Fridays With Rogers Partners

September 02, 2022

At our weekly Friday meeting, Nasra Esak discussed the Ontario Superior Court’s trial decision in Wabie v. Wilson, 2022 ONSC 4296.

Overview

The plaintiff, Ms. Waibe, was injured in a motor vehicle accident on August 20, 2014. She later commenced an action against the other driver, claiming damages for injuries to the neck, back, shoulder, right knee, and most notably a traumatic brain injury (TBI).

The issues before the Court were:

  1. Whether the plaintiff’s evidence pertaining to a SPECT brain scan and images should be considered or disregarded by the Court;
  2. Whether Ms. Wabie suffered an impairment of an important bodily function that was permanent and serious; and
  3. If so, what damages, if any, should be awarded to Ms. Wabie.

This article will focus on the first two issues.

Background

At the time of the accident, the plaintiff was a 50-year-old woman employed at a casino, and had no pre-existing concussion symptoms. Her job tasks included activities such as carrying large bags of casino chips, the use of technical cashier equipment, and calculating large sums of money.

As a result of the accident, the plaintiff testified that both her physical and cognitive abilities drastically changed. She stopped driving and participating in sports, became sensitive to light and sound, and suffered speech impediments. Consequently, the plaintiff was unable to continue with her employment.

Following the accident, the plaintiff complained of pain and post-concussion symptoms (light/noise sensitivity; severe headaches; stuttering; loss of train of thought, etc.). An MRI report conducted following the accident did not identify any brain injury. However, based on the plaintiff’s complaints, her family physician diagnosed the plaintiff with a concussion.

After several years of the plaintiff complaining of post-concussion symptoms, she underwent a SPECT scan in August 2018. Following the SPECT scan, the family physician concluded that the plaintiff had suffered a TBI.

Admissibility of the SPECT Scan Evidence

The Plaintiff’s Position

It was the plaintiff’s position that the alleged post-concussion symptoms were consistent with a TBI injury, and the SPECT scan evidence should not be disregarded.

The family physician’s diagnosis was supported by radiologist Dr. Siow who conducted the SPECT scan. Dr. Siow concluded that a combined assessment of the SPECT scan and the plaintiff’s medical history was consistent with a TBI diagnosis. Dr. Siow’s report indicated the following:

“Brain SPECT demonstrates perfusion abnormalities in the anterior temporal lobes and right inferior frontal lobes. These are the most common locations for traumatic brain injury to be seen on brain SPECT.[1]”

Dr. Siow acknowledged that the plaintiff’s previous MRI did not demonstrate any brain injury. However, he opined that a SPECT scan should be the primary tool when diagnosing a brain injury, noting that “[a]n MRI for brain injury does not show anything with a mild to moderate category brain injury[2]”.

The plaintiff’s diagnosis was also confirmed by the plaintiff’s expert neurologist, Dr. Mehdiratti, and expert physiatrist, Dr. Sangha.

Additional expert witnesses, Dr. Tarzwell and Dr. Fulton, opined that the plaintiff’s symptoms far exceeded the window for minor concussion symptoms (12 weeks post-accident), supporting the diagnosis of a TBI. Dr. Tazwell, a nuclear medicine specialist, opined that the use of a SPECT scan should not be a primary tool for diagnosis, but can be used as a secondary tool to aid in the diagnosis.

Defence position

It was the defendant’s position was that the plaintiff did not suffer from a TBI, and that the use of a SPECT scan to support this diagnosis should be disregarded by the Court.

The defendant relied in this regard on the decision in Meade v Hussein, 2021 ONSC 7850. In that case, Justice Bale held that a SPECT scan was inadmissible, as it failed to satisfy the reliable foundation test for novel scientific evidence[3]. The defendant relied on this decision as authority that the SPECT scan should be ruled inadmissible in its entirety.

The defendant also disagreed that the plaintiff suffered a TBI, regardless of the SPECT scan evidence. The expert witness for the defendant, Dr. Tuff, testified that it was unlikely that the plaintiff had suffered a TBI. He concluded that this was due to the plaintiff exhibiting no ‘neurotrauma markers’ following the accident, including loss of consciousness, retrograde/anterograde amnesia, or confusion[4].

Court’s Analysis

After considering the competing expert evidence, Justice Sutherland ruled the SPECT scan evidence admissible, and held that the plaintiff had suffered a TBI as a result of the accident.

In considering the admissibility of the SPECT scan, Justice Sutherland distinguished a SPECT scan from a CAT or MRI scan, stating “[t]he SPECT scan looks at the function, as opposed to viewing the anatomy/structure as with a CAT scan or MRI.[5]”

His Honor clarified that the findings of the scan were appropriate when used as secondary evidence to support an original diagnosis, rather than as a direct means of diagnosis. His Honor stated:

“In this situation, the SPECT scan evidence was obtained after a diagnosis was made. It was used to assist with the diagnosis and the support for the complaints of and observations made on the behavior of Ms. Waibe[6]”.

Justice Sutherland also disagreed with the defendant’s application of Justice Bale’s decision in Meade. His Honor concluded that Meade was distinguishable as the use of the SPECT scan in that case was as a primary diagnostic instrument. He further stated that in Meade, there were considerations of differentiating a TBI from anxiety and depression symptoms in a SPECT scan, which was not applicable to the plaintiff’s circumstances in this specific case. 

Following this analysis, Justice Sutherland concluded that the SPECT scan can be used by the Court in its determination of the plaintiff’s damages. 

Did Ms. Wabie Suffer from an Impairment of an Important Bodily Function that is Serious and Permanent

Legislation

In determining this issue, Justice Sutherland considered section 267.5(5) of the Insurance Act and Section 4.2(1) of O.Reg.461/96 (“the Regulation”).

Pursuant tosection 267.5(5) of theInsurance Act, “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 […] 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.”

Section 4.2(1) ofthe Regulation defines this threshold test as dependent on the following criteria[7]:

  1. An impairment must substantially interfere with the persons ability to continue with their employment, ability to continue training for a career in their field, or substantially interfere with their most usual activities of daily living.
  2. For the impairment to be of an important function, the function must be necessary to perform essential tasks of employment, to continue training for a career in their field, necessary for the person to provide care for their wellbeing, or be important to their usual activities of daily living.
  3. For the impairment to be permanent, it must have been continuous since the accident, and must be expected not to substantially improve, and be of a nature that is expected to continue.

The Court of Appeal in Meyer v Bright, 1993 (Ont. C.A.) 3389,provided the following three inquiries the Court should consider in determining the application of this statutory threshold for non-pecuniary damages[8]:

  1. Has the injured person sustained a permanent impairment of a bodily function caused by continuing injury which is physical, mental, or psychological in nature?
  2. If the answer to question number 1 is yes, is the bodily function, which is permanently impaired, an important one?
  3. If the answer to question number 2 is yes, is the impairment of the important bodily function serious?

This test is based on a balance of probabilities, and places the onus of proof onto the plaintiff.

Analysis

Justice Sutherland held that the plaintiff suffered permanent and serious impairments of the back, neck, shoulder, and a TBI.

His Honor held that the injuries to the plaintiffs back, neck, and shoulder where injuries consistent with a rear-end collision. He acknowledged that these impairments for many years affected the plaintiff’s ability to move, lift, walk, or sit for long periods of time. His Honor considered these to be serious and permanent impairments, as they affected the plaintiff’s ability to continue to work, and remain in an active lifestyle.

Furthermore, His Honor concluded that the plaintiff did suffer from a TBI and post-concussion syndrome. When considering the evidence in its totality, including the SPECT scan imaging and previous post-concussion symptoms of the plaintiff, Justice Sutherland was satisfied that the plaintiff did suffer a TBI due to the accident. He disagreed with the defendant that a TBI can only occur following loss of consciousness or amnesia. His Honor also concluded that the brain injury was clearly serious and permanent in nature as it had, for several years, affected many facets of the plaintiff’s daily living and ability to work.

CONCLUSION

Justice Sutherland granted judgment in favour of the plaintiff. His Honor awarded the plaintiff $200,000 in non-pecuniary general damages for pain and suffering. He also awarded significant amounts for loss of income, future care costs, and out of pocket expenses.

TAKEAWAYS

This case could represent an important precedent for future personal injury actions that involve claims of TBIs. It cannot be taken for granted that brain SPECT scan evidence will be inadmissible at trial, despite prior rulings to that effect. However, the Court did clarify that SPECT scan evidence is a secondary tool of diagnosis, and that “[i]t is to be used in concert with other medical techniques and observational tools[9]”.

[1] Wabie v. Wilson, 2022 ONSC 4296, para 68

[2] Ibid, para 78

[3] Meade v. Hussein, 2021 ONSC 7850

[4] Wabie v. Wilson, 2022 ONSC 4296, para 121

[5] Ibid, para 148

[6] Ibid, para 149

[7] O.Reg.461/96., section 4.2(1)

[8] Meyer v. Bright, 1993 CanLII 3389 (Ont. C.A.)

[9] Wabie v. Wilson, 2022 ONSC 4296, para 154