Volume. 8 Issue. 43 – December 11, 2024
This week the Court considers a combined statutory appeal and application for judicial review with respect to the Tribunal having determined, upheld on reconsideration, that she was not involved in an accident. The applicant was rendered a paraplegic as a result of the incident in question.
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Court Sends Paraplegic Matter Back to Tribunal re “Accident”
In Pourkhodayar v The Personal, Pourkhodayar sought a combined statutory appeal and application for judicial review with respect to the Tribunal having determined, upheld on reconsideration, that she was not involved in an accident.
The Incident
Pourkhodayar was the passenger in a vehicle that at one point came to be surrounded by a group of several motorcycles weaving in and out of traffic around them. The driver of her vehicle became angry at the motorcyclists as he tried to get away from them. Pourkhodayar became “really scared’ that something was going to happen, and asked that the driver pull over, however he continued to drive in an agitated state. Pourkhodayar said that she felt “trapped” in the vehicle, however eventually the driver pulled onto the shoulder.
Five minutes later, Pourkhodayar took over driving, however as soon as she sat in the driver’s seat, she experienced severe back pain. Eventually, within 20-25 minutes she had to pull over as the pain was worsening. When she got out of the car she felt pins and needles in her legs, and the driver took her straight to hospital. By the time they arrived, Pourkhodayar had lost all sensation in her legs and was unable to walk or exit the vehicle.
Paraplegia
Pourkhodayar was rendered paraplegic as a result of a spinal cord hemorrhage. Doctors discovered that she had a congenital medical condition called an arteriovenous malformation (“AVM”) in her spine. A subsequent angiogram determined that the AVM was also associated with a suspected aneurysm (bulging of the blood vessel). A central issue before the Tribunal was whether the hemorrhage was the result of the aneurysm rupturing due to an increase in the appellant’s blood pressure or whether it was a spontaneous rupture of the AVM.
Causation
In the original decision, the Tribunal found that the causation test was not met. The court noted that the “causation test looks to determine whether ordinary and well-known activities associated with the use or operation of an automobile were a direct cause of the claimant’s impairments. For the causation test to be met, there are three questions for consideration: (1) But for the use or operation of the automobile, would the incident have occurred? (2) Was there an intervening cause that cannot be said to be part of the ordinary course of the use or operation of the automobile? (3) Was the use or operation of the motor vehicle a dominant feature of the incident?”
But For
The Tribunal found that Pourkhodayar failed to establish that but for the use or operation of the vehicle she would likely not have suffered a rupture and hemorrhage within her spine. For her part, Pourkhodayar “argues that the Tribunal’s finding was based on an unreasonable and unfair review of the expert evidence. She says that the Tribunal unreasonably relied upon incorrect and irrelevant facts to discount her expert’s opinion (that of Dr. Fazl) and ignored critical concessions made by the respondent’s expert (Dr. Shamisa).”
Reasons The Personal’s Expert Was Preferred
The court agreed with Pourkhodayar, noting that the “Tribunal’s stated rationale for preferring Dr. Shamisa’s evidence over Dr. Fazl’s was based on three factors: (a) Dr. Fazl did not account for why the appellant had severe back pain for 30 minutes prior to the onset of paraplegia; (b) Dr. Fazl failed to state in his reports that he conducted an in-person assessment of the appellant; and (c) Dr. Fazl failed to clearly state that he reviewed the actual spinal angiogram imaging in addition to the imaging report of the doctor who performed the angiography. As a result of these omissions, the Tribunal questioned whether Dr. Fazl had omitted other information and consequently preferred Dr. Shamisa’s opinion.”
Applicant’s Expert Evidence Reviewed
Reviewing the evidence, the court found in fact that Dr. Fazi did account for why Pourkhodayar had severe back pain for 30 minutes prior to the onset of paraplegia. It was his evidence that “her symptoms having begun with pain and progressed to paralysis over 30 minutes is indicative of there having been “high blood pressure, rupture, aneurysmal dilatation with this malformation, bleeding within the spinal court and paraplegia.” This evidence was not subject to comment by the Tribunal.”
With respect to Dr. Fazl failing to state in his reports that he conducted an in-person assessment, the court noted that an “in-person assessment some years after the event would be unlikely to yield any significant relevant factors. Indeed, Dr. Fazl testified on cross-examination that his opinion was primarily based on his review of the documents and not the in-person assessment. Of note, he was not cross-examined on the specifics of that in-person assessment. In these circumstances, that Dr. Fazl had done an in-person assessment of the appellant was of little consequence and it is difficult to see why it would have impacted the Tribunal’s acceptance of his evidence.”
As for the suggestion that he had failed to clearly state in his reports that he reviewed the actual angiogram imaging and not just the imaging report, the court rather found that “he had, on at least three occasions, indicated in his reports that he had reviewed the appellant’s spinal angiogram… The Tribunal’s criticism of Dr. Fazl with respect to this issue was misplaced.” In addition, the court found that Dr. Shamisa “gave two apparently contradictory opinions on one of the most significant issues being determined by the Tribunal. Yet in its decision, the Tribunal did not address that contradiction or explain why it preferred one part of Dr. Shamisa’s opinion over the other.”
Contradictory Evidence Not Accounted For
With respect to whether this was a case of an AVM rupture or if it was consistent with an aneurysm rupture, Dr. Shamisa testified that “aneurysms I would expect that they would do an immediate damage because they’re higher flow. They are higher pressure. So, they accumulate more blood. So I would expect that they’d do the damage and the effect and symptoms right away. I would expect AVMs to do probably what Mrs. – what happened to her over minutes to hours. I think if I have to choose between both, I would say the AVM rupture.” However, under cross examination he was asked whether the rapid evolution of symptoms wasn’t entirely consistent with the stressful incident in the car and the associated rise in blood pressure likely causing the rupture and hemorrhage in this case. Eventually, the doctor opined that it was both “possible”, as well as “likely”.
Decision Unreasonable
The court confirmed that “An application for judicial review is not a “do-over” before this court or a treasure hunt for error. However, in this case, the tribunal was faced with complex evidence from highly qualified experts and chose to prefer the defence expert for reasons that in important respects were misplaced or not borne out by the record. In the circumstances, the analysis of the competing expert opinions was so unsound and that it renders the decision on the “but for” analysis unreasonable.”
Intervening Cause
The Tribunal had ruled that, “the stress and high blood pressure she suffered were not a normal incident of the risk created by the use or operation of the automobile, and that the hemorrhage and resulting paraplegia were not reasonably foreseeable risks of the sequence of events involving the motorcyclists. Last, the Tribunal found the action of the motorcyclists to be more akin to an assault – an act that has been found not to constitute an accident when it occurs in the context of the operation of a motor vehicle.” The court however commented that “When a passenger in a motor vehicle takes to the road, he or she assumes a risk that the driver of his or her vehicle or other drivers on the road will be careless or aggressive or even dangerous… This is a risk taken on every occasion. It is a risk taken in the normal course. Put yet another way, it is an incident that is not outside the ordinary course of things.”
Assault
As for the “assault” contention, the court agreed that an assault would constitute an intervening act. However, “what differentiates assault from negligence or carelessness or even dangerous operation of a vehicle is intent – the intention to cause the claimant harm. In this case there was no evidence of such intent on the part of the motorcyclists or NM and their actions alone do not indicate an intent to harm the appellant.
Dominant Feature
The Tribunal had ruled that “the existence of the congenital AVM, and the consensus opinions of the parties’ experts that it (or the associated aneurysm) would eventually rupture, was the dominant feature of the applicant’s injury. The vehicle was ancillary.” The court found that the Tribunal “erred in its finding with respect to this issue. Absent a proper finding that a spontaneous rupture of the AVM was responsible for the appellant’s hemorrhage, that the appellant’s medical condition would eventually result in the hemorrhage she suffered is neither here nor there. If, in fact, the hemorrhage was caused by an increase in blood pressure resulting from the stress of the situation involving the motorcyclists and NM, it occurred earlier than it otherwise would have. It is impossible to say how much earlier. Perhaps a day, perhaps a month, perhaps several years. It would be improper to deny the appellant benefits for a hemorrhage suffered now just because she would suffer that same hemorrhage at an undetermined future date.”
Disposition
Accordingly, “The appeal and application for judicial review are granted. The impugned decision is quashed, and this matter is remitted for fresh hearing before a differently constituted tribunal of the LAT. In accordance with the agreement reached by the parties, the respondent shall pay costs to the appellant in the amount of $10,000 all-inclusive.”
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