IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20141210

Docket: M138318

Registry:
New Westminster

Between:

Nabeela Kabani

Plaintiff

And

Ma Luisa Lee and
Cheong Wai Joseph Lee

Defendants

Before:
The Honourable Mr. Justice Ball

Reasons for Judgment

Introduction

[1]            
This trial raises the issue of causation of a very significant physical
disability the plaintiff asserts was caused by a low velocity, low impact motor
vehicle accident (the “Accident”). The physical disability is rheumatoid
arthritis, a painful auto-immune disease that bilaterally attacks the joints in
the human body. For the reasons which follow, I conclude that the plaintiff has
failed to prove that rheumatoid arthritis was caused by the Accident.

Background

[2]            
At 6 p.m. on January 29, 2010, Nabeela Kabani, the plaintiff, was
driving southbound on Rupert Street approaching the intersection of the
Grandview Highway in Vancouver. The vehicle driven by the defendant, Ms. Lee,
emerged from a parking lot of a grocery store and drove east, cutting across
several lanes of Rupert Street with the intention of turning left onto the
Grandview Highway. In so doing, Ms. Lee cut across the path of Ms. Kabani’s
vehicle. As the defendant’s vehicle stopped prior to entering the intersection
to turn left onto the Grandview Highway, Ms. Kabani’s vehicle struck the
defendant’s vehicle from the rear. Liability for the Accident has been admitted
by the defendant.

[3]            
Both vehicles were travelling at very low speeds and the impact between
the two vehicles was very light. The repair costs for the plaintiff’s vehicle,
a 1997 GMC Safari, was $1,363.51. The repair costs for the defendant’s vehicle,
a 2005 Pontiac Vibe, was $529.59. Photographs of the two vehicles were tendered
at trial and demonstrate the minor nature of the damage to the vehicles.

[4]            
Ms. Kabani was wearing a seat belt at the time of the Accident.

[5]            
In a statement to ICBC dated January 29, 2010, Ms. Kabani reported that
following the Accident, both drivers moved their vehicles across the Grandview
Highway to a gas station parking lot to the east. There the parties exchanged
identification and insurance information.

[6]            
On February 9, 2010, in her second statement to ICBC, Ms. Kabani stated
that she did not notice any injury after the Accident happened until February
2, 2010, when her right leg (mainly her right knee) started to hurt. She
reported that her shoulders and neck also started hurting the day after the
Accident. She also reported that, while she was attending massage therapy, she had
not missed any work and was playing badminton twice a week, but had taken some
games off as she awaited an appointment with her family doctor on February 15,
2010.

[7]            
Ms. Kabani first attended her family doctor, Dr. Witherspoon, on
February 15, 2010. Her right knee pain had improved two days prior to this
appointment. Her right hand was causing her pain. She had neck pain, which was
greater on the left side than the right, but there was no radiation of neck
pain into her back. She also had bilateral shoulder pain. The pain in her neck,
shoulders and hand had not changed since the Accident. Dr. Witherspoon examined
her and found tenderness in the paracervical muscles bilaterally and the
sternocleidomastoids bilaterally. She also had pain in her trapezius muscles.
She had a normal flexion in her neck but had pain and some bilateral
restriction on rotation, lateral flexion and extension.

[8]            
Dr. Witherspoon’s impression at that time was that Ms. Kabani had soft
tissue injuries to her neck, shoulders, right hand, and right knee caused by the
Accident. Dr. Witherspoon recommended Ms. Kabani walk, continue with massage
therapy, continue taking medication she was already taking, and return for a
follow-up appointment. No medication or other medical investigation was prescribed
at that time by Dr. Witherspoon.

[9]            
The follow-up appointment was scheduled for March 29, 2010. Prior to
that appointment, on March 19, 2010, Ms. Kabani saw a podiatrist, Dr. Brooks,
because of bilateral forefoot pain. Dr. Brooks ordered an x-ray and blood work.
The x-ray report was normal, but the blood work indicated an abnormality: a
possible inflammatory disease due to elevated rheumatoid factor and high CRP (C-reactive
protein).

[10]        
Ms. Kabani had another appointment with Dr. Witherspoon on April 8, 2010.
Her symptoms of joint pain, particularly in her left hand and right index
finger, had increased and she was diagnosed with possible rheumatoid arthritis.
Notably, Ms. Kabani had not previously reported a left hand injury
stemming from the Accident.

[11]        
Ms. Kabani was next seen by Dr. Witherspoon on April 21, 2010. She had increased
joint pain and multiple sites of joint pain, including to her knees, hands,
right foot and fingers. She reported being in constant pain and having morning
stiffness which lasted all day. Her shoulder pain was somewhat better.

[12]        
Ms. Kabani had an appointment with a rheumatologist, Dr. Kelsall, on
April 27, 2010. Dr. Kelsall reported that Ms. Kabani was having relatively new
onset symmetrical small joint arthritis, which was most likely rheumatoid
arthritis. Dr. Kelsall started Ms. Kabani on a regimen of anti-inflammatory
medications for the treatment of rheumatoid arthritis.

[13]        
On June, 9, 2010, Dr. Kelsall reported to Dr. Witherspoon that he
thought Ms. Kabani had “early onset rheumatoid arthritis.” Dr. Kelsall
also wrote:

[Ms. Kabani] was wondering if
the Motor Vehicle Accident that she was involved in a few days prior to the
onset of her symptoms was causative. I don’t think it is directly positive. She
was wondering if stress could play a role. I think that overall stress is not
helpful to one’s health. I do not think it, in itself, cause [sic] the
onset of her [rheumatoid arthritis].

[14]        
Thereafter, Ms. Kabani was referred to the Mary Pack Arthritis Centre
where she first attended on May 20, 2010.

[15]        
Ms. Kabani visited Dr. Witherspoon again on June 23, 2010. At that time
she felt her symptoms were improving. She continued to have some stiffness in
her neck, with restriction particularly on left rotation. Her shoulders were
better. She had pain in the cervical spine and reduced neck range of movement
of left rotation and lateral flexion.

[16]        
Ms. Kabani continued to be seen by Dr. Witherspoon over the following months,
but the emphasis of treatment was on rheumatoid arthritis. Ms. Kabani did not
complain of any neck or shoulder symptoms to Dr. Witherspoon thereafter until
May 2012, when a medical legal report was requested by Ms. Kabani’s counsel.
Ms. Kabani also complained of neck stiffness in September 2013, but these
complaints are not indicative of ongoing neck injury given the long period of
time between complaints recorded by Dr. Witherspoon.

[17]        
Dr. Witherspoon is a family doctor with a busy family medicine practice
since 1977. She is a Clinical Assistant Professor in the Department of Family
Practice at the University of British Columbia and teaches family medicine to
residents at St. Paul’s Hospital in Vancouver. She does not have any
specialist qualifications in Rheumatology, and gave no opinion as to the origin
or cause of the rheumatoid arthritis diagnosed by others.

[18]        
Dr. Witherspoon agreed that 85% of soft tissue injuries are resolved
within six months, and the recorded complaints in this case followed that pattern.
Dr. Witherspoon opined that the Accident was likely the cause of Ms.
Kabani’s neck stiffness and neck and shoulder pain as of January 30, 2010. Ms.
Kabani was diagnosed with rheumatoid arthritis within a few weeks after the Accident.
Dr. Witherspoon opined that this condition has contributed to the
persistence of her Accident related symptoms.

Dr. Watterson

[19]        
Dr. Watterson is a specialist rheumatologist who gave an expert opinion
on behalf of Ms. Kabani. He performed a medical examination of Ms. Kabani on
September 26, 2012. After reviewing her history and discussing her other
documentation relating to her medical history, Dr. Watterson opined:

The cause of Rheumatoid Arthritis is not known. It is felt to
be a “multifactorial” disease whereby there are interactions involving an
individual’s genetic makeup, environment triggers or stressors, and chance
alone. Environmental triggers which have been clearly shown to be involved in
the pathophysiology of Rheumatoid Arthritis include gingival disease,
interstitial lung disease, and cigarette smoking. Physical trauma has also been
proposed as a possible mechanism, however a clear pathogenic role of trauma has
not been clearly delineated. In the majority of individuals there is no clear
trigger or trauma involved at onset.

Due to the close relationship in terms of time between [the]
motor vehicle trauma and the onset of symptoms it is my opinion that the trauma
from the MVA on January 30, 2010 played a possible role in the
development of Rheumatoid Arthritis. As I have outlined above there are also a
number of other issues involved in the pathophysiology of Rheumatoid Arthritis
development. In addition Rheumatoid Arthritis is not an uncommon disease,
affecting approximately 1% of the adult population and thus disease onset may
have been coincidental only in relation to said MVA.

[Emphasis added.]

Dr. Alan Yorke

[20]        
The defendant obtained an independent expert opinion based wholly on a
review of Ms. Kabani’s medical records and reports by Dr. Alan Yorke, a specialist
in rheumatology and internal medicine. He did not meet or examine Ms. Kabani.
He noted that she had been involved in three previous motor vehicle accidents
in 1990, 1992 and 2002. His report states:

Following the latter accident,
pains did not fully resolve until two years later. The slow resolution would
suggest that this accident had resulted in significant injuries. Ms. Kabani is
reported as being free of musculoskeletal complaints for a considerable period
of time immediately prior to the motor vehicle accident under consideration.

[21]        
Dr. Yorke noted the role which stress has played in Ms. Kabani’s life;
in particular her husband’s physically and emotionally abusive behaviour which resulted
in a separation from 2004 to 2005. Other psychosocial stressors were discussed.
Dr. Yorke noted that Dr. Watterson had examined Ms. Kabani on September 26,
2012. Dr. Yorke considered this opinion expressed by Drs. Watterson,
Kelsall and Witherspoon.

[22]        
Dr. Yorke quoted from a paper (discussed below) by Dr. Dafna D. Gladman,
an expert rheumatologist, discussing the role of trauma in the development of
rheumatoid arthritis. Dr. Gladman wrote:

…stress may aggravate the immune
response leading to changes similar to those occurring in rheumatoid arthritis,
thus stress may lead to exacerbations of the disease. However, a specific role
for trauma in the development of rheumatoid arthritis has not been proven…
Unfortunately, there is no evidence in the literature to help understand the
role of trauma in either the development or perpetuation of rheumatoid
arthritis.

Dr. Yorke then concluded:

Ms. Kabani likely has a genetic
predisposition to the development of rheumatoid arthritis. It is of interest
that she had been involved in three previous motor vehicle accidents, the third
of which appears to have been significant, but she did not develop rheumatoid
arthritis following these events. There is evidence that she was under
significant psychosocial stressors in the years prior to the motor vehicle accident.
One month following the event, her grandmother who she was very attached to,
died and three weeks later she was the victim of a physical assault for which
police were called. The ongoing marital discord led to separation from the
marriage in January 2012. The acute stresses of her grandmother’s death and the
physical assault coincided with the reported onset of rheumatoid arthritis and
if stress is to be entertained as an etiological factor, these sources of
stress, in my opinion, considerably exceed that which may been derived from the
injuries sustained in the motor vehicle accident.

[23]        
On August 9, 2013, at the request of ICBC, Dr. Yorke provided a further
clarification of his earlier report as follows:

In conclusion, it is my opinion
that it is more likely than not that rheumatoid arthritis, which Ms. Kabani
suffers from, was not caused by the trauma of the motor vehicle accident of
January 29^th 2010.

Analysis

[24]        
To succeed in her action for damages related to rheumatoid arthritis, Ms. Kabani
must prove on a balance of probabilities that rheumatoid arthritis was caused
by the trauma of the Accident. In Resurfice Corp. v. Hanke, 2007 SCC 7
at paras. 18-21, the Court confirmed that the basic test for determining
causation remains the “but for” test; the plaintiff has the burden of showing
that “but for” the negligent act or omission of a defendant, the injury would
not have occurred. The Court stated at para. 23 that the “but for” test ensures
that compensation for negligent conduct is only made where the plaintiff can
demonstrate a substantial connection between the injury and the defendant’s
conduct. The “but for” test has more recently been affirmed in Clements v.
Clements, 2012 SCC 32 at para. 8.

[25]        
In Hunt v. Ugre, 2012 BCSC 1704 at para. 121, Justice Dardi notes
that the court must be cautious when inferring causation from a temporal sequence
(i.e. from a consideration of pre-accident and post-accident condition). Dardi
J. states:

In cases where causation is
asserted primarily on a temporal relationship between the negligent conduct and
[the] injury in question, the authorities mandate that a “close scrutiny of the
evidence is required because the inference from a temporal sequence to a causal
connection is not always reliable”.

[26]        
The potential for a link between trauma and rheumatoid arthritis was
canvassed in a medical discussion paper (mentioned above) entitled “Trauma and
Inflammatory Arthritis” prepared by the Ontario Workplace Safety and Insurance
Appeals Tribunal in September 2008 by Dr. Dafna D. Gladman, an acknowledged
expert in rheumatology and internal medicine with a particular interest in inflammatory
arthritis (filed as Exhibit 7 at trial). Dr. Gladman’s publications and
teachings were referred to and relied upon by Dr. Yorke in his evidence. At
page 2 of the paper, Dr. Gladman discusses the etiology and pathogenesis of the
disease. Dr. Gladman notes at the outset that “[t]he cause of rheumatoid
arthritis is unknown.”  At page 5, under the heading “Role of Trauma”, Dr.
Gladman states “… a specific role for trauma in the development of rheumatoid
arthritis has not been proven.”

[27]        
Dr. Yorke presents a clear opinion against trauma being capable of
causing rheumatoid arthritis. It is of some interest that his scientific
opinion in this regard has changed over the years, evidenced by the expert
opinion he rendered in Charbonneau v. ICBC, 1991 New Westminster
Registry C890102 (B.C.S.C.), where Justice Mackinnon stated that Dr. York was “emphatic”
that the plaintiff had rheumatoid arthritis and that it was precipitated by an
accident.

[28]        
The only medical evidence suggesting a link between the Accident and the
onset of rheumatoid arthritis is Dr. Watterson’s opinion that the trauma from
the Accident played a “possible role” in the development of rheumatoid
arthritis. A “possible role”, when considered alongside the other medical
evidence indicating that a link between trauma and rheumatoid arthritis has not
been proven, does not satisfy me that the Accident caused or contributed to Ms.
Kabani’s rheumatoid arthritis.

[29]        
Regardless of any temporal link, there is simply no medical opinion upon
which the Court can rely in this case to establish on a balance of
probabilities the necessary causal link between the Accident and Ms. Kabani’s rheumatoid
arthritis. The reports received by Dr. Witherspoon from Dr. Kelsall support the
conclusion that the Accident did not cause Ms. Kabani’s rheumatoid arthritis.

[30]        
The next question to consider is whether the Accident aggravated
Ms. Kabani’s symptoms of rheumatoid arthritis. I note at the outset the
expert medical opinions given in this trial provide no support for Ms. Kabani’s
assertion of a link between the Accident, or any injury flowing therefrom, and
the onset of rheumatoid arthritis. In determining whether the Accident
aggravated Ms. Kabani’s rheumatoid arthritis, the Court must consider whether
the reporting of symptoms by Ms. Kabani is sufficient by itself to prove a link
between the soft tissue injuries she incurred in the Accident and the
aggravation of rheumatoid arthritis.

[31]        
The difficulty presented for Ms. Kabani in attempting to prove the
aggravation of the symptoms of injuries, caused by the Accident, is the proof
of cause of ongoing pain or other symptoms. Ongoing pain and stiffness, for
example, are clearly symptoms of rheumatoid arthritis. However, those symptoms
cannot on her evidence or any other evidence which I have heard be
distinguished from similar, but typically not long term, symptoms of soft tissue
injuries typically caused by a low speed and low impact motor vehicle accident.

[32]        
Ms. Kabani’s credibility is significant in this aspect of the judgment
due to issues surrounding the post-Accident development of rheumatoid
arthritis.

[33]        
The defendant submits that Ms. Kabani is not a reliable witness and that
her evidence is inconsistent and not credible with respect to the progression,
cause or claimed exacerbation of soft tissue injuries. Counsel for the defendant
provided many examples to demonstrate this concern over Ms. Kabani’s lack of
credibility.

[34]        
I find there is merit in the defendant’s submissions in this regard. For
instance, Ms. Kabani often responded to questions in cross-examination which challenged
her testimony based on her own doctors’ records with argument, rather than by responding
factually to the clear conflicts between her doctors’ clinical records and her
testimony. One clear example of this was when Ms. Kabani insisted that as a
result of taking a certain prescription anti-inflammatory medication she
suffered an acute allergic reaction. Dr. Kelsall’s clear evidence at the time
was that she was not taking the particular medication at the time of the asserted
allergic reaction.

[35]        
Ms. Kabani represented herself as healthy and being free from disability
prior to the Accident. However, she had previously been involved in three motor
vehicle accidents between 1990 and 2002, where the injuries incurred in the
third accident required over two years of significant rehabilitation.

[36]        
Ms. Kabani asserted she began to feel symptoms of rheumatoid arthritis
within days of the Accident. However, Dr. Watterson’s report dated September
26, 2012, Dr. Witherspoon’s clinical records and Ms. Kabani’s statements to
ICBC are consistent that the symptoms reported in the first two weeks after the
Accident were of a soft tissue nature to the shoulder, neck and right knee.

[37]        
Ms. Kabani reported the Accident in very traumatic and dramatic terms.
She stated she was shaking, sweating profusely, and her heart was pounding. This
account is not supported by other evidence. Firstly, profuse sweating would
have been visible to the defendant but was not reported and no question was put
to the defendant concerning this aspect of the case when she testified. Secondly,
during her examination for discovery Ms. Kabani stated that her immediate response
to the Accident was to suggest the vehicles be moved to a convenient gas
station nearby to exchange information and that she subsequently went home and
completed her daily tasks. This is inconsistent with her dramatic recounting at
trial.

[38]        
Based on the foregoing, and other problematic elements of Ms. Kabani’s
evidence I did not mention, I do not find Ms. Kabani to be a credible or
reliable witness or historian. There are simply too many inconsistencies
between her evidence, particularly in cross-examination, and the statements contained
in the clinical records and medical reports exhibited at trial.

[39]        
There is no basis to support Ms. Kabani’s assertion that her symptoms of
rheumatoid arthritis were aggravated by the Accident. The medical evidence is
not consistent with Ms. Kabani having aggravated rheumatoid arthritis as a
result of soft tissue injuries as she responded well to rheumatoid arthritis
treatments, as noted by Dr. Kelsall over the course of 2010 and her medical
stability through the bulk of 2011.

[40]        
There is also no basis to support her assertion that she is continuing
to experience symptoms arising from the Accident more than two years after the
Accident occurred. The medical evidence indicates that the injuries were
substantially healed within six months of the Accident.

[41]        
Dr. Witherspoon’s records indicate that Ms. Kabani’s knee pain had
resolved by February 15, 2010. In her medical legal report, Dr. Witherspoon
noted that on April 21, 2010, Ms. Kabani had incomplete mobility of the neck,
though pain in this area had lessened. Dr. Witherspoon also reported that Ms.
Kabani’s shoulder pain was better. Dr. Kelsall reports that by June 9, 2010 Ms.
Kabani was much better.

[42]        
Dr. Witherspoon’s clinical records for an appointment on June 23, 2010
state that Ms. Kabani’s shoulders were “fine” and Ms. Kabani was “back to
playing badminton”. Although Ms. Kabani continued to experience neck symptoms,
Dr. Witherspoon confirmed in testimony that issues with her ongoing pain
in her hands, feet and knees were related to rheumatoid arthritis.

[43]        
The history given by Ms. Kabani to obtain treatment at the Mary Pack
Arthritis Centre in June 2010 included no mention of any pain in her neck and
the therapist at the Mary Pack Centre recorded, “Hasn’t stopped activities –
still hosting parties.”

[44]        
Ms. Kabani did not suffer, according to the medical evidence and
clinical notes, any damage to any skeletal or neurological structure. By June
2010, six months after the Accident, most of her complaints relating to the
Accident had come to an end.

[45]        
As noted in the written submissions of counsel for the defendant:

Dr. Witherspoon confirmed that
85% of soft tissue injuries resolve within six months, and the reliable evidence
is indicative of a soft tissue injury that has followed this normal course. The
Plaintiff says that her neck and shoulder have hurt consistently since the
accident, but even this is not corroborated by the clinical notes and records,
which indicate improvement over the first five months.

[46]        
While Dr. Witherspoon’s medical legal report indicates that in May 2012
Ms. Kabani complained of neck and shoulder pain persisting from the
Accident, I find that Dr. Witherspoon was merely recording Ms. Kabani’s
complaints. Given my findings on Ms. Kabani’s credibility, I do not accept that
Ms. Kabani was experiencing neck or shoulder pain persisting from the Accident
nearly two years after she had ceased to complain about these symptoms to Dr.
Witherspoon. If she was indeed experiencing these symptoms, I find they were
not related to the Accident.

[47]        
Based on the evidence before me I am satisfied that the soft tissue
injuries Ms. Kabani incurred in the Accident were substantially healed within
six months after the Accident and were not persistent symptoms thereafter.

Damages

[48]        
While there is no doubt Ms. Kabani suffered soft tissue injuries in the Accident
and hence is entitled to damages, those are damages consistent with a minor
soft tissue injury to her neck and upper back. Ms. Kabani submitted a number of
cases, including Haag v. Serry, 2009 BCSC 187, Zigawe v. Rance,
2009 BCSC 1816 and Burtwell v. McCaffrey, 2013 BCSC 886, all in support
for non-pecuniary damages of $100,000, together with damages for past wage loss,
loss of future earning capacity, cost of future care and significant special
damages.

[49]        
Each of the cases cited by Ms. Kabani is distinguishable because each of
them deals with a situation where a plaintiff had a pre-existing medical
condition where the court found that the accident either accelerated or
exacerbated a pre-existing condition. In the case before me the evidence was
that at some time after the Accident Ms. Kabani contracted rheumatoid arthritis
and suffered considerably from that condition. For the purposes of this case,
rheumatoid arthritis was not a pre-existing condition and was not, as I have
found above, caused by the Accident. For this reason, claims such as past wage
loss, loss of future earning capacity or significant special damages have not
been proven to be connected with the Accident. No particular medical
investigation or medication was prescribed by Dr. Witherspoon following
the Accident. The abovementioned cases allow non-pecuniary damages from a low
of $54,000 to a high of $80,000. I find this range to be excessive in the
circumstances of this case.

[50]        
Counsel for the defendant submitted that the only damages which should
be awarded to Ms. Kabani are non-pecuniary damages. Counsel for the defendant cited
Ryan v. Klakowich, 2011 BCSC 835, Gron v. Brown, 2012 BCSC 391, Currie
v. McKinnon, 2012 BCSC 698 and Johal v. Conron, 2013 BCSC 1924. Again,
none of these cases are on all fours with the case before me, but there are
marked similarities in some aspects of each of them. The range of non-pecuniary
damages in these cases moved from a low of $22,000 to a high of $35,000.

[51]        
The only head of damages allowable on the facts of this case is
non-pecuniary damages. I am satisfied that the appropriate figure for
non-pecuniary damages for Ms. Kabani as a result of the Accident is $32,500.

[52]        
The parties are at liberty to apply for an order respecting costs. In
the absence of such an application, costs of the action will follow the event.

“Ball J.”