plaintiff was 63 years old when the collision occurred on May 31, 2007. Property damage did not indicate a very significant collision. The defendant’s car changed lanes to turn in front of the plaintiff’s limo. The impact caused damage to the defendant’s front left fender and bumper and to the plaintiff’s front right. The plaintiff’s airbags deployed. The plaintiff made no complaints about his abdomen at the scene or in the hospital. The plaintiff was not diagnosed with having suffered any broken bones or any other serious injury. After two or three hours, the ER sent the plaintiff home and told him to see his family doctor.
[9] The plaintiff says that as a result of the soft tissue injuries that he sustained in the accident, he suffers chronic headaches, neck pain, back pain, shoulder and elbow pain, pain in his left leg and pain under two of his right toes as a result of the accident. He described many of these pains as continuing and present at trial almost eight years later. He says that he suffers very painful headaches all the time. They sometimes respond to Advil for a little while but then they return. He suffers neck pain most of the time. It sometimes feels better when his wife massages his neck or puts hot water on it. His neck is fine when he sleeps. His left elbow always hurts. His left knee is always in pain so he cannot walk properly. If he walks more than a couple of blocks his whole left side hurts. He has gone for physio and other passive therapies ever since the accident. He has been prescribed medicines for his stomach ailments discussed below, for pain relief, including prescription Tylenol, and for anxiety and depression. He noted that he takes Extra Strength Tylenol which he described as “high dose”.
[10] The expert witnesses for both parties agree that the plaintiff has no orthopedic findings. If he has chronic pain, it is from soft tissue injury alone. Dr. Wong says that injured soft tissues develop scar tissue when they heal and that hurts. Dr. Cameron says that, with or without treatment, soft tissue injuries heal in a few weeks or a couple of months. Dr. Wong says that he could feel that the plaintiff’s back and neck muscles were tense and therefore abnormal. Dr. Cameron does not believe the plaintiff and gave him several tests designed to expose inappropriate claims of pain. That is, he did things that cannot cause pain to a certain area and waited for the plaintiff to claim pain in that area. He did not disappoint. For example, Dr. Cameron had the plaintiff lie down on his back and lifted his legs to 90 degrees. The plaintiff claimed that this was painful. He then put the plaintiff’s legs down and asked the plaintiff to sit up. This is the identical orthopedic motion of bending the torso to 90 degrees. The plaintiff did it with no report of pain. Dr. Cameron saw the plaintiff in 2010 and again in 2015. In the second visit, the plaintiff failed each and every pseudo-test given by the doctor. He claimed back and neck pain when Dr. Cameron put a single finger lightly on the top of his head. He claimed pain in areas that were not involved in movements taken at Dr. Cameron’s instruction.
[11] Dr. Wong testified that as a doctor treating a patient, he must not disbelieve a patient’s subjective claim of pain. He agreed that he would treat anyone who was referred to him for headaches with an examination, an MRI, and Tylenol whether the patient was lying or not. He refused to accept a suggestion by counsel that Mr. Saleh had grossly exaggerated his pain. What he did not know was that earlier in his own cross-examination, Mr. Saleh admitted to having done exactly that to another health care provider.
[12] Dr. Wong did not see Mr. Saleh as a patient for treatment. He saw him as a legal referral for Dr. Wong to form an opinion and give an independent expert opinion in court. While a normal patient who comes to Dr. Wong for treatment may not have a motive to exaggerate, a plaintiff in a lawsuit has an economic incentive to have his lawyer’s expert support his case. While no one likes thinking that a patient may not be truthful with his or her doctor, it is naïve to think that greed does not affect conduct or that people never subscribe to consequentialism in setting their behaviour.
[13] Dr. Wong said that the plaintiff should get injections for his neck. Dr. Cameron said that there is no scientific evidence that such injections do anything to help pain. Moreover, he said that there is no evidence that passive therapies do anything to help after a few weeks have passed from soft tissue injury. To the contrary, he says it causes patients to suffer “learned helplessness” which delays recovery. He referred to Dr. Wong’s proposed injections as “hockum” and “voodoo”. He referred to ongoing passive therapies eight years after an accident as malpractice at best.
[14] The plaintiff attended the Physical Therapy Institute for treatment for back and neck pain in January, 2011. He was seen on surveillance video just two weeks earlier appearing quite normal. He was not seen doing anything that required much physical effort. But neither did he appear to be in any pain as he walked, bent, or moved his neck freely for example. Two weeks later however, he filled in pain questionnaires rating his pain and disabilities a 9 out of 10 with 10 being “as bad as it can be”. He said that his pain prevents him from sitting for more than 10 minutes. He said that pain medication has no effect on his pain. He said that his pain prevents him from standing for more than 10 minutes and that it is gradually worsening.
[15] He admitted that in light of the video evidence two weeks later, he had “grossly exaggerated” his pain to the Physical Therapy Institute.
[16] The plaintiff had a been a taxi limo driver at the airport for 20 years. He had a very strong work record earning a livelihood for his family for 35 years. Before the accident he had reported no significant health issues apart from his stomach that I will deal with below. The plaintiff’s job as a taxi limo driver required him to lift heavy luggage and to sit for long periods of time. The plaintiff determined that he could not work as a taxi limo driver ever again and sold his car just three months after the accident. He has not worked or tried to work since that time.
[17] The plaintiff may suffer depression and anxiety. Medical experts’ reports were filed that disagree. He reported being depressed since well before the car accident due to the disappearance of his teenaged son in 1995. He blames his depression for his failure to file his income tax returns for fiscal 2004 through 2006. He filed his outstanding tax returns in 2008 in order to provide them to the insurer who required them when the plaintiff applied for income replacement benefits after the accident. When the plaintiff filed his late tax returns however, he reported only 50% of his taxable income. He says he spent his money trying to locate his son and for the upbringing of his family. He knew that other taxi limo drivers under-reported his income so he went along. He told the jury that he knew he had done wrong and he apologized. His apology might have rung truer had he corrected his tax returns and paid his proper taxes before apologizing.
[18] As I told the jury, the tax returns go solely to the plaintiff’s credibility. The jury and I are not to use them to penalize the plaintiff or to deny him the equal application of the law to which all are entitled. After having me admonish counsel and instruct the jury to ignore the defendant’s counsel’s invitation to the jury to penalize the plaintiff for not paying his fair share of taxes, the plaintiff’s counsel did the exact same thing. He expressly asked the jury to take a 20% penalty from his client’s past and future loss of income claims to penalize him for not declaring his proper taxes. He wanted to offer the jury a mid-point to avoid his client being disbelieved. But if the plaintiff is adjudged less credible as a witness due to his conduct, neither the law nor logic would extract a 20% penalty from the pecuniary damages to which he is otherwise entitled. Credibility goes to whether the witness is believed. That is what the plaintiff’s counsel himself had me instruct the jury in response to the defendant’s submission and that is what I instructed the jury after the plaintiff did it too.
[19] The plaintiff’s counsel argues that the plaintiff sold his car because he needed the money. He also noted that the plaintiff has continued to rent out his airport taxi limo licence and makes more than he made when he rented out his car on his days off prior to the accident. Selling the limo may well have been a positive act of mitigation but only if the plaintiff had already determined that he would not drive again. He made more money driving than renting out his plate. The plaintiff gave no evidence concerning his assets or cash flow when he sold his limo. He has a house. He gave no evidence of the state of his mortgage in 2007 if any. The fact that he sold his income producing asset just three months after the accident is very impactful. He decided to retire from driving very early on and well before he could have known that his pains would persist and manifest as chronic pain as he claims.
[20] If the plaintiff is disbelieved as a witness, then he has to prove his case through other witnesses and evidence. The principal corroboration of the plaintiff’s claims is his own subjective reports to health care providers. His daughter gave evidence at trial that was aimed principally at his depression and stomach ailments. Her evidence of the plaintiff’s pain was very general and conclusory.
[21] Mr. Saleh was also evasive in cross-examination. He denied understanding English when convenient. For example, on being impeached as to whether he had said before trial that he fell asleep and had not lost consciousness after the accident, he denied understanding the difference between the two words. There are other examples.
[22] In all, I did not accept the plaintiff’s evidence. He will break the law and lie for money. He grossly exaggerated his pain and admitted to having done so. He could hardly have done otherwise given the contemporaneous video surveillance. I do not ignore Mr. Naimark’s arguments that the plaintiff was confused by the way in which he had been cross-examined on his answers to the pain questionnaires discussed above. To Mr. Naimark’s chagrin, on re-examination, Mr. Saleh admitted to having understood the scoring system for the pain questionnaires although they do not show on their face how they are to be scored. I am actually quite dubious that Mr. Saleh knew or knows how to score the pain questionnaire. So was his counsel. That is why Mr. Naimark asked him the question in re-examination – to try to undo the sting of his admission of exaggerating his scores in cross-examination. Instead, however, the re-examination reinforced Mr. Saleh’s willingness to say what he thinks he should say to get an award of damages.
[23] The plaintiff does not assert that there is any cause of the chronic pain alleged other than soft tissue injuries that the plaintiff sustained in the car accident. The plaintiff does not argue that he suffers from a mental illness that might cause chronic pain. The doctors agreed that depression and anxiety might affect how a person responds to pain or heighten pain sensitivity. They do not cause a person to feel pain that he is not suffering or, as Dr. Cameron put it, they do not cause inappropriate responses to validity testing. In all, I do not accept the plaintiff’s evidence that he suffers chronic pain caused by the car accident. There is insufficient independent evidence that does not depend solely on the credibility of the plaintiff’s statements to find that the car accident has caused the plaintiff to suffer chronic pain from soft tissue injuries alone.
[24] Therefore the threshold issue is never reached. Dinham v. Brejkaln, 2005 46749 (ON SC), at paras. 20 to 26. Had I accepted the plaintiff’s evidence, it appears that he might well have met the threshold. As Mr. Naimark points out, his circumstances – a strong work history, no reported pre-existing musculoskeletal illness, a job that requires heavy lifting, his age, and his lack of transferable job skills, would lead one to accept that if he has the pain he claims and if he cannot lift luggage as a result, he would likely meet the requirements of the statutory test set out above. However, I do not accept either premise of that conclusion. I believe that he is grossly exaggerating and that he decided to retire when he sold his car. The rest of his pain claim has been self-serving effort to maximize his claim. I do not need to find and I do not find that the plaintiff suffered from no pain at all. But his exaggeration, lack of candour, and lack of corroborative evidence, prevent any assessment otherwise.
The Plaintiff’s Gastric Volvulus
[25] In August, 2012, nearly five years after the accident, at age 68, the plaintiff suffered a gastric volvulus. This is a condition in which part of the stomach migrates into the chest and it twists. In this case the twisting also involved the blood supply to Mr. Saleh’s stomach. A gastric volvulus is an emergency and presents a life-threatening issue. Many patients do not survive the surgery to move the stomach back down to the abdomen where it belongs. In the surgery, a piece of the stomach is wrapped around the esophagus and clipped to itself in order to try to keep the stomach in place. In addition, a tube is inserted into the plaintiff’s stomach and brought out through the abdominal wall also to try to anchor the stomach in place. The tube remains for three months. It has to be flushed with water every few hours. It is eventually removed by another surgery. Mr. Saleh had an unpleasant and painful recovery. The tube irritated him and began to smell. These are common side effects caused by stomach acids getting into places around the tube opening.
[26] Mr. Saleh now suffers from gastroparesis – a condition in which the stomach does not empty properly. It gives him chronic nausea, digestion, and elimination problems and will for the rest of his life. This is an expected outcome of the surgery to repair a gastric volvulus. Both doctors agreed that chronic nausea can be debilitating. If Mr. Saleh’s gastric volvulus was caused by the car accident on May 31, 2007, I would have to assess whether Mr. Saleh meets the definition of in 4.2(1)(2)(iv) as he was not working when the gastric volvulus occurred. As Mr. Naimark agreed, this is a somewhat more difficult test to meet under the case law as a plaintiff is required to establish that the impairment has impacted important aspects of the plaintiff’s life and his ability to do them has been given up or substantially impaired. There was little evidence of any changes the gastric volvulus caused the plaintiff other than gastroparesis. He did not indicate what he could do before that he cannot do now other than eating a full meal. I have no doubt that nausea can be debilitating. It is not clear whether it actually has had that effect on the plaintiff. But, once again, I do not have to get that far in the analysis. First, the plaintiff must prove that he suffered the gastric volvulus as a result of the car accident with the defendant.
[27] Experts testified for the parties concerning the plaintiff’s gastric volvulus. Gastric volvuli are caused by hiatal hernias. That is, there has to be a weakening or tear in the diaphragm through which the stomach moves. There are two types of hiatus hernia, a sliding hiatus hernia and a paraesophageal hernia. The parties agreed, formally, that whichever type of hernia Mr. Saleh had, a hernia which results in a gastric volvulus is commonly caused by trauma. They also agreed that such hernias can be asymptomatic for a long time as they slowly stretch to a size sufficient to allow part of the stomach to pass through.
[28] The plaintiff started reporting experiencing regular stomach symptoms in 2009. The symptoms accelerated until August, 2012 when he could not keep any food down and was potentially near death. He would not go to the doctor until his family forced him to do so when he was acutely ill. Much of the plaintiff’s argument in both chronic pain and on this issue revolve around his lack of prior illness as his pre-2007 medical records are sparse. However, in 2005, the plaintiff went to his family doctor because he was suffering nausea after eating spicy foods. The doctor ordered an endoscopy and, as discussed below, the plaintiff was diagnosed with severe gastritis. The plaintiff tries to minimize that event. However, given his particular disinclination for going to the doctor, including when he was acutely ill in August, 2012 before his gastric volvulus surgery, I infer that his symptoms were somewhat more significant in 2005 when he went to the doctor and the doctor ordered an invasive test as a result.
[29] The question is whether the plaintiff’s hernia that led to his gastric volvulus was caused by the car accident. There is no doubt that car accidents can cause hernias and can cause pre-existing hernias to enlarge. If that is what happened here, the plaintiff would be entitled to recovery. Did the plaintiff prove that this happened on a balance of probabilities?
[30] Dr. Kassirian testified for the plaintiff that although the car accident was not especially hard, it did cause the airbags to deploy. She said that she implies that the force of the airbag is sufficient to cause a paraesophageal hernia. She was quite specific that she did not know the force required to cause a paraesophageal hernia or the force of an airbag deployment. While the literature says that gastric volvuli are usually associated with trauma, such as car accidents, the condition is extremely rare. No one put into evidence any medico-legal research purporting to ascribe cause to gastric volvuli on a statistically valid basis. There are too few gastric volvuli to have more than case studies reported.
[31] Dr. Maharaj, for the defendant, agrees that airbag deployment can be very forceful. But, he said, if that was enough to cause a hernia that leads to a gastric volvulus, we would see thousands of them given the frequency of airbag deployment in North America. Dr. Maharaj noted that in 2005, Mr. Saleh was diagnosed with Grade III gastritis, reflux disease, and had developed ulcerations in his stomach. He classified this as a severe presentation of the disease. He believes that the plaintiff was well on his way in 2005 to developing a sliding hiatus hernia. 70% of adults over age 60 have sliding hiatus hernias. This is a stretching of the muscle space around the esophagus that lets the stomach slide up. It is the norm. There was no hiatus hernia visible when the endoscopy was performed in 2005. Mr. Naimark puts much stress on the development of the plaintiff’s symptoms after the car accident. But the symptoms are equally consistent with the progress of his pre-existing gastritis if it developed into a sliding hiatus hernia. No one doubts that a hernia caused the gastric volvulus. The question is whether the car accident caused a paraesophageal hernia or worsened an existing sliding hiatus hernia.
[32] There is a disagreement between the doctors as to whether Mr. Saleh suffered a paraesophageal hernia or a normal sliding hiatus hernia. The surgeon who repaired the gastric volvulus, put a heading on his post-operative report in the “re” line of “massive paraesophageal hernia”. Dr. Kassirian agrees and blames the force implied by the airbag deployment. But, Dr. Maharaj went through the wording of the post-operative report and showed that the surgeon actually seems to have reported seeing the normal diaphragm structures indicating that there was no paraesophageal hernia. Dr. Maharaj thinks that the labelling of the report was an error and that the gastric volvulus was caused by a normal sliding hiatus hernia resulting from his gastritis after 2005. The surgeon was not called as a witness.
[33] Dr. Kassirian’s testimony would suggest that the plaintiff is a thin skull plaintiff. He is just one among the very, very few of the tens of thousands of car accident victims each year who develop this horrible condition. Dr. Maharaj believes that Ms. Saleh is a thin skull gastritis sufferer. He is just one among the very, very few of the millions of sliding hiatus hernia sufferers each year who develop this horrible condition.
[34] Both doctors are highly trained. Dr. Kissirian has seen more gastric volvuli than has Dr. Maharaj. But her clinical experience fixing gastric volvuli does not enhance her understanding of the epidemiological evidence. Both doctors were a bit too anxious to fight for their causes in my view. Neither would admit facts that might weigh contrary to their view without volunteering explanations to justify their view. But both seemed sincere and were impressive doctors.
[35] In all, I cannot get over the question of why Mr. Saleh’s hernia became a gastric volvulus. Dr. Kissirian “implied” force theory does not really help. The force is applied momentarily causing a tear or stretch in the diaphragm she says. But the stomach moves up due to a pressure gradient that gradually causes the loosening of the ligaments that tie it down. The process takes years. No one explained how a momentary compression causes a longstanding pressure gradient. Moreover, why don’t others who are hit by airbags suffer from it?
[36] Dr. Maharaj noted that there was no real investigation of Mr. Saleh’s abdomen at the hospital after the accident. He was given routine tests. No full abdominal work up was ordered. Mr. Saleh did not have any symptoms. There is some literature that says that hiatal hernias caused by car accidents can be ignored at the emergency room because they can be asymptomatic or a much more minor concern than other serious injuries disclosed by the patient. But would one not expect that if the force of the trauma from the airbag was sufficient to cause a paraesophageal hernia in just one of tens of thousands of patients hit by an airbag, there would be some evidence of Mr. Saleh suffering from a particularly strong airbag hit? He reported no abdominal symptoms. No tenderness. No bruising. For someone who is not shy about expressing pain, he expressed none at the time. On the other hand, perhaps it was not the force of the airbag that caused the tear or stretch. It may just be the particular combination of unusual circumstances internal to Mr. Saleh that simply led his body to react to that particular airbag strike, in the particular place it struck, with the particular force that it had, that caused a paraesophageal hernia or stretched his existing sliding hiatus hernia. Dr. Kassirian simply implies that the airbag did it without knowing why or how. Dr. Maharaj says that he has no basis to make that implication.
[37] The dispute resolves to the simple fact that the plaintiff has had a car accident with airbag deployment five years before suffering his gastric volvulus. That is just not proof of causation on a balance of probabilities in my view. While people always want to associate events, especially horrible events, with a prior cause, Osler J. warned of the risk of this type of conclusory logic in Rothwell v. Raes, 1988 4636 (ON SC), aff’d 1990 6610 (ON CA), [1990] O.J. No. 2298 (C.A.) as follows:
In assessing this relationship, it had been easy and natural for lay persons, and probably the great majority of physicians, to conclude that, because there was sometimes a temporal association between vaccine administration and the development of devastating brain damage, the one was the cause of the other. The logical fallacy encompassed in the term post hoc ergo propter hoc is an error into which it is easy to fall. In studying the possible causative relationship between DPTP and brain damage, a number of considerations must be kept in mind. To begin with, DPTP is generally given in North America and in most parts of Europe within the first six months of life, an age when disastrous events, such as S.I.D.S. (sudden infant death syndrome) and seizure disorders such as infantile spasm, are most likely to occur. It has been said that, statistically, within any large group of the population, the chances of a number of encephalopathies developing within three days of virtually any observable event are very great. [emphasis added]
[38] In that case, Osler J. relied upon a very substantial body of epidemiological studies to find that the DPTP vaccine did not cause encephalitis in infants who received the vaccine. The vaccine was no more the cause of Mr. Rothwell’s encephalitis than was the weather or the colour of the clothes that he wore on the day that he contracted the disease. The plaintiff argues that the defendant’s admission that whichever hernia the plaintiff had, it is commonly caused by trauma resolves the issue. A plaintiff needs to prove both general causation, that a particular cause is capable of causing a particular effect, and specific causation, that the cause did actually cause the injury in the case before the court. See Baghbanbashi et al. v. Hassle Free Clinic et al., 2014 ONSC 5934, at para.8. The defendant’s admission proves general causation. It does not provide the specific causation of Mr. Saleh’s gastric volvulus.
[39] There was no convincing evidence presented before me that this gastric volvulus was caused by this car accident. Dr. Kkassirian could not explain the basis for her implication or why a transitory airbag hit would cause the pressure gradient that she agrees is required for a gastric volvulus to be formed. Dr. Maharaj felt that it did not. Both were basically speculating. On the whole I am left in a state of doubt. Causation is not required to be proven to medical certainty or scientific precision. It seems sensible to want to say that since the only trauma that is in evidence is the five year old car accident and since case studies show that most gastric volvuli result from trauma, this one must have been so caused or Mr. Saleh’s existing hernia, if he had one, must have been made worse by the airbag and, in either case, five years later the hernia worsened into a gastric volvulus. Dr. Maharaj agreed that this was possible. He just did not think it happened here given the absence of symptoms of evidence that the airbag hit Mr. Saleh hard or caused any other symptoms. Mr. Saleh’s symptoms would not have been masked by other injuries as he had none of significance.
[40] I just cannot tell whether Mr. Saleh was the random unlucky victim of a five year old car accident or the random unlucky victim of seven year old Grade III gastritis that would have become a gastric volvulus in any event (a crumbling skull scenario). I do not think that I can resolve this based on a credibility finding for either doctor. None of their evidence really helps with cause other than in a most general way.
[41] I am left to conclude that the plaintiff failed to meet his burden of proof of causation. Accordingly, I find that he has not proved that his gastric volvulus was caused by the car accident. As such, it does not matter if it would have overcome the threshold.
Outcome
[42] The jury awarded the plaintiff $30,000 in general damages. However, pursuant to O. Reg. 461/96 s. 5.1(1) a deductible in the amount of $30,000 is applicable to this sum. The jury was not told about the deductible of course.
[43] Therefore the action is dismissed.
[44] The defendant may deliver no more than 20 pages of written submissions on costs plus a costs outline by March 6, 2015. The defendants may respond with no more than 20 pages of submissions plus their own costs outline by April 3, 2015.
[45] In addition to the normal costs submissions, and regardless of whether costs are otherwise settled between the parties, both sides should make submissions concerning the effect of counsels’ failure to comply with the trial management order of Stinson J. dated December 3, 2014 and whether that should be reflected in costs. The court has a concern as to whether the clients should be held responsible in costs for inefficiencies in the trial that resulted from counsel’s failure to comply with the order of Stinson J., because the clients may already be paying their lawyers for more trial time than ought reasonably to have been necessary had counsel complied with the order instead of ignoring it. Therefore counsel are notified that the court wishes to receive submissions as to whether either or both should be subject to an order under Rule 57.07(1)(a). The inquiry is not wide ranging but relates only to their failure to comply with the order of Stinson J. If counsel are going to point fingers, then their submissions should be supported by proper evidence and cross-examinations if required. There is no page limit on evidence that may be filed. Evidence should not be adduced by administrative staff or colleagues if it is predicated on information and belief from counsel. See: Ferreira v. Cardenas, 2014 ONSC 7119. Counsel may find it appropriate for someone else in their firms to act if they wish to submit evidence. I may be contacted to convene a case conference for directions if required.
[46] All costs submissions are to be made by searchable pdf attachment to an email to my Assistant or on a flash drive delivered to Judges’ Administration at Room 170, 361 University Avenue, Toronto. Copies of case law shall not be provided to me. Cases relied upon, if any, shall be referenced by hyperlinks to or another reporting service in the written submissions filed.
F.L. Myers, J
Released: February 02, 2015
CITATION: Saleh v. Nebel, 2015 ONSC 747
COURT FILE NO.: CV-08-360864
DATE: 20150202
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Aiyub Saleh
Plaintiff
– and –
Ludwig Nebel
Defendant
REASONS FOR JUDGMENT
F. L. Myers, J
Released: February 2, 2015